Terms and Conditions
This Agreement governs Afilias’ supply and licensing to You of certain Services and Client API (as defined below) as well as the use by You of same. You are not permitted to access, view, use or contribute to the Services if You do not accept this Agreement.
By subscribing to the Services and by clicking “ACCEPT”, You acknowledge and confirm Your acceptance of the terms and conditions of this Agreement which are legally binding on You. Where Your subscription to the Services is part of an Order, this Agreement, in addition to the terms of Your Order, continues to apply to You.
Your attention is in particular drawn to Clauses 5 and 6 regarding Our ownership and use of Intellectual Property Rights and Your obligations in respect of any content provided by You to Us.
“Afilias”,“We”, “Us”, and “Our” refers to Afilias Technologies Limited with its principal place of business at Level 2, Plaza 3, Custom House Plaza, Harbourmaster Place, Dublin 1, D01 VY76, Ireland;
“Charges” means Our then current charges (including VAT) payable for the Services as notified to You on the DeviceAtlas.com website, or in an Order Confirmation issued by Us, prior to You accepting this Agreement. The current standard Charges depend on the Services You choose;
“Client API” means Afilias’ proprietary application program interface with which You access the Services;
“Client Authorised User(s)” means Your own employees, agents or personnel who access the Service on Your account;
“Database” means the continually evolving database which forms part of the Services and which contains information generated by Us and by Our users and partners on an ongoing basis relating to devices for the mobile web;
“Documentation” refers to the manuals, user guides, help text files or embedded software instructions which are made available as part of the Services;
“Free Edition” means the DeviceAtlas cloud free edition of the Service;
“Intellectual Property Rights” means all intellectual property rights, including but not limited to patents, trademarks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright, know-how, trade or business names and any other similar rights or obligations in any country whether registerable or not;
“Order” means any application made to Us by a corporate or other legal entity for Standard Edition or Premium Edition of the Service (specifying the information required by Us from time to time) and which is accepted by Us in writing by means of a specific “Order Confirmation”;
“Premium Edition” means the DeviceAtlas cloud premium edition of the Service, pricing for which is set out on the DeviceAtlas.com website;
“Service(s)” means the DeviceAtlas service which is made available to You pursuant to this Agreement comprising the Software, the Database and all related services which are made available to You at DeviceAtlas.com. The Service comprises one of Our three offerings (the Free Edition, the Standard Edition or the Premium Edition) as selected by You in Your Order or as part of the online subscription process;
“Software” refers to those software components of the Services, not including the Client API, developed by Afilias and included in the Services on an ongoing basis;
“Standard Edition” means the DeviceAtlas cloud standard edition of the Service, pricing for which is set out on the DeviceAtlas.com website;
“Term” means, subject to the early termination provisions in this Agreement, the period commencing on the date of purchase of the Services (or on a date otherwise agreed by Us in an Order Confirmation) and continuing for:
- in the case of a subscription to the Free Edition, one (1) year;
- in the case of a subscription to the Standard Edition or the Premium Edition, one (1) month or one (1) year as selected by You in Your Order or otherwise as part of the online subscription process; or
- in the case of an evaluation subscription (as further described in Clause 8) for the Standard Edition or Premium Edition, one (1) month (the “Evaluation Term”).
“Third Party End User” means, for Premium Edition subscribers only, Your customer(s) or other authorised end user(s) to whom You may provide access to the Services and/or the Client API pursuant to this Agreement;
“You”, “Your” and “Client” refers to each subscriber of the Services.
- In consideration of Your payment of the Charges and Your acceptance of this Agreement, We agree to make the Services and Client API available to You for the Term subject to the terms and conditions of this Agreement.
- You acknowledge and agree that the nature of the Services and Client API is that they are constantly evolving and Your attention is particularly drawn to the exclusions and disclaimers in respect of the Services which are set out in Clauses 7 and 12 below.
- Access to the Services is available through either the use of a web browser, other Internet retrieval software, or via the Client API. Client API may be supplied directly by Us, or through a third party website under an MIT License. You accept full responsibility for purchasing and upgrading hardware and software as You require to avail of the Services.
- This Agreement does not cover installation, consultancy services, maintenance (including the provision of Software updates) or other services. If you require such additional services, they will be provided under such additional terms and conditions as We may agree with You.
Authorized Use of the Services
- Subject to the terms and conditions of this Agreement, in making available the Services to You pursuant to Clause 2 above, We grant You a limited, non-exclusive, non-transferable, personal licence to:
- download and use the Client API subject to the terms of the MIT License terms set out at Exhibit A hereto; and
- access and make use of the Services within Your internal multi-user system, wide or local area network or Intranet, in each case up to the level permitted by Your subscription and subject to the other usage conditions specified in Clause 4 and solely for the purpose of performing mobile device recognition, and retrieval of mobile device data from the Database for use with a single website (for Free Edition or Standard Edition subscribers),or up to fifty websites(for Premium Edition subscribers), during the Term.
- You are solely responsible and liable for use of the Services and the Client API by the Client Authorised Users. You shall defend, hold harmless and indemnify Us for any and all damages and expenses suffered by Us as a result of acts or omission of Client Authorised Users.
- We own the Intellectual Property Rights in the Services and the Client API and We require You to agree that You recognise the importance of Us of maintaining Our proprietary rights over the Services and the Client API and of avoiding any use not authorized by Us. Accordingly, You and Your Client Authorised Users shall not, and You shall procure that any Third Party End Users shall not, use the data retrieved using the Services or the Client API for the purposes of publication or distribution to third parties and You may not transfer any information or data obtained from the Services into the public domain.
- Without limiting the generality of Clause 3.3 above, You shall not, and You shall procure that any Third Party End Users shall not, use the Services in any way not expressly permitted under this Agreement. This includes a prohibition on:
- removing or modifying any markings on the Software or the Database including reports or any notice of Our Intellectual Property Rights;
- modifying, selling, renting, transferring, (subject to Clause 4.4) reselling for profit or distributing the Services or creating derivative works based on the Services, or any part of them;
- any distribution of data retrieved from the Database in any form to, or for the benefit of, any other person except for incidental samples used for illustrative or demonstration purposes;
- using the Software or any data extracted from the Database to provide third party training, except for training Client Authorised Users;
- causing or permitting any adaptation, translation, decompilation, disassembly, or reverse engineering of the Software, or the Database;
- copying the Software, or the Database or creating subsets or derivative databases from Our Database in a manner not expressly permitted by this Agreement other than is necessary for backup or archival purposes;
- disclosing details of purchase terms or commercial arrangements between You and Us;
- transferring or assigning this Agreement in whole or part, or subcontracting any of Your obligations under this Agreement (other than set out above) without Our prior written consent;,
- sharing, distributing or providing access to the Service to any third party, save that Premium Edition subscribers may provide limited access to the Service to Third Party End Users in accordance with and subject to Clause 4.4.
- Subject to the terms and conditions of this Agreement, in making available the Services to You pursuant to Clause 2 above, We grant You a limited, non-exclusive, non-transferable, personal licence to:
Permitted usage levels of the Service
- Your permitted level of access to the Services is dependent on the category of Service selected by You. If You have selected a Free Edition subscription, You can access the Services up to fifty thousand (50,000) times per month. If You have purchased a Standard Edition subscription, You can access the Services up to one million (1,000,000) times per month. If You have purchased a Premium Edition subscription, You can access the Services up to five million (5,000,000) times per month.
- In addition, Your access to the Services is subject to the following maximum daily usage limits. If You have selected a Free Edition subscription, You can access the Services up to ten thousand (10,000) times per day. If You have purchased a Standard Edition subscription, You can access the Services up to one hundred thousand (100,000) times per day. If You have purchased a Premium Edition subscription, You can access the Services up to five hundred thousand (500,000) times per day.
- In the event that You exceed the permitted usage limits under Clauses 4.1 or 4.2, We reserve the right to immediately suspend Your right to access the Services, to bar Your future use of the Services and/or to pursue You for Our costs incurred due to the handling of Your requests. Where You require usage outside the limits set out herein, an additional license will be required. In such a case, we recommend that You avail of Our DeviceAtlas Enterprise offering.
- Where You have subscribed to the Premium Edition, Your permitted use of the Services and the Client API is extended to permit You to grant access to Your Third Party End Users to use and access the Services and the Client API to support a maximum of up to fifty (50) websites of Third Party End Users subject to the restrictions in Clauses 4.4.1 to 4.4.3 and for the sole purposes of (i) providing aggregated analytics data to Third Party End Users and (ii) serving the Third Party End User’s own website content. Before granting such access to a Third Party End User, You shall:
- require each such Third Party End User to agree in writing to comply with obligations that are: (i) consistent with those in this Agreement (but with no right to grant further sub-licences or access rights to the Services), and (ii) no less protective of the Services than the Third Party End User imposes in its own agreements with its customers;
- enforce Your agreements with Third Party End Users and promptly inform Us of any known breach thereof as it relates to the Services; and
- defend, hold harmless and indemnify Us for any and all damages and expenses suffered by Us as a result of acts or omission of such Third Party End Users or Your failure to comply with this Clause 4.4.
- Where You have subscribed to the Premium Edition and: 1) Your business is less than three years old, and 2) the annual turnover of your business is less than USD 2,000,000 (two million US dollars), Your permitted use of the Services and the Client API is extended to permit You to incorporate the Services into a platform for provision of the Services to Your Third Party End Users (“Your Service Platform”), subject to the following restrictions:
- all obligations of Sections 4.4.1, 4.4.2, and 4.4.3 in this Agreement continue to be fulfilled;
- the Services do not constitute a primary or material component of Your Service Platform as decided by Afilias’ in its sole discretion; and
- Your Service Platform does not transfer to Third Party End Users any data obtained from the Services except in aggregate form.
- Where We have reason to believe that there has been a breach of Clause 4.4 or 4.5, We reserve the right to immediately suspend Your right to access the Service while we investigate the matter.
- We may assign, or subcontract any of Our responsibilities under this Agreement.
- You are responsible for observing any applicable export and import laws that govern Your use of the Services or the Client API. You will not export the Services, the Client API, or any part thereof, directly, or indirectly, in violation of these laws, or use them for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
- Upon seven (7) days’ written notice (or where applicable through remote monitoring of the Services by Us which may be conducted without prior notice), We, or Our agent, may audit Your use of the Services. You agree to co-operate with Our audit and provide Us with reasonable assistance and access to information and/or Your premises. You agree to pay within thirty (30) days of written notification any underpaid Charges. If You do not pay, We can terminate this Agreement.
- If You have a dispute with Us, or if You become subject to Insolvency Events (as defined in Clause 9.1.2), You will promptly send written notice to Afilias Technologies Limited, Level 2, Plaza 3, Custom House Plaza, Harbourmaster Place, Dublin 1, D01 VY76, Ireland, Attention: Chief Financial Officer.
Your Personal Data and Content that You Provide
- The value of the Services depend, to some degree, on the ongoing improvements, updates, content and contributions created by Our users and made available to others via the Services. In order to ensure that Our users behave in a responsible manner, this Clause 6 sets out the rules regarding the posting of content by You into the Services.
- You do not enjoy any presumption of anonymity while using the Services. You are required to choose a username before You can contribute any content into the Services. You may not misrepresent Your identity by using false e-mail address, impersonating another person or entity, or otherwise misrepresenting the origin of content You enter. All content posted by You is posted in a manner which is capable of identifying You to Us and to Our other users. Therefore, by submitting any content to the Services, You are expressly consenting to the publication of Your username in association with the content You have provided. You also consent to Our disclosure of information identifying You where we are requested to provide such information to any competent authority or by a person who notifies Us of any claim or potential claim relating to material provided by You or where it is otherwise necessary to protect Our rights, assets, property or safety. In addition, any personal data made available via the Services or the Client API will be subject to the terms of the Privacy Statement as published on the DeviceAtlas.com website.
- You agree not to use the Services or the Client API or cause or permit the Services or the Client API to be used:
- so as to jeopardise or prejudice the operation, quality or integrity of the Services, the Client API, or the operation, quality or integrity of any telecommunications network;
- for any improper commercial purpose including contests, pyramid schemes, chain letters, junk e-mail, spam, duplicative or unsolicited messages or political campaigning material;
- to harvest or otherwise collect information about others, including e-mail addresses, without their consent;
- in a manner that would breach any Intellectual Property Rights, privacy or data protection rights of others;
- to distribute, download, upload or transmit any material which contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
- contrary to the terms and conditions of any Internet Service Provider whose services You may use.
- We reserve the right (but not the obligation) to remove or edit the content that You provide on the Database or otherwise through the Services.
- When You enter content into the Database through the Services including via any area of the DeviceAtlas.com website, unless stated otherwise, You grant Us and Our affiliates a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, copy, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media.
- You grant Us and Our affiliates and sublicensees the right but not the obligation to use the name that You submit in connection with the content that You provided. You represent and warrant for content that You post to this website:
- You own or otherwise control all of the rights to the content.
- You believe that the content is accurate.
- Use of the content You supply does not violate this Agreement and will not cause injury to any person or entity.
- Upon request by Us, You agree to provide Us with all information reasonably required by Us to verify Your identity, including where applicable, all information required to enable Us to comply with regulatory, anti-money-laundering or “know your client” requirements.
- YOU HEREBY INDEMNIFY AND AGREE TO KEEP US INDEMNIFIED AGAINST ANY LIABILITIES, LOSSES, DAMAGES, FEES, COSTS OR EXPENSES WHATSOEVER INCURRED BY US IN CONNECTION WITH ANY CLAIMS OR DEMANDS WHICH MAY BE MADE AGAINST US ARISING FROM YOUR BREACH OF THIS CLAUSE 6.
Warranties and Disclaimers
- We warrant and represent to You that We have full capacity and authority to enter into and to perform this Agreement. We also warrant to You that We are entitled to supply the Services; that the Services will operate materially as described in the applicable Documentation current at the time of supply and that Client API provided directly by Afilias has been screened in advance by a reputable virus scanning application for any known viruses.
- Given the nature of the Services and in particular their reliance on content provided by third parties, You agree that the Services and the Client API (including any limited support service provided by Us) are provided by Us on an “as is” basis. Therefore, to the fullest extent permitted by applicable law and except where expressly provided in Clause 7.1, We disclaim all warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, compatibility, security, accuracy or infringement in respect of the Services or the Client API. We cannot warrant or represent that Your use of the Services or the Client API will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy Your requirements. You acknowledge that We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and You acknowledge that the Services, the Client API and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. You assume the entire risk as to the results and performance of the Services and the Client API and the Charges payable under this Agreement reflect such assumption of risk by You.
- You warrant to Us that, in entering this Agreement, You are acting in the course of Your business and that You are not a “consumer” within the meaning of the Sale of Goods and Supply of Services Act 1980 or the European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001 or otherwise.
- In some cases and at Our discretion, We may offer You use of the Services for an Evaluation Term under discounted or free commercial terms. If You are offered such an evaluation, the terms of this Agreement shall bind You throughout the Evaluation Term subject only to such variations as are necessary to reflect the discounted or dis-applied Charges applicable to the offer. If You do not purchase a subscription to the Services immediately after the Evaluation Term expires, the terms of Clause 9 below shall apply to You. If You continue to use the Services after expiry or termination of the Evaluation Term, We will hold You responsible for the Charges attributable to such use. The duration of an Evaluation Term may be altered by Afilias without notice.
- Where You access the Services under an evaluation, You may only use and access the Services for Your internal development and testing purposes and may not use the Services in a live publicly-accessible website.
End of Agreement
- This Agreement shall end automatically upon the expiry of the Term. To continue availing of the Services beyond the Term, You must enter into a new subscription agreement with Us.
- We may end this Agreement and Your use of the Services prior to the expiry of the Term if:
- You breach the terms of this Agreement; or
- You are declared bankrupt or You become unable to pay Your debts or, in the case of a company, You or Your employer have a receiver, examiner or administrative receiver appointed or pass a resolution of winding up (other than for the purposes of reconstruction), or a court orders the same, or You make or offer to make any arrangement with creditors, or You become subject to an administration order, or You are subject to any proceedings which are equivalent or substantially similar under applicable jurisdiction (“Insolvency Events”).
- If We end this Agreement, You must pay Us within 30 days all amounts which have accrued prior to the end of the Agreement, as well as all sums remaining unpaid for Services You have ordered.
- Apart from any other rights which We may have, if You breach this Agreement, We may suspend performance of any of Our obligations under this Agreement and We may suspend Your right to use the Services until You remedy Your breach to Our reasonable satisfaction.
- On termination or expiry of this Agreement You may not make any further use of the Services, or any data derived from Your use of the Services during the Term. Upon request, You must allow Us to enter Your premises and remove any Software or data and delete all copies and Documentation made by You within a reasonable time (and in any event within two (2) weeks) after termination or expiry of the Agreement.
- We have the right to announce new contracts and may include your company logo on the DeviceAtlas website.
Charges and Taxes
- Charges are normally payable online at the point of subscription for the Services.
- In the case of Orders or any other Charges not paid in full in advance, all Charges payable to Us are due within 30 days of the date of the relevant invoice.
- You agree to pay any value-added, sales, or other similar taxes that We must pay based on the Services purchased.
- If You are late in paying any Charges then We may charge interest on all unpaid amounts. Interest will be payable from the date of the invoice until the date of payment and will continue to be payable even if We obtain a judgment from a court in relation to any claim for payment of the invoice. The rate of interest will be 8% above the ECB rate.
Limitation of Liability
- Subject to Clause 12.5, Our aggregate liability for or in respect of all breaches of this Agreement and all representations, statements and tortious acts or omissions (including negligence) arising under or in connection with this Agreement shall in no event exceed five hundred US dollars ($500).
- We will not, in any circumstances, be liable to You (or any third party) for loss of profits, goodwill, revenue, data and anticipated savings of any type or special, indirect or consequential loss even if such loss was reasonably foreseeable or Us or if We had been advised of the possibility of You (or the third party) incurring the same.
- In no event shall We be liable for loss or damages arising out of the use of, or inability to use, the Services or the Client API or for any loss or damage of any nature caused to any person as a result of Your use of the Services or the Client API, even if We are advised of the possibility of such loss or damages.
- Since use of and access to the Services and the Client API depends, in part, on third parties (e.g., telecommunications carriers) whose performance is outside of Our control, We disclaim all liability for loss or damages arising from the failure of the transmission or receipt of data due to (i) causes beyond Our reasonable control or (ii) causes which are not reasonably foreseeable by Us, including but not limited to, interruption or failure of communication or digital transmission links and Internet slow-downs or failures.
- Nothing in the Agreement shall limit or exclude Our liability for fraud or for any other liability which cannot be limited or excluded under applicable law.
Your Indemnification of Us
- You agree to, defend, indemnify and hold Us harmless against any claim, liability, loss, injury, damage, cost or expense (including reasonable legal fees) incurred by Us, Our other users or any of Our data providers to any third party arising out of or from any use by You, Client Authorised Users or Third Party End Users of the Services and the Client API.
Entire Agreement and Miscellaneous
- You agree that this Agreement, together where applicable with the relevant Order, is the complete agreement relating to the Services and the Client API, and this Agreement supersedes all prior or contemporaneous agreements or representations concerning the Services or the Client API. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. No amendment or variation to this Agreement is effective unless it has been signed by Our authorised representative.
- Neither You nor We shall be liable by reason of any failure or delay in the performance of its obligations (except for payment of Charges) on account of acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, shortages, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, insurrection, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake or default of suppliers or sub-contractors.
- Failure or delay by either You or Us in exercising any right or power in this Agreement shall not be considered as a waiver of such right or power.
- All notices which are required to be given under the Agreement shall be in writing and shall be sent to the address of the recipient as set out in the Agreement or Order or such other address as the recipient may designate by notice given in accordance with the Agreement. Any such notice may be delivered personally or by recorded delivery or registered post and shall be deemed to have been served: if by hand, when delivered; if by recorded delivery or registered post, 48 hours after posting.
Jurisdiction and Governing Law
- This Agreement and relationships created hereby will in all respects be governed by and construed in accordance with the laws of Ireland. The parties hereby submit to the exclusive jurisdiction of the Irish Courts without prejudice to Our right to apply to any court of competent jurisdiction for emergency, injunctive or interim remedies.
Exhibit A - MIT License
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Copyright © 2020 Afilias Technologies Limited