Terms and Conditions
This Agreement is between Afilias Technologies Limited ("Afilias"), an Irish company limited by shares with its principal place of business at Level 2, Plaza 3, Custom House Plaza, Harbourmaster Place, Dublin 1, D01 VY76, Ireland and Licensee.
By subscribing to the Services and by clicking "ACCEPT", Licensee acknowledges and confirms acceptance of the terms and conditions of this Agreement which are legally binding on Licensee. Afilias and Licensee individually hereby represent and warrant that they have power and authority to enter into this Agreement and accept these terms and conditions. The parties therefore agree as follows:
"Agreement" means this agreement, including any completed Order Confirmation which is incorporated herein;
"Confidential Information" means the Software, Documentation, Database and any updates thereto, and all information obtained by one party from the other pursuant to this agreement which includes such information concerning the business, finances, technology, affairs, clients, marketing plans, all information which is expressly marked as confidential or which is confirmed in writing to be confidential within seven days of its disclosure or which is manifestly of a confidential nature, together with all passwords and IDs relevant to access to the Services.
"Database" means the continually evolving data relating to mobile devices which forms part of the Services and which contains information generated by Afilias and its partners and users on an ongoing basis.
"Documentation" refers to the manuals, guides, help text files or embedded software instructions which are made available as part of the Services.
"Effective Date" means the date on this Agreement is accepted by the Licensee;
"Intellectual Property Rights" means all intellectual property rights, whether patents, trademarks, service marks, design rights (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 (registerable or not);
"Services" means DeviceAtlas; a device description repository which provides identification of connected devices and their capabilities based on their HTTP headers. The Services comprise the DeviceAtlas Database, Software, Documentation, updates and any component or part thereof which are made available to the Licensee under this Agreement.
"Software" refers to those software components of the Services which have been developed by Afilias which continue to be so developed and included in the Services on an ongoing basis. The Software includes the Application Programming Interface ("API").
1.2. Access. Access to the Services is available through either the use of a web browser, other Internet retrieval software, or via the API supplied by Afilias. Licensee accepts full responsibility for purchasing and upgrading hardware and software as Licensee requires to avail of the Services and updates.
1.3. Updates. Licensee acknowledges that the nature of the Services is that they are constantly evolving through the ongoing contributions made by users of the Service. Licensee may update the Services on a weekly basis. In order to update the Services, Licensees must follow the updating instructions contained in the Documentation.
1.4. Additional Services. Support is provided at no extra charge via firstname.lastname@example.org. This Agreement does not cover installation, maintenance or other service. If the Licensee requires any other service or services, they will be provided under additional terms and conditions as the parties may agree in writing after the Effective Date of this Agreement.
2.1. Grant. In consideration of Licensee’s payment of the Service Fees and Licensee’s acceptance of this Agreement, Afilias grants Licensee a limited, revocable, non-exclusive, non-transferable licence to use the Services on Licensee’s own behalf for the Term and subject to the terms and conditions of this Agreement.
2.2. Authorised Use. Licensee is permitted to deploy the Services in 1 (one) data centre, leveraging the data on no more than the number of Servers set out in the Order Confirmation and to use the Services for their internal business purposes only. Use of the Services on additional data centres or Servers is subject to agreement in writing between the parties and additional Service Fees shall apply. Any such additional use shall be subject to the terms of this Agreement. In the event that access to the Services is provided under an evaluation license, the Services may only be used in a development or test environment.
2.3. Unauthorised Use. Licensee acknowledges the importance of avoiding any use not authorised by Afilias.
2.4. Express Restrictions. Without limiting the generality of Clause 2.3, Licensee shall not, nor permit any third party to:
2.4.1. Share, distribute, or provide access to the Services or any part of the Services;
2.4.2. Remove, tamper with, or disclose any markings, keys, codes, or formatting that gives notice of or allows detection of Afilias’ Intellectual Property Rights;
2.4.3. Provide User Agent Strings in combination with device data; "User Agent String" means the identifying string presented by a device, application, service or browser upon visiting a web site;
2.4.4. Make the code or source files of the Services available to any third party;
2.4.5. Decompile or reverse engineer the Services or any feature or part of the Services; or
2.4.6. Create derivative works based on the Services or any part of the Services.
2.5. Limited Copies. Licensee may make copies of the Services only to the extent reasonably necessary for backup, testing, and disaster recovery. Upon termination or expiry of this Agreement, Licensee shall destroy all copies of the Services. Licensee may make and retain copies of the Services for records retention but only to the extent and for the duration that records are legally required.
2.6. Number of Servers. Licensee may not use the Services, whether Software or Database or parts thereof, on more Servers than are authorised under Appendix 1. "Server" is a single machine with no more than 64GB of RAM which processes data using one or more CPUs. If a machine includes server blades or virtual servers, each such server blade or virtual server is considered a separate Server.
3.1. Protection. The Licensee shall take commercially reasonable measures at all times to secure any copies of the Services which are in its possession or under its control.
3.2. Ownership. All Intellectual Property Rights in and relating to the Services including, without limitation, the Software, Database and Documentation are and shall remain Afilias’ or Afilias’ licensors’ property. Licensee undertakes not to interfere with or diminish, whether by act or omission, Afilias or Afilias’ licensors’ title and interest in the Services.
3.3. Audit of Usage. Afilias or its agent may audit Licensee’s use of the Services. Licensee agrees to co-operate with Afilias’ audit. In the event that Licensee is using the Services beyond the scope of this Agreement, Licensee agrees to pay any underpaid Service Fees within 30 (thirty) days of written notification. If Licensee does not pay, Afilias may terminate this Agreement with immediate effect.
3.4. Observance of Law. Licensee is responsible for observing any applicable export and import laws that govern Licensee’s use of the Services. Licensee shall not use the Services, or any part thereof, directly or indirectly, in violation of any law or regulation.
4.1. Service Fees. The fees for use of the Services shall be set out in the Order Confirmation (the "Service Fees"). Licensee shall pay Afilias the Service Fees for the Services through Afilias’ online payment platform (or as otherwise agreed between the parties) upon acceptance of this Agreement All amounts due to Afilias by Licensee under this Agreement shall be included in the definition of Service Fees. If the Licensee fails to make any payment under this Agreement; or if the payment is rejected or a chargeback occurs, Afilias may, at its sole discretion, suspend or terminate the Licensee’s licence to use the Services until full payment is made.
4.2. Taxes. All Service Fees are exclusive of any applicable national, regional, federal, state or local use, excise, value-added, gross receipts, sales and privilege taxes, duties, or similar liabilities (other than general income taxes imposed on Afilias), all of which shall be paid by Licensee.
4.3. Interest Rate. If Licensee delays paying any Service Fees beyond the relevant due date, Afilias may charge interest on all unpaid amounts. Interest shall be charged from the date of the invoice until the date of payment. The rate of interest shall be 8% above the ECB rate.
5. TERM AND TERMINATION
5.1. Term. This Agreement shall commence on the Effective Date and expire on the Expiry Date, both of which are set out in the Order Confirmation. To continue availing of the Services beyond the Term, Licensee must enter into a new agreement with Afilias.
5.2. Insolvency. Afilias may terminate this Agreement and Licensee’s use of the Services immediately if Licensee is declared insolvent; or becomes unable to pay Licensee’s debts or has a receiver or administrative receiver appointed or passes a resolution of winding up (other than for the purposes of reconstruction), or a court orders the same, or makes or offers to make any arrangement with creditors, or becomes subject to an administration order, or is subject to any proceedings which are equivalent or substantially similar under applicable jurisdiction.
5.3. Breach. If Licensee breaches the terms of this Agreement, Afilias may suspend Licensee’s right to use the Services and performance of any of Afilias’ obligations under this Agreement until Licensee remedies the breach to Afilias’ reasonable satisfaction. If Licensee fails to remedy such breach within 30 days, Afilias reserves the right to terminate this Agreement upon written notice to Licensee.
5.4. Post-Termination. On termination or expiry of this Agreement for any reason, Licensee may not make any further use of the Services, or any data derived from its use of the Services during the Term. Upon request, Licensee must allow Afilias to enter its premises and remove any Software or data and delete all copies and Documentation made by Licensee within a reasonable time (and in any event within two (2) weeks) after termination or expiry of the Agreement.
5.5. Outstanding Amounts. If Afilias terminates this Agreement, Licensee must pay Afilias within 30 days all Service Fees which have accrued up to the end of the Initial Term or the then-current Renewal Period.
5.6. Survival. The provisions of this Agreement which can reasonably be understood to survive the expiry or termination of this Agreement shall survive expiry or termination, including without limitation Clauses 2.5, 3, 4.3, 5.3, 5.6, 6.2, 7 and 8.
6.1. Warranties. Afilias warrants to Licensee that Afilias is entitled to supply the Services; that any API provided directly by Afilias will operate materially as described in the applicable Documentation current at the time of supply; and that such API has been screened in advance by a reputable virus scanning application for any known viruses. If you have received the Services under an evaluation license, this Clause 6.1 shall not apply to you and in such cases, to the extent permissible by law, the Services are provided to with no warranty whatsoever.
6.2. Disclaimer. Given the nature of the Services and in particular their reliance on content provided by third parties, Licensee agrees that the Services are provided by Afilias on an "AS IS" basis. Therefore, to the fullest extent permitted by applicable law and except where expressly provided in Clause 6.1, Afilias disclaims 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. Afilias cannot warrant or represent that Licensee’s use of the Services will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy Licensee’s requirements. The verification of the suitability of the Services for Licensee’s requirements has been made by the Licensee during the evaluation phase. Licensee assumes the entire risk as to the results and performance of the Services and the Service Fees payable under this Agreement reflect such assumption of risk by Licensee.
6.3. Reservation of Rights. Afilias reserves the right to modify, enhance, replace or make additions to the Services or any part thereof in any way whatsoever as Afilias may in its sole discretion determine provided that such actions or additions do not materially and adversely affect the use of the Services by the Licensee. Afilias may discontinue, modify or replace the Services in order to comply with any applicable laws, government rules or requirements, requests of law enforcement, or any dispute resolution process or to avoid any liability, civil or criminal, on the part of Afilias or its affiliates, subsidiaries, officers, directors, or employees.
7. LIMITATION ON LIABILITY
7.1. Maximum Liability. Other than in respect of a breach of Clause 7.3, Afilias’ total maximum aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall in no event exceed the Service Fees paid by the Licensee in the 12-month period immediately preceding the date the liability was incurred. If you have received the Services under an evaluation license, this Clause 7.1 shall not apply to you and in such cases, to the extent permissible by law, the Services are provided to you with no warranty or liability whatsoever.
7.2. Indirect Damages. In no event shall Afilias nor anyone else involved in creating, supporting, producing, or delivering the Services (including, without limitation, suspending or discontinuing the Services) be liable to Licensee for any economic losses (including, without limitation, website downtime or loss of data, revenues, profits, contracts, equipment, business or anticipated savings or the costs of procuring substitute services), any loss of goodwill or reputation, or any special or indirect or consequential losses whether in contract, tort (including negligence) or for breach of statutory duty or in any other way whether or not such losses were reasonably foreseeable or within the contemplation of the parties at the time of this Agreement.
7.3. Death or Personal Injury. Afilias’ liability for death or personal injury caused by Afilias’ negligence or the negligence of Afilias’ agents is not excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
7.4. Indemnification. Afilias shall indemnify Licensee against any damages (including costs) that may be awarded under any final judgement by a court of competent jurisdiction or agreed by Afilias in final settlement with respect to any claim brought against Licensee that normal operation, possession or use of the Software in accordance with and subject to the terms of this Agreement and the Documentation infringes any patent, copyright, licence or trade secret; provided that Afilias is immediately notified in writing of the claim; and provided further that Afilias shall have the exclusive right to control the defence. In no event shall Licensee settle the claim, lawsuit or proceeding without Afilias’ prior written approval. If, as a result of any claim or litigation, Afilias or Licensee is permanently enjoined from using the Services by a final, non-appealable decree, Afilias at its sole option and expense may (i) procure for Licensee the right to continue to use the Services, or (ii) replace or modify the Services so as to settle the claim or litigation. If the settlement or the modification of the Services is not reasonably practical in the sole opinion of Afilias, after giving due consideration to all factors (including financial expense), Afilias may discontinue and terminate this Agreement upon written notice to Licensee and shall refund to Licensee any fees paid in advance for Services that shall not be performed based upon the termination. The foregoing states the entire liability of Afilias with respect to infringement of any patent, copyright, licence or trade secret by the Services or any parts thereof, and Licensee hereby expressly waives any other such liabilities. Afilias will not be responsible for any amounts arising out of any compromise or settlement made by Licensee without Afilias’ prior written consent. Licensee shall at its own expense, indemnify defend and hold Afilias harmless against any claim, liability, loss, injury, damage, cost or expense (including reasonable legal fees) incurred by Afilias, other licensees or any of Afilias’ data providers to any third party arising out of or from any use by Licensee of the Services.
7.5. Reasonable Allocation of Risk. The parties acknowledge that this Clauses 6 and 7 represent a reasonable allocation of risk and that, in the absence of these limitations of liability, the terms of this Agreement would be substantially different.
7.6. Loss of Use. In no event shall Afilias be liable for loss or damages arising out of the use of, or inability to use, the Services or for any loss or damage of any nature caused to any person as a result of Licensee’s use of the Services, even if Afilias is advised of the possibility of such loss or damages.
7.7. Loss of Access. Since use of and access to the Services depends, in part, on third parties (e.g., telecommunications carriers) whose performance is outside of Afilias’ control, Afilias disclaims all liability for loss or damages arising from the failure of the transmission or receipt of data due to (i) causes beyond Afilias’ reasonable control or (ii) causes which are not reasonably foreseeable by Afilias, including but not limited to, interruption or failure of communication or digital transmission links and Internet slow-downs or failures.
8.1. Confidential Information. For a period ending five years after the expiration of the Term, the party receiving any Confidential Information of the other party (a) will strictly maintain the confidential status of such Confidential Information, including implementing reasonable physical security measures and operating procedures; (b) will not use any such Confidential Information for any purpose other than the purposes for which it was originally disclosed to the receiving party; and (c) will not disclose any of such Confidential Information to any third party. Licensee shall not disclose details of purchase terms or commercial arrangements between Licensee and Afilias.
8.2. Exceptions. Neither party will be under any obligation to keep confidential any Confidential Information that it can demonstrate (i) is in the public domain other than as a result of being disclosed in breach of this Agreement; (ii) was received from a third party without obligation of confidence and without breach of this Agreement or (iii) was known to that party before the date of this Agreement and than party was not under any obligation of confidence in respect of the Confidential Information at that time (as evidenced by contemporaneously dated documents).
8.3. Publicity. Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other party, which will not be unreasonably withheld or delayed; provided, however, that each party hereby grants to the other party the limited right to use the other party’s name and logo in customer communications, marketing materials and on their website. Afilias may require the Licensee to cease to use any advertising or promotional materials in respect of the Services which Afilias reasonably considers to not be in its best interests.
9.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersede any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth in this Agreement. This Agreement may not be altered, modified or changed in any manner except by written agreement executed by the parties. For the avoidance of doubt, the terms of this Agreement shall take precedence over any terms and conditions of any purchase order issued in respect of the Services on, before or after the date of this Agreement.
9.2. Headings. The headings in this Agreement are provided for convenience only and do not affect its meaning.
9.3. Enforceability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each party agrees that the provision will be enforced to the maximum extent permissible to give effect to the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be modified or impaired. If necessary to give effect to the intent of the parties, the parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects the original intent as closely as possible.
9.4. Waiver. No failure on the part of either party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of either party in exercising any power, right, privilege or remedy under this Agreement, will operate as a waiver of that power, right, privilege or remedy; and no single or partial exercise or waiver of any power, right, privilege or remedy will preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party will be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of that claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of the party; and no waiver will be applicable or have any effect except in the specific instance in which it is given.
9.5. Remedies. Each of the parties acknowledges that, in the event of any breach of this Agreement, the non-breaching party may be irreparably and immediately harmed and may not be made whole by monetary damages. Accordingly, in addition to any other remedy to which it may be entitled, a party shall be entitled to seek an injunction to prevent breaches of, and to compel specific performance of, this Agreement. The remedies set forth in this Agreement are not exclusive.
9.6. Force Majeure. If the performance of this Agreement or any obligations under this Agreement are prevented, restricted, or interfered with by reason of acts of God, acts of a governmental authority, riot, revolution, flood, fires, terrorist acts, sabotage, war, communications delay, or other cause beyond the reasonable control of the parties ("Force Majeure"), the affected party shall be excused from performance during the period that the Force Majeure continues, provided that the party so affected shall, as soon as possible, continue performance hereunder whenever such causes of non-performance are removed. In no event will this provision apply to excuse a party from any payment obligations under this Agreement.
9.7. Assignment. Except as otherwise expressly provided herein, the provisions of this Agreement will inure to the benefit of and be binding upon, the successors and permitted assigns of the Parties hereto. Neither party may assign this agreement in whole or in part without the prior written consent of the other party, provided, however, that Afilias may assign its rights and obligations hereunder (i) to a company controlling, controlled by, or under common control of Afilias, or (ii) to an entity that acquires all or substantially all of the assets of Afilias. Afilias reserves the right to develop and deploy its obligations under this Agreement internally or to outsource management and performance of these obligations to one or more parties, which may include subsidiaries and affiliates of Afilias, as well as third party subcontractors.
9.8. Relationship of the Parties. Nothing in this Agreement will be construed as creating an employer-employee or agency relationship, a partnership or a joint venture between the parties.
9.9. Third Party Beneficiaries. Except as otherwise expressly stated, this Agreement does not provide and shall not be construed to provide third parties with any remedy, claim, cause of action or privilege.
9.10. Jurisdiction. 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 Afilias’ right to apply to any court of competent jurisdiction for emergency, injunctive or interim remedies.
9.11. Notice. Any notice or communication which Afilias is required or authorised by this Agreement to serve on Licensee shall be sufficiently served if sent by mail, courier or email to the postal or email addresses specified in the Order Confirmation (unless otherwise notified). Any notice or communication which Licensee is required or authorised by this Agreement to serve on Afilias shall be sufficiently served if sent to us by post, courier or email to the following address (unless otherwise notified)
FAO: Legal Counsel
Afilias Technologies Limited
Level 2, Plaza 3
Custom House Plaza
Dublin 1 D01 VY76
The Parties hereby agree that (a) words in electronic form shall be deemed to be "writing" for the purposes of all applicable legislation where "writing" is required; and (b) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties.
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