DEVICEATLAS ENTERPRISE
Licence Agreement
This Agreement is entered into between Afilias Technologies Ltd (“Afilias”) and you (“Licensee”, “you”, “your”), either on your own behalf or on behalf of your company, and sets forth the terms and conditions of your use of certain Services (as defined below). You are not permitted to access, view, use or contribute to the Services if you do not accept this Agreement.
By clicking on the “Agree” button during the sign up process or by downloading, running, installing or otherwise using the Services, you agree to the terms of this Licence Agreement which will govern your relationship with Afilias. By clicking on the “Agree” button, you hereby warrant to Afilias that you are able to form legally binding contracts under the applicable law and (where you are entering into this Agreement on behalf of a company or third party) have been authorized by, and have the power to bind, the company or third party on whose behalf you are subscribing to or evaluating the Services.
You acknowledge that you have read, understand and agree to all of the terms and conditions of this Agreement, as well as other terms that are or may be established or modified from time to time through communications between Afilias and you or your company.
1. SERVICES
1.1 Definitions.
“Agreement” means this agreement, including any Appendices attached and hereby incorporated hereto;
“Confidential Information” means all information provided by Afilias to Licensee either directly or indirectly pursuant to this Agreement which includes such information concerning the business, finances, technology, affairs, clients, marketing plans, whether or not marked as confidential;
“Data” means the data contained in the file download, being device information (limited to Primary H/W type, OS, OS version, Browser, Browser version, rendering engine) for use with the API;
"Database" means the continually evolving database containing the Data relating to mobile devices which forms part of the Services. The information in the Database is 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 which this Agreement is accepted by you by clicking on the ‘Agree’ button. This Agreement shall take effect on the Effective Date;
“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 the DeviceAtlas Database, Software, Documentation, updates and any component or part thereof which are made available to Licensees 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 being the C API supplied by Afilias (“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. 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 daily basis. In order to update the Services, Licensees must follow the updating instructions contained in the Documentation.
1.4 Additional Services.
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. LICENCE
2.1 Grant.
Subject to Licensee’s registration on the DeviceAtlas website, and in consideration of Licensee’s agreement to abide by the restrictions set out in this Agreement and of the mutual promises and obligations set out herein, Afilias grants Licensee a limited, revocable, non-exclusive, non-transferable licence to use the Services on Licensee’s own behalf during the Term, subject to the terms and conditions of this Agreement. Licensee may only deploy the Services on 1 (one) data centre, such data centre consisting of no more than 40 (forty) Servers. A “Server” is a single machine with no more than 256GB 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.
2.2 Unauthorised Use.
Licensee acknowledges the importance of avoiding any use not authorised by Afilias.
2.3 Express Restrictions.
Without limiting the generality of Clause 2.2, Licensee shall not, nor permit any third party to:
- Share, distribute, or provide access to the Services or any part of the Services;
- Remove, tamper with, or disclose any markings, keys, codes, or formatting that gives notice of or allows detection of Afilias’ Intellectual Property Rights;
- 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;
- Make the code or source files of the Services available;
- Extract any portion of the Database;
- Decompile or reverse engineer the Services or any feature or part of the Services; or
- Create derivative works based on the Services or any part of the Services.
2.4 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.
3. OBLIGATIONS
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 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.
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. TERM
4.1 Term.
The Term of the Agreement shall be 12 months, unless terminated in accordance with the terms of this Agreement.
5. FEES
5.1 Service Fees.
The Services shall be provided free of charge for the Term.
6. TERMINATION
6.1
Afilias may terminate this Agreement and Licensee’s use of the Services at any time without cause upon notice to Licensee. Upon termination of this Agreement, the licence granted hereunder shall terminate and Licensee shall cease using the Services. Upon Afilias’ request, the Licensee shall certify in writing to Afilias that the Services and all copies of them and Afilias’ Confidential Information has been deleted. Termination does not affect a party's accrued rights and obligations at the date of termination.
6.2 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 Sections 3, 8 and 9 and Clauses 2.4, 5.3, 6.2, 6.4, and 7.2.
7. WARRANTIES
7.1 Warranties.
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, 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. Licensee assumes the entire risk as to the results and performance of the Services.
7.2 Reservation of Rights.
Afilias reserves the right to modify, enhance, replace or make additions to or replace the Services in any way whatsoever as Afilias may in its sole discretion determine without notice to 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.
8. LIMITATION ON LIABILITY
8.1 Maximum Liability.
Other than in respect of a breach of Clause 8.3, 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.
8.2 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.
8.3 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.
8.4 Licensee’s Use.
Licensee shall defend, indemnify 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.
8.5 Reasonable Allocation of Risk.
Licensee acknowledges that this Section 8 represents a reasonable allocation of risk and that, in the absence of these limitations of liability, the terms of this Agreement would be substantially different.
8.6 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.
8.7 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.
9. CONFIDENTIALITY
9.1 Confidential Information.
During the Term and continuing in perpetuity thereafter, Licensee agrees that it (a) will strictly maintain the confidential status of the Confidential Information, including implementing reasonable physical security measures and operating procedures; (b) will not use any Confidential Information for any purpose other than the purposes for which it was originally disclosed to Licensee; and (c) will not disclose any Confidential Information to any third party. Licensee shall not disclose details of terms or commercial arrangements between Licensee and Afilias.
9.3 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 and marketing materials.
10. MISCELLANEOUS
10.1 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.
10.2 Headings.
The headings in this Agreement are provided for convenience only and do not affect its meaning.
10.3 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.
10.4 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.
10.5 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.
10.6 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.
10.7 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.
10.8 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.
10.9 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.
10.10 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.
10.11 Notice.
Any notice or other communication required or permitted to be delivered to a party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service, by e-mail) (a) to you at any postal or email address publicly available or provided to Afilias from time to time and (b) to Afilias as follows:
Afilias Technologies Limited
Level 2, Plaza 3, Custom House Plaza, Harbourmaster Place, Dublin 1, D01 VY76, Ireland
Attention: John Leonard
e-mail: jleonard@afilias.info
