2. Description of the Service
The Company offers a service to create and maintain mobile websites. These websites use the Software and Methods of the Licensor and contain a number of different features that users of the Internet on a mobile device will find useful. A full list of the features available in the service is available on the Company’s website.
2.2 Additional Service
The Licensor maintains a database of mobile device capabilities (the “Database”). The Company also offers a redirection capability using the Database, whereby You may install a copy of the Licensor’s Software onto your website, so that traffic originating from a mobile device will be redirected to your mobile website.
2.3 Change Requests
The Company also offers a facility for You to order changes to your website (“Change Requests”). These must be made in writing (either by post or by email) accompanied by the relevant fee, where appropriate, as detailed in Clause 6.
3. Service Terms
3.1 Subject to your Purchase of a subscription to the Service in Clause 6, the Company will grant You a personal, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable subscription to:
3.1.1 use the Service; and
3.1.2 install and use a single copy of the Software solely for the purpose of redirecting mobile web traffic to the mobile web site that is the subject of the Your subscription through searches of the Database.
3.2 You shall during the term of the Agreement, to the extent reasonably possible, effect and maintain adequate security measures to safeguard the Service, Software and Additional Service from use by any unauthorized person.
3.3 You shall not use the Service and/or the Additional Service in any way not expressly permitted under this Agreement. This includes but is not limited to a prohibition on:
3.3.1 removing or modifying any markings on the Service or the Additional Service including reports or any notice of IP Rights;
3.3.2 copying the Software (provided however that you may take such copies or other reproductions of the Software as are strictly necessary for backup or archival purposes) and/or the Database or creating subsets or derivative databases from the Database in a manner not expressly permitted by this Agreement;
4. Conditions of Use
You agree that your access to and right of use of the Service and/or the Additional Service may be suspended and/or terminated if You are found to be using the Service and/or the Additional Service in association with activities which may be detrimental to the Company’s interests or reputation, such as, but not limited to, in association with unsolicited commercial email (“spam”), distribution of viruses, worms or any code of a destructive nature, or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the territories in which You transact your business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; and activities designed to harm minors in any way. In the event that access to and right of use of the Service and/or the Additional Service by You is suspended and/or terminated for spam or morally objectionable activities, no refund shall be due to You.
5. User Content
5.1 As a user of the Service You have the ability submit information, including copyrighted materials, logos, trademarks, graphics, promotional materials, and other materials (collectively referred to as “User Data”) to the Company for inclusion on Your Website. You are solely responsible for such information and grant the Company a perpetual, non-exclusive and royalty free license to use your User Data in conjunction with the Service. The Company is not responsible for verifying ownership of User Data and cannot represent the same to other users of the Service or viewers of Your mobile website.
5.2 You represent, warrant and covenant that
5.2.1 You own or otherwise possess all necessary rights with respect to your User Data
5.2.2 Your User Data does not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or proprietary right of any third party, and are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable
5.2.3 You hereby consent to the use of Your likeness, and You have obtained the written consent, release and/or permission of every identifiable individual who appears in Your User Data to use such individual’s likeness, for purposes of using and otherwise exploiting the User Data in the manner contemplated by this Agreement (including the purposes of promoting the Services), or, if any such identifiable individual is under the age of 18 You have obtained such written consent, release and/or permission from such individual’s parent or guardian (and You agree to provide to the Company a copy of any such consents, releases and/or permissions upon the Company’s request). If You do submit User Data that contain the likeness of an identifiable individual who is under the age of 18, the Company strongly encourages You not to include any identifying information (such as the individual’s name or address) with such User Data.
5.3 The Company will not be liable for any infringement of copyrighted material or other protected material submitted by users of the Service. You are solely responsible for identifying, verifying, confirming, and maintaining any intellectual property submitted using the Service.
5.4 The Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data or any statistical data or contact lists or other information collected or provide by the Service.
5.5 Inappropriate Content.
You agree not to post or submit information, promotional materials, and other materials while using the Service that are prohibited by the Company including, but not limited to those materials prohibited by this Agreement. You understand and agree that the Company reserves the right, at its sole discretion, to determine whether any such material is prohibited by this Agreement.
You may elect to cancel your monthly hosting at any time. You will not be entitled to any refund of fees paid
7. Copyright Policy
7.1 The Service and/or Additional Service contains copyrighted material and other proprietary information, including, without limitation, graphics, photography, promotional materials, and other materials. You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part without prior written permission. No copying, redistribution, re-transmission, publication, or commercial exploitation of downloadable material will be permitted without the express written permission of the copyright owner(s).
7.2 The Company does not resolve intellectual property disputes between Users or third parties. If you believe your work has been copied and posted on the Company’s Sites in a way that constitutes copyright infringement, please send the Company’s designated agent for notification of claims of infringement (the “Copyright Agent”) a notice properly describing the infringement as required by Clause 7.3 of this Agreement.
7.3 Any notice of infringement must include a notification of the claimed infringement and the following:
7.3.1 identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
7.3.2 identification of the claimed infringing material and information reasonably sufficient to permit the Company to locate the material on the website (providing URL(s) of the claimed infringing material may be sufficient to satisfy this requirement);
7.3.3 Your contact information including your address, telephone number, and email address;
7.3.4 a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
7.3.5 a statement by You, made under penalty or perjury, that the information included in the Infringement Claim is accurate and that You are the copyright owner or authorised to act on the copyright owner’s behalf; and
7.3.6 Your physical or electronic signature.
7.4 If the Company removes Your content based upon a notice alleging infringement of someone else’s copyright, the Company will notify You that Your materials have been removed and provide You with an opportunity to provide us a counter-notice. The counter-notice must contain:
7.4.1 Your name, address, phone number and physical or electronic signature;
7.4.2 identification of Your material and its location on the website before removal;
7.4.3 a statement under penalty of perjury that the material was removed by mistake or due to misidentification; and
7.4.4 Your express consent to court jurisdiction in Ireland.
We will then promptly notify the claiming party of Your objection. If the claiming party does not bring a lawsuit 14 days of this notification, we will restore Your material to its location on the website.
8. Warranty Disclaimer and Obligations
8.1 Each Party warrants to the other Party that it has the right to enter into this Agreement.
8.2 Each Party warrants to the other Party that it shall perform its obligations under this Agreement with reasonable skill and care.
8.3 The Company does not guarantee service results, or represent or warrant that the Service and/or the Additional Service, or any third party functionality relating to the Service and/or the Additional Service, will meet your requirements, or that the Service and/or the Additional Service or any third party functionality is free from error or will operate without interruption. In particular, due to the complexity and scale of the Internet, and variation in technologies incorporated into websites, the Company can make no warranty on Service and/or the Additional Service behavior and performance and third party functionality, particularly where a dependency on network behavior or device behavior exists.
8.4 The Company does not warrant that the Service and/or the Additional Service will perform without defect, or to the satisfaction of all users. As such, you expressly agree that the Service and/or Additional Service are provided on “as is” and “as available” basis. Therefore, to the fullest extent permitted by applicable law and except where expressly provided in the Agreement, the Company and the Licensor shall disclaim all warranties, express or implied, including, without limitation, implied warranties of merchant-ability, fitness for a particular purpose, compatibility, security, accuracy or infringement in respect of the Service and/or the Additional Service. The Company cannot warrant or represent that your use of the Service and/or the Additional Service will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy your requirements. You assume the entire risk as to the results and performance of the Service and/or the Additional Service.
8.5 The Company shall not be under any obligation to make any tests, revisions or repairs to the Service and/or the Additional Service which are requested by you nor to maintain the Service and/or the Additional Service at any desired level of performance.
8.6 Save as expressly provided in this Agreement, all warranties express or implied, oral or in writing, by law, custom or otherwise, including, but not limited to, any warranties, terms and conditions of merchantable quality and fitness for any particular purpose are hereby excluded by the Company to the maximum extent permissible under applicable law.
9. Limitation of Liability
9.1 To the extent permitted by law, the Company shall not be liable for any loss or damage, howsoever arising, including, but not limited to, any indirect, consequential or special loss or damage, or for any loss of profits (whether direct or indirect), goodwill, business, anticipated savings howsoever arising, or loss arising from any delay. The Company shall not, in any circumstances, be liable to compensate you in respect of any loss resulting from the expiry, without renewal or termination (for whatever reason), of this Agreement.
9.2 In no event shall the Company and/or the Licensor be liable for loss or damages arising out of the use of, or inability to use, the Service and/or Additional Service or for any loss or damage of any nature caused to any person as a result of the use of the Service and/or Additional Service by You, even if the Company is advised of the possibility of such loss or damages.
9.3 Since use of and access to the Service and/or Additional Service depends, in part, on third party providers whose performance is outside of the Company’s control, the Company disclaims all liability for loss or damages arising from the failure of the transmission or receipt of data due to:
9.3.1 causes beyond the Company’s reasonable control;
9.3.2 causes which are not reasonably foreseeable by the Company including but not limited to, interruption or failure of communication or digital transmission links and Internet slow-downs or failures
any third party functionality failure or discontinuation of Service.
9.4 You shall indemnify and hold harmless the Company and it’s Affiliates, and the directors, officers, employees and agents of each of them (each, an “Indemnified Party”) against any loss, damage claim or expense (including legal costs) suffered by any Indemnified Party, other users of the Service and/or Additional Service or any of the Indemnified Parties’ partners to any third party and caused by or arising out of any actual or threatened third party proceedings, claims or actions howsoever arising from any act or omission or from any use by You of the Service.
9.5 You will indemnify and hold The Company and/or the Licensor harmless from and against any and all liabilities and costs (including reasonable legal fees) incurred by the Company in connection with any claim arising out of your breach of the Agreement. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
10 Proprietary Rights
10.1 The Service and/or Additional Service supplied by the Company are owned by the Company and/or others and are proprietary in nature and all Intellectual Property rights and ownership in, and title to such proprietary licensed software and other material including but not limited to trademarks, documents, manuals and multimedia resources, in and/or comprising the Service and/or Additional Service will be retained by their respective owners.
10.2 No transfer of title or ownership of any Intellectual Property rights shall take place as a result of this Agreement.
11.1 Subject to Clause 6, this Agreement shall commence on the Effective Date and shall remain in force for the Initial Term unless terminated earlier pursuant to the provisions of this Clause 11. Thereafter this Agreement shall automatically extend for further one year periods (each, an “Additional Term”), unless terminated in accordance with Clause 11.3, or by non-receipt of the renewal subscription in accordance with Clause 6. (The Initial Term and any Additional Terms are referred to herein together as the “Term”).
11.2 Either Party may terminate this Agreement at the end of the Initial Term or any Additional Term with ninety (90) days prior written notice to the other Party.
11.3 Either Party may terminate this Agreement forthwith upon written notice where the other commits a material breach incapable of remedy, or fails to remedy any other breach within thirty (30) days of receipt of written notice thereof (or such longer period as may be commercially reasonable given the circumstances).
11.4 The Company may terminate this Agreement immediately upon written notice where the You have infringed, or where the Company reasonably and upon substantive grounds suspects You of having infringed the Company’s Intellectual Property Rights.
11.5 Either Party may terminate this Agreement immediately upon written notice where the other is the subject of a petition or action filed in accordance with any relevant insolvency or bankruptcy laws or any part thereof, has a receiver, administrator, administrative receiver or other similar officer appointed over all or part of its assets or enters into an arrangement or assignment for the benefit of its creditors or is wound up (other than for the purposes of a bona fide amalgamation or reconstruction) and has not cured the petition or action within sixty (60) days of entering into the petition or action.
11.6 You shall not be entitled to compensation, whether financial or otherwise, for loss of profits, contracts or any other losses howsoever arising, where such losses are caused by, or result from, the Company’s termination of, or expiry of, this Agreement.
11.7 Upon termination or expiry of the Agreement for any reason:
11.7.1 the subscription granted under the Agreement shall immediately cease
11.7.2 You shall not make any further use of the Service and/or the Additional Service
11.7.3 You must immediately remove all Software from your systems and delete any other information, documentation, materials, equipment, property and other items (and all copies of them in any format) belonging to the Company and/or the Licensor.
12 Fair Use Policy
In the event that the volume of traffic to Your mobile site is sufficient so as to jeopardize the provision of the Service and/or the Additional Service for other end users, The Company reserves the right to, at its sole discretion, permanently or temporarily, discontinue provision of the Service and/or the Additional Service to You. For the avoidance of doubt, the volume of traffic generated by Your site should not exceed 2,000 page views per day.
13 Idea Submissions
The Company or any of its employees do not accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to the Company or any of its employees. If, despite our request that You not send us Your ideas, You still submit them, then regardless of what Your submission says, You agree that:
13.1 Your submissions and their contents will automatically become the property of the Company, without any compensation to You;
13.2 the Company may use or redistribute the submissions and their contents for any purpose and in any way;
13.3 there is no obligation for the Company to review the submission;
13.4 there is no obligation to keep any submissions confidential.
14 Domain Transfers
Should a domain to which services are being provided under this Agreement be transferred to another domain name registrar, the provision of the Service and/or the Additional Service will be interrupted for You on that domain, and the Service and/or the Additional Service will not be restored until the necessary DNS records are made to refer the domain to the Service.
15 Service Branding
You accept that the text “Powered by Marine Mobility” or equivalent, may be inserted at the footer of the adapted site, at the discretion of the Company.
16.1 As part of the provision of the Service and/or the Additional Service to You, updates to the Service and/or the Additional Service will take place from time to time (the “Updates”). Updates are generally designed to improve, enhance and further develop the Service and/or the Additional Service and may take the form of bug fixes, enhanced functions, new capabilities and completely new versions, and may include, but are not limited to, items such as advertising, links to third party offerings, and other promotional content. The Company shall incorporate Updates at it absolute discretion and the you shall agree to receive such Updates on the above terms as part of its use of the Service and/or the Additional Service.
16.2 Notwithstanding the introduction of Updates to the Service and/or Additional Service, the Company reserves the right to charge additional fees for such Updates where appropriate at the Company’s discretion.
17 General Terms
17.1 Entire Agreement
This Agreement is the whole legal agreement between You and the Company. It governs the use of the Service and/or Additional Service. There may be additional terms and conditions applicable in the event that You purchase other products or services from the Company.
17.2 Governing Law
Use of the Service and/or Additional Service shall be subject to the laws of Ireland, which shall exclusively govern the interpretation, application, and effect of the terms of this Agreement.
17.3 Dispute Resolution
By using this Service and/or Additional Service, You accept that the Courts of Ireland shall have exclusive jurisdiction over all claims and disputes arising from Your use of the Service and/or Additional Service. Furthermore, You also consent to the admissibility of electronic evidence before the Courts of Ireland.
17.4 Severability of Terms
If any provision of this Agreement is void or unenforceable by law, such provision shall be severed and the remainder of the Agreement shall continue in full force and effect.