goMobi END USER LICENSE AGREEMENT
THIS IS AN AGREEMENT BETWEEN THE END USER (REFERRED TO HEREAFTER AS "YOU OR YOUR") AND NAME.COM, INC, A NEVADA CORORATION (THE "SERVICE PROVIDER"). NOTE THAT the dotMOBI REGISTRY IS NOT A PARTY TO THIS AGREEMENT. PLEASE READ THIS goMobi END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. BY USING THE goMobi SERVICE and the ADDITIONAL SERVICE AS DEFINED HEREIN, YOU AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU AGREE THAT THE SERVICE PROVIDER MAY AMEND THIS AGREEMENT BY POSTING THE AMENDED AGREEMENT ON THE WEBSITE WHERE YOU OBTAINED THE goMobi SERVICE. YOU AGREE THAT ANY NEW, DIFFERENT OR ADDITIONAL FEATURES THAT CHANGE THE goMobi SERVICE OR THE ADDITIONAL SERVICE WILL AUTOMATICALLY BE SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENTS HERETO, DO NOT USE, ACCESS, OR CONTINUE TO USE THE goMobi SERVICE OR THE ADDITIONAL SERVICE. YOU AGREE THAT FROM TIME TO TIME, SERVICE PROVIDER MAY, AT ITS SOLE DISCRETION, MODIFY, ADD OR REMOVE ANY OR ALL PARTS OF THESE TERMS. SUCH MODIFICATIONS WILL BE EFFECTIVE THIRTY (30) DAYS AFTER NOTICE OF THE MODIFICATIONS ARE POSTED ON THE WEBSITE WHERE YOU OBTAINED THE goMobi SERVICE AND THE ADDITIONAL SERVICE. YOUR CONTINUED USE OF THE goMobi SERVICE OR THE ADDITIONAL SERVICE AFTER CHANGES TO THIS AGREEMENT HAVE BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.
DESCRIPTION OF THE goMobi SERVICE:
The goMobi service allows an end user with a top-level domain name ("TLD") to adapt their existing website to a mobile website which may be accessed and used via mobile devices (the "goMobi Service") The goMobi Service is a fee based subscription service, licensed by the dotMobi Registry (the "Licensor") to the Service Provider and offered to any end user with a valid, registered TLD. Please note that the goMobi Service is not available for the .TEL TLD. The goMobi Service includes the software components and/or transcoding tags (including the device detection and transcoding tag software) that will be installed on your web server including all associated manuals, user guides, help text files or embedded software instructions (together, the "Software" and which link to the dotMobi registry hosted database which contains information relating to devices for the mobile web (the "Database"). The goMobi Service is available for a free thirty (30) day trial ("Trial Period"). You may cancel your use of the goMobi Service at any time during the Trial Period. Please note that due to restrictions set by the Licensor, you may be billed for a monthly subscription fee prior to the end of the Trial Period. In the event that you cancel your use of the goMobi Service prior to the end of the Trial Period, the Service Provider shall provide you with a refund of any subscription fee paid by you prior to the end of the Trial Period. If you do not cancel your use of the goMobi Service during the Trial Period, the Service Provider will automatically bill you for the applicable subscription service which will not be refundable. After the Trial Period, the goMobi Service and the Additional Services (as defined herein) is available for a monthly subscription fee or an annual subscription fee as determined by you. You may cancel your use of the goMobi Service and the Additional Service at any time; however, you will not receive a refund for any unused time period of your applicable subscription fee.
YOUR REPRESENTATIONS AND WARRANTIES:
By using the goMobi Service, you represent and warrant that you are at least eighteen (18) years old and of legal age to form a binding contract, and you herby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you. You also represent and warrant that you are using the goMobi Service in good faith and that you have no knowledge or reason to believe that your TLD or the content found at any associated IP address infringes upon or conflicts with the legal rights of any third party or any third party’s trademark, trade name, copyright and/or any other third party intellectual property right. You also warrant that neither the goMobi Service nor your TLD and corresponding website will be used in connection with any illegal or morally objectionable activity, or in connection with the transmission of unsolicited commercial email ("Spam"). You shall be solely responsible for ensuring compliance with all local laws and regulations related to your TLD, your website, and the website content. You are also solely responsible for observing all applicable export and import laws that govern your use of the goMobi Service and/or the Additional Service. In particular, you shall not export the Software and/or the Database, 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.
SERVICE PROVIDER'S WARRANTY DISCLAIMER:
THE SERVICE PROVIDER, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, ITS LICENSOR AND THIER SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE WEB SITES OF THE SERVICE PROVIDER OR ANY WEB SITES LINKED TO SUCH WEB SITES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL SERVICES PROVIDED BY THE SERVICE PROVIDER AND THE SERVICE PROVIDER’S WEB SITE, ARE PROVIDED "AS IS". YOUR USE OF THE SERVICE PROVIDER'S SERVICES AND ITS WEB SITE ARE ENTIRELY AT YOUR RISK. THE SERVICE PROVIDER DOES NOT WARRANT THAT THE goMobi SERVICE OR THE ADDITIONAL SERVICE WILL BE UNINTERUPTED OR ERROR-FREE, OR THAT THE RESULTS OBTAINED WILL BE SUCCESSFUL OR WILL SATISFY YOUR REQUIRMENTS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. IF ANY PROVISION OF THIS DISCLAIMER IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE goMobi SERVICE AND/OR THE ADDITIONAL SERVICE.
SERVICE PROVIDER'S SUSPENSION OR TERMINATION OF SERVICES:
In the event of any of the following:
- If your TLD, website, or the content of your website is (are) alleged to violate or infringe a third party’s trademark, trade name, copyright interests or other legal rights of third parties;
- If you violate any provision of this Agreement;
- If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
- If Service Provider is named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of your use of the goMobi Service, the Additional Service or your TLD(s);
- If necessary to avoid any financial loss or legal liability (civil or criminal) on the part of the Service Provider, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors, Licensor, and employees;
- if it comes to the Service Provider’s attention that you are alleged to be using the goMobi Service and/or the Additional Service or your TLD(s) for purposes of engaging in, participating in, sponsoring or hiding your involvement in illegal or morally objectionable activities, including but not limited to, activities which are designed, intended to or otherwise: (i) appeal primarily to prurient interests; (ii) defame, embarrass, harm, abuse, threaten, or harass; (iii) violate state or federal laws of the United States and/or foreign territories; (iv) involve hate crimes, terrorism or child pornography; (v) are tortious, vulgar, obscene, invasive of a third party's privacy, race, ethnicity, or are otherwise objectionable; (vi) impersonate the identity of a third party; (vii) harm minors in any way; or (viii) relate to or transmit viruses, Trojan Horses, access codes, backdoors, worms, timebombs or any other code, routine, mechanism, device or item that corrupts, damages, impairs, interferes with, intercepts or misappropriates any software, hardware, firmware, network, system, data or personally identifiable information;
- in the event that the volume of traffic to you using the goMobi Service or Additional Service is sufficient so as to jeopardize the provision of the goMobi Service or Additional Service for other end users (for the avoidance of doubt, the volume of traffic generated by you should not to exceed two thousand (2,000) page views per day); THEN,
You understand and agree that the Service Provider and/or its Licensor have/has the absolute right and power, in its sole discretion and without any liability to you whatsoever, to suspend the goMobi Service and/or Additional Service, close your account, terminate your use of the goMobi Service and/or Additional Service, or take any other action which the Service Provider and/or its Licensor deems necessary.
You also acknowledge and agree that the Service Provider and/or its Licensor may, in its sole discretion and without any liability to you whatsoever, cancel the goMobi Service and or Additional Service during the first thirty (30) days after you procured the goMobi Service, and/or suspend your rights under this Agreement.
LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES SHALL THE SERVICE PROVIDER, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, ITS LICENSOR AND THEIR SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT, YOUR DOMAIN NAME REGISTRATION, THE goMobi SERVICE, THE ADDITIONAL SERVICES, USE OR INABILITY TO USE SERVICE PROVIDER’S OR LICENSOR’S WEB SITE(S) OR THE MATERIALS AND CONTENT OF THE WEB SITE(S) OR ANY OTHER WEB SITES LINKED TO SUCH WEB SITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO THE SERVICE PROVIDER, LICENSOR, OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF EITHER THE SERVICE PROVIDER OR ITS LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT THE LIMITATION OR ELIMINATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE SERVICE PROVIDER’S AND ITS LICENSOR’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE SERVICE PROVIDERS OR LICENSORS AGGREGATE LIABILITY TO YOU EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO THE SERVICE PROVIDER FOR THE LICENSE PROVIDED HEREIN.
COPYRIGHT & TRADEMARK:
You accept that the text "goMobi by dotMobi" or equivalent will be inserted at the footer of your adapted TLD web site. You will not alter, modify, remove, or disparage this text in any way.
If you transfer your TLD to which the goMobi Services are being provided under this Agreement to another domain registrar, the provision of the goMobi Service and/or the Additional Service will be interrupted for you on that TLD, and the goMobi Service and/or the Additional Service will not be restored until the necessary DNS records are made to refer your TLD to the goMobi Service.
As part of the Service Provider's provisioning of the goMobi Service and/or the Additional Service to you, updates to the goMobi 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 goMobi Service and/or the Additional Services 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. Service Provider and/or its Licensor shall incorporate the Updates at its absolute discretion and you shall agree to receive such Updates on the above terms as part of your use of the goMobi Service and/or the Additional Service.
The term of this Agreement begins on the date you start using the goMobi Service or the Additional Service and will remain in effect for as long as you use the goMobi Service and the Additional Service unless otherwise canceled, suspended, or terminated according the terms of this Agreement. On termination or expiration of this Agreement for any reason: (i) the license granted herein shall immediately cease, (ii) you shall not make any further use of the goMobi Service and/or the Additional Service, and (iii) you must immediately remove all Software from your system and delete any other information, documentation, materials, equipment, property and other items (and all copies of them in any format) belonging to the Service Provider or its Licensor.
SEVERABILITY; CONSTRUCTION; ENTIRE AGREEMENT:
You agree that if any part of this Agreement shall be held to be illegal, unenforceable or invalid, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, enforceable and valid, and the legality, enforceability and validity of the remaining provisions of this Agreement shall not be affected or impaired. The headings herein will not be considered a part of this Agreement. You agree that this Agreement, including the policies it incorporates by reference, constitute the complete and only Agreement between you and the Service Provider regarding the services contemplated herein.
GOVERNING LAW; VENUE; WAIVER OF TRIAL BY JURY:
This Agreement shall be governed in all respects by the laws and judicial decisions of King County, Washington, excluding its conflicts of laws rules. You agree that any action relating to or arising out of this Agreement, shall be brought exclusively in the courts of King County, Washington. For the adjudication of domain name registration disputes and disputes under this Agreement, you agree to submit to the exclusive subject matter and personal jurisdiction of the state and Federal courts located in King County, Washington, you agree that venue shall be proper in such jurisdiction, and you agree to waive any objection you may have to jurisdiction and venue in such forum. You agree to waive the right to trial by jury in any proceeding, regardless of venue, that takes place relating to or arising out of this Agreement and you agree that service upon you may be accomplished by depositing the summons and complaint in the United States mail, first-class mail, postage pre-paid, addressed to the address provided by you, which service shall be deemed to be effective five (5) days after deposit.
The LIMITATION OF LIABILITY, INDEMNITY, REPRESENTATIONS AND WARRANITES, SEVERABILITY; CONSTRUCTION; ENTIRE AGREEMENT; and the GOVERNING LAW; VENUE; WAIVER OF TRIAL BY JURY provisions in this Agreement survive any termination or expiration of this Agreement.