THIS IS AN AGREEMENT BETWEEN THE END USER (REFERRED TO HEREAFTER AS "YOU OR YOUR") AND ENOM, INC, A DELAWARE CORORATION (THE "SERVICE PROVIDER"). NOTE THAT the dotMOBI REGISTRY IS NOT A PARTY TO THIS AGREEMENT. PLEASE READ THIS dotMOBI INSTANT MOBILIZER END USER AGREEMENT ("AGREEMENT") CAREFULLY. BY USING THE .MOBI INSTANT MOBILZER SERVICE, 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 dotMOBI INSTANT MOBILIZER SERVICE. YOU AGREE THAT ANY NEW, DIFFERENT OR ADDITIONAL FEATURES THAT CHANGE THE dotMOBI INSTANT MOBILIZER 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 dotMOBI INSTANT MOBILIZER 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 dotMOBI INSTANT MOBILIZER SERVICE. YOUR CONTINUED USE OF THE dotMOBI INSTANT MOBILIZER SERVICE AFTER CHANGES TO THIS AGREEMENT HAVE BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.
DESCRIPTION OF dotMOBI INSTANT MOBILIZER SERVICE: The dotMobi Instant Mobilizer Service allows an end user with a dotMOBI top-level domain ("mTLD") to adapt their existing website to a mobile website which may be accessed and used via mobile devices ("MIM SERVICE"). The MIM Service is a free service, licensed by the dotMobi Registry (the "Licensor") to the Service Provider and offered to any end user with a valid, registered mTLD. Upon purchasing a mTLD, you may opt-in to have your website adapted automatically for visitors to your new mTLD website on a mobile device.
USE OF SERVICE: You are hereby granted a personal, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable license to use the MIM Service. During the term of this Agreement, you shall, to the extent reasonably possible, effect and maintain adequate security measures to safeguard the MIM Service from use by any unauthorized person(s). Unless expressly permitted by law, you may not disassemble, decompile, or reverse engineer the MIM Service. You shall not alter, modify, adapt, or translate the whole or any part of the MIM Service in any way whatsoever. Unless expressly permitted by law, you may not create derivative works based on the MIM Service. Except as expressly permitted in this Agreement, you may not rent, lease, assign, dispose of, novate, sub-license or otherwise transfer any of your rights to use the MIM Service to any third party.
YOUR REPRESENTATIONS AND WARRANTIES: By using the MIM 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 MIM Service in good faith and that you have no knowledge or reason to believe that your mTLD 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 MIM Service nor your mTLD will be used in connection with any illegal or morally objectionable activity, or in connection with the transmission of unsolicited commercial email ("Spam").
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. 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.
SERVICE PROVIDER'S SUSPENSION OR TERMINATION OF SERVICES: In the event of any of the following:
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 MIM Service, close Your Account, terminate provisionment of the MIM 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 MIM Service during the first thirty (30) days after you procured the MIM Service, and/or suspend your rights under this Agreement.
INDEMNIFICATION: You agree to release, defend, indemnify and hold harmless the Service Provider, its parent companies, subsidiaries, affiliates, shareholders, directors, officers, employees, its licensors and their shareholders, agents, directors, officers and employees from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney's fees, arising out of or related in any way to this Agreement, the MIM Service, your account, and/or your uses of your mTLD.
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 MIM SERVICES, USE OR INABILITY TO USE SERVICE PROVIDER'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 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 AGGREGATE LIABILITY TO YOU EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO THE SERVICE PROVIDER FOR THE LICENSE PROVIDED HEREIN.
SERVICE BRANDING: You accept that the text "Instant Mobilizer by dotMobi" or equivalent will be inserted at the footer of your adapted mTLD web site. You will not alter, modify, remove, or disparage this text in any way.
TRANSFERS: If you transfer your mTLD to another domain registrar, the MIM Service will be interrupted on that mTLD, and the MIM Service will not be restored if the new registrar does not offer the MIM Service.
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.
TERM OF AGREEMENT; SURVIVAL. The term of this Agreement begins on the date you start using the MIM Service and will remain in effect for as long as you use the MIM Service unless terminated or suspended sooner according to the terms of this Agreement. 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.