TERMS OF SERVICE
ImageEngine's Terms of Service
Effective Date: November 23, 2021
Note: If you purchased the Service prior to the Effective Date above (whether from us or from an authorized reseller), then this agreement will be effective with respect to you only upon the later of (i) the date you next pay for the Service, or (ii) the date your current agreement with your reseller expires, or (iii) 30 days from the Effective Date above. In any of those cases your only recourse if you do not want to accept the terms of this agreement is to terminate the Service prior to it becoming effective on such date.
ScientiaMobile, Inc. (referred to herein as “we,” “us” and “our”) makes available an image content delivery network branded as ImageEngine (herein referred to as the “Service”), offered by us among other places through the website https://imageengine.io/ (“Our Website”) and from authorized resellers. The terms “you” and “your” refer herein to: (i) if you registered for the Service through Our Website, then either the person registering, or if the person registering is acting on behalf of an entity, the entity registering, for the Service, or (ii) if you have received access to the Service from a third party, then the entity who has procured the Service from such third party. Your use of the Service is subject to the terms of this agreement, and you agree to this agreement by electing to use Service. If you do not agree to these terms and conditions, your sole remedy is to not register for or to not use the Service. You represent that you have full power, capacity and authority to accept this agreement. If you are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to this agreement. If you don’t have the legal authority to bind, please ensure that an authorized person from your entity consents to and accepts this agreement. In this agreement, such entity, or you if your use of the Service is personal, are referred to as “you” and “your”. If you do not agree to this agreement you have no right to use the Service or the account associated with this Service.
- Our Limited License to You. Subject to all of the terms of this agreement, we grant you a limited, personal, non-exclusive, non-transferable, non-assignable license, during the term of this agreement and subject to payment of all fees due under this agreement, solely to use the Service on any web page, application, or other property or resource capable of receiving and displaying images over an internet-connected network (“Your Properties”), in each case that you own, and in each case subject to the Acceptable Use Policy (defined below) and other limitations specified herein. We reserve all rights not expressly granted herein, and this agreement does not grant to you any right to any of our intellectual property not used in connection with the Service. The Service permits you to use certain Domain Name Service (DNS) configurations, known as CNAME, for the Service during the term of this agreement. You agree to promptly remove such CNAME configurations at the end of the term of this agreement.
- Your Licenses to Us. With respect to all data and work products you submit or otherwise transmit to or through the Service (your “Content”), you hereby grant us the worldwide right to reproduce, distribute, perform, display and create derivative works of your Content solely for the purpose of (i) providing the Service to you and users of Your Properties, (ii) monitoring, auditing and maintaining the security of the Service, and (iii) as needed to respond to inquiries to which we are legally mandated to respond. This license survives for so long as your Content is cached on our servers (usually less than 24 hours but set by rules within the Service) . You are solely responsible for the accuracy and legality of all Content. You represent and warrant to us that (i) you either own or have all necessary rights, consents and permissions to collect, share and use all Content as you choose to use it in connection with the Service and otherwise as contemplated in this agreement and (ii) no Content or its use hereunder (including the creation of derivative works or the distribution, performance or display of such Content) will violate or infringe any third party’s intellectual property rights or, publicity, privacy, or other rights, any applicable Laws, or any terms of service, privacy policies or other agreements governing Your Properties or your accounts with any third party. You may, from time to time, submit comments, questions, suggestions or other feedback relating to the Service (“Feedback”) to us. We may freely use or exploit Feedback in connection with the Service. To the extent you submit Feedback you hereby grants us, if for any reason it is further needed, a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such Feedback into any of our products or services at any time at our sole discretion.
- Certain Service Issues. The Service may deliver data, information and/or software to devices that access Your Properties, and collects non-personal data and/or logs from such devices and will transmit that data and/or logs to us. We will deliver to persons accessing or otherwise using Your Properties’ images adjusted according to your instructions (subject to the limitations set forth herein). You agree that we are not responsible for errors that may occur in adjusting the images, and that we may from time to time change the process and results for optimizing the images that we return upon advance notice as provided in Section 7. You are solely responsible for the setup of the Service to work with Your Properties, and as between you and us, you are solely liable for any liability incurred as a result of your setup of the Service and Your Properties. Support for the Service is available through our support portal available at https://support.imageengine.io/hc/en-us. The foregoing is not intended to limit any support obligations you may have purchased from an authorized third party reseller of the Service, provided that you agree your recourse for such support may be sought only from such reseller and not us.
- Your Responsibility for Data Limits. You understand that the Service includes limits on the data traffic (e.g., limited gigabytes) transferred as measured by us in our reasonable discretion, and your failure to configure the Service on Your Properties as described in our support portal may result in a higher count of unique users which will be added to your account. You are responsible for paying the amounts associated with the data traffic, even if inflated because of your failure to correctly configure the Service or as a result of malfeasance on the part of third party(ies) accessing Your Properties. Your limits may vary depending on whether you have signed up for an account directly with us or with a reseller of the Service.
- Certain Other Service Limits. You agree to use the Service only for the purpose of supporting Your Properties in connection with optimizing and delivering images for which you have the right to use, copy, modify, distribute and display. You represent, warrant and agree that you will not: (i) use the Service in a manner to facilitate a denial of service attack, whether against us or some other person or entity or probe, scan, or test the vulnerability of any system or network used with the Service; (ii) use a technology other than what we provide (either directly from us or from our authorized reseller) to access and/or use the Service; (iii) hide or mask from us the identity of your implementation of the Service, including any use of a proxy service or content delivery network; (iv) facilitate the use of the Service by a web page, application or other property or resource that is not owned by you, or other similar acts that resemble renting or leasing the Service to others; (v) reverse engineer the Service or any of the data, code or information delivered through the Service; (vii) restrict or inhibit any other person or entity from using and enjoying the Service; (viii) transmit Content to the Service without the intent of serving such Content to your users; (ix) disable or subvert the Service’s caching mechanisms; (x) engage in excessive (in our discretion) cache purging – cache purging is provided for occasional and incidental use only and should not be used in a scheduled manner or otherwise with any regularity; (xi) use the Service for any illegal purpose or in violation of any Laws (including without limitation data, privacy and export control laws) or use the Service to violate the privacy of others, or to collect or gather other users' personal information (including account information) from our Service; and/or (xii) use the Service to batch process Content or otherwise structure volume of Content through the Service not as a result of user input on Your Properties, including engaging in any load testing of the Service.
- Limits on Free Accounts. Free accounts for the Service include “trial” accounts and “developer” accounts. A “trial” account is generally granted for a thirty day term, which may be extended in our discretion, and may be used for commercial purposes. A “developer” account is granted for an indefinite term and you agree to use the Service under such “developer” account solely for development and testing and to not use the Service for any commercial or other business purpose. Any type of free account is subject to volume limits that we may change at any time and we may terminate any free account at any time, in each case upon notice to you (including by notifying you when you next try to access your account).
- Acceptable Use Policy. You represent, warrant and agree that your Content will at all times comply with our “Acceptable Use Policy”.
- Aggregated Data. You agree that we may obtain and aggregate technical and other data about your use of the Service that is non-personally identifiable ("Aggregated Anonymous Data"), and we may use the Aggregated Anonymous Data to secure, audit, analyze, improve, support and operate the Service and otherwise for any business purpose during and after the term of this agreement. In providing the Service we collect non-personal data from users of Your Properties in order to improve the Service. By using the Service you hereby grant us permission to do so on your behalf and agree to secure from and grant the same permission on behalf of your users. The collection of a user’s data may be subject to federal, state, local, and international laws, rules and regulations (collectively, “Laws”) governing data privacy. As you are the only party with contact with your users, as between us and you, you are solely responsible for complying with, and you shall comply with, any required disclosures, permissions and other obligations under such Laws and you alone shall be responsible for any liability that results from any failure to comply with such Laws. If you need to communicate the request of any of your users to us under any such Law, you may contact us at
- a. We may elect to collect device data and information (such as IP addresses and HTTP user-agent strings) generated from your use and your end users’ use of the Service for security and traffic analysis. We do not consider such information to be personal identifying information (PII), we do not have the ability to extract PII from such information and we will not utilize such information in any attempt to identify individuals.
- b. We may disclose such data and information solely after it has been aggregated so that it is anonymous.
- c. In addition to security and traffic analysis, we may use all such data and information to improve the Service and to create internal and external reports regarding the use of the Service and/or the use of mobile devices. Such data may be saved in our data collection infrastructure and in our back-ups maintained at a secure location for a period of time not to exceed 5 years from the date of collection.
- Certain Additional Terms Applicable When You Have Purchased the Service Directly From Us. If you have purchased use of the Service directly from us then the certain additional terms regarding payment, term and service commitments shall apply to you and such terms are made a part of this agreement. If you have purchased use of the Service from an authorized reseller than the terms referenced above do not apply to you and your payment terms and service commitments are as agreed with such reseller; however, you acknowledge that we may terminate your use of the Service (without limiting other rights of termination) if such reseller advises us that you have not timely paid for use of the Service or the reseller has not timely paid us for your use of the Service.
- Changes to These Terms of Service. We may change the terms and conditions of this agreement, or the Service itself, by providing you written notice, and such changes will be effective immediately after the term for which you have prepaid for the Service prior to such notice ends (e.g., the end of the Contract Month if you purchased the Service from us, or your next non-cancellable payment obligation or renewal if you purchase the Service from an authorized reseller). If any modification to this agreement we propose is unacceptable to you, you agree that your sole remedy is to terminate this agreement prior to the date such modification becomes effective and to cease use of the Service prior to such effective date.
- Termination. You may terminate this agreement at any time by stopping all use of the Service with respect to Your Properties and following the termination procedures in your account portal and in such case no refund of prepaid fees shall be due (and you may continue to use the Service through the last day you paid if you choose). We reserve the right, and you agree we may, discontinue the Service for all recipients at any time subject to providing a refund for any amounts for Service for which you have prepaid but not yet received as your sole remedy. We may terminate the Service at any time if you breach this agreement (and where we deem it reasonable we will offer you a reasonable opportunity to cure any breach and will provide you notice of the same) Without limiting the foregoing, we may suspend your use of the Service or terminate your agreement immediately upon notice in the event of any violation of our Acceptable Use Policy. We may terminate any account immediately upon notice if we have provided the account without charge. Our termination of this agreement shall be effectuated by the Service intentionally no longer being available when you or users of Your Properties attempt to use the Service, and you agree that we shall have no liability to you or your users for any harm that may arise out of our proper termination of the Service for any of the foregoing reasons. You agree that our ceasing to provide the Service shall constitute notice to you, but we shall also endeavor to provide written notice to whatever email you have provided in connection with your account registration. Notwithstanding the termination of this agreement, those terms that by their nature should reasonably survive the termination of an agreement, including sections 12, shall remain in full force and effect.
- IMPORTANT DISCLAIMERS; ALLOCATIONS OF RISK; INDEMNITY: The Service is provided “AS IS”, without warranty of any kind, express or implied, including that the Service will meet your requirements, will be uninterrupted, timely, secure or free from error, that the data and information obtained through the Service will be accurate or reliable, and warranties of merchantability, fitness for a particular purpose and noninfringement. To the greatest extent permitted by applicable Law, in no event shall we be liable to you or your users for any indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services, loss of use, data, or profits, or business interruption), arising from, out of or in connection with the Service or the use or other dealings in the Service, even if advised of the possibility of such damage, and in any event our aggregate liability to you and your users shall not exceed the amount you have paid to us in the 3 month period preceeding the event first giving rise to liability. You understand that the Service, as a discounted offering of our products and services, are offered in dependence on such limitations and such limitations are an essential aspect of the bargain formed by this agreement. Nothing in this will exclude or limit our warranty or liability for losses that may not be lawfully excluded or limited by applicable Law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for certain types of loss or damages. Accordingly, only the limitations that are lawful with respect to you will apply to you, and our liability will be limited to the maximum extent permitted by Law. You agree to defend (at our option), indemnify and hold us and our affiliates and their respective officers, directors, employees and agents (the “Indemnitees”) harmless from and against any and all claims, fees (including attorneys’ fees), suits, actions, demands and judgments against the Indemnitees arising out of or relating to your use of the Service, Your Properties, your Content or your breach of this agreement, including any claim that the Content you transmit to us infringes any proprietary right of any person or entity or your failure you comply with any Law. You agree to allow us to implead you into any such lawsuit and we may elect to defend the suit ourselves, in which case you will pay our reasonable attorneys’ fees. You agree not to settle any such claim without receiving our written consent, which will not be unreasonably withheld.
- This agreement is governed by the law of the Commonwealth of Virginia, without regard to its conflicts of laws principles, and each party to this agreement agrees to be subject to the personal jurisdiction of, and that any claim arising out of or relating to this agreement (other than a claim for indemnification which may be brought in your home jurisdiction) shall be brought only in a court located in the Commonwealth of Virginia. This agreement is not to be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended, or any state adoption of the Uniform Computer Information Transactions Act, and the applicability of the foregoing is hereby expressly disclaimed by each of the parties. You will not directly or indirectly transfer the HTML to any country to which such transfer would be prohibited by the U.S. Export Administration Act, the regulations issued thereunder, or any other export control statute or regulation. This agreement, including any of the license rights, may not be assigned or otherwise transferred through a change in control to any entity (including any successor or affiliate of you). However, as long as the Service is still offered by us and we did not terminate this agreement only with respect to you, a successor in interest to you or subsequent owner of Your Properties may agree to then-current form of this agreement in order to continue to use the the Service. If any provision of this agreement, or the application hereof, shall for any reason and to any extent, be invalid or unenforceable, the remainder of this agreement and application of such provisions to other persons or circumstances shall be interpreted so as best to reasonably effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provisions of this agreement with valid and enforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions. This agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto and thereto. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof. Any term or provision of this agreement may be amended, and the observance of any term of this agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by both parties. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. No person or entity other than you and us shall be third party beneficiaries under this agreement. We may use screen shots of your implementation of the Service and your name in our marketing activities to promote the successful use of the Service.