Date of Last Revision: Feb 5, 2021
IMPORTANT – READ CAREFULLY BEFORE USING THIS PRODUCT: YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BY SELECTING THE “ACCEPT” OPTION AND DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT “DECLINE” OR “CANCEL” AND YOU MUST NOT DOWNLOAD, INSTALL, USE, OR COPY THE SOFTWARE PRODUCT. IF THIS AGREEMENT IS CONSIDERED AN OFFER BY US, THEN ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DATACLAY.
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT ENTITLED TO USE THE SOFTWARE.
Subject to the terms and conditions of this Agreement, DataClay, LLC (“DataClay”, “we”, “us” or “our”) hereby grants you (“Licensee”, “you” or “your”) a non-exclusive, non-sublicensable, non-transferable, personal and limited license to use the software template(s) specified on your order (“Order”) and for which you have paid the applicable fees (“Video Template”) only: (a) for Licensee’s own internal business operations, (b) in accordance with the applicable user documentation (“Documentation”), and (c) in accordance with any installation, copy, use and machine restrictions specified or referenced in the Order or Documentation including Render (defined below) limits, trial use, copy limits or other limitations. For purposes of this Agreement, Licensee’s internal business operations means use of the Video Template internally for Licensee’s own business purposes to Render videos and other output (“Output”) for Licensee’s own business purpose including providing or licensing such Output to Licensee’s end users.
The term “Video Template” also includes updates, modifications or new releases of the Video Template and Documentation that may be provided by DataClay or the author of the Video Template (“Author”) to Licensee from time to time in its sole discretion. No rights or licenses are granted by DataClay or its licensors under this license, expressly or by implication, with respect to any proprietary information or patent right, copyright, trade secret right or other intellectual property right owned or controlled by DataClay or its licensors, except as expressly provided herein. Licensee’s rights in the Video Template will be limited to those expressly granted in this Agreement. DataClay and its licensors reserve all rights and licenses in and to the Video Template not expressly granted to Licensee under this Agreement. The Video Template and Documentation are licensed and not sold.
Except for copies necessary to exercise Licensee’s license rights under this Agreement, copying of the Video Template or any portion thereof is expressly prohibited. Licensee must reproduce and include the copyright notice and any other notices that appear on the Video Template on any copy.
Licensee will not (and will not authorize or enable any third party to): (a) decompile, disassemble, reverse engineer or otherwise attempt to discover the source code or underlying ideas or algorithms of the Video Template; provided, that some Video Templates may have certain source code visible or accessible which you may use only as necessary to exercise your license rights under this Agreement, (b) modify, adapt, alter, translate, or create a derivative work of any part of the Video Template, incorporate the Video Template into or with other software, or separate or use any portion of the Video Template separately from the Video Template, (c) sublicense, rent, lease, distribute, sell or otherwise transfer the Video Template, any portion of the Video Template, or the rights to the Video Template to any third party (except as expressly provided below), (d) use the Video Template for timesharing or allowing third parties to use the Video Template for their own purposes, (e) incorporate the Video Template or any feature or functionality of the Video Template into a product or service sold or distributed by you, or (f) remove any proprietary notices or labels on the Video Template.
Where Licensee has other rights under statute, Licensee will provide DataClay with reasonably detailed information regarding any intended disassembly or decompilation. Licensee will not decrypt the Video Template unless necessary for legitimate use of the Video Template.
Licensee is hereby notified that the Video Template may contain time-out devices, counter devices, registry entries and/or other devices intended to ensure the limits of a particular license will not be exceeded (“Limiting Devices”). If the Video Template does contain Limiting Devices, then DataClay will ensure that you receive any keys or other materials necessary to use the Video Template to the limits of your license.
All fees and payment terms are as set forth in the applicable Order. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and fees are non-refundable. Any terms and conditions of any purchase orders or acknowledgements delivered by Customer to DataClay will not apply. Any such purchase order or similar document from Customer will be for billing reference only and, notwithstanding any terms and conditions set forth therein, such document will not modify or add provisions to this Agreement and will not take precedence over this Agreement in any manner.
Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder other than taxes based on income, property, or employees of DataClay. If DataClay has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, DataClay will invoice Customer and Customer will pay that amount unless Customer provides DataClay with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to DataClay, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, DataClay receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon DataClay’s request, Customer will provide to DataClay its proof of withholding tax remittance to the respective tax authority.
Licensee will conduct such internal audits as are reasonably required to verify its compliance with this Agreement and, upon DataClay’s request from time to time, certify compliance with any Video Template copy, use or other restrictions, including how many Rendered Outputs have been performed using the Video Template, and provide DataClay with such certification and supporting evidence in writing within ten business days of such request.
TITLE AND COPYRIGHT
DataClay or the applicable Author retains all right, title, and interest, including all intellectual property rights, in and to the Video Template, and any copies or portions thereof. The Video Template is protected by the copyright laws of the United States and international copyright treaties. Licensee’s Video Template license confers no title or ownership and is not a sale of any rights in the Video Template. Third-party suppliers and licensors may protect their rights in the Video Template in the event of any infringement.
As between the parties, Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Rendered Output, and any copies thereof.
TERM AND TERMINATION
The Video Template license is granted based on either the applicable number of unique renders performed using the Video Template (“Renders”) or is a perpetual license, whichever option you elect when you Order the Video Template. This Agreement is effective from the date you download the Video Template and will remain in force (a) until you have used the Video Template to perform the number of Renders you selected when you Ordered the Video Template license, or (b) perpetually if you selected the perpetual license option in your Order (“Term”), unless earlier terminated as provided herein.
This Agreement will automatically terminate if you breach any of the terms or conditions of this Agreement. We may also terminate this Agreement for any of the following reasons: (a) your failure to pay any applicable fees, or (b) our obligation to do so by law. In the event you notify us within 30 days of your purchase of the Video Template that the complexity and your use of such Video Template are too difficult, then we may in our sole discretion provide you with a full refund of the applicable fees you paid; any such refund is subject to your written confirmation that you have (a) stopped using such Video Template, and (b) deleted or removed such Video Template and the Documentation (together with all copies thereof) from all of your devices.
Upon termination or expiration of this Agreement for any reason, you will: (a) stop using the Video Template, and (b) delete or remove the Video Template and the Documentation (together with all copies thereof) from all of your devices.
The Agreement Sections titled “Restrictions”, “License Fees”, “Title and Copyright”, “Disclaimer”, “Limitation of Liability”, “Open Source Software; Third Party Software” and “General Provisions” will survive any termination or expiration of this Agreement.
DataClay will be the initial point of contact for Video Template support questions, provided, however, the Author of the Video Template will provide the primary support for their Video Template. The Documentation contains the Author’s contact information for such support; any updates provided to you as part of support will become part of the Video Template and the terms of this Agreement will apply to such updates.
DataClay makes available on its website certain self-help support services such as tutorials, a knowledgebase, user-to-user forums and discussion areas (“Self-Help Support”). The Self-Help Support we make available on our website may contain information, products, and services provided by third parties, including Authors and other third parties, and links (including advertisements) to websites made available by third parties. This information and these products, services, and links are provided only as a convenience to users of the Self-Help Support. Dataclay does not control this information or these products, services, or websites, and Dataclay does not make any representations or warranties, express or implied, regarding this information or these products, services, or websites and will not be liable for any information or services you receive from them. Inclusion of any of the foregoing in the Self-Help Support does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Dataclay with respect to any third party, any third party’s website or its content, or any information, products, or services provided by a third party.
Dataclay makes no representations or warranties with respect to any user-to-user forums, blogs, private messages, emails, or other electronic discussion mediums made available via the Self-Help Support (collectively, “Discussion Areas”) or with respect to any messages, information, or materials contained in the Discussion Areas. Your use of, or reliance upon, any such messages, information, or materials is at your sole risk and expense. Dataclay does not, and cannot, review all of the information and materials provided in the Discussion Areas and has no responsibility or liability for any such information or materials or their use. If Dataclay becomes aware of any information or materials that it determines violate its agreements or the Discussion Areas’ policies promulgated by Dataclay from time to time or that Dataclay otherwise deems inappropriate in its sole discretion, Dataclay reserves the right to delete, move, or edit any such information or materials.
You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of the Video Template or the Self-Help Support (“Feedback”) that are not already subject to third party intellectual property rights may be used by us or any other user of the Self-Help Support without compensation or attribution, and you hereby grant us a worldwide, irrevocable, royalty-free, non-exclusive, sublicenseable and transferable license under all your intellectual property rights in the Feedback for any purpose.
TO THE EXTENT ALLOWED BY LOCAL LAW, THE VIDEO TEMPLATE IS PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. DATACLAY, ITS LICENSORS AND THE AUTHOR SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. DATACLAY SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY ACTIONS RESULTING FROM LICENSEE’S USE OF THE VIDEO TEMPLATE. DATACLAY, ITS LICENSORS AND THE AUTHOR DO NOT WARRANT THAT THE VIDEO TEMPLATE WILL MEET ALL OF LICENSEE’S REQUIREMENTS OR THAT THE USE OF THE VIDEO TEMPLATE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE VIDEO TEMPLATE IS ASSUMED BY LICENSEE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATACLAY OR DATACLAY’S AUTHORIZED REPRESENTATIVES BEFORE CREATE A WARRANTY OR AMEND THIS WARRANTY.
Some jurisdictions do not allow exclusions of implied warranties or conditions, so the above exclusion may not apply to Licensee to the extent prohibited by such local laws. Licensee may have other rights that vary from country to country, state to state, or province to province. To the extent warranties cannot be disclaimed or excluded, they are limited to the duration of the minimum warranty period required by law.
LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT PROHIBITED BY LOCAL LAW, DATACLAY’S TOTAL AGGREGATE LIABILITY FOR ANY KIND OF LOSS, DAMAGE OR LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE VIDEO TEMPLATE OR DOCUMENTATION, UNDER ANY THEORY OF LIABILITY, IS LIMITED TO THE TOTAL OF THE FEES ACTUALLY PAID BY LICENSEE TO DATACLAY HEREUNDER FOR THE VIDEO TEMPLATE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
IN NO EVENT WILL DATACLAY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE VIDEO TEMPLATE OR DOCUMENTATION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT DATACLAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The limitations specified in this Limitation of Liability Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
These limitations will not apply to liability for death or personal injury resulting from DataClay’s negligence to the extent applicable law prohibits such limitation. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to Licensee to the extent prohibited by such local laws. Only those limitations and exclusions that are lawful in your jurisdiction will apply to you and, in such instances, DataClay’s liability will be limited to the maximum extent permitted by law.
DataClay will not be liable to Licensee because of any exercise of DataClay’s right to terminate this Agreement, as provided hereunder, at law or equity for compensation, reimbursement or damages on account of any loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or other commitments relating to the business or goodwill of Licensee, notwithstanding any law to the contrary.
OPEN SOURCE SOFTWARE; THIRD PARTY SOFTWARE
Open Source Software. The Video Template may include certain “Open Source Software”. A list of the Open Source Software included in the Video Template and available to Licensee from DataClay or the Author, the applicable license terms, and how to obtain the Open Source Software is provided in the Documentation. Any provisions in this Agreement which differ from any Open Source Software license are offered by DataClay alone and not by any other party. ALL OPEN SOURCE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND DATACLAY, ITS LICENSORS AND THE AUTHOR DISCLAIM ALL WARRANTIES WITH REGARD TO OPEN SOURCE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL DATACLAY, ITS LICENSORS OR THE AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE SOFTWARE EVEN IF DATACLAY, ITS LICENSORS OR THE AUTHOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM DATACLAY’S, ITS LICENSORS’ OR THE AUTHOR’S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
Assignability; Restrictions on Transfer. If you accepted this Agreement on behalf of a company or other legal entity, then you may assign or transfer this Agreement and the Video Template license in whole, but not in part, in connection with a change of control, change in majority ownership or the sale of all or substantially all of the assets of your company or other legal entity. Otherwise, if Licensee is not a company or other legal entity, then you may not assign or transfer in whole or in part or in any manner this Agreement or any of your rights, obligations, or any interest in or under this Agreement or the Video Template without DataClay’s prior written express consent, which may be withheld in its sole discretion, and payment to DataClay of any applicable fees. Any attempted assignment or transfer in violation of this section will be void.
Upon permitted assignment and transfer of the Agreement and Video Template license, Licensee will immediately deliver all copies of the Video Template to the assignee or transferee. The assignee or transferee must agree in writing to the terms and conditions of this Agreement. Licensee’s Video Template license will automatically terminate upon such permitted assignment and transfer.
DataClay may at any time and without Licensee’s consent assign this Agreement or all or a portion of its rights and obligations under this Agreement. This Agreement and all of its provisions will inure to the benefit of and become binding upon the parties and the successors and permitted assigns of the respective parties.
Indemnity. Licensee agrees to indemnify DataClay and the Author from any claim, demand, loss or damages including reasonable attorneys’ and expert witness’ fees, arising out of or related to Licensee’s use of the Video Template or violation of this Agreement.
No Waiver. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of DataClay. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.
Severability. If any provision in this Agreement is held invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.
Non-Exclusive Remedy. Except as otherwise expressly stated herein, termination, expiration or cancellation of this Agreement and/or Licensee’s use of the Video Template will be a non-exclusive remedy of DataClay and will be without prejudice to any other right or remedy of DataClay. Except as otherwise expressly stated herein, DataClay’s rights and remedies are cumulative and not alternative.
Attorneys’ Fees. In the event of any legal proceeding between DataClay and you arising out of or related to this Agreement, DataClay will be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.
U.S. Government End Users. The Video Template is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Video Template with only those rights set forth herein. Contractor/Manufacturer is DataClay, LLC, 4131 Spicewood Springs Road, Suite C4, Austin, Texas, 78759.
Export. Licensee will comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Licensee will not export or re-export or allow or authorize the export or re-export of the Video Template and Documentation, or any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations.
English Language Controls. We may provide translations of this Agreement as a convenience to licensees. However, in the event of a conflict or inconsistency between the English and any non-English versions, the English version of this Agreement will govern, to the extent not prohibited by local law in your jurisdiction. This Agreement has been drawn up in English at the express wish of the parties. Le présent contrat a été rédigé en anglais à la demande expresse des parties.
Complete Understanding. This Agreement sets forth the entire understanding and agreement between Licensee and DataClay with respect to the subject matter hereof and supersedes any prior representations, discussions, undertakings, communications, or advertising with respect to the subject matter hereof. This Agreement may be amended only in writing signed by an authorized representative of DataClay and Licensee. The terms “include,” “including,” “includes” and similar terms mean “including, without limitation.” NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE.
Governing Law. This Agreement will be governed by, and interpreted in accordance with, the laws of the State of Texas (U.S.A.) exclusive of its choice of law provisions. Licensee consents to the exclusive jurisdiction and venue of the State and Federal Courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or party to be enjoined is located. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods. The parties expressly exclude the application of the United Nations Convention on the International Sale of Goods and UCITA (the Uniform Computer Information Transactions Act) as it may be enacted in the applicable jurisdiction. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses, including fees of attorneys and experts and costs and fees on appeal.
Trademark Notice. Copyright © 2014-2021 DataClay, LLC All rights reserved. DataClay™, Templater™, Templater Project™, Templater Rig™, Templater Pro™, Templater Bot™, Templater Autografs™” and “Autografs™” are trademarks of DataClay, LLC. All other marks referenced are the property of their respective owners.