BETA END USER LICENSE AGREEMENT
IMPORTANT – READ CAREFULLY BEFORE USING THIS PRODUCT: YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS TRIAL 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.
TRIAL LICENSE
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 at no charge the software product(s) (“Software”) specified on your order (“Order”) only: (a) in object code, (b) in accordance with the applicable user documentation (“Documentation”), (c) for your internal evaluation and testing purposes (“Trial”) for the period of time specified in your Order, if any (“Trial Period”), and (d) in accordance with any installation, copy, use and machine restrictions or limitations specified or referenced in your Order or the Documentation. You may use the Software for production purposes solely at your own risk.
Licensee has no right to receive, use or examine any source code or design documentation relating to the Software. The term “Software” also includes updates, modifications or new releases of the Software and Documentation that may be provided by Dataclay 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 Software will be limited to those expressly granted in this Agreement. Dataclay and its licensors reserve all rights and licenses in and to the Software not expressly granted to Licensee under this Agreement. The Software and Documentation are licensed and not sold.
RESTRICTIONS
Except for one copy solely for archival purposes, copying of the Software or any portion thereof is expressly prohibited. Licensee must reproduce and include the copyright notice and any other notices that appear on the Software 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 Software, (b) modify, adapt, alter, translate, or create a derivative work of any part of the Software, (c) sublicense, rent, lease, distribute, sell or otherwise transfer the Software or the rights to the Software to any third party (except as expressly provided below), (d) use the Software or any results obtained from the Software for timesharing or service bureau purposes, or (e) remove any proprietary notices or labels on the Software.
Licensee is hereby notified that the Software 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 Software does contain Limiting Devices, then Dataclay will ensure that you receive any keys or other materials necessary to use the Software to the limits of your license.
LICENSEE DATA; DATACLAY OTHER PRODUCTS
Dataclay’s Projector™ Software licensed under this Agreement is designed to work in conjunction with Dataclay’s software-as-a-service known as QUE™. If Licensee is using the QUE service with Projector during the Trial then as part of the provision of the QUE service Licensee acknowledges that certain Licensee data or data files may be automatically uploaded from Projector into QUE without Licensee designating such data or data files for uploading. As such, Licensee understands and acknowledges that Licensee should use anonymous sample data for the Trial of the Software. It is Licensee’s responsibility to anonymize Licensee’s data.
Licensee understands and acknowledges that the Software is designed to work with Dataclay’s other software products such as Templater™ and QUE. This Agreement does not provide Licensee with any rights or licenses for such other Dataclay software and Licensee must separately license such other Dataclay software products.
You are solely responsible for maintaining backups and copies of your data used with the Software.
TITLE AND COPYRIGHT
As between the parties, Dataclay retains all right, title, and interest, including, without limitation, all intellectual property rights in and to the Software, and any copies or portions thereof. The Software is protected by the copyright laws of the United States and international copyright treaties. Licensee’s Software license confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers and licensors may protect their rights in the Software in the event of any infringement.
TERM AND TERMINATION
This Agreement is effective from the date you download the Software and will remain in force until terminated or expiration of the Trial Period, whichever occurs first.
You may terminate this Agreement at any time by destroying the Software and the Documentation (together with all copies thereof), which may be done by using the uninstaller function to uninstall the Software.
We may terminate this Agreement at any time and for any or no reason upon notice to you. You agree that we will not be liable to you or any third party for such termination.
This Agreement will automatically terminate if you breach any of the terms or conditions of this Agreement.
Upon termination of this Agreement, you will: (a) stop using the Software, and (b) destroy the Software and the Documentation (together with all copies thereof), which may be done by using the uninstaller function to uninstall the Software.
The Agreement Sections titled “Restrictions”, “Title and Copyright”, “Disclaimer”, “Limitation of Liability”, “Open Source Software; Third Party Software Requirements” and “General Provisions” will survive any termination or expiration of this Agreement.
SUPPORT
We have no obligation to support the Software and we may provide support for the Software in our sole discretion.
DISCLAIMER
TO THE EXTENT ALLOWED BY LOCAL LAW, THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. DATACLAY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. DATACLAY SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY ACTIONS RESULTING FROM LICENSEE’S USE OF THE SOFTWARE. DATACLAY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET ALL OF LICENSEE’S REQUIREMENTS OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATACLAY OR DATACLAY’S AUTHORIZED REPRESENTATIVES 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 WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE OF ANY KIND TO LICENSEE OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY INCLUDING, BUT NOT LIMITED TO (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF REVENUES AND LOSS OF PROFITS.
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.
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.
OPEN SOURCE SOFTWARE; THIRD PARTY SOFTWARE REQUIREMENTS
Open Source Software. The Software includes certain “Open Source Software”. A list of the Open Source Software included in the Software and available to Licensee from Dataclay, the applicable license terms, and how to obtain the Open Source Software is provided at https://legal.dataclay.com. 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 DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL DATACLAY OR ITS LICENSORS 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 OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
Third Party Software Requirements. Licensee understands and acknowledges that the Software is designed to work with third party storage and streaming products including, without limitation, AWS S3, Vimeo and JW Player (as may be further listed in the Documentation), and that Licensee must obtain Licensee’s own licenses for such third party products.
GENERAL PROVISIONS
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 Software 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 Software 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 Software license, Licensee will immediately deliver all copies of the Software to the assignee or transferee. The assignee or transferee must agree in writing to the terms and conditions of this Agreement. Licensee’s Software 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 from any claim, demand, loss or damages including, without limitation, reasonable attorneys’ and expert witness’ fees, arising out of or related to Licensee’s use of the Software 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 unenforceablility, 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 Software 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 Software 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 Software with only those rights set forth herein. Contractor/Manufacturer is Dataclay, LLC, 6425 Living Place, Suite 200; Pittsburgh, PA 15206.
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 Software 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.
Notices
- To Dataclay: Licensee may send notices to Dataclay at the following address: Dataclay, LLC, 6425 Living Place, Suite 200, Pittsburgh, PA 15206, as it may be updated from time to time on the Dataclay website.
- To Licensee: Dataclay may notify Licensee by email, postal mail or other legally acceptable means using the contact information provided by Licensee.
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 relating to the Software. This Agreement may be amended only in writing signed by an authorized representative of Dataclay. 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 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.
Trademark Notice. Copyright © 2014-2024 Dataclay, LLC All rights reserved. Dataclay™, Templater™, Templater Rig™, Templater Pro™, Templater Bot™, QUE™ and Projector™ are trademarks of Dataclay, LLC. All other marks referenced are the property of their respective owners.
