PROJECTOR 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 END USER LICENSE AGREEMENT (TOGETHER WITH THE ORDER, THE “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.
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 the software product(s) (“Software”) specified on your order referencing this Agreement (“Order”) and for which you have paid the applicable fees only: (a) in object code, (b) for Licensee’s own internal business operations, (c) in accordance with the applicable user documentation (“Documentation”), (d) for the period of time specified in your Order (“Subscription Period”), and (e) on one single machine, or on one single system for use with one single machine associated with such system, per Software copy licensed by you.
You may authorize multiple users to access each such Software copy solely for your internal business operations. You may de-install a Software copy on such single machine or system and re-install such Software copy on another single machine or system, provided that such Software copy cannot be copied and installed and used concurrently on multiple machines or systems.
Licensee has no right to receive, use or examine any proprietary 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 or pursuant to a support and maintenance agreement with Dataclay. 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 for timesharing or service bureau purposes, or (e) remove any proprietary notices or labels on the Software.
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 Software unless necessary for legitimate use of 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™ and other third party products as noted in the below sections titled “Adobe” and “Other Third Party Products”.
If Licensee is using the QUE service with Projector during the Subscription Period 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, and (a) to the extent any such data includes personally identifiable data (“Personal Data”), Licensee will use commercially reasonable efforts, when feasible, to pseudonymize, anonymize, mask or obfuscate any Personal Data for use with the Software, and (b) it is Licensee’s responsibility to comply with applicable data protection laws and regulations.
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.
LICENSE FEES
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 you to Dataclay will not apply. Any such purchase order or similar document from you 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”). You are responsible for paying all Taxes associated with your purchases hereunder.
QUE METER CREDITS FOR DATACLAY SUITE OF PRODUCTS
As an alternative to the above License Fees section and to give you the opportunity to try all of our suite of products and services, you may elect to purchase QUE Meter credits which may be used for any Dataclay suite of products and services including Templater, QUE Services and Projector. The rules for QUE Meter credits include the following:
- You must create a QUE account
- You must purchase a perpetual Templater Rig software license
- QUE Meter credits may only be used for output as determined in Dataclay’s sole discretion
- QUE Meter credits will expire 1 year after purchase; however, if you purchase additional QUE Meter credits then the expiration date for all QUE Meter credits (the new credits as well as the existing QUE Meter credits) will be 1 year from the new QUE Meter credit purchase date
- You may only purchase and maintain the maximum number of QUE Meter credits specified on your Order
Additional rules for QUE Meter credits may be included on your Order. In the event of a conflict between this Section and any other section of this Agreement, this Section will prevail.
TITLE AND COPYRIGHT
As between the parties, Dataclay retains all right, title, and interest, including 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 Order date for the Software and will remain in force until terminated or expiration of the Subscription Period, whichever occurs first.
If you selected a recurring Software license subscription, then your Subscription Period for the Software will continue to automatically renew for the same period of time as your original Subscription Period, and you will continue to be charged applicable license fees for such subscription via your selected payment method, until and unless you terminate the recurring renewal of your Software license Subscription Period through the termination process made available in your account. If you terminate your recurring Software license Subscription Period, your Subscription Period will continue in effect until the end of your paid Subscription Period and then terminate on that date. (For example, if your paid six-month subscription start date is on January 1 and you cancel on May 15, your subscription will continue through June 30.)
If you do not have a recurring Software license subscription, then this Agreement will terminate at the end of your Subscription Period. You may also terminate this Agreement before the end of your Subscription Period at any time by destroying the Documentation and the Software (together with all copies thereof) or by using the uninstaller function to uninstall the Software. Such termination does not relieve you of any obligation to pay any outstanding fees for the Software (e.g. for the Subscription Period of the Software license purchased by you). Note that if you terminate the Subscription Period before it ends (a) your Software license will end immediately (i.e. before the end of your Subscription Period) and (b) you will not receive any refund.
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.
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”, “License Fees”, “Title and Copyright”, “Disclaimer”, “Limitation of Liability”, “Open Source Software; Other Third Party Products” and “General Provisions” and any provisions of this Agreement which by their nature are to be performed or enforced following any termination or expiration of this Agreement will survive any termination or expiration of this Agreement.
SUPPORT
This Agreement does not include any maintenance and/or support of the Software including any updates, upgrades or new versions (“Support Programs”); provided, however, that if we provide or you download or otherwise obtain in any manner any Support Programs they will become part of the Software and the terms of this Agreement will apply to such Support Programs.
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 and links (including advertisements) to websites made available by third parties (“Third Party Websites”). 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 Third Party Websites, and Dataclay does not make any representations or warranties, express or implied, regarding this information or these products, services, or Third Party 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 Website or its content, or any information, products, or services provided by a third party. You should use your own independent judgment before accessing and using such Third Party Websites.
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 Software 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.
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’S TOTAL AGGREGATE LIABILITY FOR ANY KIND OF LOSS, DAMAGE OR LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION, UNDER ANY THEORY OF LIABILITY, IS LIMITED TO THE TOTAL OF THE FEES ACTUALLY PAID BY LICENSEE TO DATACLAY HEREUNDER FOR THE SOFTWARE IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY AROSE. 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 SOFTWARE 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.
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; OTHER THIRD PARTY PRODUCTS
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 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.
Adobe. Licensee understands and acknowledges that certain features of the Software are designed to work with Adobe’s software product known as Adobe After Effects (however it may be renamed by Adobe) and that Licensee must separately obtain a license to Adobe After Effects in order to use such features of the Software. Further, Licensee understands and acknowledges that it is Licensee’s responsibility to understand and comply with the applicable Adobe software license agreement and terms of use for Adobe After Effects including Licensee’s installation, copying and use of Adobe After Effects on a computer file server within Licensee’s internal network.
LICENSEE WILL NOT RELY ON ANY DISCUSSIONS, COMMUNICATIONS, ADVERTISING OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATACLAY OR DATACLAY’S AUTHORIZED REPRESENTATIVES REGARDING LICENSEE’S USE OF ADOBE AFTER EFFECTS WITH THE SOFTWARE AND/OR LICENSEE’S COMPLIANCE WITH THE APPLICABLE ADOBE SOFTWARE LICENSE AGREEMENT AND TERMS OF USE FOR ADOBE AFTER EFFECTS.
Licensee agrees to indemnify Dataclay from any claim, demand, loss or damages including reasonable attorneys’ and expert witness’ fees, arising out of or related to Licensee’s use of Adobe After Effects and/or Licensee’s breach of the applicable Adobe software license agreement and terms of use for Adobe After Effects.
“Adobe” means Adobe Systems Incorporated and/or Adobe Systems Software Ireland Limited.
Other Third Party Products. The Software is designed to work with third party storage and streaming products including AWS S3, Adobe Frame.io, Vimeo and JW Player and also supports third party data sources including Google Sheets tables (all as may be further listed and described in the Documentation). Licensee understands and acknowledges that while Dataclay has enabled such options as a convenience for its customers, Licensee must obtain Licensee’s own licenses for such third party products and Dataclay assumes no responsibility or liability for such third party products including interoperation with the Software, support, maintenance, security or discontinuation of such third party products. Licensee’s use of such third party products is solely between Licensee and the third party provider of such third party product and is governed by such third party’s terms and conditions.
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 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 and arbitration 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 including to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Crimea Region of Ukraine, Cuba, Iran, North Korea, Russia, Sudan, Syria, and Venezuela.
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.
Marketing. Dataclay may use and display Licensee’s name, logo, trademarks, and service marks on Dataclay’s website and in Dataclay’s marketing materials in connection with identifying Licensee as a customer of Dataclay. Upon Licensee’s written request, Dataclay will promptly remove any such marks from Dataclay’s website and, to the extent commercially feasible, Dataclay’s marketing materials.
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. 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. If the below Arbitration Section does not apply to you, then any legal suit, action or proceeding arising out of or relating to this Agreement or any dispute will be commenced in the appropriate state or federal court in Austin, Texas, and you and we irrevocably consent to the exclusive jurisdiction of such courts and venue in Austin, Texas for any such proceeding, and we each waive any right to a jury trial.
Arbitration. Subject to the Governing Law Section, any controversy or dispute arising out of or relating to this Agreement, or the breach of this Agreement, that is not promptly resolved by negotiation between the parties, will be resolved by binding arbitration conducted in the English language in accordance with the arbitration rules of the American Arbitration Association (“AAA”) and United States Federal Arbitration law without reference to state arbitration law, except that you may assert claims in small claims court if your claims qualify. Judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal will consist of a single arbitrator mutually agreed by the parties, or in the absence of such agreement within 30 calendar days from the first referral of the dispute to the AAA, designated by the AAA. The place of arbitration will be in Travis County, Texas unless the parties have agreed to another location within 15 calendar days from the first referral of the dispute to the AAA; the parties agree that any arbitration hearings will, to the extent possible and consistent with the AAA arbitration rules, be conducted remotely (i.e. Zoom, phone, and the like). The arbitral award will be final and binding. Each party retains the right to seek judicial assistance: (a) to compel arbitration; (b) to obtain interim measures of protection prior to or pending arbitration, (c) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and/or (d) to enforce any decision of the arbitrator, including the final award. The arbitration proceedings contemplated by this Section will be as confidential and private to the extent permitted by applicable law. To that end, the parties will not disclose the existence, content or results of any proceedings conducted in accordance with this Section, and materials submitted in connection with such proceedings will not be admissible in any other proceeding, provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitral award, and will not bar disclosures required by law.
You agree that all dispute proceedings (whether in court or by arbitration) will be only on an individual basis and not heard on a class, representative or consolidated basis.
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 ON BEAHLF OF DATACLAY WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE.
Construction. The headings of Sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. The terms “include,” “including,” “includes” and similar terms mean “including, without limitation.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative and the exercise of any express remedy by either party does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity.
Counterparts. This Order referencing this Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the parties. This signed Order referencing this Agreement or counterparts may be exchanged electronically or stored electronically as a photocopy (such as in .pdf format). The parties agree that electronically exchanged or stored copies will be enforceable as original documents and consent to the use of electronic and/or digital signatures for the execution of the Order referencing this Agreement and further agree the use of electronic and/or digital signatures will be binding, enforceable and admissible into evidence in any dispute regarding this Agreement.
Trademark Notice. Copyright © 2014-2025 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.
