Terms of Service for Dato.com and Associated Subdomains
Last Updated: January 8, 2015
Welcome, and thank you for your interest in Dato, Inc. (“Dato”, “we,” or “us”) and our Web site at www.dato.com (the “Site”), as well as all related mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Service is displayed (collectively, together with the Site, our “Service”). These Terms of Service are a legally binding contract between you and Dato regarding your use of the Service.
These Terms of Service provide that all disputes between you and Dato will be resolved by binding arbitration. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. Please review the Arbitration provision in Section 19 below for the details regarding your agreement to arbitrate any disputes with Dato.
1. Dato Service Overview. Dato is based on an open-source software platform that enables advanced analytics and machine learning on graphs.
2. Eligibility. You must be at least 18 years of age to use the Service. By accepting these terms or registering for an account for the Service, you represent and warrant to us: (i) that you are at least 18 years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
3. Permission to Use the Service. Subject to your compliance with these Terms, Dato grants to you a personal, limited, non-exclusive, non-transferable, freely revocable right and license to access and use the Service and the content made available via the Service. Certain software made available on or through the Service may be provided to you under its own licensing terms.
5. Payment. The Service is currently offered to you free of charge. However, Dato reserves the right to charge subscription fees, now or in the future, for the use of the Service or any part thereof. You agree to pay to Dato all fees for services purchased on or through the Service under your account at the then-current rates for those services (including any applicable taxes). For any change in fees, Dato will send you a notice of the change in advance of commencement (via a message on or through the Service or email).
6. User Content
6.1 User Content Generally. Certain features of the Service may permit users to upload content, including, without limitation, data, text, software code, images, and other types of works (collectively, “User Content”). You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
6.2 Limited License Grant to Dato. By posting or publishing User Content, you grant Dato a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, sublicensable, and transferable license to host, store, use, transfer, display, perform, reproduce, modify, and distribute your User Content and derivatives thereof, in whole or in part, in any media formats and through any media channels (now known or hereafter developed), for the purpose of providing you with the Service and the current and future services, features and functionality available on or through it, and for our internal business purposes.
6.3 Limited License Grant to Other Users. The Service may permit you to share the User Content you post with other users of the Service. By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
6.4 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
* you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Dato and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 6 and in the manner contemplated by Dato and these Terms; and
* your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel any third party.
6.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Dato may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Dato with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Dato does not permit copyright-infringing activities on the Service.
7. Digital Millennium Copyright Act
7.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
DMCA c/o Dato Inc.
936 N 34th St., Suite 208
Seattle, WA 98103
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7.2 Repeat Infringers. Dato will promptly terminate without notice the accounts of users that are determined by Dato to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
8. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
8.1 use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
8.2 violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
8.3 upload, post, email or transmit or otherwise make available through the Service any inappropriate, defamatory, infringing, obscene, or unlawful content;
8.4 download any content posted on the Service by another user that you know, or reasonably should know, that cannot be legally distributed in this manner;
8.5 remove any copyright, trademark or other proprietary rights notices contained in or on the Service or any content made available on or through the Service;
8.6 impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
8.7 submit content that falsely expresses or implies that such content is sponsored or endorsed by Dato;
8.8 restrict or inhibit any other user from using and enjoying Service;
8.9 interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
8.10 interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of those networks, equipment, or servers;
8.11 perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
8.12 sell or otherwise transfer the access granted herein or any Materials (as defined in Section 14 below) or any right or ability to view, access, or use any Materials; or
8.13 attempt to do any of the foregoing in this Section 8, or assist or permit any persons in engaging in any of the activities described in this Section 8.
9. Third-Party Services and Linked Sites. The Service may include links to other websites or services (“Linked Sites”) solely as a convenience to you and other users. The Service may also provide certain tools that enable you to export information, including User Content, to certain Linked Sites. By using those tools, you agree that we may transfer that information to the applicable Linked Sites. These Linked Sites are not under our control, and we are not responsible for their use of your exported information. Furthermore, we make no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
10. Termination and Suspension; Effects of Termination.
10.1 By Dato. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Dato, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
10.2 By You. You may terminate your account at any time through your account settings or by contacting Dato at firstname.lastname@example.org. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
10.3 Effects of Termination. Upon any termination or expiration of these Terms, whether by you or Dato, ANY INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON OR THROUGH THE SERVICE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU and Dato will have no obligation to maintain that information in its databases or to forward that information to you or any third party.
10.4 Survival. Upon any termination of these Terms, any provision that by its nature or express terms should survive will survive the termination or expiration of these Terms, including, but not limited to, Sections 6, 7, and 9 through 20.
11. Feedback. If you provide any comments, suggestions or other feedback to Dato regarding the Service (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Dato to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Dato a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
12.2 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 13 below. All Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
13. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of that change. We may provide that notice by posting on the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Our changed Terms will automatically take effect 60 days after it is made available through the Site. If you do not accept the changed Terms, you may terminate your access to and use of the Service. Your continued use of the Service after the changed Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms. Notwithstanding the foregoing, any disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
14. Ownership; Proprietary Rights. The Service is owned and operated by Dato. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of, or provided or made available on or through, the Service (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials are the property of Dato or our third-party licensors. Except as expressly authorized by Dato, you may not make use of the Materials. Dato reserves all rights to the Materials not granted expressly in these Terms.
15. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Dato and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Dato Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
16. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE ON OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE DATO ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE DATO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED ON OR THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE DATO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
17. Limitation of Liability
IN NO EVENT WILL THE DATO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE DATO ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE DATO ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO DATO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Governing Law. These Terms shall be governed by the laws of the State of Washington without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Dato agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating all disputes.
19. Dispute Resolution and Arbitration
19.1 Generally. In the interest of resolving disputes between you and Dato in the most expedient and cost effective manner, you and Dato agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DATO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19.2 Exceptions. Notwithstanding subsection 18.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
19.3 Arbitrator. Any arbitration between you and Dato will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Dato.
19.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Dato’s address for Notice is: Dato, Inc., 4000 15th Ave NE, Suite 304A, Seattle, WA 98195-2141. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Dato may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Dato shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Dato shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Dato in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
19.5 Fees. In the event that you commence arbitration in accordance with these Terms, Dato will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in King County, Washington, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Dato for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
19.6 No Class Actions. YOU AND DATO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Dato agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
19.7 Modifications. In the event that Dato makes any future change to this arbitration provision (other than a change to Dato’s address for Notice), you may reject that change by sending us written notice within 30 days of the change to Dato’s address for Notice, in which case your account with Dato shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
19.8 Enforceability. If Subsection 18.6 is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 shall be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 shall govern any action arising out of or related to these Terms.
22. Contact Information. The Service is offered by Dato, Inc., located at 936 N 34th St., Suite 208, Seattle, WA 98103. You may contact Dato by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.