Terms of Service
BETA EVALUATION TERMS
PLEASE READ THESE BETA EVALUATION TERMS (“TERMS”) CAREFULLY BEFORE USING THE BETA SERVICES OFFERED BY DURO LABS, INC. (“DURO”). BY MUTUALLY EXECUTING ONE OR MORE EVALUATION ORDER FORMS WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT OR FOR WHOM WHO ARE USING THE BETA SERVICES (“CLIENT”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THIS “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. You represent and warrant that you have full legal authority to enter into this Agreement, under all applicable laws and on behalf of Client. If the terms set out herein are considered an offer, acceptance is expressly limited to these terms. UPON MUTUAL EXECUTION, EACH ORDER FORM SHALL BE INCORPORATED INTO AND FORM A PART OF THIS AGREEMENT.
The parties agree as follows:
BETA SERVICES
- Beta Services. Subject to the terms and conditions of this Agreement, Duro shall provide Client with the services set forth in the Order Form (the “Beta Services”)
- License Grant. Subject to the terms and conditions of this Agreement, Duro grants Client a limited, nonexclusive, nontransferable license during the Term, to access and use the Beta Services, solely for Client’s internal testing and evaluation purposes. All rights not expressly granted to Client are reserved by Duro and its licensors. Client shall not use the Beta Services for any commercial purposes under this Agreement. Client acknowledges that the Beta Services are experimental in nature, may have limited features, functions, or other limitations of any kind, may not be functional or may not operate correctly; and may be modified from time to time without notice.
- Use Restrictions. Client shall not (and shall not permit anyone else to) directly or indirectly: (a) modify, reverse engineer, decompile, or disassemble the Beta Services, or otherwise attempt to derive or access source code (or the underlying ideas, algorithms, structure or organization) from the Beta Services (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (b) encumber, lease, rent, timeshare, loan, sublicense, transfer or distribute any Beta Services; (c) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify the Beta Services; (d) use the Beta Services, or allow the transfer, transmission, export or re-export of all or any part of the Beta Services, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction; (e) use the Beta Services to infringe any third-party intellectual property or other proprietary rights; (f) use the Beta Services to develop, train or improve any artificial intelligence or machine learning model (“AI Models”); (g) represent, by any act or omission, that any results of the Beta Services or such result’s accuracy, quality, integrity, legality, reliability, appropriateness has been reviewed or approved by Duro in any manner; (h) use the Beta Services for any purpose other than for internal evaluation of the Beta Services; or (i) remove, obscure or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels in the Beta Services.
OWNERSHIP
- Duro Intellectual Property. As between the parties, Duro owns and retains all rights, title, and interest, including all related Intellectual Property Rights (as defined below), in the Beta Services, and any technology, AI Models, platforms, templates, materials or software used to provide the Beta Services (collectively “Duro IP”). Client hereby irrevocably assigns to Duro any rights, title and interest, including all related Intellectual Property Rights, in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Beta Services. This Agreement does not transfer ownership rights of any kind in the Beta Services, or any related materials to the Client or any third party. "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
- Aggregated Anonymous Data. Client acknowledges and agrees that Duro may freely create, use, retain and make available Aggregated Anonymous Data (as defined below) for Duro’s business purposes (including, without limitation, for purposes of improving, testing, training, configuring, operating, promoting and marketing Duro’ products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Duro in connection with Client’s or its users’ access or use of the Beta Services, but only disclosed in aggregate, anonymized form which can in no way be linked specifically to Client or its users. Any Aggregated Anonymous Data and derivatives thereof, in whole or in part, are the sole and exclusive property of Duro.
- Usage Data. Duro may collect, retain and use during and after the Term, usage data that is derived from the operation of the Beta Services, including patterns identified through the use of the Beta Services and data regarding the performance of the Beta Services (“Usage Data”), which such Usage Data will not contain Client Data. Duro is free to use Usage Data for any lawful purpose, including to develop and improve the Beta Services, including Duro AI Models.
- Errors. Client shall notify Duro by e-mail to the contact designated by Duro in the Order Form promptly upon the discovery of a material error or difficulty in respect to use of the Beta Services. Duro may in its sole discretion attempt to resolve such error, but shall be under no obligation to do so.
CLIENT DATA
As between the Parties, all information, data, and content provided by the Client (“Client Data”) are the sole and exclusive property of Client. Client grants Duro a nonexclusive, worldwide, royalty-free, sublicensable license to use, copy, display, modify, transcribe, translate, reproduce, distribute, make derivative works, and process Client Data for the purpose of fulfilling Duro’s obligations and exercising Duro’s rights under this Agreement. Client, not Duro, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data. Client represents and warrants that it has all rights necessary to provide the Client Data to Duro as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Duro is not responsible for the availability or operation of any Beta Services to the extent such availability or operation is dependent upon Client Data. Duro is not obligated to back up any Client Data, and Client expressly agrees that Duro shall not be responsible (and will not be liable) for any accuracy, damage, loss, modification, deletion or destruction of Client Data.
CLIENT RESPONSIBILITIES
- General. Client is responsible for all activity occurring under its accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations (collectively, “Applicable Law”) in connection with Client’s use of the Beta Services. Client shall notify Duro immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Beta Services. Duro will have no obligation to insure or be responsible for any loss or damage to property of any kind owned or leased by Client or its employees, contractors, and agents. Upon any termination or expiration of this Agreement, Client, upon request, will confirm removal of all Duro IP and Duro Confidential Information from all Client systems.
- Obligations. Client shall comply with the Client Obligations section set forth in the Order Form.
- Third Party Integrations. Client acknowledges and agrees that the Beta Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Integrations”), including without limitation through integrations or connectors to such Third Party Integrations that are made available by Duro. Duro is not responsible for the operation of any Third Party Integrations nor the availability or operation of the Beta Services to the extent such availability and operation is dependent upon Third Party Integrations. Client is solely responsible for procuring any and all rights necessary for it to access Third Party Integrations (including any Client Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Duro does not make any representations or warranties with respect to Third Party Integrations or any third party providers. Any exchange of data or other interaction between Client and a third party provider is solely between Client and such third party provider and is governed by such third party’s terms and conditions.
CONFIDENTIALITY
Except as expressly provided in this Agreement, each Party shall not possess, access, use or disclose any of the other Party’s Confidential Information (as defined below) except to perform its obligations or exercise its rights under the Agreement. Each Party shall use reasonable care to protect the other Party’s Confidential Information, but in no event less care than it employs in protecting its own Confidential Information. Each Party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing Party’s request at any other time), each Party shall return or destroy all of the other Party’s tangible Confidential Information. The restrictions herein will not prevent either Party from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Confidential Information; provided that such Party promptly notifies the disclosing Party upon learning of any such legal requirement, and cooperates with the disclosing Party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency. “Confidential Information” means all financial, business or technical information that is disclosed by or for a Party in relation to this Agreement (including all copies and derivatives thereof) and which are marked or otherwise identified as proprietary or confidential at the time of disclosure, or which by their nature would be understood by a reasonable person to be proprietary or confidential but not including any information that a receiving Party can demonstrate is provided by a third party without breach of any obligation to the disclosing Party, is generally available to the public without breach of this Agreement or is independently developed by it without reliance on such information. All benchmarking and performance information relating to the Beta Services shall be Duro’s Confidential Information.
FEES AND PAYMENT
- Fees; Payment. Client shall pay Duro the fees for the Beta Services, if any, as set forth in the Order Form (“Fees”). Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. All Fees must be paid prior to commencement of the Beta Services.
TERM AND TERMINATION
- Term; Termination. The term of this Agreement shall be for the evaluation period defined on the Order Form (the “Term”). Following the Term, Client may have an option to enter into a full enterprise agreement as determined by the mutual agreement of the parties. Either party may terminate this Agreement upon written notice delivered to the other party at any time, for any reason or no reason.
- Rights on Termination. Duro has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Beta Services. Upon expiration or earlier termination of this Agreement all rights granted to Client under this Agreement shall immediately cease. Client shall immediately discontinue use of the Beta Services and, without limiting Client’s obligations under Section 5, Client shall delete, destroy, or return all copies of Duro IP and certify in writing to Duro that the Duro IP has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.
- Survival. This Section 7.3 and Sections 2, 3, 5, 6, 7.2, and 8-11 and all outstanding payment obligations will survive termination or expiration of this Agreement.
WARRANTY DISCLAIMERS
TO THE FULLEST EXTENT PERMITTED BY LAW, DURO HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE BETA BETA SERVICES, ANY RESULTS OF THE BETA SERVICES OR ANY ACTION OR OMISSION BY CLIENT OR ANYONE ELSE BASED ON THE USE OF THE BETA SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. DURO AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE BETA SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (II) THE BETA SERVICES OR ANY RESULTS OF THE BETA SERVICES WILL MEET REQUIREMENTS OR EXPECTATIONS, OR (III) THE BETA SERVICES OR ANY RESULTS OF THE BETA SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS SET FORTH ABOVE, THE BETA SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. WITHOUT LIMITING THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT THE BETA SERVICES OPERATE ON AI MODELS (INCLUDING, WITHOUT LIMITATION, THIRD PARTY ARTIFICIAL INTELLIGENCE-POWERED TOOLS (“THIRD PARTY AI MODELS”)) AND DURO DOES NOT TEST, VERIFY, ENDORSE OR GUARANTEE TO BE ACCURATE, COMPLETE OR CURRENT ANY SUCH BETA SERVICES OR ANY RESULTS OF THE BETA SERVICES. DURO DOES NOT CONTROL OR INFLUENCE THE TRAINING OR HOSTING OF ANY SUCH THIRD PARTY AI MODELS. CLIENT SHOULD INDEPENDENTLY REVIEW AND VERIFY ALL RESULTS FROM THE BETA SERVICES AS TO APPROPRIATENESS FOR ANY OR ALL CLIENT USE CASES OR APPLICATIONS. RESULTS FROM THE BETA SERVICES MAY NOT BE USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR INFORMATION.
LIMITATION OF LIABILITY
IN NO EVENT SHALL DURO’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE TO DURO IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM. IF THE CLAIM ARISES UNDER AN ORDER FORM WHICH DOES NOT INCLUDE A FEE OBLIGATION, THEN IN NO EVENT SHALL DURO’S AGGREGATE LIABILITY EXCEED ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL DURO AND/OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE BETA SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE BETA SERVICES, EVEN IF DURO OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ASSIGNMENT
Neither party may assign this Agreement to any third party except upon prior written consent, not to be unreasonably withheld. Duro may assign this Agreement without consent to an acquirer of all or substantially all of its assets or business to which this Agreement relates. Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective successors and assigns.
MISCELLANEOUS
If any provision of this Agreement is held by a body of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. This Agreement is intended for the sole benefit of Duro and Client and shall not be construed for the benefit of any third party. Duro shall not be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including any natural cause, act of God or public enemy, act of any military, civil or regulatory authority, change in any law or regulation, disruption or outage in communications, power or otherwise, or failure to perform by any supplier or other third party. No joint venture, partnership, employment, or agency relationship exists between Client and Duro as a result of this Agreement. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any modification or amendment of this Agreement shall be in writing signed by the parties. This Agreement comprises the entire agreement between Client and Duro regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. This Agreement shall be governed by and construed under the laws of the State of California without regard to the conflicts of law provisions thereof. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, shall be finally settled by binding arbitration in the County of Los Angeles, California, United States pursuant to the applicable Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect by a single JAMS arbitrator with substantial experience in resolving complex commercial contract disputes. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will apply California law to the merits of any dispute or claim, without reference to rules of conflict of law, and shall have the authority to award any and all available remedies, including legal and equitable relief. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Client hereby consents to the arbitration in the State of California in the county of Los Angeles.