DUET SAAS TERMS AND CONDITIONS

(Last updated on May 8, 2019)

These terms and conditions, together with one or more service orders (“Service Orders”) executed by Dashboard Story, Inc. (the “Duet”)and its customers (the “Customer”) governs access to and use of the services offered from time to time by Duet to Customer under this Agreement (the “Services”), provided through any software provided to Customer to access Duet’s services, including mobile applications, updates or patches, utilities and tools or APIs and (the "Software") and Duet’s website (the “Website” and, collectively with the Software, the "Platform").

Duet’s collection and use of personal information in connection with the Services is described in our Privacy Policy, as set forth from time to time at the Website and which is hereby incorporated into these terms and conditions by reference (the "Privacy Policy").

These terms and conditions, together with the Service Orders and the Privacy Policy (the “Agreement”), establish the legal terms and conditions of the agreement between Duet and Customer governing Customer’s use and Duet’s provision of the Platform and Services.

1. Definitions and Construction.

Capitalized terms in this Agreement have the meanings indicated in Section 13 unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms. In this Agreement, unless a clear contrary intention appears (a) “Section” refers to sections of this Agreement; (b) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding that term, and (c) any reference to a consent, determination or other exercise of discretion by Duet, unless expressly provided to the contrary, means a determination or exercise of discretion in Duet’s sole and absolute discretion.

2. Hosted Services; Software.

2.1 Duet will make the Hosted Services available to Customer and its Users pursuant to this Agreement during the Term. Customer agrees that its purchases under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Duet regarding future functionality or features. Customer will be responsible for Users’ compliance with this Agreement.

2.2 Customer will not: (a) sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Services available to any third party other than Users for Customer’s internal purposes; (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Services for any purpose; (c) access or use the Hosted Services in order to build a similar or competitive product or Hosted Service; (d) disclose any review of the Hosted Service to any third party without Duet’s prior written approval; (e) use any e-mail addresses and other User contact information provided on the Hosted Service for marketing or advertising purposes; or (f) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information. Except as expressly stated in this Agreement, no part of the Hosted Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including electronic, mechanical, photocopying, recording, or other means. Customer will make every reasonable effort to prevent unauthorized third parties from accessing the Hosted Services, and notify Duet promptly of any such unauthorized access or use.

2.3 Services may require or allow Users to download Software from Duet or its licensors onto Users’ smartphone, tablet, computer or other device, subject to limitations set forth in the Service Orders. Subject to those limitations, Duet grants to Customer and its Users a non-exclusive, limited license to use Software solely for the purpose stated by Duet at the time Software is made available to Users. If an end user license agreement is provided with Software, Customer’s and the Users’ use of that Software is subject to the terms of that license agreement. From time to time, Duet may provide Customer and Users with updates or modifications to Software. Customer understands that Duet’s introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Hosted Services may vary depending on each User’s computer and other equipment. Customer understands that certain updates and modifications may be required in order to continue use the Software and Hosted Services.

2.4 Neither Customer nor any User may sub-license, or charge others to use or access Software. Neither Customer nor any User may translate, reverse-engineer, reverse-compile or decompile, disassemble or make derivative works from Software. Neither Customer nor any User may modify Software or use it in any way not expressly authorized in writing by Duet.

2.5 Duet will have the right to review and monitor all use of the Platform to ensure compliance with this Agreement. Duet reserves the right, on prior notice to Customer, to audit usage of the Software during normal business hours with reasonable prior notification to verify Customer’s compliance with the terms of this Agreement. Any information reviewed or otherwise received by Duet in the course of an audit pursuant to this Section 2.5 will be deemed Customer’s Confidential Information, provided that Duet will have the right to use that information as reasonably necessary to enforce its rights under this Agreement.

3. Ownership.

3.1 As between the parties, Duet will own and retain all right, title and interest in and to the Hosted Services and Software, including all intellectual property rights. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement. As between the parties, Customer will own all right, title and interest in and to any Customer Data. Customer grants to Duet the non-exclusive, worldwide right to copy, adapt, transmit, communicate, display, distribute and create compilations and derivative works of the Customer Data for the purpose of providing the Hosted Services and to improve or enhance the Hosted Services. This license includes use of Customer Data to compile, use and disclose anonymous, aggregated statistics that include Customer Data, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer’s Users. Customer will be solely responsible for ensuring that Customer has obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. Customer acknowledges and agrees that Customer Data may be transferred outside of the country or other jurisdiction where other customers or users are located. In addition, Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data.

3.2 Customer understands that the Hosted Services are part of a proprietary Duet system, using artificial intelligence which will be trained by Customer Data and Customer hereby grants Duet a limited, royalty-free, non-exclusive, worldwide, license to use the Customer Data during the Term for the purpose of creating Training Data. Duet will own any Training Data created by Duet pursuant to the preceding sentence. The license granted pursuant to the preceding sentence will survive the termination or expiration of this Agreement.

3.3 Duet will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Hosted Services.

3.4 The parties understand and agree that monetary damages will not be sufficient to avoid or compensate for Customer’s use of the Hosted Services or Software other than as authorized under this Agreement, and that injunctive relief would be appropriate to prevent any such actual or threatened use or disclosure.

4. Billing And Payment.

4.1 Except as expressly set forth in the Service Orders, Duet may change its fees for the Hosted Services in its discretion by prior notice to Customer. If the Service Orders expressly provide for fixed fees, those fees will be fixed only during the period specified. Any implementation fees will be due on execution of the applicable Service Order. Duet will invoice Customer monthly during the Term. Duet’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all those taxes, levies, or duties, even if the amounts are not listed by Duet.

4.2 Payment for invoices is due within 15 days of Customer’s receipt of the applicable invoice. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute will be deemed waived. For clarity, Customer remains obligated to pay Duet for all fees when due, regardless of any dispute. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Customer’s ability to access the Hosted Service until payment is made, at Duet’s discretion. Customer will reimburse Duet for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Duet in the collection of overdue amounts.

5. Support.

During the Term, Duet will provide Customer reasonable assistance during California business hours by telephone, e-mail or online chat as specified by Duet to Customer from time to time. Duet will use commercially reasonable efforts to correct at no additional charge any reproducible errors reported by Customer. Duet will have no obligation to provide any modifications to the Hosted Service.

6. Warranties; Limitation of Liability.

6.1 Customer’s Limited Warranties. Customer warrants that (a) this Agreement constitutes the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, (b) neither the execution and delivery of this Agreement nor either party’s performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any domestic or foreign, federal, state or local statute, law (including principles of common law), ordinance, rule, policy, guideline, permit, administrative interpretation, regulation, order, writ, injunction, legally binding directive, judgment, decree or other requirement of any governmental body (“Legal Requirement”) to which Customer may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of this Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Customer.

6.2 Duet’s Limited Warranties. Duet warrants that (a) this Agreement constitutes the legal, valid and binding obligation of Duet, enforceable against Duet in accordance with its terms, (b) neither the execution and delivery of this Agreement nor either party’s performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any Legal Requirement to which Duet may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of this Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Duet, (c) the Hosted Services will operate substantially as described in the applicable Documentation, and (d) any support services provided pursuant to Section 5 will be provided in a workmanlike manner consistent with industry standards.

6.3 Exclusive Remedy. Customer’s sole and exclusive remedy, and Duet’s entire liability, for any breach by Duet of its warranties under this Agreement will be, at Duet’s discretion, either (a) to correct the error that caused the breach, or (b) as applicable, (i) to provide Hosted Services that conform to the warranties, or (ii) to re-perform any support services in a manner conforming to the warranties. If Duet is determines, in Duet’s reasonable discretion, that Duet cannot correct the error or otherwise cure the breach by providing conforming Hosted Services or re-performing support services, as applicable, using commercially reasonable efforts, then Duet may terminate this Agreement and return to Customer any pre-paid fees for any period after termination (but excluding any implementation fees).

6.4 Limited Warranty. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE HOSTED SERVICES, ANY SOFTWARE, OR ANY SUPPORT SERVICES TO BE SUPPLIED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY HOSTED SERVICES OR SOFTWARE, OR THAT USE OF ANY HOSTED SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE HOSTED SERVICES OR SOFTWARE WILL BE CORRECTED, OR THAT ANY HOSTED SERVICES’ OR SOFTWARE’S FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS.

6.5 Limitation of Liability. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY BY WAY OF FEES FOR THE 12-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY.

6.4 No Consequential Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. FOR PURPOSES OF CLARIFICATION ONLY, THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 6.6 IS NOT INTENDED TO AND WILL NOT LIMIT A PARTY’S DUTY TO INDEMNIFY AS SET FORTH IN SECTION 7.

7. Indemnity.

7.1 Indemnification by Duet.

1. (a) Duet will defend, indemnify and hold Customer harmless against any claims made or brought against Customer by a third party alleging that (i) the use of the Hosted Service as contemplated under this Agreement infringes the copyrights, trademarks or trade secrets of that third party, or (ii) Duet failed to comply with applicable Legal Requirements in its performance of this Agreement; provided, that Customer (I) promptly gives written notice of the claim to Duet; (II) gives Duet control of the defense and settlement of the claim (provided that Customer may participate in the defense at its own expense and that Duet may not settle any claim in a manner that admits liability on behalf of Customer); and (III) provides to Duet, at Duet’s expense, reasonable assistance in connection with the defense and settlement of the claim.
2. (b) Duet may, at its sole option and expense (i) procure for Customer the right to continue using the Hosted Service under the terms of this Agreement; or (ii) replace or modify the Hosted Service to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably practicable, Duet may terminate this Agreement and return to Customer any pre-paid fees for any period after termination (but excluding any implementation fees). This Section 7.1 represents Duet’s entire obligation and Customer’s exclusive remedy regarding any third party intellectual property claims.
3. (c) Duet will have no liability for any claim under Section 7.1(a) to the extent liability is the result of (i) modifications to the Hosted Service by anyone other than Duet or its agents (provided that Duet will not be liable if Duet or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives); (ii) the use or combination of the Hosted Service with any other item not provided by Duet where in the absence of that use or combination, the Hosted Service alone would not have given rise to the claim; or (iii) Customer’s continued use of an infringing version of the Hosted Service when the then current version of the Hosted Service has been modified to be noninfringing.

7.2 Indemnification by Customer. Customer will defend, indemnify and hold Duet harmless against any claims made or brought against Duet by a third party based on or arising under (a) any claim the Customer Data or Duet’s transmission or hosting thereof infringes or violates the rights of that third party; (b) any claim Customer’s use of the Hosted Service in violation of this Agreement infringes or violates the rights of that third party (including any liability to the extent resulting from the items set forth in Section 7.1(c)(i) – (iii); (c) the advertising, promotion or marketing of Customer product or service or the services or products that Customer sells or delivers to any User; or (d) any claim Customer failed to comply with applicable Legal Requirements in its performance of this Agreement; provided, that Duet (x) promptly gives written notice of the claim to Customer; (y) gives Customer control of the defense and settlement of the claim (provided that Duet may participate in the defense at its own expense and that Customer may not settle any claim in a manner that admits liability on behalf of Duet); and (z) provides to Customer, at Customer’s expense, reasonable assistance in connection with the defense and settlement of the claim.

8. Term and Termination.

8.1 The term of this Agreement (the “Term”) will begin on the effective date of the first Service Order between Duet and Customer and will remain in effect until terminated in accordance with Section 8.2.

8.2 Either party may terminate this Agreement at any time on notice to the other party. In the event of any termination, Customer will be liable for any payments then due under this Agreement and for services completed in accordance with this Agreement on or before the date of termination.

8.3 At Customer’s request, within 30 days of termination of this Agreement, provided Customer is not in breach of the Agreement, Duet will make available to Customer a file of the Customer Data then in its possession for a reasonable fee. Customer agrees and acknowledges that Duet has no obligation to retain Customer Data and that Customer Data may be irretrievably deleted after 30 days following the termination of this Agreement or if Customer’s account is 30 days or more past due. The following provisions will survive any termination of this Agreement: Sections 1, 2.2, 2.3, 2.4, 2.5, 3, 4, and 6 – 13.

9. Confidentiality and Privacy.

9.1 Each party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other party's Confidential Information without the prior written consent of the other party. A party may disclose Confidential Information to that party’s employees or professional advisors (e.g., accountants, attorneys and financial advisors), affiliates and contractors who have a need to know that Confidential Information and receive it under a duty of confidentiality substantially similar to this Section 9.1. The parties may disclose Confidential Information if required by law so long as the party required to disclose takes reasonable steps available to narrow the required disclosure and obtain protective treatment and notifies the other party, to the extent permitted by applicable law, before disclosure in sufficient time to enable that party to seek protective treatment.

9.2 Notwithstanding anything to the contrary in this Agreement, (a) Duet’s obligations regarding Customer Data and identification and other information concerning Users will be governed by the Privacy Policy; and (b) to the extent Duet collects personal information of consumers under the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., as amended from time to time (the “CCPA”), (i) Duet will delete the consumer’s personal information from Duet’s records if directed by Customer, subject to any applicable exceptions set forth in the CCPA, (ii) Duet will not retain, use, or disclose the personal information for any purpose other than for the specific purpose of performing the services specified in this Agreement for Customer, or as otherwise permitted by the CCPA, including retaining, using, or disclosing the personal information for a commercial purpose other than providing the services specified in this Agreement, provided that the parties understand and agree that Duet’s creation, retention and use of Training Data pursuant to Section 3.2 will not violate this Section 9.2(b).

10. Customer’s Responsibilities.

10.1 Customer will provide the requirements set forth in the applicable Service Orders. Customer will comply with all applicable Legal Requirements in connection with its use of the Hosted Service, including those related to vehicle and driver licensing and safety, insurance, driver background check, road safety, data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Duet controls and operates the Hosted Services. Customer will ensure that any use of the Hosted Services by Customer’s Users is in accordance with the terms of this Agreement. It is the responsibility of Customer to provide, prepare and maintain a system environment in which the Software is to be installed and from which the Hosted Service are to be accessed, as applicable, in conformance with the Documentation provided by Duet from time to time. Except as set forth in any Service Order, Duet is not responsible for the set-up and installation of Software. If Customer wishes Duet to provide set-up and installation services and Duet wishes to provide those services, the parties may enter into a separate agreement to govern those services.

10.2 To enable Customer to access the Platform, Duet will provide Customer with access credentials. Customer will not provide or disclose its access credentials to any third party and will be solely responsible for maintaining the strict confidentiality of its access credentials at all times. Customer will use only its access credentials and not the access credentials of any third party. Customer will notify Duet immediately of any use of Customer’s access credentials by any third party. Duet will have no liability for any loss that Customer incurs as a result of third party’s use of Customer’s access credentials, whether with or without Customer’s knowledge or consent. Customer will be liable for any losses incurred by Duet or its affiliates due to third-party use of Customer’s access credentials.

11. Professional Services.

To the extent any Service Order provides for professional services by Duet for Customer, the following terms apply with respect to those Services except as otherwise provided in the applicable Service Order:

11.1 Customer will pay Duet for the time of its personnel at Duet’s standard rates and will reimburse any out-of-pocket expenses incurred by Duet in providing the Services. If the Service Order contains or provides for a quotation for the Services, that quotation will be an estimate only and will not affect this Section 11.1, unless the Service Order specifically provides otherwise.

11.2 Duet will invoice Customer for fees and expenses pursuant to Section 11.1 on a monthly basis and Customer will pay such invoices within 30 days.

11.3 Any deliverable provided to Customer by Duet in the performance of the Services (each, a “Deliverable”) shall be presumed accepted on the date that is the earlier of (a) two business days after Customer’s receipt of the Deliverable, and (b) Customer’s written acceptance. Any rejection of a Deliverable must be based upon material failure to conform to the written pecifications set forth in the Service Order and must be specific, reasonable and in writing.

11.4 Customer will provide all information reasonably requested by Duet and will reasonably cooperate with Duet and make available relevant Customer personnel to facilitate provision of the professional Services.

11.5 All right, title and interest in and to any work product and any intellectual property rights included or embodied therein are and will remain the sole and exclusive property of Duet, subject only to Customer’s underlying rights in materials and content delivered by Customer to Duet (“Customer Content”), provided that (a) Customer grants to Duet a nonexclusive, worldwide and royalty-free right and license, including the right of sublicense, to modify and edit any Customer Content, as well as, to combine, and create derivative works of, any Customer Content with other content and materials for the sole purposes of providing the professional Services and a non-exclusive, worldwide and royalty-free right and license, including the right to sublicense to use Customer Content, to the extent incorporated or embodied in the work product, for Duet’s use of the work product for any purpose whatsoever (whether in provision of professional Services or otherwise) subject to the requirements of Section 9, and (b) Duet grants to Customer a non-exclusive, worldwide, nonsublicensable and royalty-free right and license to use the work product solely as expressly contemplated by the Service Order.

12. General Provisions.

12.1 Either party may include the other’s name and logo in Customer or vendor lists.

12.2 The validity and enforceability of this Agreement, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of California, including its statutes of limitations, but without regard for conflicts of law principles.

12.3 Binding, confidential arbitration pursuant to this Section 12.3 will be the only remedy for any dispute or claim of any kind, including third-party claims arising under, concerning, or relating to this Agreement, its interpretation, its validity (including any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, whether sounding in contract, tort, equity, statutory law, administrative regulation or otherwise (a “Claim”). Any Claim, will be resolved in a confidential expedited arbitration administered by the JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (a copy of which can be found here: https://www.jamsadr.com/rules-comprehensivearbitration) (the “Rules”) then in effect. For purposes of clarification, the parties understand and agree that (a) Section 12.2 will apply to any arbitration under this Section 12.3, both as to the governing law to be applied by the Arbitrator to the Claim and as to the law governing the arbitration and the interpretation of this Section 12.3, and (b) the Federal Arbitration Act, 9 U.S.C. §§ 1-16, will also apply to any arbitration under this Section 12.3 by virtue of Article VI, Clause 2 to the United States Constitution. If there is more than one Claim between the parties, all such Claims may be heard in a single arbitration under this Section 12.3. Except to the extent required by Legal Requirements that cannot be waived or modified by this Agreement, Claims under this Agreement may not be consolidated into a single arbitration proceeding with claims between Duet and other persons, even if those claims are governed by an arbitration proceeding similar or identical to this Section 12.3 and even those other persons are similarly situated and their claims are similar or identical in the nature to a Claim under this Agreement, provided that nothing in this sentence will be interpreted to prevent the Arbitrator from granting public injunctive relief in conformance with applicable Legal Requirements. Any Claim submitted to arbitration will be decided by a single, neutral arbitrator (the “Arbitrator”) mutually agreed by the parties or, if they cannot agree within 15 business days of the commencement of arbitration, in accordance with the Rules. The Arbitrator must be qualified as a California attorney who has at least ten years of prior combined professional experience either as a judge or in private practice as a business or commercial litigator. Any arbitration hearings or conferences pursuant to this Section 12.3 will be conducted exclusively by means of conference telephone or other communications technology, as reasonably determined by the Arbitrator, by means of which all persons participating in those hearings or conferences can hear each other, and neither the Parties, the Arbitrator or any attorneys, witnesses or other representatives of the Parties will be required to be physically present in any particular place for purposes of any hearing or conference unless the Arbitrator determines that a physical hearing is necessary to effectively arbitrate the Claim, in which case that physical hearing will be in a location selected by the Arbitrator to be reasonably convenient to the parties and the Arbitrator. The Arbitrator will have the exclusive power to adjudicate the alleged breach, enforcement, interpretation or validity of this Agreement, including as to the scope or applicability of this arbitration clause. Discovery within the arbitration will be as the Arbitrator determines is reasonable or necessary for the fair and efficient arbitration of the Claim. All JAMS fees and costs will be borne equally by the parties, except that in rendering the award, the Arbitrator will allocate and award an appropriate share of the prevailing party’s reasonable attorneys’ fees and costs, to the losing party. Judgment on any arbitration award may be entered and enforced by any court of competent jurisdiction. EACH PARTY EXPRESSLY AGREES AND UNDERSTANDS THAT BY AGREEING TO ARBITRATION, IT IS WAIVING THE RIGHT TO A JURY TRIAL OR TO A CIVIL ADMINISTRATIVE TRIBUNAL.

12.4 Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (a) either party may assign this Agreement in its entirety to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity; and (b) Duet may assign its rights and obligations relating to implementation of the Hosted Service to an Affiliate or partner. Any attempted assignment in breach of this section will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. This Agreement is entered into by the parties for the exclusive benefit of the parties and their successors and permitted assignees. The Agreement is expressly not intended for the benefit of any other person. No third party will have any rights under this Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions, whether written or oral, and will not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of this Agreement.

12.5 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then those provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Duet and Customer as a result of this Agreement or use of the Hosted Services. Duet reserves the right to use third-party providers in the provision of the Hosted Services and Duet will be responsible for the acts or omissions of those third parties. Neither party will be liable to the other for any delay or failure to perform under this Agreement (excluding payment obligations) due to circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving that party’s employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within that party’s possession or reasonable control, and denial of service attacks. Any notice required or permitted under this Agreement will be given in writing by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e mail, , in each case addressed to the party to which the notice is provided at the address or e mail address indicated in the Service Orders or at another address or e mail address designated by the party by notice from time to time to the other party. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e mail address. The actual receipt by the addressee of any written notice will constitute notice under this Section 12.5 notwithstanding the failure to have complied with any provisions of this Section 12.5. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of that right or provision unless acknowledged and agreed to by that party in writing. Except for payment obligations, if either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the party invoking this provision, including acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), that party’s performance will be excused and the time for performance will be extended accordingly provided that the party promptly takes commercially reasonable steps to resume full performance. Any rights not expressly granted in this Agreement are reserved by Duet.

13. Definitions.

"Affiliate" means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.

"Confidential Information" means all information disclosed to a party by the other party during the Term, whether in writing, electronically or orally (including third-party information held by the disclosing party under a duty of confidentiality), and that is either designated by the disclosing party as confidential in writing or is of a nature that a reasonable person would understand to be confidential. Confidential Information does not include information (a) known to the receiving party before its receipt from the disclosing party without a limitation or obligation of confidentiality, (b) independently developed by the receiving party without use of any Confidential Information; (c) in the public domain at the time of disclosure or otherwise, other than as a result of disclosure by the receiving party; or (d) received from a third party with a legal or contractual right to disclose that information or data to the receiving party, provided that third party had no duty to keep that information confidential and that the receiving party did not (and was not required to) agree to keep that information confidential.

"Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Customer Data" means any data, information or other materials submitted by Customer to the Hosted Service.

"Dispute Period" means 15 days from receipt of invoice.

"Documentation" means Duet’s then current on-line help, guides, and manuals published by Duet and made generally available by Duet for the Hosted Services. Documentation will include any updated Documentation that Duet provides from time to time.

"Hosted Services" means the services described in the Service Orders, including updates to those services from time to time.

"Training Data”" means improvements in semantic understanding of the Hosted Service (including vocabulary and natural language understanding) resulting from the processing of Customer Data from which individual User identities have been removed and that is not linked or reasonably linkable to any User or household.

"Users" means individuals who are employees or service providers of Customer and who are authorized by Customer to use the Hosted Services for Customer’s internal purposes, including employees administering Customer’s services and drivers of vehicles.

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