Revision July 10, 2025
DDS and Customer (and its Users) shall each retain in confidence all information received from the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party's business. Notwithstanding the foregoing, the restrictions set forth above will not apply to
(i) information previously known to the receiving party without reference to the disclosing party's Confidential Information,
(ii) information which is or becomes publicly known through no wrongful act of the receiving party,
(iii) information that is independently developed by either of the parties, or
(iv) information required to be disclosed pursuant to applicable law. The foregoing shall also not prevent DDS from using Customer data on an aggregate, anonymized basis.
(v) as between Customer and DDS, DDS owns all rights, title, and interest in and to information which does not relate to an identified or identifiable natural person, or personal information rendered anonymous in such a manner that the natural person is not or no longer is identifiable (“Anonymized Data”). Accordingly, DDS may, during the term and thereafter, use, display, transmit, modify and prepare derivative works of Anonymized Data in any media for any lawful purpose, including maintaining and improving the Product.
7. Customer's Representations and Indemnification
Customer represents and warrants that currently and throughout the Term
(i) it is fully authorized to enter into this Agreement and that Customer and any Users are fully authorized to utilize the Products,
(ii) Customer and any Users are and will remain in compliance with all applicable laws and regulations with respect to its and their activities related to this Agreement, including but not limited to privacy laws; and
(iii) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communications (e.g., emails, texts) to such list, or otherwise collects electronic addresses for the purpose of sending electronics messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer and that the content of such communications by Customer will comply with applicable laws and regulations.
Customer shall indemnify, defend, and hold harmless DDS and its officers, employees, agents, and affiliates from and against all losses, expenses, liabilities, damages, and costs including, without limitation, reasonable attorneys' fees (collectively "Costs"), to the extent that such Costs are attributable to any breach by Customer or any User, employee, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement. Customer and each of its Users agree to comply with all DDS policies and all laws, rules and regulations relating to the use of the Products. Any violation of this section may result in loss of features, up to and including termination of Customer’s account. Customer will indemnify DDS for any costs, fines or damages incurred by DDS due to Customer's or its User's failure to comply with this section.
8. Submissions
Customer agrees that any materials that it provides to DDS, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information regarding DDS or the Products, whether such materials are provided in email, feedback forms, or any other format, shall belong exclusively to DDS, without any requirement to acknowledge or compensate Customer.
9. Third-Party Services
Customer may decide to enable, access, or use any Third-Party Services (as defined below). Customer agrees that access and use of such Third Party Services shall be governed solely by the terms and conditions of such Third Party Services, and that DDS is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle data (including Customer’s data) or any interaction between Customer and the provider of such Third Party Services, regardless of whether or not such Third Party Services are provided by a third party that is a member of a DDS partner program or otherwise designated by DDS as “certified”, or “approved” by DDS. Any use by Customer of Third Party Services shall be solely between Customer and the applicable third-party provider. Customer irrevocably waives any claim against DDS with respect to such Third-Party Services. DDS is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services. “Third Party Services” means third party products, applications, services, software, products, networks, systems, directories, websites, databases, and information which one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products.
10. Maintenance activities
It may be necessary for DDS to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Product, which may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. DDS will endeavor to carry out such repairs or maintenance during times that will cause the least disruptions to Customer’s business. Customer shall cooperate, if necessary, to perform maintenance or repair work.
11. Compliance
11.1 Customer agrees to abide by this Agreement and all applicable laws and regulations, including but not limited to Title III of the Americans with Disabilities Act (“ADA”) and New York’s state and city level Human Rights Act, and California’s Unruh Civil Rights Act and Consumer Privacy Act. Customer agrees not to transfer, use or export the services in violation of any laws or regulations of any government or governmental agency.
11.2 In the event that Customer chooses to use the email and/or the SMS features, Customer represents and warrants that Customer has a current relationship with each person to whom an email or text message is to be sent. Customer is solely responsible for ensuring that the email and/or SMS feature(s) are utilized in a manner that complies with local, state, and federal laws, rules and regulations. This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Moreover, Customer represents and warrants that each person to whom an email and/or text message is to be sent has specifically granted Customer permission to do so by whatever technology Customer chooses; and opt-outs are provided pursuant to applicable law, rule or regulation. Customer is responsible for the content and will be identified as the sender of each email and/or text message sent on Customer’s behalf. Customer acknowledges that Customer is responsible for obtaining any and all permissions required to use the email and/or SMS features.
11.3 Customer is solely responsible for compliance with applicable PCI-DSS requirements; DDS has no obligation to assist with PCI-DSS requirements in any way. Any assistance provided by DDS, or by DDS’s employees, contractors, agents, representatives or other related persons, at the request of Customer, is provided without warranty or liability
12. Termination and Suspension
12.1 Termination for Breach. In the event of a material breach of this Agreement by either party, the nonbreaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party's intention to terminate (a "Termination Notice"). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate. Notwithstanding the foregoing, if Customer is in breach of any material provisions of this Agreement, including the license restrictions of Section 3, the payment terms of Section 5, or the confidentiality restrictions of Section 6, then DDS may immediately suspend or terminate Customer's use of the Products. Any such suspension shall not relieve Customer of any of its obligations under this Agreement or entitle Customer to any refund of payments previously made.
12.2 Suspension. DDS may suspend Customer’s access to the Products immediately without notice if DDS, in its sole discretion, believes:
(1) such suspension is required by law;
(2) Customer has breached this Agreement and has not remedied such breach within 15 days of receiving notice of the alleged breach from DDS; or
(3) there is a security or privacy risk to Customer. Any suspension of Customer’s access to the Products will not limit or waive DDS’s rights to terminate this Agreement or Customer’s access to the Products.
12.3 Effect of Termination. Upon termination of this Agreement, Customer shall discontinue its use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by DDS shall not limit Customer's obligation to pay all of the applicable fees, nor restrict DDS from pursuing any other remedies available to it, including injunctive relief. Sections 3, 5, 6, 7, 9-14, and 16-20 shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
12.4 Customer Data. Customer understands and agrees that DDS has no control over the content of the data processed by DDS on Customer’s behalf. Customer is responsible for maintaining appropriate security and protection of customers computing devices, as well as practicing “safe computing” with regards to logins and passwords. Customer is responsible for maintaining backups of data residing on customers computing devices. Customer is responsible for taking its own steps to maintain appropriate security, protection and back-up of its data and software, including the use of appropriate back-up and archiving. Customer remains responsible for properly handling and processing notices regarding the personal data of Customer’s clients. Customer understands and agrees that DDS is not responsible for any loss or corruption of Customer data or other software. Customer agrees that following termination of Customer’s account and/or use of the Product, DDS may immediately deactivate Customer’s account and delete Customer data. Customer further agrees that DDS shall not be liable to Customer nor to any third party for any termination of Customer access to the Product or deletion of Customer data.
13. Limitation of Liability
DDS AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. EXCEPT WITH RESPECT TO
(i) ANY WILLFUL OR DELIBERATE INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF ANY OF DDS', ITS AFFILIATES’ OR SUPPLIERS' INTELLECTUAL PROPERTY RIGHTS, AND (ii)
(ii) CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE DDS TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.
14. Disclaimer of Warranties
CUSTOMER ACKNOWLEDGES THAT
(i) DDS CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS, OR THAT THE PRODUCTS WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, AND
(ii) THE PRODUCTS ARE PROVIDED "AS-IS", ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, AND DDS HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY
(a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
(b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE,
(c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR
(d) STATUTORY REMEDY.
(iii) DDS FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATED TO ANY CONFIGURATION, REPAIR, UPDATE, INSTALLATION OR OTHER WORK DONE ON THE CUSTOMER’S PREMISES BY AN EMPLOYEE, CONTRACTOR, AGENT, OR OTHER THIRD PARTY OF OR UNDER CONTRACT WITH DDS.
15. Assignment and Contractors
Customer may not assign any of its rights or obligations under this Agreement without DDS’ prior written consent. DDS may, without Customer’s prior consent, assign its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. DDS shall be free to perform all or any part of this Agreement through one or more subcontractors.
16. Choice of Law and Jury Trial Waiver
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. In case of any dispute related to this Agreement, the parties agree to submit to personal jurisdiction in the State of Delaware. Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT. Customer agrees to waive any right Customer may have to commence or participate in any class action or representative proceeding against DDS related to any Claim and, where applicable, Customer also agrees to opt out of any class or representative proceedings against DDS.
17. Export Compliance and Other Restrictions
Products which DDS may provide or make available to Customer may be subject to U.S. Export control and economic sanctions laws. Customer agrees to comply with all such laws or regulations as they relate to the access and use of Products. Customer agrees not to access the Product from any jurisdiction in which the provision of the Product is prohibited under U.S. or other applicable laws or regulations (a “Proscribed Country”) or provide access to the Product to any government, entity or individual located in any Proscribed Country. Customer represents, warrants, and covenants that
(i) it is not a national of, or company registered in, any Proscribed Country; and
(ii) it shall not permit third parties to access or use the Product in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions.
18. Severability, Force Majeure, Entire Agreement, Amendment
If one or more of the provisions of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality, and enforceability of the remaining provisions of this Agreement shall be unaffected. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the parties with respect thereto. DDS may amend this Agreement at any time upon reasonable prior notice. Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those set forth in this Agreement shall not be binding on the parties, even if signed and returned, unless expressly stated that such other terms and conditions take precedence over conflicting terms of this Agreement.
19. Miscellaneous
Customer has reviewed, understood, and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution. DDS may provide any and all notices, statements, and other communications to Customer through either email, posting on its Site, or by mail or express delivery service. The provisions of this Agreement shall not be construed against either party by virtue of their authorship. The parties acknowledge that they require that this Agreement be drawn up in the English language, that the English language version prevails, and that any translation is for information purposes only.
20. Provisions Applicable to Specific DDS Products
20.1. DDS OnSite
20.1.1. Users. The DDS OnSite Product may be utilized by additional, specifically identifiable devices accessing such Product (“Users”) as specified in the Subscription. Customer shall be responsible for managing User access to Products.
20.1.2. License to Customer. The DDS OnSite Product is licensed on a per copy per device basis. Customer may install one copy of the DDS OnSite Product on one device. That device is the “licensed device.” Customer may only use one copy of the software on the licensed device at a time. Customer may not transfer the DDS OnSite Product to a third party.
20.2. DDS Retail
20.2.1. Users. The DDS Retail Product may be utilized by additional employees/users on a concurrent-user basis (“Users”) as specified in the Subscription. Customer shall authorize access to and assign unique passwords and user names to the number of Users procured by Customer on the Subscription. User logins are for designated Users and cannot be shared by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names.
20.2.2. License from Customer. Customer hereby grants DDS a royalty-free, limited, nonexclusive right, authorization, and license to use the name, logos, trademarks, copyrights and related intellectual property of Customer, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in this Agreement.
20.3. DDS eCommerce
20.3.1. Users. The DDS eCommerce Product may be utilized by additional users (“Users”).
20.3.2. License from Customer. Customer hereby grants DDS a royalty-free, limited, nonexclusive right, authorization, and license to use the name, logos, trademarks, copyrights and related intellectual property of Customer, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in this Agreement.
20.3.3. Customer’s Site. Customer will retain ownership of the URL and/or domain name applicable to any website utilized by Customer in connection with DDS’s eCommerce Product ("Customer's Site"). Customer agrees to provide an SSL certificate for their website.
20.3.4. Customer's Representations and Warranties. Customer represents and warrants that currently and throughout the Term, Customer and any Users are fully authorized to publish, and authorize DDS to publish, without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Customer's Site, including without limitation, text, logos, photos, and other graphics.
20.4. Hardware
20.4.1. Purchase. If Customer agrees to purchase point-of-sale equipment and supplies (“Hardware”), Customer shall pay the purchase price set forth in the Subscription, including shipping/handling fees, duties, brokerage fees, and any applicable sales, use, harmonized, valued-added or similar taxes. Hardware will be shipped to Customer upon due receipt of payment. All sales of Hardware are final. Customer must verify no later than five (5) business days from receipt of Hardware that shipment was accurate and complete, failing which the Product warranty under this section 20.4 will be inapplicable.
20.4.2. Limited Warranty. In addition to any applicable manufacturer’s warranty, DDS warrants to Customer that new Hardware will be free from defects in workmanship and materials for thirty (30) days from the date that Hardware was shipped to Customer as original end-user (“Warranty Period”). This Limited Warranty is not transferable. During the Warranty Period, DDS may, at its sole option, repair or replace Hardware without charge for either labor or parts. If DDS is unable to repair or replace the Hardware, DDS agrees to refund Customer the net purchase price paid by Customer for the affected Hardware. Hardware must be returned in good condition in the original packaging and include all related components. Charges for returning Hardware shall be for Customer’s account. A restocking fee may also apply.
Following expiration of the Warranty Period, Customer must contact manufacturer for any repairs or replacement and adhere to manufacturer’s merchandise return procedures. The manufacturer’s warranty and contact information are included with Hardware.
DDS’s Limited Warranty does not apply:
(i) to normal wear and tear;
(ii) if the Hardware is opened, tampered with, or repaired by someone not authorized by DDS;
(iii) to any damage attributable to misuse, moisture or liquids, accident, abuse, neglect, or misapplication;
(iv) to physical damage to the surface of Hardware, such as scratches, dents, or other cosmetic changes; or
(v) if used with products or services not provided or licensed by DDS.
20.4.3. Exclusive Remedy. REPAIR OR REPLACEMENT ARE THE EXCLUSIVE REMEDY PROVIDED IN CONJUNCTION WITH THE PURCHASE BY CUSTOMER OF THE HARDWARE. DDS, ON BEHALF OF ITSELF, ITS AFFILIATES, RESELLERS AND DISTRIBUTORS, HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR PURPOSE.
ADDENDUM A – RETAILER/BRAND INFORMATION DISCLOSURE POLICY
In order to facilitate the best possible experience for our retail clients, DDS will enhance its Product with Brand Connectivity by disclosing certain identified Customer Content (i.e., inventory and sales) to Brands that are supplying Product Catalog Data (“Customer Connectivity Data”). Customer may also receive certain confidential and/or proprietary information from certain Brands that elect to disclose such information to Customer, which may include Product Catalog Data (“Brand Information”).
By continuing to access and use the Product, you hereby authorize DDS to disclose certain types or categories of Customer Connectivity Data to Brands supplying Product Catalog Data (collectively, the “Permissions”). The Permissions shall serve as the express authorization of Customer to DDS to disclose the Customer Connectivity Data in accordance with the Permissions and shall serve as Customer’s acknowledgment that any Brand Information disclosed under this policy shall be deemed “Confidential Information” under this Agreement and shall be kept confidential by Customer.
If Customer desires to change or opt-out of these Permissions, it must notify DDS in accordance with the Agreement no later than five (5) business days following Customer’s receipt of notice of this change. DDS is not responsible for any loss, use or disclosure of Customer Content so long as DDS has complied with the Permissions.