Duda eCommerce Terms

Last Updated: December 2022

This Duda Native eCommerce Agreement (“eCommerce Agreement”) is entered into by and between Duda, Inc. on behalf of itself and its subsidiaries (collectively, “Duda”, “we”, “us”, “our”) and you (if you are an individual or sole proprietorship) or the legal entity you are acting on behalf of, that offers products and/services using the Duda Platform (“Company”, “You”, “Your”). This eCommerce Agreement is effective as of the date You access the native eCommerce payment solution provided by Duda to enable your Customers to sell products and services to End Users (the “Payment Solution”). By using the Payment Solution you indicate your acceptance to be bound by the terms of this eCommerce Agreement. Duda and You may be described herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined shall have the meaning given such terms in the Company Contract (as defined below).

This eCommerce Agreement is in addition to Your Company Contract, Duda’s Privacy Policy, and the applicable Processor Terms, which are all incorporated herein by reference (together, and collectively with this eCommerce Agreement, “Agreement”).

By using the Payment Solution You represent and warrant that:

1. You have read and agree to be bound by all the terms and conditions of the eCommerce Agreement, the Payment Processor Terms (as defined below);
2. If You are entering into this eCommerce Agreement on behalf of an entity, You have the authority to bind such entity to the eCommerce Agreement;
   You are 18 years or older and
3. You are not party to any agreement that conflicts with or restricts you from entering into or performing your obligations under this eCommerce Agreement or any part thereof.

You understand that we may, at any time and without prior notice to You and in our sole discretion, modify suspend, restrict or disable your access or discontinue the Payment Solution at any time. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Payment Solution, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses (except where prohibited by applicable law).

1. Definitions

1. “End Users” means the customers of Your Clients that use the Payment Solution to facilitate payments.
2. "Operating Regulations" means the rules, by-laws, operating regulations, terms and conditions, guidelines, policies and procedures of any Payment Network or other payment methods used to process any Transaction, as any or all of the foregoing may be amended and in effect from time to time.
3. “Payment Networks” means credit card payment networks and/or digital wallets including, but not limited to, Visa, Mastercard, American Express, and/or Discover.
4. “Payment Processor” means the entity that will process the payment instructions from the Payment Solution as may be changed in accordance with the terms hereof.
5. “Payment Processor Privacy Policy” means the privacy policy designated by the applicable Payment Processor.
6. “Payment Processor Services” means the acceptance and processing of Transactions, transaction reporting, settlement of funds and other services provided by the Payment Processor.
7. “Payment Processor Terms” mean the terms designated by the applicable Payment Processor and any terms incorporated therein.
8. “Reversed Transactions” are Transactions which have been canceled due to a dispute, refund, or reversal.
9. “Transactions” means payments from End Users or Clients using the Payment Solution.

2. Payment Solution Details

1. Duda currently uses Stripe, Inc. as the Payment Processor to facilitate the Payment Solution. By using the Payment Solutions you acknowledge and agree to comply with Stripe’s Connected Account Agreement available https://stripe.com/legal/connect-account which are incorporated herein by reference. The Stripe Privacy Policy is available here: https://stripe.com/privacy. By accepting this eCommerce Agreement, you agree that you have reviewed and agreed to the Stripe Terms of Service, the Privacy Policy, and any other Payment Processor Terms.
2. Duda is not a party to the Payment Processor Terms and is not liable to You, Your Clients, or their End Users with respect to the Payment Processor Services, which are provided solely by the Payment Processor. All dealings are solely between the respective parties, and Duda makes no representations or warranties on behalf of You, Your Clients, the End Users, or the Payment Processor, their affiliates, and the acquiring bank.
3. Duda may, subject to Applicable Law, replace the Payment Processor or use an alternate Payment Processor to accommodate a particular use case. In such event, we will send You notice of the alternate or replacement Payment Processor’s terms to the email contact information You provide. By continuing to use the Payment Solution after notice of a replacement Payment Processor you are representing and warranting that you have read the terms of such replacement Payment Processor and agree to them. If You do not accept the alternate Payment Processor terms, you are not authorized to use the Payment Solution.
4. Authorization. You fully authorize Duda to provide instructions to the Payment Processor regarding Transactions, request changes to the set up on Your behalf, and complete anything else necessary to enable the Payment Solution.

3. Registration & Company Information

1. Registration. Upon connecting to the Payment Solution, You must register and provide any and all Company Information required by Duda or the Payment Processor. By registering, You authorize Duda to take any action together with the Payment Processor in order for You to use the Payment Solution.
2. All Company Information and documentation You provide in connection with the Payment Solution must be complete, up to date, and accurate. You are solely and fully liable for the accuracy, consistency and completeness of the Company Information and all other information provided by You or on Your behalf in connection with the Payment Solution.
3. Your Information. Your Company Information and any other Personal Data is subject to the Payment Processor Privacy Policy, and, in the event any such information is provided to Duda, Duda’s Privacy Policy. You expressly acknowledge and agree that Duda may share information provided by You, including Your Company Information, Personal Information, and information related to Transactions, to the Payment Processor and/or any affiliates.
4. Duda has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded to the Payment Solution.

4. Your Obligations, Representations, and Warranties

1. Duda has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded to the Payment Solution.
2. You will enter into an agreement with Your Client that contains any required terms necessary to comply with this eCommerce Agreement. Such terms shall, at a minimum, contain a warranty disclaimer, an obligation to comply with Applicable Law, any terms required by the Payment Processor, and a method of redress for Your Clients and their End Users to issue complaints regarding the Payment Solution to a party other than Duda. As between You and Duda, You are solely responsible for all Transactions, including Reversed Transactions. Duda is not responsible for any Reversed Transactions, and You shall be liable for the Reversed Transaction amount and all related costs such as fines, services fees, penalties and/or expenses associated with the Reversed Transactions.
3. Use best efforts to ensure that the instructions that You provide to Duda and/or the Payment Processor regarding Transactions are accurate and complete.
4. You further warrant and represent that:
1. Your use of the Payment Solution is in compliance with Applicable Laws, including without limitation, applicable export or import controls and regulations and sanctions.
2. You and the legal entity You represent are authorized to conduct business in the jurisdictions in which You operate;
3. You are not a resident of any country embargoed by the United States, nor are You subject to any other trade sanctioning regulations; and
4. You shall act in accordance with any applicable Operating Regulations and your contracts with your Customers shall require that they comply with all Operating Regulations.

5. Fees & Payments

1. Your use of the Payment Solution is subject to Your payment of the fees and charges set forth in Your Contract or as otherwise agreed between the parties (“eCommerce Fees”). You understand that the eCommerce Fees may be amended in accordance withYour Order Form or as otherwise agreed between the parties. The eCommerce Fees will be billed in accordance with the payment terms in Your Contract.

6. Modifications

1. These eCommerce Terms may be altered, modified or changed by Duda, from time to time, at Duda’s discretion. If any such changes meaningfully impact Your rights, Duda shall provide You with reasonable notice, as described below
2. Duda will notify You of such changes at least seven (7) Business Days before such modification. “Business Days” means Monday through Friday, except for holidays observed by Duda. Any of the following methods of notice (“Change Notice”) is considered sufficient notice to You of a modification to the Program or the Agreement:
1. Email notification to the email address provided during registration;
2. Notification on Duda’s website of a change notice of the eCommerce Agreement.
3. The changes will be effective seven (7) Business Days after the Change Notice is provided (unless Duda provides a longer notice period).
4. If any modification is unacceptable to You, Your sole recourse shall be to terminate the eCommerce Terms prior to the date when the change is to take effect. Your continued use of the Payment Solution following posting of a Change Notice will constitute binding acceptance of such change.

7. Term and Termination

1. Term and Termination. The eCommerce Agreement shall be effective as of the date You access the Payment Solution, and shall remain in effect until terminated: (a) by either Party upon three (3) days’ prior written notice to the other Party; or (b) as otherwise set forth herein.
2. Material Breach. In the event you breach the terms of this eCommerce Agreement, Duda may, at Duda’s discretion, terminate this Agreement and Your access to the Payment Solution.
3. Inactivity. If Your account remains inactive, or if Your Company Contract with Duda terminates, Duda may immediately terminate this eCommerce Agreement and Your access to the Payment Solution.
4. Payment Processor Termination. If You disconnect Your account with the Payment Processor or if Your relationship with the Payment Processor is otherwise terminated, Duda may immediately terminate this eCommerce Agreement and Your access to the Payment Solution.
5. Company Contract Termination. This eCommerce Agreement shall terminate immediately upon termination of Your Company Contract.
6. Termination Obligations. Upon termination of the eCommerce Agreement for any reason, (i) You shall immediately cease Your use of the Payment Solution; (ii) Duda may, but is not obligated to, delete all Your information; (iv) all Payment Solution services shall terminate, including any such services connected with Your Clients Sites; and (iv) Duda will not be liable to You, Your Clients, or any End Users for any compensation, reimbursement or damages. Payment Processor is responsible for any amounts that are outstanding as of the date of termination
7. Survival. Any provision of the eCommerce Agreement that contemplates performance or observance subsequent to termination or expiration of the Agreement (including, without limitation, confidentiality, limitation of liability and indemnification) will survive termination or expiration of the eCommerce Agreement and continue in full force and effect thereafter.

8. Duda’s Representations and Warranties; Disclaimers

1. Duda Representations and Warranties. Duda represents and warrants that:
1. it has all necessary right, power and authority to enter into and perform the eCommerce Agreement;
2. its performance under the eCommerce Agreement does not and will not violate or cause a breach of the terms of any other agreement to which it is a party.
2. DISCLAIMER. THE PAYMENT SOLUTION, AND ALL RELATED INFORMATION, MATERIALS, SERVICES AND TECHNOLOGY PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF DUDA HEREUNDER ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DUDA MAKES NO WARRANTY THAT: (A) IT WILL CONTINUE TO OPERATE THE PAYMENT SOLUTION, (B) THE PAYMENT SOLUTION WILL BE ACCESSIBLE WITHOUT ERROR OR INTERRUPTION; OR (C) THE PAYMENT SOLUTION WILL BE FREE FROM ERRORS, DEFECTS, OR DESIGN FLAWS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DUDA DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. DUDA SHALL NOT BE RESPONSIBLE FOR ANY FAULTS, DELAYS, OR INTERRUPTIONS IN THE PAYMENT SOLUTION.
4. DUDA SHALL HAVE NO LIABILITY WITH RESPECT TO THE CUSTOMERS, THE CLIENTS, THE END USERS , AND/OR THE CUSTOMERS’ PRODUCTS AND SERVICES AND ANY TRANSACTIONS ENTERED INTO BY SUCH PARTIES. DUDA SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED, FRAUDULENT, ILLEGAL, IMPROPER OR ERRONEOUS USE OF THE PAYMENT SOLUTION. DUDA WILL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN CONNECTION WITH ANY ACT OR OMISSION OF THE PAYMENT PROCESSOR AND/OR THE PAYMENT NETWORKS.

9. Indemnification

1. You shall defend, indemnify and hold harmless Duda, and their officers, directors, employees, agents, representatives and personnel (“Duda Indemnitees”) from and against any and all third party claims, demands, judgments, liabilities, losses, and causes of action of any third parties, and any costs (including reasonable attorneys’ fees) associated therewith, to the extent arising out of or related to the following (collectively, “Indemnified Claims”):
1. Your breach of any representation, warranty, or obligation under this eCommerce Agreement;
2. Any inaccurate, incomplete or out of date Company Information;
3. Any actions taken by Duda or its service providers in accordance with information or instructions provided by You;
4. the gross negligence or willful misconduct of You or Your employees or agents;
5. Any claim by a Client or any obligation owed to any Client by You;
6. Any claims with respect to Reversed Transactions. and all related costs such as fines services fees, penalties and/or expenses associated with the Reversed Transactions; or
7. Gross negligence, fraud, or willful misconduct on the part of You or any of Your officers, directors, employees, representatives or services providers.
2. Duda will (at Your sole expense) reasonably cooperate to facilitate the settlement or defense of an Indemnified Claim. You are solely responsible for defending any Indemnified Claim against a Duda Indemnitee, subject to such Duda Indemnitee’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Indemnified Claims against a Duda Indemnitee; provided however, that You will not agree to any settlement that imposes any obligation or liability on a Duda Indemnitee without such Duda Indemnitee’s prior express written consent.

10. Limitation of Liability

1. EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, AND YOUR INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS:
2. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ECOMMERCE AGREEMENT.
3. IN NO EVENT SHALL DUDA BE LIABLE TO YOU UNDER THIS ECOMMERCE AGREEMENT IN AN AMOUNT THAT EXCEEDS THE ECOMMERCE BILLING FEES PAID BY YOU IN THE 12 MONTHS THAT GAVE RISE TO THE OCCURRENCE OF LIABILITY.

11. Third Party Services

1. In connection with Your use of the Payment Solution, You may be aware of services and products offered by third parties (e.g. tax assistance solutions) (“Third Party Services”). Portions of the Services provided by third parties shall be subject to such entity’s terms and conditions, and Your use of such entity’s services is subject to and conditioned upon Your acceptance of such additional terms and conditions. If You decide to use Third-Party Services, You are responsible for reviewing and understanding the terms and conditions governing the Third Party Services, and acknowledge that the third party is responsible for the performance of such services.
2. You acknowledge and agree that regardless of the manner in which Third Party Services may be offered to You (bundled with certain Duda Services, offered separately by Duda or otherwise offered anywhere on the Services), Duda merely acts as an intermediary platform between You and the Third Party Services, and does not in any way endorse the Third Party Services, or shall be in any way responsible or liable with respect thereto. Duda will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between You and any Third Party Services.
3. Duda shall have the right, at any time, at its sole and exclusive discretion to remove any Third-Party Services and/or disable access to Third-Party Services.

12. Notices

Any notices sent pursuant to this eCommerce Agreement shall be sent to You at the contact email address listed in upon registration; and to Duda at legal@duda.co.

13. Independent Contractors

The Parties are independent contractors. Nothing contained in this eCommerce Agreement will be construed as creating any agency, partnership, or other form of joint enterprise between the Parties.

14. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws provisions thereof; and exclusive jurisdiction and venue for any action arising under the Agreement shall be in the federal and state courts located in the county of Santa Clara, and both Parties hereby consent to such jurisdiction and venue for this purpose.

15. General

1. Assignment. The assignment provisions of Your Contract shall govern this eCommerce Agreement.
2. No Waiver. The failure of either Party to insist upon strict performance of any of the provisions contained in the eCommerce Agreement shall not constitute a waiver of any rights contained herein, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party of any of the terms or conditions in the eCommerce Agreement.
3. Severability. In the event that any provision of the Agreement, including the eCommerce Agreement, shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.