DMSFocus Terms of Service
Focus Data Solutions, LLC
Effective Date: July 23, 2026 Last Updated: July 23, 2026
PLEASE READ CAREFULLY. These Terms include a binding arbitration provision, a class-action waiver, and a jury-trial waiver (Section 21), disclaimers of warranties (Section 17), and limitations of liability (Section 18) that allocate risk between the parties and limit the remedies available to you.
1. Agreement to These Terms
These Terms of Service (the "Terms") form a binding agreement between Focus Data Solutions, LLC, a limited liability company ("Focus Data Solutions," "we," "us," or "our"), and the business entity that subscribes to or uses the Service ("Customer," "you," or "your"). These Terms govern access to and use of the DMSFocus platform, dashboards, APIs, integrations, mobile and web interfaces, documentation, and related services (collectively, the "Service").
You accept these Terms by (a) signing an order form, quote, proposal, or other ordering document that references them (an "Order Form"), (b) clicking to accept, (c) creating an account, or (d) accessing or using the Service. If you accept on behalf of an entity, you represent that you have authority to bind that entity, and "Customer" means that entity.
The Service is offered solely for business use by dealerships, dealer groups, and related businesses. It is not offered to consumers and is not intended for personal, family, or household purposes. You must be at least 18 years old and legally able to enter into contracts.
Order of precedence. If there is a conflict, the following order controls: (1) a mutually signed master agreement between the parties; (2) an executed Order Form; (3) any Data Processing Addendum; (4) these Terms; (5) any documentation or policy referenced here.
2. Definitions
"Authorized User" means an individual — an employee, officer, or contractor of Customer or of a dealership within Customer's dealer group — whom Customer authorizes to access the Service under Customer's account.
"Customer Data" means all data, reports, records, files, and other content that Customer or its Authorized Users submit to, or that is transmitted to the Service at Customer's direction, including DMS reports and any personal information contained in them.
"DMS" means a dealer management system or other system of record from which Customer sources data.
"Documentation" means the user guides, help content, and release notes we make generally available for the Service.
"Output" means dashboards, metrics, benchmarks, projections, alerts, narratives, briefings, exports, and other results generated by the Service from Customer Data.
"Subscription Term" means the term stated in an Order Form or, absent an Order Form, the recurring billing period for which Customer has paid.
3. The Service
3.1 Access grant
Subject to these Terms and payment of all fees, we grant Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Service and Documentation for Customer's internal business operations, for the number of stores, users, seats, or other units specified in the applicable Order Form or subscription plan.
3.2 Account provisioning and Authorized Users
Customer is responsible for provisioning and de-provisioning Authorized Users, assigning roles and store, company, and module permissions, and keeping those assignments current. Accounts are individual and may not be shared. Customer is responsible for all activity occurring under its account and its Authorized Users' credentials, whether or not authorized by Customer, and for ensuring each Authorized User complies with these Terms. Customer must notify us immediately at security@dmsfocus.com of any suspected unauthorized access or credential compromise.
3.3 Data ingestion
The Service ingests Customer Data primarily through scheduled DMS reports delivered by email to an ingestion address we assign, and may also accept uploads or API submissions. Customer is solely responsible for configuring, maintaining, and monitoring the delivery of its reports, and for the accuracy, completeness, formatting, and timeliness of what it sends. We are not responsible for missing, delayed, malformed, duplicated, or incorrect Output resulting from reports that are not delivered, are delivered late, are altered in format by Customer's DMS or email system, or contain errors at the source.
3.4 Changes to the Service
We continuously develop the Service and may add, modify, or discontinue features, modules, integrations, and functionality. We will not materially decrease the overall core functionality of the Service during a paid Subscription Term. We may make changes required for security, legal compliance, or third-party dependency changes at any time.
3.5 Beta and evaluation features
Features designated "Beta," "Preview," "Pilot," "Early Access," "Focus Intelligence (Beta)," or similar are provided for evaluation, AS IS, without any warranty, support commitment, or service level, may be changed or withdrawn at any time, and may produce inaccurate results. We may condition access on additional terms. Use of Beta features is at Customer's sole risk, and our liability arising from them is excluded to the maximum extent permitted by law.
3.6 Support and availability
We provide support through the channels and during the hours described in the Documentation or an applicable Order Form. We use commercially reasonable efforts to keep the Service available, but the Service is not guaranteed to be uninterrupted or error-free, and no uptime commitment, service credit, or service level applies unless expressly set out in a separate written service level agreement signed by us. We may perform scheduled and emergency maintenance, and may suspend access as described in Section 15.
4. Customer Data and Data Rights
4.1 Ownership
As between the parties, Customer owns all right, title, and interest in and to Customer Data. We claim no ownership of it.
4.2 License to us
Customer grants us and our subprocessors a worldwide, non-exclusive, royalty-free license to host, store, copy, transmit, parse, index, process, display, and create derivative works of Customer Data solely as necessary to (a) provide, secure, support, maintain, and improve the Service for Customer, (b) prevent or address technical, security, or legal issues, (c) comply with law, and (d) create Aggregated Data as permitted by Section 4.6. This license terminates when Customer Data is deleted in accordance with Section 16, other than with respect to Aggregated Data and backup copies pending expiration.
4.3 Customer representations regarding Customer Data — important
Customer represents, warrants, and covenants that:
(a) Rights in the data. Customer has and will maintain all rights, title, licenses, consents, and authority necessary to submit Customer Data to the Service and to permit the processing described in these Terms, and doing so does not and will not violate any law or the rights of any third party.
(b) DMS and third-party agreements. Customer's extraction, export, forwarding, and transmission of reports and data from its DMS or any other third-party system to the Service does not and will not violate Customer's agreement with, or the terms, policies, or technical restrictions of, that DMS provider or any other third party. Customer is solely responsible for obtaining any consent, license, integration approval, or data-access authorization required by its DMS provider. We do not represent that any DMS provider permits such use, and we have no obligation to obtain or maintain any DMS provider relationship, certification, or approval on Customer's behalf.
(c) Privacy and notices. Customer has provided all notices and obtained all consents required by applicable privacy, financial-privacy, and consumer-protection law for the collection, use, and disclosure to us of any personal information contained in Customer Data, and has a lawful basis for it.
(d) Restricted data. Customer will not submit to the Service any Social Security or taxpayer identification number, driver's license or government identification number, date of birth, credit report or score, financial-account or payment-card number, precise geolocation, biometric identifier, protected health information subject to HIPAA, information about individuals known to be under 16, or any data subject to specialized regulatory regimes beyond those described in Section 4.5 — and acknowledges that the Service is not designed, tested, or contracted for such data. Customer bears all risk and liability arising from any such submission.
(e) Legality of use. Customer will use the Service and all Output in compliance with all applicable laws, including the Gramm-Leach-Bliley Act and the FTC Safeguards Rule, the Driver's Privacy Protection Act, the Fair Credit Reporting Act, the Telephone Consumer Protection Act, the CAN-SPAM Act, state consumer-privacy and unfair-practices laws, and all laws governing marketing and consumer solicitation. In particular, Customer is solely responsible for any marketing, solicitation, or contact it directs to consumers using contact information surfaced by the Service.
4.4 Controller / processor roles
For personal information contained in Customer Data, Customer is the controller (and "business") and we are the processor (and "service provider"). We will process such personal information only to provide the Service in accordance with these Terms and Customer's documented instructions, will not sell it or share it for cross-context behavioral advertising, will not combine it with data from other sources except as permitted by law, and will require our subprocessors to observe equivalent obligations. Our handling is further described in the Privacy Policy, incorporated by reference. Where required by law, the parties will execute a Data Processing Addendum, which will control over these Terms with respect to its subject matter.
4.5 Responding to individuals
Because Customer is the controller, requests from individuals to access, correct, delete, or otherwise act on their personal information must be directed to and handled by Customer. We will provide reasonable assistance, at Customer's expense for non-routine effort, to help Customer respond to validated requests.
4.6 Aggregated Data
We may compile and use Aggregated Data — statistical and other data derived from the operation of the Service that is aggregated and de-identified so that it does not identify Customer, any dealership, any Authorized User, or any individual, and cannot reasonably be used to do so. We own all Aggregated Data and may use, retain, and disclose it for any lawful purpose, including benchmarking, research, analytics, model development, and marketing, during and after the Subscription Term. We will not publish or disclose Aggregated Data in a form that identifies Customer, any of its stores, or any individual without Customer's consent.
4.7 Backups
Customer is responsible for maintaining its own copies of source data in its DMS or elsewhere. We maintain routine backups as part of operating the Service, but we are not an archival or system-of-record service, and we do not guarantee that any particular data can be recovered.
5. Acceptable Use and Restrictions
Customer will not, and will not permit any Authorized User or third party to:
1. access or use the Service other than as authorized in these Terms, or make the Service available to, or use it for the benefit of, anyone other than Customer and its Authorized Users;
2. resell, sublicense, rent, lease, time-share, distribute, or operate the Service as a service bureau, or provide analytics services to third parties using the Service;
3. share account credentials, exceed licensed store or seat counts, or create accounts for individuals who are not Authorized Users;
4. copy, modify, translate, or create derivative works of the Service, or reverse engineer, decompile, disassemble, or otherwise attempt to derive source code, algorithms, models, data structures, or calculation methodologies, except to the limited extent that applicable law expressly prohibits this restriction;
5. access the Service to build, train, or improve a competing product or service, or benchmark the Service for a competitor, or disclose performance or benchmark results without our prior written consent;
6. scrape, crawl, harvest, or use automated means to extract data from the Service except through APIs we expressly make available, and then only in accordance with their documentation and rate limits;
7. circumvent or attempt to circumvent authentication, tenant isolation, permission grants, rate limits, usage metering, or other technical or security controls; probe, scan, or test the vulnerability of the Service; or access any account, tenant, or data not belonging to Customer;
8. upload or transmit malicious code, or any material that is unlawful, infringing, defamatory, harassing, obscene, or that violates a third party's rights;
9. use the Service to send unsolicited communications in violation of law, or to make credit, insurance, employment, housing, or other decisions subject to the Fair Credit Reporting Act or similar laws;
10. interfere with or disrupt the integrity or performance of the Service or the data of any other customer, or impose an unreasonable or disproportionately large load on the infrastructure; or
11. remove, obscure, or alter any proprietary notice, or misrepresent the source or ownership of the Service or Output.
We may investigate suspected violations and may suspend or terminate access under Section 15. Customer will promptly notify us of any violation of which it becomes aware.
6. API, Tokens, and Integrations
If we make APIs, service tokens, machine-accessible endpoints, or model-context integrations available, Customer must keep all keys, tokens, and secrets confidential; is responsible for all activity conducted with them; must rotate or revoke them promptly upon suspected compromise or personnel change; and must observe published rate limits and usage restrictions. We may modify, throttle, version, deprecate, or discontinue any API or integration, using commercially reasonable efforts to give advance notice of breaking changes. Customer is responsible for its own systems that consume our APIs and for any data it moves out of the Service.
7. Artificial Intelligence Features
7.1 How AI features work
Portions of the Service use third-party large language models to summarize, narrate, and answer questions about Customer Data (including the Focus AI assistant, the Focus Daily Briefing, guided setup assistants, and narrative coaching notes). Prompts containing Customer Data within the requesting user's authorized scope are transmitted to our AI provider for processing, as described in the Privacy Policy. We contract with our AI provider on terms that do not permit it to train its models on Customer Data.
7.2 Customer acknowledgments — important
Customer acknowledges and agrees that:
(a) AI output can be wrong. Generative AI is probabilistic and may produce output that is inaccurate, incomplete, outdated, misleading, or that mischaracterizes underlying data, even where numeric figures are computed deterministically by the Service and merely narrated by the model. Customer must independently verify AI output before relying on it.
(b) No professional advice. AI output, like all Output, is informational only and is not accounting, tax, legal, financial, valuation, employment, or other professional advice.
(c) Human review. Customer will not use AI output as the sole basis for any decision with legal or similarly significant effect on any individual, including employment, compensation, discipline, or credit decisions, and will maintain meaningful human review of any decision informed by it.
(d) Similar output. Output generated for other customers may be similar or identical; we make no exclusivity claim in AI output.
(e) Disablement. AI features may be disabled by Customer at the tenant level, and by users where the Service provides a user-level toggle. Customers that do not wish Customer Data to be processed by an AI provider must disable these features or notify us to disable them.
(f) Provider dependency. AI features depend on third-party providers and may be degraded, delayed, or unavailable, and we may change or discontinue AI providers or features. Section 3.5 applies to any AI feature designated as Beta.
8. Output, Analytics, and No Reliance — important
The Service is an analytics and reporting tool. It reports and interprets what Customer Data says; it does not verify it.
• Accuracy depends on source data. All Output is derived from Customer Data as received. Errors, omissions, misconfigurations, duplicate or missing reports, DMS format changes, mid-period postings, accounting adjustments, and data-entry mistakes at the source will produce corresponding errors in Output. We do not audit, validate, or reconcile Customer Data and make no representation that Output matches Customer's DMS, general ledger, financial statements, factory statements, or tax filings.
• Projections are estimates. Pace, forecast, projection, benchmark, target, alert, and early-warning features are statistical estimates based on historical patterns and stated assumptions. They are not guarantees or predictions of actual results, and actual results will differ.
• Not professional advice. Output is not accounting, tax, legal, valuation, compliance, employment, or investment advice, and is not a substitute for Customer's own books, records, controls, and professional advisors.
• Customer decisions. Customer is solely responsible for all decisions and actions it takes, and for any it declines to take, based on the Service or its Output — including pricing, inventory, staffing, compensation, discipline, purchasing, marketing, and financial decisions. Customer assumes all risk associated with such decisions.
• Alerts are not a monitoring service. Alerts, notifications, and early-warning features are conveniences that depend on data delivery, third-party email and messaging providers, and Customer configuration. They may be delayed, duplicated, or fail to fire, and Customer must not rely on them as its sole means of monitoring any condition.
9. Parts Marketplace — important
9.1 We are a venue only
If Customer uses marketplace features to list, browse, offer, or order parts, Focus Data Solutions provides only a platform through which independent dealerships transact with one another. We are not a party to, and are not a buyer, seller, broker, agent, distributor, dealer, consignee, auctioneer, or insurer in, any marketplace transaction. Every transaction is solely between the listing dealership and the purchasing dealership.
9.2 Customer responsibilities
Each Customer is solely responsible for: the accuracy and legality of its listings (including part numbers, descriptions, condition, fitment, quantity, images, and price); its title to and right to sell the parts listed; compliance with all applicable laws and with any franchise, warranty, distribution, or manufacturer agreement governing the parts, including restrictions on the resale of parts, cores, recalled or safety-related components, hazardous materials, and controlled items; packaging, shipping, freight, insurance, customs, and delivery; inspection and acceptance; returns, cores, restocking, refunds, warranty, and after-sale support; payment, invoicing, collection, credit risk, and chargebacks; and the collection, reporting, and remittance of all sales, use, excise, and other taxes.
9.3 No payment processing; no guarantee
We do not process, hold, escrow, or guarantee marketplace payments. Order status indicators in the Service (including any indication that an order is awaiting payment, paid, shipped, or delivered) reflect information entered by the participating dealerships and are not verified by us. We make no representation or warranty regarding any listing, part, dealership, transaction, price, availability, condition, authenticity, fitness, or the ability or willingness of any party to perform.
9.4 Disputes between dealerships
Disputes arising out of a marketplace transaction are solely between the participating dealerships, who will resolve them directly. Customer releases Focus Data Solutions, and our affiliates, officers, members, employees, and agents, from all claims, demands, damages, and liabilities of every kind arising out of or in any way connected with any marketplace transaction, listing, counterparty, or dispute. We may, but have no obligation to, provide transaction records to assist in a dispute.
9.5 Our rights
We may remove or refuse any listing, cancel or reverse an order record, and suspend or terminate marketplace access, at our discretion and without liability, including where we believe a listing or transaction violates these Terms, any law, or a third party's rights.
10. Third-Party Services
The Service interoperates with third-party products and services, including identity, hosting, database, email, error-monitoring, AI, and payment providers, and with Customer's DMS. Those services are provided by their own providers under their own terms, and we do not control and are not responsible for them, their availability, their changes, or their acts or omissions. Any interruption, degradation, discontinuation, price change, or policy change by a third-party provider that affects the Service is not a breach of these Terms, though we will use commercially reasonable efforts to mitigate its effect. If Customer enables a third-party integration, Customer authorizes us to exchange data with it as necessary.
11. Fees, Billing, and Taxes
11.1 Fees
Customer will pay all fees stated in the applicable Order Form or subscription plan, including per-store, per-seat, module, overage, implementation, and professional-services fees. Fees are quoted in U.S. dollars. Unless an Order Form says otherwise, fees are based on the subscription purchased, not on actual usage, and payment obligations are non-cancelable and fees paid are non-refundable, except as expressly stated in these Terms.
11.2 Payment
Subscriptions are billed in advance on a recurring basis through our payment processor. Customer authorizes us and our payment processor to charge the payment method on file for all fees when due, on each renewal, and for any added stores, seats, or modules, and will keep payment-method and billing-contact information current. Invoiced amounts, where we agree to invoice, are due net thirty (30) days from the invoice date.
11.3 Adding capacity
If Customer adds stores, seats, or modules mid-term, fees for the added capacity are charged at our then-current rates, prorated for the remainder of the then-current billing period, and included in subsequent renewals. Reductions do not take effect until the next renewal and do not entitle Customer to a refund or credit.
11.4 Price changes
We may change fees effective as of any renewal by giving at least thirty (30) days' notice before the renewal date. If Customer does not agree, Customer's sole remedy is to terminate effective at the end of the then-current Subscription Term as provided in Section 15.
11.5 Late payment and suspension
Amounts not paid when due accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is lower, from the due date until paid. Customer will reimburse our reasonable costs of collection, including attorneys' fees. If any amount is more than ten (10) days past due, we may, without liability and in addition to our other remedies, suspend or restrict access to the Service upon notice until all past-due amounts are paid. Suspension does not relieve Customer of the obligation to pay fees for the suspension period.
11.6 Taxes
Fees are exclusive of taxes. Customer is responsible for all sales, use, excise, gross receipts, value-added, withholding, and similar taxes and duties arising from this Agreement, other than taxes based on our net income. If we are required to collect such taxes, they will be added to the invoice.
11.7 Disputes
Customer must notify us in writing of any good-faith billing dispute within thirty (30) days of the invoice or charge date, with reasonable detail. Undisputed amounts remain payable when due. Charges not disputed within that period are deemed accepted and final. Customer will not initiate a chargeback for any amount it has not first disputed with us under this Section.
12. Intellectual Property
12.1 Our IP
The Service, including all software, source code, interfaces, designs, dashboards, data models, calculation methodologies, benchmark definitions, algorithms, prompts, Documentation, and all improvements to any of the foregoing, together with all patents, copyrights, trademarks, trade secrets, and other intellectual property rights in them, are and remain the exclusive property of Focus Data Solutions and its licensors. These Terms grant Customer a limited right to access and use the Service and grant no ownership rights. All rights not expressly granted are reserved.
12.2 Trademarks
"DMSFocus," "Focus Data Solutions," "Focus AI," "Focus Daily," "Focus Intelligence," and our logos are our trademarks. Customer may not use them without our prior written consent, except to identify itself as a customer in the ordinary course.
12.3 Output
As between the parties, Customer may use Output within its business, subject to Sections 5, 8, and 9. Customer may not distribute, publish, or commercialize Output outside its organization in a manner that discloses the Service's methodologies or that competes with us.
12.4 Feedback
If Customer or an Authorized User provides suggestions, enhancement requests, ideas, or other feedback about the Service, Customer grants us a perpetual, irrevocable, worldwide, royalty-free, fully paid, sublicensable, and transferable license to use, modify, and exploit that feedback for any purpose without restriction, attribution, or compensation. Feedback is provided voluntarily and is not Customer's confidential information.
12.5 Usage data
We may collect and use technical and usage data regarding the operation of the Service, and may use it to operate, maintain, secure, support, and improve our products, subject to the Privacy Policy and Section 4.6.
13. Confidentiality
"Confidential Information" means non-public information disclosed by one party ("Discloser") to the other ("Recipient") that is designated as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances. Customer Data is Customer's Confidential Information. The Service, its non-public features and performance, our pricing, roadmaps, and security documentation are our Confidential Information.
Recipient will (a) use Confidential Information only to perform under these Terms, (b) protect it using at least the degree of care it uses for its own confidential information and no less than reasonable care, and (c) disclose it only to its employees, contractors, affiliates, and advisors who need it and are bound by confidentiality obligations no less protective, remaining responsible for their compliance.
Confidential Information does not include information that is or becomes public without breach, was rightfully known without restriction before disclosure, is rightfully received from a third party without restriction, or is independently developed without use of Confidential Information. Recipient may disclose Confidential Information as required by law or legal process, provided it gives prompt notice where legally permitted and reasonably cooperates in any effort to limit or protect the disclosure.
14. Security
We will maintain a written information security program with administrative, technical, and physical safeguards designed to protect Customer Data, as described in the Privacy Policy. Customer is responsible for security within its own control, including maintaining current and correct user permissions, promptly de-provisioning departed personnel, securing its email and DMS systems and the ingestion address assigned to it, protecting API tokens, using supported browsers and patched devices, and configuring exports and downloads responsibly. Customer acknowledges that reports containing Customer Data leave Customer's control when Customer directs them to the Service by email, and that email is not a secure transport mechanism.
If we become aware of a security incident affecting Customer Data, we will notify Customer without undue delay and provide information reasonably available to us, and will cooperate reasonably in Customer's investigation and remediation. Our notification is not an acknowledgment of fault or liability.
15. Term, Suspension, and Termination
15.1 Term and renewal
These Terms begin on the earlier of Customer's first access to the Service or the effective date of the first Order Form, and continue for the Subscription Term. Unless an Order Form provides otherwise, each Subscription Term automatically renews for successive periods equal to the then-current term unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current term. Monthly subscriptions renew monthly and may be canceled effective at the end of the then-current monthly period.
15.2 Suspension
We may suspend Customer's or any Authorized User's access, in whole or in part, immediately and without liability, if we reasonably determine that: (a) fees are past due as provided in Section 11.5; (b) continued access poses a security, integrity, availability, or legal risk to the Service, to us, or to any third party; (c) Customer or an Authorized User has violated Section 5; or (d) suspension is required by law or by a third-party provider. Where practicable we will give advance notice and an opportunity to cure, and will restore access promptly once the cause is resolved.
15.3 Termination for cause
Either party may terminate these Terms and all Order Forms if the other party materially breaches and fails to cure within thirty (30) days after written notice describing the breach — except that we may terminate immediately for Customer's breach of Sections 4.3, 5, 6, or 12, or for non-payment more than thirty (30) days past due. Either party may terminate immediately if the other becomes insolvent, makes an assignment for the benefit of creditors, or is subject to bankruptcy or receivership proceedings not dismissed within sixty (60) days.
15.4 Termination for convenience by us
We may terminate these Terms for convenience on sixty (60) days' written notice, in which case we will refund any prepaid, unused fees for the terminated portion of the then-current Subscription Term. That refund is Customer's sole remedy for such a termination.
15.5 Effect of termination
On expiration or termination: (a) all rights granted to Customer terminate and Customer must cease using the Service; (b) Customer must pay all amounts accrued through the effective date, and all unpaid fees for the remainder of the Subscription Term become immediately due if we terminated for cause; (c) each party will return or destroy the other's Confidential Information, except for routine backups and records required by law; and (d) Customer may request an export of Customer Data.
Data export window. For thirty (30) days after termination or expiration, we will, upon Customer's written request and provided Customer's account is current, make Customer Data available for export in a commercially reasonable format we select, subject to our then-current fees for non-routine export assistance. After that window we may delete Customer Data, and we have no obligation to retain it. Aggregated Data and backups pending expiration are excluded, as is data we must retain by law.
15.6 Survival
Sections 2, 4.1, 4.3, 4.6, 4.7, 5, 8, 9.4, 11 (for amounts accrued), 12, 13, 15.5, 15.6, 17, 18, 19, 20, 21, and 22 survive termination.
16. Customer Reference
We may identify Customer as a customer, and use Customer's name and logo, in our customer lists, website, and sales materials, in a manner consistent with Customer's brand guidelines if provided. Customer may withdraw this permission at any time by written notice to legal@dmsfocus.com, and we will cease new uses within a reasonable period. Any other use of Customer's marks, including case studies, quotes, and press releases, requires Customer's prior written approval.
17. Disclaimer of Warranties
EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE SERVICE, THE DOCUMENTATION, ALL OUTPUT, AND ALL RELATED MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOCUS DATA SOLUTIONS AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT: (A) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) ANY OUTPUT, METRIC, BENCHMARK, PROJECTION, ALERT, OR AI-GENERATED NARRATIVE WILL BE ACCURATE, COMPLETE, CURRENT, OR RELIABLE, OR WILL RECONCILE TO CUSTOMER'S DMS, GENERAL LEDGER, OR FINANCIAL STATEMENTS; (C) ERRORS WILL BE CORRECTED; (D) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR PRODUCE ANY PARTICULAR BUSINESS RESULT; (E) DATA WILL NOT BE LOST OR ALTERED; OR (F) THE SERVICE OR ANY THIRD-PARTY SERVICE WILL BE FREE OF HARMFUL COMPONENTS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE MAY NOT APPLY.
18. Limitation of Liability
18.1 Exclusion of indirect damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY, NOR OUR AFFILIATES, SUPPLIERS, OR LICENSORS, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS, OR DATA, OR FOR BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18.2 Liability cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO US FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IF NO FEES HAVE BEEN PAID, OUR TOTAL LIABILITY WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).
18.3 Specific exclusions. WE WILL HAVE NO LIABILITY WHATSOEVER FOR: (a) Customer Data that is inaccurate, incomplete, delayed, or not delivered to the Service; (b) decisions made or actions taken or not taken based on the Service or any Output; (c) Beta features; (d) marketplace listings, transactions, counterparties, payments, or disputes; (e) any third-party service, provider, or DMS, including changes, outages, or termination of access by any of them; (f) Customer's or an Authorized User's misuse of the Service, misconfiguration, or failure to maintain permissions or credentials; (g) any claim arising from Customer's breach of Section 4.3, including any claim by a DMS provider; or (h) any unauthorized access resulting from compromise of Customer's own systems, email, or credentials.
18.4 Exceptions to the cap. The limitations in Sections 18.1 and 18.2 do not apply to: (a) Customer's payment obligations under Section 11; (b) Customer's indemnification obligations under Section 19.1; (c) either party's breach of Section 13 (Confidentiality) through willful misconduct; or (d) liability that cannot be excluded or limited under applicable law.
18.5 Allocation of risk. Customer acknowledges that the fees reflect the allocation of risk in these Terms, that we would not provide the Service on these fees without these limitations, and that these limitations are an essential basis of the bargain and apply notwithstanding any failure of essential purpose of any limited remedy.
18.6 Time limitation. EXCEPT FOR CLAIMS FOR NON-PAYMENT, NO CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CLAIM ACCRUED. ANY SUCH CLAIM IS PERMANENTLY BARRED.
19. Indemnification
19.1 By Customer
Customer will defend, indemnify, and hold harmless Focus Data Solutions and its affiliates, members, officers, employees, contractors, and agents from and against any third-party claim, demand, suit, action, investigation, or proceeding, and all resulting damages, losses, liabilities, fines, penalties, settlements, and reasonable attorneys' fees and costs, arising out of or relating to:
(a) Customer Data, including any allegation that it infringes or misappropriates any right, was collected or provided unlawfully, or was submitted in violation of Section 4.3;
(b) any claim by a DMS provider or other third party relating to Customer's extraction, export, forwarding, or transmission of data to the Service, or to any breach of Customer's agreement with that provider;
(c) Customer's or any Authorized User's use of the Service or any Output, including any decision, action, marketing, or consumer contact based on it;
(d) any marketplace listing, transaction, or dispute involving Customer;
(e) Customer's violation of these Terms, of any applicable law, or of the rights of any third party, including privacy, financial-privacy, telemarketing, and consumer-protection laws; and
(f) any claim by an Authorized User or by any individual whose personal information is contained in Customer Data, arising from Customer's acts or omissions.
19.2 By Focus Data Solutions
We will defend Customer against any third-party claim alleging that the Service, as provided by us and used in accordance with these Terms, directly infringes a U.S. patent, copyright, or trademark or misappropriates a trade secret, and will pay damages finally awarded against Customer or agreed in settlement by us.
Exclusions. We have no obligation under Section 19.2 to the extent a claim arises from: (a) Customer Data or any Output derived from it; (b) use of the Service in combination with any product, data, service, or process not provided by us; (c) modification of the Service by anyone other than us; (d) use of the Service other than as permitted by these Terms or the Documentation; (e) Beta features or features provided at no charge; (f) Customer's continued use after we notify it to stop; or (g) any third-party service.
Our options. If the Service is or is likely to become the subject of an infringement claim, we may, at our option and expense, procure the right to continue use, replace or modify the Service so it is non-infringing while materially preserving functionality, or terminate the affected subscription and refund prepaid, unused fees. Sections 19.2 and this paragraph state our entire liability and Customer's exclusive remedy for any claim of infringement or misappropriation, and our obligations under Section 19.2 are subject to the limitations in Section 18.2.
19.3 Procedure
The indemnified party must give prompt written notice of the claim (delay excuses the indemnifying party only to the extent it is prejudiced), give the indemnifying party sole control of the defense and settlement (provided no settlement imposing liability, admission, or non-monetary obligation on the indemnified party is made without its consent, not unreasonably withheld), and provide reasonable cooperation at the indemnifying party's expense. The indemnified party may participate with its own counsel at its own expense.
20. Force Majeure
Neither party is liable for any delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including acts of God, natural disaster, fire, flood, severe weather, epidemic or pandemic, war, terrorism, civil unrest, labor dispute, government action, embargo, utility or telecommunications failure, internet or hosting-provider outage, denial-of-service or other cyberattack, or the failure, degradation, or discontinuation of any third-party service on which the Service depends.
21. Dispute Resolution — Arbitration, Class Waiver, and Jury Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
21.1 Informal resolution first
Before initiating arbitration, the party raising a dispute will send a written notice describing the dispute and the relief sought to the other party (to us at legal@dmsfocus.com, with a copy to the address in Section 22.9). The parties will attempt in good faith to resolve the dispute through senior-executive discussion for thirty (30) days after that notice. This period is a condition precedent to arbitration, but does not toll the limitation period in Section 18.6.
21.2 Binding arbitration
Any dispute, claim, or controversy arising out of or relating to these Terms, the Service, or the relationship between the parties — including its formation, interpretation, breach, termination, validity, or enforceability, and including tort and statutory claims — that is not resolved under Section 21.1 will be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules then in effect, as modified by this Section. The Federal Arbitration Act governs the interpretation and enforcement of this Section.
• Arbitrator. One arbitrator, selected under AAA rules, with experience in commercial software or technology disputes.
• Seat and venue. The arbitration will be seated in Johnson County, Kansas, and any in-person hearing will take place there, unless the parties agree otherwise. Hearings may be conducted by videoconference.
• Language and law. English; Kansas substantive law applies as provided in Section 22.1.
• Authority. The arbitrator has exclusive authority to resolve all issues, including arbitrability, except that a court of competent jurisdiction — and not an arbitrator — will decide any dispute concerning the scope or enforceability of Section 21.3.
• Award. The award will be in writing with a reasoned basis, is final and binding, and may be entered in any court of competent jurisdiction. The arbitrator may award only remedies available under these Terms and applicable law, and may not award relief that exceeds or conflicts with the limitations in Section 18.
• Costs. Each party bears its own attorneys' fees and costs, and the parties share arbitration filing and arbitrator fees equally, unless the arbitrator determines a claim was frivolous or brought for an improper purpose, or unless applicable law or these Terms provide otherwise.
• Confidentiality. The arbitration, all submissions, and the award are confidential, except as necessary to enforce the award or as required by law.
21.3 Class action and representative action waiver
THE PARTIES AGREE THAT ALL CLAIMS WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR REPRESENTATIVE IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MORE THAN ONE PARTY AND MAY NOT PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. If this Section 21.3 is found unenforceable as to any claim or request for relief, that claim or request will be severed from the arbitration and heard in the courts identified in Section 22.1, and the remaining claims will proceed in arbitration.
21.4 Jury trial waiver
TO THE EXTENT ANY DISPUTE IS HEARD IN COURT RATHER THAN ARBITRATION, EACH PARTY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY.
21.5 Exceptions
Either party may (a) bring an individual action in a small-claims court of competent jurisdiction for claims within that court's jurisdiction, and (b) seek temporary or preliminary injunctive or other equitable relief in the courts identified in Section 22.1 to protect its intellectual property, Confidential Information, or data security, or to enforce Sections 5, 6, 12, or 13, without first complying with Section 21.1 and without waiving this arbitration agreement. Claims for unpaid fees may be brought in court at our election.
22. General Provisions
22.1 Governing law and venue. These Terms and any dispute arising out of them are governed by the laws of the State of Kansas, excluding its conflict-of-laws rules and the U.N. Convention on Contracts for the International Sale of Goods. For any dispute not subject to arbitration under Section 21, the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Johnson County, Kansas, and waive any objection based on inconvenient forum.
22.2 Modifications to these Terms. We may modify these Terms from time to time. We will post the revised Terms with an updated "Last Updated" date and, for material changes, provide at least thirty (30) days' advance notice by email to Customer's account or billing contact or by in-application notice. Material changes take effect at the start of the next renewal term for existing subscriptions, or thirty (30) days after notice for month-to-month and unpaid access. Continued use after the effective date constitutes acceptance. If Customer does not accept a material change, its sole remedy is to terminate before the change takes effect, with a refund of prepaid, unused fees for the terminated period. Changes required by law, or that address security or third-party dependencies, may take effect immediately.
22.3 Entire agreement. These Terms, together with any Order Form, DPA, and the Privacy Policy, constitute the entire agreement between the parties regarding the Service and supersede all prior or contemporaneous proposals, discussions, and agreements on that subject. Any terms in a Customer purchase order, vendor portal, supplier form, or similar document are void and of no effect, even if signed or acknowledged by us, unless expressly agreed in a document signed by an authorized officer of Focus Data Solutions that references these Terms.
22.4 Severability. If any provision is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable, or if that is not possible, severed, and the remaining provisions will remain in full force.
22.5 No waiver. No failure or delay in exercising any right operates as a waiver, and no waiver is effective unless in writing and signed by the waiving party.
22.6 Assignment. Customer may not assign or transfer these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent, except that Customer may assign them in their entirety to a successor in a merger, acquisition, or sale of all or substantially all of its assets or equity, provided Customer gives written notice, the successor is not our competitor, and the successor agrees in writing to be bound. Any purported assignment in violation of this Section is void. A change in the stores or rooftops covered requires an updated Order Form. We may assign these Terms freely, including to an affiliate or in connection with a merger, acquisition, financing, or sale of assets. These Terms bind and benefit the parties' permitted successors and assigns.
22.7 Independent contractors. The parties are independent contractors. These Terms create no partnership, joint venture, agency, fiduciary, franchise, or employment relationship.
22.8 No third-party beneficiaries. These Terms are for the benefit of the parties only. There are no third-party beneficiaries, except that our affiliates, suppliers, and licensors are intended beneficiaries of Sections 17, 18, and 19.1.
22.9 Notices. Notices to Customer may be given by email to the account or billing contact on file, or by in-application notice, and are effective when sent. Notices to us must be in writing and sent to legal@dmsfocus.com and, for legal notices under Sections 15, 19, and 21, also by certified mail or nationally recognized overnight courier to:
Focus Data Solutions, LLC, Attn: Legal. Mailing address available on request at legal@dmsfocus.com
Customer is responsible for keeping its contact information current.
22.10 Export and sanctions. Customer represents that it is not located in, organized under the laws of, or ordinarily resident in any country or region subject to comprehensive U.S. sanctions, and is not on any U.S. government restricted-party list, and will not access or use the Service in violation of U.S. export-control or sanctions laws.
22.11 U.S. Government users. The Service is "commercial computer software" and "commercial computer software documentation" under FAR 12.212 and DFARS 227.7202. Government users acquire only the rights set out in these Terms.
22.12 Electronic signatures and records. The parties consent to conduct this transaction electronically. Electronic acceptance, signatures, and records satisfy any requirement that an agreement be in writing or signed.
22.13 Interpretation. Headings are for convenience only. "Including" means "including without limitation." These Terms will not be construed against the drafter.
22.14 Anti-bribery. Each party will comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act.
23. Contact
Questions about these Terms:
Focus Data Solutions, LLC Attn: Legal Mailing address available on request at legal@dmsfocus.com Email: legal@dmsfocus.com Support: support@dmsfocus.com Security: security@dmsfocus.com Privacy: privacy@dmsfocus.com
*By accessing or using DMSFocus, Customer acknowledges that it has read, understood, and agrees to be bound by these Terms of Service.*