FastSpring® Terms & Conditions of Sale for Purchasers

Last updated: April 28, 2021

THESE TERMS OF SALE (“TERMS”) CONSTITUTE A BINDING LEGAL CONTRACT BETWEEN (A) BRIGHT MARKET, LLC D/B/A FASTSPRING, 801 GARDEN ST. #201, SANTA BARBARA, CA 93101 AND FASTSPRING BV , DE CUSERSTRAAT 91, 1081 CN AMSTERDAM, NETHERLANDS (COLLECTIVELY, “FASTSPRING”, “WE”, “US” AND  “OUR”), AND (B) YOU, THE PURCHASER (WITH REFERENCES TO “YOU” OR “YOUR” BEING CONSTRUED ACCORDINGLY). THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF PRODUCTS (INCLUDING, WITHOUT LIMITATION, HARDWARE, SOFTWARE, LICENSE RIGHTS, AND SERVICE USE RIGHTS) OR ACCESS RIGHTS TO SERVICES FASTSPRING PROVIDES (INCLUDING, WITHOUT LIMITATION, EXTENDED DOWNLOAD SERVICE OR REGISTRATION BACKUP SERVICE) OBTAINED BY FASTSPRING FROM THIRD PARTIES (“VENDORS”) FOR PURPOSE OF RESALE BY FASTSPRING TO YOU (COLLECTIVELY, “PRODUCTS”) EITHER (A) THROUGH THE ONLINE STORE ON WHICH FASTSPRING HAS POSTED THESE TERMS, OR (B) THROUGH ANY OTHER MEANS THROUGH WHICH FASTSPRING ENGAGES IN THE SALE OF PRODUCTS, SUCH AS BUT NOT LIMITED TO ORDERS BY PHONE (COLLECTIVELY, THE “FASTSPRING SERVICE”).  

PLEASE REVIEW THE TERMS CAREFULLY. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. SEE SECTION 11 FOR DETAILS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS SET FORTH IN SECTION 11.9, WITHIN THE SPECIFIED TIME FRAME.BY ORDERING ANY PRODUCT THROUGH THE FASTSPRING SERVICE, YOU SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT.

Table of Contents

1) Scope and Application

1.1. Our Privacy Statement governs the collection and use of information through the FastSpring Service. By submitting your Personal Information to us, you consent to such information being processed in accordance with our Privacy Statement. The Privacy Statement is incorporated by reference into and is made a part of this Agreement. 

1.2. ALL ORDERS OF PRODUCTS THROUGH THE FASTSPRING SERVICE ARE SUBJECT TO YOUR CONSENT TO ANY APPLICABLE  END-USER LICENSE AGREEMENT OR USAGE TERMS DELIVERED WITH, INCLUDED IN, OR PRESENTED IN CONNECTION WITH THE PRODUCT. If you do not agree to the license or usage terms once you see them, do not accept them and contact customer service.

1.3. You are bound by the version of these Terms in effect on the date of each order you place for a Product on the FastSpring Service. These Terms may change from time to time, so please review them upon submission of each order, even if you have reviewed them before.

1.4. ALL ACCEPTED ORDERS ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE RETURNS POLICY APPLICABLE TO YOUR PURCHASE.

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2)  Access Credentials and Unauthorized Use; Revocation of Access

You are responsible for ensuring the security and confidentiality of any credentials we provide to enable use of the FastSpring Service, including not sharing those with any other person.  You shall immediately notify FastSpring at support@fastspring.com of any information or event that may compromise the security of those access credentials.  FastSpring may suspend or revoke your access to and use of the FastSpring Service at any time in its sole discretion for any or no reason.  Unauthorized use of the FastSpring Service, including but not limited to misuse of access credentials, is strictly prohibited.

3) Order Placement and Acceptance; Online Contracting

3.1. FastSpring attempts to describe the Products on the FastSpring Service available for purchase as accurately as possible. However, FastSpring does not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on the FastSpring Service or any related websites are accurate, complete, reliable, current, or error-free. The prices, quotations and descriptions made on the FastSpring Service are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express Acceptance of your order (as defined below).

3.2. All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the FastSpring Service, or otherwise made available by FastSpring or a Vendor, are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the Vendor specifications or warranty documentation to determine your rights and remedies in this regard.

3.3. While FastSpring makes every effort to ensure that Products appearing on the FastSpring Service are available, FastSpring cannot guarantee that all Products are in stock or immediately available when you submit your order. FastSpring may reject your order (without liability) if FastSpring is unable to process or fulfill it. If this is the case, FastSpring will refund any prior payment that you have made for that Product.

3.4. An order submitted by you only constitutes an offer by you to us to purchase Products through the FastSpring Service subject to these Terms at the price and on the terms stated in the order, and is subject to our subsequent Acceptance (as defined below), irrespective of whether the button or link you press or activate to submit your order to us includes words such as “complete order” or otherwise indicates that it is the final step in completion of your order. Any order confirmation email received by you prior to our Acceptance shall constitute an acknowledgement of our receipt of your offer only, and not an acceptance of your offer.

3.5. You acknowledge and agree that if you are placing an order with the FastSpring Service through a website or other electronic application, by clicking or activating the button or hyperlink to submit your order, you are placing a legally binding offer. You consent to: (i) the use of electronic communications in order to enter into contracts and place orders with us; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by you online. You have the right to withdraw your consent to electronic contracting and to electronic delivery at https://fastspring.com/consumer-support, but if you do, FastSpring may cancel your order and/or your access to the FastSpring Service and services provided by third parties in connection with the FastSpring Service (“Third Party Services”).  If you do not consent to receive any notices electronically, you must stop using the FastSpring Service.

3.6. Our acceptance of your order only occurs at such time that FastSpring has both (a) dispatched your Product order and/or provided you with access to the FastSpring Service, and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card or other payment method (“Acceptance”). FastSpring may cancel your order at any time and for any lawful reason prior to Acceptance. Prior to Acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.

3.7. FastSpring may keep records of orders received, acknowledgements, acceptances and other contract records after Acceptance for a period not to exceed the maximum period permitted by law. FastSpring may be able to provide you with copies on written request; however, you must make sure you print a copy of all such documents and these Terms for your own records.

3.8. If FastSpring has cause to believe that you are unable to pay your debts as they fall due, you fail to pay any amount by the due date or breach any of these Terms, FastSpring believes you have engaged in fraud or criminal activity in connection with your use of the FastSpring Ecommerce Solution, or FastSpring is unable to process payment to the payment method you provided with your offer, then, without prejudice to any of our other rights, FastSpring may do any or all of the following: (a) stop any Products in transit to you; (b) suspend further deliveries of Product if on an ongoing basis; (c) stop or suspend provision of the FastSpring Service; (d) cancel or revoke issued service use rights for Third Party Services; (e) cancel any automatic renewal plan in which you have elected to participate; and/or (f) cancel any and all other contracts between us and you.

4) Pricing and Payment Terms

4.1. Prices do not include shipping and handling, expedited service, sales taxes, or use taxes, if applicable, which will be added to your total price. You are responsible for any shipping and handling charges and state and local sales or use taxes that may apply to your order. If the price of a Product is obviously incorrect, regardless of whether it is an error in a price posted on the FastSpring Service or otherwise communicated to you, then FastSpring reserves the right, at our sole discretion, to cancel your order and refund to you the amount that you paid, regardless of how the error occurred.

4.2. Prices payable for Products on the FastSpring Service are those in effect at the time of Acceptance, unless otherwise expressly agreed. Prices may be indicated on the FastSpring Service or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance through the charge placed through your selected payment method. Payment shall be made by the payment method selected during your order completion process through the FastSpring Service. FastSpring will charge credit or debit cards on dispatch of the Product. FastSpring reserves the right to verify and/or authorize credit or debit card payments prior to Acceptance.

4.3. Except as expressly provided elsewhere in these Terms or the FastSpring Service, payment may be taken in full notwithstanding any claim for short delivery or defects.

4.4. Where the payment is invoiced, each invoice shall be due and payable in full by the due date specified on the invoice, and if no date is specified on the invoice, within thirty (30) days of the date of invoice. If you fail to pay invoiced amount when due, FastSpring may (a) by notice declare all invoiced amounts unpaid at that date to be immediately due and payable, and (b) take all actions determined necessary and appropriate by us to collect such unpaid amount, as permissible under applicable law.

4.5 No counterclaim or set-off may be deducted from any payment due without our written consent. FastSpring may also take action against you for the price of Products at any time after payment has become due even though title or rights to those Products may not yet have passed to you.

4.6. If you elect to use the services of a third party payment or billing provider in connection with your purchase from us, your use of such services will be subject to the third party provider’s own terms and conditions. You may be required to create an account with such third party provider and/or provide that third party provider with your bank account or credit/debit card details. FastSpring is not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.

4.7. For any overdue amounts, FastSpring may charge interest on such amounts, accruing on a daily basis at the maximum amount permitted under applicable law from the due date for payment until our receipt of the full amount (whether before or after judgment). You shall indemnify us on demand against any out of pocket expenses incurred in relation to recovery of any overdue amounts.

5) Delivery

5.1. FastSpring will use all commercially reasonable efforts to deliver Products in a timely manner. For Products delivered electronically, FastSpring will deliver such Products by electronic transmission or via download. Delivery timescales/dates specified on the FastSpring Ecommerce Solution, in any order acknowledgement or elsewhere are estimates only.

5.2. The places that FastSpring delivers to are listed on the Site (“Territory”). Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance (“Delivery Address”). You must check the Delivery Address on any order acknowledgement or Acceptance FastSpring provides, and notify us of errors or omissions as soon as possible. FastSpring reserves the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.

5.3. Where FastSpring delivers Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.

5.4. Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you (a) for Products delivered digitally, upon the provision to you of a download link for Software (as defined below), or of a license key or Service Use Rights (as defined below), via email or other electronic delivery method; and (b) for Products delivered physically, upon delivery of a product to the delivery location (if no signature is required for delivery, you accept all risk of loss for theft or loss of the delivered product following delivery to the delivery location).

6) Rejection, Damage or Loss in Transit

Except as set out above or under any applicable returns policy presented on the FastSpring Ecommerce Solution and applicable to your purchase of a Product or FastSpring Service (“Returns Policy”) and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:

6.1. FastSpring shall not be liable and you shall not be entitled to reject Products, except for:

6.2. FastSpring shall not be liable for any damage or losses arising from defective installation of the Products; from the use of the Products in connection with other defective, unsuitable or defectively installed equipment; your negligence; improper use; or use in any manner inconsistent with the manufacturer’s specifications or instructions.

6.3. If you refuse or fail to take delivery of Products, any risk of loss or damage to the Products shall nonetheless pass to you and without prejudice to any other rights or remedies FastSpring has:

6.4. Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Products in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within seven (7) calendar days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered.

6.5. Where there is a shortage or failure to deliver, or any defect in or damage to a Product, FastSpring may at our option:

6.6. You will have the benefit of any manufacturer’s, licensor’s or supplier’s warranty provided by the manufacturer, licensor or supplier to you in connection with your purchased Products and should refer to the relevant documentation supplied with the Product in this regard. (If applicable, the Returns Policy may also set out procedures applicable to repairs or replacement of defective Products delivered.)

7) Software and Service Use Rights

7.1. Where any Product supplied is or includes software (“Software”), this Software (a) is licensed to you (and not sold to you) by the licensor/owner subject to their license agreement or terms included with such Software or presented during your checkout process or software installation process (“License Terms”). In addition:

7.2. With respect to your purchase of a Service Use Right (as defined below) associated with a software-as-a-service, platform-as-a-service, or infrastructure-as-a-service offering operated and provided by a third party (“Third Party Service”), FastSpring is selling you an intangible right to access, use, and/or participate in such Third Party Service for a specified usage duration (a “Service Use Right”) and FastSpring is not the provider or operator of such Third Party Service. Your use of a Third Party Service is subject to the relevant terms of use or other license terms between you and the Third Party Service operator (and not us) related to such Third Party Service (“Service Terms”). You agree and acknowledge that these Terms only apply to our sale of Service Use Rights to you, and do not apply to your use of a Third Party Service. The company or entity that operates the Third Party Service is solely responsible for fulfilling, operating and providing the Third Party Service for which FastSpring resells you a Service Use Right. You agree to hold us harmless from and against any liability resulting from your use of, or inability to use, a Third Party Service, except that FastSpring (either directly or through our subcontractor) will provide reasonable customer support to you in connection with the fulfillment to you of access credentials as part of your purchased Service Use Right. FastSpring disclaims any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and FastSpring does not offer any warranties or guarantees in relation to the availability, use or results from using any Third Party Service for which FastSpring sells Service Use Rights. You are advised to refer to any Service Terms with regards to determining your rights against the operator of a Third Party Service.

8) Waiver and Limitation of Liability; Risk Allocation

8.1. YOU UNDERSTAND AND AGREE THAT FASTSPRING IS NOT THE MANUFACTURER OF THE PRODUCTS FASTSPRING OFFERS FOR SALE, AND IS NOT THE OPERATOR OF THIRD PARTY SERVICES FOR WHICH FASTSPRING OFFERS SERVICE USE RIGHTS FOR SALE THROUGH THE PROPERTY. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCTS AND THE FASTSPRING SERVICE ARE PROVIDED TO YOU “AS IS,” AND YOUR USE IS AT YOUR OWN RISK. FASTSPRING DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. UNLESS AGREED OTHERWISE OR REQUIRED BY APPLICABLE LAW, ANY WARRANTIES PROVIDED IN RELATION TO PRODUCTS OR FASTSPRING SERVICE ONLY EXTEND TO YOU ON THE UNDERSTANDING THAT YOU ARE A USER AND NOT A RESELLER OF THOSE PRODUCTS.

8.2. FASTSPRING HAS PRICED PRODUCTS AVAILABLE FOR PURCHASE FROM US UPON THE UNDERSTANDING, AND YOU HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (a) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICABLE PRODUCTS AND/OR FASTSPRING SERVICE WHICH GIVE RISE TO SUCH LIABILITY; AND (b) NEITHER FASTSPRING  NOR OUR VENDORS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSINESS) IN CONNECTION WITH YOUR USE OF THIS SITE OR YOUR PURCHASE OR USE OF ANY PRODUCT OR FASTSPRING SERVICE, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT FASTSPRING  WAS AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. 

8.3. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THESE TERMS LIMIT OUR LIABILITY TO YOU FOR ANY LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.

8.4. California Purchasers.  California, USA, residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

8.5. You agree to defend, indemnify and hold harmless us, our subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to (a) any Products purchased by you in connection with your use of the FastSpring Ecommerce Solution (including without limitation your use of any Third Party Service for which you purchase Service Use Rights from us), or (b) the violation of Section 9 of these Terms by you, your employees, consultants, agents, distributors, or customers.

8.6. To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, FastSpring shall have no liability to you in the event of the Products or the FastSpring Service infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. FastSpring shall be obliged to transfer to you only such right or title as FastSpring has.

 

9) Export & Customs Duties

9.1. Each Product and any related items (including software, technology and technical information) sold, exported, transferred, supplied or licensed by us may be subject to and governed by the laws of the United States and other countries, including but not limited to the US Export Administration Regulations (EAR) and US Foreign Assets Control Regulations (FACR). You are required to comply with all applicable laws relating to the export, re-export, transfer, use, or import of any Product or related items. Diversion contrary to applicable law is prohibited. Notwithstanding any other request or agreement to the contrary, neither you nor FastSpring shall take or be required to take any action prohibited or penalized under US or applicable foreign law.

9.2. The tangible shipment of Products from one country for delivery in another country may be subject to customs duties, excise, income, import, export fees, taxes and/or other charges in the country of ultimate destination. Unless otherwise expressly stated by FastSpring during the order process, (a) your payment for the order in question does not include any customs duties, excise, income, import, export fees, taxes and/or other charges that may be due and payable in the Product’s country of ultimate destination, and (b) the receiving party in the Product’s country of ultimate destination is responsible for making entry and properly declaring the merchandise to the appropriate customs authorities, paying any applicable customs duties/fees/taxes/charges, and/or satisfying any additional import-related requirements. You should contact the local customs authorities in the relevant jurisdiction for further information on the applicable customs requirements and procedures, duties, fees, taxes, and/or other charges that may be assessed against the Product.

 

10) Notices

10.1. Any notice or other communications in relation to these Terms may be given by sending the same by hand delivery, pre-paid post, fax or e-mail (a) with respect to notices and communications to you, to the address and contact information you provided in connection with your purchase of Products and/or FastSpring Service; and (b) with respect to notices and communications to us, to the address listed at the beginning of these Terms or as otherwise specified in your order confirmation email or notification of Acceptance. These will also be the addresses for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:

10.2. In relation to hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter);

 

11) Dispute Resolution by Binding Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU AND FASTSPRING TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND FASTSPRING CAN SEEK RELIEF FROM EACH OTHER, SUBJECT TO THE TERMS AND OPT-OUT OPTION SET FORTH BELOW

11.1. This Section 11 applies to all Purchasers to the fullest extent allowable by law. You and FastSpring agree that any and all past, present and future dispute, claims, or causes of action (a) arising out of or relating to any aspect of the relationship between you and us; (b) against FastSpring that arise out of your use of the FastSpring Service or a Product; (c) regarding the existence, validity and scope of this agreement to arbitrate; or (d) any other controversies or disputes between you and FastSpring or any of FastSpring’s affiliates, licensors, distributors, suppliers or agents, whether arising prior to or after you agreed to the Terms (collectively, “Dispute(s)”), shall be determined by arbitration, unless (A) your Country of Residence does not allow this arbitration agreement; (B) you opt out as provided in Section 11.9 below; or (C) your Dispute is subject to an exception to this agreement to arbitrate set forth in Section 11.10. You and FastSpring further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action.

11.2. “Country of Residence” for purposes of this Section 11 means the country in which you hold citizenship or legal permanent residence, as well as any country from which you regularly access and use the FastSpring Service, or purchase or attempt to purchase any of the Products.  If more than one country meets that definition for you, then your country of citizenship or legal permanent residence shall be your Country of Residence, and if you have more than one country of citizenship or legal permanent residence, it shall be the country with which you most closely are associated by permanent or most frequent residence. 

11.3.  By agreeing to these Terms, you and FastSpring each and both agree to resolve any Disputes through final and binding arbitration as discussed herein, except as set forth under Section 11.10 below.

11.4. FastSpring will make every reasonable effort to resolve any disagreements that you have with us. Before filing a claim against FastSpring for any Dispute, you agree to try to resolve the Dispute informally by contacting us at support@fastspring.com. In the event that FastSpring cannot resolve a disagreement to your satisfaction within 30 days after the email noting the Dispute is sent (or if FastSpring cannot informally resolve a concern FastSpring may have with you after attempting to do so informally), then you and FastSpring agree that except as expressly provided in Section 11.10, any Dispute will be governed by the procedure outlined in this Section 11.

11.5. Arbitration Procedure and Fees. If your Country of Residence is in the United States, you and FastSpring agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and, where applicable, the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought (collectively, “AAA Rules”), except to the extent otherwise specified in this Section 11.  Those AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.  Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules.  A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.)  Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 11.5, if a party seeks injunctive relief that would significantly impact other FastSpring Purchasers as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 11.5 shall make that determination.  If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.

 

If your Country of Residence is outside of the European Economic Area (“EEA”), the United Kingdom and Switzerland, you and FastSpring agree that the arbitration will be held in Santa Barbara County, California, or, at your election, will be conducted telephonically or via other remote electronic means.  If your Country of Residence is inside of the EEA, the United Kingdom, or Switzerland, you and FastSpring agree that the arbitration will be held in Amsterdam, Netherlands, or, at your election, will be conducted telephonically or via other remote electronic means. If FastSpring elects arbitration, FastSpring shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, FastSpring will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys’ fees, except as otherwise required by law. If your Country of Residence is the United States, this Section 11 shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms. The language of any dispute resolution procedure or any proceedings will be English.

11.6.  Regardless of your County of Residence or the rules of a given arbitration forum, you and FastSpring agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor FastSpring may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing (and as an illustrative but not exhaustive example), a claim to resolve any Dispute against FastSpring will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

11.7. Class Action and Collective Action Arbitration Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR FASTSPRING SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 11.7 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.

11.8. Opt-out of Agreement to Arbitrate.  If you do not wish to be subject to this arbitration agreement, you may opt out of this agreement to arbitrate by contacting support@fastspring.com within 30 days of first accepting these Terms.  You must date the written notice, and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with FastSpring through arbitration. If no written notice is submitted by the 30-day deadline, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to the exceptions set forth in Section 11.10 below. By opting out of the agreement to arbitrate, you will not be precluded from using the FastSpring Service, but you and FastSpring will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

11.9. Exceptions to Arbitration.  Notwithstanding your and FastSpring’s agreement to arbitrate Disputes, if your Country of Residence is the United States, you and FastSpring retain the right (a) to bring an individual action in small claims court; and (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. If your Country of Residence is not the United States, you and FastSpring may assert claims, if they qualify, through the small claims process in the courts of your Country of Residence.  Further, as applicable, this Section 11 does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence, if and to the extent applicable; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.

 

11.10. Survival and Severability of This Arbitration Provision. This Section 11 shall survive the termination or expiration of these Terms. With the exception of Section 11.7, if a court or arbitrator decides that any part of this Section 11 is invalid or unenforceable, then the remaining portions of this Section 11 shall nevertheless remain valid and in force. In the event that a court or arbitrator finds that all or any portion of Section 11.7 to be invalid or unenforceable, then the entirety of this Section 11 “Dispute Resolution By Arbitration” shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 12.

12) Governing Law and Venue

Any Dispute shall be governed by the internal laws of the State of California, without regard to or application of its choice of law rules or conflicts-of-laws principles, except that Section 11 of these Terms also shall be governed by the Federal Arbitration Act in connection with any Dispute involving a person whose Country of Residence is the United States. In the event that the agreement to arbitrate in Section 10 is found not to apply to you or to a particular Dispute, and except as otherwise provided in Section 11.9, you agree that any claim or Dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Santa Barbara County, California, and both you and us agree to submit to the personal jurisdiction of the courts located within Santa Barbara County, California, for the purpose of litigating all such claims or Disputes.

13) General

These Terms sets forth the entire understanding between you and us with respect to your use of the FastSpring Service and your purchase of Products from FastSpring, and supersedes any and all prior or contemporaneous communications, agreements, and representations, whether written or oral, related thereto. No amendment to these Terms will be valid unless made in writing and signed by you and us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. FastSpring may engage the services of subcontractors or agents to assist FastSpring in the performance of its obligations related to these Terms. You may not assign or transfer your rights under these Terms, and any purported assignment or transfer shall be void. No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition. If for any reason FastSpring determines or an arbitrator or court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction: (a) these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and (b) in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect.