Last Updated June 2020

FASTSPRING
TERMS OF SERVICE

 

Please carefully read these Terms of Service, including any of the related terms for each Service (as defined below) (collectively, the “Terms of Service” or sometimes, the “Agreement”). Your use or subscription to any FastSpring web site, the FastSpring Service or the FastSpring App, is governed by these Terms of Service.  

FastSpring’s leading unified ecommerce service makes it easy for businesses selling software to turn their website into a growth engine. Deliver a world-class ecommerce experience and save hundreds of hours of developer time with global payment capabilities, conversion-optimized shopping experiences, recurring billing, and robust integrations.  Competing big in a global market while staying lean and nimble has never been as easy.

The FastSpring Service is provided in rapidly and constantly evolving markets.  Therefore, FastSpring reserves the right in our sole discretion, to update and change any or all of these Terms of Service at any time.  When we change these Terms of Service, we will modify the “Last Updated” date above. If any revision we make constitutes a material change to the Agreement, we will notify you. FastSpring will determine in its sole and absolute discretion what constitutes a “material change,” which we shall exercise in good faith and using common sense and reasonable judgment. You are responsible for regularly reviewing the most current version of the Terms of Service, which are available at www.fastspring.com/terms. Your continued use of any of the services comprising the FastSpring Service after any changes have been made to the Terms of Service shall constitute your consent to be bound by such changes. If you object to any of these Terms of Service, or any changes hereto, whether material or otherwise, your sole and exclusive remedy shall be to terminate your use and any applicable subscriptions to the FastSpring Service according to the terms herein.

These Terms of Service incorporate by reference the FastSpring privacy policy posted at http://fastspring.com/privacy (the “Privacy Policy”), which also may be amended from time to time.

 

SECTION 1.  THE FASTSPRING SERVICE.

We offer the following services (collectively, the “FastSpring Service”) as a unified ecommerce service provided through our proprietary software-as-a-service platform, and/or FastSpring purchasing facility which we host for our Vendors.  Use of the FastSpring Service must be accompanied with an Order Form or Sign-up Flow for that Service. You are only entitled to use the Services for which you are current and compliant with all applicable Terms of Service. You acknowledge and agree that we reserve the right to modify the Services (or any part thereof) from time to time and that we shall not be liable to you or to any third party for any modification of the Services.  At any time, FastSpring reserves the right to have all or any portion of the FastSpring Service performed by its subcontractors or strategic partners.

You may subscribe to additional Services, including new services made available by FastSpring from time-to-time, or increase your existing subscription by executing an additional Order Form or completing an additional Sign-up Flow. Each new sign-up flow or Order Form will include the price and billing date(s) of the Services being added at that time. All new Services are subject to these Terms of Service.

1.1 Digital Retailer.  FastSpring operates as the seller and merchant of record of the Product, enabling instant global sales and allowing FastSpring to handle global transaction security and compliance along with all VAT and sales tax collection, reporting and remittance. Additional Terms of Service – Digital Retailer Services.

1.2. Subscription Management.  Recurring billing platform, communication tools, dashboards, portals, reporting tools, API’s, and related support. Additional Terms of Service – Subscription Billing Management Services.

1.3. Affiliate Marketing. Performance advertising directory and platform, utilized to launch and manage marketing campaigns with media partners and automate commission calculation and payout. Additional Terms of Service – Affiliate Marketing Services

1.4. Product File Backup Offer. Allow buyers to purchase a copy of Product(s) for reinstallation or other uses consistent with the terms and conditions under which the Product was sold, with an extended download or shipped physical media such as CD. Additional Terms of Service – Buyer Backup Services

 

SECTION 2. DEFINITIONS.

Abandoned Account” means any Vendor account which has had no sales or other commercial activity for at least six months immediately preceding the determination AND which has a positive account balance which is less than the minimum payment amount described in the Digital Retailer Services terms of service (link in Section 1.1 above).

“Agreements” means all agreements related to the FastSpring Service including these Terms of Service, the additional Terms of Service set forth in Section 1, the Order Form and any other agreement between the Parties in connection with the FastSpring Service. 

“Confidential Information” means the inventions, trade secrets, computer software in both object and source code, algorithms, documentation, know how, technology, ideas, and all other business, customer, technical, and financial information owned by FastSpring or Vendor, which is designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.

Corporate Affiliate” means any entity which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party in question, as the case may be.

“Digital Retailer Rate” means the discount FastSpring will receive on the Transaction Amount, unless otherwise set forth in the Order Form or Sign-up Flow, under the terms of this Agreement when purchasing a Product from Vendor that FastSpring will then immediately resell to a Purchaser via the FastSpring Service.

FastSpring App” means FastSpring’s online interface which Vendor may use to add Products and insert the MSRP for each Product offered for sale via one or more FastSpring Service.

“FastSpring Deduction” means the total amount deducted from each Transaction Amount, including (i) the Digital Retailer Rate times the Transaction Amount and (ii) the Transaction Fee. The FastSpring Deduction is in consideration of our provision of the FastSpring Service, a purchasing facility which enables the processing of payments (the “Main Service”) in addition to certain ancillary services such as foreign exchange and tax compliance (the “Ancillary Services”.)

 FastSpring Mark(s)” means any trademark, service mark, logo, business name or other identifying mark used by FastSpring in connection with the FastSpring Service.

FastSpring Service” means the purchasing facility and/or software as a service platform provided through the FastSpring server or FastSpring Administrative Dashboard, including the administration, banking and support elements of the facility, and any other product or service provided by FastSpring, its subcontractors or its strategic partners through the FastSpring server.  FastSpring Service also means FastSpring’s Digital Commerce Business Platform Service (“DCBP”), Subscription Billing Management Service (“SBMS”), Payment Processing Service or any other service offered by executing an additional Order Form. 

License Right” means the right on the part of the Purchaser to install and use a Product.

Manufacturer’s Suggested Retail Price” (the “MSRP”) means the suggested retail price supplied by Vendor, either directly to FastSpring at the time the FastSpring store is constructed, or via the FastSpring Administrative Dashboard.  The Vendor may alter its MSRP from time to time by offering to FastSpring periodic promotions or other discounts, communicating the same via changes made by Vendor directly in the FastSpring Administrative Dashboard or via other means of communication from Vendor to FastSpring.

Order Form” means each order form accepted by Vendor incorporating the terms of this Agreement which shall contain a description of the services to be provided by FastSpring, the term of any subscriptions to be provided by FastSpring, and the related fees.

Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.

Product(s)” means (i) a product and/or (ii) any access to content, software-as-a-service or other service, in each case which is offered for sale using the FastSpring Service, and which is registered with FastSpring via the FastSpring Administrative Dashboard as a Product of Vendor that FastSpring is authorized to resell, and in each case including all related documentation. 

Purchaser” means a person who, or organization that, purchases from FastSpring, or from Vendor via a FastSpring Service, the title, License Rights, and/or usage rights to a Product. 

Sign-up Flow” means an online flow accepted by Vendor containing the services to be provided by FastSpring which shall contain a description of any subscriptions and the related fees, incorporating the terms of this Agreement.

Third Party Applications” means, where applicable, online Web-based applications or services and offline software products that are provided by third parties and that interoperate with the FastSpring Service

“Transaction Amount” means the gross amount collected from a Purchaser by FastSpring in connection with a Transaction, inclusive of (i) MSRP and (ii) any amounts collected from a Purchaser in connection with a Transaction other than the MSRP of Products (including without limitation any amounts received for shipping and handling, sales or use taxes, value added or other Transaction based taxes, import or export duties or fees).

“Transaction Fee” means the fixed fee per Transaction as set forth in the Order Form or Sign-up Flow.

Vendor” means the individual or organization whose name is entered and submitted on the Order Form or online Sign-up Flow whose Products FastSpring will resell under this Agreement or to whom FastSpring will provide the FastSpring Service or other services pursuant to an additional Order Form or Sign-up Flow executed by Vendor and FastSpring.

 

SECTION 3.  INTELLECTUAL PROPERTY RIGHTS.

The intellectual property rights in the Products shall remain the sole property of Vendor or its licensors. This Agreement does not grant to FastSpring any interest, right or title in or to the intellectual property rights in the Products of Vendor or its licensors. As between Vendor and FastSpring, FastSpring owns and shall retain all right, title and interest (including and without limitation all intellectual property rights) in the FastSpring Service. Vendor shall not remove any FastSpring Marks from the FastSpring Service. FastSpring agrees to adhere to standard industry practices in regard to protecting the proprietary rights of Vendor and its licensors. FastSpring agrees to inform Vendor of any violation of such proprietary rights that come to its attention.

FastSpring Marks are owned or licensed solely and exclusively by FastSpring. FastSpring grants Vendor a right, during the term of this Agreement, to display the FastSpring logo on Vendor’s websites relating to commerce with the phrase “powered by FastSpring” or similar phrasing.  Except as specifically provided in this Agreement, this Agreement does not give Vendor any right to use any FastSpring Mark, and any use of any FastSpring Mark by Vendor shall inure to the benefit of FastSpring. Vendor agrees, upon request, to stop or adjust any uses of FastSpring Marks.

 

SECTION 4.  GRANT OF LICENSE

FastSpring Service License. Subject to (a) your timely payment of all fees set forth in the Order Form or online Sign-up Flow and (b) your compliance with these Terms of Service, we hereby grant to Vendor a non-exclusive, non-transferable, limited right and license to use (and permit your authorized users to use) the Services to which you have subscribed, solely for your internal business purposes during the period set forth on the Order Form or online Sign-up Flow.

4.1. Limitations.

(a) Vendor will not (1) copy, modify  or create any derivative works of the FastSpring Service (or any portion thereof); (2) disassemble, reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code, the underlying ideas, algorithms, structure or organization of the FastSpring Service; (3) assign, transfer, lease, provide services to third parties using the FastSpring Service, rent or redistribute the FastSpring Service; or (4) authorize or permit any other third party to do any of the foregoing.

(b) There are no implied licenses. There is no license to source code. All rights not expressly granted to Vendor are reserved solely to FastSpring.

(c) Vendor will not remove, alter, cover or obfuscate any copyright, trademark or other proprietary rights notices placed or embedded by FastSpring on or in any FastSpring Service.

(d) Nothing in this Agreement permits Vendor to sublicense, distribute, or resell FastSpring products, or provide any portion of FastSpring Service to any other third party.

4.2. Open Source Software. A portion of the FastSpring Service may contain or consist of open source software. The open source software is not distributed or conveyed to Vendor.

4.3. Third Party Applications.  FastSpring may offer certain Third Party Applications to Vendor by way of the relevant Order Form.  Any procurement of such Third Party Applications by Vendor shall be subject to the terms specified in the relevant Terms of Service. In addition, FastSpring or third party providers may offer Third Party Applications or services, including implementation, customization and other consulting services related to Vendor’s use of the FastSpring Service. Except as set forth in the relevant Terms of Service, FastSpring does not warrant any such Third Party Applications or services, regardless of whether or not such Third Party Applications or services are provided by a third party that is a member of a FastSpring partner program or otherwise designated by FastSpring as “certified”, “approved” or “recommended”. FastSpring is not responsible for any aspect of such Third Party Applications or services that Vendor may procure or connect to through the FastSpring Service, or any descriptions, promises or other information related to the foregoing. If Vendor installs or enables Third Party Applications or services for use with the FastSpring Service, Vendor agrees that FastSpring may allow such third party providers access to Vendor’s data as required for the interoperation of such Third Party Applications with the FastSpring Service. No procurement of such Third Party Applications or services is required to use the FastSpring Service. Vendor shall not misuse any Third Party Applications accessible to Vendor via FastSpring. Usage of Third Party Applications by Vendor constitutes Vendor’s acceptance of the terms and conditions associated with any such Third Party Applications.

4.4. Compliance.  Vendor is responsible for its own continual compliance with the Privacy Policy, the Terms of Use and this Agreement and other guidelines released by FastSpring from time to time. For additional information on the FastSpring Terms of Use, please see our link at the bottom of this page.Vendor shall not, and will not permit others to, engage in activities prohibited by FastSpring, including without limitation: (i) intentionally accessing data not intended for use by Vendor or its Purchasers, (ii) attempting to breach security or authentication measures without proper authorization or interfere with the FastSpring Administrative Dashboard or the FastSpring Service, (iii) taking any action in order to obtain software or services to which Vendor or its Purchasers are not entitled, or (iv) sharing passwords or log-in information, or otherwise using passwords or log-in information in a way that is not authorized by FastSpring. Vendor acknowledges and agrees that from time to time FastSpring may require changes to Seller’s website to maintain compliance with card association requirements. Vendor agrees to use its best
efforts to make such requested changes in a timely manner.

 

SECTION 5.   DURATION AND TERMINATION.

5.1. Term.  This Agreement is effective as of the date of execution of the relevant Order Form or online Sign-up Flow (the “Effective Date”) and will continue for a period of one (1) year (the “Term”). At the end of the initial Term, this Agreement will automatically renew for another one (1) year (each a “Renewal Term”).  At the end of each subsequent Renewal Term, this Agreement will again automatically renew for another one (1) year Renewal Term, unless terminated as set forth in Section 5.2 below.

5.2. Termination.  Either Party may terminate this Agreement by giving the other Party thirty (30) days prior written notice of termination. Any funds received by the FastSpring Service to the account of Vendor after termination shall continue to be paid out by FastSpring, as specified by these terms and conditions, but FastSpring shall not be required to process any further transactions reselling Vendor’s Products. FastSpring may retain a reasonable reserve from the funds collected from Purchaser transactions executed after the Agreement termination for up to three (3) months to cover future chargebacks and refunds. All or a portion of this reserve will be paid to Vendor after termination when deemed appropriate by FastSpring, and any remaining balance paid on the first regular payment date after the expiration of the three-month period.

Notwithstanding anything contained in these Terms of Service to the contrary, should FastSpring, in its sole discretion, determine that the FastSpring App  , the Products or the FastSpring Service have been: (a) fraudulently or illegally used by either Vendor or any party affiliated with Vendor, (b) that the Products are not acceptable, (c) that the Products are subject to an excessive fraud or chargeback rate, (d) that Vendor may have engaged in deceptive practices, or (e) that Vendor has violated any statute, law, regulation, etc., FastSpring shall have the right to suspend the FastSpring Service immediately, and to terminate any and all Agreements made in connection with the FastSpring Service immediately upon notice to the Vendor. Notwithstanding anything in these Terms of Service to the contrary, FastSpring shall the right, in its sole discretion, to terminate the FastSpring Service and all related Agreements immediately upon notice to the Vendor, if Vendor terminates or breaches any other contractual agreements between the Parties.

If Vendor determines, in its sole discretion, that the Products have been fraudulently used, that the security of the Products has been jeopardized, or that FastSpring is in material breach of its payment obligations to Vendor, Vendor may terminate all Agreements related to the FastSpring Service immediately on written notice to FastSpring.

Upon termination, FastSpring shall (i) remit all fees owing to Vendor according to the terms of this Agreement, including but not limited to the stipulations regarding reserves in this Section 5.2, and FastSpring shall immediately cease distribution of the Products, except when required to support existing Purchasers, (ii) promptly return to Vendor all copies of the Products and any marketing or other materials relating to the Products, and each Party shall return the other’s Confidential Information, (iii) provide Vendor with its data in a standard form within 30 days of termination of this Agreement, and upon FastSpring’s provision of such data to Vendor, FastSpring may delete all Vendor data from the FastSpring Service.

Upon termination of this Agreement, Vendor shall (i) no longer have access to the FastSpring Service and Vendor’s license to use the FastSpring Service shall immediately terminate, and (ii) immediately remove any reference to FastSpring on its site, including hyperlinks, from all online media and all printed media, including without limitation marketing collateral and print advertising.  

 

SECTION 6. REPRESENTATIONS AND WARRANTIES.

Vendor represents and warrants that:  

6.1. Legal Authority and Compliance.  It possesses all the rights necessary to make, have made, copy, modify, license, sell, offer to sell, market, export, import and distribute each of the Products worldwide; that such distribution and sale is lawful; that no Product will infringe the intellectual property rights or other rights, of any third party; and that no fraudulent or unlawful use of the FastSpring Administrative Dashboard and FastSpring Service will be caused or permitted by Vendor. Each description and all information provided to FastSpring or the FastSpring Service for any Vendor Product is wholly accurate, does not omit any information necessary to make it not misleading, and does not violate any applicable laws or regulations.  Its Products and their descriptions are not libelous, do not slander others, are not illegal to use, and do not contain devices which are intended to be used to perform illegal activities, nor are they designed for mass mailing or posting (e.g. “spamming” tools) and do not contain (a) obscene or pornographic material, (b) tobacco information and advertising, (c) pharmaceutical information and advertising, (d) gambling information and advertising; (e) hate/violence materials; or (f) third-party processing information. Vendor further warrants that FastSpring’s distribution of Vendor’s Products (whether by download, physical delivery or otherwise) and the performance of its other obligations on Vendor’s behalf or in connection with the Products, will not violate any laws concerning export over national borders such as encryption regulations, or any other laws, including international sanctions against certain countries.

6.2. Corporate Authority.  It has the right to enter into this Agreement and that the person who executes this Agreement is legally competent to be contractually bound to this Agreement.

FastSpring represents and warrants that:

6.3.   Legal Authority. It has the right to provide the FastSpring Service to Vendor and will use commercially reasonable efforts to maintain the security of the FastSpring Service and shall cease distribution of the Products at any time it has reason to believe that such security has been compromised and until such compromise is resolved through adjusted or additional security measures.

 

SECTION 7. WARRANTY AND LIMITATION OF LIABILITY.

7.1. “AS IS” WARRANTY; DISCLAIMER OF WARRANTIES.  THE FASTSPRING SERVICE, FASTSPRING ADMINISTRATIVE DASHBOARD AND THE INFORMATION, CONTENT, MATERIALS, AND PRODUCTS INCLUDED ON THE FASTSPRING WEBSITES ARE ALL PROVIDED BY FASTSPRING ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT. FASTSPRING DOES NOT WARRANT THAT THE OPERATION OF THE FASTSPRING ADMINISTRATIVE DASHBOARD OR THE FASTSPRING SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. Vendor expressly agrees that its use of the FastSpring Administrative Dashboard, the FastSpring Service and FastSpring websites are at Vendor’s sole risk. FastSpring reserves the right to withdraw or delete any information from this site at any time in its discretion. Except for any obligations FastSpring has to pay Vendor the funds in Vendor’s account that are owed to Vendor, Vendor agrees that its sole and exclusive remedy for any breach of this Agreement by FastSpring is for Vendor to terminate this Agreement.

7.2.  LIMITATION OF LIABILITY.   EXCEPT WITH REGARD TO EACH PARTY’S DEFENSE OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING SECTION 8 “INDEMNIFICATION”), NEITHER PARTY SHALL HAVE LIABILITY TO ANY OTHER PERSON OR ORGANIZATION FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSINESS), HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.

FOR ALL CASES AND CONTROVERSIES ARISING OUT OF FASTSPRING’S RELATIONSHIP WITH VENDOR, WHETHER OR NOT ARISING OUT OF THIS AGREEMENT AND WHETHER BROUGHT IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EACH PARTY’S AGGREGATE LIABILITY SHALL NOT EXCEED  THE AMOUNT REALIZED BY SUCH PARTY PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.

 

SECTION 8.  INDEMNIFICATION.  

8.1. Vendor Indemnification.  Vendor agrees to indemnify, defend and hold harmless FastSpring, its subsidiaries and strategic partners, and each of their officers, directors, agents, owners, employees, independent contractors and suppliers, from any claim, demand, action, cost and expense, including reasonable attorneys’ fees, due to or arising out of: (i) Vendor giving FastSpring any information which is inaccurate; (ii) Vendor’s alleged negligence or willful misconduct; (iii) Vendor’s alleged violation of any law, regulation or right of any third party; (iv) Vendor’s alleged breach of any representation, warranty or obligation under this Agreement; (v) any person’s or entity’s use of the Products as offered by the FastSpring Service or FastSpring Administrative Dashboard, including but not limited to violations of CAN SPAM or of anti-spyware legislation; (vi) the sharing or other misuse of log-in information by Vendor or third-parties or (vii) any dispute or action between Vendor and any third party, including Purchasers. For the avoidance of doubt, this Section 7.1 shall apply to any assessments, fines or penalties assessed by any card association or merchant processor on FastSpring in connection with any violation of association rules, regulations or standards by Vendor, including without limitation, excessive chargebacks. The foregoing obligation will not apply to the extent finally established by a court of competent jurisdiction that the claim was caused by FastSpring’s: (a) breach of this Agreement, (b) gross negligence or (c) willful misconduct.

8.2. FastSpring Indemnification.  FastSpring agrees to indemnify, defend and hold harmless Vendor and each of its officers, directors, agents, owners, employees, independent contractors and suppliers, from any claim, demand, action, cost and expense, including reasonable attorneys’ fees, due to or arising out of: (i) FastSpring’s alleged negligence or willful misconduct; (ii) FastSpring’s alleged violation of any law, regulation or right of any third party; (iii) FastSpring’s alleged breach of any representation, warranty or obligation under this Agreement; (iv) any dispute or action between FastSpring and any third party, including Purchasers; or (v) any claim alleging that the FastSpring Service or FastSpring Administrative Dashboard infringes or misappropriates the intellectual property rights of any third party.  The foregoing obligation will not apply to the extent established by a court of competent jurisdiction that the claim was caused by Vendor’s: (a) breach of this Agreement, (b) gross negligence or (c) willful misconduct.

 

SECTION 9. CONFIDENTIALITY AND DATA PROTECTION

9.1. In General.  All Confidential Information provided by a Party shall be maintained in confidence by the other Party, may only be used by the receiving Party for the performance of its obligations under this Agreement, and may not be shared with third parties without the disclosing Party’s prior written approval.  The terms of this Agreement shall be considered Confidential Information. The obligations of confidentiality set forth herein shall survive a period of three (3) years following the termination or expiration of this Agreement.

9.2. Permitted Disclosure.  Each receiving Party may communicate the disclosing Party’s Confidential Information to the receiving Party’s own and its Corporate Affiliates’ employees, contractors, agents, and professional advisers (collectively, “Representatives”) (a) who have a need to know such Confidential Information in connection with the receiving Party’s performance of its obligations pursuant to this Agreement, and (b) who are bound by a written nondisclosure agreement governing their access to and use of the disclosing Party’s Confidential Information.  Each receiving Party shall be liable for any misuse, misappropriation or improper disclosure of Confidential Information by any of its Representatives to whom Confidential Information is disclosed or made available by that receiving Party.

9.3. Exclusions.  The provisions of this Section shall not apply to any information disclosed by a Party to the extent the receiving Party can reasonably demonstrate such information (i) is or becomes lawfully available to the public through no act or omission of the receiving Party or its Representatives; or (ii) must be disclosed pursuant to a legal requirement under applicable securities or exchange laws or rules.

9.4. Compelled Disclosure.  In the event a third party seeks to compel disclosure of Confidential Information from a receiving Party by judicial, governmental or administrative process, requirement or order in the event the receiving Party has obtained a protective order governing the Confidential Information subject to the disclosure request, the receiving Party may disclose such information and shall provide notice to the disclosing Party of such disclosure as soon as reasonably practicable. FastSpring shall have the right to disclose all transaction information in response to judicial, governmental or administrative process, requirement, request or order, provided such disclosure is in accordance with FastSpring’s Privacy Policy and applicable laws, rules and regulations.

9.5 Privacy Shield Framework.  FastSpring complies with the EU-US Privacy Shield Framework for the transfer of Personal Information from European Union member countries to the United States. FastSpring has certified that it adheres to the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, Data Integrity and Purpose Limitation, Access, and Recourse, Enforcement and Liability. If there is any conflict between the policies in this Terms of Service and the Privacy Shield Principles as they relate to privacy, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification page, please visit https://www.privacyshield.gov/.

As explained in our Privacy Statement we sometimes provide Personal Information to third parties to perform services on our behalf. If we transfer Personal Information received under the Privacy Shield to a third party, the third party’s access, use, and disclosure of the Personal Information must also be in compliance with our Privacy Shield obligations. Therefore, third parties that use our products explicitly agree to abide by the EU-US Privacy Shield Framework or otherwise agree to execute the Standard Contractual Clauses issued by the European Commission for the purposes of transferring Personal Information from the EU to non-adequate countries outside the EU.

You can review our Privacy Shield registration here: https://www.privacyshield.gov/list.

9.6 FastSpring’s Obligations as a Data Processor. For the following services FastSpring acts as a Data Processor on behalf of and in the name of the Vendor: 

The details of such Processing are provided at the end of this section.  Each Party’s obligations in relation to such Processing are described hereunder.

Personal Information remains the Vendor’s property, acting as Data Controller. Therefore, the Vendor is responsible for providing Purchaser with prior information on Processing of the Personal Information during the performance of the Services, unless otherwise agreed between the Parties.

Where FastSpring acts as a Data Processor, the following clauses apply to its processing of Purchaser Personal Information on behalf of the Vendor:

Vendor expressly authorizes FastSpring to use one or more Sub-processor listed here when providing the Services. 

By accepting these Terms of Service Vendor accepts these Sub-processors. This list of Sub-processors may be updated from time-to-time.  It is the responsibility of Vendor to check the list for the most up-to-date listing of Sub-processors. FastSpring will allow Vendor the opportunity to reasonably object to the appointment of a subcontractor if such objection is for legitimate and business-related reasons (i.e. competitor, provider with whom Vendor has an ongoing dispute). Objections must be sent in writing to FastSpring. If no written objection is made by Vendor within ten (10) days following an update to the list of Sub-processors, Vendor is deemed to have accepted the new Sub-processor(s). If Vendor refuses a Sub-processor, FastSpring may apply to the Vendor a different price than the one initially agreed on to accommodate for any change to FastSpring’s use of such Sub-processors  or may terminate the Agreement without any liability to FastSpring.

Description of the Processing: 

9.7 FastSpring’s Obligations as a Joint Controller. FastSpring acts as a Joint Controller with the Vendor of Purchaser Personal Information where each Joint Controller directs its own processing of such Personal Information, including data collection and processing related to:  the payment by a Purchaser of Vendor’s products utilizing the FastSpring payment platform. Where FastSpring and Vendor act as Joint Controllers, each agrees that Each Joint Controller: 

Regarding the relationship with Purchaser and more generally Data Subjects, as defined by the GDPR, FastSpring will inform them via its Privacy Statement located here and Vendor acknowledges that such information complies the requirements of applicable data protection laws. In case Vendor receives any request for access from a Data Subject or to exercise, any other right granted under the applicable data protection laws for a Processing for which the Parties act as Data Controller, it must inform FastSpring without delay and the Parties will agree on how to answer to it.9.8 FastSpring’s Obligations as a Controller. For the processing of Personal Information of Vendor’s employees and staff, FastSpring acts as a Data Controller and therefore process the Personal Information for the purposes of assisting Vendor, following-up for the different and various requests, as well as maintenance and support as part of the Services. FastSpring provides the relevant information on the processing of Vendor’s employees their Personal Information via its privacy statement available on its Website.

 

SECTION 10.  GENERAL

10.1. Notice.  Any notice to be given between FastSpring and Vendor shall be deemed sufficiently given if forwarded by e-mail with a subject title “Legal Notice” to Vendor at the address in Vendor’s registration at the time of the notice, by email to FastSpring at legal-notices@fastspring.com or to Vendor at physical address listed in Vendor’s registration at the time of the notice. 

10.2. Agency. Nothing in this Agreement constitutes or shall be deemed to constitute a partnership or joint venture between the Parties, or to constitute either Party as an agent of the other.

10.3. Choice of Law; Dispute Resolution.

(a)  This Agreement shall be exclusively construed, interpreted, governed and enforced in accordance with the laws of the State of California, USA without regard to rules governing conflicts of laws. Any action related to or arising out of this Agreement shall be brought solely in a State or Federal court of competent jurisdiction located in the State of California, Santa Barbara County, and the Parties irrevocably commit to the jurisdiction and venue of said courts and waive any right to object thereto. 

(b) Except for claims seeking injunctive relief for which court relief may be sought, or claims involving intellectual property rights, the Parties shall arbitrate any dispute resulting from or arising as a result of this Agreement.

(c)  Neither Party may bring a claim or action arising out of or related to acts and/or omissions relating to or arising from this Agreement, regardless of form, against the other Party more than one (1) year after the occurrence of such acts and/or omissions. 

10.4. Force Majeure. Neither Party will be responsible for any delay or nonperformance of its obligations under this Agreement (except for payment obligations) to the extent caused by fire, war, riots, strikes, power surges or failure, labor disputes, acts of God, failure of subcontractors or their services or other causes beyond the reasonable control of the nonperforming Party.

10.5. Severability.  Should any part of this Agreement be declared to be void or invalid by the final decision of any court of competent jurisdiction, the remainder of this Agreement shall continue to be in force between the Parties. 

10.6. Assignment.  Neither Party may assign or transfer rights and conditions of this Agreement or any of its rights under this Agreement to any third party without the other Party’s written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement, without the consent of the other, to a successor entity that acquires all or substantially all of the Party’s assets or business, or a controlling interest in the Party’s stock. 

10.7. Marketing and Advertising

(a)  Joint Press Release. At FastSpring’s sole discretion, FastSpring may issue a press release announcing the relationship within thirty (30) calendar days of the Effective Date. 

(b) Trademarks. Each party is granted the right to display the name, logos, service marks, trademarks of the other party on its Web site, and to describe the parties’ business relationship on its Web site. Customer will promptly notify FastSpring of any use by any third party of the FastSpring Marks or any use by such third parties of similar marks, of which Customer becomes aware, which may constitute an infringement or passing off of any of FastSpring’s trademarks. At no time during or after the term of this Agreement will Customer challenge or assist others to challenge FastSpring’s trademarks or trade names, or the registration thereof, or attempt to register any trademarks, marks or trade names confusingly similar to those of FastSpring.

Addendum for Vendors in Russia

The FastSpring Deduction shall be deemed to apply as consideration in its entirety attributable to the Vendor’s ongoing use of the software provided to Vendor in connection with the FastSpring Service.