Last Updated April 28, 2021
TERMS OF SERVICE FOR VENDORS
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 Administrative Dashboard, is governed by these Terms of Service. For purposes of these Terms of Service, references to “FastSpring”, “us”, “we”, or “our” mean Bright Market, LLC d/b/a FastSpring, FastSpring BV, and FastSpring Canada. You (“you” or the “Vendor,” as further defined below) and we are each a “Party” or collectively the “Parties.”
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 via email. You are responsible for regularly reviewing the most current version of the Terms of Service, which are available at www.fastspring.com/terms. If you object to a change, you must cease use of the FastSpring Service. 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.
PLEASE NOTE THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. SEE SECTION 11 FOR DETAILS.
SECTION 1. THE FASTSPRING SERVICE.
Use of the FastSpring Service must be accompanied with an Order Form or Sign-up Flow (“Sign-up Flow”) for that Service. You are only entitled to use those features of the FastSpring Service 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 FastSpring Service, FastSpring Administrative Dashboard, and FastSpring websites (or any part thereof) from time to time at our sole discretion and that we shall not be liable to you or to any third party for any modification of the FastSpring Service. At any time, FastSpring may use subcontractors or strategic partners to perform portions of the FastSpring Service. The FastSpring Service may be comprised of new services that FastSpring may choose to make available in its sole discretion from time to time. FastSpring may modify or terminate any of these services in its sole discretion at any time. You may be able to subscribe to each of these services individually or as a bundle or bundles, again as determined by FastSpring from time to time in its sole discretion. You may add to your existing subscription or subscribe to a new service 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 service being added at that time. All services offered form part of the FastSpring Service and are subject to these Terms of Service.
SECTION 2. SELECTED DEFINITIONS.
Note: Additional capitalized terms are defined elsewhere in these Terms of Service.
“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.
“Agreement” means all agreements related to the FastSpring Service including these Terms of Service, the various 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. “FastSpring Administrative Dashboard” means the online dashboard through which the FastSpring Service is provided and includes the online interface application which Vendor may use to add Products and insert the MSRP for each Product offered for sale via one or more FastSpring Service.
“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 Administrative Dashboard, or FastSpring websites.
“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.
“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 features of the FastSpring Service 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 FastSpring Service features to be provided to that Vendor, 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.
“Vendor” means you, 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.
3.1. 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 required by FastSpring in connection with the FastSpring Service, nor alter the appearance, placement or other aspect of any FastSpring Marks displayed in connection with the FastSpring Service. FastSpring agrees to use reasonable efforts to protect the proprietary rights of Vendor and its licensors; however, FastSpring expressly disclaims any obligation or intention to adopt or implement particular or additional safeguards or other measures, beyond those generally utilized as part of the FastSpring Service, to protect Vendor’s proprietary rights. Vendor expressly accepts the risks associated with the use of the FastSpring Service. FastSpring agrees to inform Vendor of any violation of Vendor’s or Vendor’s licensors’ proprietary rights that come to its attention.
3.2. FastSpring Marks are owned or licensed solely and exclusively by FastSpring. FastSpring grants Vendor a right, during the Term, 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 Marks, 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.
3.3. Each Party is granted the right to display the name, logos, service marks, trademarks of the other Party on its website, and to describe the Parties’ business relationship on its websites. Vendor 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 Vendor becomes aware, which may constitute an infringement or passing off of any of the FastSpring Marks. At no time during or after the Term will Vendor challenge or assist others to challenge a FastSpring Mark, or the registration thereof, or attempt to register any trademarks, marks or trade names confusingly similar to a FastSpring Mark.
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) those features of the FastSpring Service 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.
(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 the FastSpring Service, or any portion thereof, 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 Statement, this Agreement and other guidelines released by FastSpring from time to time.. 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 shall not, and will not permit others to, engage in the sales of Products relating to the following types of activity: adult-themed, pornographic or similar material, tobacco, pharmaceutical sales, gambling, hate/violence, third-party processing (e.g., as a service bureau) or any form of unlawful activity. In the event of breach of this provision, FastSpring may terminate the Agreement without notice and, in the case of unlawful activity, may report Vendor to the appropriate authorities.
SECTION 5. DURATION AND TERMINATION.
5.1. Term. Unless otherwise agreed in an Order Form or Sign-Up Flow, 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 or any FastSpring Service, which would result in the termination of the additional terms applicable to that service, by giving the other Party thirty (30) days’ prior written notice of termination.
Notwithstanding anything contained in these Terms of Service to the contrary, should FastSpring, in its sole discretion, reasonably determine or suspect that the FastSpring Administrative Dashboard, the Products or the FastSpring Service have been: (a) fraudulently or illegally used by either Vendor or any party affiliated with Vendor, (b) that Vendor may have engaged in deceptive practices, or (c) 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 have 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.
Upon termination, FastSpring shall 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, each Party shall promptly return or destroy the other’s Confidential Information.
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 website, including hyperlinks, and 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. Corporate Authority. Vendor 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:
6.2. 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. Vendor agrees that its sole and exclusive remedy for any breach of this representation and warranty is for Vendor to terminate this Agreement.
SECTION 7. WARRANTY AND LIMITATION OF LIABILITY.
7.1. “AS IS” WARRANTY; DISCLAIMER OF WARRANTIES. THE FASTSPRING SERVICE, THE 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, FASTSPRING WEBSITES 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 or feature from the FastSpring Service, FastSpring Administrative Dashboard, or FastSpring websites at any time in its discretion.
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, FASTSPRING’S AGGREGATE LIABILITY TO VENDOR SHALL NOT EXCEED THE FEES PAID OR PAYABLE TO FASTSPRING DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY, EXCEPT IN THE EVENT OF A CLAIM BY VENDOR FOR TRANSACTION AMOUNTS ALLEGED TO BE UNPAID AND OWED BY FASTSPRING TO VENDOR, IN WHICH CASE THE MAXIMUM LIABILITY OF FASTSPRING SHALL BE THOSE AMOUNTS.
SECTION 8. INDEMNIFICATION.
8.1. Vendor Indemnification. Vendor agrees to indemnify, defend and hold harmless FastSpring, its Affiliates and licensors, 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 negligence or willful misconduct; (iii) Vendor’s violation of any law, regulation or right of any third party; (iv) Vendor’s breach of any representation, warranty or obligation under this Agreement; (v) any person’s or entity’s purchase or use of the Products; (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. 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) 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, asserted by a third party and due to or arising out of: (i) FastSpring’s negligence or willful misconduct; (ii) FastSpring’s violation of any law, regulation or right of any third party; (iii) FastSpring’s breach of any representation or warranty under this Agreement; (iv) any dispute or action between FastSpring and any third party, including Purchasers; or (v) an allegation 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) 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 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 9 shall not apply to any Confidential 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 Statement and applicable laws, rules and regulations.
9.5. EU-US Data Privacy. FastSpring complies with the General Data Protection Regulation (EU) 2016/679 (“GDPR”). Personal Information will be processed only if such processing is based on any of the legal grounds listed in section 6(1) of the GDPR (unless an exemption applies) and other applicable data protection laws, including those of Switzerland and the United Kingdom (UK) as outlined below:
9.6. FastSpring’s Obligations as a Data Processor. For the following features of the FastSpring Service, FastSpring acts as a Data Processor (“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.
Vendor expressly authorizes FastSpring to use one or more sub-processors listed here (“Sub-processors”) when providing the FastSpring Service. 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 at 801 Garden Street, Suite 201, Santa Barbara, CA 93101, United States of America. 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 (“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 Products. 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. Vendor acknowledges that it complies with 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 FastSpring Service. FastSpring provides the relevant information on the processing of Vendor’s employees their Personal Information via its privacy statement available on its Website.
9.9. Cross-Border Data Transfers Where FastSpring is a Controller. FastSpring and FastSpring B.V., acting as a Joint Controllers, have executed Controller-to-Controller Standard Contractual Clauses in accordance with Decision 2001/497/EC to facilitate the transfer of Personal Information collected in the EEA, UK and Switzerland to the United States. This agreement applies to all Vendor Personal Information that is transferred by FastSpring from the EEA to the United States where FastSpring acts as a Controller of such data.
9.10. Cross-Border Data Transfers Where FastSpring is a Processor. Where FastSpring acts as a Data Processor and Vendor is located in the EEA, UK or Switzerland, Vendor agrees to execute Controller-to-Processor Standard Contractual Clause in accordance with Decision 2010/87/EU. To execute the Standard Contractual Clauses, Vendor should review them here and select the appropriate option when prompted.
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 firstname.lastname@example.org or to Vendor at physical address listed in Vendor’s registration at the time of the notice.
10.2. E-mail and SMS/MMS Communications. Vendor shall not use commercial e-mail or SMS/MMS or similar text messaging where the e-mail or messaging violates any applicable laws or regulations regarding the use of commercial e-mail, messaging or otherwise. Any advertising or other marketing materials that mention FastSpring, its site, or hyperlinks to any FastSpring site must comply with all advertising or other laws within the territories to which Vendor delivers those materials. Vendor accepts responsibility for compliance with this policy even if Vendor utilizes the services of a third party. If FastSpring is charged any fines, penalties or incurs any costs, including attorney fees, due to Vendor’s non-compliance with this provision, Vendor agrees that FastSpring may deduct such amounts from what is due to Vendor under this Agreement or, in the absence of sufficient funds, Vendor shall promptly reimburse FastSpring all such amounts.
10.3. 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.
10.4. Governing Law and Judicial Forum. 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 conflict or choice of laws. Except as otherwise required by applicable law or provided in Section 11, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and FastSpring agree that any Dispute shall be heard by the state courts located in Santa Barbara County, California, or in the United States District Court for the Central District of California, and both you and FastSpring consent to venue and personal jurisdiction there.
10.5. 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.
10.6. Severability. Should any provision of this Agreement be declared to be void or invalid by the final decision of any court of competent jurisdiction, that provision shall be revised to the extent permitted as closely as possible to effectuate the intent of the Parties, and the remainder of this Agreement shall continue to be in force between the Parties.
10.7. 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.
10.8. 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.
SECTION 11. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS “DISPUTE RESOLUTION BY BINDING ARBITRATION” PROVISION VERY CAREFULLY. IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE SUBJECT TO THIS AGREEMENT.
11.1. Scope of Arbitration Provision. Vendor and FastSpring agree that any and all past, present and future dispute, claims, or causes of action arising out of or relating to Vendor’s use of any of the Services, this Agreement, or any other controversies or disputes between Vendor and FastSpring or any of FastSpring’s affiliates, licensors, distributors, suppliers or agents, whether arising prior to or after the effective date of this Agreement (collectively, “Dispute(s)”), shall be determined by arbitration, unless Vendor’s Dispute is subject to an exception to this agreement to arbitrate set forth in Section 11.7. The Parties further agree that any arbitration pursuant to this Section 11 shall not proceed as a class, group or representative action.
11.2. Informal Dispute Resolution. FastSpring wants to address concerns without the need for a formal legal dispute. Before filing a claim against FastSpring, Vendor agrees to try to resolve the Dispute informally by contacting email@example.com. Similarly, FastSpring will undertake reasonable efforts to contact Vendor (if we have contact information for Vendor) to resolve any claim we may possess informally before taking any formal action. If a Dispute is not resolved within 30 days after the email noting the Dispute is sent, the Parties may initiate an arbitration proceeding as described below.
11.3. Agreement to Arbitrate. By agreeing to this Agreement, Vendor and FastSpring each and both agree to resolve any Disputes through final and binding arbitration as discussed herein, except as set forth under “Exceptions to Agreement To Arbitrate” below. You and FastSpring further agree that the arbitration will be held in Santa Barbara, California.
11.4. Arbitration Procedure and Fees. The Parties agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator unless the amount in Dispute exceeds [$10,000,000.00 (TEN MILLION U.S. DOLLARS)], in which case a three-arbitrator panel shall be required. 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. In the event of a three-arbitrator panel, each Party shall pick one arbitrator, and the two Party-selected arbitrators shall select a third from the AAA’s roster of arbitrators. 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. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. Each Party shall bear the expense of its own attorneys’ fees, except as otherwise required by law.
11.5. Arbitration Shall Proceed Individually. 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, 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.
11.6. Class Action 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 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 11.6 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
11.7. Exceptions to Agreement to Arbitrate. Notwithstanding your and FastSpring’s agreement to arbitrate Disputes, you and FastSpring retain the right (i) to bring an individual action in small claims court; and (ii) 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.
11.8. Survival and Severability of This Arbitration Provision. This Section 11 “Dispute Resolution By Arbitration” shall survive the termination or expiration of this Agreement. With the exception of Section 11.6 “Class Action Waiver,” 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 11.6 “Class Action Waiver” 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 10.
AGREEMENT LANGUAGE FOR AGREEMENT TO TERMS:
__ I AGREE TO THE TERMS OF SERVICE (WHICH INCLUDE AN ARBITRATION PROVISION TO RESOLVE DISPUTES), INCLUDING ALL APPLICABLE ADDENDA AND ADDITIONAL TERMS
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.