Last Updated April 23, 2021
ADDITIONAL TERMS OF SERVICE
DIGITAL RETAILER SERVICES
The following additional terms of service apply specifically to the FastSpring Digital Retail Services (the “Digital Retail Services Terms of Service”). These Digital Retailer Services Terms of Service incorporate by reference the FastSpring Terms of Service for Vendors (the “FastSpring Terms of Service”) which also may be amended from time to time.
Under the Digital Retailer Service (“Digital Retailer Service”) FastSpring shall act as a reseller of the Products, purchasing Products from Vendor and reselling them to Purchasers. This structure, where FastSpring is the seller and merchant of record of the Product, allows FastSpring to assume responsibility for all VAT, Sales Taxes (as defined in Section 4 below), Use Tax, and GST collection, reporting and remittance for Product sold via the FastSpring Service. FastSpring is not responsible for import taxes or customs duties. FastSpring is not responsible for determining whether any taxes apply to any transaction outside of the information provided on behalf of Vendors and Purchasers.
SECTION 1. SELECTED DEFINITIONS.
Note: Additional capitalized terms are defined elsewhere in these Digital Retailer Services Terms of Service.
“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 Section 4.1.
“Digital Retailer Rate” means the percentage of the Transaction Amount assessed and collected by FastSpring, 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 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.
“Foreign Currency Conversion” means the conversion from $USD to a different currency, or vice versa, for which FastSpring will determine an exchange rate at the time the order is processed and may charge a fee in addition to any other fees or FastSpring Deduction. “Transaction Amount” means the gross amount collected from a Purchaser by FastSpring in connection with a Transaction, inclusive of (i) sale price of Product (as displayed to Purchaser) and (ii) any amounts collected from a Purchaser in connection with a Transaction other than that sale price(including without limitation any amounts received for shipping and handling, sales or use taxes, GST, value added taxes, or withholding taxes).
“Transaction Fee” means the fixed fee per Transaction assessed and collected by FastSpring as set forth in the Order Form or Sign-up Flow.
SECTION 2. GRANT OF LICENSE.
2.1. Vendor License. Vendor grants FastSpring a non-exclusive, non-transferable (except as otherwise provided) right and license to sell Vendor’s Products to Purchasers via the FastSpring Service in order to provide the FastSpring Service to Purchaser. Vendor grants FastSpring a non-exclusive, non-transferable (except as otherwise provided) right and license to copy, distribute, provide access to and to deliver Vendor’s Products to Purchasers via the FastSpring Service in order to provide the FastSpring Service (including without limitation providing activation codes and providing copies on physical media) to Purchasers, if and only if; (a) the Vendor has activated the fulfillment functionality within the FastSpring App and (b) the Order Forms are for Purchasers that the Vendor has directly referred to FastSpring. In such instances where the Vendor has referred a Purchaser to FastSpring, the Vendor grants FastSpring the right and license to copy, distribute, provide access to and to deliver Vendor’s Products only to such referred Purchaser.
2.2. Digital Backup Offers. FastSpring may offer a service under which a Vendor’s customer, following the purchase of a Product, may return to the FastSpring website to download another copy of the Product for reinstallation or other uses consistent with the terms and conditions under which the Product was sold to the Vendor’s customer (a “Digital Backup Offer”). Vendor may suggest pricing for Digital Backup Offers in the FastSpring Administrative Dashboard.
2.3. CD Backup Offers. FastSpring may offer a service under which FastSpring delivers to a Vendor’s customer a CD or other physical media containing another copy of the Product for reinstallation or other uses consistent with the terms and conditions under which the Product was sold to the Purchaser.
SECTION 3. PURCHASE AND RESELLING RIGHTS.
3.1. Purchase Process; No Warranty or Support. FastSpring’s online payment system allows Purchasers to purchase Vendor’s Products or a license right to Vendor’s Products. FastSpring is authorized to invoice Purchasers, collect payment from Purchasers and, in FastSpring’s discretion, issue refunds to Purchasers. Legal ownership of the license rights for the Product(s) shall be transferred (a) from Vendor to FastSpring and (b) from FastSpring to Purchaser only upon Purchaser’s execution of the purchase agreement setting forth FastSpring’s terms and conditions of sale. FastSpring shall not retain ownership of the license rights. FastSpring’s customer support is limited to assistance with the use of the FastSpring Service, including web sites, shopping carts and order pages, and providing access to, and/or the delivery of, Products when applicable. FastSpring shall have neither the right nor the obligation to provide warranty, maintenance or other support services for the Products to Purchasers. All requests for such warranty, maintenance or support services shall be forwarded in a timely manner to Vendor.
3.2. Refunds. If FastSpring determines a Purchaser is credibly threatening a chargeback or Vendor fails to respond to communications from Purchaser after FastSpring twice attempts to contact Vendor regarding such Purchaser’s transaction or in other circumstances in which FastSpring reasonably deems it appropriate, FastSpring may refund a Purchaser’s purchase and debit the amount against Vendor’s account, in which case FastSpring shall have no resulting liability to Vendor. In addition, and for avoidance of doubt, if a Purchaser who has made a purchase with a credit card contacts FastSpring about a fraudulent charge, FastSpring may refund a Purchaser’s purchase without contacting the Vendor regarding such Purchaser’s transaction to prevent a chargeback.
3.3. End-User Agreements. Regarding Vendor’s Products, all end-user license agreements, in any form, are agreements solely between Vendor and the Purchaser. FastSpring is not a party to such agreements.
SECTION 4. PAYMENTS.
4.1. Payments to Vendor.
(a) Vendor Payment Calculation. For each sale of a Product (a “Transaction”), Vendor’s proceeds shall be an amount equal to (i) the sale price plus (ii) the amount collected for shipping and handling fees (if applicable) plus (iii) the amount collected for the sale of applicable file backup offers (if applicable) less (iv) the FastSpring Deduction, Sales Taxes (as defined below), refunds and returns, withholding taxes, and other charges as detailed in the relevant Order Form(s) (collectively, the “Proceeds”). As the seller of record, FastSpring shall have the right to set the price or license fee (and shipping/handling fee if applicable) at which the Products are offered for sale to Purchasers. All Transactions are subject to a minimum Transaction fee assessed by FastSpring for Transaction Amounts under a certain dollar threshold. FastSpring shall have the right to set the minimum Transaction fee and the applicable Transaction Amount threshold at its sole discretion.
(b) Frequency of Payment. FastSpring will calculate on a twice monthly basis Vendor’s Proceeds with respect to Transactions completed through the last calendar day of the most recently completed of the following periods – Period 1: 1st through 14th of each calendar month; Period 2: 15th through the end of calendar month. Such Proceeds shall, subject to the Minimum Payment Threshold, be distributed to Vendor on or around the fifteenth calendar day after the end of such period. If an order’s payment requires the Foreign Currency Conversion, FastSpring will determine an exchange rate at the time the order is processed. FastSpring may charge a fee for the Foreign Currency Conversion in addition to any other fees or FastSpring Deduction. Payment will be made to Vendor only after the amount owed to Vendor has reached a minimum of $25.00 for the period in question (the “Minimum Payment Threshold”); provided that if Vendor requires payment through international wire, the Minimum Payment Threshold shall be $100.00 for the period in question. If the Minimum Payment Threshold is not met on any payment date, any Proceeds that would have been otherwise paid to Vendor will be withheld and paid during the next payment cycle when the Minimum Payment Threshold is met. FastSpring shall be entitled to recover from Vendor, or to set off against future amounts owing by Vendor, at FastSpring’s discretion, payments that are charged back or disputed by the Purchaser, and FastSpring shall not be liable if Purchasers continue use of the Product.
(c) Refunds and Chargebacks. For any returns (refunds or chargebacks), FastSpring will return to the Purchaser the Transaction Amount or any other amount that, in FastSpring’s sole discretion, should be returned to the Purchaser under FastSpring’s terms of sale. In the event of a return, refund or chargeback, the Vendor will be charged a fee as set forth in the Order Form or Sign-up Flow. If FastSpring determines, in its sole discretion, that Vendor has an excessive chargeback rate, FastSpring reserves the right to suspend or discontinue selling all or a portion of Vendor’s Product(s) on a temporary or permanent basis. The foregoing is in addition to any other rights or remedies that may be available to FastSpring under this Agreement, or at law or equity.
(d) Reserves. FastSpring may, in its sole discretion, retain some or all of the funds that are in Vendor’s account if FastSpring reasonably determines they will be necessary to cover future chargebacks or refunds, charges against the account, or other liabilities Vendor may owe to FastSpring. FastSpring may also retain some or all of the funds if FastSpring reasonably believes that the funds resulted from fraudulent transactions or involve other activities that are otherwise illegal in a locale in which the Products are offered for sale, or if FastSpring reasonably believes the Product violates any of Vendor’s representations, warranties or covenants. FastSpring will only retain those amounts that it determines to be reasonable under the circumstances. FastSpring shall communicate to Vendor the amounts retained and the reason for retention of funds. FastSpring will keep any retained amounts only for a reasonable time as determined in FastSpring’s sole discretion, and will promptly pay over to Vendor any remaining retained amounts after such reasonable time elapses. Notwithstanding any revenues retained by FastSpring for such circumstances, Vendor agrees to pay FastSpring, upon demand, funds owed to FastSpring due to refunds, chargebacks, the FastSpring Deduction or fees for services rendered.
(e) Abandoned Accounts. FastSpring may charge each Abandoned Account a $20.00 per month maintenance fee for each month in excess of six consecutive months during which the Abandoned Account has no sales activity. Such charges may not exceed the balance of any Abandoned Account.
4.2. Payments to FastSpring.
(a) Invoices. For any amounts not deducted from sales where FastSpring is the Merchant of record, FastSpring shall invoice Vendor the fees for the FastSpring Service set forth in the applicable Order Form. Vendor will pay such invoices within thirty (30) calendar days after the invoice date. Any amounts not paid when due will accrue interest at the lesser of 1.5 % per month or the maximum rate allowed by law. In any action taken by FastSpring to collect any fees that Vendor fails to timely pay, FastSpring shall be entitled to recover its full costs and expenses related to such action, including but not limited to its reasonable attorneys’ fees and legal expenses.
(b) Taxes. Vendor will make all payments of fees to FastSpring free and clear of, and without reduction for, any taxes, unless a deduction for any tax is required by applicable law, in which case (i) Vendor shall withhold such tax and timely pay such tax to the appropriate taxing authority, (ii) the sum payable to FastSpring (in respect of which such withholding is required to be made) shall be increased to the extent necessary to ensure that FastSpring receives a sum net of any withholding (taking into account any withholding on any such increase) equal to the sum which it would have received had no such withholding been made, and (iii) Vendor will provide FastSpring with official receipts issued by the appropriate taxing authority, or such other evidence as FastSpring may reasonably request, to establish that such taxes have been paid. If any tax, including any Sales Tax, is required to be charged in respect of any services provided by FastSpring to any Vendor, FastSpring shall charge Vendor for such taxes and shall, as appropriate, deduct such taxes from any Proceeds otherwise payable to Vendor or reflect any such taxes on an invoice to Vendor described in Section 4.2(a). Vendor will indemnify and hold FastSpring harmless from and against any other taxes (other than taxes based on FastSpring’s income), fees, duties, and other governmental charges or other liability (including penalties and interest) resulting from FastSpring’s provision of services to such Vendor hereunder or Vendor’s failure to fulfill its responsibilities under this section. Any amounts owed by Vendor under this Section 4.2(b) or Section 5 shall be withheld from Proceeds otherwise payable to Vendor hereunder.
4.3. Currency for Settlement. Unless otherwise agreed on in the applicable Order Form, all payments between both Parties will be made in US dollars. Vendor is responsible for costs of Foreign Currency Conversion from local currency(ies) into $USD.
SECTION 5. SALE PRICE AND SALES TAXES.
5.1 The final sale price to a Purchaser shall be determined by FastSpring. As set forth in Section 4.1, all Transactions are subject to a Minimum Payment Threshold for low-value orders.
5.2 Prior to the sale of any Product, Vendor shall accurately complete the questionnaire (the “Tax Questionnaire”) located at [Insert Link] and provide any other documentation requested by FastSpring for the purposes of ascertaining a Vendor’s tax status. FastSpring will collect and remit to the applicable tax authorities any sales tax, use tax, value added-tax (VAT), goods and services tax (GST) or similar tax or other government fees required to be collected and remitted with respect to FastSpring’s sale of Vendor’s Products (collectively “Sales Taxes”). Sales Taxes do not include excise, income, import, export, customs duties. Vendor understands that Sales Taxes for any Product will be calculated, collected, and remitted on the basis of the information provided on the Tax Questionnaire by the Vendor with respect to such Product. Vendor shall indemnify and hold harmless FastSpring from and against any taxes or other liabilities (including any penalties and interest) arising from any inaccuracy, misrepresentation, or omission by Vendor of any information on a Tax Questionnaire. Vendor shall promptly provide FastSpring with an updated Tax Questionnaire if requested by FastSpring or whenever any new fact or information, or change in fact or information, renders the previously-provided Tax Questionnaire inaccurate or incomplete in any respect. Any collected Sales Taxes will not be included in the calculation of Vendor’s Proceeds but shall instead be remitted by FastSpring to the appropriate taxing authority. FastSpring is not responsible for determining whether any taxes apply to the sale of any Product via the FastSpring Service where the Vendor has not accurately completed the Tax Questionnaire. FastSpring (or its designee) shall be permitted to withhold from any amounts payable to a Vendor any taxes required to be withheld under any applicable tax law; any amounts so withheld shall be treated for all purposes as having been paid to such Vendor.
SECTION 6. GENERAL.
6.2. Legal Authority and Compliance. Vendor represents and warrants that 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. Vendor’s 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.
6.3 Agency. As an independent reseller of Vendor’s Products, FastSpring serves solely in the capacity of an independent contractor and at no time serves as an agent or employee of Vendor. 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.
SECTION 7. TERMINATION.
7.1. Termination. Notwithstanding anything contained in the FastSpring Terms of Service to the contrary, any funds received through the FastSpring Service for the account of Vendor after termination shall continue to be paid out by FastSpring, as specified by this Agreement, 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 a reasonable amount of time needed to cover future chargebacks and refunds. All or a portion of this reserve and any remaining balance will be paid to Vendor after termination when deemed appropriate by FastSpring.
Notwithstanding anything contained in the FastSpring Terms of Service to the contrary, should FastSpring, in its sole discretion, reasonably determine or suspect that the Products are not acceptable, (c) that the Products are subject to an excessive fraud or chargeback rate, or that Vendor may have engaged in deceptive practices, 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.
If Vendor reasonably determines 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 7.2, and FastSpring shall immediately cease distribution of the Products, except when required to support existing Purchasers and (ii) promptly return to Vendor all copies of the Products and any marketing or other materials relating to the Products.