Subject to Customer’s full compliance with the terms and conditions of the Agreement (including any limitations and restrictions set forth on the applicable Order Form), Fast hereby grants Customer a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable license to use the package of application programming interface materials and related information and documentation Fast may provide (collectively, the “APIs”) for the sole purpose of allowing Customer to build software applications (each an “App”) that communicate with Fast’s services as described on each Order Form (the “Services”, and collectively with the APIs, the “Fast Services”) and for other purposes authorized by Fast in writing, during the applicable Order Form Term (as defined on the applicable Order Form). All use of the Fast Services must be only as provided herein and only in accordance with Fast’s applicable official user documentation (the “Documentation”).
Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) clone or use the Fast Services to build an application programming interface, application, or product that is competitive with any Fast product or service; (ii) remove or alter any proprietary notices from the Fast Services (or any portion thereof); (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discover or derive the source code, object code, or underlying structure, ideas, or algorithms of the Fast Services (except to the extent applicable laws specifically prohibit such restriction); (iv) modify, translate, or create derivative works based on the Fast Services; (v) copy, rent, lease, loan, sell, sublicense, distribute, pledge, assign, or otherwise transfer or encumber any rights in or to the Fast Services; (vi) use the Fast Services for the benefit of a third party unless otherwise agreed to in writing by the parties; (vii) interfere or attempt to interfere with the proper working of the Fast Services or any activities conducted on the Fast Services; or (viii) bypass any measures Fast may use to prevent or restrict access to the Fast Services (or other accounts, computer systems or networks connected to the Fast Services).
Access; Usage. Customer agrees not to disclose (or allow access to) the API (or any information derived therefrom) to any third party and will limit access to the API (and any derived information) to Customer employees who are developing the App(s). In support of this obligation, Customer will apply at least the same security used to protect its own Proprietary Information (as defined below). Customer is responsible for all of Customer’s activity in connection with the Fast Services, including but not limited to uploading Customer Data (as defined below) onto the Fast Services. Customer is solely responsible for ensuring that only authorized persons have access to Customer’s Fast Services account, including any dashboard or similar information provided as part of the Services. Customer (i) shall use the Fast Services in compliance with all applicable local, state, national and foreign laws, treaties, and regulations in connection with Customer’s use of the Fast Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Fast Services in a manner that violates any third-party intellectual property, contractual, or other proprietary rights.
Security Reviews. Customer’s access or use of the Fast Services is subject to Customer passing Fast’s security and compliance reviews (the “Reviews”) as determined in Fast’s sole discretion. Reviews may include, without limitation, automated verifications, questionnaires, and requests for information. Client represents and warrants that all information provided for Reviews will be accurate and complete, with the ongoing responsibility to supplement or correct obsolete or inaccurate information. If Customer’s failure of Reviews remains uncured for seven (7) calendar days after notice from Fast, Fast may suspend, revoke, or terminate Customer’s access to the Services without additional notice or any liability to Customer.
Fast Trademarks and Publicity. Customer will not use any Fast trademarks, logos, service marks, trade names, and/or legal notices pertaining thereto (collectively, “Fast Marks”), including without limitation use in any advertising, press releases, blog posts, publicity matters, customer lists or other promotional materials, without prior written consent from Fast, which may be withheld in Fast’s sole discretion; provided, however, in the event use of any Fast Mark is required to perform the Services, the parties agree as follows: subject to Customer’s strict compliance with the Agreement and Fast’s brand guidelines, which are available upon request, Fast grants Customer a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license, for the applicable Order Form Term to use the designated Fast Marks in the form delivered by Fast, only for the territory in which Services will be delivered, and only as necessary to perform Services. All rights, title, and interests in the Fast Marks and the goodwill inuring thereto are the exclusive property of Fast. Fast reserves the right to perform quality assurance inspections of each App and to withhold and/or suspend rights to use Fast Marks if the quality is not satisfactory to Fast in its sole discretion.
Compatibility. Each App must (i) maintain 100% compatibility with the Fast Services (including changes provided to Customer by Fast, which shall be implemented in each App promptly thereafter), and (ii) maintain industry standard network security policies and practices. If any App uses or implements an outdated version of the APIs, Customer acknowledges and agrees that such App may not be able to communicate with the Services. Customer agrees not to modify, extend, subset or superset the Fast Services to any extent. Customer understands that Fast may cease support of old versions or releases of the Fast Services.
Patent License. Customer hereby grants Fast a non-exclusive, sublicensable, fully-paid, worldwide license to fully exercise and exploit all patent rights with respect to improvements or extensions created by or for Customer that are relevant to the Fast Services or otherwise result from or are enabled by access to the Fast Services. For clarity, Customer is not required to disclose any such patent or patent rights to Fast.
Ownership; Feedback. As between the parties, Fast retains all right, title, and interest in and to the Fast Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Fast for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to Fast with respect to the Fast Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Fast notwithstanding anything else. Customer shall, and hereby does, grant to Fast a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Fast’s right to develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with, any products, software, or technologies that Customer may develop, produce, market, or distribute.
Time Limitation on Claims. Customer agrees that any claim it may have arising out of or related to this Agreement must be filed within one year after such claim arose; otherwise, the claim is permanently barred.
Upon payment of any applicable fees set forth in each Order Form, Fast agrees to use reasonable commercial efforts to provide implementation assistance (“Implementation Assistance”) and/or support and training for the Fast Services (“Support / Training”) as set out in the Order Form.
If Fast provides Customer with any upgrades, patches, enhancements, or fixes for the Fast Services (“Updates”), then all such Updates will become part of the Fast Services and subject to this Agreement; provided that Fast shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Fast may cease supporting old versions or releases of the Fast Services at any time in its sole discretion; provided that Fast shall use commercially reasonable efforts to give Customer sixty (60) calendar days prior notice of major changes.
Customer shall pay Fast fees for the Fast Services including without limitation: (a) for each amount paid by Shoppers who purchase items from Customer over the Internet via the Fast Services (each, a “Checkout Transaction”), a “Checkout Transaction Fee” as set forth in the Order Form; and (b) as set forth in the applicable Order Form, (i) “Setup Fees”, (ii) “Fraud Chargeback Fees”; (iii) “Service Chargeback Fees”; and (iv) “Currency Fees.” Customer will receive amounts from all Checkout Transactions, less all applicable Fees. Fast reserves the right to change the Checkout Transaction Fee for Checkout Transactions upon providing thirty (30) calendar days written notice prior to the expiration of any Initial Term or Renewal Term, as defined in Section 7 herein. If Customer refunds a payment to a Shopper, Fast will still charge Customer the relevant Fees, as if Shopper’s payment had not been refunded. In the event Customer’s operational connected account balance is negative, the indebtedness amount to Fast is subject to interest of the lesser of 1.5% per month or the maximum amount permitted by law. In some instances, it may take Fast longer to pay Customer the Fees, such as if there are high dispute rates on orders that Customer processes. Customer shall be responsible for all Customer taxes associated with the Fast Services. All Fees paid are non-refundable and are not subject to set-off.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (a) not to divulge to any third party any such Proprietary Information, (b) to give access to such Proprietary Information solely to those employees or representatives with a need to have access thereto for purposes of this Agreement, and (c) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event less than reasonable care. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding the foregoing, the Fast Services are and will be solely the Proprietary Information of Fast.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Fast Services in the course of using the Fast Services. To the extent that Customer Data is Customer’s Proprietary Information, Fast will keep such information confidential pursuant to this Section 6. Fast shall retain all right, title, and interest in and to any information Fast learns or creates through the operation of its platform, including the Customer Data. Customer acknowledges and agrees that Fast may (a) internally use and modify (but not disclose) Customer Data for the purposes of (i) providing the Fast Services and any support or consultation services to Customer and (ii) generating Aggregated Anonymous Data (as defined below), and (b) freely use and make available Aggregated Anonymous Data for Fast’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting, and marketing Fast’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Fast in connection with Customer’s use of the Fast Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer or any individual. Notwithstanding anything else, Fast is permitted to disclose (including through display of Customer’s logo) that Customer is one of its clients (including in its publicity and marketing materials). Customer, not Fast, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Fast shall use commercially reasonable efforts to maintain the security and integrity of the Fast Services and the Customer Data. Fast is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Fast Services unless such access is due to Fast’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Fast Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) calendar days or more delinquent.
This Agreement will commence on the Effective Date as defined in the Order Form, and unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the Effective Date, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on the Order Form (the “Initial Term”), and (ii) following the Initial Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) calendar days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. In the event of termination of the Agreement, any remaining outstanding Order Forms will also immediately terminate unless otherwise agreed by the parties. Fast reserves the right to modify or terminate the Services for any reason, without notice, at any time. Furthermore, if in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of this Agreement, including without limitation the applicable Stripe terms as set forth in Section 12 herein, we may terminate this Agreement at any time without notice to you and accordingly we may terminate your access to the Services or any part thereof. Upon termination or expiration of this Agreement or any Order Form, all licenses granted thereunder will be terminated immediately. Notwithstanding the foregoing, all sections of this Agreement which by their nature should survive termination will survive termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Each of Fast and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation. Each party will comply with all applicable laws, rules, and regulations in its performance of obligations under the Agreement, including without limitation applicable export laws and regulations when providing and/or using the Fast Services.
Customer agrees to indemnify, defend and hold harmless Fast, its affiliates, and each of its and its affiliates’ employees, agents and service providers (each, a “Fast Entity”) from any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) that arises from or relates to: (i) Customer’s breach of any provision of this Agreement; (ii) any liability we incur that results from Customer’s use of the Fast Services; (iii) negligent or willful misconduct of Customer’s owners, employees, contractors, or agents; (iv) contractual or other relationships between Customer and its users; (v) third-party indemnity obligations a Fast Entity incurs as a direct or indirect result of Customer’s acts or omissions; or (vi) Customer Data or Customer’s use of the Services infringing, violating, or misappropriating any third-party intellectual property or proprietary right; and/or (vii ) Customer’s violation of any agreements between Customer and Shoppers. Fast agrees to indemnify, defend and hold harmless Customer from any Claim that the Fast Services infringes, violates, or misappropriates any third-party intellectual property or proprietary right.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE FAST SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, REGARDLESS OF WHETHER THE OTHER PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. FAST’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO FAST DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY, PROVIDED THAT, IF NO FEES ARE PAID OR PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO ONE HUNDRED DOLLARS (US$100.00). THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 11 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.