This Fast Direct Integration Agreement (the “Agreement”) supplements, but does not replace, any Fast Direct Integration Order Form (each, a “Order Form”), entered into by and between Fast AF, Inc., a Delaware corporation (“Fast”) and “Seller” as defined in the applicable Order Form. Any terms not defined in this Agreement shall have the meaning set forth in the Order Form. If any term or provision of a particular Order Form conflicts with this Agreement, the term or provision of the Order Form shall prevail, but only as to such particular Order Form. By using the Services, Seller agrees to the terms of this Agreement and the Fast Acceptable Use Policy.
1. License Grant
As between Seller and Fast, Fast and its licensors exclusively own all rights, title, and interest in the copyrights (including rights in derivative works), patents, moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the application programming interface materials and related information and documentation Fast may provide (the “API(s)”), the Services, the Fast Seller dashboard (“Dashboard”), and Fast’s applicable official user documentation (“Documentation”) (collectively, “Fast IP”) or any copies or derivatives thereof, and all rights in Fast IP not expressly granted to Seller in this Agreement are reserved. Subject to Seller’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 Seller a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable license to use the Fast IP: (a) to build software applications (each an “App”) that communicate with Fast IP; (b) to use the Services; and (c) to use the App(s) to provide Shoppers with the Services or for other purposes as authorized by Fast in writing, during the applicable Order Form Term. All use of the Services must be only as provided herein and only in accordance with Fast’s Documentation.
2. Seller Rights and Responsibilities
3. Implementation Services
Upon payment of any applicable fees set forth in each Order Form, Fast agrees to use reasonable commercial efforts to provide the Implementation Services and/or any additional support and training set out in the Order Form.
4. Service Updates
If Fast provides Seller with any upgrades, patches, enhancements, or fixes for the Services (“Updates”), then all such Updates will become part of the Services and subject to this Agreement; provided that Fast shall have no obligation under this Agreement or otherwise to provide any such Updates. Seller understands that Fast may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Fast shall use commercially reasonable efforts to give Seller sixty (60) calendar days prior notice of major changes.
5. Fees; Payment
Seller shall pay Fast fees for the Services including: (a) for each amount paid by Shoppers who purchase items from Seller over the Internet via the 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” (defined as any chargeback coded as anything other than “fraud” by the applicable network); and (iv) “Currency Fees.” Seller will receive amounts from all Checkout Transactions, less all applicable Fees; in some instances, it may take longer for Seller to receive such amounts, such as if there are high dispute rates on orders that Seller processes. 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 8 herein. If Seller refunds a payment to a Shopper, Fast will still charge Seller the relevant Fees, as if Shopper’s payment had not been refunded. In the event Seller’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. Seller shall be responsible for all Seller taxes associated with the Services (excluding taxes based on Fast’s net income). For the avoidance of doubt, all amounts payable or other consideration to be provided for a supply under or in connection with the Order Form are exclusive of goods and services tax (“GST”) and of value added tax (“VAT”), unless specifically described in the Order Form as “GST inclusive” or “VAT inclusive”, respectively. All Fees paid are non-refundable and are not subject to set-off.
Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose information that the Disclosing Party reasonably considers to be Confidential (hereinafter referred to as “Confidential Information”). The Receiving Party agrees: (a) not to use Confidential Information other than as necessary to fulfill its obligations or exercise its rights under this Agreement; (b) not to divulge to any third party any Confidential Information; (c) to give access to Confidential Information solely to those employees or representatives with a need to have access thereto for purposes of this Agreement; (d) to take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that Receiving Party takes with its own Confidential Information, and in no event less than reasonable care; and (e) upon written request by Disclosing Party, to return or destroy all documents and other tangible materials representing Disclosing Party’s Confidential Information and all copies thereof. 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; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential 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 Services are and will be solely the Confidential Information of Fast.
7. Data Protection; Seller Data
8. Term and Termination
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 Fast’s sole judgment Seller or Seller’s Shopper(s) have engaged in illegal activity, or breached or are suspected of breaching any term or provision of this Agreement, including the applicable Stripe terms as set forth in Section 13 herein, Fast may suspend Seller’s and/or any Shopper’s access to or use of the Services or any part thereof at any time without notice. Upon termination or expiration of this Agreement or any Order Form, all licenses granted from Fast to Seller thereunder will be terminated immediately. Notwithstanding the foregoing, Sections 2, 5, 6, 7, and 10-14 of this Agreement will survive termination or expiration.
9. Representations and Warranties
Each of Fast and Seller 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. Additionally, Seller represents and warrants that it shall comply with all applicable laws and regulations in connection with Seller’s use of the Services, including those related to export controls, consumer protection, data privacy, and electronic communications.
11. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE FAST IP AND IMPLEMENTATION 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.
To the extent that Seller acquires goods or services from Fast as a “consumer” within the meaning of Australia’s Competition and Consumer Act 2010 (Cth) or the New Zealand Consumer Guarantees Act 1993, as either may be amended, replaced, or superseded from time to time (together, the “ANZ Consumer Laws”), Seller has certain rights and remedies (including consumer guarantee rights) that may not be excluded, restricted, or modified by agreement. Nothing in this Agreement operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under ANZ Consumer Laws or any other statute where to do so would: (a) contravene that statute; or (b) cause any term of this agreement to be void.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) IN NO EVENT SHALL FAST, OR 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; AND (B) FAST’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (I) FEES PAID BY SELLER TO FAST DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY; OR (II) ONE HUNDRED DOLLARS (USD$100.00). THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 12 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
To the extent that ANZ Consumer Laws permit Fast to limit its liability, Fast’s liability shall be limited to: (a) in the case of services, supplying the services again or payment of the cost of having the services supplied again; and (b) in the case of goods, replacing the goods, supplying equivalent goods, or repairing the goods, or payment of the cost of replacing the goods, supplying equivalent goods, or having the goods repaired. Because Fast does not exclude or limit the operation of any other statutory guarantees under any other provision of this Agreement or in any other manner, the parties agree it is fair and reasonable in all the circumstances for Fast’s liability to be so limited.
13. Stripe Connect Terms
This Agreement and the Order Form represent the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them with respect thereto. The Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form, and either party may update its address set forth above by giving notice in accordance with this section, provided that any and all notices to Fast must also include a copy sent by email to [email protected] Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from a force majeure event beyond such party’s reasonable control. This Agreement is personal to Seller and may not be assigned or transferred for any reason whatsoever without Fast’s consent and any action or conduct in violation of the foregoing shall be void and without effect; Fast expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
Last Updated: May 25, 2021