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Fast Seller Terms
PLEASE READ THESE SELLER TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY FAST AF, INC. (“FAST”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH FAST WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“SELLER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Order Forms; Access to the Service
Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Seller’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Fast grants Seller the right and license to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Seller, only as provided herein and only in accordance with Fast’s applicable official user documentation.
From time to time, Fast may provide upgrades, patches, enhancements, or fixes for the Services to its Sellers generally without additional charge (“Updates”), and 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) days prior notice of any major changes.
As between the parties, Fast retains all right, title, and interest in and to the 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. Seller may from time to time provide suggestions, comments or other feedback to Fast with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Seller, shall not create any confidentiality obligation for Fast notwithstanding anything else. Seller 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 Seller may develop, produce, market, or distribute.
Seller shall pay Fast fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, after processing all relevant transactions, Fast will pay to Seller all applicable Fees. Fast reserves the right to change its Fees at any time. If a Seller refunds a payment to Buyer, Fast may still charge Seller all relevant Fees, as if Buyer’s payment had not been refunded. Seller shall be responsible for all taxes associated with the Services (excluding taxes based on Fast’s net income). All Fees paid are non-refundable and are not subject to set-off.
Except as expressly set forth in this Agreement, Seller shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party (unless otherwise expressly agreed to by the parties); (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Fast product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Fast may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Seller is responsible for all of Seller’s activity in connection with the Service, including but not limited to uploading Seller Data (as defined below) onto the Service. Seller (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Seller’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Confidentiality; Seller Data; Publicity
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: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) 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 will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) 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.
For purposes of this Agreement, “Seller Data” shall mean any data, information or other material provided, uploaded, or submitted by Seller to the Service in the course of using the Service. To the extent that Seller notifies Fast that such Seller Data is Seller’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 Seller Data. Seller acknowledges and agrees that Fast may (i) internally use and modify (but not disclose) Seller Data for the purposes of (A) providing the Services and any support or consultation services to Seller and (B) generating Aggregated Anonymous Data (as defined below), and (ii) 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 Seller’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Seller or any individual. Notwithstanding anything else, Fast is permitted to disclose (including through display of Seller’s logo) that Seller is one of its Sellers (including in its publicity and marketing materials). Seller, not Fast, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Seller Data. Fast shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Seller Data. Fast is not responsible to Seller for unauthorized access to Seller Data or the unauthorized use of the Service unless such access is due to Fast’s gross negligence or willful misconduct. Seller is responsible for the use of the Service by any person to whom Seller has given access to the Service, even if Seller did not authorize such use. Seller agrees and acknowledges that Seller Data may be irretrievably deleted if Seller’s account is ninety (90) days or more delinquent.
This Agreement shall commence upon the effective date set forth in the first 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 set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Fast may suspend or limit Seller’s access to or use of the Service if (i) Seller’s account is more than sixty (60) days past due, (ii) Seller cannot access the Services because of its noncompliance with the applicable payment processor terms, or (iii) Seller’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Fast’s ability to provide access to the Service to other Sellers; provided that in the case of subsection (ii): (a) Fast shall use reasonable good faith efforts to work with Seller to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Fast shall use commercially reasonable efforts to provide notice to Seller describing the nature of the damage or degradation; and (c) Fast shall reinstate Seller’s use of or access to the Service, as applicable, if Seller remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that: (i) where Seller is Indemnitor, the Seller Data or Seller’s use of the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right, or (ii) where Fast is the Indemnitor, the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Fast do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Fast (including without limitation any Seller Data), (ii) made in whole or in part in accordance to Seller specifications, (iii) modified after delivery by Fast, (iv) combined with other products, processes or materials not provided by Fast (where the alleged Losses arise from or relate to such combination), (v) where Seller continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Seller’s use of the Service is not strictly in accordance herewith.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS 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.
Limitation of Liability
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 (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY SELLER TO FAST HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Stripe Connect Terms
Upon payment of all applicable Fees, Fast agrees to use commercially reasonable efforts to resolve issues relating to the Services, as detailed on our Support Page fast.co/support.
This Agreement represents the entire agreement between Seller and Fast with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Seller and Fast with respect thereto. The Agreement shall be governed by and construed 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. Either party may update its address set forth above by giving notice in accordance with this section. 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 any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Fast may utilize subcontractors in the performance 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.