FastSpring Merchant Agreement

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FastSpring is one of the most widely known reseller of digital products. You may find the merchant agreement here (as on 18/8/2017):

Thank you for choosing to become a FastSpring Client and utilize the FastSpring Service.

PLEASE READ THIS USER AGREEMENT (THE "AGREEMENT") CAREFULLY PRIOR TO USING THIS WEB SITE OR THE FASTSPRING SERVICE OR FASTSPRING SPRINGBOARD SOFTWARE.

BY CLICKING ON THE "I have read and agree to the terms of the User Agreement" CHECKBOX ON THE WEBSITE AND THEREAFTER UTILIZING THE SITE OR THE FASTSPRING SERVICE OR FASTSPRING SPRINGBOARD SOFTWARE, YOU HEREBY AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT WHICH INCORPORATES BY REFERENCE THE PRIVACY POLICY POSTED ON THE SITE, AS BOTH ARE AMENDED FROM TIME TO TIME. IF THIS AGREEMENT IS NOT ACCEPTABLE AND YOU ARE UNWILLING TO BE BOUND BY IT, PLEASE DO NOT CLICK ON THE "I have read and agree to the terms of the User Agreement" CHECKBOX OR OTHERWISE USE THE SITE, THE FASTSPRING SERVICE OR FASTSPRING SPRINGBOARD SOFTWARE OR ENTER ANY INFORMATION ABOUT YOURSELF OR MAKE ANY TRANSACTIONS THROUGH THIS SITE.

This Agreement is effective June 10, 2009, for current users, and upon acceptance for new users. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.

This Agreement is between you ("you" and "your" means an individual or single entity), the Client, and Bright Market, LLC d/b/a FastSpring ("FastSpring"), 11 West Victoria St., Suite #207A, Santa Barbara, CA 93101. The parties agree to the clauses described below, as follows: (A)
DEFINITIONS.

    The term "Client" refers to you, the individual or business that is listed as the Subscriber within the Account section of FastSpring's SpringBoard Software and/or as the Company Name entered and submitted on the FastSpring Sign Up page located at http://fastspring.com/signup.php.
    The term "Product" or "Products" shall mean the Products that are offered for sale using FastSpring's SpringBoard Software or the FastSpring Service, and which are registered with FastSpring as the Products of Client.
    The term "FastSpring's SpringBoard Software" or "Software" shall mean FastSpring's software code for enabling the purchase of Products through the FastSpring Service.
    The term "FastSpring Service" shall mean the purchasing facility provided through the FastSpring server or FastSpring SpringBoard Software, including the administration, banking and support elements of the facility. "FastSpring Service" includes any other product or service provided by FastSpring or its subcontractors or strategic partners.
    The term "Purchaser" or "Customer" shall mean all owners, users and their respective employees and agents that acquire use or possession of the Products through the FastSpring Service or FastSpring Springboard Software.
    The term "License Right" is the right on the part of the Purchaser to install and use an Electronic Product or Products.
    The term "Electronic Products" shall refer to Products that are delivered electronically by means of Internet download or email attachment.
    The term "Physical Products" shall refer to tangible Products that are delivered via postal and package delivery services such as USPS, UPS, FedEx or similar services to Purchaser via the FastSpring Service or through a FastSpring partner.
    The term EULA shall mean "end-user license agreement," made and solely limited to the contractual agreement between the Client and the Purchaser with regards to the sale of Electronic Products.

(B) GRANT OF LICENSE.

Client grants FastSpring a non-exclusive, non-transferable (except as otherwise provided) right and license to sell licenses and deliver the Product(s) to Customers via the FastSpring Service in order to provide the FastSpring Service in accordance with this Agreement. Client retains title and ownership of the intellectual property rights in the Product(s) after transfer of Products to Customers.
(C) LIMITATION OF LIABILITY.

1. THE FASTSPRING SERVICES AND THE FASTSPRING SPRINGBOARD SOFTWARE ARE ALL PROVIDED BY FASTSPRING ON AN "AS IS" AND "AS AVAILABLE" BASIS. FASTSPRING MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE FASTSPRING SERVICES OR SOFTWARE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE FASTSPRING SITES. FASTSPRING MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE QUALITY OF FASTSPRING'S SERVICES OR SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THERE IS NO WARRANTY BY FASTSPRING OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE FASTSPRING SERVICES OR SOFTWARE WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. You expressly agree that your use of the FastSpring software, FastSpring Services and website(s) are at your sole risk. FastSpring reserves the right to withdraw or delete any information from this site at any time in its discretion. Except for any obligations FastSpring has to pay the Client the funds in the Client's account that are owed to the Client, the Client agrees that its sole and exclusive remedy for any breach of this Agreement by FastSpring is for the Client to terminate this Agreement.

2. The Client indemnifies and holds FastSpring harmless against any claim or damage from any party whatsoever arising from such party's use of the Products as offered by the FastSpring Services or Software, including but not limited to violations of CAN SPAM or of anti-spyware legislation. In no event shall FastSpring or its licensors be liable to Client (or any parties affiliated with Client) or Purchasers for any direct or indirect damages whatsoever. In addition, FastSpring shall not be responsible for the sharing or other misuse of log-in information by Client, Customers or third-parties.

3. UNDER NO CIRCUMSTANCES SHALL FASTSPRING'S TOTAL LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF OUR RELATIONSHIP WITH THE CLIENT UNDER THIS AGREEMENT, REGARDLESS OF HOW THE LIABILITY ARISES, EXCEED THE NET AMOUNT REALIZED BY FASTSPRING UNDER THIS AGREEMENT. FASTSPRING SHALL ALSO NOT HAVE ANY LIABILITY TO CLIENT, PURCHASER OR TO ANY OTHER ENTITY FOR ANY DAMAGES RELATING TO ANY DIRECT OR INDIRECT DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. CLIENT ACKNOWLEDGES THAT THIS ALLOCATION OF RISKS IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THIS AGREEMENT. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OF EXCLUSION MAY NOT APPLY TO YOU.
(D) PURCHASE AND RESELLING RIGHTS.

1. As Purchasers are directed to FastSpring's order pages, FastSpring's online payment system will allow Purchasers to purchase Client's Products or a License Right to Client's Electronic Products. The Client hereby grants to FastSpring the non-exclusive, non-transferable (except as otherwise provided) right to market, distribute and sell copies of the Client's Product(s) to Purchasers using the FastSpring service. Legal ownership of the licenses for the Product(s) shall be transferred from Client to FastSpring and from FastSpring to Purchaser only upon Purchaser's execution of the Purchase Agreement setting forth FastSpring's terms and conditions of sale, and acceptance of the Client's license agreement packaged with the Product(s). FastSpring shall not retain ownership of the licenses. FastSpring shall have neither right nor obligation to provide warranty, maintenance or support services, with the exception of download services where relevant, for the Products to Purchasers. All requests for such warranty, maintenance or support services shall be forwarded in a timely manner to the Client.

2. Upon entering into this Agreement and accessing the FastSpring Service, the Client will be able to indicate which, if any, of FastSpring's additional services Client would like to utilize (e.g. CD Backup Offer, Digital Backup Offer, etc.). FastSpring may offer new services to the FastSpring Service and such additional services shall be covered by this Agreement upon Client's utilization of such additional services. FastSpring may have all or any portion of the FastSpring Service performed by its subcontractors or strategic partners. Pricing and other terms applicable to these additional services will be presented to the Client through the FastSpring Service. In some instances, Client may work directly with one of FastSpring's strategic partners or service providers and be charged directly by that third party, based on a separate agreement between Client and the third party, even though there is a technical integration between the FastSpring Service. Utilization of these additional services constitutes the Client's acceptance of the pricing and terms presented to the Client through the FastSpring Service. If FastSpring wishes to change the FastSpring Service in a way that materially reduces the functionality of the existing FastSpring Service, or if FastSpring wishes to change this Agreement, it may only do so after providing Client with thirty (30) days prior notice of such change by email to Client. If Client does not agree to those changes Client may exercise its right to terminate this Agreement for convenience on ten (10) days notice. If Client does not so terminate this Agreement, Client shall be deemed to agree to such changes and be bound by same. All changes will be effective for any transactions that take place after the date of the change.

3. Regarding Client's Electronic Products, all end user license agreements (EULAs) the Client forms are agreements solely between the Client and the Purchaser. The Client permits FastSpring to copy, store and distribute to others, as appropriate for the particular set of services the Client utilizes, Client's software license keys and copies of the Client's Products (authenticated or un authenticated) in electronic form for download distribution.
(E) WARRANTY OF LICENSE AND DISTRIBUTION.

1. The Client represents and warrants that it possesses the right to make, have made, copy, modify, license, sell, offer to sell, market, export, import and distribute the Products worldwide; that such distribution and sale is lawful, and will not infringe the intellectual property rights or other rights, of any third party, and additionally that no fraudulent or unlawful use of FastSpring's SpringBoard Software and services will be caused or permitted by the Client.

2. Client represents and warrants that any descriptions provided for its Products which will be displayed via FastSpring to Purchasers are wholly accurate and do NOT violate any applicable laws or regulations regarding advertising claims or other applicable consumer protection or other laws.

3. Client represents and warrants that it has the right to enter into this Agreement and that the person who signs this Agreement, if the Agreement is handled in physical format, or who checked the box for contract acceptance and pressed the submit button, if the Agreement is handled electronically, is legally competent to be contractually bound to this Agreement. If that individual is not so authorized, he or she agrees that he or she is personally responsible for any activity on the Client's account performed under this Agreement.

4. Client represents and warrants that its Products and their descriptions are not libelous, do not contain obscene or pornographic material, 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). Client further warrants that FastSpring's distribution of Client's Products (whether by download, physical delivery or otherwise) and the performance of its other obligations on Client'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. Client agrees that FastSpring may, in its sole discretion, decline to carry (or to continue to carry) any of Client Products at any time for any reason whatsoever.

5. Client represents and warrants that anywhere it promotes the sale of the License Rights where it provides Purchasers with a hyperlink (URL) or other means to reach a FastSpring web site, Client will not display any inaccurate or misleading information concerning its identity, location or contact information or any other information.

6. FastSpring represents and warrants that it has the right to provide the FastSpring Service and to license FastSpring's SpringBoard Software.

7. Client warrants that it will at no time use any of the FastSpring hyperlinks in conjunction with any illegal marketing campaigns.

8. Client warrants that it will not use any of the Hyperlinks pointing to any FastSpring domains on any unsolicited commercial (e.g. spam) email campaigns.

9. FastSpring will indemnify and defend the Client in the event of any claim being made against the Client in regards to any infringement of Intellectual Property rights of any third party in and to the FastSpring Service or FastSpring's SpringBoard Software.

10. FastSpring warrants that it shall use commercially reasonable efforts to maintain the security of its on-line distribution 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.
(F) INTELLECTUAL PROPERTY RIGHTS.

1. The intellectual property rights in the Products shall remain the sole property of the Client or its licensors. This Agreement does not grant to FastSpring any interest, right or title in and to the intellectual property rights in the Products of the Client or its licensors.

2. All intellectual property rights in the FastSpring SpringBoard Software and FastSpring Service are and shall remain the property of FastSpring, and the Client shall not remove any markings, trade names or logos from any FastSpring Service or the FastSpring Software.

3. FastSpring agrees to adhere to standard industry practices in regards to protecting the proprietary rights of the Client and its licensors and to support the Client's efforts to protect such rights. FastSpring agrees to inform the Client of any violation of such proprietary rights that come to its attention.

4. FastSpring shall not alter any proprietary signs or symbols such as trademarks, copyrights or trade names used by the Client for the Products, and will refrain from any practices that impact their validity or enforceability.

5. FastSpring trademarks, service marks and business names are owned or licensed solely and exclusively by FastSpring. Client agrees, upon request, to stop or adjust any uses of FastSpring trademarks.
(G) SOFTWARE CHANGES.

FastSpring reserves the right to change, add to, improve and issue new versions of the FastSpring's SpringBoard Software.
(H) PAYMENTS AND COMMISSIONS.

1. In connection with any activities on the part of Client or Products of said Client that are deemed to be fraudulent or criminal, FastSpring is not obligated to pay Client revenues associated with these activities or Products. Should FastSpring have due cause to believe that the FastSpring SpringBoard Software or services are being used in a fraudulent manner, FastSpring reserves the right to withhold payments to the Client pending additional investigation by FastSpring.

2. The Client may at its discretion appoint an independent auditor not reasonably objectionable to FastSpring for the authentication of the monthly sales revenue and FastSpring's fees due to FastSpring by the Client. The Client shall provide 14 days notice in writing of its request for such an audit. In the event of error-free results in the manner of calculation of the payments made to the Client, the Client shall pay for the costs of this audit. In the event of any substantial errors found in the manner of calculation of the payments made to the Client by the auditor's report, as Client's sole and exclusive remedy, FastSpring shall pay for the costs of such report in addition to the payment of all fees owing.

3. FastSpring will process on a twice monthly basis total sales made up to the last calendar day of each of the two periods within each calendar month (Period 1: 1st through 14th of each calendar month; Period 2: 15th through end of calendar month), and this total less Value Added Tax (VAT) (if applicable), Sales Tax (or any other applicable tax), and FastSpring's standard commissions as detailed in Exhibit A and Exhibit B hereto, will be distributed to the Client on or around the fifteenth calendar day after the end of each of the two periods. If an order's payment requires currency conversion, FastSpring will determine an exchange rate at the time the order is processed. Payment will be made on the account once sales have reached a minimum of $25.00 for the period in question provided that the Client does not require payment through international wire. In the event Client does require payment through international wire, payment will be made on the account once sales have reached a minimum of $100.00 for the period in question. In the event sales have not reached the minimum payment threshold, the amount generated will be withheld and paid during a later payment cycle when the total amount owed meets or exceeds the minimum. FastSpring shall be entitled to recover from the Client or to set off against future amounts owing, at FastSpring's discretion, payments that are charged back or disputed by the purchaser of a Product, and FastSpring shall not be liable if Purchasers continue use of the Product. FastSpring shall provide reasonable information and assistance requested by the Client to pursue the unauthorized use of the Product.

4. For any returns (refunds or chargebacks), the Client will be debited its portion of the sale plus a fee of 3.5%, which covers FastSpring's credit card transaction costs. Merchant account providers typically charge an additional $15 to $35 fee associated with chargebacks, but FastSpring will generally not pass this charge along to Client, with the exception of certain cases.  For cases where Client and/or certain Products have an unusually high chargeback rate (typically, a rate of one to two percent or more), FastSpring reserves the right to discontinue selling some or all Client's Products unless Client agrees to pay the associated chargeback fees and FastSpring is still willing (in its sole discretion) to continue to sell any Products for Client. For cases where it is determined by FastSpring that Client may be encouraging or taking part in any deceptive or fraudulent practices, Client will be charged $20.00 per chargeback and FastSpring will withhold any owed funds to cover FastSpring's future potential liabilities. 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.

5. For each sale of a Product, FastSpring shall pay to the Client an amount equal to the Client's purchase amount less the FastSpring commission as described in Exhibits A and B of this Agreement.

6. Payments between both parties will be made in US dollars.

7. FastSpring reserves the right to retain some or all of the funds that are in the Client's account if FastSpring determines likelihood of the necessity to cover future refunds, charges against the account, or other liabilities the Client may owe to FastSpring. FastSpring may also retain some or all of the funds if FastSpring believes that the funds represent fraudulent transactions or involve other kinds of illegal activities. FastSpring will only retain those amounts which are reasonable under the circumstances. FastSpring shall communicate to Client amounts retained and 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 the Client any remaining retained amounts after such reasonable time elapses. Notwithstanding any revenues retained by FastSpring for such circumstances, the Client agrees to pay FastSpring, upon demand, funds owed to FastSpring due to refunds, chargebacks, commissions or fees for services rendered. If FastSpring actually keeps (or sets off) against the Client's account with FastSpring any of the funds FastSpring has retained, FastSpring shall do so in accordance with FastSpring's reasonable determination of Client's liability.

8. If Client has no sales activity for a period of six (6) consecutive months, FastSpring reserves the right to charge Client an account dormancy fee equal to twenty dollars ($20.00) per month in each subsequent month during which Client has no sales activity; or, at FastSpring's option, to terminate this Agreement immediately upon notice to Client. Account dormancy fees will only be assessed on accounts with a positive balance.
(I) DURATION AND TERMINATION.

1. This Agreement shall be ongoing subject to termination for convenience by either party giving the other party written notice of ten (10) days of initiating party's intention to end this Agreement. Any funds received by the FastSpring Service to the account of Client after termination shall continue to be paid out by FastSpring, as specified by these terms and conditions, but FastSpring shall not be required to process any further transactions for the Client. FastSpring may retain a reasonable reserve from the funds collected for up to 3 months to cover future chargebacks and refunds. This reserve will be paid out to the Client when deemed appropriate by FastSpring.

2. Notwithstanding anything in this Agreement to the contrary, should FastSpring, in its sole discretion, determine that the FastSpring SpringBoard Software, Products or FastSpring Services have been fraudulently used by either the Client or any party affiliated with the Client, or that the Client's Products and/or Content are not deemed acceptable, FastSpring shall have the right to terminate this Agreement immediately on notice to the Client.

3. If in the sole discretion of the Client it is considered 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 the Client, the Client shall have the right to terminate this Agreement immediately on notice to FastSpring.

4. Upon termination, FastSpring shall remit all fees owing to the Client according to the terms of this Agreement, including but not limited to the stipulations regarding reserves in term I1, and FastSpring shall immediately cease distribution of the Products, except when required to support existing Customers.

5. If in the sole discretion of FastSpring it is considered that the Products are subject to an excessive fraud or chargeback rate, as calculated over a period of time showing such trends, FastSpring shall have the right to terminate this Agreement immediately on notice to the Client.

6. Upon termination of this Agreement, FastSpring shall promptly return to the Client all copies of the Electronic Products, the End-User Agreements, and any marketing or other materials relating to the Products and both parties shall return each other's confidential information. Each party agrees (i) to hold the confidential information of the other in the strictest confidence (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer such confidential information to any third party, except as otherwise permitted under this Agreement (iii) not to make use of such confidential information other than for the permitted purposes under of this Agreement, and (iv) to disclose such confidential information only to their respective representatives, subcontractors and strategic partners requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. Confidential information includes any information which a party should reasonably understand to be confidential, whether or not designated as confidential, including Client's pricing with FastSpring. The nondisclosure and confidentiality obligations set forth herein shall survive termination of this Agreement for any reason and shall remain in effect with respect to trade secrets for as long as the information qualifies as a trade secret under applicable law, and with respect to confidential information which does not qualify as a trade secret, for a period of three (3) years after termination hereof. Confidential information shall not include any information which: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction on its disclosure or use, at the time of disclosure; (iii) is disclosed by the receiving party with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the disclosing party's confidential information; (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party; or (vi) is (a) compelled pursuant to a legal proceeding or (b) is otherwise required by law; provided however that the party being compelled to disclose confidential information shall, if requested, provide the other party with all reasonable assistance to resist such disclosure, at the expense of the party that owns the confidential information sought to be disclosed and shall not disclose the confidential information until the other party has exhausted all rights of appeal under the laws of the jurisdiction in which disclosure is compelled.

7. Acceptable Use. Client is responsible for its own and its authorized customers' continual compliance with FastSpring's Privacy Policy and this Agreement and other guidelines released by FastSpring from time to time. Client 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 Client or its authorized customers, (ii) attempting to breach security or authentication measures without proper authorization or interfere with the Software or FastSpring Service, (iii) taking any action in order to obtain software or services to which Client or its authorized customers 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.

8. Upon termination of this Agreement, the Client will immediately remove any reference to FastSpring or its site, including hyperlinks, in any online media. Additionally, Client will remove references to FastSpring in any printed media, such as marketing collateral and print advertising.
(J) CLIENT'S SALE PRICE.

The Client's sale price shall be set by the Client and entered in FastSpring's SpringBoard Software per the Product registration details. FastSpring will collect and remit to the proper authorities any required sales tax, value added-tax (VAT), or similar tax or government fees that are based on the sale of Client's Products (collectively "Sales Taxes"). Any collected Sales Taxes will not be placed into Client's account but shall instead be paid by FastSpring to the appropriate government authority.
(K) NOTICE, ERRORS AND INFRINGEMENTS.

1. The Client shall notify FastSpring immediately if it becomes aware of any errors in the FastSpring SpringBoard Software or FastSpring Service, and of any infringement of any of FastSpring's intellectual property rights.

2. Any notice to be given between FastSpring and Client shall be deemed sufficiently given if forwarded by e-mail, registered post, or hand or courier delivery, to the last known corresponding address of the receiving party.
(L) AGENCY.

FastSpring serves solely in the capacity of an independent contractor and at no time serves or can be defined as an agent or employee of Client. 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. The Client shall have no authority or power to bind FastSpring, to contract in the name of FastSpring, or to create a liability against FastSpring in any way or for any purpose.
(M) CHOICE OF LAW, DISPUTE RESOLUTION AND ATTORNEYS FEES.

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 conflicts of laws. The parties further agree that this Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of California. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Any action related to or arising out of this Agreement shall be venued solely in a State or Federal court of competent jurisdiction located in the State of California, Santa Barbara County and the parties irrevocably commit to the jurisdiction and venue of said courts and waive any right to object thereto.

In the event of a dispute between the parties, the parties agree that an executive from each company will meet and negotiate in good faith in an effort to resolve the dispute. If such dispute is not resolved after such meeting then the parties shall arbitrate their dispute as provided herein. Except for claims seeking injunctive relief for which court relief may be sought, or claims involving intellectual property rights, the parties will arbitrate any dispute resulting from or arising as a result of this Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association ("AAA") and shall be administered by AAA in Santa Barbara, California. The proceedings shall be secret and the award shall be final and binding on the parties. Each party consents to the award being made an order of any court of competent jurisdiction. The substantially prevailing party shall be entitled to recover its attorney fees and costs, whether or not suit is filed, both trial and appellate, from the non-prevailing party.
(N) FORCE MAJEURE.

Neither party will be liable for any delay in or failure of performance if such delay or failure arises from any event beyond its reasonable control including any natural and unavoidable catastrophes, accident, insurrection, labor dispute or lock-out, terrorism, hackers, or extraordinary act of government. If such an event prevents or delays one party from performing any of its obligations under this Agreement, it must notify the other party as soon as reasonably practical, and must take measures to recover from such position as soon as reasonably possible.
(O) LAW.

This Agreement shall be governed by the laws of the State of California, U.S.A. Both FastSpring and Client specifically disaffirm application of the United Nations Convention on the International Sale of Goods.
(P) SEVERABILITY.

Should any part of this Agreement be declared to be void or invalid by the final decision of any court of competent jurisdiction, the remainder of this Agreement shall continue to be in force between the parties, as if the portion which has been declared invalid or void was excluded from the Agreement at commencement thereof.
(Q) 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. Any attempt to assign in violation of this provision shall be null and void. However, the provisions of this Agreement shall be binding upon the parties and their permitted successors. 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.
(R) NON-EXCLUSIVITY

Neither the Client nor FastSpring is obligated to deal in a contractually exclusive manner with the other. The Client is permitted to use other means or companies to distribute its Products, and FastSpring reserves all rights to distribute Products and/or License Rights provided by others that may be similar to or competitive with the Client's Products.
(S) MODIFICATION RIGHTS

1. FastSpring reserves the right to amend/modify this Agreement or any portion of this Agreement, including FastSpring commission rates, fees, and the addition or subtraction of services to/from the SpringBoard Software. In the event of an amendment or modification, the Client will be notified through email, registered post, or hand or courier delivery, to the last known corresponding address of the receiving party as provided above in Section D(2).

2. If the Client is opposed to the amendment/modification, the Client will have the option of terminating the Agreement as set forth in Section I. If the Client does not terminate the Agreement for convenience as permitted under this Agreement prior to the date the amendments/modifications take effect, the Client will be deemed to have accepted the amended/modified version as the new Agreement between FastSpring and Client, and the prior version will be deemed terminated.

3. The waiver of any provision of this Agreement shall not be effective unless made in writing. Any waiver by either party of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision.
(T) INDEMNIFICATION.

Client agrees to indemnify, defend and hold FastSpring, its subsidiaries and strategic partners, and each of their and our officers, directors, agents, owners, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorneys' fees, due to or arising out of the following events: (i) Client or Purchaser giving FastSpring any information which is inaccurate; (ii) Client's alleged negligence or willful misconduct; (iii) Client's or its Purchasers' alleged violation of any law, regulation or right of any third party; (iv) Client's alleged breach of any representation, warranty or obligation under this Agreement (v) any dispute or action between Client and any third party, including Purchasers, not caused by FastSpring's breach of this Agreement, gross negligence or willful misconduct.
(U) GENERAL

1. If not contained in this Agreement, no representation, term, condition, guarantee, or warranty, nor any amendment of, addition to, or consensual cancellation of, this Agreement, nor any indulgence of one party by the other, or waiver of either party's rights provided in terms of this Agreement, shall be binding on the parties unless reduced to writing and signed by or on behalf of both parties.

2. FastSpring's Customer support is limited to assistance with the use of the FastSpring Service, web sites, shopping carts, order pages, and the delivery of license keys or files, when applicable.

3. FastSpring, at its sole discretion, is allowed to refund a Customer's purchase. The Client has no recourse if the Customer is credibly threatening a chargeback or Client fails to respond to communications from Customer after FastSpring twice attempts to contact Client about responding to such Customer.

4. Adult entertainment content (pornography, gambling, etc.) is not permitted on FastSpring, and FastSpring reserves the right to immediately shut off any Client account in violation of this provision.

5. FastSpring posts its Privacy Policy at http://www.fastspring.com/privacy.php. The Client agrees to the terms of that Privacy Policy as it is now issued and as it may be amended in the future by FastSpring. The Privacy Policy is incorporated into this Agreement by reference.

6. The Client will not misuse any third-party services accessible to Client via FastSpring. Usage of thirty-party services by Client constitutes Client's acceptance of the terms and conditions associated with any such third-party services.

7. The Client may not use commercial e-mail where the e-mail violates any applicable laws or regulations regarding the use of commercial e-mail 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 the Client delivers those materials. The Client accepts responsibility for compliance with this policy even if the Client utilizes the services of a third party. If FastSpring is charged any fines, penalties or incurs any costs, including attorney fees, due to the Client's non-compliance with this provision, the Client agrees to reimburse FastSpring any of those amounts.

8. The Purchaser, as an integral part of using FastSpring's services, transmits his/her personally identifiable information to FastSpring. To the extent permitted under applicable laws and not otherwise prohibited by a Purchaser's request to FastSpring, all Purchaser information resulting from a transaction will be shared by FastSpring with the Client and with any relevant FastSpring or Client service providers and partners, as needed to conduct FastSpring's business operations. The Client agrees it will only use Purchaser information in compliance with FastSpring's publicly displayed privacy policy, the Client's publicly displayed privacy policy, and all applicable laws and regulations, including CAN Spam Act of 2003 15 U.S.C. 701-7713 (2003).

9. This Agreement sets forth the entire understanding between the Client and FastSpring concerning the subject matter hereof, and any prior understandings, or understandings that are not expressly contained in this Agreement, shall have no effect as of the date this Agreement is effective.
Exhibit A - File Backup Offer Commission

Retail pricing for File Backup Offers will be determined by Client.

FastSpring commission charged on all sales of CD Backup Offer (includes the cost of worldwide shipping):

$7.90 USD

FastSpring commission charged on all sales of Digital Backup Offer (Extended Download Service) (one year of service):

$1.50 USD
Exhibit B - Transaction Commission

FastSpring commission charged on all purchase transactions: 8.9%

Minimum commission charge: $0.75 USD per purchase transaction

Additional fees:

3.5% fee charged for returns (refunds and chargebacks)

$15.00 USD fee charged for payments made by FastSpring to Clients when the payments are sent via bank wire.

Bandwidth Charges: $0.00 USD / GB (calculated by partial GB)

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