Effective as of March 13, 2017
This is a legal agreement by and between (1) you ("the Licensee"), who is the person, company, or entity utilizing FaunaDB Serverless Cloud ("FaunaDB"), and (2) Fauna, Inc. By clicking the "I accept" button, or by otherwise using FaunaDB, you are consenting to be bound by these terms and conditions ("Agreement"). You further agree that your employees or any person you authorize to use your FaunaDB account will also be bound by the terms and conditions of this Agreement.
FI owns and shall retain all right, title, and interest in and to FaunaDB, any updates or maintenance releases, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto. FaunaDB is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws, and all rights are reserved.
FI hereby grants Licensee, and Licensee hereby accepts, a non-exclusive, non-sublicensable, non-transferable, fully revocable license to use FaunaDB solely upon the terms and conditions contained in this Agreement ("License"). Licensee may access FaunaDB from any number of virtual machines or physical computing devices owned, leased, or otherwise controlled or operated by Licensee, or from any number of virtual machines or physical computing devices owned, leased, or otherwise controlled or operated by third parties who have installed software distributed by Licensee that accesses FaunaDB on Licensee's behalf. For purposes of this Agreement, "use" of FaunaDB means accessing FaunaDB over a computer network. Licensee acknowledges that FI makes no representation as to the compatibility of FaunaDB with any specific operating environment or computing device.
2.2 Liability for Third Parties
Should Licensee make available any software, security credentials, or other means of access to FaunaDB to third parties, whether deliberately or through error or omission, Licensee shall be solely liable for any and all damages, liabilities, and expenses arising from and relating to such use.
The License is granted solely to Licensee, and not to any parent, subsidiary, or affiliate of Licensee. All rights not expressly granted hereunder are reserved to FI. The License does not include (a) maintenance, support, upgrades, or modifications to FaunaDB other than as set forth herein, (b) derivative products developed by FI or anyone else to whom FI may license FaunaDB, or (c) a license or transfer of any intellectual property rights owned or controlled by FI or any FI affiliate, subsidiary, or parent. Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, clone, disassemble, or otherwise attempt to derive source code from FaunaDB or any internal data files generated by FaunaDB, rent, lease or loan FaunaDB, or use FaunaDB in any manner that constitutes a breach of this Agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
2.4 Use Reporting, License Violations and Remedies
FI reserves the right to gather data on FaunaDB usage including account identifications, security credentials, server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. FI reserves the right to remedy violations immediately upon discovery. Licensee agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be violation of this Agreement and will result in immediate termination of this Agreement.
2.5 License Expiration
Licensee's license may include an expiration date that can result in the termination of the license. Licensee's payment must be processed prior to the expiration date or Licensee's license will be terminated, and their account access will be interrupted. It is Licensee's responsibility to contact FI regarding any potential expiration that Licensee deems inappropriate. FI is not liable for any damages or costs incurred in connection with the expiring licenses.
2.6 Security Credentials
If Licensee's security credentials are stolen, or if Licensee suspect any improper or illegal usage of Licensee's license outside of Licensee's control, Licensee should promptly notify FI of such occurrence. Replacement security credentials will be issued to Licensee. If Licensee fails to promptly notify FI of such occurrence, Licensee agrees that Licensee's license may be terminated without notice. Licensee shall be solely liable for any and all damages, liabilities, and expenses arising from and relating to the theft of Licensee's security credentials or the improper or illegal use of Licensee's license.
2.7 Grant of License to FI
Licensee exclusively owns all rights in and to information it stores on FaunaDB ("Information"). FI needs a limited license from Licensee to use (i.e., display, perform, and distribute) Information in order to make FaunaDB available to Licensee. By providing Information, Licensee grants FI a limited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute the Information for the sole purpose of operating FaunaDB and providing related services. FI shall also have an unlimited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide license to use, incorporate into FaunaDB, modify, perform, display, reproduce and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee relating to the operation or features of FaunaDB.
3. License Fees
FaunaDB will be available to Licensee for use upon Licensee's receipt of one or more security credentials. Upon acceptance of this Agreement, Licensee may obtain one or more security credentials by using the procedure set forth on the FaunaDB website (https://fauna.com). The license fees paid by Licensee are paid in consideration of the license granted under this Agreement. FI does not refund license fees. By accepting this Agreement Licensee fully understands that once the license fee payment is made to FI, Licensee will have no recourse for receiving a refund for any part of the fees.
4. Term and Termination
The term of this Agreement commences as of the Effective Date, or upon Licensee's downloading, accessing, or using FaunaDB even if Licensee has not expressly accepted this Agreement, and shall continue unless and until either Party provides fourteen (14) days advance notice to the other terminating this Agreement, or if Licensee makes an assignment or other transfer of this Agreement or the License, by operation of law or otherwise. Upon the termination of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and Licensee shall immediately cease use of FaunaDB. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement, including but not limited to indemnification, shall so survive.
Pursuant to this Agreement, Licensee may have access to confidential or proprietary information of FI, including without limitation information and material concerning or pertaining to FI's business, methods, plans, software programs, application programming interfaces, network systems, data, documentation, inventory, projects, or other information and materials, including all results and analyses related to any functional, performance or benchmark testing results, the contents of this website, FaunaDB itself, and communications by employees of FI. Any such information or material is confidential and proprietary to FI unless publicly disclosed by FI ("Confidential Information"). Licensee will not use (except to perform its obligations or exercise its rights under this Agreement) or disclose the Confidential Information to any third party without FI's express prior written consent, except to Licensee's employees or agents who have a need to know to effect the purposes of this Agreement. Upon FI's written request, Licensee will promptly destroy all originals and copies of all documents and materials containing Confidential Information that Licensee has received in connection with this Agreement.
6. Open Source Software
FaunaDB may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third party open source licenses, and not the terms of this Agreement. If any such license requires FI to deliver the source code for such component to Licensee, FI shall do so upon request for a nominal fee.
7. Indemnification by Licensee
Licensee shall indemnify, defend, and hold harmless FI (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys' fees) which result from claims that any modifications Licensee makes to FaunaDB or any combination of FaunaDB with Licensee's software, data, or other items provided by Licensee, whether directly or via third parties, infringes or violates any third party intellectual property right. In case any action or proceeding is brought against FI by reason of any such claim, demand, action, damage, loss, liability, cost, or expense, Licensee's duty to defend shall begin upon receipt of written notice identifying the allegations that give rise to this duty to defend and shall be coextensive with Licensee's indemnification obligation.
8. No Warranties
FI LICENSES FAUNADB TO LICENSEE ON AN "AS IS" BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, FI DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO FAUNADB. LICENSEE ACKNOWLEDGES THAT THE OPERATION OF FAUNADB MAY NOT BE UNINTERRUPTED OR ERROR-FREE, AND THAT ERRORS MAY NOT BE CORRECTED. FI IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF LICENSEE'S ACCESS TO OR USE OF FAUNADB. IT IS LICENSEE'S SOLE RESPONSIBILITY TO DETERMINE THAT FAUNADB MEETS THE NEEDS OF LICENSEE'S BUSINESS AND IS SUITABLE FOR THE PURPOSES FOR WHICH IT IS USED. LICENSEE REMAINS SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS. IT IS LICENSEE'S RESPONSIBILITY TO CHECK THAT THE STORAGE OF AND ACCESS TO LICENSEE'S DATA VIA FAUNADB AND THE WEBSITE WILL COMPLY WITH LAWS APPLICABLE TO LICENSEE AND LICENSEE'S BUSINESS (INCLUDING ANY LAWS REQUIRING LICENSEE TO RETAIN RECORDS).
9. Limitation of Remedies and Damages
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, (A) FI SHALL NOT BE LIABLE TO THE LICENSEE UNDER THIS AGREEMENT ON ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF FAUNADB; AND (B) IN NO EVENT SHALL FI BE LIABLE TO LICENSEE FOR ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INTERRUPTION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THIS AGREEMENT, EVEN IF FI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FI'S LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY LICENSEE AS A RESULT OF FI'S NEGLIGENCE OR FAILURE TO COMPLY WITH THESE TERMS OF SERVICE SHALL BE LIMITED IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS, TO THE FEES PAID BY LICENSEE TO FAUNADB IN THE PREVIOUS TWELVE (12) MONTHS.
10. Backup of Data
Licensee shall maintain copies of all data and information inputted by Licensee into FaunaDB. FI adheres to policies and procedures to prevent data and information loss, including a daily back-up regime, but does not make any guarantees that there will be no loss of data or information, or that FI policies and procedures will conform to industry best practices. FI expressly excludes and disclaims any liability for any loss of Licensee's data and information, no matter how such loss was caused.
11. Privacy and Data Security
FI agrees that it shall use best efforts to (i) keep and maintain Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) use and disclose Information solely and exclusively for the purposes for which the Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Information for FI's own purposes or for the benefit of anyone other than Licensee, in each case, without Licensee's prior written consent.
12. Maintenance and Support
FI reserves the right to modify and provide updates to FaunaDB from time to time at its discretion. FI will provide maintenance and support in accordance with the applicable terms of this Section. FI will make reasonable efforts to resolve issues related to malfunctions or errors resident in FaunaDB. FI will not be responsible for errors or malfunctions caused by any of the following: (a) use of FaunaDB in conjunction with any specific platform (such as browser, OS, or networking device); (b) use of FaunaDB other than in accordance with this Agreement; (c) any repair, adjustment, alteration, or modification of FaunaDB without FI's prior written consent (the availability of macros, macro development capabilities, plug-ins, APIs and certain FaunaDB source code shall not be deemed to be FI's consent to any repair, adjustment, alteration or modification of FaunaDB for purposes of maintenance and support); (d) third-party applications or components; and (e) environmental issues outside of FI's control, including without limitation those introduced by FI's own vendors and partners. FI will provide support only for the current release of FaunaDB. FI's obligations, if any, to provide maintenance and support is subject to the following: (a) Licensee shall provide FI with sufficient access to its account and personnel to duplicate and resolve errors; (b) Licensee shall provide supervision, control and management of the use of FI; (c) Licensee shall document and promptly report all errors or malfunctions in FaunaDB to FI, and (d) Licensee shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from FI. Notwithstanding the foregoing, FI shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to FaunaDB.
13. No Unlawful or Prohibited Use
As a condition of Licensee's use of FaunaDB, Licensee warrants that Licensee will not use FaunaDB for any purpose that is unlawful or prohibited by this Agreement. Licensee may not use FaunaDB in any manner that could damage, disable, overburden, or impair FaunaDB or interfere with any other party's use of FaunaDB. Licensee may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through FaunaDB. The following is a non-exclusive list of actions that FI considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for Licensee's guidance. If Licensee is unsure whether any contemplated use or action is permitted, Licensee should contact FI.
Using FaunaDB for any activity that violates any local, state, federal or international law, order or regulation.
Using FaunaDB to transmit, distribute, store or access any material (by email, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or otherwise objectionable or unlawful.
Using FaunaDB to transmit, distribute, store or access any material (by email, publishing, uploading, posting, or otherwise) that infringes copyright, trademark, patent, trade secret, or other proprietary rights of any third party. Licensee assumes all risks regarding the determination of whether material is in the public domain.
Using FaunaDB to harm or attempt to harm a minor, including, but not limited to, hosting, possessing, distributing, or transmitting child pornography or other material that is unlawful.
Disrupting or interfering with FaunaDB in any way, including through the uploading of files which contain viruses, worms, "Trojan horses," or other software or programs that may be damaging to FaunaDB or another user's computer.
Using FaunaDB to transmit, or to facilitate the transmission of, any unsolicited commercial email or unsolicited bulk email.
Using FaunaDB to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of FaunaDB or another entity's computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
Using FaunaDB to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
Using FaunaDB for any activity that adversely affects the ability of other people or systems to use FaunaDB or the Internet.
Using FaunaDB to post any content that holds FI up to public scorn or ridicule or would any way damage or impair FI's reputation or goodwill.
14. Injunctive Relief
Licensee understands and agrees that its breach of this Agreement will cause FI irreparable damage for which recovery of money damages would be inadequate, and that FI shall therefore be entitled to obtain timely injunctive relief to protect FI's rights under this Agreement in addition to any and all remedies available at law, without the necessity of a bond.
15. Copyright and Trademark Notices
The following trademarks are property of FI:
FaunaDB Serverless Cloud™
All other trademarks are owned by FI and their affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to FaunaDB are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Other than as expressly permitted in Section 2, the copying, redistribution, use or publication by Licensee of any such matters or any part of FaunaDB, is strictly prohibited. Licensee does not acquire ownership rights to any article, document or other materials viewed through FaunaDB. The posting of information or materials on FaunaDB does not constitute a waiver of any right in such information and materials. Some of the content on FaunaDB may be the copyrighted work of third parties. Nothing contained in FaunaDB should be understood as granting Licensee a license to use any of the trademarks, service marks, or logos owned by FI or any third party.
16. Changes to This Agreement
FI reserves the right to revise, amend, or modify this Agreement from time to time, and such version will be made available on the FaunaDB website at https://fauna.com/terms. Notice of any revision, amendment, or modification will made by email to Licensee's primary email, and will be effective on the posted date. By continuing to use FaunaDB after the amendments are effective, Licensee accepts and agrees to abide by them. Should Licensee decline to accept the amended agreement by the effective date, this agreement will terminate. FI is not responsible for errors in delivery of such notice caused by changes to Licensee's email address, "spam" filters, or for any other reason. This Agreement may not be amended or modified by Licensee except by means of a written document signed by both Licensee and an authorized representative of FI.
17. Notices and Procedure for Making Claims of Copyright Infringement
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to FI at the address set forth in Section 22.
18. Binding Arbitration
Licensee agrees that any legal controversy or legal claim arising out of or relating to this Agreement or FaunaDB (excluding legal action taken by us to obtain any injunction relating to intellectual property ownership or infringement), shall be settled solely by confidential binding arbitration in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS, available at JAMS Comprehensive Arbitration Rules and Procedures. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Francisco, California. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS, and each party shall bear its own attorneys' fees. BY ACCEPTING THIS AGREEMENT, LICENSEE WARRANTS THAT THEY HAVE READ, ARE FAMILIAR WITH, AND UNDERSTAND THE COMPREHENSIVE ARBITRATION RULES OF JAMS, AND HAVE CONSULTED WITH AN ATTORNEY AS TO THEIR IMPACT AND THE IMPACT OF THIS ARBITRATION CLAUSE ON LICENSEE'S LEGAL RIGHTS.
19. United States Government Restricted Rights
FaunaDB is provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.
20. General Provisions
This Agreement is governed by and shall be construed in accordance with the domestic laws of the State of California, excluding (a) any conflicts-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction, (b) the United Nations Convention on Contracts for the International Sale of Goods, and (c) any potentially applicable provisions of the Uniform Computer Information Transactions Act, to the extent it is, or has been, adopted in a governing jurisdiction.
21. Entire Agreement
This Agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral, excepting the FaunaDB Professional Services Agreement agreement and the FaunaDB Enterprise License Agreement, should the Licensee be party to either of those agreements. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Licensee may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of FI and any prohibited assignment or transfer will be null and void, but FI may freely assign or transfer this Agreement. This Agreement will be binding upon and will inure to the benefit of the parties' permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
22. Contacting Us
If you have any questions, comments or complaints concerning this Agreement, please email us at email@example.com, or send any correspondence to Fauna Inc., 744 Montgomery Street Suite 200, San Francisco, CA 94111, Attn: Legal. Our representatives will endeavor to contact you within fifteen (15) days of your inquiry.