Fauna Services Agreement
Last Updated July 14, 2023 | Previous versions
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING FAUNA’S DISTRIBUTED SERVERLESS DATABASE PLATFORM (THE “SERVICES”) AND ANY SOFTWARE ASSOCIATED WITH THE PLATFORM (THE “SOFTWARE”) VIA FAUNA.COM (THE “SITE”) OR ANY OTHER METHOD OF ACCESS, YOU AGREE TO THESE TERMS OF SERVICE (THE "AGREEMENT"). THE AGREEMENT IS A BINDING LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER” OR “YOU”), THE PERSON OR ENTITY USING THE SERVICES, AND FAUNA, INC. (“COMPANY” OR “WE”) FOR CUSTOMER USE OF THE SERVICES VIA LICENSE.
BY CLICKING THE "I ACCEPT" BUTTON, OR BY OTHERWISE ACCESSING THE SERVICES, YOU CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY WITH THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND ACKNOWLEDGE THAT ANY PERSON OR ENTITY YOU AUTHORIZE TO USE YOUR SERVICES ACCOUNT WILL ALSO BE BOUND BY THIS AGREEMENT.
1. License To Services
1.1 License for Paid Use. Subject to this Agreement and the payment of any Fees specified on the Site or in an applicable order form (the “Order Form”) Company hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, worldwide, limited license to access and use the Services for Customer’s internal business purposes consistent with the documentation found here (the “Documentation”) and subject to any limitations set forth in this Agreement.
1.2 Order Form. Customer may purchase a month-to-month license to the Services via the Site, or a longer subscription via an Order Form. Each Order Form sets forth the Services, subscription fees, and any Service Level or Support commitment, and any other services or deliverables, if applicable. If any terms in an Order Form expressly conflict with the terms of this Agreement, then the terms of the Order Form shall take precedence.
1.3 License for Free Tier. If Customer qualifies for the free usage set forth on the Site (the “Free Tier”), Customer may access the Services on a limited basis subject to this Agreement. Customer acknowledges that Company may terminate a license to the Free Tier at any time for any reason in Company’s sole discretion. Upon exceeding any Free Tier limits or parameters set forth on the Site, Customer must purchase Services via the Site or an Order Form to continue using the Services.
1.4 Support and Service Level Agreements. Terms and conditions for Support and Service Level Agreements are detailed here, and these are incorporated into the Agreement as set forth in an applicable Order Form. Except for Standard Support, Support and Service Level Agreements are available for Services purchased via an Order Form only.
1.5 Updates to Service. Company reserves the right to modify and provide updates to the Services from time to time at its discretion.
2. Customer Usage Obligations
2.1 Permitted Usage and Responsibilities. Customer may access and use the Services for its own internal purposes only and shall not transfer, disclose, sublicense, assign, sell, or distribute the Services to third parties. Customer will not, directly or indirectly, do any of the following: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for the benefit of a third party; or remove any proprietary notices or labels. Moreover, Customer agrees to use the Services or any Software in a manner consistent with the Documentation provided by Company and in compliance with all applicable laws and regulations.
2.2 Restricted Usage. Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including without limitation modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account information, passwords and files, and for all uses of a Customer account or Equipment with or without Customer’s knowledge or consent.
3. Ownership of Services and Customer Data
3.1 Company Ownership. Company retains all ownership and intellectual property rights in the Services, and any updates, maintenance releases, derivative works, and anything developed or delivered by Company as part of the Services, including the Software, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto. The Services are protected by, among other things, the copyright laws of the United States, international copyright treaties and conventions, and other laws, and all rights not granted herein are reserved to Company.
3.2 Customer Ownership. Customer retains all ownership and intellectual property rights in data Customer stores on the Services (“Customer Data”). By providing Customer Data, Customer hereby grants Company a limited, non-exclusive, fully paid, royalty-free, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute Customer Data for the purpose of operating and providing the Services to Customer. Company shall also have an unlimited, perpetual, non-exclusive, fully paid, royalty-free, sub-licensable, transferable, and worldwide license to use, incorporate into the Services, modify, perform, display, reproduce and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by Customer to Company relating to the operation or features of the Services.
4. Fees and Payment
4.1 Fees. All fees set forth on the Site or an Order Form are based on subscriptions purchased, which includes a built-in level (or “quota”) of usage for a period of time (“Subscription Fees”) with adjustments for usage above allocated subscription quotas (“Usage Fees”). Subscription Fees and Usage Fees shall be collectively referred to as “Fees” in this Agreement. Customer obligations associated with Fees are not cancelable and Fees paid are not refundable.
4.2 Invoicing, Disputes and Payment Terms. All Fees due under this Agreement shall be made by bank transfer or credit card unless otherwise agreed via an Order Form. Company will often issue a single statement detailing Subscription Fees and Usage fees for the prior month. Customer has ten (10) days from issuance of such a statement to dispute any Fees in good faith. Unpaid Fees not disputed in good faith are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure to pay Fees may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Fees other than U.S. taxes based on Company’s net income.
5. Term and Termination
5.1 Term and Renewal
5.1.1 Services Purchased via an Order Form. Services purchased via Order Form shall continue for the period specified on an applicable Order Form (the “Subscription Term”) unless earlier suspended or terminated in accordance with this Agreement and shall automatically renew at the end of the then current Subscription Term for an identical time period unless either party notifies the other party in writing at least thirty (30) days prior to the renewal date of its intent not to renew. Customer may not decrease usage quotas associated with subscriptions purchase during a Subscription Term unless agreed to in writing by the parties.
5.1.2 Services Purchased via the Site. The Subscription Term for Services purchased on the Site shall be month to month and the Subscription Term begins on the date Services are purchased and renews automatically unless cancelled by a party before the next billing month.
5.2 Termination for Breach. Either party may terminate this Agreement if the other party materially breaches the terms set forth herein or in an applicable Order Form and fails to remedy such breach within thirty (30) days after written notice from the non-breaching party.
5.3 Rights Upon Termination or Expiration. Upon the termination or expiration of this Agreement for any reason, all license rights granted under this Agreement shall terminate in full, and Customer shall immediately cease use of the Services and any provision of this Agreement that by its nature or context is intended to survive shall so survive, including without limitation indemnification, limitation of liability or payment obligations.
5.4 Suspension. Company may suspend Customer access to or use of the Services if Company reasonably believes that (a) there is a significant threat to the functionality, security, integrity or availability of the Services; or (b) Customer or Customer authorized users are accessing or using the Services to commit an illegal act or in violation of this Agreement. Company will use commercially reasonable efforts to provide Customer with advance notice of such suspension, except in the event of an emergency or if Company is prevented from providing advance notice for legal reasons. A suspension shall not excuse Customer from payment obligations in connection with this Agreement.
6.1 Confidential Information. The Parties acknowledge that, in the course of performance under this Agreement, a Party (the “Disclosing Party”) may disclose, deliver or permit access by the other Party (the “Receiving Party”) to information that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential given the nature and the circumstances surrounding disclosure (“Confidential Information”). Confidential Information shall include, but shall not be limited to: proprietary technical information, know-how, inventions, techniques, applications, analyses, methods, methodology, algorithms, source codes, training models, software (including, but not limited to, the Services and its Updates) and documentations (including, but not limited to, documentations of the Services and its Updates); business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, trade secrets, methods and models; and employee, customer and supplier information. With respect to the Customer, Confidential Information also includes all Customer-Provided Data.
6.2 Non-Disclosure and Non-Use. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the Disclosing Party, or as required by law, the Receiving Party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the Disclosing Party. Each party agrees that Receiving party will: (i) use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement and under any applicable Order Forms (ii) restrict access to the Disclosing Party’s Confidential Information to such of its employees, personnel, agents, and/or consultants, if any, who have a need to have access to the Confidential Information and who have been advised to treat such information in accordance with the terms of this Agreement (iii) use the same care and discretion with respect to the Confidential Information received from the Disclosing Party as it uses with its own similar information, but in no event less than a reasonable degree of care.
6.3 Confidentiality Exclusions. The obligations set forth above shall not apply to any Confidential Information that the Receiving Party can demonstrate: (i) the Receiving Party possessed, without any obligation of confidentiality, prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of the Agreement by the Receiving Party; (iii) is or was independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (iv) is or was received by the Receiving Party from a third party that does not have an obligation of confidentiality to the Disclosing Party or its affiliates. Either Party may disclose the Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The Receiving Party may disclose Confidential Information of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding only to the extent necessary to comply with the order or other legal requirement. In such event the Receiving Party will, if lawfully permitted to do so, promptly notify the Disclosing Party within a reasonable time prior to disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures.
7. Open-Source Software
The Services may contain open-source software components, each of which may have copyright notice requirements and applicable license conditions. These components are subject to the terms of third-party open-source licenses, which are not incorporated into this Agreement. If Customer requests Company to deliver the source code for a component to Customer, Company may do so upon request for a nominal fee.
8.1 Indemnification by Company. Company will defend any action brought against Customer based on a third-party claim that the Services infringe a third party’s US intellectual property rights and, at its option, will settle any such action or will pay any final judgment awarded against Customer, provided that: (i) Company shall be promptly notified in writing by Customer of any notice of any such claim; (ii) Company shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise and shall bear the costs of the same; and (iii) Customer shall cooperate fully at Company’s expense with Company in the defense, settlement or compromise of such claim. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may at its option and expense elect to: (a) replace or modify the Services to be non-infringing or (b) terminate this Agreement and Customer’s rights hereunder and issue a refund for the contracted portion of the Services not performed.
8.2 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Company (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) arising from: (a) Customer’s use of the Services in a manner not permitted by this Agreement; (b) a claim that Customer Data infringes a third party’s intellectual property rights or violates any applicable data privacy law; or (c) the willful or negligent acts or omissions by Customer, in each case provided that: (i) Customer shall be promptly notified in writing by Company of any notice of any such claim; (ii) Customer shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise and shall bear the costs of the same; and (iii) Company shall cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of such claim.
9. Disclaimer of Warranties
COMPANY PROVIDES THE SERVICES "AS IS" AND ON AN “AS AVAILABLE” 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, COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO THE SERVICES. YOU ACKNOWLEDGE THAT THE OPERATION OF THE SERVICES MAY NOT BE UNINTERRUPTED OR ERROR-FREE, AND THAT ERRORS MAY NOT BE CORRECTED. COMPANY IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SERVICES. IT IS YOUR SOLE RESPONSIBILITY AS CUSTOMER TO DETERMINE THAT THE SERVICES MEETS YOUR BUSINESS NEEDS AND IS SUITABLE FOR THE PURPOSES FOR WHICH IT IS USED. IT IS YOUR RESPONSIBILITY TO CHECK THAT THE STORAGE OF AND ACCESS TO YOUR DATA VIA THE SERVICES AND THE SITE WILL COMPLY WITH LAWS APPLICABLE TO YOU AND YOUR BUSINESS (INCLUDING ANY LAWS REQUIRING YOU TO RETAIN RECORDS). COMPANY IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY WARRANTIES RELATED TO ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISES FROM CUSTOMER DATA.
10. Limitation of Liability
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER 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, LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THESE TERMS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, OR COMPANY’S NEGLIGENCE IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS, EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING A CLAIM OR ONE THOUSAND DOLLARS ($1,000).
11. Use Reporting, License Violations and Remedies
12. Arbitration and Governing Law
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of California, without regard to conflicts of laws provisions thereof. Customer agrees that any legal controversy or legal claim arising out of or relating to the Services (excluding legal action taken by Fauna to obtain any injunction relating to intellectual property ownership or infringement) shall be settled by confidential binding arbitration in accordance with the Comprehensive Arbitration Rules and 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 third party. The arbitration shall be conducted in San Francisco, California and each party shall bear its own costs. To the extent arbitration is prohibited by law or does not apply to a dispute, exclusive jurisdiction and venue for any action arising under this Agreement shall be in the courts located in San Francisco, California and both parties hereby consent to such jurisdiction and venue for this purpose.
13. Company Use of Customer Name and Logo
Customer hereby grant consent to Company a limited, non-exclusive, royalty-free license to use Customer name and/or logo on the Site for the purpose of identifying Customer as a customer of Company and user of the Services. Customer may object to such usage by contacting Company at firstname.lastname@example.org or via mail to 548 Market Street #87043, San Francisco, CA 94104, Attn: Legal. Company shall endeavor to honor all such objections within fifteen (15) days of Company's receipt of such request.
14. Miscellaneous Provisions
14.1 Entire Agreement. This Agreement (together with any Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof.
14.2 Notices. Unless specified otherwise herein, all notices must be in writing and addressed to the attention of the other Party's primary point of contact and will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
14.3 Assignment. Neither Party may assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void without consent of the other party; consent shall be reasonably granted in the context of an acquisition.
14.4 Force Majeure. Neither party will be liable for inadequate performance or breach to the extent caused by a condition (including, but not limited to, a natural disaster, act of war or terrorism, riot, labor condition, governmental action, epidemic, pandemic and Internet disturbance) (each a “Force Majeure Event”) that was beyond the party's reasonable control. The party risking liability will utilize commercially reasonable efforts to remove or abate the effects of a Force Majeure event as soon as practicable, but if not removed or abated within fifteen (15) days, the other party may terminate this Agreement and any related Order Form without penalty by written notice. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
14.5 No Waiver. No delay or failure to act regarding any breach of this Agreement shall constitute a waiver of such breach or of any prior, concurrent or subsequent breach of the same or other provisions of this Agreement. No single or partial exercise of any right shall preclude any other or further exercise of such right or the exercise of any other right. Except as otherwise expressly provided herein, the observance of any provision of this Agreement may be waived (either retroactively or prospectively) only with the signed written consent of the party against whom such waiver will be enforced. Such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it has been given and shall not be deemed or constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Failure to enforce any provision of this Agreement will not constitute a waiver.
14.6 No Agency. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture for any purpose.
14.7 Severability. If one or more of the provisions in this Agreement are deemed void or unenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected.
14.8 Electronic Transmission. Delivery of an executed copy of this Agreement or Order Form, by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document has the same effect as delivery of an executed original of this Agreement or Order Form.