FaunaDB Terms of Use - Enterprise (A) & Cloud EULAs (B)

 

A) FaunaDB Enterprise End User License Agreement

 

BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING FAUNADB ENTERPRISE, YOU AGREE TO THE TERM OF THIS END USER LICENSE AGREEMENT ("AGREEMENT").  These Services Terms and Conditions are a legal agreement by and between (1) you (“Customer”, “You” or “Your”), who is the person, company, or entity utilizing FaunaDB ENTERPRISE ("FaunaDB" or “Service”), and (2) Fauna, Inc (“Fauna,” “We” or “Us”).  By clicking the "I accept" button, or by otherwise DOWNLOADING AND using FaunaDB, you are consenting to be bound by this ("Agreement").  If You are entering this Agreement on behalf of a company, organization, or other entity, then (a) references to "You" or "Your" in this Agreement includes You and that entity, (b) You represent and warrant that You are an authorized representative of such entity with the authority to bind such entity to this Agreement, and (c) You agree to this Agreement on such entity's behalf.  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.  YOUR USE OF THIS WEBSITE, FAUNA.COM ("SITE") AND THE SERVICES MADE AVAILABLE ON THIS SITE ARE ALSO SUBJECT TO THIS AGREEMENT.

 

IF YOU DO NOT AGREE TO THESE TERM DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE FAUNADB.

 

1.  Use of the Service

 

1.1       Service; Software.

            1.1.1    Subject to the terms and conditions of this Agreement and the payment of any applicable fees specified in an applicable ordering document or on fauna.com, Fauna hereby grants You, and You accept, a non-exclusive, non-sublicensable, non-transferable, fully revocable, worldwide, limited right to use FaunaDB Enterprise under the following conditions:

                        (a)        Free Use.  Individual users and non-profit tax exempt organizations (recognized as such under Section 501(c) of the Internal Revenue Code) may use FaunaDB for free until such use is terminated by Fauna upon written notice (the "Free Use Period"). Commercial Users (as defined below) who use FaunaDB in single-node and single-process configurations only (without partitioning and without replication), including the use of multiple single-node and single process configurations (without partitioning and without replication) by the same Commercial User, may also use FaunaDB for free until such use is terminated by Fauna upon written notice (also, the "Free Use Period").  Commercial Users who use FaunaDB in clusters of more than one node or process, or that enable the partitioning or replication features in any way, may use FaunaDB free of charge only for a trial period of ninety (90) days (the "Free Trial Period").

                        Upon the expiration of the Free Trial Period, Your right to the free use of FaunaDB shall automatically terminate unless You request an extension of time from Fauna in writing, prior to the expiration of the Free Trial Period, which Fauna may grant or deny in its sole and absolute discretion.  You acknowledge that Fauna may terminate Your right to the free use of the Service or Fauna Software (as defined below) during the Free Use Period and the Free Trial Period at any time for any reason or no reason in Fauna’s sole discretion, without liability.  Upon the termination of Your free use under this Agreement, all license rights granted hereunder shall terminate in full and without notice, and You shall immediately cease use of FaunaDB and/or Fauna Software.  A "Commercial User" is defined as any company, corporation, partnership, limited liability company, joint venture, or other entity; or any other organization, business, association, entity, or enterprise that is formed, organized or operated for business, governmental, institutional or commercial purposes.

                        Notwithstanding the rights of free use granted in the foregoing paragraph, business competitors of Fauna or the Service are NOT eligible and are not granted this right of unpaid free use of FaunaDB or Fauna Software.

                        (b)       Paid Use.  Upon the termination of the Free Use Period or the Free Trial Period, Your use may be converted into a paid use of the Service for the period specified in Your ordering document ("Service Period") for Your internal business purposes only.  If an ordering document identifies FaunaDB as being "developer", "development", "sandbox", "demo", "evaluation" or similar non-production service or environment, then You will use such Service or the applicable environment only for non-production purposes.      

            1.1.2    We may provide You with online access to download certain Fauna software for use with the Service (“Fauna Software”).  If We license Fauna Software to You and do not specify separate terms for such software, then such Fauna Software is provided as part of the Service and You have the non-exclusive, worldwide, limited right to use such software, subject to this Agreement.  Notwithstanding anything provided herein, if Fauna licenses software to you under separate terms, then Your use of the software is governed under those separate terms.

            1.1.3    The rights granted herein do NOT include (a) maintenance, support, upgrades, or modifications to FaunaDB other than as set forth in this Agreement or the applicable ordering document, (b) derivative products developed by Fauna or anyone else to whom Fauna may license FaunaDB, or (c) a license or transfer of any other intellectual property rights owned or controlled by Fauna or any Fauna affiliates, subsidiaries, or parent companies.

1.2. Account Registration and Use of the Services.

1.2.1    You may need to register for a Fauna account in order to access or receive the Fauna Software or Service.  Account information provided by You must be accurate, current and complete.  Any information provided by You will be governed by Fauna’s Privacy Policy (https://fauna.com/privacy).   You agree to keep your account information up-to-date so that Fauna may send notices, statements and other information by email or through Your account.  You must keep all user IDs and passwords used by You to access your account confidential and You must not share this information with any unauthorized person.  You must notify Fauna immediately of a breach of security or unauthorized use of Your account.

1.2.2    Subject to the limitations in Section 1.1, You may download onto and use FaunaDB from any virtual machines or physical computing devices owned, leased, or otherwise controlled or operated by You, or from any virtual machines or physical computing devices owned, leased, or otherwise controlled or operated by third parties who have installed software distributed by You that accesses FaunaDB on Your behalf.  For purposes of this Agreement, "use" of FaunaDB means downloading and accessing FaunaDB over a computer network.  You acknowledge that Fauna makes no representation as to the compatibility of FaunaDB with any specific operating environment or computing device.  In addition, You may access and use the Service only to the extent of authorizations specified in Section 1.1.  You are responsible for the use of the Service and any Fauna Software by all users that access the Service and Fauna Software on Your behalf.  The Service and Fauna Software may not be used for any unlawful, obscene, offensive or fraudulent content or activity.  If You fail to promptly notify Fauna of any suspected unauthorized use of Your account or unauthorized use of FaunaDB through Your credentials, then You agree that Fauna may terminate without notice Your access to FaunaDB and, if applicable, Fauna Software.  You shall be solely liable for any and all damages, liabilities, and expenses arising from and relating to the theft of Your account credentials or the improper or illegal use of FaunaDB through Your account credentials. 

2.  Customer Requirements and Restrictions

2.1 Customer Requirements. In connection with Your use of the Service or Fauna Software, You shall: (a) comply with all applicable laws, rules and regulations; (b) use reasonable security precautions for providing access to the Service or Fauna Software by Your users; (c) keep Your account information up to date; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service or Fauna Software and (e) promptly notify Fauna of any known or suspected unauthorized use of the Service or Fauna Software or any other breach of security.  In addition, You are solely responsible for determining whether FaunaDB meets Your technical, business or regulatory requirements.  You remain solely responsible for Your regulatory compliance in connection with Your use of FaunaDB and Fauna Software.

2.2  Customer Restrictions. You shall not, directly or indirectly, alone or with a third party: (i) copy, distribute, share, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, clone, disassemble, or otherwise attempt to derive source code of FaunaDB or Fauna Software or any internal data or binary files generated by FaunaDB; (ii) sell, rent, lease, license, sublicense, resell, transfer or loan FaunaDB or Fauna Software; (iii) use FaunaDB or Fauna Software 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; (iv) use FaunaDB or Fauna Software as a service bureau or for the benefit of any third party;  or (v) use FaunaDB for comparative benchmarking or analysis.  If You are a business competitor of Fauna or the Service, You are NOT eligible and are prohibited from downloading, installing, using, or accessing FaunaDB or Fauna Software under this Agreement.

If You make available any software, security credentials, binary files or other means of access to FaunaDB or Fauna Software to third parties, whether deliberately or through error or omission, then You shall be solely liable for any and all damages, liabilities, and expenses arising from and relating to such use.

2.3       No Unlawful or Prohibited Use. As a condition of Your use of FaunaDB, You represent and warrant that You will not use FaunaDB for any purpose that is unlawful or prohibited by this Agreement. You 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.  You 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 Fauna considers to be inappropriate and thus prohibited.  The examples identified in this list are provided as examples only for Your guidance.  If You are unsure whether any contemplated use or action is permitted, You should contact Fauna.

3.  Ownership

 

3.1       Fauna Ownership.  Fauna owns and shall retain all right, title, and interest in and to the Site, FaunaDB, Fauna Software, and any updates, maintenance releases, derivative works, and anything developed or delivered by Fauna as part of FaunaDB, Fauna Software, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto.  FaunaDB, the Site and Fauna Software 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 Fauna.

3.2       Customer Ownership.  Customer retains all ownership and intellectual property rights in and to the information Customer stores on FaunaDB (“Customer Information”).  By providing Customer Information, Customer hereby grants Fauna a limited, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute the Customer Information for the sole purpose of operating and providing FaunaDB to Customer as well as providing related services to Customer.  Fauna 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 Customer to Fauna relating to the operation or features of FaunaDB or Fauna Software.

4.  Fees and Payment

4.1       Paid Service

Upon the termination of the Free Use Period or the Free Trial Period, use of FaunaDB or Fauna Software may be provided for a fee or other charge.  If You elect to use FaunaDB or Fauna Software after the termination of the Free Use Period or the Free Trial Period, then You agree to the pricing and payment terms listed on the Site, which Fauna may update from time to time.  If the Site does not list any payment terms, then You agree to pay Fauna all fees specified in the applicable ordering document within thirty (30) days from the invoice date or as otherwise specified in the applicable ordering document.  The pricing terms may include a monthly fee for the Service along with additional charges for any excess usage as well as support fees.  Fauna may add new services for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion.  Fauna may also modify aspects of the plan chosen by You on the Site.  Any changes in fees or charges shall become effective in the billing cycle following notice of such change to You as provided in these Terms.  Fauna may lock Your account for non-payment at any time.  In addition to the amount due for the Service, delinquent accounts or chargebacks will be charged with fees or charges that are incidental to the collection of delinquent accounts or chargebacks including, but not limited to, attorneys' fees, collection fees or convenience fees or any other third parties’ charges.  You agree Fauna may contact You by electronic mail at the address provided by You to Fauna with respect to any delinquent accounts.  For the paid monthly plans, Your plan will automatically renew each month and You will be billed each month for the use of the Service.  If You have provided Fauna with a credit card, then You agree that Fauna may charge Your credit card for the monthly fees on a recurring basis until the Service has been terminated as provided herein.  All fees paid to Fauna for the use of the Service are non-refundable.

4.2       Payment and Taxes

Any fees listed in the applicable ordering document or on the Site are exclusive of taxes and expenses.  You understand that You will pay any sales, value-added or other similar taxes imposed by applicable that Fauna must pay based on the Service You ordered except for taxes based on Fauna’s income.

In addition, all information that You provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current.  You agree to pay all charges incurred by users of Your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred.

5.  Term and Termination

5.1       Term

The Service and Fauna Software provided under this Agreement shall commence on the date FaunaDB is made available for download by Customer and shall continue for the period specified in the applicable ordering document or the Free Use Period or Free Trial Period set forth in Section 1.1.1 ("Service Term") unless earlier suspended or terminated in accordance with this Agreement.  For paid users of the Service, this Agreement shall automatically renew at the end of the then Service Term for the same term as provided in the applicable ordering document unless either party notifies the other party at least thirty (30) days prior to the renewal date of its intention not to renew.

5.2       Termination

Either party may terminate this Agreement if the other party materially breaches the terms set forth herein or in the applicable ordering document and fails to remedy such breach within thirty (30) days after written notice thereof from the non-breaching party.  Upon the termination or expiration of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and Licensee shall immediately cease use of FaunaDB and/or Fauna Software. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement or the applicable ordering document, including but not limited to indemnification, limitation of liability or payment shall so survive.  

5.3       Suspension

Notwithstanding anything provided herein, Fauna may suspend Your access to, or use of, FaunaDB or the Fauna Software if Fauna believes that (a) there is a significant threat to the functionality, security, integrity or availability of FaunaDB or any content or data in FaunaDB; or (b) You or Your authorized users are accessing or using the Service to commit an illegal act or in violation of this Agreement.  In the event Fauna suspends Your access to FaunaDB or Fauna Software for any of the reasons provided herein, Fauna will endeavor to use commercially reasonable efforts to provide you with advance notice of such suspension, except in the event of an emergency or if Fauna is prevented from providing advance notice by law or other legal process.  Any suspension under this Section 5.3 shall not excuse You from Your obligation to make payments under as provided in this Agreement or the applicable ordering document.

6.  Confidentiality

6.1  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 business (hereinafter referred to as “Confidential Information” of the Disclosing Party) in the course of performing activities under or satisfying its obligations under this Agreement.  Notwithstanding the foregoing, nothing (except the FaunaDB, Fauna Software and underlying software, algorithms and information (other than Customer Information) embodied therein, which is Confidential Information of Fauna, and except the Customer Information, which is Confidential Information of Customer) will be considered “Confidential Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential” at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure or which a reasonable person would consider confidential.

6.2  The Receiving Party agrees to hold all Confidential Information of the Disclosing Party in strict confidence and not to disclose such information to third parties, or use such information for any purposes whatsoever other than pursuant to the terms and conditions set forth in this Agreement and to advise each of its employees and agents of their obligations to keep such information confidential.  Even when disclosure is permitted, each party agrees to limit access to and disclosure of the other party’s Confidential Information to its employees and agents on a “need to know” basis only who are bound by obligations of confidentiality at least as protective as those contained herein.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Fauna Software, FaunaDB and underlying software, algorithms and information embodied therein and Customer Information, which shall remain confidential indefinitely).  Confidential Information shall exclude all information, which (i) is at the time of disclosure, or thereafter becomes, generally known to the public through no act or omission of the Receiving Party, its employees or agents; (ii) was in the Receiving Party’s possession as shown by written records without any obligation of confidentiality prior to the disclosure by the Disclosing Party and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) was rightfully provided to Receiving Party by a third party without obligation of confidentiality; or (iv) was independently developed by the Receiving Party without use of the Confidential Information, as evidenced by contemporaneous written records.  If Confidential Information is required to be disclosed pursuant to an order or requirement of a court, administrative agency or governmental body, the Receiving Party shall promptly notify the Disclosing Party of the facts thereof to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict disclosure of such information, and upon request of the Disclosing Party, shall reasonably cooperate with the Disclosing Party to obtain such protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or the Disclosing Party waives compliance (in whole or in part) with the confidentiality terms and conditions of this Agreement with respect thereto, the Receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and shall use commercially reasonable efforts to ensure that all Confidential Information that is disclosed shall be accorded confidential treatment.

7.  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 this Agreement. If any such license requires Fauna to deliver the source code for such component to You, Fauna shall do so upon request for a nominal fee.

8.  Indemnification

 

8.1       Indemnification by Fauna.  Fauna, at its own expense, will defend any action brought against Customer based on a claim that FaunaDB or the Fauna Software, 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) Fauna shall be promptly notified in writing by Customer of any notice of any such claim; (ii) Fauna 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 Fauna’s expense with Fauna in the defense, settlement or compromise of such claim. The foregoing obligations do not apply with respect to portions or components of FaunaDB or Fauna Software (i) not supplied by Fauna, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Fauna, (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 FaunaDB or the Fauna Software is not strictly in accordance with this Agreement.  If, due to a claim of infringement, FaunaDB or the Fauna Software is held by a court of competent jurisdiction to be or is believed by Fauna to be infringing, Fauna may, at its option and expense elect to: (a) replace or modify FaunaDB or Fauna Software to be non-infringing or (b) terminate this Agreement and Customer’s rights hereunder.

8.2       Indemnification by Customer.  Customer shall indemnify, defend, and hold harmless Fauna (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 FaunaDB or the Fauna Software; (b) a claim that Customer Information, 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 provided that: (i) Customer shall be promptly notified in writing by Fauna 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) Fauna shall cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of such claim.

9.  Warranty/Disclaimer of Warranties

 

9.1       Warranty.  Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so.  Fauna warrants that while this Agreement is in effect, Fauna will provide FaunaDB using commercially reasonable care and skill as described in the FaunaDB specifications.

9.2       Disclaimer of Warranties. FAUNA PROVIDES FAUNADB "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, FAUNA DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO FAUNADB.  YOU ACKNOWLEDGE THAT THE OPERATION OF FAUNADB MAY NOT BE UNINTERRUPTED OR ERROR-FREE, AND THAT ERRORS MAY NOT BE CORRECTED.  FAUNA IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF YOUR ACCESS TO OR USE OF FAUNADB.  IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT FAUNADB MEETS YOUR BUSINESS NEEDS AND IS SUITABLE FOR THE PURPOSES FOR WHICH IT IS USED.  YOU REMAIN SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS.  IT IS YOUR RESPONSIBILITY TO CHECK THAT THE STORAGE OF AND ACCESS TO YOUR DATA VIA FAUNADB AND THE WEBSITE WILL COMPLY WITH LAWS APPLICABLE TO YOU AND YOUR BUSINESS (INCLUDING ANY LAWS REQUIRING YOU TO RETAIN RECORDS).  FAUNA IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY WARRANTIES RELATED TO ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF FAUNADB THAT ARISES FROM CUSTOMER INFORMATION. 

10.  Limitation of Liability

TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, (A) FAUNA SHALL NOT BE LIABLE TO YOU UNDER THESE TERMS 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 OR FAUNA SOFTWARE; AND (B) IN NO EVENT SHALL FAUNA BE LIABLE TO YOU 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 FAUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FAUNA AND OR FAUNA’S AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, OR FAUNA’S NEGLIGENCE IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS, EXCEED ONE THOUSAND DOLLARS ($1,000).

11.  Backup of Data

 

Customer shall maintain copies of all data and information inputted by Customer into FaunaDB. Fauna does not make any guarantees that there will be no loss of data or information, or that Fauna policies and procedures will conform to industry best practices.  Fauna expressly excludes and disclaims any liability for any loss of Customer's data and information, no matter how such loss was caused.

12.  Maintenance and Support and Upgrades

 

12.1     During the Free Use Period or Free Trial Period.  Fauna will NOT provide any form of maintenance and/or support services to You in connection with Your free download and use of FaunaDB under this Agreement.  Fauna reserves the right to modify and provide updates to FaunaDB or Fauna Software from time to time at its discretion, but Fauna shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to FaunaDB or Fauna Software.  You shall be solely responsible for checking the Site for any available updates for FaunaDB as Fauna will have no obligation to notify You of any available updates.  Fauna will not be responsible for errors or malfunctions caused by or related to Your use of FaunaDB for any reason.  

12.2     During the Service Term for Paid Use.  Fauna reserves the right to modify and provide updates to FaunaDB or Fauna Software from time to time at its discretion.  Fauna will provide maintenance and support in accordance with the applicable terms of this Section and the ordering document.  Fauna will make reasonable efforts to resolve issues related to malfunctions or errors resident in FaunaDB or Fauna Software. Fauna will not be responsible for errors or malfunctions caused by any of the following: (a) use of FaunaDB or Fauna Software in conjunction with any specific platform (such as browser, OS, or networking device); (b) use of FaunaDB or Fauna Software other than in accordance with this Agreement; (c) any repair, adjustment, alteration, or modification of FaunaDB or Fauna Software without Fauna'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 Fauna's consent to any repair, adjustment, alteration or modification of FaunaDB for purposes of maintenance and support); (d) third-party applications or components; (e) environmental issues outside of Fauna's control, including without limitation those introduced by Fauna's own vendors and partners; and (f) errors or malfunctions caused by or related to Your use of FaunaDB for any reason.  Fauna will provide support only for the current release of FaunaDB or Fauna Software.  Fauna's obligations, if any, to provide maintenance and support is subject to the following: (a) Customer shall provide Fauna with sufficient access to its account and personnel to duplicate and resolve errors; (b) Customer shall provide supervision, control and management of the use of Fauna; (c) Customer shall document and promptly report all errors or malfunctions in FaunaDB or Fauna Software to Fauna, and (d) Customer 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 Fauna.  Notwithstanding the foregoing, Fauna shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to FaunaDB or Fauna Software.  

13.  Use Reporting, License Violations and Remedies

Fauna reserves the right to gather data on FaunaDB or, if applicable, Fauna Software 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 this Agreement.  Fauna collects and stores this data in accordance with its Privacy Policy.  In addition, Fauna reserves the right to remedy any violations immediately upon discovery.  You agree 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 and Your access to FaunaDB and, if applicable, Fauna Software.  Fauna reserves the right to audit Customer to ensure Customer's compliance with the terms of this Agreement, including but not limited to the use restrictions in Section 1.1.1.

14.  Injunctive Relief

Customer understands and agrees that its breach of this Agreement may cause Fauna irreparable damage for which recovery of money damages would be inadequate, and that Fauna shall therefore be entitled to obtain timely injunctive relief to protect Fauna'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 Fauna:

All other trademarks are owned by Fauna and their affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to FaunaDB, the Site and Fauna Software are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights.  Other than as expressly permitted in this Agreement, the copying, redistribution, use or publication by Customer of any such matters or any part of FaunaDB or Fauna Software, is strictly prohibited.  Customer 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 Customer a license to use any of the trademarks, service marks, or logos owned by Fauna or any third party.

16.   Notices and Procedure for Making Claims of Copyright Infringement

If You believe that Your content or any other work has been used in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please notify Fauna, Inc. at priority@fauna.com or Copyright Agent, Fauna, Inc., 744 Montgomery Street Suite 200, San Francisco, CA 94111.  Provide all of the following in writing: (1) identify the copyrighted work you claim has been infringed or if multiple copyrighted works, then a representative list of such works on the website; (2) identify the material on the website that you claim is infringing and with enough detail so that we may locate the material; (3) provide a statement that you have a good faith belief that the use of the material on the website is not authorized by the copyright owner, its agent, or the law; (4) provide a statement declaring that the notification is accurate, and, under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; (5) provide information reasonably sufficient to permit Fauna to contact you, such as an address, telephone number, and email address; and (6) your physical or electronic signature.

Upon receipt of notice as described above, Fauna will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing material.

17.  Binding Arbitration

You agree that any legal controversy or legal claim arising out of or relating to this Agreement or FaunaDB or Fauna Software (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, CUSTOMER 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 CUSTOMER'S LEGAL RIGHTS.

18.  United States Government Restricted Rights

FaunaDB and Fauna Software are 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.  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 this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.

19.  Export

 

Customer may not remove or export from the United States or allow the export or re-export of FaunaDB, Fauna 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.  You acknowledge and agree that no data, information, software programs and/or materials resulting from Your use of FaunaDB or Fauna Software will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.  You also acknowledge that FaunaDB and Fauna Software are designed with capabilities for You and Your users to access FaunaDB without regard to geographic location.  You are solely responsible for the authorization and management of Your user accounts across geographic locations, as well as export control and geographic transfer of Customer Information.

20.  Privacy Policy

 

We may collect registration and other information about you through our Service. Our collection and use of this information is governed by our Privacy Policy, available at https://fauna.com/privacy.

 

21.  Use of Customer Name/Logo and Marketing Communications

You hereby grant consent to Fauna a limited, non-exclusive, fully-paid, royalty-free license to use Your name and/or logo on Fauna's Site solely for the purpose of identifying You as a customer of Fauna and Your usage of FaunaDB.  Fauna does not acquire any ownership or other rights to Customer's trademarks.  If You object to such usage and wish to have Fauna cease further use of Your name/logo on the Site, please email Fauna at priority@fauna.com, or send correspondence to Fauna Inc., 744 Montgomery Street Suite 200, San Francisco, CA 94111, Attn: Legal and request that Your name/logo be removed from the Site.  Fauna will endeavor to honor all such requests within fifteen (15) days of Fauna's receipt of such written removal request. 

Fauna reserves the right to communicate with you via email or telephone for marketing, informational, and promotional purposes as well as to send you Service-related emails (e.g., account verification, purchase and billing confirmations and reminders, changes/updates to features of the Service, technical and security notices).

22.  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.  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 and the FaunaDB Enterprise License Agreement, should You be a 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.  Customer may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of Fauna and any prohibited assignment or transfer will be null and void, but Fauna may freely assign or transfer its obligations under 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 these 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.  Any notice required under this Agreement shall be provided to the other party in writing.  This Agreement may be amended or modified by Fauna at any time by means of written notification to You. 

23.  Contacting Us

If you have any questions, comments or complaints concerning this Agreement, please email us at priority@fauna.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.

These Service Terms and Conditions are effective as of September 25, 2018.

 

B) FaunaDB Cloud End User License Agreement

 

BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING FAUNADB CLOUD, YOU AGREE TO THE TERM OF THIS END USER LICENSE AGREEMENT ("AGREEMENT").  These Services Terms and Conditions are a legal agreement by and between (1) you (“Customer”, “You” or “Your”), who is the person, company, or entity utilizing FaunaDB CLOUD ("FaunaDB" or “Service”), and (2) Fauna, Inc (“Fauna,” “We” or “Us”).  By clicking the "I accept" button, or by otherwise DOWNLOADING AND using FaunaDB, you are consenting to be bound by this ("Agreement").  If You are entering this Agreement on behalf of a company, organization, or other entity, then (a) references to "You" or "Your" in this Agreement includes You and that entity, (b) You represent and warrant that You are an authorized representative of such entity with the authority to bind such entity to this Agreement, and (c) You agree to this Agreement on such entity's behalf.  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.  YOUR USE OF THIS WEBSITE, FAUNA.COM ("SITE") AND THE SERVICES MADE AVAILABLE ON THIS SITE ARE ALSO SUBJECT TO THIS AGREEMENT.

 

IF YOU DO NOT AGREE TO THESE TERM DO NOT ACCESS OR USE FAUNADB.

 

1.  Use of the Service

 

1.1       Service; Software.

            1.1.1    Subject to the terms and conditions of this Agreement and the payment of any applicable fees specified in an applicable ordering document or on fauna.com, Fauna hereby grants You, and You accept, a non-exclusive, non-sublicensable, non-transferable, fully revocable, worldwide, limited right to use FaunaDB Cloud under the following conditions:

                        (a)        Free Use.  You may use FaunaDB for free for a maximum period of ninety (90) days (the "Free Use Period") for your internal business purposes only.  Upon the expiration of the Free Use Period, Your right to the free use of FaunaDB shall automatically terminate without any further notice from Fauna.  You acknowledge that Fauna may terminate Your right to the free use of the Service or Fauna Software (as defined below) during the Free Use Period at any time for any reason or no reason in Fauna’s sole discretion, without liability.  Upon the termination of Your free use under this Agreement, all license rights granted hereunder shall terminate in full and without notice, and You shall immediately cease any and all use of FaunaDB and/or Fauna Software.   

                        Notwithstanding the rights of free use granted in the foregoing paragraph, business competitors of Fauna or the Service are NOT eligible and are not granted this right of unpaid Free Use Period of FaunaDB or Fauna Software.

                        (b)       Paid Use.  Upon the termination of the Free Use Period, Your use may be converted into a paid use of the Service for the period specified in Your ordering document ("Service Period") for Your internal business purposes only.  If an ordering document identifies FaunaDB as being "developer", "development", "sandbox", "demo", "evaluation" or similar non-production service or environment, then You will use such Service or the applicable environment only for non-production purposes.      

            1.1.2    We may provide You with online access to download certain Fauna software for use with the Service (“Fauna Software”).  If We license Fauna Software to You and do not specify separate terms for such software, then such Fauna Software is provided as part of the Service and You have the non-exclusive, worldwide, limited right to use such software, subject to this Agreement.  Notwithstanding anything provided herein, if Fauna licenses software to you under separate terms, then Your use of the software is governed under those separate terms.

            1.1.3    The rights granted herein do NOT include (a) maintenance, support, upgrades, or modifications to FaunaDB other than as set forth in this Agreement or the applicable ordering document, (b) derivative products developed by Fauna or anyone else to whom Fauna may license FaunaDB, or (c) a license or transfer of any other intellectual property rights owned or controlled by Fauna or any Fauna affiliates, subsidiaries, or parent companies.

1.2. Account Registration and Use of the Services.

1.2.1    You may need to register for a Fauna account in order to access or receive the Fauna Software or Service.  Account information provided by You must be accurate, current and complete.  Any information provided by You will be governed by Fauna’s Privacy Policy (https://fauna.com/privacy).   You agree to keep your account information up-to-date so that Fauna may send notices, statements and other information by email or through Your account.  You must keep all user IDs and passwords used by You to access your account confidential and You must not share this information with any unauthorized person.  You must notify Fauna immediately of a breach of security or unauthorized use of Your account.

1.2.2    Subject to the limitations in Section 1.1, You may access FaunaDB from any number of virtual machines or physical computing devices owned, leased, or otherwise controlled or operated by You, or from any virtual machines or physical computing devices owned, leased, or otherwise controlled or operated by third parties who have installed software distributed by You that accesses FaunaDB on Your behalf.  For purposes of this Agreement, "use" of FaunaDB means accessing FaunaDB over a computer network.  You acknowledge that Fauna makes no representation as to the compatibility of FaunaDB with any specific operating environment or computing device.  In addition, You may access and use the Service only to the extent of authorizations specified in Section 1.1.  You are responsible for the use of the Service and any Fauna Software by all users that access the Service and Fauna Software on Your behalf.  The Service and Fauna Software may not be used for any unlawful, obscene, offensive or fraudulent content or activity.  If You fail to promptly notify Fauna of any suspected unauthorized use of Your account or unauthorized use of FaunaDB through Your credentials, then You agree that Fauna may terminate without notice Your access to FaunaDB and, if applicable, Fauna Software.  You shall be solely liable for any and all damages, liabilities, and expenses arising from and relating to the theft of Your account credentials or the improper or illegal use of FaunaDB through Your account credentials. 

2.  Customer Requirements and Restrictions

2.1 Customer Requirements. In connection with Your use of the Service or Fauna Software, You shall: (a) comply with all applicable laws, rules and regulations; (b) use reasonable security precautions for providing access to the Service or Fauna Software by Your users; (c) keep Your account information up to date; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service or Fauna Software and (e) promptly notify Fauna of any known or suspected unauthorized use of the Service or Fauna Software or any other breach of security.  In addition, You are solely responsible for determining whether FaunaDB meets Your technical, business or regulatory requirements.  You remain solely responsible for Your regulatory compliance in connection with Your use of FaunaDB and Fauna Software.

2.2  Customer Restrictions. You shall not, directly or indirectly, alone or with a third party: (i) copy, distribute, share, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, clone, disassemble, or otherwise attempt to derive source code of FaunaDB or Fauna Software or any internal data or binary files generated by FaunaDB; (ii) sell, rent, lease, license, sublicense, resell, transfer or loan FaunaDB or Fauna Software; (iii) use FaunaDB or Fauna Software 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; (iv) use FaunaDB or Fauna Software as a service bureau or for the benefit of any third party;  or (v) use FaunaDB for comparative benchmarking or analysis.  If You are a business competitor of Fauna or the Service, You are NOT eligible and are prohibited from downloading, installing, using, or accessing FaunaDB or Fauna Software under this Agreement.

If You make available any software, security credentials, binary files or other means of access to FaunaDB or Fauna Software to third parties, whether deliberately or through error or omission, then You shall be solely liable for any and all damages, liabilities, and expenses arising from and relating to such use.

2.3       No Unlawful or Prohibited Use. As a condition of Your use of FaunaDB, You represent and warrant that You will not use FaunaDB for any purpose that is unlawful or prohibited by this Agreement. You 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.  You 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 Fauna considers to be inappropriate and thus prohibited.  The examples identified in this list are provided as examples only for Your guidance.  If You are unsure whether any contemplated use or action is permitted, You should contact Fauna.

3.  Ownership

 

3.1       Fauna Ownership.  Fauna owns and shall retain all right, title, and interest in and to the Site, FaunaDB, Fauna Software, and any updates, maintenance releases, derivative works, and anything developed or delivered by Fauna as part of FaunaDB, Fauna Software, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto.  FaunaDB, the Site and Fauna Software 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 Fauna.

3.2       Customer Ownership.  Customer retains all ownership and intellectual property rights in and to the information Customer stores on FaunaDB (“Customer Information”).  By providing Customer Information, Customer hereby grants Fauna a limited, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute the Customer Information for the sole purpose of operating and providing FaunaDB to Customer as well as providing related services to Customer.  Fauna 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 Customer to Fauna relating to the operation or features of FaunaDB or Fauna Software.

4.  Fees and Payment

4.1       Paid Service

Upon the termination of the Free Use Period or the Free Trial Period, use of FaunaDB or Fauna Software may be provided for a fee or other charge.  If You elect to use FaunaDB or Fauna Software after the termination of the Free Use Period or the Free Trial Period, then You agr