Last Updated 5/18/2021

Terms of Service

THE FOLLOWING TERMS OF SERVICE WILL BE LEGALLY BINDING UPON CUSTOMER AT THE TIME YOU ACCESS AND USE ANY OF THE PRODUCTS (AS DEFINED BELOW). YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT PRIOR TO ACCESSING AND USING THE PRODUCTS. YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE ON BEHALF OF YOUR COMPANY (OR OTHER ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, DO NOT ACCESS OR USE THE PRODUCTS IN ANY MANNER.

Terms of Service

These Terms of Service (“Agreement”) are entered into by the entity accepting these terms (“Customer”) and PlanetScale, Inc., a Delaware corporation (“PlanetScale”). This Agreement becomes effective as of the date Customer accepts the terms or by using any of the Products or Services.

Definitions

“Affiliate” means any company controlling, controlled by or under common control with a party, where “control” shall mean ownership, directly or indirectly, of the shares of a company representing fifty percent (50%) or more of the voting rights in this company.

“AUP” means the then-current acceptable use policy for the Product described at www.planetscale.com/legal/aup.

“Authorized User” means an individual authorized by Customer to access and use the Products.

"Beta Features" means any Product features, functionality or services which PlanetScale may make available to Customer that are identified as beta, trial, non-production or another similar designation.

“Customer Data” means the data submitted by Customer and its Authorized Users to the Product.

“Documentation” means the documentation made available by PlanetScale with the Products, which may be modified from time to time.

“Fees” mean the fees for the Products and/or Support described in the Pricing Schedule.

“Pricing Schedule” means the usage fees specified at www.planetscale.com/pricing.

“Products” means the PlanetScale’s database platform and related services and all Updates that PlanetScale makes available.

“Support” means the technical support and maintenance for the Products.

“Update” means any updates to the Products made commercially available by PlanetScale.

1 Scope. On the Effective Date, PlanetScale will make available the applicable Products in accordance with this Agreement. Customer understands and agrees that Products are for Customer’s internal business purposes. Any circumvention of technical measures included in the Products constitutes a material breach of this Agreement. During your use of the Product, PlanetScale may make Updates to the Product and Support, provided the Updates do not result in a material reduction of the functionality, performance, availability, or security of the Product, provided that the foregoing does not apply to Beta Features.

2 Fees.

2.1 Unless otherwise agreed or in connection with the free-tier of the Product, Customer will pay Fees by credit card and payments will be processed by PlanetScale’s third party payment processor. Customer acknowledges and agrees that usage and overage Fees for the Product will be due and payable monthly in arrears, and such Fees will be charged to the credit card of file with PlanetScale. Customer will reimburse PlanetScale for chargeback fees incurred in connection with Customer’s use of the Product. All Fees are non-refundable, non-cancelable, and exclusive of applicable taxes. PlanetScale is entitled to charge Customer interest, at a rate equal to one and a half percent (1.5%) per month on any overdue or underpaid amounts. If Customer fails to pay Fees in accordance with this Section 2, PlanetScale may suspend provision of the Products until such payment is received by PlanetScale. Customer’s payment obligation will remain in effect during any such suspension. PlanetScale may modify the Pricing Schedule upon reasonable notice to Customer.

2.2 If any applicable law requires Customer to withhold amounts from any payments to PlanetScale under this Agreement, (a) Customer will affect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish PlanetScale with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, PlanetScale receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount PlanetScale would have received and retained absent the required deduction or withholding.

3 License.

3.1 Subject to the payment of applicable Fees, PlanetScale grants to Customer a limited, non-exclusive, non-transferable license during the Term of use to access and use Products in accordance with the limitations set forth in this Agreement and the Documentation and solely in connection with Customer’s internal operations.

3.2 Customer is responsible for controlling access to and use of the Products by Authorized Users. Customer is responsible for End Users’ use of the Product in accordance with this Agreement and the AUP.

3.3 Customer will not and will not allow any third party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Products, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Products for any purpose, including timesharing or service bureau purposes, (c) create, develop, license, install, use, or deploy any third party Products or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products, (d) remove any product identification, proprietary, copyright or other notices contained in the Products, (e) modify or create a derivative work of any encrypted or encoded portion of the Products, or any other portion of the Products, (f) publicly disseminate performance information or analysis including, without limitation benchmarking test results; (g) use the Products other than as permitted herein; (h) provide any inaccurate or untrue information in connection with Customer’s use of Products, (i) share any user or login credentials to the Products, or (j) change any proprietary rights notices which appear in the Products or Documentation. Customer will be solely responsible for, and represents and warrants that it has, obtained all necessary consents and licenses in order for PlanetScale to make available the Products to Customer, and process any data submitted by Customer to PlanetScale or the Products.

3.4 Beta Features made available by PlanetScale are provided to Customer in advance of commercial release of such features, functionality, products. PlanetScale does not make any commitment to provide Beta Features in any future versions of the Products. PlanetScale may immediately and without notice remove or modify Beta Features for any reason without liability to Customer. All Beta Features are provided "AS IS" without warranty of any kind.

4 Publicity and Confidentiality.

4.1 PlanetScale will be permitted to reference its relationship with Customer on its website, during discussions with analysts and reporters and in customer briefings and regulatory filings. PlanetScale will comply with Customer’s publicly available trademark usage policies.

4.2 For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser,” and the party receiving Confidential Information is the “Recipient.” Confidential Information means all information that disclosed pursuant to this agreement and is marked or identified as confidential or proprietary at the time of disclosure or that would be reasonably understood to be confidential based on the nature and circumstances surrounding disclosure.

4.3 Confidential Information excludes information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient without use of or reference to Discloser’s Confidential Information. If Confidential Information is required to be produced by law, court order, or governmental authority, Recipient must (subject to legal prohibition) immediately notify Discloser and only disclose the information required. Recipient will use Discloser’s Confidential Information only for the purposes provided and as directed by Discloser. Confidential Information may not be disclosed to any third party other than Recipient’s employees and contractors that need to know such information and that are subject to obligations of confidentiality to Recipient no less restrictive than the terms set forth herein. At Discloser’s request, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to Discloser or destroyed by Recipient. At the request of Discloser, Recipient will certify in writing that any Confidential Information not returned to Discloser has been destroyed. Recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that the foregoing does not represent a license under any intellectual property or proprietary rights of disclosing party.

5 Intellectual Property.

5.1 PlanetScale owns all intellectual property and proprietary rights in the Products, Documentation, and related works, including but not limited to any modifications and derivative works of the foregoing (collectively, “PlanetScale IP”).

5.2 In the event that Customer provides PlanetScale with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback related to PlanetScale IP (collectively, “Communications”), Customer grants PlanetScale a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, modify, and distribute such Communications in any manner without compensation to Customer or attribution of any kind.

5.3 Customer acknowledges and agrees that PlanetScale may collect, review, process, and analyze certain metadata related to Customer’s use of the Product. PlanetScale will use such metadata for the purpose of product administration and improvement, and for different features offered to Customer, and will not disclose such data to third parties. To the extent applicable to metadata, the PlanetScale privacy policy set forth at www.planetscale.com/legal/privacy incorporated by reference.

5.4 Customer owns all right, title, and interest in and to the Customer Data, and Customer Data is Customer’s Confidential Information.

6 Warranties and Disclaimers.

6.1 PlanetScale warrants that the Support will be performed in a professional manner consistent with applicable industry standards. If Customer believes there has been a breach of this warranty, Customer must notify PlanetScale in writing promptly following delivery of such Support stating in reasonable detail the nature of the alleged breach. As PlanetScale’s sole obligation and Customer’s exclusive remedy, PlanetScale will to correct or re-perform, at no additional charge, any non-conforming Support.

6.2 Customer represents and warrants that it and its use of the Products and Support will at all time comply with applicable laws.

6.3 EXCEPT AS PROVIDED IN SECTION 6.1, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, THE PRODUCTS, SUPPORT, AND RELATED SERVICES INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

7 Limitation of Liability.

7.1 IN NO EVENT WILL PLANETSCALE OR ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED EVEN IF PLANETSCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

7.2 PLANETSCALE AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE GREATER OF (1) TOTAL AMOUNT OF FEES PAID TO PLANETSCALE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE TIME THE CLAIM AROSE AND (2) US$50.00. NOTWITHSTANDING THE FOREGOING, PLANETSCALE’S AGGREGATE LIABILITY ARISING FROM BETA FEATURES IS LIMITED TO US$5,000.00.

7.3 THE PROVISIONS OF THIS SECTION 7 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND PLANETSCALE. PLANETSCALE’S FEES FOR THE PRODUCTS, SUPPORT AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.

8 Indemnification.

8.1 Customer will defend PlanetScale and its Affiliates and indemnify them against a third party claim arising from (a) any Customer Data or (b) Customer's or an Authorized User's use of the Product in breach of the AUP or the restrictions set forth herein.

8.2 Provided that Customer is paying Fees to PlanetScale, PlanetScale will defend Customer against any third party claim brought against Customer claiming that such Products as made available under this Agreement infringe a third party’s patent or copyright valid and enforceable in the United States (“Infringement Claim”) and indemnify Customer from the resulting costs and damages finally awarded by a court of competent jurisdiction against Customer to the third party making such Infringement Claim, provided that Customer gives PlanetScale: (a) prompt written notice of the Infringement Claim to notices@planetscale.com, (b) exclusive control over the defense and settlement of the Infringement Claim, and (c) reasonable cooperation in connection with the defense and settlement of the Infringement Claim. PlanetScale will have no liability if the alleged infringement is based on: (i) combination of the Products with other Products, data or business process not developed and provided by PlanetScale, (ii) use for a purpose or in a manner for which the Products was not designed, (iii) use of any Beta Features or an older release of the Products when use of a newer revision would have avoided the infringement, (iv) any modification of the Products made by anyone other than PlanetScale, (v) PlanetScale's compliance with any materials, designs, specifications or instructions provided by Customer, (vi) any third party or open source software, or (vii) Customer’s use of the Products after PlanetScale notifies Customer to discontinue running it due to an Infringement Claim.

8.3 Should Products become, or in PlanetScale’s opinion be likely to become, the subject of such an Infringement Claim, PlanetScale will, at its option and expense, (a) procure for Customer the right to make continued use of the Products, (b) replace or modify such so that it becomes non-infringing, or (c) terminate this Agreement and refund any prepaid but unused Fees paid therefor.

8.4 THIS SECTION 8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PLANETSCALE’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

9 Term and Termination.

This Agreement will be in effect for the duration of Customer’s use of the Product or services. Either party may terminate this Agreement with immediate effect: (a) in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days following of written notice of such breach, (b) in the event that the other party ceases business, becomes insolvent or bankrupt or if a receiver, examiner, administrator or administrative receiver is appointed over any part of that party’s business or if anything analogous occurs in relation to that party under the laws of another jurisdiction, or (c) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings in relation to such party. Each party can terminate this Agreement for convenience upon ninety (90) days prior written notice to the other party. Customer can terminate this Agreement by sending a cancellation notice to support@planetscale.com with the subject line “account cancellation”. This Agreement will terminate upon processing of Account cancellation.

Sections 2 and 5 - 8, 9.2, 9.3, and 12 and the DPA (to the extent the obligations set forth therein survive termination of this Agreement) will survive the expiration or termination of this Agreement. Customer may export Customer Data in accordance with the Documentation, and PlanetScale is not obligated to retain Customer Data following termination of this Agreement.

10. Data Protection.

10.1 Definitions:

"Applicable Privacy Law(s)" means all data protection and privacy laws applicable to the Personal Data in the United States, United Kingdom, and European Union, including US federal and state laws and, in respect of Personal Data originating from the European Economic Area, EU Directive 95/46/EC (as superseded, amended or replaced); and

"Personal Data", "processing", "Controller" and "Processor" shall have the meanings given to them in Applicable Privacy Law(s). If and to the extent that Applicable Privacy Law(s) do not define such terms, then the definitions given in EU Directive 95/46/EC (as amended, superseded or replaced) will apply.

10.2 If Customer transfers, sends or otherwise discloses information containing Personal Data to PlanetScale in connection with its use of the Product, Customer is the Controller of the Personal Data and PlanetScale shall process the Personal Data as a Processor on Customer’s behalf. Further, the parties agree that:

Customer shall be responsible for compliance with Applicable Privacy Law(s) and ensuring Customer has the right to transfer, or provide access, to PlanetScale;

Customer shall be responsible for taking any steps Customer considers necessary to protect any Personal Data, such as by removing, obfuscating or encrypting, prior to sending it to PlanetScale;

PlanetScale will process such Personal Data only for the purpose of providing Products and in accordance with Customer’s lawful instructions;

PlanetScale shall have in place appropriate technical and organizational measures designed to protect the Personal Data it processes from any unauthorized or unlawful processing and against accidental loss, destruction or damage; and

If Customer is sending Personal Data originating from the European Economic Area and requires execution of standard contractual clauses for the transfer of Personal Data to Processors (as approved by the European Commission) and PlanetScale’s data processing addendum (“DPA”), PlanetScale will, upon Customer’s request, provide and execute such standard contractual clauses and DPA with Customer.

11 Security.

11.1 PlanetScale will maintain commercially reasonable administrative, physical and technical safeguards and controls for the availability, security, confidentiality and integrity of Customer Data stored in the Product. PlanetScale will comply with PlanetScale’s security policy set forth at docs.planetscale.com/concepts/security.

11.2 Customer will use commercially reasonable efforts to prevent unauthorized use or access to the Product, any account or password, and will notify PlanetScale immediately of any such unauthorized use or access.

11.3 Customer agrees not to store unmasked credit card, personal financial information of individuals, or social security data in the Product. Further, Customer agrees that (i) the Product may not be used to store, maintain, process or transmit Protected Health Information and PlanetScale is not acting on Customer’s behalf as a Business Associate or Subcontractor (each as defined in the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder) and (ii) Customer’s use of the Product complies with applicable requirements of the Payment Card Industry Data Security Standards

12 General.

12.1 This Agreement, and any dispute relating to or arising out of this Agreement, will be governed by and in accordance with the laws of California, without giving effect to the conflict of laws provisions. For all disputes arising out of this Agreement, the parties consent to the exclusive jurisdiction of the federal and state courts located in San Francisco, California.

12.2 The parties acknowledge that the Products may be subject to U.S. and other countries’ export jurisdictions. Each party will comply with all laws and regulations applicable to the import or export of the Items, including, but not limited to, the U.S. Export Administration Regulations, International Traffic in Arms Regulations, and sanctions regulations administered by the U.S. Office of Foreign Assets Control (“OFAC”) (collectively, “trade laws”). Customer will not take any action that causes PlanetScale to violate U.S. or other applicable trade laws. If Customer learns of a potential violation of trade laws relating to the performance of this Agreement, or a potential violation of the terms in this subsection, it will alert PlanetScale as soon as possible, but in no event more than 14 days after acquiring this knowledge. PlanetScale may suspend or terminate this Agreement to the extent that it reasonably concludes that performance would cause it to violate U.S. or other applicable trade laws, including those described above, or put it at risk of becoming the subject of economic sanctions under such trade laws. Customer represents that it and its Authorized Users are not on any government agencies Restricted Party List, including, but not limited to the U.S. Department of Commerce’s Table of Denial Orders or Entities list, or U.S Treasury Department’s list of Specially Designated Nationals.

12.3 Unless otherwise specified in this Agreement, all notices will be in writing and will be emailed (in the case of PlanetScale to notices@planetscale.com and in the case of Customer to the email address provided at registration) All notices will be effective upon receipt.

12.4 This Agreement is binding on the parties to this Agreement, and there are no third party beneficiaries. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, PlanetScale may assign this Agreement to an Affiliate in connection with a merger, acquisition, asset transfer, or corporate reorganization.

12.5 This Agreement is the entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments to this Agreement must be in writing, executed by both parties and expressly state that they are amending this Agreement, provided that PlanetScale may update this Agreement by posting modified terms in the Product. Customer’s continued use of the Product represents Customer’s consent to the updated terms. Any additional or conflicting terms set forth in a purchase orders or other ordering document received from Customer or its authorized representatives are void and unenforceable.

12.6 Failure to enforce any provision of this Agreement will not constitute a waiver thereof. No waiver will be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver will not waive any successive or other right, power, or remedy the party may have under this Agreement. If any provision is found to be unenforceable, it and any related provisions will be interpreted to best accomplish its essential purpose.

12.7 Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government; however, the inability to meet financial obligations is expressly excluded.