PlanetScale Cloud Database Agreement

Last updated on February 15, 2019

PlanetScale Cloud Database Agreement

The following PlanetScale Cloud Database Agreement (“Agreement”) is a legal agreement between you or the employer or other entity on whose behalf you are entering into this Agreement ("Customer," "you" or "your") and PlanetScale, Inc., ("PlanetScale, "we," "us," or "our") and sets forth the terms and conditions with respect to your access and use of the Subscription Services. By purchasing, accessing or using the Subscription Services, you agree to be bound by this Agreement. However, if you (or the entity on whose behalf you are purchasing Subscription Services) and PlanetScale have executed an agreement governing the Subscription Services that is currently in effect, then that agreement and not this one shall govern your use of the Subscription Services.

Please revisit this Agreement prior to purchasing, accessing or using any of the Subscription Services. Any purchase, access or use of the Subscription Services constitutes a binding agreement with PlanetScale with respect to such Subscription Services. PlanetScale reserves the right to modify this Agreement at any time in its sole discretion. Prior to any material change to this Agreement becoming effective, PlanetScale will use reasonable efforts to notify you of any such change. Such notice may be made by email to the email address on file in your PlanetScale account, an announcement on this page, your login page, and/or by other means. Modifications to this Agreement will only apply to prospective purchases, use or access of the Subscription Services (including any automatic renewals). By using or accessing the Subscription Services following any such modifications, you agree to be bound this Agreement as modified.

Customer and PlanetScale are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. All capitalized terms not defined herein shall have the meanings assigned to them in Section 1.

1. Definitions

a. Confidential Information means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. The PlanetScale Property shall constitute PlanetScale’s Confidential Information regardless of the means or manner by which it is disclosed. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

b. “Customer Property” means the Hosted Data and all other information or other materials provided by Customer to PlanetScale and/or submitted to the Subscription Service by Customer.

c. “Documentation” means all documentation and other instructional material made available by PlanetScale regarding the use of the Subscription Service.

d. “Hosted Data” means the data submitted by Customer to be stored in the databases managed by the Subscription Service.

e. “PlanetScale Property” means (i) the Subscription Service (including the PlanetScale Software), (ii) all technology and content supplied by PlanetScale in connection with, or used by PlanetScale or its subcontractors in providing any Service, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights (other than trademark rights) embodied in or related to any of the foregoing.

f. “PlanetScale Software” means the PlanetScale proprietary software used by PlanetScale in connection with providing the Subscription Service, excluding any open source licensed software.

g. “Subscription Service” means the online service and platform provided by PlanetScale for operating and managing Vitess database clusters (e.g., PlanetScale operator and PlanetScale’s cluster manager software), including any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.

h. “Users” means users that are authorized to access Customer’s account on the Subscription Services.

2. Subscription Services

a. Provision of Subscription Service. For the applicable term of your subscription to use the Subscription Services (“Subscription Term”) and subject to your compliance with this Agreement and any other use limitations provided to you at the time you purchase Subscription Services, PlanetScale hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Subscription Service. You acknowledge that we may, in our sole discretion and at any time(s), change or discontinue providing any part of the Subscription Services without prior notice, and establish or change limits concerning use of the Subscription Services without prior notice, including without limitation (i) the number of users that can access or use the Subscription Services at any one time, (ii) the number of projects managed by the Subscription Services, and (iii) the number of times (and the maximum duration for which) you may access the Subscription Services in a given period of time. You may reject changes by discontinuing your use of the Subscription Services. Your continued use of the Subscription Services will constitute your acceptance of and agreement to such changes.

3. Support & Maintenance

The Subscription Service will operate in accordance with the PlanetScale DBaaS Service Level Agreement which is made available at SLA and incorporated herein by reference.

4. Customer Responsibilities and Acknowledgements

Customer acknowledges and agrees to the PlanetScale Platform Guidelines made available at Platform Guidelines.

5. Pricing, Fees and Payment Terms

a. Pricing. The pricing for Subscription Services can be found at DBaaS Pricing. We may modify the price, content or nature of the Subscription Services at any time. We may provide notice of any such changes by email, notice to you upon log-in or by publishing them on www.planetscale.com (“Website”). We may change the fees and charges in effect or add new fees and charges from time to time, but we will give you advance notice of these changes by email.

b. Fees. Customer will pay PlanetScale all fees applicable to the Subscription Services you purchase (“Fees”) in accordance with this Section 5. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable.

6. Invoices and Payment

a. By providing a credit card or other payment method accepted by us (“Payment Method”) for the Subscription Services, you are expressly agreeing that we are authorized to charge you the applicable fee at the then current rate, and any other charges you may incur in connection with your use of the Subscription Services to your elected Payment Method. For all purchased Subscription Services, your Payment Method will be charged on a monthly basis or at the interval indicated in our fees and payment policies, if different. If we do not collect a Payment Method from you at the time of purchase, we will invoice you for the charges at the email address we have on file for you. You agree to pay all invoiced amounts within thirty (30) calendar days of the invoice date.

b. Late Payments. If we have a reasonable basis to believe we won’t receive payment from you on the payment due date, you hereby give us an irrevocable permission to charge the Payment Method we have on file earlier than that date. We reserve the right to take all steps necessary to collect amounts due from you, including but not limited to legal action and/or using third party collection agencies. Overdue Fees shall accrue late interest charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Without limiting the foregoing, PlanetScale reserves the right to suspend customer’s access to the Subscription Services in the case of any late payment.

c. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from PlanetScale’s provision of the Subscription Services hereunder, except any taxes assessed upon PlanetScale’s net income. If PlanetScale is required to directly pay Taxes related to Customer’s use or receipt of any Subscription Services, Customer agrees to promptly reimburse PlanetScale for any amounts paid by PlanetScale

7. Proprietary Rights

a. Customer Property. As between Customer and PlanetScale, Customer retains all rights, title, and interest in and to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to PlanetScale or implied hereby, and for any Customer Property that is licensed to PlanetScale, no title or ownership rights are transferred with such license.

b. License to PlanetScale. Customer hereby grants PlanetScale a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license under Customer’s intellectual property rights to access and use the Customer Property made available to PlanetScale or any of its Affiliates, solely as necessary for PlanetScale to provide the Subscription Services to Customer pursuant to this Agreement.

c. PlanetScale Property. As between PlanetScale and Customer, PlanetScale retains all rights, title, and interest in and to the PlanetScale Property, and except as expressly set out in this Agreement, no right, title, or license under any PlanetScale Property is granted to Customer or implied hereby.

8. Confidentiality

a. Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information.

b. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.

c. Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this Agreement, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form.

d. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 8, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

9. Representations and Warranties; Disclaimers

a. Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

b. PlanetScale Warranties. PlanetScale warrants to Customer that during the applicable Subscription Term the Subscription Services purchased by Customer will substantially perform in all material respects with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Subscription Service, from unauthorized modifications made to the Subscription Service, from use of the Subscription Services in an unsupported operating environment or manner, or from interoperability issues with Customer’s or any third party’s software or systems (including any third party products not supplied by PlanetScale).

c. Customer Warranties. Customer warrants that it will not use the Subscription Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party.

d. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) PLANETSCALE’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SUBSCRIPTION SERVICES TO SUPPLYING THE SUBSCRIPTION SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SUBSCRIPTION SERVICES AGAIN. PLANETSCALE DOES NOT REPRESENT OR WARRANT THAT: (I) THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SUBSCRIPTION SERVICES CAN BE FOUND OR CORRECTED. PLANETSCALE WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS AGREEMENT BY PLANETSCALE; OR (B) THE INABILITY OF CUSTOMER OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET.

e. Non-Generally Available Services. Customer may accept or decline offers to trial services or functionality not generally available to all of PlanetScale’s customers (“Non-GA Services”) in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided “AS IS” with no express or implied warranty and without indemnification arising in connection with any Non-GA Service. PlanetScale may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.

10. Indemnification

a. Indemnification by PlanetScale. PlanetScale will indemnify, defend and hold harmless Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the PlanetScale Software in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Subscription Services or any part thereof is likely to, in PlanetScale’s sole opinion, or do become the subject of an Infringement Claim, PlanetScale may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding subscription. PlanetScale shall have no liability for any Infringement Claim arising from (1) Customer’s use or supply to PlanetScale of any Customer Property; (2) use of the Subscription Services in combination with any software, hardware, network or system not supplied by PlanetScale if the alleged infringement relates to such combination; or (3) any modification or alteration of the Subscription Services (other than by PlanetScale), if the alleged infringement arises in connection with such modification or alteration.

b. Indemnification by Customer. Customer will indemnify, defend and hold harmless PlanetScale, its employees, directors and officers (the “PlanetScale Indemnified Parties”) from and against any and all Losses, suffered or incurred by any PlanetScale Indemnified Party, arising from any Third Party Claim against a PlanetScale Indemnified Party alleging that (a) any Customer Property or Customer’s use of the Subscription Service in breach of this Agreement violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party violates any applicable law or (b) PlanetScale has failed to comply with applicable laws or regulations pertaining to any personal information that Customer is prohibited from using in connection with the Subscription Services.

c. Indemnification Conditions. The Parties’ obligations under this Section 10 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 10, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 10 are subject to the limitations and exclusions set forth in Section 11 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.

11. Limitation of Liability

a. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER

HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

b. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.

12. Term and Termination

a. Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 12(c).

b. Term of Subscriptions. Customer’s access to the purchased Subscription Services shall commence from the date Customer purchases Subscription Services and shall end at the conclusion of the Subscription Term. At the expiration of each Subscription Term, the Subscription Term for all purchased Subscription Services will automatically renew for the same period as the expiring Subscription Term, unless (i) either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal, or (ii) the Parties have otherwise agreed in writing to different renewal terms. PlanetScale will notify Customer of any price increases or other changes to the Fees at least 60 days prior to the start of any renewal term.

c. Termination. Either Party may terminate this Agreement and/or any Subscription Services by providing at least thirty (30) days prior written notice to the other Party. In addition, PlanetScale may immediately terminate this Agreement in the event that it reasonably believes that Customer is unable to pay the Fees in a timely manner (including for reasons of bankruptcy or insolvency), (ii) Customer is using the Subscription Services in violation of applicable law, (iii) Customer is using the Subscription Service to store personal data in violation of the Platform Guidelines or (iv) Customer is in breach of any provision of this Agreement which affects the security or availability of the Subscription Services.

d. Effect of Termination. In the event of termination of this Agreement, upon Customer’s written request made within thirty (30) days after the effective date of termination, PlanetScale shall make the Hosted Data, in the format stored by the Subscription Service, available to Customer for thirty (30) days from the date such written request is received, during which time Customer shall be solely responsible for retrieving the Hosted Data. After such thirty (30) day period, PlanetScale shall have no obligation to maintain or provide any Hosted Data and may thereafter unless legally prohibited, delete all Customer Content in its possession.

e. Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5(b), 6, 7(a), 7(c), 8, 9, 11, 12(d), 12(e) and 13. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.

13. Miscellaneous Provisions

a. Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and PlanetScale will be considered an independent contractor when performing any Subscription Services hereunder.

b. Third Party Beneficiaries. This Agreement is only for the benefit of the Parties and only they may enforce it. The Parties do not intend to confer any right or benefit on any third party. No third party may commence or prosecute an action against a Party on the basis that it is a third party beneficiary of this Agreement.

c. Entire Understanding. This Agreement (including all subscription and pricing terms made available to you at the time of purchase (“Subscription Information”), the Platform Guidelines and the Documentation, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Subscription Information, the Subscription Information shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.

d. Waiver. No action by PlanetScale, other than an express written waiver, may be construed as a waiver of any provision of this Agreement.

e. Modifications. PlanetScale reserves the right to modify these terms as needed from time to time. Unless PlanetScale determines a change alters the material understanding of how the Customer may use the Subscription Services, PlanetScale will not be obligated to notify Customer of minor changes.

f. Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in San Francisco, California (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws

of the State of California for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys fees) and expenses in connection with such arbitration.

g. Publicity. Any press release developed by a Party regarding this Agreement shall be subject to the prior written consent of the other Party, which shall not be unreasonably withheld. PlanetScale may identify Customer as a user of the Subscription Services upon a separate written approval of the Customer by referencing Customer’s name and logo, provided that such reference is consistent with Customer’s generally applicable branding guidelines and that PlanetScale will cease making such references after receiving written notice from Customer to do so.

h. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

i. Notices. Except for notifications permitted under the Platform Guidelines, all notices under this Agreement shall be in writing and shall be addressed to: (a) in the case of PlanetScale, PlanetScale, Inc., Attn: Legal, 278 Hope St, Mountain View, CA 94041, and (b) in the case of Customer, the Customer’s address on file with PlanetScale. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

j. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any PlanetScale employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify PlanetScale if it offers or receives any such improper payment or transfer in connection with this Agreement.

k. Export Control. The Subscription Services and related technical data and services (collectively, "Controlled Technology") may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.

l. Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in PlanetScale not being able to provide the Subscription Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.

m. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.