Terms of Service — PlanetScale

CLICKING ON THE “SIGN UP” BUTTON, TAKING AN ACTION TO INDICATE ACCEPTANCE, OR USING THE PRODUCT (AS DEFINED BELOW) YOU AGREE TO THE TERMS OF SERVICE (“Agreement”) WITH PLANETSCALE, INC. (“PlanetScale”). IN THE EVENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT, ACCESS OR USE THE PRODUCT IN ANY MANNER.

Definitions.
1. "Account" means PlanetScale account.
2. “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.
3. "AUP" means the then-current acceptable use policy for the Product located at https://planetscale.com/legal/aup.
4. "Beta Features" means any products, features, functionality, offerings or services, which PlanetScale may make available to Customer, that are identified as beta, trial, non-production or another similar designation.
5. “Customer” means in the case of an individual accepting this Agreement on his, her or their own behalf, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
6. “Customer Content” means any software, text, audio, video, images or other data that is provided to PlanetScale by Customer or End Users through the Product under the Account.
7. “Documentation” means the PlanetScale documentation made available by PlanetScale with the Product located at https://planetscale.com/docs which may be modified from time to time.
8. “End User” means the individuals who are permitted by Customer to access or otherwise use the Product. For clarity, End Users may include employees, consultants, contractors or agents of Customer, and other third parties authorized by Customer. The term “End User” does not include individuals or entities when they are accessing or using the Product under their own PlanetScale Account.
9. “Effective Date” means the date the Customer accepted this Agreement.
10. “Fees” means the applicable fees for the Product and/or Support plus any applicable taxes. The Fees for the Product and Support are listed in the pricing schedule (incorporated into the Agreement by this reference).
11. “Free Tier Offering” means the applicable free offering described at in the pricing schedule (incorporated into the Agreement by this reference).
12. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
13. “Product” means the PlanetScale’s database solution, website, content and other related services that PlanetScale makes available, and/or any part or combination of the same.
14. “Support” means the technical support and maintenance service for the Product that PlanetScale may make generally available to Customer.
15. “SLA” means the service level agreement provided to the Customer located at https://planetscale.com/legal/planetscale-service-level-agreement.
16. “Trademark Guidelines" means PlanetScale's guidelines for third party use of the PlanetScale brand.
Product Use, Restrictions and Customer Obligations.
1. Product Use. Conditioned on Customer’s compliance with the terms and conditions of this Agreement, PlanetScale grants Customer and End User a nonexclusive, nontransferable, nonsublicensable, revocable right to use and access the Product in accordance with the Documentation and only for Customer’s internal business purposes, for the Term.
2. Restrictions. Customer will not, and will not allow End Users to, (i) copy, modify, or create a derivative work of the Product; (ii) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Product; (iii) sell, resell, sublicense, transfer, or distribute any or all of the Product; (iv) access or use the Product (a) not in accordance to the Documentation; (b) in violation of the AUP; (c) in a manner intended to avoid Fees; (d) to engage in cryptocurrency mining without PlanetScale's prior written approval; (e) to operate or enable any telecommunications service; (f) in a manner that breaches, or causes the breach of export control Laws; (g) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA; (h) to transmit, store or process payment information subject to the payment card industry data security standards; (i) to transmit, store or process ‘special categories of personal data’ (as defined in the General Data Protection Regulation 2016/679); or (j) to transmit, store or process any infringing or otherwise unlawful or tortious material or any information for which it does not have the necessary consents or rights to transmit, store, or process (as applicable) in connection with the Product; (v) remove any product identification, proprietary, copyright or other notices contained in the Product; or (vi) use the Product other than as expressly authorized in this Agreement. PlanetScale shall have the right to conduct and/or direct an independent accounting firm to conduct, during normal business hours, an audit of Customer’s and/or End User’s facilities, computers and records to confirm Customer’s and/or End user’s use of Product is in compliance with this Agreement and AUP. Customer and End Users shall provide reasonable cooperation with any such audit.
3. Customer Obligations. Customer will (i) have an Account to use the Product, and will ensure its End Users use the proper applicable business email address to create the End User Account; (ii) be responsible for the information it provides to create the Account; (iii) ensure the security of its passwords for the Account; (iv) be responsible for all activities that occur under the Account, regardless of whether the use is authorized by Customer or undertaken by Customer or End Users; (v) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to the Product and Account; (vi) promptly notify PlanetScale of any unauthorized use of, or access to the Product, Account, or Customer's password of which Customer becomes aware. PlanetScale and its Affiliates are not responsible for unauthorized access to the Account; (vii) be responsible for properly configuring and using the Product and otherwise taking appropriate action to secure, protect and backup Customer Content in a manner that will provide appropriate security and protection; and (viii) ensure that Customer Content will not violate this Agreement or any applicable law. Customer must ensure that all End Users comply with the obligations under this Agreement. Customer must promptly notify PlanetScale if it becomes aware of any violation of its obligations under this Agreement caused by an End User.
4. Product Changes. PlanetScale may change or discontinue any portion of the Product from time to time. PlanetScale will provide Customer at least six (6) months’ prior notice if PlanetScale discontinues material functionality of the Product, except that this notice will not be required if the six (6) months’ period (i) will pose a security risk or intellectual property concern to PlanetScale or the Product, (ii) is economically or technically burdensome, or (iii) will cause PlanetScale to violate legal requirements.
Support. Conditioned on Customer’s compliance with the Fees and payment terms under this Agreement, PlanetScale will provide Support to Customer during the Term (as defined below) in accordance with the SLA.
Fees and Payment Terms, Taxes and Free-Tier Offering.
1. Fees. 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 on 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 4.1, PlanetScale may suspend provision of the Product until such payment is received by PlanetScale. Customer’s payment obligation will remain in effect during any such suspension. PlanetScale may modify the Fees upon reasonable notice to Customer.
2. Taxes. If any applicable law requires Customer to withhold amounts from any payments to PlanetScale under this Agreement, (i) 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 (ii) 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. Free-Tier Offering. The Free Tier Offering is only available to new Customers. Customer can only benefit from one (1) Account and one (1) database. To calculate the Customer’s use of Product under any Free Tier Offering, PlanetScale will aggregate the usage across all Accounts controlled by Customer. Customer will be charged standard rates for use of Product if PlanetScale determines that Customer is not eligible for Free Tier Offering. PlanetScale may archive the Product or any portion thereof, if Customer does not use it for a period of time as defined in the Documentation. Customer may request PlanetScale to make commercially reasonable efforts to retrieve the archived Product at any time, but no later than twelve (12) months following the Effective Date. PlanetScale may terminate and/or modify any Free Tier Offering at any time at its sole discretion. Free Tier Offering will not be eligible to support in accordance with the SLA. All Free Tier Offerings are provided “AS IS” without warranty of any kind.
Beta Features. From time to time, PlanetScale may make available Beta Features to Customer on a temporary basis for evaluation purposes. PlanetScale does not make any commitment to provide Beta Features in any future versions of the Product. PlanetScale may immediately and without notice remove or modify any Beta Features for any reason without liability to Customer. All Beta Features are provided "AS IS" without warranty of any kind.
Data Privacy and Security.
1. Data Privacy. Customer grants PlanetScale the right to process Customer Content in accordance with this Agreement, the PlanetScale’s Data Processing Addendum and the PlanetScale Privacy Policy.
2. Security. Without limiting Customer obligation under Section 2.3, PlanetScale will maintain administrative, physical, and technical safeguards to protect Customer Content in accordance with this Agreement, and the PlanetScale’s Data Processing Addendum.
Intellectual Property Rights and Feedback.
1. Intellectual Property Rights. This Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property, unless expressly stated otherwise in this Agreement. As between the parties, Customer owns all Intellectual Property Rights in Customer Content, and PlanetScale owns all Intellectual Property Rights in the Product, Support, Documentation and related works, including but not limited to any modifications and derivative works of the foregoing (collectively, “PlanetScale IP”).
2. Feedback. In the event that Customer provides PlanetScale with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback related to PlanetScale IP (collectively, “Feedback”), Customer grants PlanetScale and its Affiliates a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, modify, and distribute such Feedback in any manner without restriction, compensation to Customer, attribution of any kind, or any other obligation to Customer.
Confidentiality and Publicity.
1. Definitions. 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 is disclosed related 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. Confidential Information excludes information that is: (i) known to Recipient without restriction before receipt from Discloser; (ii) publicly available through no fault of Recipient; (iii) rightfully received by Recipient from a third party without a duty of confidentiality; or (iv) independently developed by Recipient without use of or reference to Discloser’s Confidential Information.
2. Obligations. 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.
3. Publicity. Customer may state publicly that it is a PlanetScale customer and display PlanetScale brand in accordance with the Trademark Guidelines. PlanetScale will be permitted to reference its relationship with Customer on its marketing material, website, during discussions with analysts and reporters and in customer briefings and regulatory filings. PlanetScale will comply with Customer’s publicly available trademark guidelines.
Suspension. PlanetScale may suspend Customer or End User’s right to access or use any portion or all of the Product immediately upon notice to Customer if PlanetScale, at it sole discretion, determines that: (i) Customer and/or any End User use of the Product poses a security risk to the Product, or any third party; (ii) Customer and/or any End User use of the Product may subject PlanetScale or its Affiliates to any third party liability; (iii) Customer or any End User use of the Product violates the AUP; (iv) there is suspected unauthorized third-party access to the Product; or (v) Customer is in breach of Section 2.2. If PlanetScale suspends Customer right to access or use any portion or all of the Product, Customer will remain responsible for all Fees incurred during the period of suspension. PlanetScale may, at its sole discretion, lift any suspension when the conditions giving rise to the suspension have been resolved.
Term and Termination.
1. Term. The term of this Agreement (the "Term") will begin on the Effective Date and continue until the Agreement is terminated as stated in this Section 10.
2. Termination for Cause. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of the breach; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
3. Termination for Inactivity. PlanetScale reserves the right to terminate the Agreement upon thirty (30) days' advance notice if, for a period of one hundred and eighty (180) days the Customer has not accessed the Product and has not incurred any Fees.
4. Termination due to violation of Laws. PlanetScale may terminate this Agreement immediately if PlanetScale reasonably believes that its Product, or any part of it, used by Customer would violate applicable law(s).
5. Effect of Termination. If the Agreement is terminated, then (i) all rights and access to the Product will terminate (including access to Customer Content, if applicable), unless otherwise described in this Agreement, and (ii) all Fees owed by Customer to PlanetScale will immediately due upon Customer’s receipt of the final bill. Customer may export Customer Content in accordance with the Documentation, and PlanetScale is not obligated to retain Customer Content following termination of this Agreement.
6. Survival. Sections 4 and 7, 8, 10.6, 10.7, 11, 12, 13, 14, and 15 and the Data processing Agreement (to the extent the obligations set forth herein survive termination of this Agreement) will survive the expiration or termination of this Agreement.
Representations and Warranties. Each party represents and warrants that (i) it has full power and authority to enter into the Agreement, and (ii) it will comply with all laws applicable to its provision, receipt, or use of the Product, as applicable.
Disclaimer. THE PRODUCT AND SUPPORT ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, PLANETSCALE AND ITS AFFILIATES, PARTNERS AND SUPPLIERS (I) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PRODUCT, SUPPORT OR ANY THIRD-PARTY CONTENT, AND (I) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE PRODUCT, SUPPORT OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (D) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
Limitation Of Liability.
1. Limitation on Indirect Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PLANETSCALE OR ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT FOR ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, OR LOST REVENUES, PROFITS, SAVINGS OR GOODWILL OF ANY KIND AND HOWEVER CAUSED EVEN IF PLANETSCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
2. Liability Cap. 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 TOTAL AMOUNT OF FEES PAID TO PLANETSCALE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE TIME THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, PLANETSCALE’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO PRODUCT PROVIDED (I) FREE OF CHARGE; OR (II) BETA FEATURES IS LIMITED TO FIVE THOUSAND US DOLLARS ($5000).
3. Unlimited Liabilities. NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION OR MATTER FOR WHICH LIABILITY CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Indemnification.
1. PlanetScale Indemnification Obligations.
  1. PlanetScale will defend Customer against any third party claim brought against Customer to the extent arising from an allegation that the Product, as made available under this Agreement, infringes 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 provides PlanetScale: (i) prompt written notice of the Infringement Claim to support@planetscale.com, (ii) exclusive control over the defense and settlement of the Infringement Claim, and (iii) reasonable cooperation in connection with the defense and settlement of the Infringement Claim.
  2. PlanetScale will have no liability if the alleged infringement is based on: (i) combination of the Product with other products, data or business process not developed and/or provided by PlanetScale, (ii) use for a purpose or in a manner for which the Product was not designed, (iii) use of any Beta Features or an older release of the Product when use of a newer revision would have avoided the infringement, (iv) use of any Product or Support provided to Customer free of charge; (v) any modification of the Product made by anyone other than PlanetScale, (vi) PlanetScale's compliance with any materials, designs, specifications or instructions provided by Customer, (vii) any third party or open source software; or (viii) Customer’s use of the Product after PlanetScale notifies Customer to discontinue running it due to an Infringement Claim.
  3. Should Product become, or in PlanetScale’s opinion be likely to become, the subject of an Infringement Claim, PlanetScale will, at its sole option and expense, (i) procure for Customer the right to make continued use of the Product, (ii) replace or modify such so that the Product becomes non-infringing, or (iii) terminate this Agreement and refund any prepaid but unused Fees paid therefor.
2. Customer Indemnification Obligation. Customer will defend PlanetScale and its Affiliates and indemnify them against a third party claim arising from (i) any Customer Content, or Customer’s brand material (ii) Customer's or an End User's use of the Product in breach of the AUP, Documentation or the restrictions set forth in this Agreement.
3. Sole Rights. Without affecting either party's termination rights, this Section 14 states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 14.
Third Party Products. The Product may contain links to or integrations with third-party products or services (“Third Party Products”).PlanetScale does not provide, provision, control, or monitor such Third Party Products, and is not responsible for the Third Party Products.Access to and use of any Third Party Products is at Customer’s own risk.Third Party Products are subject to separate terms and conditions, including related to data privacy and security.Such terms and conditions are between Customer and the provider of the Third Party Products, and PlanetScale is not a party to such terms.
General.
1. Governing Law; and Venue. 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.
2. Export Compliance. The parties acknowledge that the Product 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 fourteen (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 End 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.
3. Notices. 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 are effective upon receipt.
4. No Third Parties Beneficiaries. This Agreement is binding on the parties to this Agreement, and there are no third party beneficiaries.
5. Assignment. 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.
6. Entire Agreement. This Agreement is the entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
7. Modifications. PlanetScale may make changes to the Agreement from time to time. Material changes to the Agreement will become effective thirty (30) days after they are posted, except to the extent the changes apply to new functionality, Beta Features, Fees, Free Tier Offering or are required by applicable law, in which case they will be effective immediately.
8. Conflicting Terms. The parties agree that any term or condition stated in a Customer order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, and (2) Documentation.
9. No waiver. 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.
10. Severability. If any provision is found to be unenforceable, it and any related provisions will be interpreted to best accomplish its essential purpose.
11. No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
12. Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
13. Force Majeure. 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.