IMPORTANT – READ CAREFULLY
BY SIGNING UP TO FANOUT OR SELECTING THE “I ACCEPT” OR SIMILAR BUTTON TO WHICH THIS AGREEMENT IS ATTACHED, YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ENTER INTO THIS SERVICES AGREEMENT (“AGREEMENT”), AND IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO BIND SUCH ENTITY AND AGREE TO ALL THE TERMS OF THIS AGREEMENT REGARDING CUSTOMER’S USE OF THE FANOUT CLOUD-BASED SERVICE. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT, DO NOT CLICK ON THE “I AGREE”, “I ACCEPT” OR CONTINUE CREATING A FANOUT ACCOUNT. THIS AGREEMENT DOES NOT APPLY TO INTERNALLY OR EXTERNALLY MAINTAINED OPEN SOURCE SOFTWARE LISTED HERE.
- “Application” means a software application that You develop and maintain to be used with the Company Services pursuant to this Agreement. An Application consists of a Customer server-side portion that sends messages to Company Services and a client-side portion that resides on the end user’s computer or device that shall receive Messages.
- “Brand Features” and “Marks” means Your company branding, trademarks, and the associated logos that are used in connection with an Application or Platform.
- “Company” or “the Company” means Fanout Inc.
- “Company Services” means the Company’s cloud-based service, known commercially as Fanout, which provides a scalable, realtime push network for developers to build highly scalable realtime Platforms and Applications.
- “Customer” means You.
- “Customer Data” means data contained in the Messages published by Customer or its users to the Company Services
- “End Users” means anyone who uses Your Application.
- “Fanout” means Fanout Inc.
- “Message” is a message that is sent or received through the Company Services.
- “Metered Usage” means the number of messages used by the Customer during the 30 day Service Period.
- “Platform” means a software application programming interface (API) that You develop and maintain to use with the Company Services pursuant to this Agreement.
- “Service Period” will be 30 days from the time Customer upgrades from a Trial Account.
- “Trial account” is a Customer account that will not exceed usage limits listed on the pricing page.
2.1. Subject to Your payment of applicable fees and compliance with this Agreement, Fanout grants to Customer a non-exclusive, non-transferable, non-sublicenseable, revocable, limited license during the purchased Service Period to use the Company Services.
2.2. Fanout shall have a non-exclusive, non-transferable, worldwide, perpetual, irrevocable license to collect, analyze or use statistical data relating to its delivery of the Company Service derived from the Customer Data, solely for the development, tuning, and scaling of the Company Service, including the generation of reports for both internal use purposes as well as reports available to the Customer, which may be offered at additional costs. The Company will keep all statistical data private, and will not share this data with any third parties (other than its agents and consultants performing services for the Company who are under contractual obligation to maintain the confidentiality of such information), except as an aggregate across multiple Fanout end users (example, advertising the total number of messages delivered by the Company Service) and multiple Fanout customers to prevent the identification of such data as pertaining to any individual Customer and Customer’s end users. The Company’s use, collection and disclosure of the Customer Data shall comply with applicable law.
2.3. Customer Obligations. Customer shall be responsible for ensuring that all Authorized Users are bound by the terms and conditions of this Agreement. Customer has sole control over the Customer Data uploaded in the Company Services, and acknowledges Fanout has no control of the Customer Data. Customer will ensure that each username and password issued to a Customer will be used only by an Authorized User. Customer is responsible for maintaining the confidentiality of all usernames and passwords. Customer is solely responsible for all activities that occur under these usernames. Customer agrees (a) to only allow Authorized Users to use its account, usernames or passwords, (b) to keep a current list of all Authorized Users, (c) to promptly notify the Company if it becomes aware, or should be aware, of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Company Service. Fanout will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords; (d) to promptly fix any bugs in Customer’s software that causes the Company Services to be accessed incorrectly; for example, software that generates incorrect API calls to the Company Service, and software that uses incorrect authentication tokens to access the Company Service. Fanout reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this Section 2.
3.1 As between the parties and except for the licenses granted by this Agreement, (a) You retain all right, title and interest, including all related intellectual property rights, in and to the Applications, the Customer Data and the Brand Features and Marks and (b) Company retains all right, title, and interest, including all related intellectual property rights, in and to the Company Services.
3.2 You hereby grant Fanout an irrevocable, non-exclusive, royalty-free, transferable license, with rights to sublicense, to use, reproduce, modify, display, perform and create derivative works of the Applications, the Customer Data and the Brand Features and Marks for the sole purpose of allowing Fanout to provide the Company Services to You.
3.3 Fanout reserves the right to remove or disable Customer Data or Applications that Company, in its sole discretion, determines to be illegal, harmful, offensive, creating liability for Company or its service providers, or otherwise in violation of this Agreement or Company operating policies.
3.4 Company retains all rights not expressly granted to you under this Agreement. You do not have any implied rights.
4. OTHER COVENANTS, TERMS AND RESTRICTIONS
4.1 You shall retain all copyright, trademark and other intellectual property rights notices contained on or in the Company Services.
4.2 You represent and warrant to Company that: (i) You are of an age of majority and have the power, authority or consent to enter into and perform this Agreement; (ii) all information provided by You to Company is truthful, accurate and complete; (iii) You are the authorized signatory of the credit or charge card provided to Company to pay the fees; (iv) you shall comply with all terms and conditions of this Agreement; (v) You have provided and will provide accurate and complete registration information, including, without limitation, your legal name, address and telephone number; and (vi) You own or otherwise control and have sufficient rights and consents to provide all Applications, Brand Features and Marks or Customer Data for use by Company in the manner contemplated by this Agreement and none of the Applications, Brand Features and Marks or Customer Data infringes, misappropriates or violates any rights of any third parties.
4.3 You agree to comply with Fanout’s Acceptable Use Policy (AUP), which is incorporated herein by reference.
5. FEES AND PAYMENT
5.1 Metered Usage of the Company Services by the Customer is billed in arrears during the next monthly billing cycle based on the total number of Messages sent through the Company Services. All fees and taxes and other charges will be billed to your credit card. You hereby authorize Company to charge your credit card. There will be no refunds or credits for partial months of service, upgrades, or unused months.
5.2 Company reserves the right to deactivate your access to Company Services for failure to pay applicable fees. You agree to promptly pay Company in the event of any refusal of your credit card issuer to pay any amount to Company for any reason. You agree to pay all costs of collection, including attorneys' fees and costs, on any outstanding balance. In the event you fail to pay any amount when due, Company may immediately suspend or terminate Your access to the Company Software and the Services.
5.3 Your subscription will renew automatically, unless Company terminates it or you terminate your subscription pursuant to Section 6 below. You must cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card.
5.4 You are responsible for, and will indemnify and hold Company harmless from, payment of all taxes (other than taxes based on Company' net income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Company under this Agreement or the delivery, license or use of the Company Services. You will make all payments to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Your sole responsibility, and You agree to provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.
5.5 Fanout will send billing correspondence to the email address included in the online Fanout Control Panel page.
5.6 In the event of a good faith dispute as to the calculation of a charge, Customer shall immediately give written notice to Fanout stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by the Company of such partial payment shall not constitute a waiver of payment in full by Fanout of the disputed amount. Any undisputed amounts not paid within fifteen (15) days of receipt shall accrue interest at a rate of 1.5% per month or the maximum lawful rate, whichever is less. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Fanout to suspend its provision of the Company Service on ten (10) business days prior notice and require payment in advance until Customer account is paid in full. Customer may not setoff, deduct or otherwise withhold amounts due hereunder.
5.7 Any amounts not paid when due are subject to an interest charge at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.
6. Term & Termination.
6.1. The term of this Agreement shall begin upon acceptance of this Agreement as specified in the preamble and shall continue until the earlier of termination as set forth in Sections 6.2, 6.3 and 6.4 below. A Service Period shall commence upon the Customer upgrading from a Trial Account.
6.2. The Customer may terminate the Agreement and the Service Period by sending an email to email@example.com. Customer must terminate this Agreement and the Service Period at least five (5) days prior to the completion of the then current month (“Cancellation Period”). The Agreement and Service Period termination will be effective as of the first day of the following month.
6.3. Fanout may terminate this Agreement and any Service Period, without cause, upon providing the other party with thirty (30) days prior written notice, except the notification period for Trial Account Customer’s use of Company Services provided free of charge, shall be fifteen (15) days.
6.4. Termination for Breach. Either party may terminate this Agreement and the Service Period upon notice to the other party if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days of the original notice thereof or such other period as may be mutually agreed to by the parties, except the cure period for Customer use of a Company Services provided free of charge, and for breaches of Section 2, shall be fifteen (15) days; provided further that in the event a breach is not curable, the non-breaching party may terminate on written notice.
6.5. Effect of Termination. Upon expiration or termination of this Agreement, (a) the Service Period shall cease, and all license rights to use the Company Services shall cease, and Fanout shall discontinue the provision of the Company Services, and (b) Customer shall immediately pay any outstanding invoices, including fees owed for outstanding Service Periods as specified under Section 6.1 above.
7. SERVICE RELATED TERMS
Company agrees to transport Messages for Your Applications with its cloud service in accordance with Company's Service-Level Agreement (SLA), which is incorporated herein by reference. Except as set forth in the SLA, Company does not warrant or guarantee that the Applications and Company Services will be always available or available at any particular time, secure or free from errors or defects.
8. GOVERNMENT RESTRICTIONS
You may not export or re-export any of the Company Services or Application except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The foregoing and all accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the U.S. government is governed solely by the terms of this Agreement.
9. NO WARRANTY
THE COMPANY SERVICES ARE PROVIDED TO YOU AS IS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND SATISFACTORY QUALITY.
Company does not warrant that any of the Company Services will meet your needs or requirements or be error-free or always available or available at any particular time or that any errors or defects will be corrected. Company does not warrant or guarantee any amount of money that You will receive or earn in connection with an Application.
NONE OF THE COMPANY SERVICES ARE FAULT TOLERANT. THEY ARE NOT DESIGNED, MANUFACTURED, LICENSED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS OR ANY OTHER APPLICATION IN WHICH ITS FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR PHYSICAL OR ENVIRONMENTAL DAMAGE.
10. LIMITATION OF LIABILITY AND INDEMNITY
10.1 IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE.
10.2 COMPANY'S LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY YOU TO COMPANY UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.3 You shall indemnify and hold harmless Company and its officers, directors, employees and agents (the "Company Indemnified Parties") from and against liabilities, costs, losses, damages, judgments, expenses (including attorneys' fees and costs of experts and costs of appeals) arising out of or in connection with any and all of the following: (a) any allegation that any of the Applications, Brand Features and Marks or Customer Data infringe, misappropriate or violate any intellectual property right, (b) any violation of this Agreement, including, without limitation, any breach of any representations or warranties contained herein, (c) your provision or distribution of the Application or any Customer Data, (d) your use of any of the Company Services, (e) any activity relating to your account, (f) any violation of a third party app store's contracts, policies or procedures; or (e) any failure of You to have all necessary rights and licenses.
11. Customer Advertising Commitments & Trademark Usage.
During the Term, Fanout may include Customer’s name and logo on a list of customers of the Company Services.
12. CONFIDENTIALITY AND FEEDBACK
12.1 You agree to keep confidential and not use other than in the performance of this Agreement or disclose to a third party any information of Company that You know or reasonably should know is confidential to Company.
12.2 To the extent you provide Company with any suggestions, information, ideas, or feedback concerning any of the Company Services, including but not limited to, a report of any errors which you discover while using an Application or the Company Software or any related documentation ("Feedback"), such Feedback will be the property of Company. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Company and agree to assist Company in perfecting and enforcing these rights.
You may not transfer or assign Your rights under this Agreement, in whole or in part, without the prior written consent of Company. Any attempted assignment in violation of the foregoing is void. Company may freely transfer or assign its rights under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
14. COPYRIGHT POLICY
14.1 Company takes claims of copyright infringement seriously. Company will respond to notices of alleged copyright infringement that comply with applicable law. If You believe any materials accessible on or from Company Services infringe Your copyright, You may request removal of those materials (or access thereto) from Company Services by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
(a) Your physical or electronic signature.
(b) Identification of the copyrighted work You believe to have been infringed or, if the claim involves multiple works on Company Software or the Services, a representative list of such works.
(c) Identification of the material You believe to be infringing in a sufficiently precise manner to allow Company to locate that material.
(d) Adequate information by which Company can contact You (including Your name, postal address, telephone number and, if available, e-mail address).
(e) A statement that You have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
(f) A statement that the information in the written notice is accurate.
(g) A statement, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.
14.2 Our designated Copyright Agent to receive DMCA Notices is:
650 Castro St. Ste 120-368
Mountain View, CA 94041
14.3 If You fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, Your DMCA Notice may not be effective.
14.4 Please be aware that if You knowingly materially misrepresent that material or activity on Company Services is infringing Your copyright, You may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
14.5 It is Company's policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
This Agreement and any disputes related thereto shall be governed by and construed in accordance with the laws of California as if performed wholly within that state and without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement. The parties agree that the exclusive venue for any dispute arising hereunder shall be the federal or state located in the City and County of San Francisco and the parties waive any objection to personal jurisdiction or venue in any forum located in that county.