Updated February 03, 2021
These Reseller Terms (the “Terms”), any Order entered into from time-to-time, and the Documentation (together the “Agreement”), and the Terms of Service, are entered into by and between New Relic K.K. having its principal place of business at 18 F Midtown Tower, 9-7-1 Akasaka, Minato-ku, Tokyo (“New Relic”) and Partner (as defined and set forth in the Order) (“Partner”, New Relic and Partner individually as “Party”, or together “Parties”). These Terms will become binding once both parties sign an Order that references or incorporates these Terms (the “Effective Date”). By signing an Order, Partner assents to these Terms and represents and warrants that (1) Partner has read, understands, and agrees to be bound, and (2) Partner has the authority to enter into these Terms on behalf of the company or other organization that is named as Partner in the Order and these Terms will constitute a legal, valid, and binding obligation of such entity.
New Relic reserves the right to amend these Terms from time-to-time, in whole or in part, in which case the updated Terms will supersede the prior version. Any changes to the Terms will be effective immediately for new partners and, for all other partners, any changes will be effective five (5) business days after the date of such changes.
In consideration of the mutual agreements contained herein and intending to be legally bound hereby, the Parties agree as follows:
1. Overview. These Terms permit Partner to market the Service and accept orders and payment for the Service from the Customer. New Relic or its affiliates will fulfill accepted orders by providing the Service and any support directly to Customer in accordance with the Terms of Service during the applicable subscription term set forth in an Order (“Commitment Term”).
2. Partner Activities.
2.1. Offering of the Service. Subject to all of the terms and conditions of this Agreement, New Relic hereby grants Partner during the Term the right to market the Service to and accept orders for the Service from Customer, but solely for use by such Customer: (a) without any right of redistribution or sharing, (b) subject to the Commitment Term, and (c) pursuant to the Terms of Service. These rights may not be transferred or sublicensed by Partner. These Terms do not provide Partner with the right to access or use the Service for its own use or benefit. Partner acknowledges and agrees that the New Relic partner program may be updated by New Relic or its affiliates from time-to-time in its sole discretion. Partner in its role as a reseller partner may have additional requirements in order to maintain its membership in the New Relic partner program. Any rights not expressly granted herein are reserved by New Relic or its affiliates.
2.2. Provision of the Service. The parties acknowledge and agree that New Relic will operate the Service and provide the Service directly to each Customer and that nothing in this Agreement will be deemed to grant Partner the right to re-brand, re-frame, operate or otherwise control the Service. However, as to each Customer, Partner will be solely responsible for ongoing account-related activities such as billing, collecting fees, and refunds as further set forth in Section 3 (Pricing and Payment). New Relic or its affiliates reserves the right to modify the Service at any time.
2.3. Demonstration Use. New Relic will make available to Partner demonstration access of the Service without charge, for the sole purpose of Partner providing demonstrations and training to Customers (or prospects) ("Demonstration Use"). Demonstration Use is provided subject to Partner complying with the Terms of Service and ceasing any such use upon notice from New Relic or its affiliates. Partner is not permitted to resell or charge any fee for Demonstration Use nor allow any Customer to upload any real data or directly access the Service in connection with such Demonstration Use.
2.4. Customer Terms; Enforcement. Each Customer’s use of the Service is governed under the Terms of Service, and any additional Customer required passthrough terms set forth in the Order (“Passthrough Terms”). Partner will only resell the Service to Customer if: (i) Partner and Customer enter into a legally binding agreement that expressly references the Terms of Service and any Passthrough Terms if applicable (the “Customer Services Agreement”); and (ii) Partner and New Relic enter into an Order detailing the Service, Usage Plan, and the pricing, payment terms and fee structure applicable to such Customer. New Relic refers to the Service pricing, invoicing related information, and product-specific terms (e.g., concurrent user account sessions) within the Documentation as the “Usage Plan.” Partner will: (a) notify, within the Customer Services Agreement, Customer that the Service is subject to the Terms of Service, and any Passthrough Terms if applicable, and that by placing an order, the Customer agrees to the Terms of Service and any Passthrough Terms, (b) include a URL to the Terms of Service and any Passthrough Terms in each quotation and order it issues to the Customer, and (c) not remove or obscure the Terms of Service, interfere with its presentation or accept it (or otherwise register for the Service) on the Customer’s behalf. Partner acknowledges and agrees and will ensure that each Customer acknowledges and agrees in its Customer Services Agreement, that the Service and the pricing for the Service (whether now existing or hereinafter developed) may change at any time. For clarity, Partner has no authority to negotiate the terms of the Terms of Service. New Relic or its affiliates have no obligations to Customer except as set forth in the Terms of Service. Any additional or different terms set forth in the Customer Services Agreement will not be binding upon New Relic or its affiliates and Partner will be solely liable for any claims arising from such unauthorized terms. Upon execution of the Customer Services Agreement and the applicable Order (as described in Section 3 (Pricing and Payment)), New Relic or its affiliates will provision the Service for Customer. Upon New Relic’s request, Partner will provide New Relic with a copy of the Customer Services Agreement. If Partner becomes aware of any unauthorized use of the Service or of any Customer failure to comply with the Terms of Service or any Passthrough Terms, Partner will immediately notify New Relic and at New Relic’s or its affiliates direction, use its best efforts to assist New Relic in the enforcement of such terms.
2.5. General Restrictions. Partner will not, and will not permit others to: (i) (a) register, or attempt to register, any competing intellectual property rights to the Service, or (b) delete or tamper with any proprietary notices on or in the Service; (ii) conduct any benchmark tests or other evaluation of the Service without New Relic’s or its affiliates’ express prior written consent; (iii) provide access to, distribute, sell, use or sublicense the Service for any purposes other than those expressly set forth in this Agreement, including use on behalf of, or to provide any product or service to, third parties, or to develop a similar or competing product or service; (iv) modify, decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or seek to access non-public APIs to the Service or create source code for the Service; (v) use, distribute, copy, duplicate, or otherwise reproduce all or any part of the Service other than as permitted pursuant to this Agreement; (vi) modify or create derivative works of the Service, copy any element of or incorporate the Service into or with other products; or (vii) interfere with the operation of the Service, circumvent its access restrictions or conduct any security or vulnerability test of the Service; or (viii) transmit any viruses or other harmful materials to the Service.
2.6. Non-Exclusivity. These Terms do not grant any exclusivity to Partner and nothing in these Terms will be deemed to prohibit New Relic from entering into any reseller, customer, services or other agreement with any other party during or after the Term.
3. Pricing and Payment.
3.1. Partner Fees; Orders. Partner will place orders for the Service under these Terms by delivering an Order to New Relic. No Order will be binding until executed by New Relic and executed Orders are non-cancellable by Partner. Partner is solely responsible for providing complete and accurate billing and contact information to New Relic. During the Commitment Term, New Relic will invoice Partner in advance for the commitment fee (as set forth in the applicable Order) for Customer’s use of the Service and subsequently for any Service usage by Customer that exceeds the commitment fee (“Overage”). Partner may order Technical Services to be provided to Customer if set forth on an Order. Unless the Order or Usage Plan provides otherwise, New Relic invoiced charges are payable within 30 days of the invoice date. Partner payment obligations are non-cancelable and fees paid are non-refundable. Unless the Usage Plan provides otherwise, New Relic must receive written notice of any disputed charges from Partner within fifteen (15) days after the invoice date (or 5 days after the invoice date for Overages) or Partner will be deemed to have waived the right to dispute fees. The Service is deemed accepted upon acceptance of these Terms and the execution of an applicable Order.
3.2. Taxes; Interest. Partner is responsible for sales, use, excise, or other taxes imposed with respect to this Agreement except that taxes based on New Relic’s gross or net income are the sole responsibility of New Relic. Partner will not be responsible for payment of any taxes for which it provides evidence of a valid resale exemption or other exemption of taxes. Partner will pay New Relic delinquent charges on all amounts not paid when due at a rate of the greater of one percent (1.0%) per month or the highest rate allowed by Law, compounded.
3.3. Renewals. Upon expiration of the Customer’s Commitment Term, unless otherwise stated on an applicable Order, the ordered Service will automatically renew for successive periods of equal duration to the previous commitment term, unless and until either party (Partner or New Relic as applicable) gives the other notice of non-renewal at least 30 days prior to the end of the then-current Commitment Term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless New Relic provides Partner notice of a pricing increase at least 45 days prior to the end of the then-current Commitment Term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed more than a ten percent (10%) increase from the pricing level for the relevant Service in the immediately prior commitment term, unless the pricing in such prior term was designated in the relevant Order as discount, promotional or one-time pricing.
3.4. Partner Pricing. Partner is prohibited from any promotion or advertising of the pricing between New Relic and Partner pursuant to these Terms or an applicable Order. The Agreement may be terminated immediately if: (a) Partner presents or promotes such pricing on any public facing materials or websites, or (b) New Relic determines that Partner is selling the Service to an entity different than the Customer set forth in the Order. Notwithstanding the rights set forth in Section 2.1 (Offering of the Service), New Relic reserves the right to renew the Service with Customer directly if these Terms have been terminated or Partner: (y) does not renew Customer’s subscription within thirty (30) days of the Renewal Date specified in the Order, or (z) does not respond to New Relic inquiries regarding renewal of Customer’s subscription within sixty (60) days of the Renewal Date specified in the Order.
3.5. Customer Pricing; Collection. Partner will independently determine the pricing at which it offers the Service to Customer. Partner will be solely responsible for collecting all fees from Customer. Non-payment by Customer will not relieve Partner of its obligation to pay fees to New Relic as described in this Section 3 (Pricing and Payment). New Relic reserves the right to terminate these Terms, an applicable Order, cancel or suspend the Service without notice with respect to any Customer if it fails to receive payment(s) from Partner with respect to such Customer, and to recover its reasonable costs and expenses, expended in collection.
3.6. Refunds; Credits. If a refund or credit is specified as a remedy in the Terms of Service, or if New Relic elects to issue a refund or credit in its sole discretion, New Relic will remit to Partner the portion of the applicable amounts due to the Customer which were previously received by New Relic. Partner will remit such amount and any additional amount previously received by Partner as necessary to provide a full refund or credit to Customer. Partner will issue any such refund or credit within 10 days of receipt of such amounts from New Relic. Notwithstanding the foregoing, New Relic may issue any refund or credit directly to the applicable Customer (and in such case Partner will remit to New Relic or such Customer, as New Relic may direct, the amounts of such refund or credit for which Partner is responsible, if any).
4. Partner Obligations.
4.1. Conduct. Partner will conduct itself in a professional manner that reflects positively on New Relic and its affiliates. Partner will not represent itself as an agent or employee of New Relic or its affiliates, make any representation, warranty or commitment on New Relic’s or its affiliates’ behalf or describe New Relic, the Service, or its offerings except in a manner consistent with written descriptions provided by New Relic for such purpose. Partner will not engage in any deceptive, misleading, illegal or unethical practices, including any misuse of the Brand Elements, and will comply with all applicable Laws in its performance of this Agreement, including Anti-Corruption Laws, and will not give, offer or promise any item of value to any official, person or entity in violation of any Anti-Corruption Laws. None of Partner’s principals or staff are agents or representatives of governments (as defined or identified by local Law, regulation or custom) or government agencies in the country where Customer is located. Partner will not take any action intended, or would reasonably be expected, to harm New Relic, its affiliates, or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity of New Relic. Partner will at all times conduct itself according to the highest standard of business ethics.
4.2. Forecasts. Upon New Relic request, Partner agrees to participate in regular New Relic management reviews covering issues such as Customer account reviews, lead status, and marketing efforts.
4.3. Training. Partner will use New Relic’s support materials and Documentation to train its own dedicated personnel, such that they are reasonably capable of meeting Customer onboarding needs, including but not limited to: (i) how Customer may access and use the applicable Service; (ii) how Partner and Customer may escalate issues to New Relic via the New Relic Support Center (https://support.newrelic.com/), and; (iii) how Customer may utilize New Relic’s online technical community (https://discuss.newrelic.com/categories) and the Documentation to support their own use of the Service. Further, Partner agrees to complete any additional training activities and requirements specified by New Relic. Any training will be provided at Partner’s expense. Partner will reimburse New Relic for reasonable travel and lodging expenses incurred by New Relic in connection with any training.
4.4. Books and Records. Partner agrees to maintain complete, clear and accurate records of all Orders of Customer transactions completed with respect to this Agreement. Upon 10 days’ notice, Partner will permit New Relic or its representative to review such records and any other books and records of Partner which relate to Partner’s performance under this Agreement to ensure Partner’s compliance with its obligations. Any such review will be conducted during normal business hours and in a manner designed to cause minimal impact on Partner’s ordinary business activities. Partner will maintain all records required under this Agreement for at least three years following expiration or termination of this Agreement (or such longer period as required by Law).
4.5. Translations. New Relic makes all support materials and Documentation available in English and Japanese. While New Relic does not restrict Partner from translating such materials into other languages (“Translations”), New Relic does not review, approve, or warrant the accuracy or completeness of any such Translations. Partner’s use or provision of Translations to Customer is at Partner’s own risk, New Relic disclaims any and all liability related to Partner’s and/or Customer’s reliance on or use of Translations. Further, with respect to any Translations created or used by it, Partner will: (1) ensure the Translations are accurate and conform with New Relic’s source materials and are promptly updated to conform with and any updates thereto; (2) inform Customer that Translations are provided for convenience only and not endorsed, provided, or warranted by New Relic; and (3) comply promptly with any request from New Relic to cease to provide, delete, or correct any Translations. Notwithstanding anything to the contrary herein, by providing Translations to a Customer, Partner assumes the sole responsibility for supporting such Customer’s use of the Service and will do so until any support issue for such Customer, associated with such Translations, is resolved. While Partner remains solely responsible for such support, it may request New Relic’s assistance by escalating in English any such support issues to the New Relic Support Center on behalf of its Customer, and New Relic will use reasonable efforts to provide support in English. For the avoidance of doubt, New Relic provided Documentation in the English language will control in all instances and with respect to any conflict with a Translation.
5. Ownership; Confidential Information.
5.1. Ownership. Partner acknowledges that it is obtaining only a limited right to market and accept orders for the Service and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Partner under these Terms. Except for Partner’s use rights in these Terms, New Relic or its suppliers retain all right, title and interest (including all intellectual property rights, including, without limitation, that under Articles 27 and 28 of the Copyright Act of Japan and those to be protected in future) in and to the Service and its Brand Elements (including all goodwill arising from their use). Further, Partner acknowledges that the Service consists of online hosted services, and that neither Partner nor Customer has a right to obtain any underlying code of the Service. At all times, New Relic and its affiliates will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations provided by Partner relating to the Service or New Relic’s partner program. Even where Partner or its Customer has any moral rights (including chosakusha jinkakuken under Articles 18 to 20 of the Copyright Act of Japan) with respect to any Feedback, Partner shall not exercise, or cause its Customer to exercise, such moral right against New Relic and its affiliates.
5.2. Confidentiality Obligations. As receiving Party, Partner will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in the Agreement or with the consent of New Relic or its affiliates and (b) only use Confidential Information to fulfill its obligations and exercise its rights in the Agreement. Partner may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 5.2 (Confidentiality Obligations) and they are bound to confidentiality obligations no less protective than this Section. Except as set forth herein, Partner will protect the Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the Partner uses to protect its own information of similar character. The obligation of confidentiality will survive termination of this Agreement for a period of three (3) years.
5.2.1. Exclusions. These confidentiality obligations do not apply to information that the Partner can document (a) is or becomes public knowledge through no fault of the Partner, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations, or (d) it independently developed without using the Confidential Information. Partner may disclose Confidential Information if required by Law, subpoena or court order, provided (if permitted by Law) it notifies New Relic in advance and cooperates in any effort to obtain confidential treatment. Further, Partner may retain one copy of any Confidential Information, to the extent required to comply with Law to which the receiving Party is subject; provided, that Partner will continue to be bound by the confidentiality provisions of these Terms with respect to any Confidential Information retained.
5.2.2. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. A party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 5.2 (Confidentiality Obligations).
6.1. Partner Marketing. New Relic will provide appropriate language for Partner to utilize in any of its publicity or marketing material, which such information will not be modified in any way without New Relic’s prior written consent. Partner will not describe the Service or its functionality to the public or Customer in a way that implies that the Service is owned or has been developed by Partner. On termination of these Terms, Partner will cease use of the marketing materials of New Relic.
6.2. Use of Brand Elements. During the Term, subject to these Terms, New Relic grants Partner the right to use and display its Brand Elements solely to identify the Parties relationship under this Agreement to Customer as set forth in Section 6.3 (Approvals and Usage Limits). Partner will not acquire any rights of ownership to any Brand Elements. Upon termination of these Terms, Partner will cease its usage of the Brand Elements.
6.3. Approvals and Usage Limits. Use of the Brand Elements is subject to New Relic’s prior approval and any usage guidelines it provides in writing, including those located at https://newrelic.com/about/media-assets. In addition, any press release or other public announcement relating to these Terms must be approved by New Relic in advance. Partner will promptly cease any problematic use of the Brand Elements upon New Relic request. Partner will not register, or attempt to register, any trademark or domain name using or similar to any Brand Elements, and if Partner has, Partner agrees to immediately effect transfer of such domain name to New Relic or its affiliates without charge.
7. Warranties. Partner represents, warrants, and covenants that: (i) it has the right to enter into and perform its obligations in this Agreement, without any third-party consents or conflicts with any other agreement; and (ii) it is duly organized, validly existing and in good standing in the jurisdiction of its formation and is qualified and licensed to do business and in good standing in every jurisdiction where qualification and licensing is required for purposes of this Agreements.
8. Customer Warranty; Disclaimer; Support.
8.1. Customer Warranty. New Relic will provide any warranty to Customer in accordance with the Terms of Service. New Relic makes no warranty directly to Partner regarding the Service. Any refund provided as a remedy pursuant to the Terms of Service will be provided in accordance with Section 3.6 (Refunds; Credits).
8.2. Disclaimer of Warranties. THE SERVICE, NEW RELIC’S AND ITS AFFILIATES BRAND ELEMENTS, TECHNICAL SERVICES, DOCUMENTATION AND OTHER INFORMATION, SERVICES, SUPPORT, AND MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE. NEW RELIC, ITS AFFILIATES, AND ITS SUPPLIERS DISCLAIM AND MAKE NO ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. NEW RELIC AND ITS AFFILIATES MAKE NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICE OR ANY RESULTS TO BE ACHIEVED THEREFROM.
8.3. Support. Partner may not offer any support with respect to the Service to Customer. New Relic will provide support to Customer in accordance with terms of the Terms of Service, either directly or through Partner (if the support ticket is submitted by Partner on behalf of its Customer), subject to Partner’s support obligations specified herein.
9.1. Partner Indemnification. Partner will defend New Relic, its affiliates, officers, directors, agents, employees, resellers or other partners and licensors (“New Relic Indemnified Parties”) from and against any third-party claim to the extent arising out of or relating to: (a) Partner’s breach or alleged breach of Sections 2 (Partner Activities), 3.6 (Refunds; Credits), 4 (Partner Obligations), or 12 (Export Law), or (b) any non-New Relic product or service offered by Partner to Customer (each, a “New Relic Claim”), and will indemnify and hold harmless the New Relic Indemnified Parties against any damages or costs awarded against the New Relic Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by Partner resulting from the New Relic Claim.
9.2. New Relic Indemnification. New Relic will defend Partner, its affiliates, officers, directors and employees (the “Partner Indemnified Parties”) from and against any third-party claim to the extent that it is based on a valid claim that: (a) the Service when made available for sale as authorized under these Terms infringes a valid, enforceable U.S. or Japanese patent, copyright, or trademark, or (b) the Brand Elements when used as authorized under these Terms infringe a third party’s valid, enforceable U.S. trademark or copyright (each, a “Partner Claim”), and will indemnify and hold harmless the Partner Indemnified Parties against any damages or costs awarded against the Partner Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by New Relic resulting from the Partner Claim.
9.3. Procedures. Subject to the terms set forth in Section 9 (Indemnification), an indemnifying Party will have the full responsibility for and control of the defense, at its sole cost and expense (including any settlement), of any suit or proceeding; provided, however, that (a) the indemnifying Party is promptly notified in writing of the claim, (b) the Parties will reasonably cooperate with and inform each other of the progress of such litigation and settlement, at the indemnifying Party’s expense for reasonable out-of-pocket costs. The indemnifying Party may not settle any claim without the indemnified Party’s prior consent if settlement would require the indemnified Party to take or refrain from taking any action (other than relating to the marketing or use of the Service, when New Relic is the indemnifying party) or admit fault. The indemnified party may participate in a claim with its own counsel at its own expense.
9.4. Mitigation and Exceptions. If New Relic determines that a Service is at risk of being subject to a claim of infringement, New Relic may notify Partner to cease reselling or marketing the Service, or a portion thereof, in which case Partner will immediately cease all resale and marketing of such Service. In addition, at New Relic’s option and expense, New Relic may: (a) procure rights for Partner to continue reselling or marketing the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality, or (c) terminate this Agreement and reimburse the Partner for any prepaid, unused fees for such Service which will not be provided by New Relic to Customer(s) as of the date of such termination and which have not otherwise been refunded to a Customer. New Relic will have met the obligations of this Section 9 (Indemnification) by paying for the costs to litigate a Partner Claim to conclusion and paying the final judgment awarded to the third-party claimant (and any costs or fees awarded to the third party as part of such judgment), or by paying to settle the Partner Claim (including costs incurred by Partner to reach the settlement). Additionally, New Relic’s indemnification obligations will not apply to the extent a claim is based on any: (i) unauthorized use of the Service or to trials or other free or evaluation use (including Demonstration Use); (ii) New Relic Claim; (iii) infringement resulting from any Party’s (other than New Relic’s) modification of the Service or use of the Service in combination with items not provided by New Relic; (iv) to any unsupported release of the Service or to any third-party code (including open source software) contained within the Service; or (v) if Partner settles or makes any admissions about a claim without New Relic’s prior consent. This Section 9 (Indemnification) sets out New Relic’s sole and exclusive obligations and Partner’s sole and exclusive remedies regarding infringement or misappropriation of third-party intellectual property rights of any kind.
10. Limitation of Liability.
10.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR NEW RELIC’S AFFILIATES NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, DATA, PROFITS, REVENUE OR GOODWILL, FAILURE OF SECURITY MECHANISMS, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSSES OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (EVEN IF ADVISED OF THEIR POSSIBILITY IN ADVANCE).
10.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS AND SPECIAL CLAIMS, NEW RELIC’S, ITS AFFILIATES’ (AND ITS SUPPLIERS’) LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS ACTUALLY PAID BY PARTNER TO NEW RELIC DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
10.3. Special Claims. NEW RELIC’S, ITS AFFILIATES’ (AND ITS SUPPLIERS’) LIABILITY ARISING OUT OF OR RELATED TO SPECIAL CLAIMS UNDER THIS AGREEMENT IS LIMITED TO THREE TIMES (3X) THE AMOUNTS ACTUALLY PAID BY PARTNER TO NEW RELIC DURING THE PRIOR 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. “Special Claims” means amounts payable to third parties for Partner Claims under Section 9.2 (New Relic Indemnification).
10.4. Excluded Claims. “Excluded Claims” means (a) with respect to Partner’s liability, any claims arising out of or related to Sections 2 (Partner Activities) or 4 (Partner Obligations), (b) amounts payable to third parties under Partner’s obligations in Section 9 (Indemnification), (c) breach of Section 5 (Ownership; Confidential Information), and (d) death, bodily injury, or damage to real property caused by either Party.
10.5. Nature of Claims and Failure of Essential Purpose. The Parties agree that the waivers and limitations specified in this Section 10 (Limitation of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms are found to have failed of its essential purpose.
11. Term; Termination.
11.1. Term. Unless terminated, these Terms will commence on the Effective Date and remain in effect for the Customer Commitment Term and any subsequent renewal commitment term or Order entered into by Partner and New Relic on Customer’s behalf (the “Term”).
11.2. Termination. Either Party may terminate these Terms if the other Party: (i) fails to cure a material breach of these Terms within thirty (30) days after notice of such breach, or (ii) if either Party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, ceases operation without a successor, commences a case under applicable bankruptcy Laws, or files a petition seeking reorganization. New Relic may terminate these Terms for any or no reason upon written notice to Partner. New Relic may terminate these Terms immediately due to breach by Partner of Sections 2.1 (Offering of the Service) or 2.5 (General Restrictions) or applicable Law.
11.3. Effects of Termination. In the event of any termination of these Terms, Partner will: (a) immediately cease and have no right to market or accept orders for the Service, (b) cease use of and terminate access to the Service, (c) cease use of the Brand Elements, (d) return to New Relic all property of New Relic or its affiliates (including Confidential Information) and upon New Relic request promptly certify in writing that Partner has done so, and (e) immediately pay New Relic any outstanding unpaid amounts and any amounts which come due under any Order accepted prior to the termination date. New Relic or its affiliates will have no liability to Partner of any type arising from termination of these Terms in accordance with its terms. Notwithstanding the foregoing, Customer will have the right, subject to: (i) Partner’s or Customer’s, as applicable, timely payment obligations, and (ii) Customer’s compliance with the Terms of Service and any Passthrough Terms, to continue to use the Service or Technical Services through the expiration of the Commitment Term. Partner may not extend or renew any subscriptions after the Term and will not have a right to any compensation for any subsequent extensions or renewals
12. Export Law; Compliance. In its use and other activities related to the Service, Partner acknowledges and that it is aware of, understands, has complied with, and will comply with, all applicable Laws, restrictions, regulations, including the United States Export Administration Act or any other import or export Laws, including the Foreign Exchange and Foreign Trade Act of Japan (“Export Laws”). Partner (a) represents and warrants that it and its principal and staff are not, and that it will not market the Service to any party that is, listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (b) will not (and will not permit anyone else to) access or use the Service in China or in violation of any U.S. export embargo, prohibition or restriction.
13. Miscellaneous. Each Party is an independent contractor in relation to the other Party. Nothing in these Terms will be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the Parties for any purpose. Neither Party will have any right or authority to act on behalf of, or to obligate or bind the other, and neither Party will represent to any third party that it has such right or authority. Except for payment obligations, neither Party is liable for any delay or failure to perform its obligations in these Terms due to any cause directly or indirectly beyond its reasonable control, provided that each Party will take commercially reasonable steps to minimize any delays or failures. No failure of either Party to exercise or enforce any rights under these Terms will act as a waiver of such rights. Partner may not assign any of its rights or delegate any of its obligations under these Terms without New Relic’s prior written consent. New Relic may assign any of its rights or delegate any of its obligations under this Agreement without Partner’s prior written consent. Any purported assignment or delegation in violation of this Section 13 (Miscellaneous) is null and void. If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and the unenforceable provision will be interpreted so as to render it enforceable while approximating the Parties’ intent as closely as possible. All notices and consents required or permitted to be given in these Terms will be in writing to the parties at the addresses designated in the applicable Order or to such other address as either Party may designate to the other by written notice and will be effective upon receipt. Written notice will be made in the form of a registered letter, confirmed facsimile transmission, or acknowledged receipt of electronic mail. There are no third-party beneficiaries to this Agreement. Any disputes arising out of or related to this Agreement will be governed by and construed in accordance with the Laws of Japan, without giving effect to its conflicts of Laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the Parties consent to exclusive jurisdiction and venue in the Tokyo District Court as the court of first instance. Injunctive or other emergency relief may be sought by New Relic or its affiliates in any competent court for breaches of Sections 2 (Partner Activities), 4.1 (Conduct), 5 (Ownership; Confidential Information), and 6 (Marketing). These Sections survive termination or expiration of this Agreement: 2.4 (Customer Terms; Enforcement), 2.5 (General Restrictions), 3.2 (Taxes; Interest), 3.5 (Customer Pricing; Collection), 3.6 (Refunds; Credits), 4.1 (Conduct), 4.3 (Books and Records, 5 (Ownership, Confidentiality), 8.1 (Disclaimer of Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11.3 (Effect of Termination), 12 (Export Law), 13 (Miscellaneous), 14 (Glossary). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have. Each Party hereby represents and warrants to the other Party that (i) its officers or employees are not, or are not associated with any anti-social forces (hanshakaitekiseiryoku), (ii) no anti-social forces are involved with its management, and (iii) it or its officers or employees do not, directly or indirectly, have monetary or other relationship with any anti-social forces, or provide funds under any name to or support any anti-social force, and covenant to the other Party that it shall not do anything which may result in any of the items described above. Each Party may promptly terminate this Agreement by notice to the other Party in case of breach of the representations and warranties or covenants in the preceding sentence. These Terms are in the English language only, which language will be the governing language and controlling in all respects. This Agreement, and any terms referenced hereto, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. Any terms or conditions in Partner’s purchase order or any other payment related documentation are void. In the event of any conflict between these Terms and the Order, the Order will govern.
“Anti-Corruption Laws” means all applicable anti-bribery and anti-corruption laws and regulations, including the United States Foreign Corrupt Practices Act, U.K. Bribery Act 2010, 2010 and the Unfair Competition Prevention Act of Japan, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
“Brand Elements” means the trademarks, service marks, names, logos, images, collateral or similar materials provided by New Relic and its affiliates for use under this Agreement.
“Confidential Information” means the information disclosed to Partner under these Terms, or to which Partner gains access to in connection with this Agreement, that is designated as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. New Relic’s Confidential Information includes the terms and conditions of this Agreement and any underlying software, technical or performance information about the Service. Confidential Information may also include the confidential or proprietary information of a third party disclosed by New Relic to Partner.
“Customer” means the end-user customer of the Service set forth on the applicable Order.
“Documentation” means the technical guides and documentation made available from the dedicated ‘Documentation’ page of the New Relic website.
“Laws” means all relevant laws, regulations, requirements from a regulatory authority, and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
“Order” means New Relic’s standard order for the placement of orders for the Service by Partner on behalf of Customers.
“Service” means one or more New Relic or its affiliates software-as-a-service solutions or related offerings identified on an applicable Order.
“Technical Services” means any training, enablement or other technical services provided by New Relic or its affiliates related to the Service, as identified in an Order. Technical Services do not form a part of the Service.
“Terms of Service” means the then-current version of New Relic K.K.’s standard customer agreement governing use of the Service and Technical Services, located at https://newrelic.co.jp/termsandconditions/paid.