Last Updated: December 5, 2017
These Reseller Terms (the “Terms”), together with any Order Form(s) entered into from time-to-time (an “Order Form”), the New Relic Terms of Service located at https://newrelic.com/terms (the “Terms of Service”, collectively the Terms, Order Form and the Terms of Service, the “Agreement”) by and between New Relic, Inc., a Delaware corporation, having its principal place of business at 188 Spear St, Suite 1200, San Francisco, CA 94105 (“New Relic”) and Partner (“Partner”, New Relic and Partner individually as “Party”, or together “Parties”). These Terms shall become binding once: (i) Partner indicates its acceptance by checking the box, “I agree”, or (ii) Partner signs an applicable Order Form in the manner provided by New Relic that references these Terms (the “Effective Date”). These Terms do not have to be signed to be binding. By indicating its acceptance to the Terms and signing an applicable Order Form, Partner assents to these Terms and the Terms of Service and represents that: (1) Partner has read, understands, and agrees to be bound by these Terms and the Terms of Service, (2) Partner is of legal age to form a binding contract with New Relic, and (3) Partner has the authority to enter into these Terms and the Terms of Service on behalf of the company or other organization that is named as Partner, and to bind that entity to these Terms and the Terms of Service.
New Relic reserves the right to amend these Terms from time-to-time, in whole or in part, in which case the updated Terms shall supersede the prior version. New Relic will also update the “Last Updated” date at the top of the Terms. Any changes to the Terms will be effective immediately for new partners and, for all other partners, any changes to the Terms will be effective five (5) business days after posting notice of such changes. Please check the website that contains these Terms regularly to view New Relic’s then-current terms and conditions for Partner(s).
In consideration of the mutual agreements contained herein and intending to be legally bound hereby, the Parties agree as follows:
1. Non-Exclusivity. These Terms do not grant any exclusivity to Partner.
2. Ownership and License.
2.1. Ownership. As between New Relic and Partner, New Relic retains all right, title and interest (including all intellectual property rights and other rights) in and to the New Relic products and services (the “New Relic Service”), subject only to the limited subscription grant expressly set forth herein. Partner shall not acquire any rights of ownership to any copyrights, patents, trade secrets, trademarks or other intellectual property of New Relic. Partner will not claim ownership or proprietary rights in the New Relic Service, nor shall Partner take any action that jeopardizes New Relic’s or its suppliers’ proprietary rights or acquire any right in the New Relic Service or Confidential Information (as further defined). New Relic or its suppliers will own all rights in any copy, translation, modification, adaptation, or derivation of the New Relic Service or other Confidential Information, including any improvement or development thereof. At New Relic’s request, Partner shall execute and deliver to New Relic any instrument that may be appropriate to assign or perfect these rights in New Relic or its supplier(s).
2.2. License. New Relic hereby grants Partner a non-exclusive, limited, nontransferable, non-sublicensable, license to market, demonstrate, distribute, promote, offer for sale, sell and renew the New Relic Service only to Potential Customers (as defined below) in the Territory (as further defined), with such use of the New Relic Service by the Potential Customer, or Customer (as further defined), governed under the Terms of Service (the “License”). These Terms do not provide Partner with the right to access or use the New Relic Service for its own use or benefit. For the purposes of these Terms, “Territory” shall mean: (i) the geographic location or jurisdiction approved in writing by New Relic, at its sole discretion, as designated by Partner in its application process to become a New Relic partner, (ii) as provided in an approved Reseller Opportunity Registration Form (as further defined) related to a Potential Customer, or (iii) as indicated in an Order Form executed by the Parties; provided, that any changes to the Territory must be separately approved in writing by New Relic, and such approval must be received prior to Partner executing a Customer Services Agreement (as further defined) with its first Potential Customer in each jurisdiction of the Territory. This License does not grant Partner the status of an authorized reseller of New Relic, which status is subject to: (i) entry into these Terms, and (ii) compliance with certain minimum training, onboarding, certification and revenue requirements associated with the applicable New Relic partner program tier, as may be updated by New Relic, at its sole discretion, from time-to-time, that Partner has applied to or wishes to maintain for the Term (as further defined). Any rights not expressly granted herein are reserved by New Relic.
3. Customer Relationship.
3.1. Customer Relationship. Prior to discussions or marketing for resale of the New Relic Service to a potential customer (the “Potential Customer”), Partner shall notify New Relic in writing or through a submission on the New Relic partner online portal (such writing or submission, the “Reseller Opportunity Registration Form”) of its desire to sell the specified New Relic Service to such Potential Customer. Partner shall also indicate in such Reseller Opportunity Registration Form the Territory of such Potential Customer. If New Relic determines that the Potential Customer opportunity and the applicable New Relic Service are an appropriate target for Partner, New Relic will respond to the Reseller Opportunity Registration Form and provide written confirmation that Partner may offer for sale the applicable New Relic Service to the Potential Customer (the “Approval”). New Relic shall indicate in its Approval, at its sole discretion, whether the Potential Customer is a Partner “Sourced” or “Fulfilled” opportunity. In the event an Approval does not provide such a designation, the Potential Customer opportunity shall be deemed “Fulfilled”. New Relic will not unreasonably withhold or delay its Approval, which shall only be refused if the Potential Customer is: (i) already an opportunity known to New Relic, (ii) a current customer of New Relic, or (iii) an entity that New Relic does not wish to be associated with, in New Relic’s sole discretion. If a Potential Customer opportunity falls within clauses (i) or (ii) of the foregoing sentence, New Relic may, at its sole discretion, still provide an Approval by expressly indicating that such Potential Customer may be approached as a “Fulfilled” opportunity only. Further, in the event a prior or existing New Relic customer opts to purchase its subscriptions to the New Relic Service through the Partner, such Customer will be deemed a “Fulfilled” opportunity only. Upon receipt of an Approval, Partner may market or offer the approved New Relic Service to such Potential Customer during the Term (as further defined). For the avoidance of doubt, New Relic’s failure to send an Approval or a denial notice to Partner shall in no way be construed as New Relic’s approval for Partner to market or otherwise offer for sale New Relic Service to a Potential Customer. Furthermore, Partner understands and agrees that New Relic responds to Reseller Opportunity Registration Forms in the order in which they are received. Partner acknowledges and agrees, and shall ensure that each Customer acknowledges and agrees in its Customer Services Agreement, that the New Relic Service and the pricing for the New Relic Service (whether now existing or hereinafter developed) may change at any time.
3.2. Pass Through Terms. Each Customer’s (as defined below) use of the New Relic Service is governed under the Terms of Service and, if applicable, the Territory Restricted Subscription (as further defined) terms and conditions, for the Commitment Term as set forth in the Order Form. Partner shall only resell the New Relic Service to Customer if: (i) Partner and Potential Customer, for whom Partner has secured an Approval, enter into a legally binding agreement (the “Customer Services Agreement”) that expressly references the Terms of Service; and (ii) Partner and New Relic enter into an Order Form detailing the New Relic Service, pricing, payment terms and fee structure applicable to such Potential Customer. Partner shall: (a) notify, within the Customer Services Agreement, Potential Customer that the New Relic Service is subject to the Terms of Service and that by placing an order with Partner, the Potential Customer agrees to the Terms of Service, (b) include a link to the Terms of Service in each quotation and order form Partner issues to the Potential Customer, and (c) obtain written confirmation from the Potential Customer, within the Customer Services Agreement, of its acceptance of the Terms of Service prior to or concurrently with the acceptance of the order by Partner. Upon execution of the Customer Services Agreement and the applicable Order Form (between New Relic and Partner), Potential Customer is deemed to be a “Customer”. Upon New Relic’s request, Partner shall provide New Relic with a copy of the Customer Services Agreement.
3.3 Territory Restricted Subscription. The provisions indicated in this Section 3.3 shall apply to Partner and to any Potential Customer to the extent that such Potential Customer’s subscription is a “Territory Restricted Subscription” as specified in the applicable Order Form.
In addition to the requirements set forth in Section 3.2, the following terms shall apply to a Territory Restricted Subscription (as further defined), the Customer Services Agreement with Potential Customer must contain details regarding (1) the terms and conditions associated with a “Territory Restricted Subscription” as specified in Section 3.3.1, and (2) New Relic’s audit rights of New Relic as specified in Section 3.3.2. Separately, Partner and New Relic will enter into an Order Form that details the New Relic Service, the territory restriction of Potential Customer’s use, the pricing and payment terms between Partner and New Relic, and references New Relic’s audit rights associated with Potential Customer’s subscription to the New Relic Service.
3.3.1. Territory Restricted Subscription License Restrictions. If a Potential Customer opportunity qualifies the Partner for a Territory Restricted Subscription Discount (as defined in Section 4.3.1), and as set forth in the Pricing Schedule (as described in Section 4.3), then such Potential Customer’s, and Customer’s (upon signing of the Customer Services Agreement and Order Form), use of the New Relic Service is restricted to solely within the Territory specified in the applicable Order Form (the “Territory Restricted Subscription”). Additional terms regarding a Customer’s usage of the New Relic Service under a Territory Restricted Subscription shall be set forth in an applicable Order Form and, if applicable, Partner shall include such terms in its Customer Services Agreement.
184.108.40.206. Purchase of Non-Territory Restricted License. If after purchasing a Territory Restricted Subscription, Customer desires to utilize a non-Territory Restricted Subscription, Partner shall consult with New Relic regarding the pricing related to any such incremental sale of a non-Territory Restricted Subscription to Customer. Sale of a non-Territory Restricted Subscription by Partner shall require New Relic’s further written approval, with the Partner’s purchase price for such non-Territory Restricted Subscription to the New Relic Service to be determined by New Relic, in its sole discretion.
3.3.2. Audit. Customer’s use of the New Relic Service in accordance with a Territory Restricted Subscription shall be subject to New Relic audit, using New Relic’s internal systems, to determine Customer’s compliance with an applicable Order Form, the Terms of Service, and the Territory Restricted Subscription. If such audit reveals that the Customer is not in compliance with the Territory Restricted Subscription, Partner shall cure Customer’s non-compliance in accordance with Section 4.3.2. Any other issues of non-compliance by Customer are subject to the obligations specified in an applicable Order Form and/or the Terms of Service.
3.4. Support. New Relic will provide support to Partner’s Customers, either directly or through Partner (if the support ticket is submitted by Partner on behalf of its Customer), subject to Section 3.4.1.
3.4.1. Partner Support Obligations. Partner shall use New Relic’s support materials and documentation located at https://docs.newrelic.com/docs (“Documentation”) to train its own dedicated personnel, such that they are reasonably capable of meeting the onboarding needs of Customers and Potential Customers, including but not limited to: (i) how Customers access the applicable New Relic Service; (ii) how Customers can install, upgrade or downgrade their New Relic Agents; (iii) how Partner and Customers can escalate issues to New Relic via the New Relic Support Center (https://support.newrelic.com/), and; (iv) how Customers may utilize New Relic’s online technical community (https://discuss.newrelic.com/categories) and the Documentation to support their own use of the New Relic Service.
3.4.2. Translations. New Relic makes all support materials and Documentation available only in English. 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. Therefore, Partner’s use or provision of Translations to Customers is at Partner’s own risk, New Relic disclaims any and all liability related to Partner’s and/or Customers’ reliance on or use of Translations. Further, with respect to any Translations created and/or used by it, Partner shall: (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 its Customers 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 Customers’ use of the New Relic Service and shall do so until any support issue for such Customer 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 Customers, and New Relic shall use reasonable efforts to do so in English. For the avoidance of doubt, the Documentation provided by New Relic will control in all instances with respect to any conflict with a Translation.
4. Pricing and Payment.
4.1. Fees. Partner is solely responsible for providing complete and accurate billing and contact information to New Relic. Partner shall determine, in its sole discretion, the retail price that Partner shall charge to Customer for purchases of the New Relic Service. New Relic will invoice Partner in advance, subject to these Terms and in an applicable Order Form, for the Commitment Term as set forth in the Order Form. New Relic: (i) invoiced charges are due per the Payment Terms set forth in the Order Form, (ii) fees are quoted and payable in US Dollars, (iii) fees are based on subscriptions purchased and not actual usage, and (iv) payment obligations are non-cancelable and fees paid are non-refundable. Unless otherwise detailed in the Order Form, all fees are due net 30 days after date of invoice. If Partner receives the Discount (as set forth in Section 4.3.1.) or any other discount set forth in a Pricing Schedule (as described in Section 4.3), Partner will not be eligible for any other payments, discounts or other fees pursuant to any other agreement. For the avoidance of doubt, the Discount (or any other discount included in the Pricing Schedule) shall not apply to any New Relic Expert Services or New Relic Premium Support. Partner shall be solely responsible for payment of fees to New Relic and will pay any fees invoiced regardless of whether Partner collects fees from Customer, including as set forth in Section 4.3.2., if applicable. New Relic must receive written notice of any disputed charges from Partner within fifteen (15) days after the invoice date or Partner will be deemed to have waived the right to dispute fees. If Partner fails to make payments when due, then in addition to its other rights and remedies, New Relic will have the right to terminate these Terms and any applicable Order Form, terminate the Customer account without notice, and to recover its reasonable costs and expenses, expended in collection. The New Relic Service is deemed accepted upon its acceptance of these Terms and the execution of the applicable Order Form.
4.2. 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 shall pay New Relic interest 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.
4.3. Partner Pricing. New Relic will from time-to-time, at New Relic’s sole discretion, provide Partner, or will provide to Partner upon its reasonable request, with a pricing schedule that describes the current pricing and discounts that may be available to Partner for the New Relic Service (the “Pricing Schedule”). If the Potential Customer opportunity fulfills the eligibility requirements for the Territory Restricted Subscription Discount (as further defined), the Partner may receive a percentage discount off the then current list price for such New Relic Service as indicated in the Pricing Schedule. Partner is strictly prohibited from any promotion or advertising of the pricing between New Relic and Partner pursuant to this these Terms or an applicable Order Form. These Terms and the License 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 New Relic Service to an entity different than the Customer set forth in the Order Form. Notwithstanding the License set forth in Section 2, New Relic reserves the right to renew the New Relic Service with Customer directly if Partner: (z) does not renew Customer’s subscription within thirty (30) days of the Renewal Date specified in the Order Form, or (y) 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 Form. The information contained within the Pricing Schedule is subject to change at any time, without notice to Partner. Partner should regularly consult with New Relic for up to date information.
4.3.1. Territory Restricted Subscription Discount. The provisions indicated in this Section 4.3.1. and 4.3.2. below shall apply to Partner and to any Potential Customer to the extent that such subscription is a “Territory Restricted Subscription” as specified in the applicable Order Form.
In order for a Potential Customer opportunity to qualify for a potential Territory Restricted Subscription Discount, such opportunity must fulfill the following requirements: (i) the Potential Customer opportunity is approved as “Sourced”, (ii) the quantities of the applicable New Relic Service to be sold to Potential Customer may not exceed the quantities expressed in the Pricing Schedule, (iii) the Potential Customer has its corporate headquarters in the Territory specified in the Order Form, for which Partner has received an Approval, and (iv) the Potential Customer’s usage of the New Relic Service and all of its users is entirely located within the Territory. The foregoing shall be defined as the “Territory Restricted Subscription Discount” or a “Discount”. If a Potential Customer opportunity does not meet the requirements set forth in clause (ii) of this Section, New Relic may still determine, in its sole discretion, to provide Partner with a Discount, but the amount of such Discount will be negotiated on a case by case basis. New Relic shall have the sole authority to determine if a Potential Customer opportunity is eligible for such Discount.
4.3.2. Remedy for Customer Non-Compliance of Territory Restricted Subscription. In accordance with Section 3.3.2., if an audit reveals that Customer is not in compliance with the Territory Restricted Subscription, New Relic may immediately terminate the Customer’s access to the New Relic Service and Partner shall: (i) upon written notice from New Relic, terminate the Customer Services Agreement, and (ii) within thirty (30) days of the date of New Relic’s written notice, pay any fees then due related to such Customer, including fees remaining for the full Commitment Term as specified in the applicable Order Form. New Relic will not provide a refund of any fees to Partner or Customer in the event of a termination pursuant to this Section.
4.4. Annual Revenue Commitment. Partner shall achieve the minimum annual revenue commitment set forth in the appropriate New Relic partner program tier, which Partner has applied to or wishes to maintain, for the annual Term (“Partner Commit”). New Relic, in its sole discretion, may update the Partner Commit from time-to-time. Partner should regularly review the New Relic partner program portal or consult with New Relic for up to date information. If Partner fails to meet the Partner Commit during any Term, the parties shall discuss the ramifications and Partner may lose its status: (i) as a New Relic “partner”, or (ii) in the designated tier.
5. License Restrictions; Feedback.
5.1. License Restrictions. Partner shall not, and shall not permit others to: (i) make any agreements, promises, covenants, representations, warranties or guarantees concerning New Relic or the New Relic Service that are inconsistent with, in addition to, or more onerous than the terms of this Agreement, provided, that Partner shall not be prohibited from entering into any additional terms with its customers not inconsistent with the foregoing; (ii) register, or attempt to register, any competing intellectual property rights to the New Relic Service or delete or tamper with any proprietary notices on or in the New Relic Service; (iii) conduct any benchmark tests or other evaluation of the New Relic Service without New Relic’s express prior written consent; (iv) use the New Relic Service for any purposes other than those expressly set forth in this Agreement; (v) modify, decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or create source code for the New Relic Service; (vi) use, distribute, copy, duplicate, or otherwise reproduce all or any part of the New Relic Service other than as permitted pursuant to this Agreement; or (vii) use any New Relic Confidential Information (as further defined) or intellectual property without the prior written approval of New Relic: (1) to create, distribute, sell, license, market or promote any Partner or third party technology or service; or (2) in conjunction with any third party technology. Further, no distribution by Partner of the New Relic Service, other than as provided in this Agreement, shall be permitted without the express prior written consent of New Relic. Additional restrictions on Partner’s use of the New Relic Service, if any, are outlined in each Order Form and/or in the Pricing Schedule.
5.2. Feedback. At all times, New Relic will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations provided by Partner relating to the New Relic Service or New Relic’s partner program and such will not be considered Confidential Information of Partner.
6. Confidential Information. “Confidential Information” means all confidential information in oral, written, graphic, visual, electronic or other form including, but not limited to, past, present and future business, financial and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formulae, analyses, trade secrets, ideas, inventions, discoveries, methods, processes, know-how, computer programs, source code, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings and any other data or information disclosed, or to which either Party gains access to in connection with this Agreement, and that such disclosing Party either identifies as confidential or secret in writing or that a reasonable person would consider confidential.
6.1. Unless falling into one of the exceptions below, the New Relic Service is the Confidential Information of New Relic. Confidential Information does not include data or information which: (a) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of receiving Party; (b) was known to receiving Party at the time of disclosure without an obligation of confidentiality, as demonstrated by competent evidence; (c) is disclosed after written approval of disclosing Party; (d) becomes known to receiving Party from a source other than disclosing Party without an obligation of confidentiality; or (e) is developed by receiving Party independently of disclosing Party’s Confidential Information as demonstrated by competent evidence.
6.2. Receiving Party will not: (y) disclose the Confidential Information to a third party or (z) use the Confidential Information for any purpose other than as permitted in these Terms without disclosing Party’s prior written approval. Receiving Party agrees to notify disclosing Party promptly of any unauthorized disclosure of Confidential Information and to use commercially reasonable measures to assist disclosing Party in remedying any such unauthorized disclosure. Except as set forth herein, receiving Party will protect disclosing Party’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which receiving Party uses to protect its own information of similar character. All Confidential Information of disclosing Party will remain disclosing Party’s sole property and receiving Party will have no interest in or rights with respect thereto except as expressly set forth in this Agreement. The obligation of confidentiality will survive termination of this Agreement for a period of three (3) years.
6.3. Notwithstanding the foregoing, receiving Party may disclose disclosing Party’s Confidential Information to the extent required: (a) to any employee, consultant, contractor, advisor or counsel who has a bona fide need to know in connection with these Terms and has executed a protective non-disclosure agreement with the receiving Party (or has a duty of confidentiality to the receiving Party) or (b) by operation of law, or by a court or governmental agency, securities exchange listing requirement or if necessary in any proceeding to establish rights or obligations under this Agreement; provided, that receiving Party shall, unless legally prohibited, provide disclosing Party with reasonable prior written notice sufficient to permit disclosing Party an opportunity to contest such disclosure. If receiving Party commits, or threatens to commit, a breach of its confidentiality obligations, disclosing Party shall have the right to seek injunctive relief from a court of competent jurisdiction.
7. Marketing. Subject to these Terms, Partner agrees to actively and diligently develop, promote, market, solicit orders for and sell the New Relic Service in a manner that reflects favorably on the goodwill and reputation of the Parties. Further, Partner shall not engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to New Relic or the New Relic Service, nor will Partner take any action intended, or would reasonably be expected, to harm New Relic 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. Partner shall not describe the New Relic Service or its functionality to the public, Potential Customer(s), or Customers, in a way that implies that the New Relic Service is owned or has been developed by Partner. Partner shall credit New Relic when referring specifically to the New Relic Service in any context. 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 approval. Notwithstanding anything to the contrary, all use (including in Partner’s communications with Potential Customers and Customers), distribution, publication of the “New Relic” name must be pre-approved in writing by New Relic. If New Relic has any concerns with respect to Partner’s usage of its marketing material, New Relic shall notify Partner and if requested, Partner shall promptly make any requested changes or cease such use. On termination of these Terms, Partner will cease use of the marketing materials of New Relic. Partner acknowledges that New Relic intends to directly and indirectly develop, promote, market, solicit orders for and sell and deploy the New Relic Service (and other related services) and New Relic’s prospects could also be prospects or current customers of Partner, and that any cooperation between the Parties with respect to such prospects will be decided on a case by case basis.
7.1 Trademark Usage. Each Party grants to the other a revocable, nonexclusive, nontransferable, royalty-free right to display such Party’s respective trademarks, service marks, and logos (the “Trademarks”) for the sole purpose of identifying the other as a "Partner”, subject to these Terms and such Party’s standard trademark usage guidelines. All Trademark usage will be subject to the approval of the other Party, which approval will not be unreasonably withheld or delayed. Neither Party shall acquire any rights of ownership to any Trademarks of the other Party. If a Party has any concerns with respect any usage of its Trademarks, it shall notify the other Party and if requested, the other Party shall promptly make any requested changes or cease all use of such Trademark. Upon termination of these Terms, each Party will cease its usage of the other Party’s Trademarks.
8. Warranties. Partner represents, warrants and covenants that: (i) it has the right to enter into this Agreement and perform its obligations in the manner contemplated herein; (ii) it has not entered into, nor will it enter into during the Term, any agreement with any third party that is in conflict with the rights granted herein; (iii) it is duly organized, validly existing and in good standing in the jurisdiction of its formation; (iv) it is qualified and licensed to do business and in good standing in every jurisdiction where qualification and licensing is required for purposes of this Agreement; (v) acceptance of this Agreement by Partner’s representative has been duly authorized by all necessary action of Partner; (vi) this Agreement will constitute the legal, valid and binding obligation of Partner, enforceable against Partner in accordance with its terms; (vii) it will not: (a) misrepresent the functionality of the New Relic Service, or (b) issue any warranty or representation regarding the New Relic Service not specified in this Agreement; (viii) it will not use New Relic’s Trademarks for purposes beyond the scope of this Agreement; (ix) each Customer Services Agreement will contain a reference to the Terms of Service URL and if applicable the terms and conditions associated with a Territory Restricted Subscription; (x) 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 (“Export Laws”) and all applicable U.S. and foreign anticorruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act and U.K. Bribery Act 2010; (xi) none of its principals or staff are agents or representatives of governments (as defined or identified by local law, regulation or custom) or government agencies in the Territory where Customer is located; and (xii) if the New Relic Service is identified as export controlled items under the Export Laws: (a) Partner will not resell the New Relic Service for use in prohibited countries, (b) Partner is not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea), and (c) Partner is not otherwise prohibited under the Export Laws from partnering with New Relic.
9. New Relic Warranties and Disclaimer. New Relic warrants to Partner that: (i) it has the right to enter into these Terms and perform its obligations in the manner contemplated herein, and (ii) when executed and delivered by New Relic, these Terms will constitute the legal, valid and binding obligations of New Relic, enforceable against New Relic in accordance with its terms. THE NEW RELIC SERVICE AND ALL RELATED SOFTWARE, DOCUMENTATION AND OTHER INFORMATION AND MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE AND NEW RELIC DISCLAIMS AND MAKES 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 NEW RELIC SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEW RELIC MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE NEW RELIC SERVICE OR SOFTWARE OR ANY RESULTS TO BE ACHIEVED THEREFROM.
10.1. Partner Indemnification. Partner will indemnify and (at New Relic’s option) defend New Relic, its affiliates, officers, directors, agents, employees, resellers or other partners and licensors from and against any claim, loss, cost, liability or damage, including reasonable attorneys’ fees, for which New Relic becomes liable arising from or relating to: (a) any claim of infringement or misappropriation of any intellectual property to the extent any such claim is caused by or related to actions taken or allowed by Partner, (b) Partner’s unauthorized marketing, sales, or use of the New Relic Service or any portion thereof, including the misrepresentation of the functionality of, or the issuance of any warranty or representation regarding, the New Relic Service or New Relic’s products or services not specified in this Agreement, (c) any breach by Partner of these Terms, including the failure to pass through the Terms of Service to Customer, (d) Partner’s violation or alleged violation of any applicable laws, or (e) related to the conduct of Partner’s business (each, a “New Relic Claim”).
10.2. New Relic Indemnification. New Relic will indemnify and defend Partner, its affiliates, officers, directors and employees from and against any third-party claim, suit, or proceeding, including reasonable attorneys’ fees, for which Partner becomes liable to the extent that it is based on a valid claim that the New Relic Service, when used in accordance with the Documentation, infringes a valid, enforceable United States patent or copyright (a “Partner Claim”). If New Relic determines that a New Relic Service is at risk of being subject to a claim of infringement, New Relic may notify Partner to cease reselling, marketing, advertising or promoting the New Relic Service, or a portion thereof, in which case Partner shall immediately cease all resale, marketing, advertising and promotion of such New Relic Service. In addition, at New Relic’s option and expense, New Relic may: (a) replace or modify the New Relic Service with substantially equivalent or replacement services so that such services are no longer infringing, (b) obtain for the Customer the right to continue using New Relic Service, or (c) terminate this Agreement and the New Relic Service and reimburse the Customer for any prepaid but unused New Relic Service fees as of the date of such termination. New Relic shall have met the obligations of this Section 10.2 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 shall not apply to the extent a claim is based on any: (i) New Relic Claim; (ii) the New Relic Service being modified by Partner, Customer, or a third party; (iii) the use, operation or combination of the New Relic Service with programs, data, equipment or materials not provided by New Relic, if the Partner Claim would have been avoided by using it without such programs, data, equipment or materials; (iv) in the case of a third party patent claim, compliance by New Relic with designs, plans or specifications furnished by Partner or Customer; or (v) Partner’s or Customer’s continuation of the allegedly infringing activity after being notified of the alleged infringement claim. The indemnification obligations set forth in this Section 10.2 are New Relic’s sole and exclusive obligations, and Partner’s sole and exclusive remedies with respect to infringement or misappropriation of third party intellectual property rights of any kind.
10.3. Conditions of Indemnification. Subject to the terms set forth in Section 10, an indemnifying party shall 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 shall reasonably cooperate with and inform each other of the progress of such litigation and settlement , at the indemnifying party’s expense, and (c) the indemnifying party shall not have the right to settle any such claim without the prior written approval of an officer of the indemnified party if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to, or admission or acknowledgment of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified party.
11. Limitation of Liability. NEW RELIC WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NEW RELIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING ANY SUCH DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE NEW RELIC SERVICE; THE PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY FAILURE OF THE NEW RELIC SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE NEW RELIC SERVICE; TERMINATION OR SUSPENSION OF AN ACCOUNT; TERMINATION OF THESE TERMS; OR ANY OTHER MATTER RELATING TO THE NEW RELIC SERVICE OR THESE TERMS. PARTNER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THESE TERMS OTHER THAN AS EXPRESSLY PROVIDED HEREIN. THE AGGREGATE LIABILITY OF NEW RELIC FOR ANY DAMAGES ARISING FROM OR RELATING TO THE NEW RELIC SERVICE OR RELATED DOCUMENTATION, INFORMATION OR MATERIALS OR THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: US$50,000 OR THE AMOUNTS PAID BY PARTNER TO NEW RELIC IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE FOREGOING AGGREGATE LIABILITY LIMITATION WILL NOT APPLY TO CLAIMS MADE UNDER SECTION 10.2, FOR WHICH THE AGGREGATE LIABILITY FOR PARTNER CLAIMS IS CAPPED AT FIVE TIMES THE FEES PAID IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE CAP ON LIABILITY IN THIS SECTION 11 SHALL NOT APPLY TO DEATH OR BODILY INJURY OR THE INFRINGEMENT OF PARTNER’S INTELLECTUAL PROPERTY RIGHTS, FOR WHICH THE LIABILITY SHALL BE UNLIMITED. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NEW RELIC HAS ENTERED INTO THESE TERMS IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN NEW RELIC AND PARTNER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATIONS APPLY EVEN IF THE NON-BREACHING PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.
12. Term; Termination.
12.1 Term. These Terms shall commence on the Effective Date and remain in effect for a period of one (1) year thereafter (“Initial Term”). Upon the conclusion of the Initial Term, these Terms will automatically renew for consecutive periods of one (1) year (“Renewal Term(s)”) unless either party notifies the other in writing of its desire that these Terms not renew at least thirty (30) days prior to the end of the then-current term. The Initial Term along with any Renewal Terms is referred to herein as the “Term”.
12.2 Termination. Either party may terminate these Terms for convenience upon the delivery of thirty (30) days prior written notice of such termination to the other party. New Relic may terminate these Terms immediately due to breach by Partner of Section 5.1 or applicable law. Either party may terminate these Terms upon written notice to the other party due to: (i) a material breach of such other party, which has remained uncured for a period of thirty (30) days from the date of delivery of written notice thereof to the breaching party, or (ii) if either party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization.
12.3 Effects of Termination. In the event of any termination, all licenses granted in these Terms to Partner shall immediately terminate, and Partner shall immediately return to New Relic all material belonging to New Relic or its licensors, including without limitation all copies of New Relic’s Confidential Information, and shall promptly certify to New Relic in writing that Partner has done so. Notwithstanding the foregoing, each Customer shall 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 the Territory Restricted Subscription, if applicable, to continue to use the New Relic Service through the expiration of the applicable Customer Services Agreement in effect at the time of termination. In no event shall Partner market, solicit or promote the New Relic Service or execute any Customer Services Agreements after termination.
13. Miscellaneous. Each Party is an independent contractor in relation to the other party. Nothing in these Terms shall 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 shall 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. Any purported assignment or delegation in violation of this Section 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 shall 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 shall be in writing to the parties at the addresses designated in the applicable Order Form or to such other address as either Party may designate to the other by written notice, and shall be effective upon receipt. Written notice shall be made in the form of a certified letter, confirmed facsimile transmission, or acknowledged receipt of electronic mail. There are no third-party beneficiaries to this Agreement. The provisions of these Terms, which by their nature survive termination or expiration, shall survive termination or expiration. Any disputes arising out of or related to this Agreement will be governed by and construed in accordance with the laws of the State of California, 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 state or federal courts located in San Francisco, California. Injunctive or other emergency relief may be sought by either Party in any competent court for breaches of Section 2, 4.3, 5, 6 7, or 12.3. These Terms are in the English language only, which language shall be the governing language and controlling in all respects. This Agreement 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. In the event of any conflict between these Terms and the Order Form, the Order Form will govern.