Last Updated: May 2, 2016
These One-Time Reseller Terms (“OTR Terms”), together with any Order Form(s) entered into from time-to-time (an “Order Form”, with the OTR Terms and Order Form together, the “Agreement”), is entered into 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 (as defined and set forth in the Order Form) (“Partner”). These OTR Terms shall become binding once Partner signs the Order Form in the manner provided by New Relic. These OTR Terms do not have to be signed in order to be binding. By signing the Order Form, Partner assents to these OTR Terms and represents that (1) Partner has read, understands, and agrees to be bound by these OTR Terms, (2) Partner is of legal age to form a binding contract with New Relic, and (3) Partner has the authority to enter into these OTR Terms on behalf of the company or other organization that is named as Partner, and to bind that entity to these OTR Terms.
New Relic reserves the right to amend these OTR Terms from time-to-time, in whole or in part, in which case the updated OTR Terms shall supersede the prior version. New Relic will also update the “Last Updated” date at the top of the OTR Terms. Any changes to the OTR Terms will be effective immediately for new partners and, for all other partners, any changes to the OTR Terms will be effective five (5) business days after posting notice of such changes. Please check the website that contains these OTR 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. This Agreement does not grant any exclusivity to Partner.
2. Ownership and License Grant. 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 set forth in the applicable Order Form, subject only to the limited subscription grant expressly set forth herein (the “New Relic Service”). New Relic hereby grants Partner a non-exclusive, limited, nontransferable, non-sublicensable, one-time license to market, demonstrate, distribute, promote, offer for sale, sell and renew the New Relic Service only to Customer, as set forth in the Order Form, with Customer’s use of the New Relic Service governed under the New Relic Terms of Service located at https://newrelic.com/termsandconditions/terms (“Terms of Service”), for the Commitment Term, as set forth in the Order Form (the “License”). Except as specified by the License herein with respect to Customer, this License does not grant Partner the status of an authorized reseller of New Relic, which status is subject to: (i) entry into, and compliance with, New Relic’s then-current master partnership agreement, and (ii) compliance with certain minimum training requirements. Any rights not expressly granted herein are reserved by New Relic.
3. Pass Through Terms. Partner may only provide the New Relic Service to Customer if Partner and Customer enter into a written agreement (the “Customer Services Agreement”) containing the Terms of Service. Upon execution of the Customer Services Agreement and this Agreement, Customer shall become a customer of New Relic. Upon New Relic’s request, Partner shall provide New Relic with a copy of the Customer Services Agreement.
4. Pricing and Payment. 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 for the Commitment Term. 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. 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. 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 this Agreement, 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 the signing of this Agreement. Tax will be added where 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. 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.
5. 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 products or services that are inconsistent with, in addition to, or more onerous than the terms of this Agreement and the Terms of Service; (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.
6. Confidential Information.
6.1. “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 Partner gains access to in connection with this Agreement, and that New Relic either identifies as confidential or secret in writing or that a reasonable person would consider confidential.
6.2. 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 Partner; (b) was known to Partner at the time of disclosure without an obligation of confidentiality, as demonstrated by competent evidence; (c) is disclosed after written approval of New Relic; (d) becomes known to Partner from a source other than New Relic without an obligation of confidentiality; or (e) is developed by Partner independently of New Relic’s Confidential Information as demonstrated by competent evidence.
6.3. Partner 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 this Agreement without New Relic’s prior written approval. Partner agrees to notify New Relic promptly of any unauthorized disclosure of Confidential Information and to use commercially reasonable measures to assist New Relic in remedying any such unauthorized disclosure. Except as set forth herein, Partner will protect New Relic’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Partner uses to protect its own information of similar character. All Confidential Information of New Relic will remain New Relic’s sole property and Partner 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.
6.4. Notwithstanding the foregoing, Partner may disclose New Relic’s Confidential Information to the extent required: (a) to any consultant, contractor, advisor or counsel who has a bona fide need to know in connection with this Agreement and has executed a protective non-disclosure agreement with the Partner (or has a duty of confidentiality to the Partner) 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 Partner shall, unless legally prohibited, provide New Relic with reasonable prior written notice sufficient to permit New Relic an opportunity to contest such disclosure. If Partner commits, or threatens to commit, a breach of its confidentiality obligations, New Relic shall have the right to seek injunctive relief from a court of competent jurisdiction.
7. Marketing. Partner shall not describe the New Relic Service or its functionality to any party other than Customer, nor shall Partner imply or state 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 to Customer. Notwithstanding anything to the contrary, all use, distribution, publication of the “New Relic” name must be pre-approved in writing by New Relic. 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.
8. Partner Pricing. Partner is strictly prohibited from any promotion or advertising of the pricing as between New Relic and Partner pursuant to this Agreement or an applicable Order Form. This Agreement and the License may be terminated immediately if: (a) Partner presents or promotes the pricing, as set forth in an applicable Order Form, 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 for the New Relic Service 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 to the New Relic Service within sixty (60) days of the Renewal Date specified in the Order Form.
9. 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) this Agreement does not and shall not conflict with any other agreement entered into by it; (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) the execution of this Agreement by Partner’s representative has been duly authorized by all necessary action of Partner; (vi) when executed and delivered by Partner, this Agreement will constitute the legal, valid and binding obligation of Partner, enforceable against Partner in accordance with its terms; (vii) it will not misrepresent the functionality of the New Relic Service or issue any warranty or representation regarding the New Relic Service not specified in this Agreement or the Terms of Service; (viii) it will not use New Relic’s trademarks for purposes beyond the scope of this Agreement; (ix) the Customer Services Agreement that it enters into with Customer will contain the Terms of Service and that Partner will notify Customer of any limitations and disclaimers of warranties and liabilities of the New Relic Service; (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, Partner is not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that Partner is not otherwise prohibited under the Export Laws from partnering with New Relic.
10. Disclaimer. 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 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 SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO THE PARTNER.
11.1. Partner Indemnification. Partner will indemnify and (at New Relic’s option) defend New Relic, its parents, subsidiaries, affiliates, officers, 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 this Agreement, (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”).
11.2. New Relic Indemnification. New Relic will indemnify and defend Partner from and against any claim, loss, cost, liability or damage, including reasonable attorneys’ fees, for which Partner becomes liable arising from or relating to any valid third party claim, suit or proceeding brought against Partner to the extent that it is based on a valid claim that the New Relic Service, when used in accordance with the documentation located at https://docs.newrelic.com/docs, infringes a valid, enforceable United States patent or copyright (a “Partner Claim”). In the event that 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 replace or modify the New Relic Service with substantially equivalent services 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) New Relic may 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. 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 11.2 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.
11.3. Conditions of Indemnification. Subject to the terms set forth in Section 11, an indemnifying party shall have the full responsibility for and control of the defense (including any settlement) of any suit or proceeding; provided, however, that (a) such defense shall be conducted at the indemnifying party’s sole cost and expense, (b) the parties shall cooperate with and inform each other of the progress of such litigation and settlement 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.
12. Limitation of Liability. NEW RELIC WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, 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 COST OF 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 THIS AGREEMENT; OR ANY OTHER MATTER RELATING TO THE NEW RELIC SERVICE OR THIS AGREEMENT. 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 THIS AGREEMENT (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 11.2, 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 12 SHALL NOT APPLY TO DEATH OR PERSONAL INJURY OR 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 THIS AGREEMENT 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.
13. Termination. New Relic may terminate this Agreement upon written notice to Partner. Either party may terminate this Agreement 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. In the event of termination, all licenses granted in this Agreement 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. In the event New Relic terminates this Agreement without cause and provided that Customer is in good standing with New Relic, Customer may continue to use the New Relic Service through the expiration of the applicable Customer Services Agreement in effect at the time of termination. In the event of any other termination of this Agreement, provided that Customer is in good standing with New Relic, New Relic will use commercially reasonable efforts to determine an alternative method to provide for Customer 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.
14. Miscellaneous. Each party is an independent contractor in relation to the other party. Nothing in this Agreement 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 this Agreement 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 this Agreement shall act as a waiver of such rights. Partner may not assign any of its rights or delegate any of its obligations under this Agreement 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 this Agreement 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 this Agreement shall be in writing to the parties at the addresses designated in the 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 this Agreement, which by their nature survive termination or expiration, shall survive termination or expiration of this Agreement. 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. New Relic may seek injunctive or other emergency relief in any competent court for breaches of Section 5, 6 or 7. This Agreement is in the English language only, which language shall be the governing language and controlling in all respects. This Agreement may be executed in two or more counterparts and delivered by facsimile or electronic signature, each of which shall be deemed an original but all of which together shall constitute one and the same. These OTR Terms together with any Order Form(s) 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 OTR Terms and the Order Form, the Order Form will govern.