Effective: July 2019
Replaced by this version on April 25, 2020
These New Relic Enhanced Terms of Service, together with any addenda and Order Form(s) entered into from time to time (the “Agreement”) governs your paid subscriptions for New Relic product and services and is between you and New Relic, Inc. (“New Relic”). Wherever used in this Agreement, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Service and its Affiliates. If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
By executing a New Relic Order Form that references the link to this Agreement found at: https://newrelic.com/termsandconditions/enhanced-terms-of-service you are “accepting” and “agreeing” to the terms of this Agreement for your paid Subscription Term on the date of such execution (the “Effective Date”).
Any New Relic Unpaid Account (as defined below) or any previously paid account that downgrades to an Unpaid Account are not governed by this Agreement, but by the terms published at: https://newrelic.com/termsandconditions/terms.
“Account” means the online account that New Relic provides for Customer to manage its use of the Services.
“Affiliates” means an entity where Customer owns at least 51% of the voting securities, provided that such an entity will be considered an Affiliate for only such time as such equity interest is maintained. Further references to Customer shall be deemed to incorporate Affiliates and its Customer Users.
“Customer Data” means electronic data and information uploaded or transmitted to the Service by or on behalf of the Customer, including by the Software, and made available in the Customer Account.
“Customer Users” means the Customer and individual user(s) authorized by the Customer to access and use the Service on Customer’s behalf.
“Documentation” means installation guides and other documentation related to the Service and Software made available to Customer by New Relic at: https://docs.newrelic.com/docs.
“Fees” means the subscription fees, use fees, and any other fees to be paid by Customer described in an Order Form.
“Order Form” means the mutually executed purchasing documents entered into by the Parties. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the New Relic Enhanced Terms of Service as if it were an original party hereto.
“Service(s)” means the paid service offering described in an Order Form.
“Software” means the distributed software proprietary to New Relic (which may include New Relic agents) for the transmission of Customer Data to the Service as described in the Documentation.
“Subscription Term” means the period of time specified in an Order Form during which Customer subscribes to access a Service and any subsequent period following an automatic renewal hereunder.
“Unpaid Account” means a no-cost trial or lite account for a New Relic product or service.
2. USE OF THE SERVICE
2.1 Subscription Grant. Subject to Customer’s compliance with the terms and conditions of this Agreement and the Documentation, New Relic grants to Customer a limited, non-exclusive, non-transferrable, and non-sublicensable right during the Subscription Term to: (i) access and use the Service for its internal, business purposes; and (ii) use the Documentation in support of such access and use of the Service.
2.2 Software License. New Relic may provide Customer with access to Software for use in connection with the Service. If New Relic provides Customer with access to Software, New Relic hereby grants Customer a limited, non-exclusive, non-sublicensable and non-transferable license to copy, install, configure and use the Software during the applicable Subscription Term in accordance with this Agreement and the Documentation.
2.3 Account Set Up. Customer and Customer Users may be required to provide a user name, email address, password, or other personal information relating to such Customer User to create and manage an Account (“Login Credentials”). Customer Users are responsible for maintaining the confidentiality and security of the Login Credentials. Customer is responsible for any access or use of the Service via the Login Credentials, including acts or omissions of each individual Customer User that Customer permits to use the Service. Customer shall immediately notify New Relic in the event of any actual or suspected breach of any Login Credentials.
2.4 Restrictions of Use. Customer will not: (i) access or use the Service or Software except as permitted hereunder; (ii) decompile, disassemble or reverse engineer any software or source code version underlying the Service or Software; (iii) host, sell, resell, rent, exploit, sublicense, lease, or otherwise provide the Service or the Software or any portion thereof or use such for time sharing purposes or on a service bureau basis; (iv) remove any copyright or proprietary notices contained in the Service or Software or place any third party’s trademarks on the Service or Software or otherwise imply that such was developed, owned by or proprietary to Customer or any other third party; (v) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the Fees that would otherwise be payable for such access or use; (vi) enable access to the Service or Software by any third party except as otherwise provided in this Agreement or with the prior written consent of New Relic, including for the purposes of building a similar or competitive website, application, Software, or Service; (vii) use the Service or Software to access, alter or destroy any information of New Relic or of another customer of New Relic by any malicious means or device; (viii) use the Service or Software to introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of New Relic’s systems or another party’s computer, property or information; (ix) use the Service or Software to damage, disable, overburden or impair any New Relic server or network(s) connected to any New Relic server or interfere with any other party’s use and enjoyment of the Service or Software; (x) obtain or attempt to obtain any materials or information through any means not intentionally made available to Customer through the Service or Software; (xi) use the Service or Software to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or other intellectual property (including copyright) of others or otherwise violate any applicable law; (xii) circumvent or modify any security technologies included as part of the Service or Software; (xiii) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan (including without limitation by use of any tool designed to automatically emulate the actions of a human user in connection with such testing) on the Service or Software; or (xiv) attempt or permit any third party to do any of the foregoing. Without prejudice to any other rights and remedies available herein, in the event that New Relic suspects that: (i) a Customer has not complied with this Section, or (ii) the integrity of the Service or the Customer Data is, or is likely to be, at risk as a result of a third party intrusion, New Relic may immediately suspend usage of the Service by Customer, without notice, pending, and during any investigation of misuse. However, New Relic shall provide Customer with notice of suspension as soon as reasonably practicable, provided that New Relic's security team has determined that such notice shall not cause any delay or interfere with its investigation or cause any damage or harm to New Relic’s systems, or delivery of service.
2.5 Support; Updates. New Relic will provide Service and Software support to Customer in accordance with the “Service Level Commitment” table as set forth at: https://newrelic.com/application-monitoring/pricing. New Relic will make available to Customer any updates, corrections, bug fixes, modifications, improvements, additions, upgrades, and/or any enhancements made to the Service or Software (including, but not limited to, new features and functionality, as applicable) and Documentation, that are made generally available to New Relic’s customer base (“Updates”), and such Updates will be deemed, as applicable, part of the Service, Software, or Documentation. Customer shall install any such applicable Update as soon as reasonably practicable after receipt. From the date that is five (5) days from and including the date an Update is generally released to New Relic’s customer base until and including the date that Customer installs the relevant Update, New Relic shall not be liable for any failures of Service Availability (as further defined).
2.6 Third Party Services. Customer may choose to use with the Service a product, system, software or service not licensed by New Relic, such as an integration, application or plug-in (for instance to share Customer Data with, or to import data from, a third party service such as AWS or Kubernetes into Customer’s Account) (“Third Party Services”). Customer’s use of Third Party Services is governed solely by the terms of Customer’s relationship with the provider of the Third Party Services. New Relic does not control, and has no responsibility or liability for, any Third Party Services, including for their availability or interoperability (including with the Service), security, privacy practices or data therein. Any changes to Third Party Services do not affect or excuse Customer obligations under this Agreement. If Customer enables a Third Party Service for use with the Service, Customer grants to New Relic permission to interoperate with the Third Party Service, and any data received by New Relic on Customer’s behalf from any Third Party Services will be treated as Customer Data under this Agreement, including for purposes of Fees.
3. CUSTOMER DATA; SECURITY
3.1 Customer Data. Subject to the terms of this Agreement, Customer hereby grants to New Relic, and its affiliates, a limited, non-exclusive, worldwide, royalty-free right to collect, host, use, process, copy, store, transmit, display and create derivative works of the Customer Data, in each case solely to the extent necessary to provide the applicable Service to Customer and to manage and develop and improve its products and services. New Relic may also access Customer’s Account for maintenance and support. New Relic shall process Customer Data via the Service on behalf of Customer only in accordance with the terms of this Agreement and as necessary to provide the Service.
3.2 Security. New Relic provides Customer with the option to encrypt the transmission of Customer Data. Customer acknowledges that it is the Customer’s responsibility to encrypt the transmission of Customer Data should Customer wish to protect it. In the event Customer decides not to utilize encryption and transmit Customer Data unencrypted over a network, Customer assumes all related risks for doing so. The Service will include industry standard administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data as further described in the Documentation. Except as set forth herein, New Relic will not be liable for Customer’s use of the Service (including Customer’s transmission of Customer Data) over the Internet or other network, or to Customer in the event that such administrative, physical and technical safeguards fail to prevent unauthorized third-party access to Customer Data. New Relic cannot guarantee that its storage or transmission of Customer Data will always be secure, inaccessible, or that unauthorized third parties will not be able to defeat New Relic’s security measures.
3.3 Rights in Customer Data. Customer represents and warrants that it has the rights and licenses necessary to grant the license in Section 3.1 and to otherwise provide Customer Data to New Relic in connection with Customer’s use of the Service and that by providing its Customer Data it will not violate any intellectual property or privacy rights of third parties, confidential relationships, contractual obligations or applicable laws. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personal data of such data subjects via the Service by New Relic and/or Customer. Customer shall be solely responsible for ensuring that any processing of Customer Data by New Relic and/or Customer via the Service does not violate any applicable laws. Customer shall not process or submit to the Service any Customer Data that includes any: (i) “protected health information,” as defined under the Health Insurance Portability and Accountability Act; (ii) personal data about individuals under the age of 16, which for the avoidance of doubt includes any “personal information” as such term is defined under the Children’s Online Privacy Protection Act; (iii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iv) financial account information, including bank account numbers; (v) the combination of a username or email address along with a password or security question and answer that would permit access to an online account; (vi) financial account number or payment card data, including credit card or debit card numbers; and (vii) “special categories” of personal data, as defined under Regulation (EU) 2016/679 of the European Parliament (“GDPR”), or any national laws adopted pursuant to any of the foregoing, about residents of Switzerland and any member country of the European Union, including personal data revealing racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense. New Relic shall not be liable to the extent that the Customer processes data through, or submits data to, the Service in breach of this Section 3.3.
4. SERVICE LEVEL COMMITMENT
The service level within New Relic's control is the availability of the Service, not, for example, the transmission of data over the public Internet. New Relic will make commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned maintenance periods; (b) emergency maintenance that is necessary to prevent imminent harm to the Service; (c) any Force Majeure (as defined herein); (d) unavailability caused by any Third Party Services; or (e) unavailability arising from any suspension, limitation, and/or termination of Customer’s access or use of the Service in accordance with this Agreement or the Documentation. The Service will be considered available so long as Customer is able to log in to its interface and view Customer Data (“Service Availability”). New Relic will use commercially reasonable efforts to maintain Service Availability (except as set forth above) of at least 99.8% during any calendar month. In the event the Service Availability drops below: (i) 98.5% for two consecutive calendar months during the Subscription Term, or (ii) 96.5% in any single calendar month, Customer may request to terminate the relevant Service with no penalty. Such termination will be effective as of the end of the then-current billing period and no additional Fees will be charged. Customers may request the Service Availability attainment for the previous month by filing a support ticket on the New Relic support site. The applicable Service Availability will be calculated as a percentage of: (1) the total number of minutes in a month after (2) subtracting any periods of unavailability during such month (excluding as set forth above) from the total number of minutes in a month. This Section 4 describes Customer’s sole remedy for failures of Service Availability.
5.1 Fees. Except as otherwise specified herein or in an Order Form, (i) Fees are quoted and payable in United States Dollars, (ii) Fees are based on subscriptions purchased and not actual usage, and (iii) payment obligations are non-cancelable and Fees paid are non-refundable.
5.2 Taxes. Unless otherwise stated in the Order Form, New Relic’s Fees and pricing do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, accessible by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with this Agreement. If New Relic has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provide New Relic with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, New Relic is solely responsible for taxes assessable against it based on New Relic’s income, property and employees.
5.3 Invoicing and Payment. New Relic will invoice Customer in advance and in accordance with the applicable Order Form. Unless otherwise stated in an Order Form, invoiced charges will be paid no more than 30 days after the date of electronic delivery of an invoice. Customer is responsible for maintaining complete and accurate billing and contact information with New Relic.
5.4 Failure to Pay. Customer’s failure to pay any Fees when due is a material breach of this Agreement for which New Relic may provide notice of breach and terminate the Agreement after 30 days’ notice thereof in accordance with Section 11.2. Upon termination, all amounts due for the entire Subscription Term will be paid. Without limitation of its other rights, New Relic may suspend the Service for Customer’s failure to pay any Fees when due after New Relic provides Customer with 30 days’ notice of such failure. Customer will continue to be charged all applicable subscription Fees for the Service during any period of suspension.
5.5 Overdue Charges. Any Fees not paid when due will accrue interest at the rate of 12% per annum (or 1.0% per month), or the maximum rate permitted by law, whichever is higher.
6.1 “Confidential Information” means all confidential information in oral, written, graphic, electronic or other form furnished to the receiving party that: (i) is designated as “Confidential,” “Proprietary,” or some similar designation; or (ii) reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information may also include the confidential or proprietary information of a third party disclosed to the disclosing party and then to the receiving party. Unless falling into one of the exceptions below, Customer Data is the Confidential Information of Customer. Unless falling into one of the exceptions below, the software underlying the Service and Software is the Confidential Information of New Relic. Confidential Information does not include data or information which: (i) was in the public domain at the time it was disclosed or falls within the public domain after disclosure, except through the fault of the receiving party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality, as demonstrated by competent evidence; (iii) (a) is disclosed after written approval of the disclosing party, or (b) Feedback (as further defined); (iv) becomes rightfully known to the receiving party from a source other than the disclosing party without an obligation of confidentiality; or (v) is developed by the receiving party independently of the disclosing party’s Confidential Information as demonstrated by competent evidence.
6.2 Neither party will: (i) disclose the other party’s Confidential Information to a third party or (ii) use the Confidential Information for any purpose other than as indicated in this Agreement without the disclosing party’s prior written approval. The receiving party agrees to notify the disclosing party promptly of any unauthorized disclosure of Confidential Information by providing details of the unauthorized disclosure and to assist the disclosing party in mitigating the impact of the unauthorized disclosure and as far as reasonably practicable remedying any such unauthorized disclosure. Except as set forth herein, each party will protect the other party’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the party uses to protect its own information of similar character. All Confidential Information disclosed hereunder will remain the sole property of the disclosing party and the 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.
6.3 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (i) to any consultant, contractor, advisor or counsel who has a bona fide need to know in connection with this Agreement and has executed a non-disclosure agreement, at least as protective as hereunder, with the receiving party or (ii) by operation of law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under this Agreement; provided, the receiving party shall, unless legally prohibited, provide the other party with reasonable prior written notice sufficient to permit the other party an opportunity to contest such disclosure.
7. PROPRIETARY RIGHTS
7.1 Customer. Subject to the rights and licenses granted under this Agreement, as between the Parties, Customer retains all right, title and interest (including all intellectual property rights and other rights) in and to the Customer Data. New Relic does not claim any ownership rights to any Customer Data.
7.2 New Relic. As between the Parties, New Relic retains all right, title and interest (including all intellectual property rights and other rights) in and to the Service, Software and Documentation, subject only to the limited subscription grant expressly set forth herein. . The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses identified in the Documentation, which will apply in lieu of the terms of this Agreement with respect to such software. For clarity, New Relic will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations provided by Customer relating to the Service and Software (“Feedback”). Any intellectual property rights which may be created as a result of New Relic using or acting upon such Feedback shall vest in, and remain the property of, New Relic. Customer does not acquire any rights, express or implied, hereunder other than those rights expressly granted under this Agreement.
8. LIMITED WARRANTY AND DISCLAIMER
8.1 Authority. Each party represents and warrants that it has the full right and authority to enter into, execute and perform its obligations under this Agreement. Each party warrants that it will comply with all applicable laws and regulations in its provision or use of the Service as applicable.
8.2 Limited Warranty. New Relic warrants that the Service, when used in accordance with the Documentation and when used as authorized herein, will perform substantially in accordance with the Documentation during the Subscription Term, and will be performed in a professional and workmanlike manner, consistent with industry standards.
8.3 Remedy. In the event of any breach of the above warranty, New Relic will use reasonable commercial efforts to correct the non-conforming Service in accordance with the Documentation at no additional charge to the Customer. In the event that New Relic is unable to correct a non-conforming Service, Customer may terminate the applicable Service and receive a refund of all pre-paid, unused Fees. New Relic’s obligations hereunder for breach of warranty are conditioned upon Customer notifying New Relic of such breach in writing and providing New Relic with sufficient evidence of such non-conformity to enable New Relic to reproduce and/or verify the same. THE FOREGOING REMEDY IS CUSTOMER’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY ABOVE.
8.4 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY MADE ABOVE, THE 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. ADDITIONALLY, ANY THIRD PARTY TECHNOLOGY DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE IS USED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY SUCH THIRD PARTY SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEW RELIC MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICE OR THE SOFTWARE OR ANY RESULTS TO BE ACHIEVED THEREFROM.
9.1 New Relic Indemnification Obligations.
9.1.1 New Relic will indemnify and defend Customer and their officers, directors and employees from any third party claim, suit or proceeding brought against such a party to the extent that it is based on a claim that Customer’s use of the Service in accordance with the terms of this Agreement infringes any United States patent or copyright (“Customer Claim”), provided that: (i) New Relic is promptly notified in writing of the Customer Claim, (ii) the indemnified party provides reasonable assistance (at New Relic’s expense) with such Customer Claim, (iii) New Relic is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such Customer Claim, and (iv) Customer does not admit fault or liability of New Relic, of itself, or agree to any settlement of such Customer Claim. New Relic shall have met the obligations of this Section 9 by paying for the costs to litigate a Customer Claim to conclusion and paying the final judgment awarded to the third party claimant (and any reasonable costs, expenses, or fees awarded to the third party as part of such judgment), or by paying to settle the Customer Claim (including costs incurred by Customer to reach the settlement). Should a Service become, or in New Relic’s opinion likely to become, the subject of any such claim of infringement, then Customer will permit New Relic, at New Relic’s option and expense, to: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that the use becomes non-infringing; or (c) terminate the Service and refund to Customer any Fees paid in advance to New Relic that Customer has not used as of the date of termination. The indemnification obligations set forth in this Section are New Relic’s sole and exclusive obligations, and Customer sole and exclusive remedies with respect to infringement or misappropriation of third party intellectual property rights of any kind.
9.1.2 The New Relic Indemnification Obligations above will not apply to any claim to the extent it arises from: (i) any matter for which Customer is obligated to indemnify New Relic; (ii) the Service being modified by Customer or a third party; (iii) the use, operation or combination of the Service with programs, data, equipment or materials not provided by New Relic, if the claim would have been avoided by using it without such programs, data, equipment or materials; (iv) compliance by New Relic with Customer designs, plans, specifications, or instructions; or (v) Customer continuation of the allegedly infringing activity after being notified of the alleged infringement claim.
9.2 Customer Indemnification Obligations. Customer will indemnify and defend New Relic and their officers, directors and employees against any third party claim, suit, proceeding, fine, or sanction (to the extent permitted by law) brought against or imposed on such party (including New Relic’s costs in responding to the foregoing) arising from or relating to: (i) the misuse of the Service by Customer, or misuse of the Service by individuals acting on Customer’s behalf, or (ii) Customer Data or the use thereof, including but not limited to, allegations that processing of Customer Data by New Relic or Customer under this Agreement infringes the privacy or intellectual property rights of a third party or violates any applicable law or regulation (each a “New Relic Claim”) provided that: (a) Customer is promptly notified in writing of a New Relic Claim, (b) the indemnified party provides reasonable assistance (at Customer expense) with such New Relic Claim, and (c) Customer is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such New Relic Claim. Customer shall have met the obligations of this Section 9 by paying for the costs to litigate a New Relic Claim to conclusion and paying the final judgment awarded to the third-party claimant (and any reasonable costs, expenses, or fees awarded to the third party as part of such judgment), or by paying to settle the New Relic Claim (including costs incurred by New Relic to reach the settlement). The indemnification obligations set forth in this subsection are Customer’s sole and exclusive obligations, and New Relic’s sole and exclusive remedies, with respect to infringement or misappropriation of third party rights of any kind.
10. LIMITATION OF LIABILITY
10.1 Customer expressly understands and agrees that New Relic and its affiliates and their employees and directors will not be liable for any indirect, incidental, special, consequential, punitive 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).
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE AGGREGATE LIABILITY OF NEW RELIC, ITS AFFILIATES AND THEIR EMPLOYEES AND DIRECTORS TO CUSTOMER AND ITS AFFILIATES FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING ANY USE OF THE SERVICE OR RELATED SOFTWARE, DOCUMENTATION, INFORMATION OR MATERIALS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: (I) US$50,000 OR (II) THE AMOUNTS CUSTOMER PAID TO NEW RELIC IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE FOREGOING AGGREGATE LIABILITY LIMITATION WILL NOT APPLY TO CLAIMS OF INDEMNIFICATION MADE UNDER SECTION 9 (INDEMNIFICATION) OR CLAIMS OF BREACH OF SECTIONS 3 (SECURITY) OR 6 (CONFIDENTIALITY), FOR WHICH THE AGGREGATE LIABILITY OF NEW RELIC TO CUSTOMER AND ITS AFFILIATES IS CAPPED AT THREE TIMES THE FEES PAID IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY.
11. TERM; TERMINATION
11.1 Term; Renewals. This Agreement commences on the Effective Date and will remain in effect until terminated hereunder. Upon expiration of the initial Subscription Term, unless otherwise stated on an applicable Order Form, the ordered Service will automatically renew for additional consecutive Subscription Terms, unless and until either party gives the other notice of non-renewal at least 30 days prior to the end of the then-current Subscription Term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless New Relic provides Customer notice of a pricing increase, 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 Subscription Term, unless the pricing in such prior term was designated in the relevant Order Form as discount, promotional or one-time pricing.
11.2 Termination. Either party may terminate this Agreement for any reason, or no reason, if there is no Subscription Term then in effect under the terms of an Order Form. Either party may terminate this Agreement by written notice to the other party in the event that the other party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof. In the event that termination is due to Customer’s material uncured breach, Customer will pay any Fees then due, including Fees remaining for the full Subscription Term. In the event of termination due to New Relic’s material uncured breach, Customer may request to receive a refund of any prepaid, unused Fees, with such termination to be effective 30 days from the date of customer’s termination notice to New Relic. In the event that 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, the other party may terminate the Agreement immediately upon written notice. Upon termination, the rights and licenses granted to Customer hereunder will terminate immediately.
11.3 Survival. The following Sections will survive termination or expiration of this Agreement: 1 (Definitions); 3.3 (Rights in Customer Data); 5.5 (Overdue Charges); 6 (Confidentiality); 7 (Proprietary Rights); 8.4 (Warranty Disclaimer); 9 (Indemnification); 10 (Limitation of Liability); 11.3 (Survival); and 12 (General).
12. GENERAL TERMS
12.1 Customer’s Purchase Order. Any terms or conditions in Customer’s purchase order or any other related documentation submitted by or on behalf of Customer to New Relic do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by both Customer and New Relic.
12.2 Controlling Law. This Agreement and any disputes arising out of or related hereto 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 courts located in San Francisco (if state court) or the Northern District of California (if federal court). Either party may seek injunctive or other emergency relief in any competent court.
12.3 Assignment. Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer, upon written notice to New Relic, provided that such assignment does not expand the scope of subscription granted in the Service, including the type or quantity of the subscription granted. New Relic may assign this Agreement (or a part of it): (i) to its parent or affiliate; (ii) in the ordinary course of business to provide Services hereunder; or (iii) to a surviving person under a merger or acquisition of New Relic or the assets of the business to which this Agreement relates, upon written notice to Customer. Except as provided in this Section 12.3, Customer may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior, written consent of New Relic, and any such assignment shall be null and void.
12.4 Notices. Any notice under this Agreement must be given in writing. New Relic may provide notice to Customer via email or through Customer’s account. New Relic’s notices to a Customer will be deemed given upon the first business day after New Relic sends the notice. Customer may provide notice to New Relic by mail to New Relic, Inc., 188 Spear Street, Suite 1200, San Francisco, CA, USA 94105, Attn: General Counsel. Customer notice to New Relic will be deemed given when received by New Relic either by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the above address.
12.5 Order of Precedence. In the event of a conflict between the Order Form and the New Relic Enhanced Terms of Service, the Order Form shall govern, though only to the extent of the conflict. English is the language of this Agreement, and all communications and proceedings must be conducted in English. If this Agreement is translated, the English language version will control.
12.6 Force Majeure. Neither party will be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results directly or indirectly from an event beyond such party’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving New Relic employees), failures of the Internet, third-party service provider failures or delays, or denial of service attacks (“Force Majeure”).
12.7 Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement may cause irreparable injury, that money damages may be an inadequate remedy and that each party will be entitled to seek temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain the other party from such breach or threatened breach. Nothing in this Section will be construed as preventing a party from pursuing any and all remedies available to it, including the recovery of money damages.
12.8 Independent Contractors and No Agency. The Parties are independent contractors under this Agreement and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both Parties as joint venturers or partners for any purpose. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership or trust between the Parties. No party has authority to bind the other party.
12.9 Anti-Corruption and Export Compliance. Each Party shall, and shall cause its employees, consultants and agents to, comply with the Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. Accordingly, neither party may offer, make or authorize any payment or gift or anything of value, directly or indirectly, to any domestic or foreign government official, to secure, maintain, or direct business, or for any other purpose. The Service and Software may be controlled by the United States and other governments for export, re-export, deemed export, and import purposes (jointly, export and import). Customer agrees to comply with all such export and import laws, regulations, directives, rules, and controls regarding the Service including but not limited to the United States Export Administration Regulations, International Traffic in Arms Regulations, Office of Foreign Asset Control directives, sanctions, prohibitions and restrictions, and all treaties, Executive Orders, statutes, amendments and supplements thereto (laws). Customer is responsible for obtaining all export and import licenses, authorizations, permissions, and to accomplish other acts to comply with all such laws. The Service is commercial and shall be used for non-prohibited, commercial purposes by non-prohibited end-users and shall not be exported or transferred to any end-user located in a country embargoed by the United States, presently North Korea, Iran, North Sudan, Syria and Cuba, or to a national of such a country, without the appropriate license or authorization. Customer will not export the Service to a person or entity denied, prohibited, debarred or sanctioned (denied) by the United States Government, and Customer represents that it is not such a denied person or entity.
12.10 Government End User. For purposes of this Agreement and to the extent applicable, the Service and Software are "commercial computer software" and a “commercially available off-the-shelf (COTS) item” as "commercial computer software" is defined at FAR 2.101 developed at the private expense of New Relic. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
12.11 Changes to the Agreement. New Relic may modify this Agreement from time to time provided that If a modification materially impacts this Agreement, New Relic will use reasonable efforts to notify Customer (by, for example, sending an email to the billing or technical contact Customer designates in the applicable Order Form, posting on New Relic’s website, or through Customer’s New Relic account). If New Relic modifies this Agreement during the Customer’s then-current Subscription Term, the modified version will be posted on https://newrelic.com/termsandconditions/enhanced-terms-of-service and will only be effective upon the Customer’s next renewal of a Subscription Term. If Customer objects to the updated New Relic Enhanced Terms of Service, as Customer’s exclusive remedy, Customer may choose not to renew, including cancelling any Subscription Term set to auto-renew.
12.12 Entire Agreement; Severability; Counterparts. 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. Customer acknowledges and agrees that any information provided by New Relic regarding potential future products, features, or functionality is intended to outline New Relic’s general product direction. Customer’s purchasing decision has not relied upon such information nor is dependent on any oral or written public comments made by New Relic. Any failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.