These New Relic, Inc. (“New Relic”) Expert Services Terms and Conditions (the “Terms”), together with any applicable Order Form(s) (collectively, the “Agreement”), govern New Relic’s provision of Expert Services (as further defined) to the Customer. New Relic and Customer may be referred to herein individually as “Party” or collectively as the “Parties.” Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the separate agreement for the New Relic software analytics products purchased by Customer (the “New Relic Products”) and/or the applicable mutually executed ordering document(s) entered into by the Parties (“Order Form”). Customer may place orders for Expert Services under these Terms, by executing an applicable Order Form that references or incorporates the Terms. In the event of any conflict between these Terms, an applicable Order Form, and the agreement for the New Relic Products, the following shall be the order of precedence with respect to governing the provision of the Expert Services: (i) the applicable Order Form, (ii) these Terms, and (iii) the agreement for the New Relic Products.
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. Any changes to the Terms will be effective immediately for new customers and, for all other customers, any changes to the Terms will be effective thirty (30) days after posting notice of such changes.
New Relic may require Customer to provide consent to the updated Terms in a specified manner before further use of the Expert Services is permitted. If Customer does not agree to any change(s) after receiving a notice of such change(s), Customer shall immediately stop using the Expert Services. Otherwise, Customer’s continued use of the Expert Services constitutes acceptance of such change(s).
1. Expert Services. New Relic will provide to Customer the product support, implementation or technology services, training, or other services and/or Expert Contributions (hereinafter defined) (collectively, the “Expert Services”) as detailed in the Schedule(s) below, or an applicable Order Form. The Expert Services shall not constitute, nor be deemed to be included within, the New Relic Products.
1.1. Use: If Customer does not fully utilize, request or receive the Expert Services, as specified in the applicable Order Form, any remaining Expert Services (or unused portion thereof) will be forfeited at the end of such applicable period, as listed on the applicable Order Form, and no refund will be provided to Customer. Subject to the foregoing, such Expert Services (or any unused portion thereof) not utilized by Customer by the earlier of: (i) the one-year anniversary date of the applicable Order Form Effective Date for such Expert Services, or (ii) any expiration of an active paid Commitment Term for the New Relic Products, shall be forfeited and no refund will be provided to Customer. If Customer’s subscription for Expert Services is co-terminus with a paid Commitment Term for the New Relic Products that is less than a year, Customer will receive a prorated amount of Expert Services based upon the number of months remaining in such paid Commitment Term.
1.2. Scheduling: Expert Services will be delivered during the Commitment Term as mutually agreed upon by the Parties. Subject to and unless otherwise agreed in the applicable Order Form, if delivered on-site, Customer must schedule the performance of such on-site Expert Services tasks for a minimum period of two (2) days. Customer must schedule use of the package(s), as specified in the applicable Order Form, at least three (3) months prior to the Renewal Date and/or the Expiration Date for the Commitment Term indicated on the applicable Order Form or Customer is at risk of not being able to schedule New Relic resources for such Expert Services. In the event Customer does not timely schedule such use, New Relic resources will be allocated on an as-available basis; if New Relic determines, in its sole discretion, that there is not enough time or resources available to complete the task(s) prior to the Renewal Date and/or the Expiration Date for the Commitment Term indicated on the applicable Order Form, New Relic will have no liability to Customer.
1.3 Customer Cooperation: Customer agrees to provide New Relic with reasonable access to Customer Materials (defined below), resources, personnel, equipment or facilities to the extent such access is necessary for the performance of the Expert Services. To the extent that Customer does not timely provide the foregoing access for New Relic to provide the Expert Services, New Relic will be excused from performance until such items are provided.
2. License, as applicable.
2.1. Solution Offerings: Upon delivery of the Expert Services, as specified in the applicable Order Form, but contingent upon receiving full and final payment for the Expert Services, New Relic grants to Customer during an active paid Commitment Term for the New Relic Products, a non-exclusive, non-transferable, non-sublicensable license to use the Expert Services provided, as specified in the applicable Order Form, if any, solely for its internal business purposes.
2.2 Right to Use Customer Materials in Expert Services: Customer hereby grants New Relic a limited right to use any Customer materials provided to New Relic in connection with the Expert Services (“Customer Materials”) solely for the purpose of performing the Expert Services for Customer. Customer will retain all right, title and interest (including all intellectual property rights) in and to Customer Materials. Customer represents and warrants that it has all necessary rights to provide the Customer Materials and grant the foregoing license to Customer Materials to New Relic, without violation of any applicable laws or third party rights.
3. Travel and Expenses. New Relic will invoice Customer separately for travel and expenses and in accordance with New Relic’s standard travel and expense guidelines. Customer will reimburse New Relic for travel and expense costs and any out-of-pocket expenses incurred by New Relic in connection with its performance of Expert Services. New Relic will provide Customer with reasonably detailed invoices for such expenses. New Relic will invoice Customer monthly in arrears for such expenses. Customer will reimburse New Relic within thirty (30) days of the invoice date.
4. Customer Reference. New Relic may publish Customer’s name and/or logo to indicate that Customer is a user of the New Relic Expert Services upon the prior written approval of Customer.
5. Warranty. New Relic warrants to Customer that the Expert Services will be performed in a professional and workmanlike manner, employing commercially reasonable efforts. Customer must notify New Relic of breach of warranty within thirty (30) days of occurrence of such breach of the applicable Expert Services. New Relic will, as New Relic’s sole obligation and Customer’s exclusive remedy for breach of warranty, (a) use commercially reasonable efforts to re-perform the non-conforming Expert Services at no additional cost to Customer, or (b) if New Relic determines the foregoing remedy to be impracticable within a reasonable period of time, terminate the applicable Order Form for Expert Services and refund the portion of fees attributable to the non-conforming Expert Services. EXCEPT FOR THE FOREGOING WARRANTY, THE EXPERT SERVICES OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY NEW RELIC UNDER THESE TERMS ARE PROVIDED AS-IS, TO THE FULL EXTENT PERMITTED BY LAW, THE WARRANTIES SET FORTH IN THIS SECTION ARE NEW RELIC’S EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW, ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, LACK OF VIRUSES, TITLE, NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS.
6. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE), CONTRACT OR OTHERWISE, WILL NEW RELIC BE LIABLE TO CUSTOMER, OR ANY OTHER PERSON OR ENTITY, FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OR FOR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER IN CONNECTION WITH THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL NEW RELIC’S AGGREGATE LIABILITY TO CUSTOMER AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE GREATER OF (I) US$50 OR (II) FEES FOR THE EXPERT SERVICES PAID BY CUSTOMER TO NEW RELIC UNDER THE APPLICABLE ORDER FORM(S) GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING ANY SEPARATE LIMITATION OF LIABILITY AS SET FORTH IN THE AGREEMENT FOR THE NEW RELIC PRODUCTS, THIS IS THE SOLE AND EXCLUSIVE LIMITATION OF LIABILITY FOR EXPERT SERVICES.
7. Ownership and Licenses. Customer agrees that all intellectual property rights, including all copyrights, patents, trademarks, service marks, work product, code, trade secrets and any technique and know-how of general applicability, in the Expert Services (“Expert Contributions”) are solely the property of New Relic or its licensors, and that any confidential or proprietary information exchanged between the Parties will be deemed Confidential Information, which will not be disclosed to any third party, unless otherwise specifically agreed in writing. Customer may not remove, alter or obscure any copyright or other proprietary rights notices marked on any portion of the Expert Services. If Customer participates in the creation of any portion of the Expert Contributions, Customer expressly waives, and hereby assigns to New Relic, any and all right title and interest, including any and all intellectual property rights that Customer may acquire, in the Expert Contributions, except for: (a) the licenses expressly granted in these Terms, (b) as mutually agreed to in writing by the Parties, and (c) any pre-existing intellectual property belonging to Customer. As between the Parties, New Relic will not claim any ownership in the Customer Materials.
8.1. Termination: Either Party may terminate (a) an Order Form for the applicable Expert Services in the event of a material breach of these Terms by the breaching Party that is not cured within thirty (30) days of written notice thereof from the non-breaching Party; or (b) the Agreement immediately upon written notice if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form will not be deemed a termination of these Terms or any other Order Form; however, termination of these Terms will immediately terminate all outstanding Order Forms for Expert Services. Customer’s failure to timely pay the fees for the Expert Services specified in an applicable Order Form will constitute a material breach of these Terms.
8.2. Effect of Termination: Upon termination by Customer for New Relic’s material breach of any provisions of these Terms and upon written request from Customer, New Relic will refund to Customer any unused, prepaid fees from the date of Customer’s written termination notice. Upon termination by New Relic for Customer’s material breach of any provisions of these Terms, Customer will pay New Relic for all expenses and fees that accrued prior to the termination date and all fees that would have continued to accrue through the end of the then current term of the Order Form had it not been terminated due to Customer’s breach. In no event will any termination relieve Customer of the obligation to pay any expenses and fees payable to New Relic for the period prior to the effective date of termination. Upon any termination or expiration of these Terms or any Order Form, New Relic will no longer provide the applicable Expert Services to Customer and Customer will, if applicable, cease using the Expert Services. Upon any termination of the agreement or applicable Order Form for the New Relic Products, any license grant to Customer for use of any Expert Services pursuant to these Terms shall immediately and automatically terminate in accordance with the license terms specified in the applicable Schedule and Customer shall cease to use such Expert Services.
9. Miscellaneous. These Terms, together with any applicable Order Form and the agreement for the New Relic Products, constitute the entire and exclusive agreement between New Relic and Customer with respect to the Expert Services and supersede and replace any other agreements, terms and conditions applicable to the Expert Services. These Terms 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 these Terms, 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). Any statements made by Customer in any purchase order delivered to New Relic, or on any portal required by Customer for submission of any New Relic invoice shall have no effect. These Terms create no third party beneficiary rights. Customer may not assign any of its rights in these Terms, and any such attempt is void, but New Relic may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Expert Services. Customer and New Relic are not legal partners or agents; but rather have an independent contractor relationship. New Relic will not be responsible for any failure to perform or delay in performing any of its obligations under these Terms where and to the extent that such failure or delay results directly or indirectly from an event beyond New Relic’s reasonable control.
10. Schedules. The following schedules (“Schedules”) are incorporated herein and provide additional terms applicable to the specific Expert Services set forth in an Order Form(s) executed by the Parties: