Last Published: February 6, 2020
This Managed Service Provider Sell-Through Agreement (“MSP Sell-Through”), together with any addenda and Order Form(s) entered into from time-to-time (altogether, this “Agreement”), is effective during an applicable Subscription Term by and between the entity identified as the “MSP Partner” on the applicable Order Form to this MSP Sell-Through (“MSP Partner”) and New Relic, Inc., a Delaware corporation with offices located at 188 Spear Street, Suite 1200 San Francisco, CA 94105 (“New Relic”, with MSP Partner and New Relic collectively, the “Parties”).
By executing a New Relic Order Form that references the link to this MSP Sell-Through found at: https://newrelic.com/termsandconditions/msp-agreement, MSP Partner is “accepting” and “agreeing” to the terms of this MSP Sell-Through on the date of such execution (the "Effective Date").
“Account” means the online account that New Relic provides for MSP Partner to manage its, and its Designated Customer’s, use of the Services.
“Designated Customer” means the MSP Partner’s client(s) designated in an applicable Order Form, and their respective end user(s), which are authorized by the MSP Partner to access and use the Service solely in conjunction with the MSP Managed Service.
“Fees” means the subscription fees, use fees, and any other fees to be paid by MSP Partner described in an Order Form.
“MSP End Users” means MSP Partner and the individual end user(s) authorized by MSP Partner to access and use the Service in support of the Designated Customer’s access and use of the MSP Managed Service.
“MSP Managed Service” means the MSP’s managed service offering as described in the Order Form.
“MSP Partner Data” means electronic data and information, including from a Designated Customer, uploaded or transmitted to the Service by or on behalf of the MSP Partner, including by the Software, and made available in the Account.
“Order Form” means the mutually executed New Relic purchasing documents entered into by the Parties.
“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 MSP Partner Data to the Service as described in the Documentation.
“Subscription Term” means the period of time specified in an Order Form during which MSP Partner subscribes to access a Service on behalf of its Designated Customer or any subsequent period following an automatic renewal hereunder.
2. USE OF THE SERVICE
2.1 Subscription Grant. Subject to MSP Partner’s compliance with the terms and conditions of this MSP Sell-Through and the Documentation, New Relic grants to MSP Partner a limited, revocable, non-exclusive, non-transferable right during the Subscription Term to: (i) sublicense the Service solely in conjunction with the MSP Managed Service to its Designated Customer(s); (ii) allow its MSP End Users to access and use the Service solely to support its Designated Customer’s access and/or use of the MSP Managed Service hereunder; and (iii) use the Documentation in support of such Designated Customer’s access and/or use of the MSP Managed Service. For clarity, MSP Partner is not granted the right to: (a) access or use the Service for its own internal purposes, or (b) provide any other third party with access or use of the Service. Access to the Service may be terminated immediately, without notice, for MSP Partner violations of this Section.
2.2 Software License. New Relic may provide MSP Partner with access to Software for use in connection with the Service. If New Relic provides MSP Partner with access to Software, New Relic hereby grants MSP Partner a limited, non-exclusive, non-sublicensable and non-transferable license to allow its MSP End Users to copy, install, configure and use the Software during the applicable Subscription Term in accordance with this Agreement and the Documentation. With the exception of Designated Customer, whose use of the Service is specified in Section 2.3, nothing in this paragraph shall restrict MSP Partner from allowing its MSP End Users to access or use the Software in connection with the Service in support of Designated Customer. For the avoidance of doubt, MSP Partner shall not allow Designated Customer to access, configure, or otherwise use the Software.
2.3 MSP End Users’ and Designated Customer Use. MSP End Users and Designated Customer may be required to provide a username, email address, password, or other personal information relating to such MSP End User or Designated Customer to create and manage an Account (“Login Credentials”). MSP End Users are responsible for maintaining the confidentiality and security of the Login Credentials. MSP Partner is responsible for any access or use of the Service via the Login Credentials, including acts or omissions of any MSP End Users or Designated Customer and for any usage of the Services beyond the subscription entitlements set forth in an applicable Order Form. MSP Partner understands and agrees that if MSP Partner authorizes any Designated Customer to access the Service, MSP Partner will require that the Designated Customer agree to New Relic’s end user terms found at: http://newrelic.com/terms (the "Terms of Service"). MSP Partner shall immediately notify New Relic in the event of any actual or suspected breach of any Login Credentials.
2.4. Restrictions of Use. MSP Partner will not, nor permit MSP End Users or its Designated Customer to: (i) access or use the Service or Software except as set out in the Documentation and as permitted hereunder; (ii) make the Service accessible as a standalone offering or as a hosted bundle offering that consists solely of the Service(s) to MSP End Users, its Designated Customer, or any third parties; (iii) enable access to the Service or Software by any third party, including competitors of New Relic, 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; (iv) decompile, disassemble, reverse engineer or extract any element of and/or otherwise discover any source code, algorithms, methods or techniques embodied in or underlying the Service or Software; (v) encourage or assist any other person to, circumvent or modify any security technologies included as part of the Service or Software; (vi) except as specified herein, modify, transfer, assign, pledge, rent, lease, sell, sublicense, resell, exploit, or create derivative works based on the Service or Software, including but not limited to, any user interfaces; (vii) obtain the Service or Software by any means or device with intent to avoid paying the Fees that would otherwise be payable for such access or use; (viii) remove or destroy any copyrights or proprietary notices contained in the Service, Software or any related materials or documentation or place any third party’s trademarks on such to otherwise imply that such was developed, owned by or proprietary by MSP Partner or any other third party; (ix) use the Service or Software to create, access, display, manipulate, store or distribute any data except to the extent which MSP Partner is expressly authorized to do so by the owner of such data and solely in accordance with MSP Partner agreement with its MSP End Users or Designated Customer; (x) use the Service or Software to create, access, display, manipulate, store or distribute any data or information that infringes or misappropriates the privacy or intellectual property of any third party; (xi) 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; (xii) 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, including to access, alter or destroy any information of New Relic or of another customer of New Relic by any malicious means or device; (xiii) obtain any materials or information through any means not intentionally made available to MSP Partner through the Service or Software; (xiv) 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; (xv) circumvent or modify any security technologies included as part of the Service or Software; (xvi) 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 (xvii) 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: (a) a MSP Partner, its MSP End User(s), or a Designated Customer has not complied with this Section, or (b) the integrity of the Service or the MSP Partner 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 any user, without notice, pending, and during, any investigation of misuse. However, New Relic shall provide MSP Partner 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 Updates. New Relic will make available to MSP Partner 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 (“Update(s)”), and such Updates will be deemed, as applicable, part of the Service, Software, or Documentation. MSP Partner 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 MSP Partner installs the relevant Update, New Relic shall not be liable for any issues with the Service.
2.6 Third Party Services. MSP End Users may choose to use with the Service a product, system, software or service that is not provided with the Service or licensed by New Relic, such as an integration, add-on, application or plug-in (for instance to view or process MSP Partner Data in an alternative manner or share MSP Partner Data with, or to import data from, a third party service into MSP End User’s or Designated Customer’s Account) (“Third Party Services”). MSP End Users’ use of Third Party Services is governed solely by the terms of MSP End User’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 MSP End Users’ obligations under this Agreement. If MSP End Users enable a Third Party Service for use with the Service, MSP End User grants to New Relic permission to interoperate with the Third Party Service, and any data received by New Relic on MSP End User’s behalf from any Third Party Services will be treated as MSP Partner Data under this Agreement, including for purposes of Fees.
3. MSP PARTNER DATA; SECURITY
3.1 MSP Partner Data. Subject to the terms of this Agreement, MSP Partner 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 MSP Partner Data, in each case solely to the extent necessary to provide the applicable Service to MSP Partner and to manage and develop and improve its products and services. New Relic may also access MSP Partner’s Account for maintenance and support. New Relic shall process MSP Partner Data via the Service on behalf of MSP Partner only in accordance with the terms of this Agreement and as necessary to provide the Service.
3.2 Security. New Relic provides MSP Partner with the option to encrypt the transmission of MSP Partner Data. MSP Partner acknowledges that it is the MSP Partner’s responsibility to encrypt the transmission of MSP Partner Data should MSP Partner wish to protect it. In the event MSP Partner or MSP End Users decides not to utilize encryption and transmit MSP Partner Data unencrypted over a network, MSP Partner 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 MSP Partner Data as further described in the Documentation. Except as set forth herein, New Relic will not be liable for MSP Partner’s use of the Service (including MSP Partner’s transmission of MSP Partner Data) over the Internet or other network, or to MSP Partner in the event that such administrative, physical and technical safeguards fail to prevent unauthorized third-party access to MSP Partner Data. New Relic cannot guarantee that its storage or transmission of MSP Partner 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 MSP Partner Data. MSP Partner represents and warrants that it has the rights and licenses, including from its Designated Customers, necessary to grant the license in Section 3.1 and to otherwise provide MSP Partner Data to New Relic in connection with MSP Partner’s and its Designated Customer’s use of the Service and that by providing its MSP Partner Data it will not violate any intellectual property or privacy rights of third parties, confidential relationships, contractual obligations or applicable laws, including that of any MSP End User or Designated Customer. Without limiting the generality of the foregoing, MSP Partner shall, and shall require Designated Customer to, 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 MSP Partner. MSP Partner shall be solely responsible for ensuring that any processing of MSP Partner Data by New Relic and/or MSP Partner via the Service does not violate any applicable laws. MSP Partner, including any MSP End User or Designated Customer, shall not process or submit to the Service any MSP Partner 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, 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 MSP Partner processes data through, or submits data to, the Service in breach of this Section.
3.4 Privacy. MSP Partner, through its use and configuration of the Services, as the data controller, is directing New Relic as its data processor to obtain and collect MSP Partner Data, which based on MSP Partner’s configuration may contain certain personal information relating to users of the application to which MSP Partner applies the Services. The use and collection of Login Credentials by New Relic is necessary for account management and support and shall be in accordance with the Privacy Notice.
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 MSP End User’s access or use of the Service in accordance with this Agreement or the Documentation. The Service will be considered available so long as MSP Partner is able to log in to its interface and view MSP Partner 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, MSP Partner 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. MSP Partner 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 MSP Partner’s sole remedy for failures of Service Availability.
5.1 New Relic Support Obligations. New Relic will provide support to MSP Partner in accordance with the Support Plan as set forth in the Documentation. New Relic will assist MSP Partner directly in providing support to MSP End Users and Designated Customer if MSP Partner is unable to resolve the issue in accordance with the MSP Partner Support Obligations terms herein (in some cases it may be necessary to include the affected MSP End User or Designated Customer in support discussions).
5.2 MSP Partner Support Obligations. MSP Partner shall use New Relic’s support and training materials and Documentation to train its personnel to ensure MSP Partner’s capability for onboarding MSP End Users and Designated Customer(s), including but not limited to: (i) access of the applicable Service; (ii) an MSP End User’s installation, upgrade or downgrade of its New Relic Agents; (iii) MSP Partner escalation of issues to New Relic via the New Relic Support Center (https://support.newrelic.com/) and; (iv) MSP End User’s or Designated Customer(s) utilization of New Relic’s online technical community (https://discuss.newrelic.com/categories) and the Documentation to support its use of the Service in accordance with this Agreement. Additionally, MSP Partner will use best efforts to investigate and resolve any issues related to the use of the Software and/or Service, including but not limited to: (1) installation, upgrade, and downgrade of Software; (2) Software configuration and disabling; (3) interpretation of basic user interface functionality; (4) password resets; (5) report interpretation, and; (6) connectivity issues (e.g. proxy and firewall). In the event a Designated Customer seeks New Relic’s support with the Service and/or Software by submitting a support ticket to the New Relic Support Center, New Relic will refer the Designated Customer to MSP Partner’s general support line (provided the failure by New Relic to do so will not be considered a breach of this section). To that end, MSP Partner shall provide New Relic with MSP Partner’s up-to-date general support contact information during the term of the Agreement. In addition, MSP Partner shall designate an emergency point of contact (“POC”) and provide New Relic with an emergency email address and phone number of such POC to be used only by New Relic should an emergency support issue arise with a Designated Customer’s use of the Service. MSP Partner may update the POC’s emergency contact information upon written notice to New Relic. Upon the reasonable written request of New Relic, MSP Partner shall provide New Relic with a report that provides both summary and detailed information related to support requests received by MSP Partner from MSP End Users or Designated Customer(s) with respect to the Software and/or Service. While MSP Partner remains solely responsible for support, if, after using its best efforts, MSP Partner is unable to resolve an issue, it may escalate a support request through the New Relic Support Center. Upon receipt of a support request, New Relic will work directly with MSP Partner to support MSP End User’s or its Designated Customer’s issue.
5.3 Translations. New Relic makes all support materials and Documentation available only in English. While New Relic does not restrict MSP Partner from translating such materials into other languages (“Translation(s)”), New Relic does not review, approve or warrant the accuracy or completeness of any such Translations. Therefore, any use by MSP Partner, MSP End Users, and/or Designated Customer of Translations is done solely at MSP Partner’s own risk, New Relic disclaims any and all liability related to MSP Partner’s, MSP End User’s, or Designated Customer(s) reliance on or use of Translations, and MSP Partner shall indemnify New Relic against any costs or liabilities incurred related to the use of Translations by MSP Partner, MSP End Users, and/or Designated Customer. Further, with respect to any Translations created and/or used by it, MSP 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 MSP End Users and Designated Customer that Translations are provided for convenience only and not endorsed, provided, or warranted by New Relic; and (3) comply promptly with any request from New Relic to cease to provide, delete, or correct any Translations. Notwithstanding MSP Partner’s use of Translations, any and all support provided by New Relic to MSP Partner, whether or not MSP End Users or Designated Customer are included in support discussions, will be provided in English language only. For the avoidance of doubt, the Documentation provided by New Relic will control in all instances with respect to any conflict with a Translation.
6.1 Pricing. The pricing in any Order Form is confidential and proprietary between New Relic and MSP Partner. Such pricing is not meant for public use and MSP Partner is strictly prohibited from any promotion and advertising of the pricing indicated in an Order Form. MSP Partner’s access to the Service may be terminated immediately, without notice, if: (a) MSP Partner presents or promotes pricing in violation of this Agreement, including on any public materials or websites, (b) New Relic determines that MSP Partner is competing with New Relic by promoting pricing lower than New Relic’s currently advertised list price, or (c) MSP Partner is promoting the Service independently of the MSP Managed Service.
6.2 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.
6.3 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, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). MSP Partner is responsible for paying all Taxes associated with this Agreement. If New Relic has the legal obligation to pay or collect Taxes for which MSP Partner is responsible under this Section, the appropriate amount will be invoiced to and paid by MSP Partner, unless MSP Partner 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.
6.4 Invoicing and Payment. New Relic will invoice MSP Partner 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 thirty (30) days after the date of electronic delivery of an invoice. MSP Partner is responsible for maintaining complete and accurate billing and contact information with New Relic. MSP Partner will be solely responsible for the payment to New Relic, irrespective of whether MSP Partner obtains payment or reimbursement from Designated Customers. In the event that MSP Partner’s (and/or Designate Customer’s) usage of the applicable Service exceeds the licensed entitlements set forth in an applicable Order Form (an “Overage”), MSP Partner shall promptly pay to New Relic, in accordance with the terms and conditions set forth herein and any applicable Order Form, the amount specified in any invoice for MSP Partner’s (and/or Designate Customer’s) Overage.
6.5 Disputes. MSP Partner will be deemed to have waived its right to dispute charges if New Relic does not receive written notice from MSP Partner of any disputed charges from MSP Partner within: (i) fifteen (15) days after the date of electronic delivery of an invoice other than for Overages, or (ii) five (5) business days after the date of electronic delivery for Overage related invoices. Notwithstanding any dispute, MSP Partner will pay any undisputed amount of the invoice on or before the due date. The dispute notice will set forth in reasonable detail the information concerning the disputed charges. The Parties will use good faith efforts to promptly resolve any disputed charges.
6.6 Failure to Pay. MSP Partner’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 thirty (30) days’ notice thereof in accordance with Section 12.2. 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 MSP Partner’s failure to pay any Fees when due after New Relic provides the MSP Partner with thirty (30) days’ notice of such failure. MSP Partner will continue to be charged all applicable subscription Fees for the Service during any period of suspension.
6.7 Overdue Charges. Any Fees not paid when due will accrue interest at the rate of twelve percent (12%) per annum (or one percent (1.0%) per month), or the maximum rate permitted by law, whichever is higher.
7.1 “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, MSP Partner Data is the Confidential Information of MSP Partner. Unless falling into one of the exceptions below, the software underlying the Service and Software are 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.
7.2 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.
7.3 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (i) to any consultant, contractor, subprocessor, service provider, 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.
8. PROPRIETARY RIGHTS
8.1 MSP Partner. Subject to the rights and licenses granted under this Agreement, as between the Parties, MSP Partner retains all right, title and interest (including all intellectual property rights and other rights) in and to the MSP Partner Data. New Relic does not claim any ownership rights to any MSP Partner Data.
8.2 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 MSP Partner 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. MSP Partner does not acquire any rights, express or implied, hereunder other than those rights expressly granted under this Agreement.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual. 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 and use of the Service as applicable.
9.2 New Relic. 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. This limited warranty shall not apply: (a) unless MSP Partner notifies New Relic within 30 days following the date on which it first noticed the non-conformity; (b) if the non-conformity was caused by any misuse, unauthorized modifications, third-party hardware, or Third Party Services; or; (c) to any use of the Services provided on a no-charge or trial basis.
9.3 MSP Partner. MSP Partner represents and warrants that it will not, and will not permit others to, make any agreements, promises, covenants, representations, warranties, or guarantees on behalf of New Relic or regarding the New Relic products or services, including any such commitments in addition to those in the Terms of Service.
9.4 Remedy. In the event of any breach of the above New Relic limited 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 MSP Partner. In the event that New Relic is unable to correct a non-conforming Service, MSP Partner may terminate the applicable Service and receive a refund of pre-paid, unused Fees. New Relic’s obligations hereunder for breach of warranty are conditioned upon MSP Partner 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 MSP PARTNER’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY ABOVE.
9.5 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 SERVICES DOWNLOADED OR OTHERWISE OBTAINED BY MSP PARTNER IN CONNECTION WITH MSP END USER’S USE OF THE SERVICE IS USED AT MSP END USER’S OWN DISCRETION AND RISK, AND MSP PARTNER WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO MSP END USER’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.
10.1 New Relic Indemnification Obligations.
10.1.1 New Relic will indemnify and defend MSP Partner 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 valid claim that MSP Partner’s use of the Service in accordance with the terms of this Agreement infringes any valid, enforceable United States patent or copyright (“MSP Partner Claim”), provided that: (i) New Relic is promptly notified in writing of the MSP Partner Claim, (ii) the indemnified party provides reasonable assistance (at New Relic’s expense) with such MSP Partner Claim, (iii) New Relic is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such MSP Partner Claim, and (iv) MSP Partner does not admit fault or liability of New Relic, of itself, or agree to any settlement of such MSP Partner Claim. New Relic shall have met the obligations of this Section 10 by paying for the costs to litigate a MSP Partner 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 MSP Partner Claim (including costs incurred by MSP Partner 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 MSP Partner will permit New Relic, at New Relic’s option and expense, to: (a) procure for MSP Partner the right to continue using the Service for the MSP Managed Service; (b) replace or modify the Service so that the use becomes non-infringing; or (c) terminate the Service and refund to MSP Partner any Fees paid in advance to New Relic that MSP Partner 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 MSP Partner sole and exclusive remedies with respect to a MSP Partner Claim.
10.1.2 The New Relic Indemnification Obligations above will not apply to any claim to the extent it arises from: (i) any infringement or other claims brought by or against a Designated Customer relating to the Designated Customer’s use of the Service; (ii) any matter for which MSP Partner is obligated to indemnify New Relic; (iii) the Service being modified by MSP Partner or a third party; (iv) 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; (v) compliance by New Relic with MSP Partner or Designated Customer designs, plans, specifications, or instructions; or (vi) MSP Partner’s, MSP End Users’, or Designated Customer’s, continuation of the allegedly infringing activity after being notified of the alleged infringement claim.
10.2 MSP Partner Indemnification Obligations. MSP Partner 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 MSP Partner, MSP End Users, or Designated Customer, (ii) MSP Partner Data or the use thereof, including but not limited to, allegations that processing of MSP Partner Data by New Relic or MSP Partner under this Agreement or the MSP Managed Service infringes the privacy or intellectual property rights of a third-party or violates any applicable law or regulation, (iii) breach of Section 9.3, or (iv) MSP Partner’s unauthorized marketing, sales, or use of the Service or any portion thereof (each a “New Relic Claim”), provided that: (a) MSP Partner is promptly notified in writing of a New Relic Claim, (b) the indemnified party provides reasonable assistance (at MSP Partner expense) with such New Relic Claim, and (c) MSP Partner is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such New Relic Claim. MSP Partner shall have met the obligations of this Section 10 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, fees, or expenses 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).
11. LIMITATION OF LIABILITY
MSP Partner 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). The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF NEW RELIC, ITS AFFILIATES AND THEIR EMPLOYEES AND DIRECTORS TO MSP PARTNER 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 OR LEGAL THEORY WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS MSP PARTNER PAID TO NEW RELIC IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE FOREGOING AGGREGATE LIABILITY LIMITATION WILL NOT APPLY TO CLAIMS OF INDEMNIFICATION MADE UNDER SECTION 10 (INDEMNIFICATION) OR CLAIMS OF BREACH OF SECTIONS 3 (SECURITY) OR 7 (CONFIDENTIALITY), FOR WHICH THE AGGREGATE LIABILITY OF NEW RELIC TO MSP PARTNER AND ITS AFFILIATES IS CAPPED AT THREE TIMES THE FEES PAID IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY.
12. TERM; TERMINATION
12.1 Term; Renewals. This Agreement commences on the Effective Date and will remain in effect as specified 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 thirty (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 MSP Partner 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.
12.2 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 thirty (30) days after written notice thereof. In the event that termination is due to MSP Partner’s material uncured breach, MSP Partner 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, MSP Partner may request to receive a refund of any prepaid, unused Fees, with such termination to be effective thirty (30) days from the date of MSP Partner’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, or if MSP Partner breaches Section 2.1 or 6.1, this Agreement may be terminated immediately upon written notice. Upon termination, the rights and licenses granted to MSP Partner hereunder will terminate immediately.
12.3 Survival. The following Sections will survive termination or expiration of this Agreement: 1 (Definitions); 3.3 (Rights in MSP Partner Data); 6.7 (Overdue Charges); 7 (Confidentiality); 8 (Ownership); 9.5 (Warranty Disclaimer); 10 (Indemnification); 11 (Limitation of Liability); 12.3 (Survival); and 13 (General Terms).
13. GENERAL TERMS
13.1 MSP Partner’s Purchase Order. Any terms or conditions in MSP Partner’s purchase order or any other related documentation submitted by or on behalf of MSP Partner to New Relic, or on any portal required by MSP Partner for submission of any New Relic invoice, do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by both MSP Partner and New Relic.
13.2 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.
13.3 Assignment. Except as provided in this Section 13.3, neither party may assign this Agreement, or any rights or obligations hereunder, whether by operation of law (including by way of sale of assets, merger, consolidation, or otherwise) or voluntarily, without the prior written consent of the other party, such consent not to be unreasonably withheld, and any such assignment or subcontracted arrangement in violation of the foregoing shall be null and void. 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 MSP Partner.
13.4 Notices. Any notice under this Agreement must be given in writing. New Relic may provide notice to MSP Partner via email, through MSP Partner’s Account, or MSP Partner’s address set forth in the Order Form. New Relic’s notices to an MSP Partner will be deemed given upon the first business day after New Relic sends the notice. MSP Partner 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. MSP Partner 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.
13.5 Joint Marketing. Parties agree to make commercially reasonable efforts to engage in joint marketing activities. 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 the terms of this Agreement and such party’s standard trademark usage guidelines. The use of all Trademarks 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 copyrights, patents, trade secrets, trademarks or other intellectual property of the other party. If a party has any concerns with respect to the other party’s use of their 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 and marketing materials. On termination of this Agreement, each party will cease use of the Trademarks of the other party.
13.6 Order of Precedence. In the event of a conflict between the Order Form and the MSP Sell-Through, 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.
13.7 Force Majeure. Neither party will be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (except for its payment obligations) 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”).
13.8 Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach of any covenant contained in the MSP Sell-Through 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.
13.9 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.
13.10 This Agreement is not intended to confer third-party beneficiary rights upon any other person or entity and shall not create any right or cause of action in or on behalf of any person or entity other than the Parties hereto and their successors and permitted assigns. For clarity, New Relic has no obligations to Designated Customers except as set forth in the Terms of Service.
13.11 Anti-Corruption and Export Compliance. MSP Partner 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, MSP Partner may not 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). MSP Partner 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). MSP Partner 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. MSP Partner will not export the Service to a person or entity denied, prohibited, debarred or sanctioned (denied) by the United States Government, and MSP Partner represents that it is not such a denied person or entity.
13.12 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 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.
13.13 Changes to the MSP Sell-Through. New Relic may modify this MSP Sell-Through from time-to-time provided that If a modification materially impacts this MSP Sell-Through, New Relic will use reasonable efforts to notify MSP Partner (by, for example, sending an email to the billing or technical contact MSP Partner designates in the applicable Order Form, posting on New Relic’s website, or through the MSP Partner Account). If New Relic modifies this MSP Sell-Through during MSP Partner’s then-current Subscription Term, the modified version will be posted and will only be effective upon the earlier of: (i) MSP Partner’s next entry into an Order Form; or (ii) MSP Partner’s next renewal of any Subscription Term. If the MSP Partner objects to the updated New Relic MSP Sell-Through, as the MSP Partner’s exclusive remedy, MSP Partner may choose not to renew, including cancelling any Subscription Term set to auto-renew.
13.14 Entire Agreement; Amendments; 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. MSP Partner 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. MSP Partner’s purchasing decision has not relied upon such information nor is dependent on any oral or written public comments made by New Relic. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties hereto. 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. This Agreement may be executed in any number of counterparts (e.g. manual, facsimile, imaged document attached to an email transmission, or electronic signature transmission), each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.