Last Updated: February 19, 2019
These Referral Terms (“Terms”), together with any Referral Form(s) (as defined herein) entered into from time-to-time (an applicable Referral Form and these Terms, together the “Agreement”), is entered into by and between New Relic, Inc., a Delaware corporation, having its principal place of business at 188 Spear Street, Suite 1200, San Francisco, CA 94105 (“New Relic”) and Partner (as defined and set forth in the Referral Form) (“Partner”) (collectively the “Parties”).
These Terms shall become binding once the Parties sign a Referral Form referencing these Terms, in the manner provided hereunder, thereby Partner assents to these Terms and represents that Partner has read, understands, and agrees to be bound by these Terms.
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 partners and, for all other partners, any changes to the Terms will be effective five (5) business days after posting notice of such changes.
In consideration of the mutual agreements contained herein and intending to be legally bound hereby, the Parties agree as follows:
1. Non-Exclusivity. This Agreement does not grant any exclusivity to Partner. Each party may work with or recommend similar products and services of third parties.
2. Referral Relationship. From time-to-time, Partner may notify New Relic in writing, through a submission on the New Relic partner online portal, or otherwise (such writing or submission, the “Referral Form(s)”) of its desire to introduce a potential client opportunity (“Opportunity Referral Client(s)”) to New Relic. If New Relic desires an introduction to an Opportunity Referral Client, New Relic will provide the Referral Form to Partner for execution. New Relic will not unreasonably withhold its execution of the Referral Form, which execution of the Referral Form may be refused if the potential Opportunity Referral Client is: (i) already an opportunity known to New Relic, (ii) a current customer of New Relic, or (iii) an entity that New Relic does not wish to be associated with, in New Relic’s sole discretion. Upon the receipt of an executed Referral Form from New Relic, Partner will facilitate an introduction to the applicable Opportunity Referral Client (“Introduction”) to explore a sale by New Relic of its products or services (“New Relic Service”) to such Opportunity Referral Client (“Potential Sales Transaction”) and provide such other assistance as reasonably requested by New Relic from time-to-time. Partner acknowledges that New Relic intends to directly and indirectly develop, promote, market, solicit orders for, sell and deploy the New Relic Service and New Relic’s prospects could also be prospects or current customers of Partner. Any cooperation between the Parties with respect to shared prospects will be decided on a case by case basis between the Parties. For the avoidance of doubt, failure to send an executed Referral Form to Partner shall in no way be construed by Partner as New Relic’s approval to facilitate an Introduction or otherwise proceed under the assumption that any Success Fee (as defined below) will be owed to Partner relating to a Potential Sales Transaction. Furthermore, Partner understands and agrees that New Relic: (a) responds to Referral Forms in the order in which they are received, and (b) will never pay more than one Success Fee (as defined below) per Potential Sales Transaction.
3. Ownership. As between New Relic and Partner, New Relic retains all right, title and interest (including all intellectual property rights and other rights) in and to the New Relic Service. Partner shall not acquire any rights of ownership to any copyrights, patents, trade secrets, trademarks or other intellectual property of New Relic. Partner will not take any action that jeopardizes New Relic’s or its suppliers’ proprietary rights or acquire any right in the New Relic Service or Confidential Information (as further defined). This Agreement does not grant Partner the status of an authorized reseller of New Relic, nor provide Partner with the right to access or use the New Relic Service. Any rights not expressly granted herein are reserved by New Relic. For clarity, New Relic will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations provided by Partner relating to the New Relic Service and software or New Relic’s partner program (“Feedback”). Any intellectual property rights which may be created as a result of New Relic using or acting upon any such Feedback shall vest in, and remain the property of, New Relic.
4.1. Partner Conduct. Partner will conduct all its business in its own name and in accordance with the highest business standards. Partner shall not engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to New Relic or the New Relic Service, nor will Partner take any action intended, or would reasonably be expected, to harm New Relic or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity of New Relic. Partner will not, and will not permit others to, make any agreements, promises, covenants, representations, warranties or guarantees concerning New Relic or the New Relic Service.
4.2. Marketing and Trademarks/Logos. Partner will only provide materials and information to an Opportunity Referral Client regarding New Relic as approved by New Relic in advance in writing. Partner shall not describe the New Relic Service or its functionality to the public, an Opportunity Referral Client, or to its customers in a way that implies or states that the New Relic Service is owned or has been developed by Partner, and when referring to the New Relic Service or its functionality in any context, Partner shall credit New Relic. New Relic will provide appropriate language and/or its trademarks or logos for Partner to utilize in any of its publicity or marketing material, which shall not be modified in any way without New Relic’s prior written approval. All usage of New Relic trademarks by Partner are subject to New Relic’s trademark usage guidelines. Notwithstanding the foregoing, all use of the “New Relic” name and/or its trademarks must be pre-approved in writing by New Relic prior to its use, distribution, publication or otherwise. If New Relic notifies Partner of any incorrect usage of New Relic’s name, logos or other intellectual property, Partner shall promptly correct or cease such usage. Upon termination of this Agreement, Partner shall will cease usage of all New Relic trademarks.
5. Compensation, Invoicing, Timing; Requirements, and Taxes.
5.1. Compensation. Partner is solely responsible for providing complete and accurate billing and contact information to New Relic, as set forth in the Referral Form. Partner shall bear its own costs and expenses incurred in connection with its performance of its obligations under this Agreement. For purposes of this Agreement, unless otherwise expressly set forth in the Referral Form, a “Success Fee” shall be ten percent (10%) of the amount of Net Revenue (as defined in Section 5.3.1. below) received by New Relic, from the specific Opportunity Referral Client indicated in the Referral Form to Partner. Subject to Sections 5.2 and 5.3 below, New Relic will pay Partner a Success Fee. For the avoidance of doubt, if Partner is paid a Success Fee, it will not be eligible for any other payments, discounts or other fees pursuant to any other agreement for the same applicable Potential Sales Transaction. Success Fees are capped at $25k for each Potential Sales Transaction.
5.2. Timing. Success Fees are payable following the conclusion of each calendar quarter, provided that Success Fees for such calendar quarter exceed $500. If Success Fees do not exceed $500, the Success Fees are payable following the end of each calendar year. Subject to the foregoing, Success Fees are due net 60 days from the conclusion of each calendar quarter in which New Relic’s receipt of Net Revenue from the Opportunity Referral Client was received.
5.3. Requirements. A Success Fee will only be due if the Potential Sales Transaction has been consummated as a direct result of an Introduction within one hundred and eighty (180) days after New Relic has executed a Referral Form for such Opportunity Referral Client and is based on date stamp of the Referral Form to Partner from New Relic.
5.3.1. Definition of Net Revenue. Unless otherwise expressly set forth in the Referral Form, “Net Revenue” shall mean the recurring fees paid by an Opportunity Referral Client to New Relic for: (i) its first year subscription of its initial order to the New Relic Service (the “Initial Order”), and (ii) subsequent orders related to its first year subscription of the New Relic Service prior to the one (1) year anniversary date of the Initial Order (“Eligible Subsequent Order”). Net Revenue shall include the fees received by New Relic from such Opportunity Referral Client for the Initial Order and Eligible Subsequent Order(s), provided that such fees are received by New Relic prior to the one (1) year anniversary date of the Initial Order (“Referral Window”). For the avoidance of doubt, recurring fees received by New Relic during the Referral Window shall be deemed to be part of the same Success Fee for the applicable Potential Sales Transaction. Net Revenue excludes any fees received by New Relic from the Opportunity Referral Client after the Referral Window, any overage fees, professional service fees such as (but not limited to) implementation and optimization fees, any service or other credits or other refunds, any support fees, consulting fees, taxes, duties or other like charges or any amounts that either party is obligated to pay to third parties in fulfillment of the respective opportunity. For the avoidance of doubt, any reference to the New Relic Service initially ordered herein shall be a reference to both the quantity and the actual New Relic Service initially ordered by the Opportunity Referral Client.
5.4. Taxes. Partner is responsible for sales, use, excise, or other taxes imposed with respect to this Agreement except that taxes based on New Relic’s gross or net income are the sole responsibility of New Relic. Partner will not be responsible for payment of any taxes for which it provides evidence of a valid resale exemption or other exemption of taxes.
6. License Restrictions. Partner shall not, and shall not permit others to: (i) make any agreements, promises, covenants, representations, warranties or guarantees concerning New Relic or the New Relic Service; (ii) register, or attempt to register, any competing intellectual property rights to the New Relic Service or delete or tamper with any proprietary notices on or in the New Relic Service; (iii) modify, decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or create source code for the New Relic Service; (iv) use, distribute, copy, duplicate, or otherwise reproduce all or any part of the New Relic Service; (v) enable access to the New Relic Service or Software by any third party (including for the purposes of building a similar or competitive website, application, software, or service), except with the prior written consent of New Relic; or (vi) use any New Relic Confidential Information (as further defined) or intellectual property without the prior written approval of New Relic: (a) to create, distribute, sell, license, market or promote any Partner or third party technology or service; or (b) in conjunction with any third party technology. Further, no distribution by Partner of the New Relic Service shall be permitted without the express prior written consent of New Relic.
7. Confidential Information. “Confidential Information” means all confidential information in oral, written, graphic, electronic or other form furnished to Partner 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, the software underlying the New Relic Service is the Confidential Information of New Relic. Confidential Information does not include data or information which: (a) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of Partner; (b) was known to Partner at the time of disclosure without an obligation of confidentiality, as demonstrated by competent evidence; (c) is disclosed after written approval of New Relic; (d) becomes rightfully known to Partner from a source other than New Relic without an obligation of confidentiality; or (e) is developed by Partner independently of New Relic’s Confidential Information as demonstrated by competent evidence. Partner will not: (A) disclose the Confidential Information to a third party or (B) use the Confidential Information for any purpose other than as indicated in this Agreement without New Relic’s prior written approval. Partner agrees to notify New Relic promptly of any unauthorized disclosure of Confidential Information and to assist New Relic in remedying any such unauthorized disclosure. Except as set forth herein, Partner will protect New Relic’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Partner uses to protect its own information of similar character. All Confidential Information of New Relic will remain New Relic’s sole property and Partner will have no interest in or rights with respect thereto except as expressly set forth in this Agreement. The obligation of confidentiality will survive any termination of this Agreement. Notwithstanding the foregoing, Partner may disclose New Relic’s Confidential Information to the extent required: (y) 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 this Agreement, with the Partner (or has a duty of confidentiality to the Partner) or (z) 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, that Partner shall, unless legally prohibited, provide New Relic with reasonable prior written notice sufficient to permit New Relic an opportunity to contest such disclosure. If Partner commits, or threatens to commit, a breach of its confidentiality obligations, New Relic shall have the right to seek injunctive relief from a court of competent jurisdiction.
8. Warranties. Partner represents, warrants and covenants that: (i) it has the right to enter into this Agreement and perform its obligations in the manner contemplated herein; (ii) it has not entered into, nor will it enter into during the Term, any agreement with any third party that is in conflict with the rights granted herein; (iii) it is duly organized, validly existing and in good standing in the jurisdiction of its formation; (iv) it is qualified and licensed to do business and in good standing in every jurisdiction where qualification and licensing is required for purposes of this Agreement; (v) its acceptance of this Agreement by Partner’s representative has been duly authorized by all necessary action of Partner; (vi) this Agreement will constitute the legal, valid and binding obligation of Partner, enforceable against Partner in accordance with its terms; (vii) it will not: (a) misrepresent the functionality of the New Relic Service or (b) issue any warranty or representation regarding the New Relic Service; (viii) it will not use New Relic’s trademarks for purposes beyond the scope of this Agreement.
9. Anti-Corruption and Export Compliance. Partner represents, warrants and covenants that: (i) it is aware of, understands, has complied with, and will comply with, all applicable laws, restrictions, regulations, including the United States Export Administration Act or any other import or export laws (“Export Laws”) and all applicable U.S. and foreign anticorruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act and U.K. Bribery Act 2010; (ii) none of its principals or staff are agents or representatives of governments (as defined or identified by local law, regulation or custom) or government agencies in the territory where a potential client or Opportunity Referral Client is located; and (iii) if the New Relic Service is identified as export controlled items under the Export Laws: (a) Partner will not approach potential clients in prohibited countries, (b) Partner is not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea), and (c) Partner is not otherwise prohibited under the Export Laws from partnering with New Relic.
10. Disclaimer. THE NEW RELIC SERVICE AND ALL RELATED SOFTWARE, DOCUMENTATION AND OTHER INFORMATION AND MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE AND NEW RELIC DISCLAIMS AND MAKES NO ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE NEW RELIC SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS, NEW RELIC MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE NEW RELIC SERVICE OR SOFTWARE OR ANY RESULTS TO BE ACHIEVED THEREFROM.
11. Indemnification. Partner will indemnify and (at New Relic’s option) defend New Relic, its affiliates, and each of its officers, directors, agents, employees, resellers or other partners and licensors from and against any claim, loss, cost, liability or damage, including reasonable attorneys’ fees, for which New Relic becomes liable arising from or relating to: (i) any claim of infringement or misappropriation of any intellectual property to the extent any such claim is caused by or related to actions taken or allowed by Partner, (ii) Partner’s unauthorized marketing, sales, or use of the New Relic Service or any portion thereof, including the misrepresentation of the functionality of, or the issuance of any warranty or representation regarding, the New Relic Service or New Relic’s products or services not specified in this Agreement, (iii) any breach by Partner of this Agreement, (iv) Partner’s violation or alleged violation of any applicable laws, or (v) the conduct of Partner’s business (each, a “New Relic Claim”). Subject to the terms set forth in this Section, Partner shall have the full responsibility for and control of the defense, at its sole cost and expense (including any settlement), of any suit or proceeding; provided, however, that (i) Partner is promptly notified in writing of a New Relic Claim, (ii) the Parties shall reasonably cooperate with and inform each other of the progress of such litigation and settlement, at Partner’s expense, and (iii) the Partner shall not have the right to settle any such claim without the prior written approval of an officer of New Relic if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to, or admission or acknowledgment of, any wrongdoing (whether in tort or otherwise) on the part of New Relic.
12. Limitation of Liability. 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, REVENUE, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NEW RELIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE NEW RELIC SERVICE; THE PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY FAILURE OF THE NEW RELIC SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE NEW RELIC SERVICE; TERMINATION OR SUSPENSION OF AN ACCOUNT; TERMINATION OF THESE TERMS; DATA INFORMATION OR SERVICES PURCHASED OR OBTAINED, MESSAGES RECEIVED OR CONDUCT OF THIRD PARTIES, OR TRANSACTIONS ENTERED INTO WITH THIRD PARTIES THROUGH OR FROM THE NEW RELIC SERVICE; OR ANY OTHER MATTER RELATING TO THE NEW RELIC SERVICE OR THIS AGREEMENT. PARTNER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THESE TERMS OTHER THAN AS EXPRESSLY PROVIDED HEREIN. THE AGGREGATE LIABILITY OF NEW RELIC FOR ANY DAMAGES ARISING FROM OR RELATING TO THE NEW RELIC SERVICE OR RELATED DOCUMENTATION, INFORMATION, MATERIALS OR THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: (I) US$5,000 OR (II) THE AMOUNTS PAID BY NEW RELIC TO PARTNER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE CAP ON LIABILITY IN THIS SECTION 11 SHALL NOT APPLY TO DEATH OR BODILY INJURY, FOR WHICH THE LIABILITY SHALL BE UNLIMITED. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NEW RELIC HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN NEW RELIC AND PARTNER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATIONS APPLY EVEN IF THE NON-BREACHING PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.
13. Term; Termination.
13.1. Term. Unless terminated earlier in accordance with this Agreement, this Agreement shall commence on the Referral Form Effective Date (as defined in the Referral Form) and remain in effect until the earlier of: (i) if the Referral Form indicates that the Terms are applicable only to one Opportunity Referral Client, upon payment of the Success Fee associated with the consummated Potential Sales Transaction, if any Success Fee is due to Partner, or (ii) if the Referral Form indicates that these Terms shall continue for multiple Opportunity Referral Clients, for a period of one (1) year thereafter (“Initial Term”). Upon the conclusion of the Initial Term, these Terms will automatically renew for consecutive periods of one (1) year (“Renewal Term(s)”) unless either party notifies the other in writing of its desire that these Terms not renew at least thirty (30) days prior to the end of the then-current term. The Initial Term along with any Renewal Terms is referred to herein as the “Term”.
13.2. Termination. Partner may terminate this Agreement for convenience upon the delivery of thirty (30) days prior written notice to New Relic. New Relic may terminate this Agreement, in whole or in part, upon written notice to Partner. Either Party may terminate this Agreement upon written notice to the other party in the event that: (i) the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice thereof; or (ii) if either party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization.
13.3 Effects of Termination. In the event of any termination, all licenses granted in the Agreement to Partner shall immediately terminate, and Partner shall immediately return to New Relic all material belonging to New Relic or its licensors, including without limitation all copies of New Relic’s Confidential Information, and shall promptly certify to New Relic in writing that Partner has done so. Further, any outstanding Success Fees that have been earned by Partner prior to termination of these Terms or an applicable Referral Form shall be payable by New Relic in accordance herein. No additional Success Fees shall be earned by the Partner after any termination of this Agreement or an applicable Referral Form.
14. Miscellaneous. 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. Except for payment obligations, neither party is liable for any delay or failure to perform its obligations under this Agreement due to any cause directly or indirectly beyond its reasonable control, provided that each party will take commercially reasonable steps to minimize any delays or failures. No failure of either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights. Partner may not assign any of its rights or delegate any of its obligations under this Agreement without New Relic’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and the unenforceable provision shall be interpreted so as to render it enforceable while approximating the Parties’ intent as closely as possible. All notices and consents required or permitted to be given in these Terms shall be in writing to the parties at the addresses designated in the Referral Form or to such other address as either party may designate to the other by written notice, and shall be effective upon receipt. Written notice shall be made in the form of a certified letter, confirmed facsimile transmission, or acknowledged receipt of electronic mail. There are no third party beneficiaries to this Agreement. The provisions of this Agreement, which by their nature survive termination or expiration, shall survive termination or expiration of this Agreement.
15. Controlling Law; Entire Agreement. 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 state or federal courts located in San Francisco, California. New Relic may seek injunctive or other emergency relief in any competent court for breaches of Section 3, 4, 6, 7. These Terms are in the English language only, which language shall be the governing language and controlling in all respects. These Terms and any applicable Referral Form 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.