Effective: November 4, 2019
This Agreement governs your (“Customer,” “you,” or “your”) unpaid use of the Service and by clicking on the “I Agree” button on the New Relic account registration page, you represent that (1) you have read, understand, and agree to be bound by the Terms of Service set out below (“Agreement”), (2) you are of legal age to form a binding contract with New Relic, Inc. (“New Relic,” “we,” “our,” or “us,” and collectively with Customer, the "Parties"), and (3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you have named as the user, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, “Customer,” “you,” and “your” will refer to the entity you are representing.
We may update this Agreement from time to time by providing you with notice of material changes. The most current version of this Agreement will be posted on www.newrelic.com (the “Site”). Any changes to this Agreement will be effective immediately for all users in instances to comply with applicable law, for new users of the New Relic Service and, for all other users, any changes to this Agreement will be effective as of fifteen (15) days after posting notice of such changes on the Site. If we determine in our sole discretion that an update is material, we will provide notice of such material change to you through the Service, Site, our blogs or Forums (as defined below), and/or by email to the email address of your account administrator. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. If you do not agree to any change(s), you may notify us of any objection pursuant to the ‘Notices’ section below, and your sole remedy is to stop using the Service by closing your New Relic account. Any such termination by you shall be without penalty except as specified in the Agreement. Otherwise, your continued use of the Service constitutes your acceptance of such change(s). Please check the Site regularly to view our then-current Agreement.
1. The Service
1.1. Use of the Service. New Relic grants to Customer during the term of this Agreement the right to use and access the Service for its internal business purposes only in accordance with the Acceptable Use Policy, Documentation (including any SKU specific policies), and this Agreement. We may choose to modify or discontinue the Service, including any portions of the Service, as we update our offerings and add more features. We may stop, suspend, or modify the Service at any time without prior notice to you. If we suspend or terminate your use, we will try to let you know in advance if practicable.
1.2. Customer Users and Affiliates. The employees and contractors of Customer or Affiliates may access and use the Service on Customer’s or Affiliate’s behalf (each, a “User”). Each User may be required to provide a username, email address, password, or other personal information to create and manage an Account (“Login Credentials”) and must keep its Login Credentials confidential and not share them with anyone. New Relic uses and collects Login Credentials for account management and support in accordance with the New Relic General Data Privacy Notice (currently located at https://newrelic.com/privacy). Customer is responsible for its Users’ compliance with this Agreement and the actions taken through the Account. If Customer becomes aware of any compromise of a User’s credentials, Customer will let New Relic know as soon as possible.
1.3. Support. New Relic provides support to Customer via the public New Relic community forums (“Forums”), currently located at discuss.newrelic.com, and Documentation. Customer’s use of the Forums is governed by the Community Terms (currently located at https://newrelic.com/termsandconditions/communityterms).
1.4. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) use the Service to develop a similar or competing product or service; (b) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be payable for such access or use; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service or any related features; (d) modify or create derivative works of the Service or copy any element of or related features with the Service (other than authorized copies of the Software); (e) publish benchmarks or performance information about the Service; (f) fail to perform or observe the obligations set out in Section 2.4 (Obligations); (g) perform any security integrity review, penetration test, load test, denial of service simulation, or vulnerability scan on New Relic; (h) provide access to or sublicense the Service to a third party other than a Third-Party Service; or (i) use the Service on behalf of, or to provide any product or service to, third parties.
2. Customer Data
2.1. Customer Data Configurations. The Service and related features are designed to provide Customer with control over its configuration and use, including in the types of Customer Data it processes. New Relic refers to the data, information, or content that Customer and Users send to an Account from the Software, the Customer Properties, or Third-Party Services to the Service, as “Customer Data.” The Customer Data will be hosted in the data region that Customer selects during the setup of the Account.
2.2. Use of Customer Data to Provide the Service. New Relic needs a limited license to Customer Data in order to provide the Service. For example, depending on the Service subscribed to, the Service and related features may create visualization aides, such as dashboards, charts, and graphs, which requires, among other rights, a right to create derivative works. Customer grants New Relic a non-exclusive, worldwide right to use, copy, store, transmit, display, modify, and create derivative works of the Customer Data, to the extent necessary to manage, improve, and provide the Service, as well as to provide support to Customer.
2.3. Export of Customer Data; Retention. At any time during the term of this Agreement, Customer may export Customer Data from its Account in supported formats. New Relic retains Customer Data in accordance with the data retention policy applicable to the Service.
(a) Customer, through its use and configuration of the Service, is instructing New Relic to process Customer Data. For example, the type, quantity, and frequency of Customer Data received by New Relic is pursuant to Customer’s decisions and instructions. Customer is responsible for its configuration choices, and any risks resulting from Customer’s disablement of any New Relic default privacy or security settings or features (e.g. disabling encryption of data in transit). Customer shall implement any Software updates immediately after New Relic makes such available for general release. Customer is responsible for Customer Data, including its content and accuracy. Customer agrees that its use of the Service and related features will comply with the Documentation and Acceptable Use Policy.
(b) Customer represents and warrants to New Relic that it has all necessary rights, consents, and permissions to grant New Relic the rights in Section 2.2 (Use of Customer Data to Provide the Service) and to use and submit Customer Data to the Service, all without violating or infringing any applicable laws, third-party rights (including intellectual property, publicity, or privacy rights), or any terms or policies governing Customer Data.
(c) Customer must not send any “Prohibited Data” to the Service, which means any: (1) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (3) credit, debit, or other payment card data or financial account information, including bank account numbers; (4) credentials granting access to an online account (e.g. username plus password); (5) social security numbers, driver’s license numbers, or other government identification numbers; (6) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); or (7) any data similar to the above protected under foreign or domestic laws. Customer also must not use the Service or related features in connection with any activities where its use or failure could lead to death, personal injury, or environmental damage, such as in life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control (collectively, “High Risk Activities”). Customer acknowledges that the Service and related features are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that New Relic is not a Business Associate as defined under HIPAA. Therefore, notwithstanding anything else in this Agreement, New Relic has no liability for Prohibited Data processed, or High Risk Activity-related used, in connection with the Service.
2.5. Systems Operations Data. In order to provide its customers with the benefits of a multi-tenant cloud offering, New Relic may collect and process utilization statistics and other technical data (e.g. page load data) regarding use, configuration, and deployment of the Service in accordance with the New Relic General Data Privacy Notice to operate, manage, improve, instrument, benchmark, and support the Service; provided, New Relic will not disclose any information derived from such data if doing so would make it possible for a third party to identify Customer or any individual natural person.
2.6. Third-Party Services. Customer may choose to use the Service together with Third Party Services. Customer acknowledges that Third-Party Services do not form part of the Service and that Customer’s use of Third-Party Services is subject to Customer’s agreement with the relevant provider and not this Agreement. For clarity, because Third-Party Services are not controlled by New Relic and do not form part of the Service, New Relic bears no responsibility or liability for Third-Party Services, including their security, availability, functionality, or inoperability, or any effect they may have on your Customer Properties or how the Third-Party Services or their providers use Customer Data. If Customer enables a Third-Party Service with the Service, New Relic may access and exchange Customer Data with the Third-Party Service on Customer’s behalf and instruction. Use of the Service with a Third-Party Service does not expand Customer rights or our obligations under this Agreement.
3. Warranties and Disclaimers
3.1. Warranties. Customer represents and warrants that it (a) has full corporate right and authority to enter into this Agreement, and (b) will comply with all laws and regulations in its use of the Service.
3.2. Disclaimers. The Service, support, and all related New Relic services are provided “AS IS”. New Relic and its suppliers make no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. New Relic does not warrant that use of the Service will be uninterrupted or error-free, that we will review Customer Data for accuracy, or that we will maintain Customer Data without loss. New Relic is not liable for issues with the Service due to Customer not installing the latest version of the Software or delays, failures, or problems inherent in the use of the Internet and electronic communications or other systems outside our control. New Relic makes no warranties concerning results to be achieved from the Service. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
4.1. Confidential Information. For the purposes of this Agreement, the Parties define “Confidential Information” to mean any of the information disclosed by New Relic under this Agreement that is designated by New Relic as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. New Relic’s Confidential Information includes any technical or performance information about the Service.
4.2. Obligations. As receiving party, Customer will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. Customer may disclose Confidential Information to its employees, agents, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided Customer remains responsible for their compliance with this Section 4 (Confidentiality) and such parties are bound to confidentiality obligations no less protective than this Section 4 (Confidentiality).
4.3. Exclusions. These confidentiality obligations do not apply to information that Customer can document: (a) is or becomes public knowledge through no fault of Customer; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party’s Confidential Information. Customer may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies New Relic in advance and cooperates in any effort to obtain confidential treatment.
4.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. New Relic may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 4 (Confidentiality).
Neither Party grants the other any rights or licenses not expressly set out in this Agreement. Except for New Relic’s use rights in this Agreement, as between the Parties, Customer retains all intellectual property and other rights in Customer Data. Except for Customer’s use rights in this Agreement, New Relic and its licensors retain all intellectual property and other rights in the Service, the Documentation, and related New Relic technology, services, templates, formats, and dashboards, including any modifications or improvements to these items made by New Relic. If you provide New Relic with feedback or suggestions regarding the Service or other New Relic offerings, we may use the feedback or suggestions without restriction.
6. Limitations of Liability
6.1. Liability Cap. New Relic’s entire liability arising out of or related to this Agreement will be limited to fifty U.S. dollars ($50).
6.2. Consequential Damages Waiver. New Relic will not have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security measures, interruption of business, or any indirect, special, punitive, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
6.3. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 6 (Limitations of Liability) 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 in this Agreement fails of its essential purpose.
7.1. Indemnification. Customer will defend New Relic from and against any third-party claim to the extent related to or arising from Customer Data or Customer’s breach or alleged breach of (a) this Agreement, or (b) any applicable law or regulation, and Customer will hold harmless and indemnify New Relic against any damages or costs awarded against New Relic (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim. Customer may not settle any claim without New Relic’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action. New Relic may participate in a claim with its own counsel at its own expense.
8. Term and Termination
8.1. Term. This Agreement starts on the date you click the “I Agree” button on the Account registration page and continues until terminated as specified herein.
8.2. Termination. New Relic reserves the right to terminate this Agreement at any time, with or without cause, and with or without notice. You may terminate this Agreement at any time by notifying New Relic at firstname.lastname@example.org and closing your Account.
8.3. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s access to the Service will immediately cease and New Relic will delete Customer Data after termination or expiration. Confidential Information may be retained in the Customer’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions. New Relic will have no liability to you related to suspension or termination of this Agreement or your Account.
8.4. Survival. These Sections survive expiration or termination of this Agreement: 1.4 (Restrictions), 2.4 (Obligations), 2.5 (Systems Operations Data), 3.2 (Disclaimers), 4 (Confidentiality), 5 (Ownership), 6 (Limitations of Liability), 7 (Indemnification), 8 (Term and Termination), 9.2 (Governing Law, Jurisdiction, and Venue), 9.3 (Notices), 9.4 (Entire Agreement), and 9.5 (Waivers and Severability).
9. General Terms
9.1. Assignment. Customer may not assign this Agreement without the prior written consent of New Relic. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of Customer’s permitted successors and assigns.
9.2. Governing Law, Jurisdiction, and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions or the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California, and both Parties submit to the personal jurisdiction of those courts.
9.3. Notices. You are responsible for providing us with your most current email address and updating it as applicable. Email notice to you is effective upon dispatch of the email to the last email address provided by you even if the last email address you provided to us is invalid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement. You may give us notice at: New Relic, Inc., 188 Spear Street, Suite 1200, San Francisco, California 94105. Such notice shall be deemed given when received by New Relic by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the foregoing address. Customer may update its address with notice to New Relic in accordance with this Section 9.3 (Notices). New Relic may provide notices to Customer electronically which includes but is not limited to email or through the Service.
9.4. Entire Agreement. This Agreement, the Documentation, and any addenda or policies otherwise made available on the Site by New Relic is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. Customer’s use of the Service is not contingent on delivery of any future functionality or features. This Agreement applies to the Service only, and does not apply to any paid New Relic offering or pre-release use of New Relic products or services. Pre-release use of the New Relic products or services is governed by the Pre-Release Policy as set out in the Documentation. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. The terms in any Customer purchase order, business form, online terms (i.e. click-wrap or browse-wrap), or invoicing portal will not amend or modify this Agreement and are expressly rejected; any of this documentation is for Customer’s own administrative purposes only and is not binding on New Relic.
9.5. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
9.6. Force Majeure. New Relic is not liable for any delay or failure to perform any obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
9.7. Service Support Providers. New Relic uses third-party hosting and other service providers (e.g. data center providers or support ticketing systems) in our supply of the Service and related features and support.
9.8. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers.
9.9. Open Source Software. To the extent New Relic separately makes available other open source software (“OSS”) for download (e.g. community tools), such code is governed by the terms of the applicable OSS license. To the extent required, the license for any OSS included in the Software, identified in the Documentation, will apply to the OSS instead of this Agreement.
9.10. Anti-Corruption and Export. Customer will, and will cause its employees, consultants, and agents to, comply with the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. Customer agrees to comply with all applicable laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control, or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designated countries, entities, and persons (“Sanctions Targets”); and agrees not to directly or indirectly export, re-export, or otherwise deliver the Service to a Sanctions Target, or broker, finance, or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that Customer is not a Sanctions Target or prohibited from receiving the Service. The Service will be used for non-prohibited, commercial purposes by non-prohibited Users and will not be exported or transferred to China or any Sanctions Target.
9.11. Government End-Users. Any United States federal, state, or local government customers are subject to the Government Addendum set forth in the Documentation in addition to this Agreement.
GLOSSARY OF TERMS USED:
“Account” means the online account or subaccounts that New Relic provides for Customer to manage its use of the Service.
“Affiliate” means an entity where Customer owns greater than 50% of the voting securities, provided that such an entity will be considered an Affiliate for only such time as such equity interest is maintained.
“Customer Properties” includes Customer’s websites, infrastructure, networks, mobile applications, or other systems, as well as Customer accounts on Third-Party Services.
“Documentation” means the New Relic technical guides and documentation made available from the dedicated ‘Documentation’ page of the New Relic website.
“Service” means the generally-available New Relic proprietary cloud service provisioned for use on an unpaid, evaluation, or trial basis, the Software, and any updates, corrections, bug fixes, modifications, improvements, new features, and functionality (made generally available to New Relic’s customer base) thereto.
“Software” means the distributed software, APIs, scripts, or other code proprietary to New Relic provided with the Service.
“Third-Party Services” means any third party platform, add-on, service, or product not provided by New Relic and that a User integrates or enables for use with the Service, including third-party applications and plug-ins.