Last Updated: March 10, 2017
This New Relic Paid Customer Agreement (the “Agreement”) governs your paid subscriptions for New Relic product and services and is between you and New Relic, Inc. (“New Relic”). Wherever used in this Agreement, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Service. If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
By executing a New Relic Order Form that references the link to this Agreement found at: https://newrelic.com/paid_terms/nr_paid_terms you are “accepting” and “agreeing” to the terms of this Agreement for your paid Subscription Term.
Any New Relic Unpaid Account (as defined below) or any previously paid account that downgrades to an Unpaid Account are not governed by this Agreement, but by the terms published at: https://newrelic.com/terms.
“Customer Users” means the individual user(s) authorized by the Customer to access and use the Service on Customer’s behalf.
“Customer Data” means electronic data and information uploaded, submitted or otherwise transmitted to or through the Service, including data transmitted by Software (defined below) deployed by Customer.
“Documentation” means installation guides and other documentation related to the Service made available to Customer by New Relic at: https://docs.newrelic.com/docs.
“Fees” means the subscription fees, use fees and any other fees to be paid by Customer described in an Order Form.
“Order Form” means the mutually executed purchasing documents entered into by the parties.
“Service(s)” means the software-based service described in an Order Form.
“Software” means the version of the software, including New Relic “Agents” that New Relic may license to Customer in connection with the Service.
“Subscription Term” means the period of time during which New Relic permits Customer to access a Service as specified in an Order Form and any subsequent paid renewal, as set forth in this Agreement.
“Unpaid Account” means a no-cost trial or lite account for a New Relic product or service.
2. USE OF THE SERVICE
2.1 Subscription Grant. Subject to compliance with the terms and conditions of this Agreement, New Relic grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable right during the Subscription Term to: (i) access and use the Service for its internal, business purposes; and (ii) use the Documentation in support of such access and use of the Service.
2.2 Software License. New Relic may provide Customer with access to the Software for use in connection with the Service. If New Relic provides Customer with access to Software, New Relic hereby grants to Customer a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable Subscription Term in accordance with this Agreement and the Documentation.
2.3 Use. New Relic may require Customer and Customer Users to create a user account, including a user name and password or other login credentials (“Login Credentials”). Customer and Customer Users are responsible for maintaining the confidentiality and security of the Login Credentials. Customer is responsible for all acts and omissions of each individual Customer User that Customer permits to use the Service.
2.4. Restrictions of Use. Customer will not: (i) use the Service except as permitted hereunder; (ii) decompile, disassemble or reverse engineer any software underlying the Service; (iii) host, sell, resell, rent, exploit or lease the Service or any portion of the Service or use the Service for time sharing purposes or on a service bureau basis; (iv) remove any copyright or proprietary notices contained in the Service or place any third party’s trademarks on the Service or otherwise imply that the Service was developed, owned by or proprietary to Customer or any other third party; (v) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the Fees; (vi) enable access to the Service by any third party except as otherwise provided in this Agreement or with the prior written consent of New Relic; (vii) use the Service to access, alter or destroy any information of another customer of New Relic by any malicious means or device; (viii) use the Service to introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of another party’s computer, property or information; (ix) use the Service intending 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; (x) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (xi) use the Service to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or other intellectual property (including copyright) of others or otherwise violate any applicable law; (xii) circumvent or modify any security technologies included as part of the Service; (xiii) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan (including without limitation by use of any tool designed to automatically emulate the actions of a human user in connection with such testing) on the Service; or (xiv) attempt or permit any third party to do any of the foregoing. New Relic may suspend usage of the Service by any user, without notice, pending any investigation of misuse.
2.5 Third Party Software and Services. The Service may allow Customer to download, access and use software applications and software services not included in the Service. Such applications and services may be provided by New Relic, its suppliers or other third parties. New Relic is not responsible for applications and services not licensed by New Relic. In addition, New Relic may provide software through the Service that is governed by an open source license. If there are provisions in those open source licenses that expressly conflict with this Agreement, then the relevant open source license terms will apply. Please review the New Relic license page for the licenses governing Agents and third party technology at: https://docs.newrelic.com/docs/licenses.
3. CUSTOMER DATA; SECURITY
3.1 Customer Data. Subject to the terms of this Agreement, Customer hereby grants to New Relic a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit and create derivative works of the Customer Data, in each case solely to the extent necessary to provide the applicable Service to Customer. New Relic may also access Customer’s account in order to respond to Customer’s support requests. Customer and New relic will work together in good faith as necessary to comply with any changes or updates to applicable laws. The parties acknowledge that Customer is the “data controller” and New Relic its “data processor” in respect of any “personal data” which is “processed” as part of the Service. New Relic reserves the right to transfer Customer Data to the United States for processing in connection with its provision of the Service. New Relic shall process Customer Data via the Service on behalf of Customer only in accordance with the terms of this Agreement and as necessary to provide the Service.
3.2 Security. New Relic provides Customer with the option to encrypt the transmission of Customer Data and the Service will include administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data as further described in the Documentation. While New Relic promises to employ these safeguards, Customer acknowledges that it is the Customer’s responsibility to encrypt the transmission of Customer Data should Customer wish to protect it. In the event Customer decides not to utilize encryption and transmits Customer Data unencrypted over a network, Customer assumes all related risks for doing so. New Relic will not be liable for any liabilities arising from the Customer’s use of the Service (including Customer’s transmission of Customer Data) over the internet or other network, nor will New Relic be liable to Customer in the event that the use of administrative, physical and technical safeguards (including firewalls, encryption or other similar technology or techniques) fails to prevent unauthorized third party access to Customer Data. Nothing in this Agreement will constitute a representation or warranty by New Relic that Customer Data storage or transmission will be inaccessible to unauthorized third parties. Liability for New Relic’s failure to maintain or protect Customer Data is limited by Section 10 (Limitation of Liability).
3.3 Rights in Customer Data. Customer represents and warrants that it has the rights and licenses necessary to grant the license in Section 3.1 and to otherwise provide Customer Data to New Relic in connection with Customer’s use of the Service and that by providing its Customer Data it will not violate any intellectual property or privacy rights of third parties, confidential relationships, contractual obligations or applicable laws. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Service by New Relic and/or Customer. Customer shall be solely responsible for ensuring that any processing of Customer Data by New Relic and/or Customer via the Service does not violate any applicable laws. Customer shall not process or submit to the Service any Customer Data that includes any (i) “protected health information,” as defined under the Health Insurance Portability and Accountability Act; (ii) “personal information” about individuals under the age of 13 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 Directive 95/46/EC of the European Parliament, Regulation (EU) 2016/679 of the European Parliament, or any national laws adopted pursuant to any of the foregoing (collectively, “EU Privacy Law”), about residents of Switzerland and any member country of the European Union, including personal data revealing racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense. New Relic shall not be liable to the extent that the Customer processes data through, or submits data to, the Service in breach of this Section 3.3.
4. SUPPORT; FEEDBACK
4.1 Support. New Relic will make support available to Customer as specified on the Order Form. New Relic will make available to Customer any updates, corrections, bug fixes, modifications, improvements, additions, upgrades to the Service and/or any enhancements made to the Service and Documentation that are made generally available to New Relic’s customer base (“Updates”), which such Updates will be deemed, as applicable, part of the Service.
4.2 Feedback. At all times New Relic will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations provided by Customer relating to the Service (“Feedback”) and such Feedback will not be considered Confidential Information of Customer.
5.1 Fees. Except as otherwise specified herein or in an Order Form, (i) Fees are quoted and payable in United States Dollars, (ii) Fees are based on subscriptions purchased and not actual usage, and (iii) payment obligations are non-cancelable and Fees paid are non-refundable.
5.2 Taxes. Unless otherwise stated in the Order Form, New Relic’s Fees and pricing do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with this Agreement. If New Relic has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provide New Relic with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, New Relic is solely responsible for taxes assessable against it based on New Relic’s income, property and employees.
5.3 Invoicing and Payment. New Relic will invoice Customer in advance and in accordance with the applicable Order Form. Unless otherwise stated in an Order Form, invoiced charges will be paid no more than 30 days after the date of electronic delivery of an invoice. Customer is responsible for maintaining complete and accurate billing and contact information with New Relic.
5.4 Failure to Pay. Customer’s failure to pay any Fees when due is a material breach of this Agreement for which New Relic may provide notice of breach and terminate the Agreement after 30 days notice thereof in accordance with Section 11.4. 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 failure to pay any Fees when due after 30 days notice of such failure. Customer will continue to be charged all applicable subscription Fees for the Service during any period of suspension.
5.5 Overdue Charges. Any Fees not paid when due will accrue interest at the rate of 12% per annum (or 1.0% per month), or the maximum rate permitted by law, whichever is higher.
5.6. Future Functionality. Customer acknowledges and agrees that any information provided by New Relic regarding potential future products, features, or functionality is intended to outline New Relic’s general product direction and should not be relied upon by Customer in making a purchasing decision.
6.1 “Confidential Information” means all confidential information in oral, written, graphic, electronic or other form including, but not limited to, past, present and future business, financial and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formulae, analyses, trade secrets, ideas, inventions, discoveries, methods, processes, know-how, computer programs, source code, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings and any other data or information disclosed, whether orally, visually or in writing. Unless falling into one of the exceptions below, Customer Data is the Confidential Information of Customer. Unless falling into one of the exceptions below, the Software underlying the Service is the Confidential Information of New Relic. Confidential Information does not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, 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) is disclosed after written approval of the disclosing party; (iv) becomes known to the receiving party from a source other than the disclosing party without an obligation of confidentiality; or (v) is developed by the receiving party independently of the disclosing party’s confidential information as demonstrated by competent evidence.
6.2 Neither party will: (i) disclose the other party’s Confidential Information to a third party or (ii) use the Confidential Information for any purpose other than as indicated in this Agreement without the disclosing party’s prior written approval. The receiving party agrees to notify the disclosing party promptly of any unauthorized disclosure of Confidential Information and to assist the receiving party in remedying any such unauthorized disclosure.
6.3 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, and neither party will use the Confidential Information for any purpose not described herein or disclose the other party’s Confidential Information without first obtaining the written consent of the disclosing party. 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. Neither party will reverse engineer, decompile or otherwise attempt to discover the source code version of any software included in Confidential Information. The obligation of confidentiality will survive termination of this Agreement.
6.4 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (i) to any consultant, contractor, advisor or counsel who has a bona fide need to know in connection with this Agreement and has executed a protective non-disclosure agreement 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. If a party commits, or threatens to commit, a breach of its confidentiality obligations, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction.
7.1 Ownership of Customer Data. Customer retains all right, title and interest (including all intellectual property rights and other rights) in and to the Customer Data. New Relic does not claim any ownership rights to any Customer Data.
7.2 New Relic Ownership. As between New Relic and Customer, New Relic retains all right, title and interest (including all intellectual property rights and other rights) in and to the Service, including any Updates, subject only to the limited subscription grant expressly set forth herein. Customer does not acquire any other rights, express or implied, in the Service other than those rights expressly granted under this Agreement.
8. LIMITED WARRANTY AND DISCLAIMER
8.1 Authority. Each party represents and warrants that it has the full right and authority to enter into, execute and perform its obligations under this Agreement. Each party warrants that it will comply with all applicable laws and regulations in providing and using the Service.
8.2 Limited Warranty. New Relic warrants that the Service, when used in accordance with the Documentation and when used as authorized herein, will perform substantially in accordance with the Documentation during the Subscription Term.
8.3 Remedy. New Relic’s sole obligation and Customer’s exclusive remedy for any breach of the above warranty is limited to New Relic’s reasonable commercial efforts to correct the non-conforming Service at no additional charge to the Customer. In the event that New Relic is unable to correct a non-conforming Service, Customer may terminate this Agreement and receive a refund of all pre-paid, unused Fees. New Relic’s obligations hereunder for breach of warranty are conditioned upon Customer notifying New Relic of such breach in writing and providing New Relic with sufficient evidence of such non-conformity to enable New Relic to reproduce and/or verify the same. THE FOREGOING REMEDY IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY ABOVE.
8.4 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY MADE ABOVE, THE SERVICE AND ALL RELATED SOFTWARE, DOCUMENTATION AND OTHER INFORMATION AND MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE AND NEW RELIC DISCLAIMS AND MAKES NO ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEW RELIC MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO THE CUSTOMER.
9.1 New Relic Indemnification Obligations.
9.1.1 New Relic will indemnify and defend Customer and their officers, directors and employees from any third party claim, suit or proceeding brought against such a party to the extent that it is based on a claim that Customer’s use of the Service in accordance with the terms of this Agreement infringes any United States patent or copyright (“Customer Claim”), provided that: (i) New Relic is promptly notified in writing of the Customer Claim, (ii) the indemnified party provides reasonable assistance (at New Relic’s expense) with such Customer Claim, (iii) New Relic is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such Customer Claim, and (iv) Customer does not admit fault or liability of New Relic or of itself. New Relic shall have met the obligations of this Section 9 by paying for the costs to litigate a Customer Claim to conclusion and paying the final judgment awarded to the third party claimant (and any costs or fees awarded to the third party as part of such judgment), or by paying to settle the Customer Claim (including costs incurred by Customer to reach the settlement). Should a Service become, or in New Relic’s opinion likely to become, the subject of any such claim of infringement, then Customer will permit New Relic, at New Relic’s option and expense, to: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that the use becomes non-infringing; or (c) terminate the Service and refund to Customer any Fees paid in advance to New Relic that Customer has not used as of the date of termination. The indemnification obligations set forth in this Section are New Relic’s sole and exclusive obligations, and Customer sole and exclusive remedies with respect to infringement or misappropriation of third party intellectual property rights of any kind.
9.1.2 The New Relic Indemnification Obligations above will not apply to any claim to the extent it arises from: (i) any matter for which Customer is obligated to indemnify New Relic pursuant to Section 9.2; (ii) the Service being modified by Customer or a third party; (iii) the use, operation or combination of the Service with programs, data, equipment or materials not provided by New Relic, if the claim would have been avoided by using it without such programs, data, equipment or materials; (iv) in the case of a third party patent claim, compliance by New Relic with designs, plans or specifications furnished by Customer; or (v) Customer continuation of the allegedly infringing activity after being notified of the alleged infringement claim.
9.2 Customer Indemnification Obligations. Customer will indemnify and defend New Relic and their officers, directors and employees against any third party claim, suit or proceeding brought against such party arising from or relating to (i) the misuse of the Service by Customer, or misuse of the Service by individuals acting on Customer’s behalf, or (ii) Customer Data or the use thereof, including but not limited to, allegations that processing of Customer Data by New Relic or Customer under this Agreement infringes the privacy or intellectual property rights of a third party or violates any applicable law or regulation (each a “New Relic Claim”) provided that: (a) Customer is promptly notified in writing of a New Relic Claim, (b) the indemnified party provides reasonable assistance (at Customer expense) with such New Relic Claim, and (c) Customer is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such New Relic Claim. The indemnification obligations set forth in this subsection are Customer’s sole and exclusive obligations, and New Relic’s sole and exclusive remedies, with respect to infringement or misappropriation of third party rights of any kind.
10. LIMITATION OF LIABILITY
Customer expressly understands and agrees that New Relic and its affiliates and their employees and directors will not be liable for any indirect, incidental, special, consequential 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), including any such damages resulting from the use or the inability to use the Service; the cost of procurement of substitute goods and services resulting from any failure of goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; unauthorized access to or alteration of transmissions or data; statements or conduct of any third party on the Service; termination or suspension of Customer’s account; or any other matter relating to the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE AGGREGATE LIABILITY OF NEW RELIC, ITS AFFILIATES AND THEIR EMPLOYEES AND DIRECTORS TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATING TO THE SERVICE OR RELATED SOFTWARE, DOCUMENTATION, INFORMATION OR MATERIALS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: US$50,000 OR THE AMOUNTS OF FEES THE CUSTOMER PAID TO NEW RELIC IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE FOREGOING AGGREGATE LIABILITY LIMITATION WILL NOT APPLY TO CLAIMS OF BREACH OF SECTIONS 3 (SECURITY; CUSTOMER DATA) OR SECTION 6 (CONFIDENTIALITY) OR CLAIMS OF INDEMNIFICATION MADE UNDER SECTION 9 (INDEMNIFICATION) FOR WHICH THE AGGREGATE LIABILITY IS CAPPED AT THREE TIMES THE FEES PAID IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY.
11. TERM; TERMINATION
11.1 Term of the Agreement. This Agreement will remain in effect until all Subscription Terms, including the initial Subscription Term specified in an Order Form and any subsequent paid renewals of the Subscription Term have expired, unless terminated by a party sooner in accordance with this Agreement.
11.2 Subscription Term; Renewal. The initial Subscription Term shall be as specified in the applicable Order Form. Upon expiration of the initial Subscription Term, unless otherwise stated on the applicable Order Form, the ordered Service will automatically renew for additional consecutive Subscription Terms of one (1) year each, unless and until either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.
11.3 Pricing. The per-unit pricing for a Service during any such renewal of a Subscription Term will be the same price for the Service as during the immediately prior Subscription Term unless New Relic provides Customer notice of a pricing increase, in which case the pricing increase shall be effective upon renewal of such Subscription Term for the applicable Service and thereafter. Any such pricing increase shall not exceed more than a ten (10%) percent increase from the pricing level for the relevant Service in the immediately prior Subscription Term, unless the pricing for the Service in such prior Subscription Term was designated in the relevant Order Form as one-time pricing.
11.4 Termination. Either party may terminate this Agreement for any reason, or no reason, provided that there is no Subscription Term or any subsequent renewal of the initial Subscription Term then in effect. Either party may terminate this Agreement by 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) a 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, where in any of the above, the other party may terminate this Agreement immediately upon written notice to the other party. Upon termination, the rights and licenses granted to Customer hereunder will terminate immediately and Customer will pay any Fees then due, including Fees remaining for the full Subscription Term.
11.5 Survival. The following Sections will survive termination or expiration of this Agreement: 1 (Definitions); 3.3 (Rights in Customer Data); 5.6 (Overdue Charges); 6 (Confidentiality); 7 (Ownership); 8.4 (Warranty Disclaimer); 9 (Indemnification); 10 (Limitation of Liability); 11.5 (Survival); and 12 (General).
12. GENERAL TERMS
12.1 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. Either party may seek injunctive or other emergency relief in any competent court.
12.2 Assignment. Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer, upon written notice to New Relic, provided that such assignment does not expand the scope of subscription granted in the Service, including the type or quantity of the subscription granted under the then-current Order Forms. New Relic may assign this Agreement (or a part of it) to its parent or affiliate or a surviving person under a merger or acquisition of New Relic or the assets of the business to which this Agreement relates, upon written notice to Customer. Except as provided in this Section 12.2, Customer may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior, written consent of New Relic.
12.3 Severability. 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.
12.4 Notices. Any notice under this Agreement must be given in writing. New Relic may provide notice to Customer via email or through Customer’s account. New Relic’s notices to a Customer will be deemed given upon the first business day after New Relic sends the notice. Customer may provide notice to New Relic by mail to New Relic, Inc., 188 Spear Street, Suite 1200, San Francisco, CA, USA 94105, Attn: General Counsel. Customer notice to New Relic will be deemed given when received by New Relic either by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the above address.
12.5 Language. English is the language of this Agreement, and all communications and proceedings must be conducted in English. If this Agreement is translated, then the English language version will control.
12.6 Force Majeure. Neither party will be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results directly or indirectly from an event beyond such party’s reasonable control.
12.7 Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement may cause irreparable injury, that money damages may be an inadequate remedy and that each party will be entitled to seek temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain the other party from such breach or threatened breach. Nothing in this Section will be construed as preventing a party from pursuing any and all remedies available to it, including the recovery of money damages.
12.8 Independent Contractors and No Agency. The parties are independent contractors under this Agreement and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership or trust between the parties. No party has authority to bind the other party.
12.9 Export. Customer will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency thereof restricts export or re-export to such countries); (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
12.10 Government End User. To the extent applicable and for purposes of this Agreement, "commercial computer software" is defined at FAR 2.101. 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 U.S. Government End User Section 2(f) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
12.11 Changes to the Agreement. New Relic may modify this Agreement from time to time provided that If a modification materially impacts this Agreement, New Relic will use reasonable efforts to notify Customer (by, for example, sending an email to the billing or technical contact Customer designates in the applicable Order Form, posting on New Relic’s website, or through Customer’s New Relic account). If New Relic modifies this Agreement during the Customer’s then-current Subscription Term, the modified version will only be effective upon the Customer’s next renewal of a Subscription Term. If Customer objects to the updated Agreement, as Customer’s exclusive remedy, Customer may choose not to renew, including cancelling any Subscription Term set to auto-renew.
12.12 Entire Agreement. This Agreement together with any Order Form(s) 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. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order (other than the bill to, ship to, and pricing) or any other related documentation submitted by or on behalf of Customer to New Relic will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. Any failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision.