Effective as of November 22, 2019
1. NEW RELIC PARTNER PORTAL CONTENT
1.1. All information, data, content, or materials that may be found and accessed in the Portal, including but not limited to, New Relic customer information, opportunity registration information and instructions, and Marketing Materials, as defined herein, (collectively “Content”) are protected by privacy, confidentiality, trademark, service mark, trade dress, copyright, or other intellectual property rights, or licenses held by New Relic or third parties who have licensed such Content to New Relic. The term Content shall specifically exclude “Partner Data” as further defined. New Relic does not provide support to partners via the Portal. Use of any Content is at Partner's own risk. New Relic reserves the right to monitor, delete, move, or edit any Content, but is not obligated to do so unless required by applicable law.
1.2. Subject to compliance with the terms and conditions of this Agreement, New Relic grants to Partner a limited, nonexclusive, non-transferable, non-sublicensable right to: (i) access and use the Portal solely in connection with Partner's participation in the Program; (ii) access and use any opportunity management tools (“Opportunity Management Tools”), if New Relic elects to provide, to access, view, and provide additional information regarding a Sourced Opportunity (as further defined); (iii) access, view, use, and display any Content labelled as “Information” or “News”, for Partner's business purposes solely as it relates to the Program, a Sourced Opportunity (as applicable), or its business with New Relic; (iv) access, use, reproduce, distribute, and display any Content labelled as Marketing Materials (as further defined) solely and exclusively for the purpose of marketing and promoting the New Relic products and services in strict accordance with New Relic's guidelines; and (v) access, display, demonstrate, and use any Content labelled as the Demonstration Materials solely and exclusively for the purpose of marketing and promoting the New Relic products and services to Sourced Opportunities in strict accordance with New Relic's guidelines, and for no other purpose. Partner does not acquire any rights, express or implied, hereunder other than those rights expressly granted under this Agreement.
1.3. In order to access the Portal, Partner will be required to create a user account, including a user name and password or other login credentials, and shall be responsible for maintaining the confidentiality and security of such. Partner is solely responsible for any access or use of the Portal via its user accounts, including acts or omissions of any user. Partner shall not grant any third-party (excluding any Partner employee, consultant, or contractor) access to or use of the Portal without the prior written approval of New Relic. Partner is solely responsible for any information or data that Partner submits, posts, transmits, includes, links to, uploads to the Portal or otherwise provides (“Uploads”) to New Relic (“Partner Data”). By Uploading any Partner Data, Partner represents and warrants that it has all the necessary rights, licenses, and permissions to provide such Partner Data and hereby grants to New Relic an irrevocable, perpetual, non-exclusive, worldwide, fully-paid, and royalty-free right and license to use, copy, modify, reproduce, translate, and publish any such Partner Data, excluding any End-Customer Contact Data (as defined below), for New Relic's business purposes (including, but not limited to, providing the Portal). If Partner does not have the necessary rights in the Partner Data it shall not provide it to New Relic.
1.4. Notwithstanding any licenses granted by Partner to New Relic herein, to the extent that Partner provides to New Relic, in its Partner Data or otherwise, any suggestions, idea, enhancement requests, feedback, recommendations or other information related to New Relic's products, services, the Program, or Portal (“Feedback”), Partner hereby assigns all intellectual property rights in such Feedback to New Relic, without compensation to Partner or any third party. In addition, New Relic may use, copy, modify, reproduce, translate and publish such Feedback for any purpose and in any way, including implementation in its products or services. If Partner does not wish to grant New Relic the rights set forth in this Agreement, Partner should not provide any Feedback. Partner shall not, directly or indirectly: (i) alter or remove or permit a third party to alter or remove any Content; (ii) use, remove or alter any New Relic trademarks, service marks, logos, trade names, copyrights, or other proprietary notices without New Relic's express written permission; (iii) distribute copies of Content in any manner not explicitly permitted by this Agreement; (iv) Upload any infringing, offensive, fraudulent, harmful or illegal Partner Data (including, but not limited to, viruses, disabling devices, trojan horses, or any code, files or programs that may modify, damage, interrupt, or compromise the functionality or security of New Relic's systems or the Portal itself); or (v) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any New Relic software, service, product or documentation (including, but not limited to, this Portal), or create or attempt to create a substitute or similar service or product through use of or access to the Portal or any information, data or materials related thereto. There may be links on the Portal, or from communications Partner receives within the Portal, to third-party services, websites, or applications. While New Relic manages the Portal, it does not control, maintain or endorse any such third-party services, websites, or applications. New Relic is not responsible or liable to Partner for any such third-party services, websites, or applications.
2. OPPORTUNITY REGISTRATION
2.1. Reseller and Referral Opportunities. In order to register an opportunity on the Portal, the opportunity must be a new Partner-originated opportunity for the resale of New Relic products or services (“Sourced Opportunity”) to Partner's underlying prospective or actual customer (“End-Customer”). The opportunity registration is contingent upon: (i) written acceptance by New Relic, and (ii) the full-execution of a New Relic Referral Agreement or New Relic Reseller Agreement, including the Online Reseller Terms, or the New Relic Managed Services Provider Sell-through agreement by and between New Relic and Partner (each, a “Partner Agreement”). In the absence of a separately agreed upon New Relic Reseller Agreement, the terms and conditions of the “Online Reseller Terms”, located at: https://newrelic.com/onetimeresellerterms, shall be the Partner Agreement that governs the resale relationship between New Relic and Partner. In the absence of a separately agreed upon New Relic Managed Services Provider Sell-Through Agreement, the terms and conditions of the “Managed Service Provider Sell-Through Agreement”, located at: https://newrelic.com/onetimeresellerterms, shall be the Partner Agreement that governs the managed services provider sell-through relationship between New Relic and Partner. In the absence of a separately agreed upon New Relic Referral Agreement, the terms and conditions of the “Referral Terms”, located at: https://newrelic.com/onetimeresellerterms, shall be the Partner Agreement that governs the referral relationship between New Relic and Partner. All opportunities must be located in and registered by Partner in the geographic territory specified in the Partner Agreement. New Relic makes no promises, guarantees, representations or warranties that an opportunity registered by Partner will result in any payment or other benefit to Partner. New Relic reserves the right, at its sole discretion, to revoke an existing opportunity for reasons, including, but not limited to, the following: (i) administrative error by New Relic (e.g. system error, human error, a duplicate opportunity registration discovered including where a parent company may have subsidiaries under differing names.), in cases of administrative error, New Relic will make commercially reasonable efforts to notify Partner; (ii) an opportunity record not updated by Partner for more than 90 days; (iii) and opportunity record that is false, inaccurate, misleading, incomplete or containing clear evidence that another reseller has demonstrated active selling within the same account (in the case of multiple active selling within the same account the reseller entering the customer purchase order first in time is awarded the valid opportunity registration); (iv) an opportunity accepted absent a valid Partner Agreement; (v) Partner is in material breach of this Agreement, a Partner Agreement, or any other written agreement between New Relic and Partner; (vi) Partner unable to produce sufficient proof of “active selling” to the satisfaction of New Relic; (vii) the End-Customer has notified New Relic in writing that Partner is unwilling or unable to adequately support the opportunity and/or End-Customer no longer desires to work with the Partner; (viii) Partner notifies New Relic in writing that it is unable or unwilling to support the registered opportunity; or (ix) Partner fails to actively promote New Relic within the opportunity.
2.2.2. New Relic as Data Processor. New Relic as Data Processor. New Relic agrees to: (a) use End-Customer Contact Data in accordance with the licenses granted herein, (b) manage End-Customer Contact Data in accordance with applicable laws, and (c) maintain appropriate technical and organization measures to ensure that the level of security is appropriate to the risk in processing End-Customer Contact Data. Upon Partner's written request, New Relic shall promptly return, destroy, or refrain from using the EndCustomer Contact Data
3.1. The term “Confidential Information” means any information, data, or materials disclosed, linked to, or referenced on the Portal, or otherwise from New Relic, to Partner in any form (oral, written, graphic, electronic, or other form) that is marked as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, including information that is not generally known to the public including technology, customers, pricing, incentives, sales and marketing plans, research and development, product plans, customer and supplier data, financial and technical information and other business information relating to the Program or on the Portal. Except as set forth herein, Partner shall receive no rights in, or licenses to, any Confidential Information disclosed by New Relic in connection with this Agreement. Notwithstanding the foregoing, Confidential Information shall also include End-Customer Contact Data and New Relic shall maintain the confidentiality of such in accordance with this Section 3.
3.2. Partner shall not: (i) disclose the Confidential Information to a third party; or (ii) use the Confidential Information for any purpose other than as indicated herein 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 disclosed hereunder will remain the sole property of New Relic and Partner will have no interest in or rights with respect thereto except as expressly set forth in this Agreement. Notwithstanding the foregoing, Partner 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 herein and has executed a non-disclosure agreement, at least as protective as these terms, with Partner 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, Partner shall, unless legally prohibited, provide New Relic with reasonable prior written notice sufficient to permit New Relic an opportunity to contest such disclosure, but in any event, whether provision of such notice to is permissible under law, Partner shall only disclose the minimum amount of Confidential Information required to comply with such order.
3.3. Sections 3.1 and 3.2 shall not apply to any Confidential Information to the extent that it: (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of Partner; (ii) was known by Partner at the time of disclosure without an obligation of confidentiality, as demonstrated by competent evidence; (iii) is disclosed after written approval of New Relic; (iv) becomes rightfully known to Partner from a source other than New Relic without an obligation of confidentiality; or (v) is developed by Partner independently of New Relic's Confidential Information as demonstrated by competent evidence. Notwithstanding the foregoing, any personal information that is provided, made available, or accessible under this Agreement is Confidential Information.
3.4. At any time upon New Relic's request, and promptly upon any termination of this Agreement or Partner Agreement, Partner will return to New Relic, or provide written certification of the destruction of, all Confidential Information, including all Confidential Information contained in Partner internal documents, without retaining any copy, extract or summary of any part thereof.
4. MARKETING, DEMONSTRATION, & TRAINING MATERIALS
4.1. Use of Marketing and Demonstration Materials. New Relic will make available on the Portal, Content that may be: (i) identified for download, redistribution, and/or public display as part of Partner's marketing of the New Relic products and services (“Marketing Materials”) or, (ii) identified, linked to, or referenced on the Portal for display and demonstration purposes solely as part of Partner's marketing of the New Relic products and services to a Sourced Opportunity (“Demonstration Materials”). Partner use of such materials shall be in accordance with the licenses referenced herein. New Relic may also separately provide Partner with marketing materials and content other than through the Portal as part of the Program. Except as otherwise indicated by New Relic, such other marketing materials and content shall be considered Content (or if so designated, Marketing Materials or Demonstration Materials) and subject to this Agreement.
4.2 Training. If and as required by New Relic, Partner shall participate in any New Relic partner training program to ensure that Partner is sufficiently trained and able to support the New Relic products and services. Such training program(s) may require: (i) attendance of Partner's development and support personnel at a technical training course, and/or (ii) successful qualification of Partner's sales, marketing, development, technical or support personnel. Training may take place online at the New Relic Portal, New Relic University, or as otherwise directed by New Relic.
Partner shall, at its own expense, indemnify and hold New Relic, its affiliates, successors and assigns harmless, at New Relic's direction and request, from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or relating to the following, regardless of the form of action: (i) Partner's access to or use of the Portal, including any Uploaded Partner Data; (ii) Partner's breach of this Agreement; (iii) Partner's violation of any third party rights, including without limitation, any intellectual property rights, publicity, confidentiality, property or privacy rights; (iv) Partner's violation of any applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities; (v) any misrepresentations or alleged misrepresentations made by Partner; or (vi) Partner's misuse of the New Relic products and services. Partner will cooperate as requested by New Relic in the defense of any claim. Partner will not under any circumstances settle any claim without the prior written consent of New Relic.
6. NO WARRANTY
THE PROGRAM, PORTAL, AND CONTENT, AND ANYTHING PROVIDED IN CONNECTION THEREWITH BY NEW RELIC, ARE PROVIDED “AS IS” AND “AS-AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND. NEW RELIC HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT. IN ADDITION, NEW RELIC AND ITS SUPPLIERS DO NOT WARRANT THAT THE PROGRAM, PORTAL, OR CONTENT IS ACCURATE, TIMELY, COMPLETE, OR WILL OPERATE WITHOUT ERRORS OR BE UNINTERRUPTED, OR ARE FREE FROM VIRUSES, BUGS, WORMS OR ANY OTHER HARMFUL COMPONENTS, AND NEW RELIC SHALL HAVE NO LIABILITY DUE TO ANY DAMAGES CAUSED BY THE SAME. PARTNER AGREES THAT THE PROGRAM, PORTAL, AND CONTENT DOES NOT GUARANTEE THAT PARTNER WILL MAKE ANY SALES OR PROFITS OR ACHIEVE ANY RESULTS.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL NEW RELIC, ITS AFFILIATES, OR ITS SUPPLIERS BE LIABLE TO PARTNER (OR ANY PARTY CLAIMING UNDER OR THROUGH PARTNER) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE OPERATION, USE OF OR ACCESS TO THE PORTAL, ANY CONTENT, PARTNER DATA, THE DELAY OR INABILITY TO USE THE PORTAL, OR ANYTHING PROVIDED IN CONNECTION WITH OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION: (I) LOSS OF REVENUE OR ANTICIPATED PROFITS (WHETHER DIRECT OR INDIRECT), (II) LOST BUSINESS, DATA, OR (III) LOST PROFIT, GOODWILL, OR SALES, REGARDLESS OF THE FORM OF ACTION (INCLUDING ANY NEGLIGENCE AND STRICT LIABILITY), EVEN IF NEW RELIC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE AGGREGATE MAXIMUM LIABILITY OF NEW RELIC AND ITS SUPPLIERS TO PARTNER (OR ANY PARTY CLAIMING UNDER OR THROUGH PARTNER) FOR ANY CLAIM(S), REGARDLESS OF THE FORM OF ACTION (INCLUDING ANY NEGLIGENCE AND STRICT LIABILITY), RELATING TO OR ARISING OUT OF THE OPERATION, USE OF OR ACCESS TO THE PORTAL, ANY CONTENT, PARTNER DATA, OR THE DELAY OR INABILITY TO USE THE PORTAL, OR ANYTHING PROVIDED IN CONNECTION WITH OR OTHERWISE ARISING FROM THIS AGREEMENT, WILL BE LIMITED, IN THE AGGREGATE, TO ONE HUNDRED U.S. DOLLARS (USD $100.00). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1. Termination. Partner may withdraw from the Program at any time by notifying New Relic in writing, such withdrawal will be effective upon receipt of such notice. New Relic may suspend or terminate Partner's participation in the Program, including access to and use of the Portal, in whole or in part, without prior written notice: (i) for any breach of this Agreement or any other agreement related to Partner participation in the Program, including any Partner Agreement, or (ii) for any attempt to impair the integrity of the Program as determined by New Relic in its sole discretion. In addition, New Relic may terminate this Agreement, access to the Content, Portal, or Program, in whole or in part, for all participants, or for Partner, without cause, upon written notice.
8.2. Effect of Termination. Upon termination of the Agreement, the license and rights granted hereunder shall terminate automatically and completely and Partner shall cease to use any Content, the Portal, and shall promptly return or destroy all copies of Confidential Information in accordance herein. Nothing in this Section shall limit New Relic's rights to pursue other legal remedies, including immediate court or judicial relief. All provisions that by their nature are intended to survive the termination shall survive.
9.1. Disputes; Governing Law; Venue; Injunctive Relief. Partner and New Relic will attempt to resolve any claim, controversy or dispute arising from, out of, or relating to the Program or this Agreement between Partner and New Relic (“Dispute”), through negotiation or by utilizing an agreed upon mediator, rather than through litigation. Negotiations and mediations will be treated as confidential. If the parties are unable to reach resolution within thirty (30) days of notice of the Dispute to the other party, the parties may pursue all other courses of action available at law or in equity. 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 relief in any court of competent jurisdiction without the posting of any bond or other security, to restrain the other party from any actual or alleged infringement of such party's, its affiliates', or any third party's intellectual property, proprietary rights, improper disclosures of Confidential Information, or for violations of the licenses set forth herein, in addition to all other remedies available at law or in equity.
9.2. Modification. New Relic may from time to time modify this Agreement, or change or discontinue the Program as a whole, or any aspect of it at any time, by posting them on the Portal. Partner is responsible for checking the Portal regularly for changes. Changes are effective as of the date such changes are posted on the Portal. By continuing to participate in the Program and/or logging into the Portal, Partner hereby agrees to comply with and be bound by the most current version of this Agreement. New Relic last modified this Agreement on the date listed at the beginning of this Agreement.
9.3. Notices. All notices hereunder will be in writing and will be deemed to have been duly given upon: (i) personal delivery, (ii) 5 days after sending, if sent by domestic mail; (iii) 7 days after sending, if sent by international mail, (iv) 2 days after deposit with a recognized courier with next-day delivery instructions, or (v) posting to the Partner's user account or via email to the email address provided to New Relic in Partner's application for the Program.
9.4. 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.
9.5. Severability; Assignment; Waivers; Independent Contractors; and Entire Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Partner may not assign this Agreement or any of its rights under the Program or Agreement, nor delegate any of its obligations, to any third party, voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law or any other manner, without the express written consent of New Relic. 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. Any terms or conditions not referenced herein do not form a part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by both Partner and New Relic. Except as otherwise provided herein, any waivers, amendments and modifications must be signed in a writing by the party with the ability to enforce the specific provision. New Relic's failure to enforce Partner strict performance of any term herein will not constitute a waiver of New Relic's right to subsequently enforce such term or any other term of this Agreement. 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.