Updated : Jan 5, 2021
This Pre-Release Agreement (" Agreement") is entered into by and between New Relic, Inc. (" New Relic") and the entity or person agreeing to this Agreement (" Participant" or " you"). If you are accessing or using the Pre-Release Product on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "Participant" or "you" reference your company.
The " Effective Date" of this Agreement is the date of Participant's initial access to the Pre-Release Product through any online provisioning, registration or order process. New Relic may modify this Agreement from time to time as permitted in Section 12 (Modifications to Agreement).
By indicating your acceptance of this Agreement or accessing or using the Pre-Release Product, you are agreeing to be bound by the terms and conditions of this Agreement. Each party expressly agrees that this Agreement is legally binding upon it.
- Pre-Release Product. Underthis Agreement, you are eligible to access and use a preview, alpha, beta or other pre-release version of New Relic's software, services, features, user-interfaces, platforms or other products (" Pre-Release Product").
Use of the Pre-Release Products.
2.1. . Subject to this Agreement, during the Pre-Release Period, you may access and use the Pre-Release Product solely to provide New Relic with Feedback. To the extent that New Relic provides you with installed software as part of the Pre-Release Product, your permitted use this includes the right to copy and use the software on systems under your control. In using the Pre-Release Product, you must comply with the technical documentation or other instructions provided by New Relic from time to time (" Documentation"), which may include usage limits. The Pre-Release Product includes the Documentation.
2.2. . As conditions on your rights in Section 2.1 (Permitted Use), you will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Pre-Release Product to a third party, (b) use the Pre-Release Product on behalf of, or to provide any product or service to, third parties, (c) use the Pre-Release Product to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code, underlying ideas, algorithms, file formats or non-public APIs to the Pre-Release Product, except to the extent expressly permitted by Law (and then only with prior notice to New Relic), (e) modify or create derivative works of the Pre-Release Product, or copy any element of the Pre-Release Product (other than authorized copies of any Pre-Release Product software), (f) remove or obscure any proprietary notices in the Pre-Release Product (g) publish benchmarks or performance information about the Pre-Release Product or (h) use the Pre-Release Product in violation of the AUP. New Relic reserves the right, but not the obligation, to monitor or review your use of the Pre-Release Product at any time and may investigate any suspected violations of this Agreement.
2.3. . You acknowledge that, as of the Effective Date, the Pre-Release Product has not completed New Relic's full quality assurance program and may contain errors or defects, including security vulnerabilities or other problems. Participant acknowledges that New Relic reserves the right to withhold or discontinue any Pre-Release Product, and that any generally released version may have different features or functionality from those in the Pre-Release Product provided under this Agreement. Without limiting the restrictions and disclaimers in this Section 2 or Section 9 (Disclaimers), Participant is solely responsible for determining the suitability of the Pre-Release Product for its own purposes.
2.4. . The Pre-Release Product is not a part of New Relic's generally, commercially available proprietary services (" New Relic Services"). Participant's access to New Relic Service remains governed by its separate Terms of Service or other agreement with New Relic (the " Subscription Agreement"). This Agreement, not the Subscription Agreement governs access to the Pre-Release Product.
- Feedback. If you provide New Relic with any comments, suggestions or other feedback regarding the Pre-Release Product (" Feedback"), then New Relic may use such Feedback without restriction or obligation to you.
- Confidentiality. " Confidential Information" means the existence of the Pre-Release Product, information regarding its characteristics, features, performance and pricing, all Feedback, this Agreement and any other information disclosed by New Relic that is marked as confidential or proprietary or that should reasonably be understood to be confidential or proprietary from the circumstances of disclosure. Confidential Information does not include any information that: (a) is or becomes generally known to the public; (b) was known to Participant before its disclosure by New Relic; or (c) is received from a third party, in each case without breach of an obligation owed to New Relic or anyone else. Participant will (i) maintain Confidential Information in confidence (using at least the same measures as for Participant's own confidential information, and no less than reasonable care) and not divulge it to any third party and (ii) only use Confidential Information to fulfill its obligations and exercise its rights under this Agreement. If Participant is compelled by Law to disclose Confidential Information, it must provide New Relic with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if New Relic wishes to contest the disclosure. If Participant breaches or threaten to breach this Section 4, it could cause substantial harm for which damages are inadequate and New Relic will have the right to seek injunctive relief in addition to other remedies.
- Fees. There are no fees due for use of the Pre-Release Product in accordance with this Agreement during the Pre-Release Period. You understand that use of the Pre-Release Product after the Pre-Release Period (if any) will be subject to payment of fees under a separate commercial agreement with New Relic.
Additional Terms for Cloud. To the extentthe Pre-Release Product is a hosted cloud offering, this Section 6 applies.
6.1. As between the parties, Participant will retain any of its rights in the Participant Data provided to New Relic. New Relic needs a limited license to Participant Data in order to provide the Pre-Release Product. For example, the Pre-Release Product and related features may create visualization aides, such as dashboards, charts, and graphs, which requires, among other rights, a right to create derivative works. Subject to the terms of this Agreement, Participant hereby grants to New Relic a non-exclusive, worldwide, royalty-free right to use and transmit Participant Data, and to modify and create derivative works (such as dashboards, charts, and graphs) of the Participant Data to the extent necessary to provide the Pre-Release Product. If a Pre-Release Product accessed by Participant includes cloud storage or extended retention, Participant additionally grants to New Relic the right to copy and store Participant Data to the extent necessary to provide the Pre-Release Product, including for New Relic's internal purposes such as product support and improvement.
6.2. You are solely responsible for the accuracy, content and legality of all Participant Data. Participant represents and warrants to New Relic that (a) Participant has made all disclosures and has sufficient rights to use the Participant Data with the Pre-Release Product and grant the rights in Section 6.1 (Use of Participant Data) and (b) the provision and use of the Participant Data does not infringe or violate applicable laws or the intellectual property, publicity, privacy or other rights of any third party.
6.3. Participant must not use the Pre-Release Product with Prohibited Data. Participant acknowledges that the Pre-Release Product is not intended to meet any legal obligations for these uses, including HIPAA, and that New Relic is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, New Relic has no liability for Prohibited Data.
6.4. The employees and contractors of Participant may access and use the Pre-Release Product on Participant'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.Participant is responsible for its Users' compliance with this Agreement and the actions taken through the account.
- Ownership. Participant agrees that New Relic or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Pre-Release Product and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback. In addition to its other rights, New Relic may collect technical logs, data and learnings about your use of the Pre-Release Product, which New Relic may use without restriction. Except as expressly set forth in this Agreement, no rights in the Pre-Release Product, the New Relic Services, or any New Relic technology are granted to Participant.
- Term; Termination. This Agreement will start on the Effective Date and will terminate upon the earliest of: (a) New Relic making the Pre-Release Product or a successor version of the Pre-Release Product generally available or available for commercial release, (b) New Relic ceasing to make the Pre-Release Product available to Participant, or (c) either party's notice to the other of termination of this Agreement (with or without cause) (" Pre-Release Period"). Upon termination, unless agreed by New Relic as part of a separate commercial agreement for use of the Pre-Release Product, Participant must cease using the Pre-Release Product, delete all copies of any Pre-Release Product software and, at New Relic's request, return or destroy (and certify destruction of) any Documentation or other Confidential Information provided by New Relic. Sections 2.2 (Restriction), 3 (Feedback), 4 (Confidentiality), 6 (Additional Terms for Cloud), 7 (Ownership), 9 (Disclaimers), 10 (Limitations of Liability), 14 (Export Restrictions), 15 (General) and 16 (Definitions) will survive termination of this Agreement.
- Disclaimers. The Pre-Release Product is provided "AS IS" and "AS AVAILABLE", and use is at Participant's sole discretion and risk. NEW RELIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE PRE-RELEASE PRODUCT OR THEIR USE. NEW RELIC HAS NO WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SERVICE LEVEL, SECURITY OR INDEMNITY OBLIGATIONS FOR THE PRE-RELEASE PRODUCT OR OTHERWISE UNDER THIS AGREEMENT.
- Limitations of Liability.NEW RELIC WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY OTHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY RELATED TO THE PRE-RELEASE PRODUCT OR THEIR USE, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY. IF THE FOREGOING DISCLAIMER OF DIRECT DAMAGES IS NOT ENFORCEABLE AT LAW, NEW RELIC'S ENTIRE AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO ONE HUNDRED DOLLARS (US$100). THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
- Indemnification. Participant shall indemnify, defend and hold harmless New Relic from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with (i) Participant's use of the Pre-Release Product, including Participant's breach of this Agreement, and (ii) any Participant Data. New Relic may participate in the defense and settlement of any claim with its own counsel and at its own expense. Participant may not settle a claim without New Relic's prior written consent (not to be unreasonably withheld).
- Open Source. The Pre-Release Product may incorporate third-party open source software (" OSS"), as listed in the Documentation (including at https://work.withpixie.ai/credits) or by New Relic upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
- Modifications to Agreement. New Relic may modify this Agreement from time to time. New Relic will use reasonable efforts to notify Participant of modifications as provided in Section 13 (Notices). Participant may be required to click through the modified Agreement to show its acceptance and in any event Participant's continued use of the Pre-Release Product after the modification constitutes Participant's acceptance to the modifications. If Participant does not agree to the modified Agreement, Participant's sole remedy is to terminate its use of the Pre-Release Product as described in Section 8 (Term; Termination).
- Notices. New Relic may provide Participant with notices and communications at Participant's email or physical address on file, through New Relic's website or other reasonable means. Any notices or communications to New Relic must be sent to 188 Spear Street, Suite 1000, San Francisco, CA 94105.
- Export Restrictions. Participant acknowledges that any Pre-Release Product software licensed hereunder may be subject to the export control laws and regulations of the U.S. and other countries. Participant agrees not to export or re-export any Pre-Release Product software, any part thereof or any process or services that is the direct product of any Pre-Release Product software to any country, person or entity subject to U.S. export restrictions.
- General. This Agreement is the parties' entire agreement and supersede any prior or contemporaneous agreements relating to its subject matter. Except as otherwise provided herein, all amendments or modifications must be in writing and signed by both parties. The words "including" and similar terms are to be construed without limitation. Failure to enforce any provision is not a waiver and all waivers must be in writing. If any provision is found to be unenforceable it (and related provisions) will be interpreted to best accomplish its intended purpose. You may not assign, transfer or delegate any right or obligations under this Agreement and any non-permitted assignment is void. New Relic may assign this Agreement and its rights and obligations to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities to which this Agreement relates. This Agreement will be governed by and construed under the laws of the State of California, as applied to agreements entered into and to be performed in California by California residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Francisco, California. New Relic will not be liable to Participant for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events that are beyond its reasonable control. The Pre-Release Product includes commercial computer software. If the user or licensee of such technology is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of such technology, or any related documentation of any kind, including technical data and manuals, is restricted by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Pre-Release Product were developed fully at private expense. All other use is prohibited.
" AUP" means the New Relic Acceptable Use Policy, the current version of which is available here.
" Law" means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
" Participant Data" means any data, content or materials that Participant submits to the Pre-Release Product.
" Prohibited Data" means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (" HIPAA"), (c) credit, debit or other payment card data or financial account information, including bank account numbers, (d) credentials granting access to an online account (e.g., username plus password), (e) social security numbers, driver's license numbers or other government ID numbers, (f) 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 (g) any data similar to the above protected under foreign or domestic Laws.