NEW RELIC, INC.
FIT INSTRUMENTATION
END USER LICENSE AGREEMENT
In connection with the work provided by New Relic’s Field Instrumentation Team, you may be provided with certain custom-created software to enable, optimize, or enhance your use of New Relic’s Services. By downloading, installing, authorizing installation, or using the FIT Instrumentation with your Underlying Software (defined below), you (“Customer”) agree to the terms and conditions herein (“Agreement”) with New Relic, Inc., a Delaware corporation with offices located at 188 Spear Street, Suite 1200 San Francisco, CA 94105 (“New Relic”), (collectively the “Parties”). Capitalized terms not defined herein shall have the meanings set forth in the New Relic Terms of Service (the “Terms of Service”) available here: http://newrelic.com/terms
IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE FIT INSTRUMENTATION.
1. DEFINITIONS
“FIT Instrumentation” means the New Relic custom-made software, including but not limited to connectors, extensions, and plugins, provided by New Relic to Customer to enable the Services to operate with certain third party or Customer software or systems (“Underlying Software”). For the purposes of the Terms of Service, the FIT Instrumentation shall be treated like an “Agent”, subject to the separate terms herein.
2. USE OF THE FIT INSTRUMENTATION
2.1 Software Evaluation License. Subject to the terms herein, New Relic grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable right to install, use, and configure the FIT Instrumentation solely as needed to enable the Services for internal evaluation purposes. New Relic reserves all rights and licenses not expressly granted herein.
2.2 Ownership. As between the Parties, New Relic owns all right, title, and interest to the FIT Instrumentation and Feedback, including but not limited to any intellectual property and proprietary rights therein. Customer retains all right, title, and interest in any Customer Data processed by the FIT Instrumentation in connection with the Services.
2.3 Feedback. Customer agrees to provide feedback, suggestions, ideas, requests or recommendations (“Feedback”) regarding the FIT Instrumentation, and hereby irrevocably assigns all intellectual property and proprietary rights it holds in the Feedback to New Relic.
2.4 Notice. Customer acknowledges and agrees that the FIT Instrumentation is made to work with the Underlying Software as configured at the time of creation and there is no guarantee that FIT Instrumentation will continue to work in the event Customer changes, replaces, upgrades versions of, updates, or otherwise changes the Underlying Software (an “Upgrade Event”). Customer shall hold New Relic harmless from any claims or damages arising from Customer’s Upgrade Event.
2.5 Restrictions. Customer will not: (i) use the FIT Instrumentation except as permitted hereunder; (ii) distribute, sell, sublicense, or otherwise transfer the FIT Instrumentation; (iii) decompile, disassemble or reverse engineer any software underlying the FIT Instrumentation; (iv) use the FIT Instrumentation 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 Services; (v) use the FIT Instrumentation to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or other intellectual property rights of others or otherwise violate any applicable law; (vi) circumvent or modify any security technologies included as part of the FIT Instrumentation; or (vii) attempt or permit any third party to do any of the foregoing. New Relic may suspend usage of the Services by any user, without notice, pending any investigation of misuse. These restrictions may be supplemented or superceded (to the extent they conflict) by the New Relic Acceptable Use Policy as may be published and updated from time to time at https://docs.newrelic.com/docs/licenses/license-information/acceptable-use-policy/acceptable-use-policy.
3. CONFIDENTIALITY
3.1 Definition. “Confidential Information” means: (a) the FIT Instrumentation, and any features, results or output produced by, and other information relating to the FIT Instrumentation (including, without limitation, all Feedback); and (b) any business or technical information of New Relic including but not limited to any technical information, research, development, know-how that a reasonable person would understand to be confidential.
3.2 Restrictions. Customer will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement. Customer will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information. Customer may disclose Confidential Information to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided that each such employee first executes a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein. Confidential Information shall not include any information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by Customer; (b) is rightfully known by Customer at the time of disclosure without an obligation of confidentiality; (c) is independently developed by Customer without access or use of any Confidential Information; or (d) is rightfully obtained from a third party without restriction on use or disclosure.
4. DISCLAIMER
4.1 DISCLAIMER. FIT INSTRUMENTATION IS PROVIDED AS-IS AND AS-AVAILABLE AND NEW RELIC DISCLAIMS AND MAKES NO 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. FIT INSTRUMENTATION IS NOT GUARANTEED TO BE ERROR-FREE, COMPATIBLE WITH THE UNDERLYING SOFTWARE. , OR THAT CUSTOMER WILL ACHIEVE ANY RESULTS FROM USE OF THE FIT INSTRUMENTATION THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO THE CUSTOMER.
4.2 LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NEW RELIC ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION, USE OR INABILITY TO USE THE FIT INSTRUMENTATION OR FOR ANY ERROR OR DEFECT IN THE FIT INSTRUMENTATION OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT NEW RELIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NEW RELIC'S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THIS AGREEMENT WILL BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
4.3 EVALUATION VERSION. Customer agrees and acknowledges that: (a) the FIT Instrumentation is not an official product and has not been commercially released for sale by New Relic; (b) the FIT Instrumentation may not operate properly, being in final form, or fully functional; (c) the FIT Instrumentation may contain errors, security vulnerabilities, design flaws, or other problems; (d) it may not be possible to make the FIT Instrumentation fully functional; (e) the information obtained using the FIT Instrumentation may not be accurate; (f) use of the FIT Instrumentation may result in unexpected results, loss of data, delays or other unpredictable damages or loss; (g) New Relic is under no obligation to release a commercial version of the FIT Instrumentation; and (h) New Relic has the right unilaterally to abandon development of the FIT Instrumentation, at any time and without any obligation or liability to Customer.
5. GENERAL PROVISIONS
5.1 Terms of Service; Documentation. This Agreement shall be considered a part of the New Relic documentation, located at: https://docs.newrelic.com (the "Documentation").This Agreement and the Terms of Service constitute the entire and exclusive agreement between New Relic and Customer with respect to the FIT Instrumentation. In the absence of a separate agreement between New Relic and Customer with respect to the FIT Instrumentation, the terms and conditions of this Agreement shall govern the relationship between New Relic and Customer with respect to such FIT Instrumentation. To the extent of a conflict between the Agreement and the Terms of Service, this Agreement shall govern with respect to the FIT Instrumentation only.