NEW RELIC DIAGNOSTICS LICENSE TERMS

These New Relic Diagnostics License Terms (“Terms”) set forth the terms and conditions under which you (“Customer”) may use New Relic Diagnostics (the “Software”), as made available by New Relic, Inc. (“New Relic”). By clicking “accept” or downloading or using the Software, you agree to be bound by these Terms. If you are agreeing to these Terms on behalf of your company, then “Customer” means your company and you are binding your company to these Terms.

1. License Grant. Subject to all of the terms and conditions of these Terms, New Relic grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software in accordance with its documentation in support of Customer’s use of New Relic products to which Customer has a separate subscription (“New Relic Products”). Unless otherwise specified, there is no fee for use of the Software. 

2. License Restrictions. Customer will not (a) sell, rent, sublicense, transfer, time-share or otherwise provide access to any copies of the Software, or portions thereof, to a third party; (b) modify, decompile, disassemble or reverse engineer the Software; (c) use the Software to develop services or products for sale or include any components of the Software in any product; (d) remove any product identification, proprietary, copyright or other notices in the Software; or (e) publicly disseminate performance information or analysis (including benchmarks) relating to the Software. 

3. Ownership. Except for the limited license rights expressly provided herein, New Relic and its suppliers have and will retain all right, title and interest in and to the Software, and all copies, updates, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Software and no ownership rights are being conveyed to Customer under these Terms or otherwise. 

4. Usage Data. Customer agrees that New Relic and its affiliates have the right to collect Usage Data from Customer through the Software and use Usage Data to support, operate and improve New Relic products and services and for other lawful business purposes. “Usage Data” means diagnostics data related to the use of the Software with New Relic Products, including, without limitation, configuration information, details on diagnostics tasks, New Relic account and application ID numbers and New Relic license keys. For clarity, Usage Data is not considered “Customer Data”, “your Data” or any other similar term as used in any applicable subscription or license agreement for New Relic Products. At Customer’s election, Customer may disable the collection of Usage Data as described in the Software documentation. 

5. Disclaimers. New Relic is not obligated to provide any support or maintenance for the Software. ALL USE OF SOFTWARE IS AT CUSTOMER’S OWN RISK. SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR NON-INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. 

6. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL NEW RELIC BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. TO THE EXTENT ANY OF THE ABOVE LIMITATIONS ARE NOT ENFORCEABLE AT APPLICABLE LAW, NEW RELIC’S ENTIRE LIABILITY TO CUSTOMER UNDER THESE TERMS WILL NOT EXCEED $50. THESE LIMITATIONS ON LIABILITY ARE A FUNDAMENTAL BASIS OF THE BARGAIN AND NEW RELIC WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS. THESE LIMITATIONS ON LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

7. Changes and Termination. At its discretion, without notice or liability to Customer, New Relic may (a) update, modify or discontinue the Software; (b) modify these Terms, effective upon posting; or (c) terminate or suspend these Terms or Customer’s access to the Software. If Customer does not agree with any modification, its sole remedy is to terminate its use of the Software. Upon any termination or suspension, Customer must stop using the Software.

8. Third Party Code. The Software may contain or be provided with third party code (including code which may be made available to Customer in source code form). A list of third party code and ownership, use, warranty and modification rights with respect to such code may be identified in the documentation or provided by New Relic upon Customer’s written request.  New Relic is not responsible for applications and services not licensed by New Relic.  

9. Export Compliance. Customer acknowledges that the Software is subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Customer shall not remove or export from the U.S. or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) 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 (d) 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 Customer 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.

10. Government End-Users. The Software is commercial computer software. If Customer is an entity of the U.S. government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, is restricted by a license agreement or by these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited. 

11. General. These Terms will be governed by and construed under the laws of the State of California and the U.S. without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions arising out of or relating to these Terms shall be in the state and federal courts in San Francisco, California. The parties are independent contractors. Customer may not assign these Terms without New Relic’s prior written consent and any attempt to do so will be void; New Relic may assign these Terms freely to any party without Customer’s consent. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable or invalid for any reason, that provision shall be limited to the minimum extent necessary so that these Terms shall otherwise remain in effect. These Terms are the entire agreement between the parties relating to the Software, and supersede all prior or contemporaneous agreements (oral or written) relating to the Software. Any separate agreement Customer has for New Relic Products does not apply to the Software.