Grafana Labs Plug-In Development and Signing Agreement
PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THIS PLUG-IN DEVELOPMENT AND SIGNING AGREEMENT (“AGREEMENT”) ON BEHALF OF A PLUG-IN PARTNER (“PARTNER”), REPRESENTS AND WARRANTS THAT THEY HAVE FULL AUTHORITY TO BIND PARTNER TO THIS AGREEMENT. UNLESS PARTNER HAS A SEPARATE VALID AGREEMENT FOR THE PLUG-IN SERVICES (AS DEFINED BELOW) SIGNED BY BOTH PARTIES, THIS AGREEMENT GOVERNS, WHICH INCLUDES TERMS REGARDING LICENSING, DISCLAIMERS, LIMITATIONS OF LIABILITY, AND GRAFANA LABS’ RIGHT TO SUSPEND AND/OR TERMINATE THE AGREEMENT AND THE PLUG-IN SERVICES FOR NON-PAYMENT. BY ACCEPTING THIS AGREEMENT (EITHER BY CLICKING, CHECKING A BOX OR ENTERING INTO AN ORDER FORM) PARTNER ACCEPTS THIS AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN PARTNER AND RAINTANK, INC. DBA GRAFANA LABS (“GRAFANA LABS”). IF PARTNER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE AUTHORITY TO BIND PARTNER, THEN DO NOT ACCEPT THIS AGREEMENT. THIS AGREEMENT IS BINDING AS OF THE EARLIEST OF: (I) THE DATE THAT PARTNER ACCEPTS THIS AGREEMENT, OR (II) THE DATE SET FORTH ON AN ORDER FORM(S).
1. PLUG-IN SERVICES. Subject to Partner’s compliance with the terms and conditions of this Agreement, Grafana Labs will use commercially reasonable efforts to develop the software add-on or extension (as more fully described in the Order Form(s), the “Plug-In”), and once the Plug-In has been developed, Grafana Labs will sign the Plug-In to confirm its source and authenticity, then will list the Plug-In in the Grafana.com catalog for the term length set forth on the Order Form(s) (“Plug-In Services”). Partner agrees to provide Grafana Labs with commercially reasonable assistance in the development of the Plug-In. As used in this Agreement, “Order Form(s)” means an ordering document for the Plug-In Services mutually executed by the Parties that contains at least the following information: a description of the Plug-In Services, price, term length, and billing contact.
2. LICENSE.
2.1 License Grant. Subject to the terms and conditions of this Agreement, Grafana Labs grants to Partner a nonexclusive, license (without the right to sublicense) to use and execute the Plug-in, for the term length specified in the Order Form(s), in executable object code format only, solely in connection with a Grafana Labs product or service.
2.2 Restrictions. Partner will not directly or indirectly (i) reproduce, modify, distribute, rent, lease, sublicense, assign, disclose or make available the Plug-In to any third party; (ii) reverse engineer, decompile, or disassemble any portion of the Plug-in, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, any portion of the Plug-In (except to the extent the foregoing restriction is expressly prohibited by applicable law); and (iii) use the Plug-In to develop a similar product or service. Partner will remain fully and primarily responsible to Grafana Labs for compliance with this Agreement if Partner permits any contractors of Partner to access the Plug-In. Any future release, update, or other addition to functionality of the Plug-In made available by Grafana Labs to Partner, shall be subject to the terms and conditions of this Agreement, unless Grafana Labs expressly states otherwise. Partner shall preserve and shall not remove, obscure or alter any trademark, copyright or other proprietary notices in the Plug-In, its documentation and all copies thereof.
3. OWNERSHIP. Grafana Labs and its affiliates, licensors, and suppliers shall exclusively retain all right, title and interest, including without limitation all patent, trademark, trade name and copyright, whether registered or not registered, in and to the Plug-In (including any future releases, updates, or other derivations, additions, modifications, or the like made to the Plug-In) and related documentation, which are all expressly not provided on a “work made for hire” basis. Grafana Labs and its suppliers reserve all rights not expressly granted herein, and no license or other implied rights of any kind are granted or conveyed except for the limited license provided herein. In the event that items of software code provided with the Plug-In are subject to “open source” or “free software” licenses, nothing herein limits Partner’s rights under, or grants rights that supersede, the applicable license therefor. To the extent Partner provides Grafana Labs with feedback regarding the Plug-in (“Feedback”). Partner hereby grants to Grafana Labs a perpetual, irrevocable, worldwide, sublicensable, transferable, fully paid up, royalty-free right to use the Feedback.
4. FEES. Fees for the Plug-In Services will be set forth in the applicable Order Form(s) (“Fees”). The Fees are exclusive of all taxes. Partner shall pay all Fees to Grafana Labs upon receipt of Grafana Labs’ invoice. All Fees are non-cancellable and non-refundable. Fees are stated in United States Dollars and must be paid in United State Dollars.
5. WARRANTIES; DISCLAIMER; BUGS.
5.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all applicable laws in its performance hereunder.
5.2 THE PLUG-IN IS PROVIDED “AS IS”, FOR USE BY PARTNER AND THE END USER AT THEIR OWN RISK. EXCEPT AS SET FORTH EXPRESSLY HEREIN, GRAFANA LABS AND ITS SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY, AND ANY OTHER WARRANTIES RELATING TO THE PLUG-IN OR PLUG-IN SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. GRAFANA LABS DOES NOT WARRANT THAT THE OPERATION OF THE PLUG-IN WILL BE UNINTERRUPTED OR ERROR FREE.
5.3 Partner should promptly notify Grafana Labs of any problems with the Plug-in. Partner agrees that any issues or bugs found during Partner’s use of the Plug-In are not guaranteed by Grafana Labs to be fixed.
6. INDEMNIFICATION.
6.1 Indemnity. Subject to Section 6.2 below, Grafana Labs will defend Partner against any third-party claim, demand, suit, or proceeding filed against Partner alleging that the Plug-In (as developed and listed hereunder), directly infringes the intellectual property rights of such third party (“Claim”), and will pay the damages, costs, and expenses (including reasonable attorneys’ fees) finally awarded by a court of law in respect of such Claim, or for amounts paid by Partner under a signed settlement of such Claim.
6.2 Process. Grafana Labs’ obligations under this Section 6 are conditioned upon the following: (i) Partner first providing written notice of the Claim to Grafana Labs within thirty (30) days after becoming aware of or reasonably should have been aware of the Claim (provided, however, the failure to provide such notice will only relieve Grafana Labs of its obligations under this Section 6 to the extent Partner is prejudiced thereby); (ii) Partner must tender sole and exclusive control of the Claim to Grafana Labs, (iii) Partner must provide reasonable assistance, cooperation, and required information with respect to the defense and/or settlement of the Claim. Partner may participate in the Claim, at its sole cost and expense, except that Grafana Labs will retain sole control of the defense and/or settlement.
6.3 The foregoing is the sole and exclusive remedy of Partner and the entire liability of Grafana Labs with respect to any Claim.
7. TERMINATION.
7.1 Either party may terminate this Agreement or Order Form(s) (i) immediately upon written notice if the other party commits a non-remediable material breach; or (ii) if the other party fails to cure any remediable material breach within thirty (30) days of being notified in writing of such breach, unless such breach is for non-payment and then within five (5) days of such notice.
7.2 Either party may terminate this Agreement immediately by written notice if no Order Form(s) is in effect.
7.3 In the event of a termination of this Agreement under Section 7.1 above for Partner’s material breach, the license in Section 2.1 and all of Partner’s rights to use the Plug-In will terminate with immediate effect.
7.4 In the event of termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the termination or expiration of this Agreement shall survive, including but not limited to Sections 2, 2-10; and any accrued rights to payment until fulfilled.
8. CONFIDENTIALITY. “Confidential Information” means all confidential and proprietary information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including this Agreement (including pricing and other terms reflected in a Order Form(s)), the Plug-In, technical features, roadmaps, product designs, and business processes. Partner shall not use or disclose any Confidential Information except as expressly authorized in this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Partner will return or destroy all Confidential Information on request.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PARTNER AGREES THAT NEITHER GRAFANA LABS NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS SHALL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PARTNER, ITS CUSTOMERS, OR THIRD PARTIES CAUSED BY FAILURE OF GRAFANA LABS TO DELIVER THE PLUG-IN, FAILURE OF THE PLUG-IN TO FUNCTION, OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY. IN NO EVENT WILL GRAFANA LABS OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PLUG-IN OR OTHER MATERIALS PROVIDED ALONG WITH THE PLUG-IN OR PLUG-IN SERVICES OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF GRAFANA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRAFANA LABS’ AGGREGATE CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE ANNUALIZED FEES PAID BY PARTNER TO GRAFANA LABS FOR THE PLUG-IN SERVICES. PARTNER AGREES THAT GRAFANA LABS’ SUPPLIERS WILL HAVE NO LIABILITY TO ANY END USER OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
10. GENERAL.
10.1 Governing Law and Venue. This Agreement will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles. Each party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts in New York, New York for any lawsuit filed there arising from or related to this Agreement. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
10.2 Export. The Plug-in and related technology may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Partner agrees not to export, reexport, or transfer, directly or indirectly, any technical data acquired from Grafana Labs, or any products incorporating such data, in violation of applicable export laws or regulations.
10.3 Entire Agreement; Integration. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted.
Notwithstanding any language to the contrary therein, any Order Form(s) shall be deemed a convenient order and payment device only and no terms (other than Plug-In Services, price, subscription term, and billing contact) stated in any Order Form(s) shall be incorporated into this Agreement, and all such other terms shall be void and of no effect. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
This Agreement may be executed in counterparts.
10.4 Independent Contractor. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
10.5 Notices. All notices shall be in writing to each party’s address in the Order Form(s) (or as provided by a party in writing to the other) and effective upon receipt.
10.6 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
10.7 Injunctive Relief. Each party acknowledges that a breach or threatened breach of the obligations in Section 9 or the scope of the licenses granted hereunder may constitute immediate, irreparable harm to Grafana Labs for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to whatever remedies Grafana Labs might have at law or under this Agreement.
10.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Form(s) hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party.
10.9 Language. The English language version of this Agreement controls. It is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.