Grafana Labs k6 Services Agreement

Legal and Security › Grafana Labs k6 Services Agreement

Last updated May 5, 2022.

  1. GENERAL

1.1 This Grafana Labs K6 Services Agreement, together with the Description of Services and, as applicable, the Order Form(s) and DPA (defined below), if applicable, constitute the “Agreement”.

1.2 The Agreement shall apply to all offers and agreements under which Grafana Labs provides Services to the Customer. No deviations from the Agreement shall be valid unless explicitly agreed in writing.

1.3 By purchasing or signing up for a subscription or free trial to the Services provided by Grafana Labs, Customer accept that Customer is bound by the terms and conditions of the Agreement.

  1. DEFINITIONS

“Affiliate” means an entity that controls, is controlled by, or under common control with Customer or Grafana Labs, as applicable. “Control” means, possession of, directly or indirectly, the power to direct management through the ownership of fifty percent (50%) or more of its voting or equity securities, or by contract, voting trust or otherwise.

“Confidential Information” means all information of any nature (whether oral, written, electronic or any other form) disclosed by either Party before or after the effective date of the Agreement relating to the disclosing Party, to its business, technology, partners, affiliates, customers and/or suppliers and irrespective of whether such information is retained in the form in which it was provided to the other Party or is contained or reflected in notes or other documents prepared by the disclosing Party.

“Customer” means the legal entity that is purchasing or subscribing to the Services.

“Customer Data” means data uploaded by the Customer in test scripts and configurations, test runs and generated as a result of any of the aforementioned.

“Date of Delivery” means the date Customer is provided with access to the Services.

“Description of Services” means any written or online order provided by Grafana Labs, and manually or electronically accepted by the Customer, which sets out the details regarding any Services Customer is granted access to by Grafana Labs.

“Intellectual Property Rights” means all present and future rights, title and interest whatsoever (whether legal or beneficial and whether registered or unregistered), in the copyright and in any design rights, trademarks, patents, rights or protections or similar to copyright (including all moral rights), topography rights, software programs, applications, database rights, know-how, trade names, trade secrets, inventions and other intangible proprietary information.

“Grafana Labs” means Raintank, Inc. dba Grafana, and its Affiliates, as applicable.

“Order Form(s)” means an ordering document for Services between Grafana Labs and Customer (or reseller) that contains at least the following information: services, license quantity, price, term and billing contact.

“Parties” means the Customer and Grafana Labs jointly.

“Party" means the Customer or Grafana Labs separately.

“Services” means any K6-specific materials or services provided by Grafana Labs to Customer, collectively.

“Trademarks” means trademarks, names, logos and service marks.

  1. GRAFANA LABS OBLIGATIONS

3.1 Grafana Labs offers the Services on a fixed agreed term, a subscription basis (i.e. monthly, quarterly or annually) and on a trial or other promotional basis. Grafana Labs agrees to provide the Services during the term agreed between the Parties which may be set forth in an Order Form(s), if applicable. The Services will be provided in accordance with the Description of Services, which may be found at https://k6.io/pricing/, unless otherwise agreed between the Parties.

  1. CUSTOMER OBLIGATIONS

4.1 Customer agrees to comply with all provisions of the Agreement, as well as any laws, regulations and governmental decisions applicable to the use of the Services. Customer agrees to keep Customer account password confidential, and only allow trusted people within Customer organization access to Customer account. Customer agrees to retain no more than one free Grafana Labs account, which will grant Customer the right to one concurrent test unless otherwise agreed. Customer agrees to keep all account and billing information up to date and accurate, and to submit payments when due.

  1. USE OF THE SERVICES

5.1 Grafana Labs will not be held responsible for any unauthorized use of the Services. Customer is responsible for the use of the Services by any Customer employee, any person authorized by Customer to use the Services, any person to whom Customer has given access to the Services, and any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, even if such use was not authorized by Customer. Customer must not: (i) sublicense, sell, resell, transfer or assign (except to a successor-in-interest as permitted hereunder), distribute or otherwise commercially exploit or make available to any third-party the Services; (ii) modify, copy (other than a reasonable number for Customer’s operation of the Services), or make derivative works of or compilations based upon the Services; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code of the Services; (iv) use or access the Services for the purposes of building a competitive product or service, or copying its features, functions, or user interface; or (v) resell any marketing, training or other materials such as slides, advice, guidance, or frameworks provided by Grafana Labs.

  1. FEES

6.1 Due Date

6.1.1 Customer will pay all fees, and other charges, as specified in an Order Form. All fees are due and payable within thirty (30) days of Customer’s receipt of the invoice unless otherwise agreed. All fees shall be paid in U.S. Dollars, via electronic/wire transfer or credit card, to an account designated by Grafana Labs unless otherwise agreed between the Parties. All payments are non-cancelable and non-refundable.

6.2 Late Fees

6.2.1 Customer will pay a late fee of 1.5% per month or the highest rate allowed under law, whichever is lower, on any overdue amounts. Customer also agrees to pay Grafana Labs all reasonable costs and expenses of collection, including attorneys’ fees.

6.3 Promotional offers and trials

6.3.1 From time to time, Grafana Labs may offer promotional pricing for the Services, including free trials and free accounts. Grafana Labs reserves the right to change, amend, or end a promotion at any time and without prior notification. Free trials, free accounts, and promotional offers are limited to one per Customer.

6.4 Fee Increases

6.4.1 For Services provided on a monthly basis (including but not limited to Services provided until further notice in accordance with section 7.2.1), Grafana Labs may increase fees at any time by notifying the Customer. The fee increase will take effect from and including the month immediately following Grafana Labs’s notification of the fee increase. For Services that are provided for a term longer than one month, Grafana Labs may increase the fees upon the expiration of the current term. Any such pricing increase will take effect from and including the term immediately following the notification of the fee increase and will not exceed 7% of the pricing for the Services purchased in the immediately prior subscription term, unless the pricing was designated in the relevant Order Form as being promotional or one-time.

6.4.2 In addition to the above, Grafana Labs may increase the fees at any time if the Customer requests any modification to the Services, including but not limited to increased capacity or additional concurrent tests.

6.4.3 Any fee increases shall be notified to the Customer in writing 30 days prior to the fee increase taking effect. If the Customer does not accept the fee increase, the Customer shall notify Grafana Labs in writing within the aforementioned 30-day period, in which case the Agreement will expire on the day preceding the price increase taking effect unless otherwise agreed between the Parties.

6.5 Taxes
The Customer will pay all sales, use, and other taxes imposed by any applicable laws and regulations as a result of the payments under the Agreement, unless Customer is able to provide sufficient evidence of Customer’s exemption from such tax.

  1. TERM AND RENEWAL

7.1 Custom subscriptions and fixed term agreements

7.1.1 If the Services are purchased on a subscription basis with a fixed term, the Agreement will commence on the Date of Delivery and run until and including the date agreed between the Customer and Grafana Labs the Order Form(s). Upon expiration of the initial term, the Agreement shall automatically renew for additional periods equal to the initial term, unless either Party provides the other Party with a written notice of non-renewal at least 30 days before the end of the relevant term. Notwithstanding the above, the Customer and Grafana Labs may agree that the Agreement shall commence on the Date of Delivery and expire upon expiration of the initial term without automatic renewal, in which case the Agreement shall expire automatically without any prior notice.

7.2 Self-serve online subscriptions

7.2.1 If the Services are purchased on a subscription basis with an initial term of a month, quarter or year (whichever is selected by the Customer at the time of the purchase), the Agreement will commence on the Date of Delivery and until and including the initial month, quarter or year expires (whichever is applicable). The Agreement is renewed automatically on a monthly, quarterly or annual basis (whichever is applicable) unless the Customer cancels the Services in the Customer’s Grafana Labs account no later than the day prior to the renewal date. Upon the Customer’s cancellation, the Agreement shall expire on the last day of the current term.

7.3 Trial and promotional offers If the Customer has subscribed to a trial or promotional offer for the Services, the Agreement will commence on the Date of Delivery and run until and including the day the trial or promotion expires.

  1. PROCESSING OF PERSONAL DATA

8.1 To the extent Grafana Labs will process personal data on behalf of the Customer, the Customer shall be the personal data controller and Grafana Labs shall be the personal data processor. Processing of personal data may only take place in accordance with applicable law, in accordance with Customer’s instructions and as further set out in Grafana Labs current Data Processing Agreement, which is available at https://grafana.com/legal (“DPA”), and hereby incorporated into this Grafana Labs K6 Services Agreement by this reference. For purposes of the license of Services under the Agreement, the terms “Grafana Product(s)” and “Professional Services”, as applicable, in the DPA refer to “Services” as described in the Grafana Labs K6 Services Agreement, and Appendix 2 thereof refers to the Grafana Labs K6 Security Policy, which is available at https://grafana.com/legal, and hereby incorporated into this Grafana Labs K6 Services Agreement by this reference.

  1. LIMITATION OF LIABILITY

9.1 Customer agrees that Grafana Labs’s total aggregate liability for any and all claims arising out of or related to the Agreement is limited to the fees paid by the Customer to Grafana Labs in the three (3) month period immediately preceding the events giving rise to the claim.

9.2 Grafana Labs shall not be liable for any indirect, incidental, special or consequential damages or loss of profit resulting from the use or inability to use any of its Services or for the cost of procurement of substitute services.

9.3 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS GRAFANA LABS K6 SERVICES AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

  1. TERMINATION

10.1 General

10.1.1 Upon expiration of the Agreement, Customer will no longer be enabled to use the Services to perform any concurrent tests. However, Customer will be granted continuous access to the Services in order to access its data during the retention time agreed between the Parties. During any access to the Services after the expiration of the Agreement, the Customer is obliged to comply with all terms and conditions of the Agreement applicable to such access and any terms and conditions intended to survive shall survive the expiration of the Agreement, including but not limited to sections 6, 9, 10, 11, 13, 14, 18, 19 and 22.

10.2 Termination for Breach

10.2.1 If either Party is in material breach of any provision of the Agreement and if such breach is not cured within thirty (30) days after receiving written notice from the other Party specifying such breach in reasonable detail, the non-breaching Party shall have the right to terminate the Agreement by giving written notice thereof to the Party in breach. Such termination for breach shall be effective immediately on receipt of such second notice. For the avoidance of doubt, Grafana Labs is not obliged to provide Customer access to the Customer’s Grafana Labs account during the agreed retention period if the Agreement is terminated due to Customer’s breach of the Agreement.

11 SUSPENSION OF SERVICES

11.1 If Customer fails to make payments when due or otherwise is in breach of the Agreement or if Grafana Labs in its sole discretion reasonably decides that there is a significant risk for damages to property or person, Grafana Labs may suspend the performance of Services. Grafana Labs shall have no liability whatsoever to the Customer for any costs or damages that may result from such suspension.

  1. PUBLICITY

12.1 Neither Party is allowed to use the other Party’s logos, trademarks or any other Intellectual Property Rights for other purposes than to fulfil its obligations under the Agreement. Grafana Labs may however use the Customer’s name and logo in promotional material, provided that such use is in accordance with good practice.

  1. CONFIDENTIAL INFORMATION

13.1 The Parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of the Agreement; (ii) each will use the same degree of care it utilizes to protect its own Confidential Information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation (or otherwise bound) to keep such information confidential using standards of confidentiality not less restrictive than those required by the Agreement. Both Parties agree that obligations of confidentiality will survive expiration or termination of the Agreement. Notwithstanding the foregoing, if any court or other governmental entity with competent jurisdiction requires the Receiving Party to disclose any of the disclosing Party’s Confidential Information, the receiving Party may comply with its legal obligations after, to the extent permitted by law, giving the disclosing Party prompt, reasonably detailed written notice regarding such required disclosure (including a copy of the relevant order or other legal process) to allow the disclosing Party to seek a protective order or other appropriate remedy. The receiving Party will disclose only such information as it reasonably deems is legally required and will cooperate reasonably with the disclosing Party to obtain confidential treatment for any of the disclosing Party’s Confidential Information that is so disclosed. Similarly, the receiving Party may disclose the disclosing Party’s Confidential Information on a “need-to-know” basis to its legal counsel, accountants, banks and other financing sources, consultants, and advisors under commercially reasonable confidentiality agreements. Upon the earlier of (i) the disclosing Party’s request, or (ii) the termination or expiration of the Agreement, the receiving Party will return all copies of the disclosing Party’s Confidential Information, or destroy all copies of such Confidential Information in its possession; provided, however, the receiving Party may retain a copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in confidence for so long as such Confidential Information remains in the possession of the receiving Party.

  1. INDEMNIFICATION

14.1 Customer agrees to be responsible for any failure by any of Customer’s representatives to comply with any of the provisions of the Agreement. Customer agrees to indemnify Grafana Labs and its representatives and hold them fully harmless from and against any loss, cost, damage, expense or liability suffered or incurred by any of them arising as a result of or in connection with any failure by Customer or any of Customer’s representatives to comply with any provision of the Agreement.

  1. FORCE MAJEURE

15.1 Neither Party shall be held responsible for any delay or failure in performance of any part of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, riot, strikes or labour disputes, acts of terrorism, natural disaster, or other similar causes beyond its control and without the fault or negligence of the delayed or non-performing Party.

  1. ASSIGNMENT

16.1 Grafana Labs may freely assign the Agreement, in whole or in part. Customer may not assign or delegate its rights or obligations pursuant to the Agreement without Grafana Labs’s prior written consent, which shall not be unreasonably withheld. Any attempt by Customer to assign the Agreement in violation of this provision is void and of no effect.

  1. SOLICITATION

17.1 Customer agrees not to solicit any personnel of Grafana Labs involved with the delivery of Services during the term of and for twelve (12) months after termination or expiration of the Agreement; provided that Customer may hire an individual employed by Grafana Labs who, without other solicitation, responds to advertisements or solicitations aimed at the general public, if permitted by applicable law.

  1. TRADEMARKS

18.1 Trademarks displayed on any of Grafana Labs’s websites are registered and unregistered Trademarks of Grafana Labs and, as applicable, Grafana Labs’s licensors. Nothing in the Agreement, the Services or contained on any of Grafana Labs’s websites should be construed as a transfer or granting any license or right to use any Trademark without the prior written permission of Grafana Labs.

18.2 Customer shall at all times refrain from removing any Trademarks and other Intellectual Property Rights from the Services, documentation and other material provided by Grafana Labs.

  1. INTELLECTUAL PROPERTY

19.1 Any Intellectual Property Rights developed, created, or invented by Grafana Labs, or any of its representatives, individually, cooperatively or collectively before, during, or after the term of the Agreement (including the Services) shall belong to Grafana Labs. Nothing in the Agreement shall be construed as a transfer, license or any other usage right for the Customer except to the extent necessary for the Customer’s use of the Services in accordance with the Agreement.

19.2 All Customer Data, shall remain the property of the Customer. Customer hereby warrants that Customer has obtained all necessary consents, permits, approvals and decisions in order to upload and provide Customer Data to the Services and, as applicable, to Grafana Labs. By entering into the Agreement, the Customer grants Grafana Labs a non-exclusive, royalty-free and limited right, by itself or by appointing a third party, to use the Customer Data and Customer’s account details for statistical purposes and to develop the Services. Any personal data included in the data provided by the Customer shall be processed in accordance with section 8 above and, as applicable, the DPA.

19.3 Grafana Labs will defend Customer against any third-party claim, demand, suit, or proceeding filed against Customer alleging that the Services, as sold and delivered to Customer pursuant to the Agreement (the “Indemnified Products”), directly infringe the intellectual property rights of such third party (“Claim”), and will indemnify and hold harmless the Customer from and against any 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 Customer under a signed settlement of such Claim. Notwithstanding the foregoing, Grafana Labs shall have no obligation under this Section 19.3 for any Claim arising out of or related to: (i) modifications made to the Indemnified Products by anyone other than Grafana Labs; or (ii) the combination, operation or use by Customer or anyone acting on Customer’s behalf, of the Indemnified Products in connection with a third-party product or service (the combination of which causes the infringement); (iii) use or exploitation of the Indemnified Products other than as set forth in this Grafana Labs K6 Services Agreement or applicable Description of Services; or (iv) failure to implement any update, modification, or replacement to the Indemnified Products as provided by Grafana Labs.

19.4 If it is finally determined that there is an infringement of a third party’s Intellectual Property Rights for which Grafana Labs is liable under the Agreement, Grafana Labs shall at its own discretion:

a) procure Customer the right to continued use of the Indemnified Products;

b) modify the Indemnified Products so that it does not longer infringe;

c) replace the Indemnified Products, or part thereof, with an equivalent service which does not infringe; or

d) cancel the Agreement and refund the fees that Customer has pre-paid for the Indemnified Products corresponding to Customer’s future usage or access to the Indemnified Products.

19.5 Grafana Labs obligations under Sections 19.3-19.4 are conditioned upon the following: (i) Customer first provides 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 Sections 19.3 and 19.4 to the extent the Grafana Labs is prejudiced thereby; (ii) Customer must tender sole and exclusive control of the Claim to Grafana Labs, (iii) Customer must provide reasonable assistance, cooperation, and required information with respect to the defense and/or settlement of the Claim. Customer 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. Grafana Labs shall not agree to any settlement of the Claim that includes an injunction against Customer, or admission of liability of Customer, without Customer’s prior written consent, which consent shall not be unreasonably withheld.

19.6 Sections 19.3– 19.5 constitute the entire obligation of Grafana Labs and Customer’s sole remedy with respect to any Claim described herein.

  1. NOTICES

20.1 All notices shall be in writing and shall be delivered by e-mail, certified or registered mail, postage prepaid, return receipt requested, or by a recognized overnight delivery service. Any notices to Grafana Labs shall be sent by post to legal-notices@grafana.com. Notices to the Customer shall be sent to the address apparent from this Services Agreement or registered by Customer at Customer’s Grafana Labs account. Any changes to the addresses shall be made in writing according to the requirements of this section. The notice shall be deemed received when the recipient has confirmed the receipt unless otherwise agreed.

  1. MODIFICATION

21.1 Grafana Labs reserves the right to revise the terms of this Grafana Labs K6 Services Agreement at any time with 30 days’ prior notice. Any such revision will be binding and effective upon the Customer if the Customer fails to object to the revised terms within 30 days of receipt of notification. Grafana Labs encourages the Customer to review the latest version of the Grafana Labs K6 Services Agreement, which will be available at: https://grafana.com/legal. The Agreement constitutes the entire agreement of the Parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter hereof. Notwithstanding any language to the contrary in the Agreement, any Customer (or reseller) purchase order shall be deemed a convenient payment device only and no terms or conditions in any such purchase order shall be incorporated into the Agreement, which are void and of no effect.

  1. GOVERNING LAW

22.1 The Agreement is governed by the laws of the State of New York, without regard to conflicts of laws. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in the County of New York, New York, for resolution of any disputes arising out of the Agreement. The Parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of the Agreement.

  1. US GOVERNMENT CUSTOMERS

23.1 This Section 23.1 shall only apply if Customer is a federal government entity. The Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data”, and are subject to the Agreement, with the same rights and restrictions generally applicable to the Services. If Customer is using any Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer must immediately discontinue use of the Services. If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in the Agreement. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.