Grafana Labs Master Services Agreement
PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THIS MASTER SERVICES AGREEMENT (“MASTER SERVICES AGREEMENT”) ON BEHALF OF AN END USER CUSTOMER (“CUSTOMER”), REPRESENTS AND WARRANTS THAT THEY HAVE FULL AUTHORITY TO BIND CUSTOMER TO THIS MASTER SERVICES AGREEMENT. UNLESS CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF GRAFANA PRODUCT(S) AND PROFESSIONAL SERVICES, THIS MASTER SERVICES AGREEMENT GOVERNS, WHICH INCLUDES TERMS REGARDING LICENSE AND USAGE, DATA PRIVACY OBLIGATIONS, DISCLAIMERS AND LIMITATIONS OF LIABILITY, AND GRAFANA LABS’ RIGHT TO SUSPEND AND/OR TERMINATE THE AGREEMENT AND CUSTOMER’S ACCESS OR USE OF THE GRAFANA PRODUCT(S) FOR NON-PAYMENT. BY ACCEPTING THIS MASTER SERVICES AGREEMENT (EITHER BY CLICKING, CHECKING A BOX OR ENTERING INTO A SERVICE ORDER) CUSTOMER ACCEPTS THIS MASTER SERVICES AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND RAINTANK, INC. D/B/A GRAFANA LABS (“GRAFANA LABS”). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT OR IF THE INDIVIDUAL ACCEPTING THIS MASTER SERVICES AGREEMENT DOES NOT HAVE AUTHORITY TO BIND CUSTOMER, THEN DO NOT ACCEPT AND CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS OR USE THE GRAFANA PRODUCT(S) OR SERVICES. THIS MASTER SERVICES AGREEMENT IS BINDING AS OF THE EARLIEST OF: (I) THE DATE THAT CUSTOMER ACCEPTS THIS MASTER SERVICES AGREEMENT, (II) THE DATE SET FORTH ON A SERVICE ORDER OR (II) THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES, ACCESSES, OR USES THE GRAFANA PRODUCT(S) OR PROFESSIONAL SERVICES.
1. DEFINITIONS. Capitalized terms in the Agreement have the meaning set forth in Exhibit A attached hereto and incorporated herein, or elsewhere in the Agreement.
2. GENERAL LICENSE TERMS
2.1 License Grant. Subject to Customer’s compliance with the terms and conditions of this Agreement, Grafana Labs grants to Customer and its Affiliates a worldwide, royalty-free, non-exclusive, time-limited, non-sublicensable, non-transferable (except to a successor in interests as permitted hereunder), revocable (except as otherwise permitted herein) license to access and use, as applicable, the Grafana Product(s) during the Term and in the quantities specified on the Service Order(s). Customer may use the Documentation in connection with the license granted under this Section 3.1. For any Software consisting of Open Source Software, in whole or in part, Grafana Labs shall provide in the Documentation a description of the Open Source Software that is used or linked (whether by dynamic, static or other linking methods) or otherwise called, or referenced by, or in, providing Grafana Product(s). Grafana Labs will deliver to Customer the Grafana Product(s) electronically after the execution of an applicable Service Order(s). Unless otherwise stated in a Service Order(s), installation of the Software will be the responsibility of Customer. Grafana Labs will provide the Professional Services, if any, specified in one or more Service Order(s).
2.2 License Restrictions.Customer must not: (i) sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party any of the Grafana Product(s) in any way, except with Grafana Lab’s prior written consent in each instance; (ii) modify or make derivative works based upon any of the Grafana Product(s), or otherwise remove, decompile, disassemble or reverse engineer any software; or (iii) reverse engineer or use any of the Grafana Product(s) to: (A) build a competitive product or service; (B) build a product or service using similar ideas, features, functions or graphics to any portion of the Grafana Product(s); (C) copy, print, republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Grafana Product(s); (D) create any compilations or derivative works of any portion of the Grafana Product(s); or (E) copy (other than a reasonable number of copies for Customer’s operation of the Software) or resell any marketing, training or other materials such as slides, advice, guidance, or frameworks provided by Grafana its.
2.3 Configuration. Customer is responsible for properly configuring the Grafana Product(s) in accordance with the Documentation and securing access passwords, keys, tokens or other credentials used by Customer in connection with the Software (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Grafana Product(s) and to promptly notify Grafana Labs if Customer believes (a) any Customer Credentials have been lost, stolen or made available to an unauthorized third party or (b) an unauthorized third party has accessed the Graafana Product(s) or Customer Data.
3. AFFILIATE ORDERS. Each of Customer’s Affiliates may enter into Service Order(s) with Grafana Labs and shall be responsible for all of its obligations related thereto and shall be considered “Customer” with respect to that Service Order(s). Each Affiliate will pay for all Grafana Product(s) and Professional Services, if any, pursuant to a Service Order(s) entered into by that Affiliate. The rights and interests which are granted hereunder include the right of Customer and an Affiliate to purchase and use the Grafana Product(s) and Professional Services, if any, provided that, in each case, each Affiliate complies with the terms of this Agreement. Customer shall be fully liable for the acts and omissions of such Affiliates, and its and their employees, agents and contractors.
4. PROTECTION OF CUSTOMER DATA. To the extent the performance of its obligations entails the access to, or use of, Customer Data, Grafana Labs shall implement and follow the security controls, practices and procedures set forth in Exhibit B (Data Security Rider) attached hereto and incorporated herein.
Grafana Labs (and its licensors, where applicable) owns all right, title and interest (including all related Intellectual Property Rights) in and to the Grafana Product(s), Grafana Labs Technology, Work Product (which is specific to the Grafana Product(s) and not provided on a “work made for hire basis”), and any other Intellectual Property Rights owned by Grafana Labs. Grafana Labs hereby grants to Customer a worldwide, royalty-free, non-exclusive, time-limited, non-sublicensable, non-transferable (except to a successor in interest as permitted hereunder), revocable (except as otherwise permitted herein) license use the Work Product during the Term specified on the Service Order(s) in connection with the Grafana Product(s), solely for Customer’s internal business purposes. There are no implied rights and all rights not expressly granted herein are reserved. No license, right, or interest in any Grafana Labs trademark, copyright, patent, trade name or service mark is granted hereunder. If a Customer or an Affiliate provides Grafana Labs with any Feedback, Grafana Labs will own all right, title and interest in and to such Feedback, and Grafana Labs will have the right to use such Feedback without restriction. Customer or its licensors (a) own all rights in and to all Customer Data. Customer, not Grafana Labs, and (b) have sole responsibility for ensuring the accuracy, quality, integrity, legality, security, reliability, appropriateness, and Intellectual Property Rights to use all Customer Data. Except for limited Personal Data used in setting Customer Credentials, or through the Hosted Service(s), Grafana Labs does not require Personal Data for Customer’s access and use of the Software. With regard to Customer Data, Customer shall not use the Grafana Product(s) to process any Sensitive Information and shall use reasonable efforts to restrict the inclusion of other Personal Data in Customer Data. Grafana Labs will periodically collect usage and diagnostic data associated with the use of the Grafana Product(s). Such data does not contain any Customer Confidential Information.
6.1 Fees. The fees for the Grafana Product(s) will be all fees, and other charges, as specified on the Service Order(s) (“Fees”). The Fees are exclusive of all direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessment of any nature, including value-added, sales, use or withholding taxes (“Taxes”). Customer is solely responsible for payment of all Taxes related to this Agreement. Grafana Labs may be required to collect and remit Taxes from Customer, unless Customer provides Grafana Labs with a valid tax exemption certificate. Neither party shall be responsible for any Taxes levied against the other party’s net income.
6.2 Payment. Subject to the terms and conditions herein, Customer shall pay Grafana Labs all undisputed Fees upon Customer’s receipt of Grafana Labs’ invoice for such Fees, or as set forth on the applicable Service Order(s). All Fees are non-cancelable and non-refundable. Customer is responsible for paying for the Grafana Product(s) that Customer orders for the entire Term whether or not actually used. Fees are stated in United States Dollars, and must be paid in United States Dollars.
6.3 Non-Payment. Delinquent invoices (accounts in arrears) are subject to a service fee of one and one-half percent (1.5%) per month, or the maximum penalty permitted by law (whichever is less), on any outstanding balance, plus all expenses of collection; provided, however, that this interest may not be applied until any amount due hereunder remains unpaid ten (10) days after a written notice is provided to Customer regarding such overdue amount, at which point interest shall apply from the date the written notice has been mailed. In addition to any other rights Grafana Labs may have, Grafana Labs reserves the right to suspend the Agreement and Customer’s access to the Grafana Product(s) if any amount due hereunder remains unpaid ten (10) days after a written notice is provided to Customer regarding such overdue amount.
6.4 Audits. Customer will maintain accurate records of its use of the Grafana Product(s) sufficient to show compliance with the terms of this Agreement. On reasonable notice, Grafana Labs may audit Customer’s use of the Grafana Product(s) to confirm Customer’s compliance with the terms of this Agreement, provided such audit does not unreasonably interfere with Customer’s business activities. Customer will reasonably cooperate with Grafana Labs and/or any third party auditor, and will, without prejudice to other rights of Grafana Labs, address any non-compliance identified by the audit within thirty (30) days after such audit, such as by purchasing sufficient licenses to cover any usage of the Grafana Product(s) beyond that specified on the applicable Service Order(s) (“Excess Usage”) without benefit of any otherwise applicable discount and subject to license fees reflecting the duration of such Excess Usage. Customer will promptly reimburse Grafana Labs for all reasonable costs of the audit if the audit reveals either unpaid, Excess Usage of more than five (5%) percent, or that Customer has materially failed to maintain accurate records of use of the Grafana Product(s). Grafana Labs may also, at any time on request, require Customer to furnish Grafana Labs with information necessary to verify that Customer use of the Grafana Product(s) has not exceeded the quantities specified on the applicable Service Order(s).
7. WARRANTIES; DISCLAIMERS.
7.1. Each party warrants that: (a) it has the requisite corporate power and authority to enter into this Agreement and each Service Order(s); and (b) it will comply with all applicable laws, including without limitation, technology export, use, and transfer laws of the United States and other countries in its performance under this Agreement.
7.2 Grafana Labs warrants that the Grafana Product(s) will substantially conform in all material respects with the applicable Documentation.
7.3 Grafana Labs offers SLA(s) for some of the Grafana Product(s), which are available at https://grafana.com/legal/grafana-slas/ and hereby incorporated by reference into this Agreement, as applicable.
7.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT:
a. THE GRAFANA PRODUCT(S) AND GRAFANA LABS TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; GRAFANA LABS AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, PERFORMANCE, SUITABILITY, RESULTS, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR THE GRAFANA LABS TECHNOLOGY;
b. WITHOUT LIMITING SECTION 7.4(a), GRAFANA LABS AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT: (a) THE USE OF THE GRAFANA PRODUCT(S) OR GRAFANA LABS TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (b) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (c) ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (e) ERRORS OR DEFECTS WILL BE CORRECTED.
c. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE), ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
8. TERM & TERMINATION
8.1 Term of Agreement. The Agreement commences on the Effective Date and continues until: (i) ninety (90) days after all Service Order(s) have expired or been terminated, or (ii) either party terminates this Agreement pursuant to the terms hereof.
8.2 Subscription Term. The subscription term of the applicable Grafana Product(s) will be specified in each Service Order(s) (“Term”).
8.3 Termination for Breach. Either party may terminate this Master Services Agreement, any Service Order(s), or any other document specifically incorporated herein by reference: (i) immediately upon written notice if the other party commits a non-remediable material breach of this Agreement; or (ii) if the other party fails to cure any remediable material breach of this Agreement 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. In addition, Grafana Labs may also terminate a free or trial account at any time in its sole discretion.
8.4 Effect of Termination. Termination or expiration of a Service Order(s) shall not constitute termination of this Master Services Agreement or any other active Service Order(s), however, in the event that this Master Services Agreement is terminated, any active Service Order(s) shall also terminate. Without prejudice to any other right or remedy of Grafana Labs, in the event either party terminates a Service Order(s), Customer will pay Grafana Labs for all Grafana Products provided up to the effective date of termination. On termination of this Master Services Agreement, all licenses to the Grafana Product(s) shall automatically terminate with immediate effect. On termination of a Service Order(s) all licenses to the Grafana Product(s) under such Service Order(s) shall terminate with immediate effect.
8.5. Survival. In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive, including but not limited to Sections 2.2-2.3 (License Restrictions; Configuration); 5 (“Ownership”); 6 (“Payment”); 7.4 (Warranty Disclaimer); 9 (“Indemnification” for the period of the applicable statute of limitations); 10 (“Confidentiality”); 11 (“Limitation of Liability”); 12 (“Publicity; Non-Solicitation”); 13 (“General”); and any accrued rights to payment shall remain in effect beyond such termination or expiration until fulfilled.
9.1 Grafana Labs. Subject to Section 9.3 below, Grafana Labs will defend Customer against any third-party claim, demand, suit, or proceeding filed against Customer in the United States alleging that the Grafana Product(s), as sold and delivered to Customer pursuant to this Agreement (the “Indemnified Products”), directly infringe the intellectual property rights of such third party (“Claim Against Customer”), and will indemnify 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 Against Customer, or for amounts paid by Customer under a signed settlement of such Claim Against Customer. Notwithstanding the foregoing, Grafana Labs shall have no obligation under this Section 9.1 for any Claim Against Customer 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 Agreement or applicable Documentation; or (iv) failure to implement any update, modification, or replacement to the Indemnified Products as provided by Grafana Labs.
9.2 Customer. Subject to Section 9.3 below, Customer will defend Grafana Labs against any third-party claim, demand, suit, or proceeding alleging that: (i) Customer Data, or Grafana Labs’ use thereof in accordance with this Agreement, infringes, violates, or misappropriates Intellectual Property Rights, or (ii) bodily injury (including death) to any person or damage to property resulted from the gross negligence or willful misconduct of Customer, its employees, subcontractors, agents, or representatives (“Claim Against GL”), and will indemnify Grafana Labs from and against any damages, costs, and expenses (including reasonable attorneys’ fees) finally awarded by a court of law in respect of such Claim Against GL, or for amounts paid by Customer under a signed settlement of such Claim Against GL.
9.3 Process. Each indemnifying party’s obligations under Section 9.1 or Section 9.2, respectively, are conditioned upon the following: (i) the indemnified party first provides written notice of the Claim Against Customer or Claim Against GL, as applicable, to the indemnifying party within thirty (30) days after becoming aware of or reasonably should have been aware of the Claim Against Customer or Claim Against GL, as applicable, provided, however, the failure to provide such notice will only relieve the indemnifying party of its obligations under this Section 9 to the extent the indemnified party is prejudiced thereby; (ii) the indemnified party must tender sole and exclusive control of the Claim Against Customer or Claim Against GL, as applicable, to the indemnifying party, (iii) the indemnified party must provide reasonable assistance, cooperation, and required information with respect to the defense and/or settlement of the Claim Against Customer or Claim Against GL, as applicable. The indemnified party may participate in the Claim Against Customer or Claim Against GL, as applicable, at its sole cost and expense, except that the indemnifying party will retain sole control of the defense and/or settlement. The indemnifying party shall not agree to any settlement of the Claim Against Customer or Claim Against GL, as applicable, that includes an injunction against the indemnified party, or admission of liability of the indemnified party without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld.
9.4. Exclusive Remedy. This Section 9 (Indemnification) is the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described herein.
The parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this 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 to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Both parties agree that obligations of confidentiality will survive expiration or termination of this 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 termination or expiration of the Agreement, or at the request of the Disclosing Party, the Receiving Party will promptly return all tangible material embodying the Disclosing Party’s Confidential Information, and will destroy (or, in the case of electronic embodiments, permanently erase) all other tangible material containing or reflecting such Confidential Information (in any form including, without limitation, all summaries, copies and excerpts) in its possession or under its control, whether prepared by the Disclosing Party, the Receiving Party, their respective advisors or otherwise, and will not retain any copies, extracts or other reproductions in whole or in part of such materials.
11. LIMITATION OF LIABILITY
11.1. EXCEPT FOR (i) THE PARTIES’ OBLIGATIONS UNDER SECTION 9 OF THIS MASTER SERVICES AGREEMENT (INDEMNIFICATION), (ii) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, (iii) EITHER PARTY’S MATERIAL BREACH OF SECTION 10 OF THIS MASTER SERVICES AGREEMENT (CONFIDENTIALITY), (iv) CUSTOMER’S BREACH OF SECTION 2 OF THIS MASTER SERVICES AGREEMENT (GENERAL LICENSE TERMS), OR (v) CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY’S TOTAL, AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO GRAFANA LABS IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
11.2 EXCEPT FOR (i) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 10 OF THIS MASTER SERVICES AGREEMENT (CONFIDENTIALITY), OR (ii) CUSTOMER’S BREACH OF SECTION 2 OF THIS MASTER SERVICES AGREEMENT (GENERAL LICENSE TERMS), IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE OWNERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES OR LICENSORS BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES.
11.3. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE NATURE OF THE CLAIM AND ITS LIABILITIES, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES. BOTH PARTIES SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
12. PUBLICITY; NON-SOLICITATION
12.1 Publicity. Neither party shall, except as otherwise required by applicable laws, issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Grafana Labs may include Customer’s name and logo in its list of customers, its public website, and other promotional material.
12.2 Non-Solicitation. Customer agrees not to solicit any personnel of Grafana Labs involved with the delivery of Grafana Product(s) in connection with any Service Order(s) during the term of and for twelve (12) months after termination or expiration of such Service Order(s); 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.
13.1 U.S. Government Customers. The Grafana Product(s) are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Grafana Product(s). If Customer or any User is using Grafana Product(s) 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 and Users must immediately discontinue use of the Grafana Product(s). The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
13.2 Governing Law; Venue. This 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 this 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 this Agreement.
13.3 Force Majeure. Neither party shall be liable for any delay or failure in performance of any part of this Agreement (except payment) to the extent that such delay is caused by a Force Majeure Event. If any such Force Majeure Event occurs, the Party delayed or unable to perform (“Delayed Party”), upon giving prompt notice to the other Party, shall be excused from such performance on a day-to-day basis during the continuance of such Condition (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis during the same period); provided, however, that the Party so affected shall use its best reasonable efforts to avoid or remove such Condition, and both Parties shall proceed immediately with the performance of their obligations under this Agreement whenever such causes are removed or cease.
13.4 Independent Parties; No Third Party Beneficiaries. The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
13.5 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, then such provision shall be fully severable and will not affect the validity of the remaining provisions of the Agreement.
13.6 No Waiver. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision, unless acknowledged and agreed in writing by the party against whom the waiver is asserted.
13.7 Assignment. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, either party may, upon written notice and without the prior approval of the other party, (a) assign this Agreement to an Affiliate as long as the Affiliate has sufficient assets to satisfy its obligations under this Agreement and the scope of Grafana Product(s) is not affected; or (b) assign this Agreement pursuant to a merger, consolidation, reorganization, change of control, or a sale of all or substantially all of such party’s assets or stock.
13.8 Notices. The parties shall provide all notices and consents in writing. Notices and consents delivered via e-mail are effective upon the receiving party’s acknowledgement of receipt via e-mail. Notices and consents delivered by hand or by a national transportation company are effective upon delivery to. Grafana Labs: Attn: Chief Operating Officer, 29 Broadway, Penthouse Suite, New York, NY 10006; for Customer, to the address on file.
13.9 Entire Agreement; Integration. Each Service Order(s) (a) is deemed to be incorporated into this Agreement; and (b) along with this Agreement, and all attachments hereto or otherwise incorporated herein, represents the final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of the Service Order(s). Notwithstanding any language to the contrary in this Agreement, any ordering document issued under this Agreement shall be deemed a convenient order and payment device only and no terms (other than product name, license quantity, price, term, and billing contact) stated in any such ordering document shall be incorporated into this Agreement, and all other terms shall be void and of no effect.
3.10 Counterparts; Headings. This Agreement may be executed in counterparts. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
13.11 Changes to this Agreement. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
13.12 Remedies; Injunctive Relief. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. Either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property, confidentiality, or proprietary rights under this agreement, as such a breach may cause the non-breaching party irreparable damage with no adequate remedy at law.
13.13 Consumption-Based Products Terms [as applicable]. If a Service Order(s) includes Consumption-Based Products, pricing for consumption thereof will be determined by the applicable Consumption-Based Products Rate Table set forth in the applicable Service Order(s). Without limiting anything in this Agreement, for purposes of clarity, fees paid for Consumption-Based Products (whether prepaid and corresponding to unused consumption, or otherwise) expire at the end of the then-current Term, and are non-assignable, non-transferable, non-sublicensable, and not eligible for carry-over to subsequent Terms. Fees for the Consumption-Based Products will first be charged against any prepaid amounts, monthly in arrears, until exhausted. Fees for further consumption will be charged monthly in arrears, and Customer agrees to pay such amounts in accordance with Section 6 of this Master Services Agreement. Grafana Labs may change the pricing in the applicable Consumption-Based Products Rate Table at any time, in its sole discretion.
1. “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, contract, voting trust or otherwise.
2. “Agreement” means this Master Services Agreement, collectively with: (a) all Service Order(s) agreed to by the parties in writing; and (b) any other materials specifically incorporated by reference herein, is referred to herein as the “Agreement.”
3. “Customer Data” means: any data, information, materials or multimedia content relating to Customer, Affiliates, or a User that is processed by the Grafana Product(s) that is not Personal Data.
4. “Confidential Information” means information and tangible materials disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under the Agreement that are or should be reasonably understood to be confidential or proprietary to the Disclosing Party based on the nature of the information and the circumstances of disclosure, including without limitation the terms of this Agreement (including pricing and other terms reflected in an ordering document or Service Order(s)), technical processes or formulas, sales, software, cost and other unpublished financial information, product and business plans, and projections. “Confidential Information” will not, however, include information or materials the Receiving Party can prove through verifiable, objective evidence:
(a) became part of the public domain without breach of the Agreement;
(b) was known to the Receiving Party prior to its receipt from the Disclosing Party without restriction on disclosure;
(c) was rightfully received from a third-party that lawfully and rightfully possesses such information without restriction on disclosure; or
(d) was developed independently by or for the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
5. “Documentation” means Grafana Labs’ standard user manuals, guides, specifications, technical documentation, “best practices” materials, or other documentation provided by Grafana Labs in connection with Customer’s access and/or use of the Grafana Product(s).
6. “Feedback” means bug reports, suggestions, or other feedback relating to the Software or Grafana Labs Technology.
7. “Force Majeure Event" means reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, pandemic, or any other circumstances beyond the reasonable control and not involving any fault or negligence of the delayed Party.
8. “Grafana Labs Technology” means Grafana Labs' proprietary technology (including Software, Hosted Services, hardware, products, processes, algorithms, user interfaces, APIs, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Grafana Labs in connection with providing the Software.
9. “Grafana Product(s)” means the Software and/or Hosted Service(s) licensed and/or purchased by Customer under one or more Service Order(s).
10. “Hosted Services” means the specific edition of Grafana Product(s) licensed hereunder on a hosted basis as software as a service.
11. “Intellectual Property Rights” means: (a) unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world including, without limitation, with respect to all computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases; and (b) all moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology.
12. “Open Source Software” means any software that is distributed as free software, open source software (e.g., Linux or software distributed under any license approved by the Open Source Initiative as set forth at www.opensource.org) or under a similar licensing or distribution model, and as to any of the foregoing, that requires any one or more of the following (i) redistribution of the software on a royalty-free basis, and/or (ii) redistribution of the software under the same license/distribution terms as those contained in the software license under which such software was originally released, and/or (iii) release to the public, disclosure, or a requirement to otherwise make available the source code of the software or any other software that links with such software.
13. “Personal Data” means information relating to an identified or identifiable natural person that is protected by applicable laws with respect to privacy where the individual resides.
14. “Professional Services” means installation, implementation, or other consulting services provided by Grafana Labs to Customer under a Service Order(s).
15. “Sensitive Information” means the following categories of Personal Data: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; and (g) data relating criminal convictions and offenses. Without limiting the foregoing, the term “Sensitive Information” includes Personal Data that is subject to specific or heightened requirements under applicable laws.
16. “Service Order(s)” means an ordering document for a Grafana Product(s) issued by Customer (or reseller) that contains at least the following information: product name, license quantity, price, term, and billing contact.
17. “Software” means any Grafana Labs proprietary binary software and other binary software programs branded by Grafana Labs, its affiliates and/or third parties, licensed hereunder.
18. “User” means an authorized employee, agent, representative, consultant, or contractor of Customer or its Affiliates licensed to use the Grafana Product(s).
19. “Work Product” means all work product developed or created by Grafana Labs during the course of providing Professional Services to Customer.
DATA SECURITY RIDER
- SECURITY; SYSTEM PROTECTION.
- Safeguarding Customer Data. Grafana Labs agrees to safeguard Customer Data and Personal Data in accordance with this Data Security Rider. Grafana Labs will not disclose, transfer or use any Customer Data for any purpose other than to perform its obligations under this Agreement. Grafana Labs will promptly overwrite (e.g., with “X”s) any such information upon and pursuant to Customer’s written or email notice.
- System Protection & Recovery. Grafana Labs will protect its computer and operations systems against outages using standard industry methods designed to prevent outages and minimize impacts during any unavoidable service interruptions, including ensuring that (a) its computer system is UPS protected, backed up automatically, and (b) it has implemented and regularly tests a disaster recovery or business continuity plan for its facilities where Customer Data is stored or processed.
- INFORMATION SECURITY POLICY.
- Basic Security Requirements.
- Install and maintain a working network firewall to protect data accessible via the Internet.
- Keep security patches up-to-date.
- Use and regularly update anti-virus software.
- Don’t use supplier-supplied defaults for system passwords and other security parameters.
- Mandate the use of “strong passwords” on all systems or, in the absence of a mandatory (system enforced) password quality checker, enforce account lockout after no more than 10 consecutive incorrect password attempts.
- For systems containing Customer Data, mandate use of “strong passwords” with multi-factor authentication.
- Regularly test security systems and processes.
- Maintain a policy that addresses information security for employees and suppliers.
- Restrict physical access to systems containing Customer Data.
- Restrict remote access to the entire network and employ remote access controls to verify the identity of users connecting.
- Security Audits.
- If requested by Customer, Grafana Labs will undergo a security audit.
- Customer reserves the right to periodically audit the systems that Grafana Labs uses to store the Customer Data, upon prior written notice to Grafana Labs and during Grafana Labs’ normal business hours; provided, that, no more than one such audit shall be made during any 12 month period during the term of this Agreement; provided further that the foregoing restriction will not apply in the event of any security breach related to or in connection with Customer Data.
- Data Transmission.
- Grafana Labs agrees to meet industry level standards for protecting the confidentiality and integrity of data transmissions sent through the Hosted Services. Approved mechanisms for data transmission may include:
- XML/HTTP over SSL, with certificate-based authentication utilizing a 2048-bit (or larger) RSA public key, and 128-bit (or stronger) symmetric encryption.
- Digitally signed and encrypted S/MIME messages over HTTP or SMTP, using certificates with a 2048-bit (or larger) RSA public key, and 128-bit (or stronger) symmetric encryption.
- Digitally signed and encrypted PGP (Pretty Good Privacy) or GPG (Gnu Privacy Guard) messages over a variety of transports, with 2048-bit (or larger) RSA or DH/DSS public keys, and 128-bit (or stronger) symmetric encryption.
- For all message-based encryption schemes employing digital signatures (including PGP and S/MIME), Grafana Labs will verify the digital signature of the message and reject messages with invalid signatures.
- For all encryption schemes employing public key cryptography, Grafana Labs will ensure the confidentiality of the private component of the public-private key pair, and will promptly notify Customer in the event that the private key is compromised.
- In general, the mechanism choice will depend on a number of factors such as technical capability, transaction volume, latency requirements, availability requirements, and will be chosen by mutual agreement.
- Data Retention.
- Customer has no obligation to provide any Customer Data to Grafana Labs.
- Grafana Labs will retain Customer Data only for as long as is necessary to provide the Grafana Product(s).
- Grafana Labs will delete all live (online or network accessible) instances of the Customer Data within 30 days after termination or expiration of this Agreement.
- Forensic Destruction. Prior to disposing of any hardware, media, or software (including any sale or transfer of such hardware, media, or software, any disposition in connection with any liquidation of Grafana Labs’ business, or any other disposition) that contains, or has at any time contained, Customer Data, Grafana Labs will perform a complete forensic destruction of the Customer Data in such hardware or software such that none of such Customer Data can be recovered or retrieved. Such forensic destruction may include: (a) physical destruction, particularly incineration; or (b) secure data wipe.
- Security Incidents. Grafana Labs will notify Customer without undue delay after detecting a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by Grafana Labs (any such incident, a “Security Incident”). Grafana Labs shall make reasonable efforts to identify the cause of such Security Incident and take those steps as Grafana Labs deems necessary and reasonable in order to remediate the cause of such a Security Incident to the extent the remediation is within Grafana Lab’s reasonable control. The obligations herein shall not apply to Security Incidents that are caused by Customer or its Users.