Master Services Agreement
By using any of the services provided by raintank, Inc. a Delaware corporation dba as Grafana Labs, and its affiliates and subsidiaries with an address of 29 Broadway 31st Floor, New York, NY 10006 (“Grafana Labs”), you (“Customer”) agree to be bound by the terms and conditions of this Master Service Agreement (“MSA”). Each of Grafana Labs and Customer may be referred to herein as a “Party” and collectively as the “Parties.”
ARTICLE 1 - GENERAL
1.1 Agreement Structure This MSA provides general terms, conditions and a framework within which Customer may from time to time use, access and/or purchase certain support, maintenance, or infrastructure services (“Services”) from Grafana Labs for its use and/or for resale to its customers (“End User Customers”) as permitted by this MSA.
1.2 Orders for Services Customer may request Grafana Labs to provide a Service by requesting Services via the Grafana Labs website and/or API, or by signing a Service Order. Customer acknowledges and agrees that Customer is solely responsible for the accuracy of all requests for Services. All Services provided by Grafana Labs shall incorporate by reference, and shall be subject to, the terms and conditions of this MSA.
ARTICLE 2 - PAYMENT TERMS
2.1 Payment Method (Hosted Metrics Service) Customer must establish and maintain a current online payment method (the “Payment Method”) on the Grafana Labs website prior to Grafana Labs providing any Hosted Metrics Services to Customer, unless Grafana Labs has separately agreed to extend credit to Customer.
2.2 Invoicing and Payment Terms For Hosted Metrics Services, Grafana Labs will provide Customer with a monthly itemized invoice that includes all committed services and usage charges for the Services provided in the period covered by the invoice, all amounts are due to Grafana Labs upon receipt of the electronic invoice unless Grafana Labs has separately agreed to extend credit to Customer, Grafana Labs will charge the invoice amount upon provision of each invoice, Grafana Labs will notify Customer in the event that Grafana Labs is unable to charge any amount via the Payment Method, and Customer will promptly update the Payment Method or arrange for alternative form of payment. For Support Subscription Services, Grafana Labs will bill the customer yearly, in advance, On Net-15 terms. Invoice amounts not paid on or before the date that is fifteen (15) days following the corresponding invoice date (the “Due Date”) shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is lower.
2.3 Invoice Disputes To the extent that Customer disputes any portion of an invoice, Customer shall notify Grafana Labs in writing and provide detailed documentation supporting its dispute within fifteen (15) days of the invoice date or the Customer’s right to any billing adjustment shall be waived. In the event of a billing dispute, Customer shall pay all undisputed amounts. If the dispute is resolved against Customer, Customer shall pay such amounts due plus interest as set forth in Section 2.3.
ARTICLE 3 - TERM
3.1 Term For Hosted Services, The Term of this MSA shall begin on the date that Services are first provided to the Customer and shall be defined by the appropriate Service Order. For Support Subscriptions, The Term of the MSA shall begin on the data that it is countersigned by both parties.
ARTICLE 4 - DEFAULT; SUSPENSION OF SERVICE
4.1 Customer Default 4.1.1 Customer is in default of this MSA if Customer (a) fails to cure any monetary breach within five (5) days of receiving notice of the breach from Grafana Labs; (b) fails to cure any non-monetary breach of any terms of this MSA within thirty (30) days of receiving notice of the breach from Grafana Labs; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Customer Default”). 4.1.2 In the event of a Customer Default, Grafana Labs may suspend Services to Customer until Customer remedies the Customer Default, or Grafana Labs may terminate this MSA and/or any or all of the Services being provided hereunder. Grafana Labs may at its sole option, but without any obligation, cure a non-monetary breach at Customer’s expense at any point and invoice Customer for the same. These remedies are in addition to and not a substitute for all other remedies contained in this MSA or available to Grafana Labs at law or in equity.
4.2 Grafana Labs Default. 4.2.1 Grafana Labs is in default of this MSA if Grafana Labs fails to cure any non-monetary breach of any material term of this MSA within thirty (30) days of receiving written notice of the breach from Customer (“Grafana Labs Default”); provided, however, that Customer expressly acknowledges that Service related failure or degradation in performance is not subject to a claim of a Grafana Labs Default. Customer’s sole and exclusive remedy for any failure of Service is set forth in the applicable Service Schedule. 4.2.2 In the event of a Grafana Labs Default, Customer may terminate the Services and this MSA upon written notice to Grafana Labs. Any termination shall not relieve Customer of its obligations to pay all charges incurred hereunder prior to such termination.
ARTICLE 5 – TAXES AND IMPOSITIONS
All charges for the Services are exclusive of any Taxes and Impositions. Except for taxes based on Grafana Labs’s net income or for taxes which Customer possesses an exemption certificate, Customer shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, or other taxes, duties, fees, charges or surcharges (including regulatory fees), however designated, imposed or based upon the sale or use of the Services (collectively “Taxes”).
ARTICLE 6 – LICENSE GRANT
6.1 License Grant Subject to this the other terms and conditions of this MSA, Grafana Labs herby grants Customer a nonexclusive, revocable, non-transferable and non-sub-licensable right and license to use the Services set forth in an Order during the applicable Service Term. If Customer, or an End use Customer, violates any of the foregoing prohibitions, Grafana Labs may immediately suspend the Services and/or terminate this MSA and any Services without liability or further obligation to Customer.
ARTICLE 7 – INTELLECTUAL PROPERTY RIGHTS
7.1 Reservation of Rights As between the parties, Grafana Labs retains all right, title and interest in and to the Services and the Grafana and Grafana Labs Technology and all modifications, alterations, derivative works and enhancements and all intellectual property rights contained within. Grafana Labs grants no license, right or intellectual property right in any Grafana or Grafana Labs trademark, trade name or service mark pursuant to this MSA.
ARTICLE 8 - LIMITATION OF LIABILITY
8.1 General Limitations Grafana Labs shall not be liable for loss or damage occasioned by a Force Majeure Event nor, to the extent allowed by law, for injury to or death of any person and for damage to or loss of any property arising out of or attributable to its operations and performance under this MSA. Grafana Labs’s total liability for any and all causes and claims whether based in contract, warranty, negligence or otherwise shall be limited to the lesser of (i) the actual direct damages sustained by Customer; or (ii) an amount equivalent to the total recurring revenue received by Grafana Labs from Customer over the preceding three (3) months for the Service affected. No cause of action under any theory which accrued more than one (1) year prior to the filing of the alleged complaint.
8.2 Special Damages EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH BELOW IN ARTICLE 9 AND EXCEPT FOR CLAIMS ARISING FROM A PARTY’S INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF, OR IN CONNECTION WITH, THIS MSA, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, INCURRED OR SUFFERED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, GRAFANA LABS MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE SERVICE, LOCAL ACCESS OR ANY OTHER MATTER, AND ANY SUCH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
8.3 No Liability for Certain Actions Grafana Labs shall not be liable to Customer or its End User Customers for any claims or damages resulting from or caused by (a) unauthorized access to transmission facilities or premise equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method; (b) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (c) claims against Customer by any other party (except for third-party claims indemnified under Article 9); (d) any act or omission of any other party, including End User Customers; or (e) equipment or services furnished by a third party, including End User Customers. Grafana Labs is not responsible for the content of any information transmitted or received through the Services. Customer shall be solely responsible for all of the security and confidentiality of information it transmits using a Service. Customer shall be solely responsible for all Customer support, pricing and service plans, billing and collections with respect to its End Users Customers, including obtaining all necessary legal or regulatory approvals to provide or terminate the provision of the services to its End User Customers. Grafana Labs exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Customer equipment, and use of any such Service is at Customer's own
ARTICLE 9 - INDEMNIFICATION
9.1 Indemnification Each Party shall indemnify, defend and hold harmless (“Indemnifying Party”) the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from all damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this MSA except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that Grafana Labs is not obligated to indemnify Customer, and Customer shall defend and indemnify Grafana Labs hereunder, for any claims by any third party, including End User Customers, arising from services provided by Customer that incorporate any of the Services including but not limited to (a) violation of any applicable law by End User Customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of End User Customers; (c) termination or suspension of Services of Customer or End User Customers, due to a Customer Default; or (d) claims by a third party, including without limitation End User Customers, arising out of or related to the Service.
9.2 Indemnification Procedures The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.
ARTICLE 10 - CONFIDENTIALITY
“Confidential Information” shall mean all information, including this MSA, regarding the telecommunications needs of Customer and the Services that Grafana Labs offers under this MSA which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary. Notwithstanding the foregoing, all written or oral pricing and contract proposals exchanged between the Parties shall be deemed Confidential Information, whether or not so designated. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request. Information that (i) is independently developed by the Receiving Party, (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other than by breach of this MSA, shall not be considered Confidential Information. A Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information in confidence from the time of disclosure until three (3) years following its disclosure. During that period, the Receiving Party: (a) shall use such Confidential Information only for the purposes of performing its obligations under this MSA; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure of such Confidential Information to employees that have a need to know for such purposes; (d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in this MSA or as required by law; and (e) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Notwithstanding anything in this Article 10 to the contrary, the fact that Customer is a customer of Grafana Labs shall not be deemed Confidential Information and Grafana Labs may disclose the same without liability therefor.
ARTICLE 11 - FORCE MAJEURE
Neither Party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to, acts of third parties not under the direction or actual control of the Party delayed or unable to perform, acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any law, order, regulation, direction, action or request of the government, or any department, agency, commission, court, or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout, or work stoppage (each, a “Force Majeure Event”). The Party claiming relief under this Article 12 shall notify the other Party of the occurrence or existence of the Force Majeure Event and of the termination of such event.
ARTICLE 12 - MISCELLANEOUS PROVISIONS
12.1 Subject to Laws This MSA is subject to all applicable federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Telecommunications Act of 1996, the Rules and Regulations of the Federal Communications Commission (“FCC”), Grafana Labs’s applicable tariffs, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body. Either Party may terminate its obligations under this MSA without liability if ordered to do so by the final order or ruling of a court or other governmental agency or if such order or ruling would make it impossible for either Party to carry out its obligations under this MSA.
12.2 Governing Law; Venue This MSA shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the State of New York. Any and all claims arising out of or relating to this MSA shall be brought in a state or federal court of competent jurisdiction in New York, New York. Customer consents to the personal and subject matter jurisdiction of the state and/or federal courts located in New York, New York and waives (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.
12.3 Prevailing Party In the event that suit is brought or an attorney is retained by either party to enforce the terms of this MSA or to collect any money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred in connection therewith.
12.4 Relationship of Parties This MSA does not create a partnership, joint venture or agency relationship between the Grafana Labs and Customer. Neither Party shall have any authority to bind the other Party to any agreement, understanding or other instrument, in any manner whatsoever.
12.5 Assignment; Binding Effect Except as expressly permitted by Grafana Labs and implemented via the Grafana Labs website and/or API, Customer shall not transfer or assign, voluntarily or by operation of law, its rights or obligations under this MSA without the prior written consent of Grafana Labs. Grafana Labs may assign this MSA upon written notice to Customer. This MSA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
12.6 Amendment Grafana Labs may amend this MSA from time-to-time. Grafana Labs will notify Customer by email or by posting a notice on the Grafana Labs website before the changes are effective. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to this MSA. Continued use of any Service(s) after any such changes shall constitute Customer’s consent to such changes.
12.7 Notices Notices delivered to Grafana Labs under or pursuant to this MSA shall be in writing and delivered by certified mail, return receipt requested, or by nationally recognized courier to Grafana Labs, Inc., Attn: Legal Department, 29 Broadway 31st Floor, New York, New York, NY 10006. Notices delivered to Customer under or pursuant to this MSA shall be delivered via electronic mail to the Customer email address on file with Grafana Labs.
12.8 No Third Party Beneficiaries The representations, warranties, covenants and agreements of the Parties set forth herein are not intended for, nor shall they be for the benefit of or enforceable by, any third party or person not a Party hereto, including without limitation, End User Customers.
12.9 Survival Articles 2, 5, 8, 9, 11 and 13 shall survive any termination of this MSA.
12.10 Entire Agreement This MSA constitutes the entire understanding between the Parties relating to the rights, duties and obligations granted and assumed herein. Any prior agreements, promises, negotiations or representations regarding the subject matter hereof are of no force or effect. No alteration or variation of the terms of any provision shall be valid unless made in writing and signed by a duly authorized representative of Grafana Labs and the Customer. In the event that any one or more of the provisions of this MSA shall for any reason be held to be invalid or unenforceable, the remaining provisions of this MSA shall be unimpaired, and shall remain in effect and be binding upon the Parties. The Services provided by Grafana Labs are subject to the condition that they will not be used for any unlawful purposes. No course of dealing between the Parties and no failure to exercise any right hereunder shall be construed as a waiver of any provision hereof.