Grafana Labs Plug-In Signing Agreement
PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THIS PLUG-IN SIGNING AGREEMENT (“AGREEMENT”) ON BEHALF OF A PLUG-IN PARTNER (“PARTNER”), REPRESENTS AND WARRANTS THAT THEY HAVE FULL AUTHORITY TO BIND PARTNER TO THIS AGREEMENT. UNLESS PARTNER HAS A SEPARATE VALID AGREEMENT FOR THE SIGNING SERVICES (AS DEFINED BELOW) SIGNED BY BOTH PARTIES, THIS AGREEMENT GOVERNS, WHICH INCLUDES TERMS REGARDING LICENSING, DISCLAIMERS, LIMITATIONS OF LIABILITY, AND GRAFANA LABS’ RIGHT TO SUSPEND AND/OR TERMINATE THE AGREEMENT AND THE SIGNING SERVICES FOR NON-PAYMENT. BY ACCEPTING THIS AGREEMENT (EITHER BY CLICKING, CHECKING A BOX OR ENTERING INTO AN ORDER FORM) PARTNER ACCEPTS THIS AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN PARTNER AND RAINTANK, INC. DBA GRAFANA LABS (“GRAFANA LABS”). IF PARTNER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE AUTHORITY TO BIND PARTNER, THEN DO NOT ACCEPT THIS AGREEMENT. THIS AGREEMENT IS BINDING AS OF THE EARLIEST OF: (I) THE DATE THAT PARTNER ACCEPTS THIS AGREEMENT, OR (II) THE DATE SET FORTH ON AN ORDER FORM(S).
1. PLUG-IN SIGNING; ORDER FORM. Upon review and acceptance, Grafana Labs will sign Partner’s software add-on or extension (as described in the Order Form(s), the “Plug-In”) to confirm its source and authenticity, then will list the Plug-In the Grafana.com catalog for the subscription term length set forth on the Order Form(s) (“Signing Services”). As used in this Agreement, “Order Form(s)” means an ordering document for the Signing Services mutually executed by the Parties that contains at least the following information: a description of the Signing Services, price, term length, and billing contact.
2. LICENSE. Partner hereby grants Grafana Labs and its affiliates a nonexclusive, worldwide, transferable, royalty-free, irrevocable, license to the Plug-In (including all related intellectual property rights, including patents, copyrights, trademarks, and moral rights), with the right to sublicense such rights through multiple tiers of sublicensees, and to reproduce, modify, display, perform and distribute the Plug-In in connection with Grafana Labs’ products and services.
3. FEES. Fees for the Signing Services will be set forth in the applicable Order Form(s) (“Fees”). The Fees are exclusive of all taxes. Partner shall pay all Fees to Grafana Labs upon receipt of Grafana Labs’ invoice. All Fees are non-cancellable and non-refundable. Fees are stated in United States Dollars and must be paid in United State Dollars.
4. REPRESENTATIONS, WARRANTIES, SUPPORT.
4.1 Partner represents and warrants: (i) it has the legal power to enter into and perform under this Agreement; (ii) it shall comply with all applicable laws in its performance hereunder; (iii) the Plug-In does not and will not infringe any third party’s intellectual property rights; (iv) the Plug-In is free from any viruses or malicious code, or any mechanism which would permit unauthorized access, use or disclosure of any product or service offered by Grafana Labs or any information relating to or identifying Grafana Labs or its end-user customers; (v) the Plug-In contains no open source, freeware, copyleft, or similar components which would require general or public disclosure of any component of any product or service offered by Grafana Labs or its end-user customers, or otherwise impair the rights of Grafana Labs or its end-user customers; (vi) the Plug-In was developed using security best practices, complies with all applicable laws, including privacy and security laws and regulations, and complies with all security requirements of Grafana Labs or its end-user customers; and (vii) Partner has all right, title, and interest required to provide the Plug-In to Grafana Labs under this Agreement.
4.2 Security. Partner will implement physical, technical, administrative, and other sufficient security measures to protect and preserve the confidentiality and security of all data of Grafana Labs and its end-user customers that is processed, stored, transmitted, or handled by Partner or the Plug-In. Partner will immediately notify Grafana Labs, consult and cooperate with investigations, assist with any required notices, and provide any information reasonably requested by Grafana Labs if Partner knows of or suspects any breach of security, potential vulnerability, or any unauthorized access, use, or disclosure of or related to the Plug-In (or any data processed, stored, transmitted, or handled therein or on supporting infrastructure), and will promptly mitigate any such event.
4.3 Support. Partner shall be solely responsible, at its expense, for the Plug-In, including all support, development, and maintenance thereof and its interoperability (i.e., integration) with Grafana Labs’ products and services. Partner will promptly notify Grafana Labs of any problems, bugs, or the like, with the Plug-In. Partner will reasonably cooperate with Grafana Labs, on request, to ensure Grafana Labs’ end-user customers receive full use and enjoyment of the Plug-In. Partner will provide all services under this Agreement in a professional and workmanlike manner consistent with industry best practices.
4.4 DISCLAIMER. GRAFANA LABS AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY, AND ANY OTHER WARRANTIES RELATING TO THE SIGNING SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, VIEWS, OR REGULATORY COMPLIANCE.
5. OWNERSHIP. Grafana Labs and its affiliates, licensors, and suppliers, and Partner and its suppliers, respectively, reserve all rights not expressly granted herein, and no license or other implied rights of any kind are granted or conveyed except for the license provided herein.
6. INDEMNIFICATION. Partner will indemnify, defend, and hold harmless Grafana Labs (and its directors, officers, employees, affiliates, contractors, agents, customers, and licensors) from and against any and all damages, losses, judgments, liabilities, costs and expenses (including reasonable attorneys’ fees, collectively “Damages”), arising out of or related to: (i) any third-party claim, demand, suit, or proceeding alleging that the Plug-In, or any other materials or intellectual property of Partner infringes the intellectual property rights of such third party; (ii) Partner’s breach of this Agreement; (iii) any claims relating to the Plug-In and associated integrations, including the development, operation, performance, availability, interoperability, deployment, support, and maintenance of the Plug-In or such associated integrations, (iv) Partner’s negligence, fraud, willful misconduct, or violation of law; or a (v) a breach of Section 4.2 of this Agreement (collectively, the “Claims”). Partner will not agree to the settlement of any Claims without Grafana Labs’ prior written consent, which shall not be unreasonably withheld.
7. TERMINATION.
7.1 Either party may terminate this Agreement or Order Form(s) (i) immediately upon written notice if the other party commits a non-remediable material breach; or (ii) if the other party fails to cure any remediable material breach within thirty (30) days of being notified in writing of such breach, unless such breach is for non-payment and then within five (5) days of such notice.
7.2 Either party may terminate this Agreement immediately by written notice if no Order Form(s) is in effect.
7.3 Partner agrees that, if Grafana Labs determines, in its sole discretion, that Partner has: (a) breached any term, condition or restriction of this Agreement, or is in breach of its privacy policy or an end-user customer contract; (b) developed the Plug-In or other software which poses any security or performance risk to any system, network, hardware, software, or technology of Grafana Labs or its suppliers or end-user customers; (c) taken any action, or engaged in any conduct, which presents a risk of liability to, or violation of law by, Grafana Labs; or (d) through its activities or conduct under this Agreement, gives rise to actual or potential harm or other negative impact on Grafana Labs’ business, operations or technology, then, in any such event, without limiting Grafana Labs’ right to terminate this Agreement, Grafana Labs may suspend and/or remove the Plug-In listing from Grafana.com catalog, without any further additional liability or obligations (including any obligation to refund any of the Fees). Additionally, in any event which would give rise to a right of suspension or removal by Grafana Labs under this Section 7.3, or in the event otherwise requested by Grafana Labs for any similarly legitimate reason, Grafana Labs may require Partner to disable the interoperability of the Plug-In with the applicable products or services in accordance with instructions provided by Grafana Labs or, alternatively, Grafana Labs may so disable such interoperability. In any such case, Grafana Labs shall have the unfettered right, in its sole discretion, to contact and communicate with the impacted end-user customer(s) to inform it that Grafana Labs has required Partner to disable such interoperability and to provide associated recommendations, advice, services and other actions to or for the end-user customer(s) as Grafana Labs sees fit. If Grafana Labs determines that a violation of this Agreement or a dispute/issue with an end-user customer of Grafana Labs can be remedied by Partner’s modification to its Plug-In and/or its associated integration elements, then Grafana Labs (without obligation) may elect to afford Partner an opportunity to promptly remedy the violation or issue and, if so, Partner shall diligently work to promptly remedy the problem. At any time, however, Grafana Labs may step in and take the actions contemplated herein.
7.4 In the event of termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the termination or expiration of this Agreement shall survive, including but not limited to Sections 2, 2-10; and any accrued rights to payment until fulfilled.
8. CONFIDENTIALITY. “Confidential Information” means all confidential and proprietary information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including this Agreement (including pricing and other terms reflected in an Order Form(s)). Partner shall not use or disclose any Confidential Information except as expressly authorized in this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Partner will return or destroy all Confidential Information on request.
9. AUDIT. Grafana Labs, or a third-party agent subject to obligations of confidentiality, shall be entitled to inspect and audit Partner’s books, records, and physical locations for the purpose of verifying compliance with this Agreement. Grafana Labs may exercise its audit right at any time upon notice. Partner will provide its full cooperation and assistance with such audit and provide access to all information and locations reasonably required to verify compliance with this Agreement. Without limiting the generality of the foregoing, as part of the audit, Grafana Labs may request, and you agree to provide, a written report, signed by an authorized representative, stating Partner is in full compliance with the terms and conditions of this Agreement.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PARTNER AGREES THAT NEITHER GRAFANA LABS NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS SHALL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PARTNER, ITS CUSTOMERS, OR THIRD PARTIES CAUSED BY FAILURE OF GRAFANA LABS TO DELIVER THE PLUG-IN, FAILURE OF THE PLUG-IN TO FUNCTION, OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY. IN NO EVENT WILL GRAFANA LABS OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PLUG-IN OR OTHER MATERIALS PROVIDED ALONG WITH THE PLUG-IN OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF GRAFANA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRAFANA LABS’ AGGREGATE CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE ANNUALIZED FEES PAID BY PARTNER TO GRAFANA LABS FOR THE SIGNING SERVICES. PARTNER AGREES THAT GRAFANA LABS’ SUPPLIERS WILL HAVE NO LIABILITY TO ANY END USER OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
11. GENERAL.
11.1 Governing Law and Venue. This Agreement will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles. Each party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts in New York, New York for any lawsuit filed there arising from or related to this Agreement. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
11.2 Export. The Plug-in and related technology may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Partner agrees not to export, reexport, or transfer, directly or indirectly, any technical data acquired from Grafana Labs, or any products incorporating such data, in violation of applicable export laws or regulations.
11.3 Entire Agreement; Integration. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, any Order Form(s) shall be deemed a convenient order and payment device only and no terms (other than Signing Services, price, subscription term, and billing contact) stated in any Order Form(s) shall be incorporated into this Agreement, and all such other terms shall be void and of no effect. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
11.4 Independent Contractor. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
11.5 Notices. All notices shall be in writing to each party’s address in the Order Form(s) (or as provided by a party in writing to the other) and effective upon receipt.
11.6 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
11.7 Injunctive Relief. Each party acknowledges that a breach or threatened breach of the obligations in Section 9 or the scope of the licenses granted hereunder may constitute immediate, irreparable harm to Grafana Labs for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to whatever remedies Grafana Labs might have at law or under this Agreement.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Form(s) hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party.
11.9 Language. The English language version of this Agreement controls. It is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.