1.0 Introduction. These Subscription Terms, together with the applicable Dynatrace Product Schedule or Quote (hereinafter “Product Schedule”) and any Supplemental Terms applicable to the products and services specified on the Product Schedule, constitute the agreement between Dynatrace LLC (“Dynatrace”) and You (the “Agreement”). BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND YOUR ENTITY (“CLIENT”) TO THIS AGREEMENT.
2.0 Scope of Subscription Services; Restrictions. Client shall have the right to use the Subscription Services ordered and made available to Client by Dynatrace hereunder. “Subscription Services” means the hosted services, electronic reports, scripting, analyses, documentation or Auxiliary Programs provided by Dynatrace under this Agreement which are necessary to deploy the service as specified on the applicable Product Schedule. “Auxiliary Program” means any software, agent or equipment that Dynatrace makes available to Client as part of the Subscription Services for purposes of facilitating access to, operation of, and/or use with, the Subscription Services. Client shall not (a) make the Subscription Services available for use, access, display, searching or retrieval by, or on behalf of, any third party; (b) make the Subscription Services available in any “public” area or accessible on the World Wide Web; or (c) violate any applicable privacy laws. Dynatrace retains the right to use measurement data generated by the Subscription Services (the “Measurement Data”) in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Subscription Services, and make such information publicly available. Subscription Services and Measurement Data are for the internal business use solely of the Client and may not be copied, distributed or commercially exploited. Dynatrace may monitor Client usage of the Subscription Services. Client agrees not to infiltrate, damage, destroy, delay, interrupt, gain unlawful access to or engage in unlawful usage of the Subscription Services.
3.0 Pricing & Payment Terms. Prices for the Subscription Services are set forth in the Product Schedule. Additional charges will apply in the event that Client’s usage of the Subscription Services exceeds the baseline parameters set forth in the Product Schedule. For Subscription Services, if any part of a performance testing interval extends into a subsequent billing period, such partial interval shall be a billable event on a pro rata basis. Payment obligations are non-cancelable and fees paid are non-refundable. Orders may not be cancelled or reduced during the subscription term. Client shall pay to Dynatrace the full invoice amount within thirty (30) days of the date of the invoice. Overdue invoices shall bear interest at 1.5% per month or such lower rate as shall be the then highest rate permitted by law.
Client shall pay all applicable taxes due under this Agreement, except taxes based on Dynatrace’s net income unless Client provides Dynatrace with a properly completed exemption certificate. All prices are exclusive of all taxes, duties, VAT, withholdings and other governmental assessments.
4.0 Intellectual Property. Client acknowledges and agrees that all ownership and proprietary rights to the Subscription Services, Auxiliary Programs and the contents thereof and all related intellectual property are and shall remain the property exclusively of Dynatrace or its licensors, as applicable. Dynatrace retains full rights of ownership and use in: (a) any programs, products, materials or methodologies or materials of Dynatrace created and/or developed by Dynatrace prior to or independently of the Subscription Services contemplated herein (“Pre-existing Works”); and (b) all materials, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how, which may be created or developed in connection with the Subscription Services and are modifications and/or derivatives of Dynatrace’s Pre-existing Works.
5.0 Confidentiality. Each party agrees: (a) that it will not disclose to any third party or use any confidential or proprietary information disclosed to it by the other party (collectively, “Confidential Information”) except as expressly permitted in this Agreement; and (b) that it will take all commercially reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) the receiving party develops independently.
6.0 Term and Termination. The initial term (“Initial Term”) of this Agreement shall be specified in the Product Schedule. Thereafter, unless: (a) otherwise specified in the Product Schedule; or (b) a party gives the other party thirty (30) days’ written notice of its intention to not renew, this Agreement shall automatically renew on an annual basis at Dynatrace’s then current Subscription Services fee. This Agreement may only be terminated: (i) upon expiration of the applicable Subscription Services term; or (ii) by either party upon thirty (30) days’ written notice if the other party materially breaches this Agreement and fails to cure the breach within such thirty (30) day period. Upon termination or expiration of the Subscription Services term, Client shall uninstall from its system all Auxiliary Programs or the like which have been provided as part of the Subscription Services. Upon Dynatrace’s request, Client shall certify that the foregoing has been satisfied.
7.1 Dynatrace Warranty. Dynatrace warrants that the Subscription Services will function in substantial compliance with their specifications published by Dynatrace. Client acknowledges that changes by Client to its monitoring profile or corrupted, incomplete and/or interrupted data received by Dynatrace from Client’s site(s), may have a material impact on the accuracy, reliability and/or timeliness of Service results, and Dynatrace shall not be responsible for any such factors beyond its reasonable control. THE ABOVE WARRANTIES ARE DYNATRACE’S ONLY WARRANTIES AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WILL APPLY.
7.2 Client Warranty. Client represents and warrants that Client shall: (a) not resell, copy, transfer, reverse engineer, decompile or create derivative works of any Subscription Services; (b) abide by all laws, rules and regulations; and (c) be responsible for all content or materials originating from its Web site(s) (its “Content”); and (d) be responsible for all activity occurring under its account (its “Activity”).
8.0 Limitation of Liability. THE ENTIRE LIABILITY OF DYNATRACE OR ITS LICENSORS OR SUPPLIERS TO CLIENT FOR ANY CLAIM WHATSOEVER SHALL BE LIMITED TO THE CONSIDERATION PAID TO DYNATRACE BY CLIENT FOR THE SERVICES GIVING RISE TO THE CLAIM OVER THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
9.0 Limitation of Damages. IN NO EVENT WILL DYNATRACE OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOSS OF DATA, LOST PROFITS, BUSINESS LOSS OR ANY INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT DYNATRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.0 Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party and such other party’s officers, directors, employees and agents (each, an “Indemnified Party”) from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from an Indemnifying Party’s breach of any obligation set forth in sections 2.0 (Scope of Subscription Services; Restrictions), 5.0 (Confidentiality) or 7.2 (Client Warranty), including Content and Activity.
11.0 General Provisions.
11.1 Assignment. Any attempt by Client to assign this Agreement without Dynatrace’s written consent will be null and void.
11.2 Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, non-Dynatrace application, denial of service or similar attacks, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or energy crises.
11.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law principles. The parties hereby consent to the personal and exclusive jurisdiction of the federal and state courts of the State of Delaware.The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If the entity selling Subscription Services is an Affiliate of Dynatrace LLC, this Agreement will be governed by the laws of the country in which such Dynatrace Affiliate is situated, and the parties consent to the exclusive jurisdiction of the courts where such Dynatrace Affiliate is located.
11.4 Notice. Any notice required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service.
11.5 Waiver. No failure or delay by any party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.
11.6 Severability. If any provision of this Agreement is held by a court to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.
11.7 Enablement Assistance. Client must schedule any enablement assistance included on a Product Schedule within twelve (12) months of the order date or will forfeit the right to those services without refund. During the term of enablement assistance and for 12 months thereafter, both parties agree not to solicit or retain any employee of the other party who was engaged with or interacted with the other party pursuant to the enablement assistance The foregoing provision will not prohibit: I) general solicitations of employment in any public media; and ii) any individual responses or hiring decisions thereto.
11.8 Entire Agreement. The Product Schedule, these Subscription Terms, and any Supplemental Terms applicable to Client’s Subscription Services constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral). The terms and conditions contained in any purchase order shall be of no force or effect, even if the order is accepted by Dynatrace. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
11.9 Survival. Sections 3, 4, 5, 7, 8, 9, 10 and 11 shall survive expiration or termination of this Agreement.