THIS HUNK PROMOTIONAL SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF THE PROMOTIONAL SOFTWARE (DEFINED BELOW) PROVIDED BY SPLUNK INC., AND/OR ITS AFFILIATES ("SPLUNK”). BY ACCESSING OR USING THE PROMOTIONAL SOFTWARE YOU INDICATE YOUR AGREEMENT AND CONSENT TO BE BOUND BY THIS AGREEMENT.
IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND YOUR BUSINESS, DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE USE THE PROMOTIONAL SOFTWARE, AND CANCEL THE LOADING OF THE PROMOTIONAL SOFTWARE.
“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal testing and evaluation of the Promotional Software. Such use does not include use of your systems, networks or devices as part of services you provide for a third party's benefit.
“Node” means a 64 bit Linux operating system or any other operating system identified in the documentation that runs Hadoop TaskTracker or Node Manager to execute Splunk jobs.
“Promotional Software” means the version of Hunk identified on the email that you received from Splunk’s fulfillment organization (the “Email”) provided to you by Splunk under this Agreement. The Promotional Software may include any enhancements, udpates, upgrades, derivatives or bug fixes to such product, service or technology and any documentation or hardware devices as provided by Splunk.
2. PROMOTIONAL SOFTWARE LICENSE. Subject to your compliance with the terms and conditions of this Agreement, Splunk grants you a nonexclusive, nonsublicenseable, nontransferable, revocable, limited license during the Term of the Agreement to use a single copy of the Promotional Software at your principal office in a secure location, only in connection with and solely for the Internal Purposes to index a maximum of five (5) Nodes from which data can be sourced to be analyzed and visualized. To the extent that you have an existing support and maintenance agreement with Splunk, the Promotional Software will be supported by Splunk in acordance with that agreement’s terms.
3. LICENSE RESTRICTIONS. Except as expressly authorized in this Agreement or by Splunk, you will not, and will not permit any third party to: (i) use the Promotional Software for any other purposes other than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Promotional Software (except as required to run the Promotional Software and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the Promotional Software; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the Promotional Software to any third party; (v) use or offer any functionality of the Promotional Software on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) decompile, disassemble or reverse-engineer the Promotional Software or otherwise attempt to derive the Promotional Software’s source code, algorithms, methods or techniques used or embodied in the Promotional Software; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Promotional Software, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Promotional Software. Any consultant, contractor, or agent hired to perform services for you may operate the Promotional Software on your behalf under these terms and conditions, provided that: (a) you are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to you; (b) such use is only in connection with your Internal Purposes; (c) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (d) you remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section shall be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from Splunk shall be required.
4. CONFIDENTIALITY. You agree to hold the Promotional Software (including all intellectual property rights therein, such as any patents, inventions, copyrights, design rights, trade secrets and know-how) and any related information (“Confidential Information”), whether in oral or written form, confidential. Confidential Information may include information relating to features, functionalities, improvements, code, pricing, business strategies, product roadmaps, development plans, marketing materials, data sets, customer lists or other proprietary third-party information. You will hold such Confidential Information in strict confidence and not use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this Agreement. You may disclose Confidential Information to your employees, but only to the extent they have a need to know to test the Promotional Software and you have advised them that such information is Confidential. You agree to instruct any such employees in advance who will have access to the Promotional Software that they must comply with the restrictions set forth in this Agreement. In connection with your use of the Promotional Software you agree not to disclose to or to provide access to Splunk any data that is confidential or proprietary data relating to you, your customers, vendors, affiliates, or other third parties. You shall have no obligation to maintain the confidentiality of any information that: (a) is or becomes publicly available without breach of this Agreement; (b) is rightfully received by you from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is developed independently by you without access to or use of the Confidential Information; or (d) has been approved for release by written authorization of the party that owns the Confidential Information. You will notify immediately upon discovery of any unauthorized use or disclosure of Confidntial Information or any other breach of this Agreement by you or your personnel, and will cooperate with Splunk in every reasonable way to help Splunk regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. You acknowledge that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information will cause Splunk irreparable injury for which there are inadequate remedies at law, and therefore, Splunk will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
5. TERM AND TERMINATION. This Agreement will be effective from the earlier of (a) the date it is accepted by you and (b) the date on which you first installed, downloaded or accessed a copy of the Promotional Software and shall continue for twelve (12) months thereafter (the “Term”). This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. Upon termination, you will immediately cease all use of the Promotional Software and destroy the Promotional Software, or upon request by Splunk, return to Splunk the Promotional Software and other Confidential Information that are in your possession or control. Upon Splunk’s request, you will certify in writing that you have returned or destroyed all copies of the Promotional Software and Confidential Information. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, will survive termination of this Agreement.
6. OWNERSHIP. Splunk, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Promotional Software, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to 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); 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; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, Splunk does not grant you any intellectual property rights in the Promotional Software, and all right, title, and interest in and to all copies of the Promotional Software not expressly granted remain with Splunk, its suppliers and/or its licensors. The Promotional Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the Promotional Software is licensed and not sold.
7. WARRANTY DISCLAIMER. THE PROMOTIONAL SOFTWARE IS PROVIDED “AS IS”. SPLUNK DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. SPLUNK SPECIFICALLY DOES NOT WARRANT THAT THE PROMOTIONAL SOFTWARE WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE PROMOTIONAL SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED.
8. NO RELIANCE. Splunk has no obligations about any forward-looking statements made in connection with or in the course of providing the Promotional Software. Forward-looking statements are statements regarding future Splunk events, product offerings, product performance, customer uses or the expected financial performance of Splunk. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially. Splunk does not assume any obligation to update any forward-looking statements made during the Promotional Software project. In addition, any information about our roadmap outlines our general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Splunk undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any such feature or functionality in a future release, including those you are reviewing as a part of this Promotional Software. You expressly acknowledge that the Promotional Software has not been fully tested and may contain defects or deficiencies which may not be corrected by Splunk, that the Promotional Software may undergo significant changes prior to release of the corresponding generally available final version.
9. LIMITATION OF LIABILITY. SPLUNK'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). IN NO EVENT WILL SPLUNK BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE PROMOTIONAL SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PROMOTIONAL SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SPLUNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, SPLUNK WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE PROMOTIONAL SOFTWARE FUNCTIONS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. EXPORT. You will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where you use any of the Promotional Software. You represent and warrant that you are not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further represent and warrant that you shall not export, re-export, ship, transfer the Promotional Software to any restricted countries or restricted end users or use the Promotional Software in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. You understand that the requirements and restrictions of the Export Laws may vary depending on the specific Promotional Software and may change over time, and that, to determine the precise controls applicable to the Promotional Software, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
12. GOVERNMENT END USER RIGHTS. You acknowledge that all Promotional Software and Confidential Information were developed entirely at private expense and that no part of the Promotional Software or Confidential Information was first produced in the performance of a Government contract. You agree that the Promotional Software and any derivatives thereof are "commercial items" as defined in 48 C.F.R. 2.101, and if you are a U.S. Government agency or instrumentality or if you are providing all or any part of the Promotional Software or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1 through 48 C.F.R. §227.7102-3, and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Promotional Software is licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, you will have no rights in the Promotional Software except as expressly agreed to in writing by you and Splunk.
13. CHOICE OF LAW AND DISPUTES. For other than the U.S. Government as a party, this Agreement shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California and the parties hereby consent to personal jurisdiction and venue therein.
14. GENERAL. All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. You acknowledge that Splunk may assign, subcontract or delegate any of its rights or obligations under this Agreement. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Promotional Software and Confidnential Information and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Promotional Software and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement you may have with Splunk. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.