“Confidential Information” means all nonpublic information disclosed by a party ("Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Splunk Confidential Information will include: (i) nonpublic information relating to Splunk or its affiliates’ or business partners’ products or services (including the Pre-Release Technology and any of its characteristics, features or performance), technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Splunk is obligated to keep confidential; and (iii) the nature, content and existence of any discussions or negotiations between you and Splunk or its affiliates. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
“Data” means your own data and information uploaded, submitted, or transmitted by you or on your behalf to Splunk in connection with your use of the to the Pre-Release Technology (other than Feedback) and the specific file or output generated from the Pre-Release Technology, if any, based upon your own data and information.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by you (whether in oral, electronic or written form) to Splunk in connection with your use of the Pre-Release Technology or about Splunk. Feedback does not include Data, unless submitted or communicated by you to Splunk as part of Feedback.
“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal testing and evaluation of the Pre-Release Technology in order to provide Feedback to Splunk regarding the Pre-Release Technology. Such use does not include use of your systems, networks or devices as part of services you provide for a third party's benefit.
“Pre-Release Technology” means the pre-release version (whether labeled as alpha, beta, pre-release, preview, limited release or otherwise) of (a) the Splunk Cloud Services, (b) associated applications published by Splunk that are interoperable with the Splunk Cloud Services, (c) Splunk Developer Cloud Resources, and (d) other documentation, information, data (including sample data sets), technology and materials related to the Splunk Cloud Services, as made available to you by Splunk under this Agreement. Pre-Release Technology includes any enhancements, updates, upgrades, derivatives, modifications or bug fixes to the foregoing during the term of this Agreement. The Pre-Release Technology is not ISO 27001 or SOC-2 compliant.
“Splunk Cloud Services” means any of the services provided by Splunk through its new cloud platform, including, but not limited to, the ingestion, storage, searching and analyzing machine data, and including the associated application programming interfaces (“APIs”) and other Splunk software that is made available to use in connection with the Splunk Cloud Services (such as Splunk data forwarders or other connectors).
“Splunk Developer Cloud Resources” means developer resources and materials made available by Splunk under this Agreement to facilitate use of, and the building of applications made for use with, the Splunk Cloud Services, including, but not limited to, demo or example applications, libraries or other software packages, templates, tutorials, APIs (including API keys, tokens, code, and related materials), tools and code snippets, tutorials, and architecture materials, command line interface suites, software development kits, and related documentation.
LICENSES AND PROPRIETARY RIGHTS
Pre-Release Technology License. Subject to your compliance with the terms and conditions of this Agreement and for the term of this Agreement, Splunk grants you a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to do the following, only in connection with and solely for Internal Purposes and in accordance with applicable documentation:
Access and use the Pre-Release Technology; and
Copy and use the Splunk Developer Cloud Resources to develop applications that interact with the Splunk Cloud Services or other systems (“Applications”). The foregoing license in Section 2.1.2 is subject to the following conditions: (x) Splunk proprietary legends or notices contained in the Splunk Developer Cloud Resources may not be removed or altered when used in or with your Applications; and (y) you may not make any statement that your Application is certified or that its performance is guaranteed by Splunk. You retain title to your Applications, subject to Splunk’s ownership set forth in Section 2.3. You agree to assume full responsibility for your Applications.
License Restrictions. The grant of rights to you in Section 2.1 is subject to the following restrictions and limitations. Except as expressly authorized in this Agreement or by Splunk, you will not, and will not permit any third party to: (i) access or use the Pre-Release Technology for any other purposes than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Pre-Release Technology (except as required to use the Pre-Release Technology in your possession or control in accordance with this Agreement and for reasonable backup purposes); (iii) modify, translate, adapt, or create derivative works of the Pre-Release Technology; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the Pre-Release Technology to any third party; (v) use or offer any functionality of the Pre-Release Technology on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) decompile, disassemble or reverse-engineer the Pre-Release Technology or otherwise attempt to derive the Pre-Release Technology source code, algorithms, methods or techniques used or embodied in the Pre-Release Technology; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Pre-Release Technology; (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Pre-Release Technology; (ix) upload to or store in the Pre-Release Technology, or use of the Pre-Release Technology to send, any computer instruction, routine, design, code or script that is designed to improperly access, destroy, or corrupt electronic data or disrupt or disable the operation of computer software; or (x) use the Pre-Release Technology other than in accordance with this Agreement and in compliance with all applicable laws and regulations. .
Splunk Ownership. As between you and Splunk, Splunk owns and reserves all right, title, and interest in and to the Pre-Release Technology, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth herein. Splunk, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Pre-Release Technology and Splunk Confidential Information, 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. The Pre-Release Technology is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the Pre-Release Technology is licensed and not sold.
Feedback. Splunk, in its sole discretion, may or may not respond to your Feedback or promise to address all your Feedback in the development of future features or functionalities of the Pre-Release Technology or any related or subsequent versions of such Pre-Release Technology. In the event Splunk uses your Feedback, you grant Splunk an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent or license or exploit the Feedback as part of or in connection with any Splunk product, service, technology, content, material, specification or documentation in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. You warrant that the Feedback does not infringe any copyright or trade secret of any third party, and that you have no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by you). You further warrant that your Feedback is not subject to any license terms that would purport to require Splunk to comply with any additional obligations with respect to any Splunk product or service that incorporates your Feedback.
USE OF PRE-RELEASE TECHNOLOGY
Access and Use. You agree to provide accurate and complete information when you register for and use the Pre-Release Technology and you agree to update all required information promptly. Each person who uses any Pre-Release Technology must have a separate username and password. You must provide a valid email address for each person that you authorize to use your account, and you may only create one account per email address. You must provide any other information reasonably requested by Splunk. You are responsible for securing, protecting and maintaining the confidentiality of your account(s) username credentials, including passwords, access tokens, access codes and API keys (“Credentials”). Neither you nor your authorized users will share your Credentials. You are responsible for any access and use of the Pre-Release Technology via your account(s) and for all activity that occurs in connection with your account(s), regardless of whether the activities were undertaken by you, an authorized user, or a third party. Splunk will not be liable for any loss or damage arising directly or indirectly from your failure to maintain the security of your Credentials, or for unauthorized access to your account(s). You agree to notify Splunk immediately if you believe that an unauthorized third party may be using your account(s) or if your account information is lost or stolen.
Data. You hereby grant Splunk a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purposes of providing, maintaining, repairing, administering and improving the Pre-Release Technology or of developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. You represent, warrant and agree that with respect to the Data and other materials you provide or make available to Splunk: (i) you own or have the necessary rights, licenses and authorization to distribute the Data to Splunk under this Agreement and (ii) you will include only information relevant to the Pre-Release Technology and the use thereof and will not include any Confidential Information, including any personally identifiable information, financial data (including PCI-DSS data), protected health information, ITAR data or other data or information protected or regulated under foreign or domestic laws or regulations. You hereby accept that Splunk Cloud Services and Pre-Release Technology DO NOT have SOC2 or ISO27001 certification and the security terms in Splunk’s Cloud Security Addendum DO NOT apply. You acknowledge and agree that you are solely responsible for all Data you upload or submit using the Pre-Release Technology and for your conduct while using the Pre-Release Technology. You acknowledge and agree that: (a) you will evaluate and bear all risks associated with the use of any Data; (b) you are responsible for protecting and backing up the Data; (c) you are responsible for protecting the confidentiality of any Data; and (d) under no circumstances will Splunk be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages of any kind incurred as a result of your use, deletion, disclosure, modification, or correction of any Data. Splunk has no responsibility to store, protect, remove or delete any Data for you and shall have no liability for the deletion of or failure to store any Data.
Acceptable Use. By accessing or using the Pre-Release Technology, you agree to the Splunk Acceptable Use Policy at https://www.splunk.com/en_us/legal/acceptable-use-policy.html and acknowledge that any violation of the Policy may subject you to suspension or termination of your use of the Pre-Release Technology.
4. CONFIDENTIALITY. Unless otherwise provided in writing, the Receiving Party agrees to: (i) protect the Disclosing Party’s Confidential Information using the same degree of care (but in no event less than reasonable care) that it uses to protect its own Confidential Information of a similar nature; (ii) limit use of Disclosing Party’s Confidential Information for purposes consistent with this Agreement, and (iii) limit access to Disclosing Party’s Confidential Information to its employees, contractors and agents or those of its affiliates who have a bona fide need to access such Confidential Information for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein. Notwithstanding the foregoing terms of Section 4, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law enforcement agencies or regulators to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. The Receiving Party acknowledges that the unauthorized disclosure or use of Confidential Information in breach of its obligations under this Agreement may cause Disclosing Party irreparable injury for which monetary damages may not be inadequate or difficult to ascertain, and therefore, Disclosing Party will be entitled to seek an injunction and other equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
5. WARRANTY DISCLAIMER. THE PRE-RELEASE TECHNOLOGY AND SPLUNK CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS”. SPLUNK DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, 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 PRE-RELEASE TECHNOLOGY WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE PRE-RELEASE TECHNOLOGY WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. Splunk is not obligated to support, update or upgrade the Pre-Release Technology.
6. NO RELIANCE. Splunk has no obligations about any forward-looking statements made in connection with or in the course of providing the Pre-Release Technology. 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 Pre-Release Technology project. In addition, any information about our roadmap outlines or our general product direction 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 Pre-Release Technology. You expressly acknowledge that the Pre-Release Technology has not been fully tested and may contain defects or deficiencies which may not be corrected by Splunk, that the Pre-Release Technology may undergo significant changes prior to release of the corresponding generally available final version.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL SPLUNK OR ANY PROVIDERS 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 PRE-RELEASE TECHNOLOGY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRE-RELEASE TECHNOLOGY, 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 AND ITS PROVIDERS 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 PRE-RELEASE TECHNOLOGY FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE PRE-RELEASE TECHNOLOGY. 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). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. 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 the Pre-Release Technology and shall continue until terminated. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically upon the end of the Limited Availability Release term as determined by Splunk or upon general commercial release of the Pre-Release Technology, whichever is earlier. Unless otherwise agreed in writing by Splunk, upon termination, you will immediately cease all use of the Pre-Release Technology and all of your rights to access and use the Pre-Release Technology will terminate. Furthermore, upon termination you agree to destroy the Pre-Release Technology, or upon request by Splunk, return to Splunk the Pre-Release Technology 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 Pre-Release Technology and Confidential Information. Following expiration or termination of your license to the Pre-Release Technology, Splunk will have no obligation to maintain or provide any of Data relating to such Pre-Release Technology, and you hereby authorize Splunk thereafter to delete all your Data relating to such Pre-Release Technology that is in its possession or under its control, unless Splunk is otherwise legally prohibited from doing so. Sections 1, 2.2, 2.3, 2.4, 3.2, 3.3 and Sections 4-14 will survive termination of this Agreement.
10. 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 Pre-Release Technology or receive Confidential Information. You represent and warrant that you, or your authorized users, 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, and your authorized users, shall not (x) access or use the Pre-Release Technology or Confidential Information in any restricted country, (y) export, re-export, ship, transfer the Pre-Release Technology or Confidential Information to any restricted countries or restricted end users, or (z) use the Pre-Release Technology or the Confidential Information for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile, biological weapons or other military related end uses. You are prohibited from sending to the Pre-Release Technology any data or software that cannot be exported or imported without prior government authorization. You understand that the requirements and restrictions of the Export Laws may vary depending on the specific Pre-Release Technology and Confidential Information and may change over time, and that, to determine the precise controls applicable to the Pre-Release Technology and Confidential Information, 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.