This Splunk Pre-Release Agreement for Hosted Services (the “Agreement”) between Splunk Inc., a Delaware corporation, with itsprincipal place of business at 270 Brannan Street, San Francisco, California 94107, U.S.A (“Splunk”) and you (“you” or “your”)governs your use of the Beta Offering (defined below). By clicking to accept the terms of this Agreement online, or by downloading,installing, accessing or otherwise using the Beta Offering, you hereby agree to these terms. If you are entering into this Agreement onbehalf of an entity, you represent that you have the authority to bind such entity.
LICENSES AND PROPRIETARY RIGHTS
Beta License to Customer. Subject to the terms of this Agreement, Splunk grants you a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to access and use the Beta Offering solely for Internal Purposes in accordance with applicable Documentation.
License to Splunk. Customer grants Splunk a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to access and use Customer Content solely on behalf of the Customer and solely for purposes of evaluating the performance of the Beta Offerings in the Hosted Service. Splunk agrees to secure any Customer Content in the Beta Offering as per the requirements of Section 8 “Security” below.
License Restrictions. Except as expressly authorized in this Agreement, you will not, and will not permit any third party to: (i) access or use the Beta Offering except for Internal Purposes (e.g., not on a commercial basis, such as a service provider, service bureau, software as a service provider, or otherwise for-profit ); (ii) copy the Beta Offering except as required to use the Beta Offering in accordance with this Agreement and for reasonable backup purposes; (iii) modify, translate, adapt, or create derivative works from the Beta Offering; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the Beta Offering to any third party; (v) decompile, disassemble or reverse-engineer the Beta Offering or otherwise attempt to derive the Beta Offering source code, algorithms, methods or techniques used or embodied in the Beta Offering; (vi) disclose to any third party the results of any benchmark tests or other evaluation of the Beta Offering; (vii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Beta Offering; (viii) upload to or store in the Beta Offering, or use of the Beta Offering 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; (ix) use the Beta Offering to upload or transmit any Prohibited Data; and (x) use the Beta Offering 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 Beta Offering, including all intellectual property rights therein. Splunk retains rights in anything delivered or developed by Splunk or on Splunk’s behalf under this Agreement. No rights are granted to you hereunder other than as expressly set forth herein.
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 Beta Offering or any related or subsequent versions of such Beta Offering. 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 copies of the Feedback as part of or in connection with any Splunk product, service, technology, content, material, specification or documentation. 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 BETA OFFERING
Access and Use. You agree to provide accurate and complete information when you register for and use the Beta Offering and you agree to update all required information promptly. Each person who uses any Beta Offering 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 account information reasonably requested by Splunk in order to access and use the Beta Offering. 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 Beta Offering 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 Credentials are compromised, lost or stolen.
Acceptable Use. By accessing or using the Beta Offering, you agree to the Splunk Acceptable Use Policy at http://www.splunk.com/view/SP-CAAAMB6 and acknowledge that any violation of the Policy may subject you to suspension or termination of your use of the Beta Offering.
3. 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, 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.
4. WARRANTY and SUPPORT DISCLAIMER. THE BETA OFFERING AND SPLUNK CONFIDENTIAL INFORMATION ARE 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 BETA OFFERING WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OR OUTPUT OF THE BETA OFFERING WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. SPLUNK DOES NOT PROVIDE SUPPORT OR MAINTENANCE FOR BETA OFFERINGS.
5. NO RELIANCE. Splunk has no obligations about any forward-looking statements made in connection with providing the Beta Offering. Forward-looking statements are statements regarding future Splunk events, product offerings, product performance, customer uses or the expected financial performance of Splunk. Splunk undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any feature or functionality in a future release, including those you are reviewing as a part of this Beta Offering. You expressly acknowledge that the Beta Offering has not been fully tested and may contain defects or deficiencies which may not be corrected by Splunk, and that the Beta Offering may undergo significant changes prior to release of the corresponding generally available version.
6. LIMITATION OF LIABILITY. 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 BETA OFFERING) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE BETA OFFERING, 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 BETA OFFERING FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE BETA OFFERING. 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.
8. SECURITY. Splunk will maintain commercially reasonable administrative, technical and organizational safeguards for the security of Customer Content appropriate to the nature of the Beta Offering. You are responsible for: (i) selecting from the security configurations and security options made available by Splunk in connection with the Beta Offering; (ii) taking additional measures outside of the Beta Offering to the extent the Beta Offering does not provide the controls that may be required or desired by you; and (iii) routine archiving and backing up of Customer Content. In the event Customer chooses to process Customer Content in a Beta Offering, Customer acknowledges and agrees that, due to the pre-release nature of a Beta Offering, the Beta Offering is not subject to the security certifications that may otherwise apply to Customer-subscribed Hosted Service, and agrees to accept the risks associated with the processing of Customer Content in a non-certified Beta Offering.
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 Beta Offering 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 Beta Offering project as identified by Splunk or upon commercial release (if any) of the Beta Offering, whichever is earlier. Unless otherwise agreed in writing by Splunk, upon termination, you will immediately cease all use of the Beta Offering and all of your rights to access and use the Beta Offering will terminate. Furthermore, upon termination you agree to destroy any Splunk Confidential Information that is in your possession or control, or upon request by Splunk, return it to Splunk. Upon Splunk’s request, you will certify in writing that you have returned or destroyed all copies of Splunk Confidential Information. Customer Content may be retrieved by you, transferred to the commercially available version, or removed from the Hosted Service in accordance with the applicable Documentation. Sections 1.3, 1.4, 1.5, and 3-15 will survive termination of this Agreement.
10. EXPORT. You will comply with all applicable export laws and regulations of the United States and any other country (“Export Laws”) where your users use any of the Offerings. You certify that you are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You will not export, re-export, ship, transfer or otherwise use the Offerings in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, the Crimea Region of Ukraine, Sudan and North Korea, and you will not use any Offering for any purpose prohibited by the Export Laws.
11. GOVERNMENT END USER RIGHTS. Splunk provides Offerings for U.S. federal government end use solely in accordance with the following: Government technical data and rights related to Offerings include only those rights customarily provided to thepublic as defined in these General Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFARS 252.227-7015 (Technical Data–Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Splunk to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
12. CHOICE OF LAW AND DISPUTES. This Agreement will 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. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to personal jurisdiction and venue therein. Splunk may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights of Splunk, its affiliates, or any third party. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods will apply to these General Terms.
13. INDEPENDENT CONTRACTORS; THIRD-PARTY BENEFICIARIES. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third-party licensors of Splunk Beta Offering are express third-party beneficiaries of the Agreement. There are no other third-party beneficiaries of this Agreement. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise.
14. GENERAL. Except as otherwise specified in this Agreement, all notices and communications related to this Agreement and your use of the Beta Offering will be sent in writing to the addresses as may be specified by either party to the other party, and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (c) the day of sending by email. You further consent to receiving electronic communications and notifications from Splunk in connection with your use of the Beta Offering. You agree that any such communication will satisfy any applicable legal communication requirements, including that such communications be in writing. 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 Beta Offering and Confidential 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 Beta Offering 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. 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. Neither party or its affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will (except for the obligation to make any payments) be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond their reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockades, embargoes, riots, acts or orders of government, acts of terrorism, or war. 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.
“Beta Offering” means the products and services made available to you as a preview, alpha, beta or other pre-release version. Beta Offering includes any enhancements, updates, upgrades, derivatives or bug fixes documentation, add-ons, templates, data (including sample data sets), other technology or materials made available to you by Splunk under this Agreement.
“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 Beta Offering), technology, customers, business plans, promotional and marketing activities, finances and other business affairs. 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.
“Customer Content” 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 Beta Offering (other than Feedback).
“Documentation” means the online user guides, documentation and help and training materials published on Splunk’s website (such as at http://docs.splunk.com/Documentation) or accessible through the applicable Beta Offering, as may be updated by Splunk from time to time.
“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 Beta Offering or about Splunk. Feedback does not include Customer Content, unless submitted or communicated by you to Splunk as part of Feedback.
“Hosted Service” means a technology service hosted by or on behalf of Splunk and provided to you.
“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal testing and evaluation of the Beta Offering in order to provide Feedback to Splunk regarding the Beta Offering. Such use does not include use of your systems, networks or devices as part of services you provide for a third party's benefit.
“Prohibited Data” means any (a) protected health data, as defined under HIPAA; (b) credit card information within the scope of the Payment Card Industry Data Security Standard; and (c) information protected by the International Traffic in Arms Regulations.
“Third Party Content” means information, data, technology or materials made available to you by any third party that you license and add to the Beta Offering or direct Splunk to install in connection with the Beta Offering. Third Party Content includes but is not limited to, third party extensions, web-based or offline software applications, data service or content that are provided by third parties.
“Usage Data” means data generated from the usage, configuration, deployment, access and performance of an Offering. For example, this may include such things as information about your operating environment, such as your network and systems architecture, or sessions, such as page loads and session views, duration, or interactions, errors, number of searches, source types and format (e.g., json, xml, csv), ingest volume, number of active and licensed users, or search concurrency. Usage Data does not include Customer Content.
Effective: April 30, 2021