SPLUNK PURCHASE ORDER TERMS AND CONDITIONS

Updated: February 2020

1. General.
   • Unless governed by a separate, master agreement between the parties (“Agreement”), these Purchase Order (“PO”) terms will form the binding contract between Splunk Inc. and/or its Affiliate(s) (“Splunk”) who may issue a PO pursuant to these terms and conditions, and the entity identified on the front of this PO ("Provider") regarding the goods or services specified (“Deliverables”). “Affiliate” means an entity that controls, is controlled by, or is under common control with a party.
     
     
   • Any terms and conditions contained in Provider’s proposal, quotation, order acknowledgment, invoice or other document that might alter these terms and conditions are expressly rejected by Splunk.
     
     
   • In the event of a conflict between the terms of this PO and other Splunk documents, the order of precedence will be: (i) the Agreement; (ii) the terms of this PO; (iii) other terms and conditions issued by Splunk in relation to the Deliverables.
     
     
   • Any reference to the PO in these terms is a reference to the PO including the terms stated below.
     
     
   • The effective date of these terms is the earlier of the date of acceptance of the PO, the date of delivery or performance (as applicable) of the Deliverables.
     
     
     
2. Shipment. Deliverables that are products will be packaged according to applicable industry standards to ensure they are received by Splunk in good condition. If directed by Splunk, Provider will ship all Deliverables that are products using Splunk’s carrier. A packing slip, commercial invoice (if applicable) or any other documentation requested by Splunk must be enclosed with each shipment, referencing Splunk’s PO number and the contents of the package. If shipping multiple packages, Provider will enclose a packing slip for each package. If Provider fails to provide packing slips, Splunk’s count or weight for a package or packages will be conclusive. Provider will not ship in advance of any PO schedule or make partial shipments without Splunk’s prior written approval.
   
   
   
3. Installation. For Deliverables requiring installation at Splunk’s location, Provider will at all times: (a) require competent supervisory personnel to be present during installation; (b) keep Splunk’s location clean and safe from debris and hazards; and (c) comply with all applicable federal, state and local government requirements and Splunk’s on-site policies. Upon completion of the installation, Provider will remove its equipment and unused material, thoroughly clean up all packaging, refuse and debris, and leave Splunk’s location in good and orderly condition.
   
   
   
4. Delivery. Time is of the essence. Unless designated otherwise: (a) for POs issued by Splunk Inc., all deliveries are F.O.B. Destination and (b) for POs issued by a Splunk Affiliate, all deliveries are DDP (Incoterms 2010). For both domestic and international orders, all risk of loss will remain with Provider until Deliverables have actually been received and accepted by Splunk at the applicable location. Delivery of Deliverables will be made as stated in this PO, on time and complete. Provider will promptly advise Splunk of any delay in delivery; unless Splunk approves any delay in writing, failure to deliver pursuant to this PO will entitle Splunk to (a) without liability, terminate this PO (or the portion of this PO that is delayed) or (b) procure Deliverables elsewhere and hold Provider liable for replacement costs and other damages as a result of Provider’s failure to deliver.
   
   
   
5. Acceptance of Deliverables. Splunk reserves the right (but is not obligated) to inspect Deliverables after the date delivered and/or performed. Splunk’s decision not to inspect or reject any Deliverable (or part thereof) will not affect its rights under this PO. If acceptance of a Deliverable is required, Splunk will provide written acceptance within a period of time agreed to by the parties. Splunk reserves the right to accept or reject Deliverables that are received under or in excess of the quantity required. Rejected Deliverables will be returned to Provider at its sole risk and expense and if directed by Splunk, will either (i) immediately ship replacement Deliverables that are goods or (ii) re-perform Deliverables that are services to Splunk’s satisfaction. In its sole discretion, Splunk may cancel this PO for non-conformance of the Deliverables.
   
   
   
6. Title. Title to Deliverables will be good and merchantable and its transfer rightful. Deliverables will be delivered free and clear of any lien, security interest, claim or encumbrance whatsoever.
   
   
   
7. Changes. Upon written notice to Provider, Splunk may make changes to any one or more of the following: (a) specifications or acceptance criteria for Deliverables, (b) quantity of Deliverables, and (c) place and/or time for delivery of Deliverables that are goods or performance of Deliverables that are services. If any such changes cause an increase or decrease in the cost or time required for the performance of the Deliverables, an adjustment may be made in the price, delivery schedule, or both, and this PO will be modified pursuant to Splunk’s change order process. Any claim for adjustment by Provider will be deemed waived unless asserted in writing within ten (10) days from receipt by Provider of the notice of change.
   
   
   
8. Pricing. The price for Deliverables will be the lower of: (a) the price stated in this PO or (b) the same price charged by Provider to its most favored customers at the time of shipment of Deliverables that are of the same kind and quality taking into account quantity discounts. Unless otherwise stated on the PO, Splunk will pay in United States (“U.S.”) dollars. Price is inclusive of applicable taxes, freight, all packaging and handling, transportation, and insurance unless explicitly indicated on the face of this PO or agreed to in writing by Splunk.
   
   
   
9. Payment. Provider will issue timely, accurate invoices for the Deliverables. Unless otherwise identified in this PO and subject to any early payment discounts, Splunk will pay all undisputed fees within forty-five (45) days of its receipt of an invoice (remit to address: ap@splunk.com). Splunk has no obligation to pay any invoice received in excess of one hundred eighty (180) days after the date Provider was required to invoice Splunk under this PO. Splunk will pay in the currency stated in this PO.
   
   
   
10. Disputes. Splunk will promptly notify Provider of any disputed fees or expenses and the parties will cooperate in the prompt resolution of any disputed fees and expenses. Provider will not withhold or delay Deliverables or associated support or fail to perform any other services or obligations based on Splunk’s withholding of fees or expenses due to a good faith dispute between the parties.
    
    
11. Taxes. Unless otherwise stated, all prices stated in this PO are exclusive of any taxes. Provider will separately itemize all applicable taxes each on each invoice and indicate on each invoice its applicable tax registration number(s). Splunk will pay all applicable taxes to Provider when the applicable invoice is due. Provider will remit all applicable taxes to the applicable government authority as required by applicable laws. Notwithstanding, Splunk may withhold all applicable withholding taxes and to remit those taxes to the applicable governmental authorities as required by applicable laws.
    
    
    
12. Confidential Information. The parties acknowledge that in the fulfillment of this PO, Provider may acquire from Splunk confidential and proprietary information about Splunk, its business activities and operations, its employees, trade secrets or any other information which by its sense or nature should reasonably be considered confidential (the “Confidential Information”). The confidential information of Splunk will only be disclosed to Provider’s employees, agents or consultants with a need to know and who are under a written obligation to keep the information confidential. Provider will not disclose the Confidential Information to any third parties. Provider will use the same degree of care but no less than a reasonable degree of care that it uses with regard to its own confidential information to prevent the disclosure of Splunk Confidential Information.
    
    
    
13. Warranties. Provider represents and warrants that: (a) it has full authority to enter into this PO; (b) it is authorized to sell or perform the Deliverables to Splunk; (c) all Deliverables will comply with their descriptions on the front of this PO or other documentation and will conform to all specifications, drawings and descriptions; (d) Deliverables will be new, genuine, and free from design defect, claim, encumbrance or lien; (e) as of its date of delivery, Deliverables are not subject to litigation or threatened or potential litigation; (f) Deliverables that are services will be performed in a professional and workmanlike manner; and (g) Provider will comply with all applicable federal, state and local laws, ordinances, rules, and regulations in the performance of its obligations under this PO.
    
    
    
14. Indemnification. Provider will indemnify and defend Splunk, its Affiliates, and their respective directors, officers, employees and agents from and against any and all losses, liabilities, costs, claims, damages and expenses (including attorneys’ fees and costs) arising out of or related to this PO including but not limited to the provision of Deliverables under this PO or Provider’s breach of this PO, including any claims that any such Deliverables infringe any patent, copyright, trademark, trade secret or any other proprietary right of any third party.
    
    
    
15. Limitation of Liability.
    
    
    • Damages Waiver. Neither party will be liable to the other for any loss of business opportunities, lost profits and for any indirect, special, collateral, incidental, consequential, or punitive damages, however caused on any theory of liability, whether based on breach of contract, strict liability, warranty, tort (including negligence and breach of statutory duty) or otherwise, and whether or not the party has been advised of the possibility of that damage.
      
      
    • Exceptions. The limitations in Section 15.a (“Damages Waiver”) will not apply to either party’s liability for gross negligence or intentional misconduct, death or personal injury, or Provider’s breach of Sections 12 (“Confidential Information”) or 14 (“Indemnification”).
      
      
    • Fees Payable. Nothing in this Section will limit Splunk’s obligation to pay undisputed fees properly due and payable under this PO.
      
      
    • General Limit on Liability. Subject to Sections 15.a. b and c above, the maximum liability of Splunk for costs, losses or damages from claims arising under or related in any way to this PO, whether in contract, tort or otherwise, will not exceed an amount equal to the total fees paid and payable by Splunk to Provider under this PO.
      
      
16. Ownership. Provider agrees that all Deliverables will be the sole and exclusive property of Splunk. All records, software, files, data, reports, information, work product, notes, plans, strategies, intellectual property and other information made available by Splunk or prepared or developed by or for Splunk pursuant to this PO ( “Work Product”) is the sole and exclusive property of Splunk, constituting works made for hire under applicable law. Provider assigns all intellectual property rights in the Work Product to Splunk and agrees to complete any documents to perfect Splunk’s ownership in the Work Product. Provider also waives all moral rights related to the Work Product. Provider may incorporate Provider’s pre-existing technology into the Work Product; Provider therefore grants Splunk a nonexclusive, royalty-free, irrevocable, perpetual, worldwide, sub-licensable, transferable license to use, reproduce, modify, Provider’s pre-existing technology in connection with its use of the Work Product.
    
    
    
17. Termination.
    
    
    • For Convenience. Splunk may terminate this PO in whole or in part in its discretion and without liability to Provider, upon ten (10) days prior written notice to Provider. Termination by Splunk under this Section will not relieve it of paying Provider for Deliverables supplied or performed and accepted by Splunk prior to the date of termination.
      
      
    • For Cause. Splunk may terminate this PO upon written notice to Provider if Provider: (i) materially breaches any term or condition of this PO and such breach is not remedied within seven (7) days of Splunk’s notice to Provider or, if the breach is incurable or as otherwise stated in this PO, immediately upon notice; (ii) files a petition in bankruptcy, becomes insolvent or dissolves; or (iii) assigns or attempts to assign this PO to a third party without the prior approval of Splunk.
      
      
    • Effect of Termination. Upon termination of this PO for any reason, Provider will promptly deliver to Splunk all Deliverables and Work Product (whether completed or in process) ordered under this PO prior to the date of termination. Splunk will pay Provider for any Deliverables or Work Product received and accepted prior to the date of termination.
      
      
    • Survival. The terms and conditions of this PO that by their nature extend beyond the termination of this PO, will survive the termination of this PO, including but not limited to Sections 12 (“Confidential Information”), 13 (“Warranties”), 14 (“Indemnification”), 15 (“Limitation of Liability”), 16 (“Ownership”) and 18 (“Insurance”, as necessary to cover any Claims).
      
      
      
18. Insurance. Provider will maintain adequate health, workers’ compensation, automobile, unemployment compensation, disability, cyberliability and other insurance, as required by law or as is the common practice in Provider’s industry, whichever affords greater coverage. If requested, Splunk will be named as an additional insured under any such policies. If requested by Splunk, such insurance will provide that it cannot be cancelled, or materially changed so as to affect the coverage provided under this PO, without the insurer providing at least thirty (30) days prior written notice to Splunk.
    
    
    
19. Export Obligations. If Deliverables originate from a country outside of Splunk’s delivery location, Provider agrees to abide by all applicable export control laws and regulations of that country. Provider will indemnify and defend Splunk against any liabilities, penalties, damages, costs or expenses that may be imposed upon Splunk in connection with Provider’s violation of any applicable export control laws and regulations. Provider is also responsible for complying with all applicable laws and regulations regarding the importation of Deliverables into the country where Splunk’s delivery location resides.
    
    
    
20. Compliance with Laws. Provider is responsible for complying with all applicable laws and regulations regarding goods and/or services including any applicable data protection and data security laws.
    
    
    
21. Miscellaneous.
    
    
    • Governing Law. This PO and any disputes arising out thereof, including any non-contractual claim, will be governed by the following laws:
      
      
      1. If this PO is with Splunk Inc: the laws of the State of California and the United States, without regard to their conflict of law provisions. Any action, including any non-contractual claim, arising out of or related to this PO will be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco.
         
         
      2. If this PO is with a Splunk Affiliate: the laws of the country in which the Affiliate officially resides. Any action, including any non-contractual claim, arising out of or related to this PO will be subject to the exclusive jurisdiction of that country.
         
         
      3. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby (i) waives any venue or inconvenient forum defense to any action or proceeding filed and maintained in such courts; and (ii) disclaims its right to initiate any action or proceeding arising out of or related to this PO in any other court or forum.
         
         
         
    • Injunctive Relief. Nothing in this PO prevents a party from seeking a temporary restraining order or injunctive or other equitable relief with respect to a breach (or attempted breach) of this PO by the other party, without the requirement of posting a bond, in addition to any remedies available at law.
      
      
      
    • Assignment. Provider may not assign this PO, in whole or in part, without Splunk’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned). Provider may not assign this PO to any competitor to Splunk as reasonably determined by Splunk. Any attempted assignment in breach of this restriction will be void.
      
      
      
    • Notices. The parties will provide notices under this PO in writing and will deliver them by commercial overnight courier to each party’s respective contacts, with a copy addressed to “Attention Legal Department,” at the business address on this PO (or subsequent address it is notified of by the other party). Notices are effective on the date of delivery as indicated in the records of the courier. Non-legal notices (e.g., a notice of termination for convenience) can also be delivered by email. Email notices are effective on the date of the record of transmission.
      
      
      
    • Publicity. Neither party may issue a press release nor other type of announcement or public statement related to this PO without the prior written consent of the other party.
      
      
      
    • Interpretation. If the terms and conditions of this PO are translated into a language other than English, the translation is for convenience only, and the English language version will govern.
      
      
      
    • Severability. If any provision of this PO is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intentions and the remaining provisions will not be affected.
      
      
      
    • Waiver. Splunk’s failure to insist upon strict performance of any of the terms and conditions in this PO or to exercise any rights or remedies hereunder will not be construed as a waiver of its rights to assert any of the same or any other terms and conditions under this PO.
      
      
      
    • Entire Agreement. The PO terms and conditions contains the complete agreement between the parties and supersedes any prior understandings, agreements, statements or representations (whether made innocently or negligently) by or among the parties, which relate to the subject matter of this PO.