THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERNS THE LICENSING, INSTALLATION AND USE OF SPLUNK SOFTWARE. BY DOWNLOADING AND/OR INSTALLING SPLUNK SOFTWARE: (a) you are indicating that you have read and understand this Agreement, and agree to be legally bound by it on behalf of the company, GOVERNMENT, or other entity for which you are acting (for example, as an employee OR GOVERNMENT OFFICIAL) or, if there is no company, GOVERNMENT or other entity for which you are acting, on behalf of yourself as an individual; and (b) you represent and warrant that you have the authority to act on behalf of and bind SUCH company, GOVERNMENT OR OTHER ENTITY (if any).
WITHOUT LIMITING THE FOREGOING, YOU (AND YOUR ENTITY, IF ANY) ACKNOWLEDGE THAT BY SUBMITTING AN ORDER FOR THE SPLUNK SOFTWARE, YOU (AND YOUR ENTITY (IF ANY)) HAVE AGREED TO BE BOUND BY THIS AGREEMENT.
YOU REPRESENT AND WARRANT THAT YOU ARE EITHER AN INSTRUCTOR AT A COLLEGE, UNIVERSITY OR POSTSECONDARY TECHNICAL INSTITUTION OR YOU ARE A STUDENT AT A COLLEGE, UNIVERSITY OR POSTSECONDARY TECHNICAL INSTITUTION.
As used in this Agreement, “Splunk,” refers to Splunk Inc., a Delaware corporation, with its principal place of business at 250 Brannan Street, San Francisco, California 94107, U.S.A.; and “Customer” refers to the company, government, or other entity on whose behalf you have entered into this Agreement or, if there is no such entity, you as an individual.
DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Exhibit A.
Purchased Software. Subject to Customer’s compliance with this Agreement, including Customer’s timely payment of all License Fees, Splunk grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Purchased Software within the Licensed Capacity solely for Customer’s Internal Business Purposes.
Evaluation Software. If the applicable Order specifies that any Software is provided under an evaluation license or a free trial license, then subject to Customer’s compliance with this Agreement, Splunk grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Evaluation Software within the Licensed Capacity solely for evaluating whether Customer wishes to purchase a commercial license for such Software. Notwithstanding anything to the contrary in this Agreement, Splunk does not provide maintenance and support (Section 7), warranty (Section 10), or indemnification (Section 13) with respect to Evaluation Software.
Test and Development Software. If the applicable Order specifies that any Software is provided under a test and development license, then subject to Customer’s compliance with this Agreement, Splunk grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Test and Development Software within the Licensed Capacity in a non-production system used for software product migration testing, software product pre-production staging, testing new data sources, types or use cases, or other non-production use. In no way should the Test and Development Software be used for any revenue generation, commercial activity or other productive business or purpose. Notwithstanding anything to the contrary in this Agreement, Splunk does not provide warranty (Section 10), or indemnification (Section 13) with respect to the Test and Development Software.
Free Software. Splunk may make certain Software available for license without charge, and such Free Software may have limited features, functions, or other limitations of any kind. Subject to Customer’s compliance with this Agreement, Splunk grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Free Software within the Licensed Capacity solely for Customer’s academic (non-commercial) Internal Business Purposes. Notwithstanding anything to the contrary in this Agreement, Splunk does not provide maintenance and support (Section 7), warranty (Section 10), or indemnification (Section 13) with respect to Free Software.
Splunk Extensions. Subject to Customer’s compliance with this Agreement, including Customer’s timely payment of all License Fees (if any), Splunk grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license to use Splunk Extensions solely in connection with applicable Software that Customer has licensed from Splunk, subject to the same limitations and restrictions (including with respect to Term and Licensed Capacity) that apply to the Software with which the Splunk Extensions are used. Notwithstanding the foregoing, if any Splunk Extension is provided to Customer under a separate license agreement that grants Customer more permissive or broader rights with respect to such Splunk Extension (e.g., a separate license agreement that is provided to Customer as part of the download process for such Splunk Extension), then that separate license agreement, and not this Agreement, will govern Customer’s installation and use of such Splunk Extension (but, for clarity, this Agreement will apply to all other Splunk Extensions).
Customer Extensions. Subject to Customer’s compliance with this Agreement, Splunk grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license (a) to copy, modify and use the Splunk Developer Tools solely to develop Extensions for academic purposes (non-commercial) for use with the designated Software or Splunk Extension (“Customer Extensions”), including to support interoperability between the Software or Splunk Extension and Customer’s system or environment and (b) to distribute the Customer Extensions exclusively for the use with the designated Software or Splunk Extension. The foregoing license is subject to the following conditions: (x) Splunk proprietary legends or notices contained in the Splunk Developer Tools may not be removed or altered when used in or with the Customer Extension; and (y) Customer may not make any statement that Customer Extension is certified or that its performance is guaranteed by Splunk. Customer retains title to the Customer Extensions, subject to Splunk’s ownership set forth in Section 5. If Customer allows end users of Customer Extensions to modify or distribute the Customer Extensions, Customer shall limit such modification or distribution to use with the designated Software or Splunk Extension only, and will flow down the conditions in (x) and (y) above to end users of Customer Extensions. Customer agrees to assume full responsibility for the performance and distribution of Customer Extensions.
Open Source Software. Customer acknowledges that certain Software may contain Open Source Software. Open Source Software may be identified in the Documentation or in a list of the Open Source Software provided to Customer upon Customer’s written request. Any Open Source Software that is delivered to Customer as part of Purchased Software, and which may not be taken out of the Purchased Software or used separately from the Purchased Software is covered by the warranty, support and indemnification provisions applicable to Purchased Software. Customer acknowledges that specific terms required by the respective licensor of the Open Source Software may apply to the use of Open Source Software, which terms shall be included in the Documentation; however, these terms will not: (a) impose any additional restrictions on Customer's use of the Software, or (b) negate or amend Splunk’s responsibilities with respect to Purchased Software.
LICENSE RESTRICTIONS. Unless otherwise expressly permitted by Splunk, Customer will not and Customer has no right to: (a) copy any Splunk Materials (except as required to run the Software and for reasonable backup purposes); (b) modify, adapt, or create derivative works of any Splunk Materials; (c) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any Splunk Materials to any third party; (d) decompile, disassemble or reverse-engineer any Splunk Materials, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Splunk Materials, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (e) access or use any Disabled Materials; (f) provide to any third party the results of any benchmark tests or other evaluation of any Splunk Materials without Splunk’s prior written consent; (g) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Splunk Materials (including in order to gain access to any Disabled Materials); (h) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any Splunk Materials; (i) exceed the Licensed Capacity; (j) otherwise access or use any Splunk Materials except as expressly authorized in this Agreement; or (k) encourage or assist any third party to do any of the foregoing. Customer acknowledges that the Software may be configured to display warnings, reduce available functionality, and/or cease functioning if unauthorized or improper use is detected, including if the Term expires or the Licensed Capacity is reached or exceeded.
CONSULTANTS. Customer may permit its authorized consultants, contractors, and agents (“Service Providers”) to access and use the Software solely on Customer’s behalf in connection with providing services to Customer, subject to the terms and conditions of this Agreement. Any such access or use by a Service Provider will be subject to the same limitations and restrictions that apply to Customer under this Agreement, and Customer will be jointly and severally liable for any Service Provider’s actions relating to or use of the Software. For avoidance of doubt, the aggregate use by Customer and all of its Service Providers must not exceed the Licensed Capacity and nothing in this Section 4 is intended to or will be deemed to increase any Licensed Capacity.
OWNERSHIP. Splunk, its suppliers and/or licensors own all worldwide right, title and interest in and to the Splunk Materials, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 2, Customer will not acquire or claim any right, title or interest in or to any Splunk Materials or related Intellectual Property Rights, whether by implication, operation of law or otherwise. Notwithstanding anything to the contrary, the Software is licensed, not sold, to Customer.
LICENSE FEES. Customer will pay all license fees set forth in the Order (the “License Fees”) for the Software delivered to Customer no later than thirty (30) days after the date of Splunk’s applicable invoice. Without limitation of Splunk’s other termination rights, if Customer fails to pay the License Fees when due, then Splunk may terminate this Agreement and all licenses granted hereunder by notice to Customer. All License Fees are non-refundable once paid. Any fees and payment terms for Splunk Extensions not included in the Order will be as set forth on the download page for such Splunk Extensions.
MAINTENANCE AND SUPPORT. If Customer has purchased support and maintenance for the Purchased Software as set forth in the Order (the “Support Services”), then Splunk will provide the level of support and maintenance included in the Order in accordance with the terms and conditions set forth in Exhibit C.
CONFIGURATION SERVICES. Subject to Customer’s payment of applicable fees, Splunk will provide the deployment, usage assistance, configuration, and/or training services (if any) set forth in the Order (the “Professional Services”) in accordance with Splunk’s standard professional services terms and conditions, which terms and conditions are hereby incorporated by reference and made a part of this Agreement.
SOFTWARE VERIFICATION AND AUDIT. At Splunk’s request, Customer will furnish Splunk with a certification signed by Customer’s authorized representative verifying that the Software is being used in accordance with this Agreement and the applicable Order. Also, if Customer has purchased an offering that requires usage reporting as identified in the Order, Customer agrees to provide such reporting pursuant to the requirements set forth by Splunk. Upon at least ten (10) days’ prior written notice, Splunk may audit Customer’s (and its Service Providers’) use of the Software to ensure that Customer (and such Service Providers) are in compliance with this Agreement and the applicable Order. Any such audit will be conducted during regular business hours at Customer’s (or its Service Providers) facilities, will not unreasonably interfere with Customer’s (or its Service Providers’ ) business and will comply with Customer’s (or its Service Providers’ ) reasonable security procedures. Customer will (and will ensure that its Service Providers) provide Splunk with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Customer (or any Service Provider ) has exceeded the Licensed Capacity or the scope of Customer’s license grant during the period audited, then Splunk will invoice Customer, and Customer will promptly pay Splunk any underpaid fees based on Splunk’s price list in effect at the time the audit is completed. If the excess usage exceeds ten percent (10%) of the Licensed Capacity, then Customer will also pay Splunk’s reasonable costs of conducting the audit. Customer will ensure that its Service Providers provide Splunk with the access described in this Section 9. This Section 9 will survive expiration or termination of this Agreement for a period of three (3) years.
WARRANTY. Splunk warrants that for a period of thirty (30) days from the Delivery of Purchased Software, the Purchased Software will substantially perform the material functions described in Splunk’s user documentation for such Purchased Software, when used in accordance with the user documentation. The sole liability of Splunk (and its Affiliates and suppliers/licensors), and Customer’s sole remedy, for any failure of the Purchased Software to conform to the foregoing warranty, is for Splunk to do one of the following (at Splunk’s sole discretion): (a) modify, or provide an Enhancement for, the Purchased Software so that it conforms to the foregoing warranty, (b) replace Customer’s copy of the Purchased Software with a copy that conforms to the foregoing warranty, or (c) terminate the license with respect to the non-conforming Purchased Software and refund the License Fees paid by Customer for such non-conforming Purchased Software. All warranty claims must be made by written notice to Splunk on or before the expiration of the warranty period.
WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10 ABOVE, THE SPLUNK MATERIALS, OPEN SOURCE SOFTWARE, THIRD PARTY CONTENT, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, SPLUNK AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 10, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, SPLUNK DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
LIMITATION OF LIABILITY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) SPLUNK AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “SPLUNK ENTITIES”) WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) SPLUNK ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO SPLUNK FOR THE PURCHASED SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER SPLUNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT SPLUNK, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE).
INDEMNITY. Splunk will defend Customer against any claim, demand, suit or proceeding (“Claim”) brought against Customer by a third party alleging that Purchased Software infringes or misappropriates such third party’s Intellectual Property Rights, and Splunk will pay all damages finally awarded against Customer by a court of competent jurisdiction as a result of such Claim, subject to the other terms and conditions of this Agreement. Notwithstanding the foregoing, Splunk has no obligation to indemnify Customer with respect to: (a) use of the Purchased Software in a manner that is not permitted under the Agreement or that is inconsistent with Splunk’s applicable user documentation; (b) modifications to the Splunk Materials made by anyone other than Splunk; (c) the combination of Software with hardware or software not made by Splunk, or with third-party services, processes or materials where the infringement or misappropriation would not occur but for such combination; (d) Customer’s continued use of the Purchased Software or other allegedly infringing activity after receiving notice of the alleged infringement; or (e) any version of the Purchased Software that is no longer supported by Splunk ((a) through (e), collectively, “Excluded Matters”). If an applicable Claim is made or appears likely to be made, Splunk may, at its option and expense, modify the affected Purchased Software so that it is noninfringing, or replace it with substantially functionally equivalent software. If Splunk determines that neither is reasonably feasible, Splunk may terminate Customer’s applicable license and refund Customer a pro rata refund of the License Fees previously paid by Customer, which will be calculated using the remainder of the license term (beginning with the date of Splunk’s receipt of notice of the applicable Claim), or if the Purchased Software is licensed under a perpetual license, a refund of License Fees previously paid by Customer, less straight-line depreciation on a three-year basis from the Delivery of the applicable Software. The obligations set forth in this Section constitute Customer’s sole and exclusive remedy, and Splunk’s entire liability, with respect to any Claims that the Purchased Software infringes any third party’s Intellectual Property Rights. Customer will defend Splunk against any Claim brought against Splunk by a third party arising out of or relating to any Excluded Matter or any Customer Extension, and Customer will pay all damages finally awarded against Splunk by a court of competent jurisdiction as a result of such Claim. Each party’s indemnity obligations set forth in this Section 13 are conditioned upon the party seeking indemnification (x) providing prompt written notice to the other party of the applicable Claim; (y) giving the indemnifying party sole control of the defense and/or settlement of the Claim, except that: (i) the indemnified party may participate in the defense with counsel of its choice at its own expense, and (ii) the indemnifying party will not agree to any settlement that imposes a material obligation on the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld or delayed), and (z) providing reasonable cooperation and assistance in the defense and negotiations.
Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Splunk will include the Splunk Materials (including any license keys).
Use and Disclosure Restrictions. The party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in strict confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, and employees (collectively, “Representatives”), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein. Recipient’s obligations under this Section 14 will continue in effect for a period of three (3) years from the date of last disclosure of Confidential Information by Discloser, except that Customer’s obligations under this Section 14 will continue in effect in perpetuity with respect to Splunk Materials, and each party’s obligations under this Section 14 will continue in perpetuity with respect to the other party’s Sensitive Information.
Exclusions. The obligations of Recipient under Section 14.1 will not apply to any Confidential Information that: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
Required Disclosures. The provisions of Section 14.1 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure in order to enable Discloser to prevent or limit disclosure.
Return or Destruction of Confidential Information. Upon termination of the Agreement or support and maintenance, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 14, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
TERM. This Agreement will commence upon Splunk’s first delivery of the Software specified in the Order (or, Splunk’s other initial delivery of the Software to Customer) and will remain in effect until the expiration of the applicable Software license term, unless earlier terminated pursuant to Section 16 (the “Term”). For the avoidance of doubt, unless earlier terminated, this Agreement will be in effect for one year.
Purchased Software, etc. Unless otherwise indicated in the Order, the Term for Purchased Software, Splunk Extensions and Splunk Developer Tools, if applicable, will continue indefinitely, unless and until terminated pursuant to Section 16. If the Order indicates a Term of a specific duration for any of the foregoing, then licenses granted to Customer for such Purchased Software or Free Software will terminate automatically upon expiration of such Term. Upon expiration of any Term, the applicable Software will stop working automatically.
Evaluation Software. If Customer is granted a license for Evaluation Software, then the Term for such Evaluation Software will be specified in the Order or with the license key. If no such term is specified, the Term for Evaluation Software is thirty (30) days from the date the license key is delivered. Any license keys provided for Evaluation Software will automatically expire and cause the Evaluation Software to become non-operational at the end of the Term. If Customer wishes to use the Evaluation Software after the Term expires, then Customer must obtain the applicable paid license.
Free Software: If Customer is granted a license for Free Software, then the Term for such Free Software will be specified in the Order or with the license key. If no such term is specified, the Term for Free Software is 12 months from the date the license key is delivered.
TERMINATION. Either party may terminate this Agreement by written notice to the other party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days of receiving notice of the breach. In addition, Splunk may immediately terminate this Agreement (in whole or in part, including with respect to any Term) by written notice to Customer (a) if Customer materially breaches Section 3, and (b) as set forth in Section 6.Splunk may also terminate Customer’s license to any Evaluation Software at any time with or without cause by notice to Customer. If Customer is the Government, then termination terms and conditions will be governed by 48 C.F.R. § 52.212-4. Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will automatically terminate, and Customer agrees to cease immediately using the Splunk Materials and to return or destroy all copies of the Splunk Materials and other Splunk Confidential Information in Customer’s possession or control, and certify in writing the completion of such return or destruction in accordance with Section 14.4. Upon termination of this Agreement, Splunk will have no obligation to refund any License Fees or other amounts received from Customer during the Term, and notwithstanding any early termination above, Customer shall still be required to pay all License Fees payable under an Order (i.e., no such early termination shall relieve Customer of its obligations to pay all License Fees payable under an Order) unless otherwise provided in this Agreement. Termination of Support and Maintenance Terms and Conditions due to Splunk’s breach is provided in Section 3.2 of Exhibit C. Section 1 (Definitions), Section 5 (Ownership), Section 9 (Software Verification and Audit), Section 11 (Warranty Disclaimer), Section 12 (Limitation of Liability), Section 13 (Indemnity), Section 14 (Confidentiality), Section 16 (Termination) and Sections 17 (Export) through 23 (General) will survive any expiration or termination of this Agreement.
EXPORT. Customer will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Splunk Materials. Customer certifies that Customer is 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. Customer further certifies that Customer will not export, re-export, ship, transfer or otherwise use the Splunk Materials in any country subject to an embargo or other sanction by the United States, including Iran, Syria, Cuba, Sudan and North Korea and that Customer will not use the Splunk Materials for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
GOVERNMENT END USER RIGHTS. Customer acknowledges that all Splunk Materials were developed entirely at private expense and that no part of the Splunk Materials was first produced in the performance of a government contract. Customer agrees that all Splunk Materials and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. § 2.101, and if Customer is the Government, then 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 Splunk Materials are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the Splunk Materials except as expressly agreed to in writing by Customer and Splunk.
PUBLICITY. Customer agrees that Splunk may publish a brief description describing Customer’s deployment of the Software and identify Customer as a Splunk customer on any of Splunk’s websites, client lists, press releases, and/or other marketing materials.
THIRD PARTY CONTENT DISCLAIMER. Certain Extensions and other materials available for download on Splunkbase are developed and/or provided by third parties (“Third-Party Content”). Splunk makes such Third-Party Content available for download on Splunkbase as a convenience to its customers, but Splunk neither controls nor endorses, nor is Splunk responsible for, any Third-Party Content, including the accuracy, integrity, quality, legality, usefulness or safety of Third-Party Content. Certain Third-Party Content may, among other things, be inaccurate, nonfunctional, infringing or dangerous. Nothing in this Agreement or on Splunkbase will be deemed to be a representation or warranty by Splunk with respect to any Third-Party Content, even if a particular Extension or other item of Third-Party Content is identified as “certified” for use with Software. Splunk has no obligation to monitor Third-Party Content, and Splunk may block or disable access to any Third-Party Content at any time. In addition, the availability of any Third-Party Content through Splunkbase does not imply Splunk’s endorsement of, or affiliation with, any provider of such Third-Party Content, nor does such availability create any legal relationship between Customer and any such provider. Customer’s use of Third-Party Content is at Customer’s own risk and may be subject to any additional terms, conditions and policies applicable to such Third-Party Content (such as license terms, terms of service or privacy policies of the providers of such Third-Party Content).
AUTHORIZED PARTNERS. If Customer acquired the Software through an authorized reseller, partner or OEM of Splunk (“Authorized Partner”) then, notwithstanding anything to the contrary in this Agreement: (a) Customer’s use of the Software is subject to any additional terms in the agreement provided by the Authorized Partner; (b) Customer agrees to pay the Authorized Partner the License Fees and other applicable fees, and Customer will have no direct License Fee payment obligations to Splunk for such Software; (c) Customer’s agreement with the Authorized Partner is between Customer and the Authorized Partner and is not binding on Splunk; and (d) Splunk may terminate this Agreement (including Customer’s right to use the Software) if Splunk does not receive payment for Customer’s use of the Software from the Authorized Partner or if Customer breaches any term of this Agreement. If Customer’s warranty and support terms stated in its agreement with the Authorized Partner are different from those set forth in this Agreement, then such different terms are solely between Customer and the Authorized Partner and Splunk will have no obligations to Customer under this Agreement with respect to such different terms. Except as set forth in the preceding sentence, if there is any conflict or inconsistency between this Agreement and Customer’s agreement with Authorized Partner, then this Agreement will control (and will resolve such inconsistency) as between Splunk and Customer.
CHOICE OF LAW AND DISPUTES. Unless Customer is the Government, 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 conflicts of law principles 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 (except that Splunk may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Splunk Materials in any court of competent jurisdiction). If Customer is the Government, this Agreement will be governed by and interpreted in accordance with the Contract Disputes Act of 1978, as amended (41 U.S.C. §§ 7101-7109). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement will be a dispute to be resolved in accordance with the clause at 48 C.F.R § 52.233-1, which is incorporated in this Agreement by reference.
Purchase Order. Customer’s issuance of a purchase order constitutes acceptance of this Agreement notwithstanding anything to the contrary in such purchase order. If any purchase order contains any terms or conditions that are different from or additional to the terms and conditions set forth in this Agreement, then Splunk expressly rejects such different or additional terms and conditions, and such different or additional terms and conditions will not become a part of the agreement between the parties notwithstanding any subsequent acknowledgement, invoice or license key that Splunk may issue.
Notices. All notices required or permitted under this Agreement 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. All communications will be sent to the addresses set forth in the applicable Order or to such other address as may be specified by either party to the other party in accordance with this Section.
Assignment. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Splunk may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Splunk’s assets to which this Agreement relates. Splunk may also assign its rights to receive payment due as a result of performance of this Agreement to a bank, trust company, or other financing institution, including any federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. § 3727) and may assign this Agreement in accordance with the provisions at 48 C.F.R § 42.12, as applicable. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
Rights and Remedies. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.
Waiver; Severability. The waiver by either party of a breach of or a default under this Agreement will not be effective unless in writing. 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. 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.
Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (e) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement; and (f) the references herein to the parties will refer to their permitted successors and assigns.
Integration. This Agreement along with any additional terms incorporated herein by reference, including the Order and the Exhibits hereto, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. 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. Any terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement will be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence.
“Affiliate,” with respect to a party, means a corporation, partnership or other entity controlling, controlled by or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
“Authorized Partner” has the meaning set forth in Section 21.
“Claim” has the meaning set forth in Section 13.
“Confidential Information” has the meaning set forth in Section 14.1.
“Customer Extensions” has the meaning set forth in Section 2.6.
“Delivery” means the date of Splunk’s initial delivery of the license key for the applicable Software or otherwise making the applicable Software available for download by Customer.
“Disabled Materials” means certain materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with the Software as part of the delivery mechanism used by Splunk, but that are disabled or hidden in Customer’s setting, because Customer either: (a) does not have the relevant license or license key, or (b) has not paid the applicable License Fees, for those materials.
“Enhancements” means any updates, upgrades, releases, fixes, enhancements or modifications to the Purchased Software made generally commercially available by Splunk to its support customers under the terms and conditions set forth in Exhibit C.
“Evaluation Software” means Software that is specified in an Order as provided under an evaluation license or a free trial license.
“Excluded Matters” has the meaning set forth in Section 13.
“Extension” means any separately downloadable suite, configuration file, add-on, technical add-on, example module, command, function or application, that extends the features or functionality of the applicable Software.
“Free Software” means Software that is specified in an Order as provided to Customer without charge (other than Evaluation Software).
“Government” means an agency, department, or instrumentality of the United States government.
“Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
“Internal Business Purpose” means Customer’s use for its own internal business operations on Customer’s systems, networks and devices with Customer’s data. Such use does not include use by Customer on a service bureau basis or otherwise to provide services to, or process data for, any third party.
“Licensed Capacity” means the maximum usage of the Software (e.g., aggregate daily volume of data indexed, number of Nodes, number of users, etc.) that is permitted under the type of license included in the applicable Order. The available types of license and the associated Licensed Capacity for each are set forth in Exhibit B.
“License Fees” has the meaning set forth in Section 6.
“Open Source Software” means software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative.
“Order” means Splunk’s quote or ordering document accepted by Customer or Customer’s purchase order or other ordering document submitted to Splunk (directly or indirectly through an Authorized Partner) to order Splunk Materials or services, which references the products, services, pricing and other applicable terms set forth in an applicable Splunk quote or ordering document.
“Professional Services” has the meaning set forth in Section 8.
“Purchased Software” means Software that is licensed to Customer and for which Customer has paid a License Fee to Splunk, whether directly or through an Authorized Partner.
“Sensitive Information” means sensitive technical or personally-identifiable Confidential Information of a party that is disclosed to the other party, where examples of Sensitive Information for Splunk include details about product architecture, source code, product schematics and workflows, etc., and where examples of Sensitive Information for Customer include any personally-identifiable information related to Customer’s employees and customers and technical details regarding Customer’s proprietary systems.
“Service Providers” has the meaning set forth in Section 4.
“Splunkbase” means Splunk’s online directory of or platform for Extensions, currently located at https://splunkbase.splunk.com/ and any and all successors, replacements, new versions, derivatives, updates and upgrades thereto.
“Splunk Developer Tool” means the standard application programming interface or configuration and related materials identified and provided by Splunk for and with the applicable Software to enable the creation of Extensions or otherwise support interoperability between the Software and Customer’s system or environment.
“Splunk Extensions” means Extensions made available through Splunkbase that are identified on Splunkbase as published by Splunk (and not by any third party).
“Splunk Materials” mean the Software, Software license keys, Splunk Developer Tools, Splunk Extensions and end user documentation relating to the foregoing.
“Software” means the Software products listed in an Order and any Enhancements thereto made available to Customer by Splunk.
“Support Fees” has the meaning set forth in Exhibit C.
“Support Services” has the meaning set forth in Section 7.
“Term” has the meaning set forth in Section 15.
“Test and Development Software” means Software that is specified in an Order as provided under a test and development license.
“Third-Party Content” has the meaning set forth in Section 20.
Target Fix, Workaround, Escalation and Response Times.