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SPLUNK PARTNER PROGRAM GENERAL TERMS

Last Updated: March 31, 2022

These Splunk Partner Program General Terms (“Partner General Terms”) are between Splunk Inc., a Delaware corporation, with its principal place of business at 270 Brannan Street, San Francisco, CA 94107 USA (“Splunk” or “we” or “us” or “our”) and you (“Partner” or “you” or “your”) and, together with the Program Guide and any Specific Partner Addenda you may enter into with us, govern your access to and participation in the Splunk Partner Program. By clicking on the “I agree” (or similar) button, registering as a Partner in our Partner Portal, or participating in the Splunk Partner Program, you agree to these Partner General Terms and any other terms and conditions referenced herein which are hereby incorporated herein by reference. If you are entering into these Partner General Terms on behalf of a Partner, you represent that you have the authority to bind the Partner. If you do not agree to these Partner General Terms, or if you are not authorized to accept these Partner General Terms on behalf of Partner, you may not register as a partner in our Partner Portal or participate in the Splunk Partner Program.

See the Partner General Terms Definitions Exhibit attached for definitions of capitalized terms not defined herein.

1. Partner Enrollment and Obligations

1.1. Enrollment. In order to enroll in the Splunk Partner Program, you must submit an application to Splunk, which may include, without limitation, a registration form and due diligence questionnaire. Your application is subject to acceptance by Splunk, based on our due diligence and verification that you comply with certain criteria standards. Any request to become a Specific Partner will be subject to review and acceptance by Splunk and may require an additional application.

1.2. Participation Requirements. You agree to comply with these Partner General Terms, the Program Guide, any Specific Partner Addenda you may enter into with us, and any linked or supplementary materials in and to the foregoing. You acknowledge that your compliance with the foregoing is required for your access to and participation in the Splunk Partner Program, to keep and maintain a designation as a Specific Partner, and for you to receive benefits associated with your partner designation and Tier. You acknowledge that, except as expressly stated otherwise, any incentives or other benefits provided by us under the Splunk Partner Program are provided to Partner, and not to any of your individual employees, agents, or subcontractors (“Personnel”).

1.3. Ethics and Compliance.

1.3.1 Commitment to Ethics and Corporate Responsibility. Splunk is committed to acting ethically and in compliance with applicable law, and we have policies and guidelines in place to provide awareness of, and compliance with, the laws and regulations that apply to our business globally. We are committed to ethical business conduct, and we use diligent efforts to perform in accordance with the highest global ethical principles, as described in the Splunk Code of Conduct and Ethics.

1.3.2 Compliance with Laws and Partner Code of Conduct. You agree to conduct your business in an ethical manner in accordance with all applicable laws. You agree to comply, and will ensure your Personnel comply, with the Splunk Partner Code of Conduct, as provided in the Partner Portal and on our website. Alternatively, if you and your Personnel are required to comply with your own publicly available code of conduct and ethics which has similar requirements and restrictions as those in Splunk’s Partner Code of Conduct and addresses in detail bribery, anti- corruption, insider trading (if applicable), conflicts of interest, confidentiality, unlawful labor practices, competition, anti-slavery and anti-human trafficking, and export and trade compliance, and is regularly enforced by you and within your downstream distribution network, then you may comply with your own code of conduct and ethics in lieu of Splunk’s Partner Code of Conduct. You are responsible for regularly training your Personnel on Splunk’s Partner Code of Conduct, or your own code of conduct, as applicable. You agree not to (i) make any false, misleading, or disparaging representations or comments about Splunk or our Offerings; nor (ii) make any representations, warranties or guarantees with respect to the specifications, features or functionality of the Offerings that are inconsistent with the Documentation.

1.3.3 Anti-Bribery/Anti-Corruption. You will comply, and ensure your Personnel comply, with the U.S. Foreign Corrupt Practices Act (the “FCPA”), the U.K. Bribery Act (the “UKBA”) and all other applicable anti-bribery and anti- corruption laws, legislation and regulations (“Anti-Bribery Laws”) in the countries in which you conduct business in connection with the Splunk Partner Program. You acknowledge and confirm that: (i) you understand the provisions relating to the FCPA prohibitions regarding the payment or giving of anything of value, either directly or indirectly, toan official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party’s influence with that government, to obtain or retain business or otherwise gain an advantage; and (ii) you are aware of the UKBA’s prohibition relating to providing things of value to any person, not only foreign officials, with the intent to induce such party to not act with good faith, impartiality or abuse a position of trust. You will not, and will ensure your officers, directors, and Personnel agree to not violate or knowingly let anyone violate the Anti-Bribery Laws while undertaking any activities in connection with the Splunk Partner Program. 

1.3.4 Export Control. You will comply with all applicable export laws and regulations of the United States and any other country (“Export Laws”) where your Customers or your users use any of the Offerings, as applicable. You certify that you and your Customers 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 and will not provide any of the Offerings to certain military or government end users or for certain prohibited uses (15 CFR §744). You will not export, re-export, ship, transfer or otherwise use the Offerings in any country, region, entity or individual subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, the Crimea Region of Ukraine and North Korea, and you will not use any Offering for any purpose prohibited by the Export Laws. Further, you will not provide any Offering in connection with a prohibited end use as defined in 15 CFR §744. Splunk’s export information regarding Splunk’s Offerings, including Splunk’s export control classifications for our on-premise product offerings: https://www.splunk.com/en_us/legal/export-controls.html, as may be updated by Splunk from time to time.

1.3.5 Compliance Reporting. You agree to promptly report to us any known or suspected violation of this Section 1.3 (Ethics and Compliance). When requested by us, you will provide attestations that you are not aware of any violations or alleged violations of this Section 1.3 (Ethics and Compliance). You agree to assist us with an investigation into possible wrongdoing should we have reason to believe violations of the obligations under Section 1.3 (Ethics and Compliance) have occurred in connection with your activities under these Partner General Terms or the Splunk Partner Program.

1.4 Marketing and Promotion. You authorize us to list you as a partner in our partner directory on the Splunk website, including any current Certifications you have obtained. Subject to your prior written consent, you agree we may publish press releases and marketing materials highlighting your deployment or utilization of the Offerings, as applicable. You may engage in the marketing and promotional activities listed for your Tier in the Program Guide in accordance with Splunk’s Partner Branding Guidelines or Style Guide provided in the Partner Portal, or as otherwise agreed to in writing by us.

1.5 Privacy Policy and Partner Portal Terms of Use. Except as otherwise expressly provided in a Specific Partner Addendum, your use of the Partner Portal is subject to the then-current Splunk Partner Portal Terms and Conditions of Use and Splunk’s Privacy Policy (the “Privacy Policy”, which Splunk may update at its discretion) which are both incorporated into these Partner General Terms by this reference. By accepting these Partner Program Terms, you agree to our collection, use, and disclosure of your information as described in the Privacy Policy.

1.6 Privacy and Data Protection.

1.6.1 Contact Information. The parties agree that they may share contact, transactional and lead information regarding their respective employees, partners, customers and prospects in connection with the performance of these Partner General Terms, and that such information, including but not limited to contact name, phone number and email address (“Contact Information”), may constitute personal information or personal data under applicable data protection laws. The parties shall use Contact Information only for purposes consistent with the terms of the Partner General Terms and any Specific Partner Addenda. Each party will act as a data controller with regard to use and processing of Contact Information and comply with their respective data controller obligations under applicable data protection laws (including providing all relevant notices and obtaining any consents required to share Contact Information with the other party). Each party shall implement appropriate security measures designed to protect Contact Information under its control. In the event either party determines that Contact Information received from the other party has been subject to misappropriation or accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access that compromises the security, confidentiality or integrity of such Information, it will notify the other party without undue delay.

2. Mutual Confidentiality

2.1. Confidential Information. Each party will protect the Confidential Information of the other. Accordingly, 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 these Partner General Terms, and (iii) use commercially reasonable efforts to 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 these Partner General Terms and who are subject to confidentiality obligations no less stringent than those herein.

2.2. Compelled Disclosure of Confidential Information. 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, and provided that the Receiving Party only discloses that portion of such Confidential Information that, in the opinion of its legal counsel, is required to be disclosed.

2.3. Return or Destruction of Confidential Information. Upon termination of the Partner General Terms, the Receiving Party will promptly return to the Disclosing Party, or at the Disclosing Party’s option, destroy, all tangible items and embodiments containing or consisting of the Disclosing Party’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.

3. Not for Resale Licenses

3.1 Use Rights. Subject to your compliance with these Partner General Terms, from time to time, we may make certain Offerings available to you for “Not-For-Resale” use (internal only) at no charge (“NFR Offering”). Licenses granted to NFR Offerings are non-exclusive, non-transferable, revocable, and limited in duration. NFR Offerings may only be used for internal training, on a non-production system for non-production purposes, including product migration testing or pre-production staging, testing new data sources, types, or use cases, and for demonstration purposes to potential customers. However, these NFR Offerings may not be used for any paid for engagement with a Customer or potential customer, or for any other purpose, including but not limited to monitoring an Offerings availability, performance, functionality, or for any other benchmarking or competitive purpose without our written consent. Splunk does not provide maintenance and support, warranties, or indemnification for NFR Offerings. Your ability to obtain a license to an NFR Offering may be limited based on your Tier.

3.2 Restrictions. You will not (nor allow any third party to): (a) reverse-engineer, decompile, disassemble, or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of the NFR Offering (except to the extent such restriction is expressly prohibited by applicable law); (b) modify, translate or create derivative works based on the NFR Offering; (c) use the NFR Offering for your own internal business purpose, in a production environment, or any other purpose not expressly authorized herein; (d) distribute, provide access to, or resell any NFR Offering; (e) access or use any of the NFR Offerings in order to monitor its availability, performance, or functionality for competitive purposes; (f) remove, obscure, or in any way alter any copyright, trademark, and/or other intellectual property or proprietary rights notices placed on or embedded in any NFR Offering; (g) attempt to disable or circumvent any license key or other technological mechanisms or measure intended to prevent, limit or control use, copying of, or access to an NFR Offering; or (h) use, or permit others to use, any part of any NFR Offering in violation of any applicable laws and regulations (including but not limited to any applicable privacy and intellectual property laws).

4. Proprietary Rights

4.1 Offerings and Marks. The Offerings, Splunk Marks, and marketing materials we may provide to you, and all the Intellectual Property Rights therein are and will remain the sole and exclusive property of Splunk and its licensors, whether separate from or combined with any other products or materials. You acknowledge and agree that any and all goodwill which may be created by or result from your use of a Splunk Mark hereunder injure solely to the benefit of Splunk. You agree not to alter, remove, or obscure the Intellectual Property Rights notices or trademark attributions and marketing disclaimers of Splunk and its licensors that may appear on the Offerings, Splunk Marks, or marketing materials, nor to attach any additional trademarks, logos, or trade designations on or to the Offerings, Splunk Marks, or marketing materials. You will not contest or aid in contesting the validity or ownership of any Splunk Mark or take any action in derogation of our rights therein, including, without limitation applying to register any trademark, trade name or other designation that is confusingly similar to any Splunk Mark. You will obtain our prior written approval of any press release, marketing material, or other use or inference to our name or logo. You will use reasonable efforts to protect Splunk’s Intellectual Property Rights in the Offerings and Splunk Marks and will promptly report to Splunk any infringement or other violation of such rights of which you become aware.

4.2 Feedback. To the extent you provide any Feedback to us, you grant us a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free, fully paid-up right and license to use, reproduce, modify, create derivative works of, distribute (through multiple tiers of distribution), publicly perform or display, license, sell, offer to sell, import, export, rent, make, have made and otherwise commercially exploit the Feedback in any manner we deem fit. You agree that your Feedback will not, absent a separate written agreement, (i) create any confidentiality obligation for or upon us or (ii) subject us to any other obligation with respect to our possession or use of the Feedback. The rights granted to us hereunder will survive any termination or expiration of the Partner General Terms.

5. Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED IN A SPECIFIC PARTNER ADDENDUM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND OUR LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS REGARDING THE OFFERINGS, SPLUNK MARKS, AND MARKETING MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, INTEROPERABILITY AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, NOR ANY WARRANTIES THAT THE OFFERINGS WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE GENERAL PARTNER TERMS OR A SPECIFIC PARTNER ADDENDUM. YOU ARE NOT PERMITTED TO MAKE ANY WARRANTIES OR REPRESENTATIONS IN OUR OR IN OUR AFFILIATE’S NAME OR BEHALF. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES OR JURISDICTIONS AND THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.

6. Term and Termination

6.1. Term. These Partner General Terms will continue and remain in effect until terminated as provided herein.

6.2. Termination for Cause. Either party may terminate these Partner General Terms, in the event that the other party is in material breach of these Partner General Terms (including any obligations arising under the Program Guide) and fails to cure such breach within thirty (30) days following notice thereof from the non-breaching party. Notwithstanding the foregoing or anything in these Partner General Terms or a Specific Partner Addendum to the contrary, either party may terminate these Partner General Terms with immediate effect for (a) a breach of Section 1.3 (Ethics and Compliance); (b) if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency or makes an assignment for the benefit of creditors; (c) if the other party breaches its confidentiality obligations under these Partner General Terms; or (d) if a party infringes or misappropriates the other party's intellectual property rights. In addition, we may terminate these Partner General Terms, at any time, in the event that you breach any payment-related provision in the Program Guide or in a Specific Partner Addendum and fail to cure such breach within twenty (20) days, or if the parties agree, in a different period of time, following notice thereof from Splunk.

6.3. Termination for Convenience. Except as otherwise set forth in a Specific Partner Addendum, each party shall have the right to terminate these Partner General Terms or a Specific Partner Addendum for any or no reason by providing the other thirty (30) days’ notice of termination, unless prohibited by applicable law.

6.4. Effect of Termination. Upon termination of these Partner General Terms: (a) any Specific Partner Addendums will also terminate pursuant to its terms; (b) all rights and benefits granted by Splunk hereunder and through the Splunk Partner Program, including without limitation any rights granted to you for NFR Offerings, will automatically cease and be forfeited; (c) you will promptly return to Splunk all copies of the NFR Offerings and all portions thereof, and any Documentation and marketing materials within your possession or control; (d) you will immediately stop using the Splunk Marks and discontinue all representations that you are a part of the Splunk Partner Program; and (e) each party will promptly return or destroy the other party’s Confidential Information within its possession or control, and will certify in writing that it has complied with its obligations to return all such Confidential Information. Termination of a Specific Partner Addendum will not automatically terminate these Partner General Terms or a separate Specific Partner Addendum.

6.5. Survival. The Partner General Terms Definitions and the following sections of these Terms will survive termination of the Partner General Terms for any reason: Sections 2 (Mutual Confidentiality), 4 (Proprietary Rights), 5 (Disclaimer of Warranties), 6.4 (Effect of Termination), 7 (Indemnity), 8 (Limitation of Liability), and 9 (General).

7. Indemnity

YOU WILL DEFEND, INDEMNIFY AND HOLD SPLUNK HARMLESS FROM AND AGAINST ANY LIABILITY, AND PAY ALL DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) AWARDED AGAINST SPLUNK, OR THAT ARE AGREED TO IN A SETTLEMENT, FOR ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST SPLUNK OR ITS AFFILIATES BY A THIRD PARTY (INCLUDING THOSE BROUGHT BY A GOVERNMENT ENTITY) THAT ALLEGES YOU OR YOUR PERSONNEL BREACHED THE OBLIGATIONS IN SECTION 1.3 (ETHICS AND COMPLIANCE).

THE INDEMNIFICATION OBLIGATIONS ABOVE ARE SUBJECT TO US: (I) PROVIDING YOU WITH PROMPT WRITTEN NOTICE OF THE SPECIFIC CLAIM; (II) GIVING YOU THE SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM (EXCEPT THAT YOU MAY NOT SETTLE ANY CLAIM THAT REQUIRES ANY ACTION OR FORBEARANCE ON US WITHOUT OUR PRIOR WRITTEN CONSENT); AND (III) GIVING YOU ALL REASONABLE ASSISTANCE, AT YOUR EXPENSE.

8. Limitation of Liability

8.1 Limit on Damages. SUBJECT TO SECTION 8.3, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER AND ITS AFFILIATES UNDER THESE PARTNER GENERAL TERMS FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE GREATER OF (I) FEES PAID OR PAYABLE UNDER THESE PARTNER GENERAL TERMS IN THE PREVIOUS TWELVE (12) MONTHS FROM WHEN THE LIABILITY AROSE, OR (II) $1,000.00 USD. THE FOREGOING LIABILITY CAP WILL NOT APPLY TO ANY SPECIFIC PARTNER ADDENDUM.

8.2 No Consequential Damages. SUBJECT TO SECTION 8.3, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER AND ITS AFFILIATES FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE PARTNER GENERAL TERMS AND ANY SPECIFIC PARTNER ADDENDUM OR THE USE OF ANY OFFERING OR SPLUNK MARK.

8.3 Exclusions. NEITHER THE LIMITATION OF LIABILITY HEREIN, NOR THE LIMITATION OF LIABILITY IN ANY SPECIFIC PARTNER ADDENDUM, WILL APPLY TO YOUR INDEMNIFICATION OBLIGATIONS IN SECTION 7 (INDEMNITY), YOUR BREACH OF SECTION 1.3 (ETHICS AND COMPLIANCE), EITHER PARTY’S BREACH OF SECTION 2 (MUTUAL CONFIDENTIALITY) EXCLUDING LOSS OF DATA OR DATA BREACH, EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S, ITS AFFILIATES OR LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, THE FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF EITHER PARTY, OR TO ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

THE FOREGOING LIMITATIONS, AND ANY IN A SPECIFIC PARTNER ADDENDUM, WILL APPLY WHETHER THE ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF YOU OR YOUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF YOU OR YOUR AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF SUCH A LAW APPLIES TO YOU, YOU MAY HAVE ADDITIONAL RIGHTS.

9. General

9.1. Assignment. You may not assign, delegate or transfer these Partner General Terms or a Specific Partner Addendum, in whole or in part, by agreement, operation of law, Change of Control, or otherwise, without our prior written consent. Any attempt to assign or transfer these agreements, without our consent, will be null and void. We may assign the Partner General Terms, a Specific Partner Addendum, or certain obligations thereunder (i.e. invoicing) in whole or in part to an Affiliate, upon written notice to you (such notice to be delivered electronically or otherwise). Subject to the foregoing, these Partner General Terms and any Specific Partner Addenda will bind and inure to the benefit of each party’s permitted successors and assigns.

9.2. Governing Law and Jurisdiction.

9.2.1. Choice of Law. These Partner General Terms and any Specific Partner Addendum, and any disputes arising out of or relating to the foregoing or their subject matter will be governed and construed in accordance with the following substantive laws, as if performed wholly within such location and excluding rules relating to conflict of laws:
a) the laws of the State of California if your principal place of business is located in the United States, Mexico, Central America, South America, the Caribbean or Canada;
b) the laws of Japan, if your principal place of business is located in Japan;
c) the laws of the Republic of Singapore, if your principal place of business is located in the region knownas Asia Pacific (excluding Japan and Australia);
d) the laws of New South Wales, Australia, if your principal place of business is located in Australia; or
e) the laws of England and Wales if your principal place of business is located within Europe, the MiddleEast, Africa or any other country.

9.2.2. Jurisdiction. The following courts or administrative bodies will each have exclusive jurisdiction to settle any claims arising out of or relating to these Partner General Terms or any Specific Partner Addendum or its subject matter and the parties consent to personal jurisdiction and venue therein:
a) the federal or state courts located in the Northern District of California when California law applies; or
b) the Tokyo District Court, when the laws of Japan apply; or
c) the courts in the Republic of Singapore when the law of Singapore applies; or
d) the courts of New South Wales and the Federal Court of Australia when the law of New South Wales, Australia applies; or
e) the courts in the United Kingdom and Wales, for any payment disputes when the laws of England and Wales apply; or
f) the London Court of International Arbitration ("LCIA") for all other disputes when the laws of England and Wales apply. The seat of arbitration shall be in London, the number of arbitrators shall be three, and the language of arbitration shall be English. Within thirty (30) days of a request for arbitration, we will nominate one arbitrator, you will nominate one arbitrator, and if the parties cannot agree on the third arbitrator, then the two nominated arbitrators will jointly select the third arbitrator. If the two arbitrators cannot agree on the third arbitrator, then the LCIA Court will appoint the third arbitrator in accordance with the LCIA rules. The award rendered by the arbitrator shall be final and binding on the parties and may include costs, including a reasonable allowance for attorney/solicitors’ fees, and judgment thereon may be entered in any court having competent jurisdiction.

9.2.3. Neither the Uniform Computer Information Transactions Act (“UCITA”), nor the United Nations Convention for the International Sale of Goods will apply to these Partner General Terms or any Specific Partner Addendum.

9.2.4. Notwithstanding anything in these Partner General Terms to the contrary, as monetary damages may not be sufficient, the parties agree that either party will have the right to seek an immediate injunction and other equitable relief in order to enjoin any actual or threatened unauthorized use or disclosure of its Confidential Information or the Intellectual Property Rights of itself, its Affiliates, or licensors without the necessity of posting a bond, in any court of competent jurisdiction, in addition to any other rights and remedies that it may have at law or otherwise. Each party will notify the other party in writing immediately upon becoming aware of any actual or threatened unauthorized use or disclosure of the other party’s Confidential Information or the other party’s Intellectual Property Rights or that of its Affiliates, or licensors.

9.3. Nonexclusive Remedy. Except as expressly set forth in these Partner General Terms or a Specific Partner Addendum, the exercise by either party of any of its remedies under these Partner General Terms or a Specific Partner Addendum will be without prejudice to its other remedies under such agreements or otherwise. All rights and remedies, whether conferred thereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently.

9.4. Waiver; Severability. The waiver by either party of a breach of or a default under these Partner General Terms will not be effective unless in writing. The failure by either party to enforce any provisions of these Partner General Terms 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 these Partner General Terms invalid or unenforceable, the remaining provisions of these Partner General Terms 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.

9.5. Notices. Notices under these Partner General Terms or Specific Partner Addenda must be in writing and will be deemed to have been given upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”) which shall be clearly identifiable as a Legal Notice, the first business day after sending by email to an email address provided by the other party for such purpose. You will send any Legal Notices to Splunk in writing addressed to the Legal Department, Splunk Inc., 270 Brannan Street, San Francisco, CA 94107 USA, with a copy via email to legal@splunk.com. We will address any Legal Notices to you using the information provided by you in the Partner Portal when you register as a Splunk partner. We may notify you via e- mail or through the Partner Portal for all other notices, including about any changes or updates to Splunk Partner Program requirements and benefits.

9.6. Force Majeure. Excluding any payment obligations under a Specific Partner Addendum, neither party nor its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will be liable for any delay or failure to perform any obligation under these Partner General Terms or Specific Partner Addendum 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.

9.7. Independent Contractors; No Third-Party Beneficiaries. The parties are independent contractors, and neither these Partner General Terms nor any Specific Partner Addendum will establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party will have the power to bind the other party or to incur any obligations on its behalf without the other party’s prior written consent. Unless otherwise expressly provided, no provisions of these Partner General Terms or any Specific Partner Addenda are intended or will be construed to confer upon or give to any person, or other entity other than Partner and Splunk, any rights, remedies or other benefits under or by reason of these Partner General Terms or any Specific Partner Addendum, including whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

9.8. Entire Agreement. The parties agree that these Partner General Terms and any Specific Partner Addenda delete and replace any prior agreements between the parties with regard to the same subject matter. These Partner General Terms along with any additional terms incorporated herein by reference, 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. Except as otherwise expressly set forth herein, any waiver, modification or amendment of any provision of these Partner General Terms will be effective only if in writing and signed by duly authorized representatives of both parties. Except in respect of any fraud, or fraudulent misrepresentation made by a party, each party acknowledges and agrees that in entering into these Partner General Terms, it has not relied upon, and will have no remedy in respect of, any statement, representation, undertaking or warranty whether oral or in writing, other than as is expressly set out in these Partner General Terms. Any pre- printed terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document associated with your payment of fees under the Splunk Partner Program will have no effect with respect to that payment, will not serve to document objections to these Partner General Terms.

9.9 Change of Scope. We reserve the right to update and make changes to these Partner General Terms and the Splunk Partner Program, or parts thereof, at any time, including, but not limited to, the eligibility criteria, performance metrics, and termination of the Splunk Partner Program. Should we make a substantive change, we will notify you through the Partner Portal. If you do not agree with a change, you may stop participating in the Splunk Partner Program at your discretion by terminating these Partner General Terms in accordance with Section 6.3.

9.10 Splunk Affiliates. Splunk may use its Affiliates to perform some of its business operations. From time to time you may be required to transact with such Affiliates under these Partner General Terms and any Specific Partner Addenda to facilitate business in your Territory. These transactions will be deemed a separate contract between you and the relevant Splunk Affiliate. For the avoidance of doubt, you agree that: (i) the total liability of Splunk under these Partner General Terms, and any Specific Partner Addenda, as set forth in Section 8 (Limitation of Liability) states the overall combined liability of Splunk and all Splunk Affiliates; (ii) the entering into transactions with a Splunk Affiliate will not be deemed to expand Splunk and its Affiliates’ overall responsibilities or liability under these Partner General Terms and any Specific Partner Addendum; and (iii) you will have no right to recover more than once from the same event.

9.11 Local Law Requirements for Partner General Terms governed by the law of England and Wales. If the laws of England and Wales apply pursuant to Section 9.2 (Governing Law and Jurisdiction), these Partner General Terms are amended as set out below.
a) In Section 5 (Disclaimer of Warranties) the words “OF MERCHANTABILITY,” are deleted and replaced with “OR CONDITIONS OF”.
b) Section 8 (Limitation of Liability) is deleted and replaced as follows:

8. Limitation of Liability

8.1 No Exclusion of Liability for Certain Claims. Nothing in this Section 8 nor elsewhere in these Partner General Terms or any Specific Partner Addendum excludes or restricts a party’s liability for: (i) fraud or fraudulent misrepresentation, (ii) death or personal injury caused by negligence, (iii) contractual indemnification obligations provided in Section 7 (Indemnity); (iv) your breach of Section 1.3 (Ethics and Compliance); (iv) a breach of Section 2 (Mutual Confidentiality), excluding loss of data or data breach; (v) an infringement or misappropriation of a party’s (or its Affiliates or licensors’) Intellectual Property Rights by the other party; or (vi) any other liability that cannot be excluded or limited by law.

8.2 Exclusion of Liability. Subject to Section 8.1 (No Exclusion of Liability for Certain Claims), in no event will either party or its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors, have any liability arising out of or in connection with these Partner General Terms, whether in contract, tort, under statute, for misrepresentation or otherwise (in each case including, but not limited to, negligence), and whether or not the party was advised in advance of the possibility of such loss or damage, for: (i) any special, indirect, incidental or consequential loss or damage; or (ii) any of the following types of loss or damage: (a) loss of profits or revenue; (b) loss of business, contracts or opportunity; (c) loss of or damage to goodwill (including pecuniary losses arising from loss of or damage to goodwill); (d) loss of anticipated savings; (e) loss from business interruption; (f) costs of procuring substitute software or services; or (g) loss or corruption of software or data.

8.3 Total Liability. Subject to Sections 8.1 (No Exclusion of Liability for Certain Claims) and 8.2 (Exclusion of Liability) above, in no event will the aggregate liability of either party (its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors) to the other party arising out of or in connection with these Partner General Terms (excluding any Specific Partner Addendum) exceed the greater of: (i) the total amount paid or payable under these Partner General Terms in the twelve (12) months prior to the event or first incident giving rise to such liability; or (ii) $10,000. The limitations of aggregate liability in this Section 8.3 will apply whether an action is in contract, tort, under statute, for misrepresentation or otherwise (in each case including, but not limited to, negligence), and regardless of whether or not the party was advised in advance of the possibility of such loss or damage.”


Partner General Terms Definitions Exhibit 

Affiliate” 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).

Certification” means recognition by Splunk in the form of a Splunk-issued certificate or other document naming an individual who has taken a Splunk product- or sales-specific training course and passed a qualifying exam that verifies the individual’s mastery of the subject matter of the training course.

Change of Control” means a transaction or a series of related transactions: (i) in which one or more related parties that did not previously own or control at least a fifty percent (50%) equity interest in a party; obtains ownership or control of at least a fifty percent (50%) equity interest in a party; (ii) in which sells all or substantially all of its assets; or (iii) as a result of which one or more related parties that did not previously have the right or power to exercise a controlling influence over the management or policies of a party acquires such a right or power, including, without limitation, the ability to elect a majority of a party’s board of directors or a similar governing body.

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. 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. Without limiting the foregoing, Splunk’s Confidential Information includes the Offerings and any code or license keys associated with them.

Customer” means an entity (i) who may acquire Offerings from you for its own internal business purpose, and not for distribution or for offering services to third parties as provided under an applicable Specific Partner Addendum; (ii) who you may provide managed services to using Offerings acquired under an applicable Specific Partner Addendum; (iii) to whom we direct you to provide services pursuant to an applicable Specific Partner Addendum; or (iv) as otherwise provided in a Specific Partner Addendum.

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 Offering, as may be updated by Splunk from time to time.

Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by you (whether in oral, electronic or written form) to us regarding our products and services or other Confidential Information shared by us. Feedback does not include any data, results or output created or generated by you using our Offerings or Confidential Information, unless you specifically submit or communicate such information to us as part of the Feedback.

Intellectual Property Rights” means all patent rights (including, without limitation, patent applications and disclosures), copyrights (including, without limitation, rights in audiovisual works and moral rights), trade secrets, trademarks, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.

Offerings” means the product and service offerings we make generally available to our customers, including without limitation Splunk’s on-premise product offerings, hosted service offerings, support services, education and training services, and professional services.

Partner Portal” means Splunk’s web-based application that allows you to obtain direct access to marketing resources, technical details, training resources, and support forums relating to Offerings, and information regarding the Splunk Partner Program including the Program Guide. The Partner Portal is accessed through www.splunk.com and requires the use of secure log-on credentials assigned to you.

Program Guide” means the terms and conditions and description of obligations and benefits applicable to partners in the Splunk Partner Program located at http://www.splunk.com/en_us/partners/become-a-partner.html, and including but not limited to training criteria, operational procedures, rules of engagement, program compliance and other program requirements found in the Partner Portal, as updated from time to time, which are all incorporated herein by reference.

Specific Partner” means a partner who has completed the requisite criteria as set forth in the Program Guide and has executed one or more Specific Partner Addenda, as applicable, under which they are authorized to resell or service our Offerings, use our Offerings to provide services to Splunk customers, build extensions into our Offerings and create independent products which interoperate with our Offerings, or otherwise hold themselves out as a certain Splunk badged partner under the Splunk Partner Program. The Splunk Partner Program requirements and benefits for each Specific Partner type are provided in the Partner Portal and Program Guide.

Specific Partner Addendum” means an addendum to these Partner General Terms which sets forth the additional terms, conditions, and obligations governing your participation as a Specific Partner in our Splunk Partner Program.

Splunk Marks” means Splunk’s trademarks, trade names, service marks, logos, and service names associated with Splunk, its Offerings and programs, and certain authorized use cases which may be specified in the Program Guide and/or Partner Portal.

Splunk Partner Code of Conduct” means the code of conduct policy document for Splunk partners located at http://www.splunk.com/en_us/legal/partners/code-of-conduct.html, as updated from time to time, which is incorporated herein by reference.

Splunk Partner Program” means the resources, benefits and programs made available to Splunk partners as set forth in the Partner Portal and Program Guide, including those associated with Specific Partner types, Tiers, Territories or other differentiations.

Territory” means the geographical location where you may conduct activities under these Partner General Terms, as more fully described in the Program Guide or in a Specific Partner Addendum. For the avoidance of doubt, if your principal place of business is located within the European Economic Area (EEA), your Territory is the EEA, and you may conduct the activities contemplated by these Partner General Terms throughout the EEA regardless of any defined Territory for Splunk Partner Program purposes.

Tier” means one of Splunk’s partner classifications applicable to the Splunk Partner Program, as described in the Program Guide.