THIS SPLUNK CLOUD PLATFORM PRE-RELEASE SERVICE TERMS (THE "AGREEMENT") GOVERNS YOUR USE OF THE PRE-RELEASE TECHNOLOGY (DEFINED BELOW) PROVIDED BY SPLUNK INC., AND/OR ITS AFFILIATES ("SPLUNK”). YOU WILL BE REQUIRED TO INDICATE YOUR AGREEMENT TO THIS AGREEMENT IN ORDER TO ACCESS, DOWNLOAD, OR COMPLETE THE INSTALLATION PROCESS FOR THE PRE-RELEASE TECHNOLOGY. BY CLICKING ON THE "YES" OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THIS AGREEMENT), OR BY ACCESSING, DOWNLOADING, OR INSTALLING THE PRE-RELEASE TECHNOLOGY, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. YOU ALSO REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD.
IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND YOUR BUSINESS, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE USE THE PRE-RELEASE TECHNOLOGY AND CANCEL THE LOADING OF THE PRE-RELEASE TECHNOLOGY.
“Data” means your own data and information uploaded, submitted, or transmitted by you or on your behalf to Splunk in connection with your use of the to the Pre-Release Technology (other than Feedback) and the specific file or output generated from the Pre-Release Technology, if any, based upon your own data and information.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by you (whether in oral, electronic or written form) to Splunk in connection with your use of the Pre-Release Technology or about Splunk. Feedback does not include Data, unless submitted or communicated by you to Splunk as part of Feedback.
“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal testing and evaluation of the Pre-Release Technology in order to provide Feedback to Splunk regarding the Pre-Release Technology. Such use does not include use of your systems, networks or devices as part of services you provide for a third party's benefit.
“Pre-Release Technology” means the pre-release version (whether labeled as alpha, beta, pre-release, preview or otherwise) of (a) the Splunk Cloud Platform Services, (b) associated applications published by Splunk that are interoperable with the Splunk Cloud Platform Services, (c) Splunk Developer Cloud Resources, and (d) other documentation, information, data (including sample data sets), technology and materials related to the Splunk Cloud Platform Services, as made available to you by Splunk under this Agreement. Pre-Release Technology includes any enhancements, updates, upgrades, derivatives or bug fixes to the foregoing during the term of this Agreement.
“Splunk Cloud Platform Services” means any of the services provided by Splunk through its new cloud platform (“Splunk Cloud Platform”), including, but not limited to, the ingestion, storage, searching and analyzing machine data, and including the associated application programming interfaces (“APIs”) and other Splunk software that is made available to use in connection with the Splunk Cloud Platform (such as Splunk data forwarders).
“Splunk Developer Cloud Resources” means developer resources and materials made available by Splunk under this Agreement to facilitate use of, and the building of applications made for use with, the Splunk Cloud Platform, including, but not limited to, demo or example applications, libraries or other software packages, templates, tutorials, APIs (including API keys, tokens, code, and related materials), tools and code snippets, tutorials, and architecture materials, command line interface suites, software development kits, and related documentation.
LICENSES AND PROPRIETARY RIGHTS
2.1 Pre-Release Technology License. Subject to your compliance with the terms and conditions of this Agreement and for the term of this Agreement, Splunk grants you a non-exclusive, non-sublicensable, nontransferable, revocable, limited license during the term of the Agreement to access and use the Pre-Release Technology, only in connection with and solely for Internal Purposes and in accordance with applicable documentation.
2.2 License Restrictions. The grant of rights to you in Section 2.1 is subject to the following restrictions and limitations. Except as expressly authorized in this Agreement or by Splunk, you will not, and will not permit any third party to: (i) access or use the Pre-Release Technology for any other purposes than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Pre-Release Technology (except as required to use the Pre-Release Technology in accordance with this Agreement and for reasonable backup purposes); (iii) modify, translate, adapt, or create derivative works of the Pre-Release Technology; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the Pre-Release Technology to any third party; (v) use or offer any functionality of the Pre-Release Technology on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) decompile, disassemble or reverse-engineer the Pre-Release Technology or otherwise attempt to derive the Pre-Release Technology source code, algorithms, methods or techniques used or embodied in the Pre-Release Technology; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Pre-Release Technology; (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Pre-Release Technology; (ix) upload to or store in the Pre-Release Technology, or use of the Pre-Release Technology to send, any computer instruction, routine, design, code or script that is designed to improperly access, destroy, or corrupt electronic data or disrupt or disable the operation of computer software; or (x) use the Pre-Release Technology other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
2.3 Splunk Ownership. As between you and Splunk, Splunk owns and reserves all right, title, and interest in and to the Pre-Release Technology, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth herein. Splunk, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Pre-Release Technology and Splunk Confidential Information, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, Splunk does not grant you any intellectual property rights in the Pre-Release Technology or Confidential Information, and all right, title, and interest in and to all copies of the Pre-Release Technology and Confidential Information not expressly granted remain with Splunk, its suppliers and/or its licensors. The Pre-Release Technology is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the Pre-Release Technology is licensed and not sold.
2.4 Feedback Splunk, in its sole discretion, may or may not respond to your Feedback or promise to address all your Feedback in the development of future features or functionalities of the Pre-Release Technology or any related or subsequent versions of such Pre-Release Technology. In the event Splunk uses your Feedback, you grant Splunk an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Feedback as part of or in connection with any Splunk product, service, technology, content, material, specification or documentation. You warrant that the Feedback does not infringe any copyright or trade secret of any third party, and that you have no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by you). You further warrant that your Feedback is not subject to any license terms that would purport to require Splunk to comply with any additional obligations with respect to any Splunk product or service that incorporates your Feedback.
USE OF PRE-RELEASE TECHNOLOGY
3.1 Access and Use. You agree to provide accurate and complete information when you register for and use the Pre-Release Technology and you agree to update all required information promptly. Each person who uses any Pre-Release Technology must have a separate username and password. You must provide a valid email address for each person that you authorize to use your account, and you may only create one account per email address. You must provide any other information reasonably requested by Splunk. You are responsible for securing, protecting and maintaining the confidentiality of your account(s) username credentials, including passwords, access tokens, access codes and API keys (“Credentials”). Neither you nor your authorized users will share your Credentials. You are responsible for any access and use of the Pre-Release Technology via your account(s) and for all activity that occurs in connection with your account(s), regardless of whether the activities were undertaken by you, an authorized user, or a third party. Splunk will not be liable for any loss or damage arising directly or indirectly from your failure to maintain the security of your Credentials, or for unauthorized access to your account(s). You agree to notify Splunk immediately if you believe that an unauthorized third party may be using your account(s) or if your account information is lost or stolen.
3.3 Data You hereby grant Splunk a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the Pre-Release Technology. Splunk (or its sublicensees) may exercise such license for purposes of providing, maintaining, repairing, administering and improving the Pre-Release Technology or in developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. You represent, warrant and agree that the Data and other materials you provide or make available to Splunk (i) you own or have the necessary rights, licenses and authorization to distribute the Data to Splunk under this Agreement and (ii) you will include only information relevant to the Pre-Release Technology and the use thereof and will not include any confidential information, including personally identifiable information, financial data, or any protected health data. You acknowledge and agree that you are solely responsible for all Data you upload or submit using the Pre-Release Technology and for your conduct while using the Pre-Release Technology. You acknowledge and agree that: (a) you will evaluate and bear all risks associated with the use of any Data; (b) you are responsible for protecting and backing up the Data; (c) you are responsible for protecting the confidentiality of any Data and Splunk will have no obligation to keep any Data confidential; and (d) under no circumstances will Splunk be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages of any kind incurred as a result of your use, deletion, disclosure, modification, or correction of any Data. Splunk has no responsibility to store, protect, remove or delete any Data for you and shall have no liability for the deletion of or failure to store any Data.
3.4 Acceptable Use. By accessing or using the Pre-Release Technology, you agree to the Splunk Acceptable Use Policy at http://www.splunk.com/view/SP-CAAAMB6 and acknowledge that any violation of the Policy may subject you to suspension or termination of your use of the Pre-Release Technology.
CONFIDENTIALITY You agree to hold the Pre-Release Technology (including all intellectual property rights therein, such as any patents, inventions, copyrights, design rights, trade secrets and know-how) and any related information (“Confidential Information”), whether in oral or written form, confidential. Confidential Information may include information relating to features, functionalities, improvements, code, pricing, business strategies, product roadmaps, development plans, marketing materials, data sets, customer lists or other proprietary third-party information. You will hold such Confidential Information in strict confidence and not use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this Agreement. You may disclose Confidential Information to your employees, but only to the extent they have a need to know to test the Pre-Release Technology and you have advised them that such information is Confidential Information. You agree to instruct any such employees in advance who will have access to the Pre-Release Technology that they must comply with the restrictions set forth in this Agreement. You shall have no obligation to maintain the confidentiality of any information which: (a) is or becomes publicly available without breach of this Agreement; (b) is rightfully received by you from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is developed independently by you without access to or use of the Confidential Information; or (d) has been approved for release by written authorization of the party that owns the Confidential Information. You will notify Splunk immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by you or your personnel and will cooperate with Splunk in every reasonable way to help Splunk regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. You acknowledge that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information will cause Splunk irreparable injury for which there are inadequate remedies at law, and therefore, Splunk will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
WARRANTY DISCLAIMER. THE PRE-RELEASE TECHNOLOGY AND SPLUNK CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS”. SPLUNK DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. SPLUNK SPECIFICALLY DOES NOT WARRANT THAT THE PRE-RELEASE TECHNOLOGY WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE PRE-RELEASE TECHNOLOGY WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. Splunk is not obligated to support, update or upgrade the Pre-Release Technology.
NO RELIANCE. Splunk has no obligations about any forward-looking statements made in connection with or in the course of providing the Pre-Release Technology. Forward-looking statements are statements regarding future Splunk events, product offerings, product performance, customer uses or the expected financial performance of Splunk. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially. Splunk does not assume any obligation to update any forward-looking statements made during the Pre-Release Technology project. In addition, any information about our roadmap outlines or our general product direction is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Splunk undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any such feature or functionality in a future release, including those you are reviewing as a part of this Pre-Release Technology. You expressly acknowledge that the Pre-Release Technology has not been fully tested and may contain defects or deficiencies which may not be corrected by Splunk, that the Pre-Release Technology may undergo significant changes prior to release of the corresponding generally available final version.
LIMITATION OF LIABILITY. IN NO EVENT WILL SPLUNK BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE PRE-RELEASE TECHNOLOGY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRE-RELEASE TECHNOLOGY, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SPLUNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, SPLUNK WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE PRE-RELEASE TECHNOLOGY FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE PRE-RELEASE TECHNOLOGY. SPLUNK'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TERM AND TERMINATION. This Agreement will be effective from the earlier of (a) the date it is accepted by you and (b) the date on which you first installed, downloaded or accessed the Pre-Release Technology and shall continue until terminated. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically upon the end of the Pre-Release Technology project as identified by Splunk or upon commercial release (if any) of the Pre-Release Technology, whichever is earlier. Unless otherwise agreed in writing by Splunk, upon termination, you will immediately cease all use of the Pre-Release Technology and all of your rights to access and use the Pre-Release Technology will terminate. Furthermore, upon termination you agree to destroy the Pre-Release Technology, or upon request by Splunk, return to Splunk the Pre-Release Technology and other Confidential Information that are in your possession or control. Upon Splunk’s request, you will certify in writing that you have returned or destroyed all copies of the Pre-Release Technology and Confidential Information. Following expiration or termination of your license to the Pre-Release Technology, Splunk will have no obligation to maintain or provide any of Data relating to such Pre-Release Technology, and you hereby authorize Splunk thereafter to delete all your Data relating to such Pre-Release Technology that is in its possession or under its control, unless Splunk is otherwise legally prohibited from doing so. Sections 1, 2.2, 2.3, 2.4, 3.2, 3.3 and Sections 4-14 will survive termination of this Agreement.
EXPORT You will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where you use any of the Pre-Release Technology or receive Confidential Information. You represent and warrant that you, or your authorized users, are not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further represent and warrant that you, and your authorized users, shall not (x) access or use the Pre-Release Technology or Confidential Information in any restricted country,(y) export, re-export, ship, transfer the Pre-Release Technology or Confidential Information to any restricted countries or restricted end users, or (z) use the Pre-Release Technology or the Confidential Information for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. You are prohibited from sending to the Pre-Release Technology any data or software that cannot be exported or imported without prior government authorization. You understand that the requirements and restrictions of the Export Laws may vary depending on the specific Pre-Release Technology and Confidential Information and may change over time, and that, to determine the precise controls applicable to the Pre-Release Technology and Confidential Information, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
GOVERNMENT END USER RIGHTS. You acknowledge that all Pre-Release Technology and Confidential Information were developed entirely at private expense and that no part of the Pre-Release Technology or Confidential Information was first produced in the performance of a Government contract. You agree that the Pre-Release Technology and any derivatives thereof are "commercial items" as defined in 48 C.F.R. § 2.101, and if you are a U.S. Government agency or instrumentality or if you are providing all or any part of the Pre-Release Technology or any derivatives thereof to the U.S. Government, 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 Pre-Release Technology is licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, you will have no rights in the Pre-Release Technology except as expressly agreed to in writing by you and Splunk.
CHOICE OF LAW AND DISPUTES. For other than the U.S. Government as a party, this Agreement shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law rules 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.
INDEPENDENT CONTRACTORS; THIRD-PARTY BENEFICIARIES. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third-party licensors of Splunk Pre-Release Technology are express third-party beneficiaries of the Agreement. There are no other third-party beneficiaries of this Agreement.
GENERAL. All notices required or permitted under this Agreement to be given by you to Splunk will be given 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 notices required or permitted under this Agreement to be given to you (i) will be given in the same manner you provide notices to Splunk or (ii) will be given in writing via electronic mail to the email address provided to Splunk during sign-up or otherwise on file with Splunk and associated with this Agreement and will be deemed given when sent. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. You acknowledge that Splunk may assign, subcontract or delegate any of its rights or obligations under this Agreement. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Pre-Release Technology and Confidential Information and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Pre-Release Technology and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement you may have with Splunk. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. 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. The terms and conditions stated herein are declared to be severable. 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.
Effective: September 11, 2018