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BY ACCEPTING THESE TERMS, SIGNING AN ORDER THAT REFERENCES THIS AGREEMENT OR BY USING THE INTELLIGENCE MANAGEMENT SERVICES (DEFINED BELOW), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR PURCHASE AND USE OF THE INTELLIGENCE MANAGEMENT SERVICES PROVIDED AND MAINTAINED BY SPLUNK (THE “INTELLIGENCE MANAGEMENT SERVICE(S)”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
The Terms of Use below apply to the provision and use of Splunk’s TruSTAR Services (the “Agreement”).
Splunk reserves the right to modify the terms and conditions of this Agreement or its policies relating to the TruSTAR Service at any time, effective upon posting of an updated version of this Agreement, the Exhibits or any of its linked terms on the TruSTAR Service or at https://www.trustar.co/terms-of-use. You are responsible for regularly reviewing this Agreement. Continued use of the TruSTAR Service after any such changes shall constitute your consent to such changes.
See the Definitions Exhibit attached for definitions of capitalized terms.
(A) Subscription and Service Levels.
Subject to your compliance with this Agreement, Splunk will make the Intelligence Management Services available to you during the Term, and will use commercially reasonable efforts to make the Intelligence Management Service available in accordance with Exhibit A.
(B) Connections.
You are responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use Intelligence Management Services, and for paying all associated charges.
(A) General Rights
You have the nonexclusive, worldwide, non-transferable and non sublicensable right, subject to payment of Fees (if applicable) and compliance with this Agreement, to access and use your Intelligence Management Services for your Internal Business Purposes during the Term and for the Capacity purchased.
(B) Forwarders
To the extent Forwarders are used with an Intelligence Management Service, you have the nonexclusive, worldwide, non transferable and non sublicensable right to install and use Forwarders to forward Customer Content into the Intelligence Management Service. The terms of this paragraph and this Agreement supersede and replace any click-through agreement that Customer may be required to accept prior to accessing Forwarders.
(i) Trials and Evaluations. You may use Intelligence Management Services provided for trials and evaluations at no charge, for any specified limited duration. We do not provide warranties, support and maintenance, service level commitments, or indemnification for trial or evaluation of Intelligence Management Services.
If support and maintenance is included as part of your purchase in accordance with an applicable Order, during the License Term Splunk will provide standard support for the Intelligence Management Service in accordance with Intelligence Management Service data sheet available at https://www.splunk.com/pdfs/data-sheets/TruSTAR-support-data-sheet_updated.pdf (“Support Terms”). Splunk will have no obligation of any kind to provide support for any issues relating to the operation or performance of the Intelligence Management Service to the extent caused by any of the following: (i) third-party products not expressly supported by Splunk and described in connection with use of the documentation; or (ii) use of the Service other than as authorized in this Agreement.
If you purchase Intelligence Management Services through a Splunk authorized reseller, this Agreement will govern those Intelligence Management Services. Your payment obligations for Intelligence Management Services will be with the authorized reseller, not Splunk. You will have no direct Fee payment obligations to Splunk for those Intelligence Management Services.
Any terms agreed to between you and the authorized reseller that are in addition to this Agreement are solely between you and the authorized reseller. No agreement between you and an authorized reseller is binding on Splunk or will have any force or effect with respect to the rights in, or the operation, use or provision of the Intelligence Management Services.
You may permit your authorized consultants, contractors, and agents (“Third-Party Providers”) to access and use your Intelligence Management Services, but only on your behalf in connection with providing services to you, and subject to the terms and conditions of this Agreement. Any access or use by a Third-Party Provider will be subject to the same limitations and restrictions that apply to you under this Agreement, and you will be responsible for any Third-Party Provider’s actions relating to or use of the Intelligence Management Services. The aggregate use by you and all of your Third-Party Providers must not exceed the Capacity purchased, and nothing in this Section is intended to or will be deemed to increase such Capacity.
Except as expressly permitted in an Order or our Documentation, you agree not to (nor allow any third party to): (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code or underlying structures, ideas or algorithms of any Intelligence Management Service or Forwarders; (b) copy, modify, translate or create derivative works based on the Intelligence Management Service or Forwarders; (c) use a Intelligence Management Service or Forwarder for service bureau purposes, or for any purpose other than your own Internal Business Purposes; (d) resell, transfer or distribute any Intelligence Management Service or Forwarders; (e) access or use any Intelligence Management Service or Forwarder in order to monitor its availability, performance, or functionality for competitive purposes; or (f) use any Intelligence Management Service or Forwarder in violation of all applicable laws and regulations including but not limited to any applicable privacy and intellectual property laws.
(A) Ethics and Corporate Responsibility. Splunk is committed to acting ethically and in compliance with applicable law, and we have policies and guidelines in place designed 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 strive to perform in accordance with the highest global ethical principles, as described in the Splunk Code of Conduct and Ethics found here: https://investors.splunk.com/code-business-conduct-and-ethics-1.
(B) Anti-Corruption. We use diligent efforts to implement and maintain programs to ensure compliance with applicable anti-corruption and anti-bribery laws. Splunk policy prohibits the offering or soliciting of any illegal or improper bribe, kickback, payment, gift, or thing of value to or from any of your employees or agents in connection with this Agreement. If we learn of any violation of the above, we will use reasonable efforts to promptly notify you at the main contact address provided by you to Splunk.
(C) Export. We certify that Splunk 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.
Splunk follows globally recognized data protection principles and industry standards for the security of personal data. Splunk’s data protection practices are set forth in our “Splunk Protects” resources: https://www.splunk.com/en_us/about-splunk/splunk-data-security-and-privacy.html
Splunk will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Content; (ii) protect against threats or hazards to the security or integrity of Customer Content; and (iii) prevent unauthorized access to Customer Content. As part of this program, Splunk will maintain the administrative, physical and technical safeguards to protect the security of Customer Content that are described in the applicable Documentation, including those described in the Splunk Cloud Service Description at https://www.splunk.com/en_us/legal/splunk-cloud-security-addendum.html with the following modifications:
(A) Risk Management. The phrase “Risk Assessment Method” in Section 3.1 of the CSA shall be replaced with “standard risk assessment procedures”.
(B) Change Management. The phrase “as set forth in the Splunk Cloud Platform Service Maintenance Policy” in Section 4.1 of the CSA shall not apply.
(C) CSA Proof of Compliance. The antepenultimate sentence in Section 19.1 of the CSA shall be replaced with the following: “At a minimum, the audit covers the Security and Confidentiality control criteria developed by the American Institute of Certified Public Accountants (AICPA)”. Section 19.2 shall not apply.
(A)General Security.
Splunk’s information security management system (“ISMS”) is designed to protect the confidentiality, integrity and availability of customer data. Splunk employees receive regular training on Splunk’s security policies and procedures, including annual training on secure data handling practices, and supplemental, targeted training as appropriate. Employees are background checked and Splunk vendors are risk assessed prior to onboarding to determine if their data protection and security practices meet Splunk’s standards.
(B)Security of Customer Content.
Intelligence Management Services meet industry-standard cloud security measures appropriate to the nature of service provided. During the Term of the Agreement, we will use commercially reasonable physical, technical and procedural measures to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Splunk.
(C)Maintaining Protections.
Not withstanding anything to contrary in this Agreement, or any policy or terms referenced herein via hyperlink (or any update thereto), Splunk may not, during a Term, materially diminish the security protections provided by the controls set for Intelligence Management Services.
(D) Your Responsibility for Data Protection.
You are responsible for: (i) utilizing the tools made available by Splunk to anonymize or de-identify any data provided to Splunk in connection with a Intelligence Management Service; (ii) taking additional measures outside of the Intelligence Management Service to the extent the Intelligence Management Service does not provide the controls that may be required or desired by you; and (iii) routine archiving and backing up of Customer Content. You agree to notify Splunk immediately if you believe that an unauthorized third party may be using your accounts or if your account information is lost or stolen.
From time to time, Splunk may collect Usage Data generated as a by-product of your use of Offerings (e.g., technical information about your operating environment and sessions, systems architecture, page loads and views, product versions, number and type of searches, number of users, source type and format). Usage Data does not include Customer Content. We collect Usage Data for a variety of reasons, such as to identify, understand, and anticipate performance issues and the factors that affect them, to provide updates and personalized experiences to customers, and to improve the Splunk Offerings. Details on Splunk’s Usage Data collection practices are set forth in Splunk's Privacy Policy found here: https://www.splunk.com/en_us/legal/privacy/privacy-policy.html. If you have had CommunityPlus services, Splunk may share Usage Data with your authorized users.
The Intelligence Management Service availability will be made available as stated in Exhibit A and/or as stated in each Order.
Third-Party Content. Intelligence Management Services may contain features or functions that enable interoperation with Third-Party Content that you, in your sole discretion, choose to add to an Intelligence Management Service. You may be required to obtain access separately to such Third-Party Content from the respective providers, and you may be required to grant Splunk access to your accounts with such providers to the extent necessary for Splunk to allow the interoperation with the Intelligence Management Service. By requesting or allowing Splunk to enable access to such Third-Party Content in connection with the Intelligence Management Services, you certify that you are authorized under the provider’s terms to allow such access. If you install or enable (or direct or otherwise authorize Splunk to install or enable) Third-Party Content for use with a Intelligence Management Service where the interoperation includes access by the third-party provider to your Customer Content, you hereby authorize Splunk to allow the provider of such Third-Party Content to access Customer Content as necessary for the interoperation. You agree that Splunk is not responsible or liable for disclosure, modification or deletion of Customer Content resulting from access to Customer Content by such Third-Party Content, nor is Splunk liable for any damages or downtime that you may incur or any impact on your experience of the Intelligence Management Service, directly or indirectly, as a result of your use of, and/or reliance upon, any Third-Party Content, sites or resources.
(A) Lawful Use of TruSTAR Services. When you access and use an Intelligence Management Service, you are responsible for complying with all laws, rules, and regulations applicable to your access and use. This includes being responsible for your Customer Content, for your users’ compliance with this Agreement, and the accuracy of, lawful use of, and the means by which you acquired your Customer Content. You may not transmit and/or store any data to an Intelligence Management Service where such transmission or storage is unlawful.
(B) Your responsibilities. You acknowledge, represent and agree that you accept sole and complete responsibility for: (a) the selections and use of the Intelligence Management Services to achieve your intended results; (b) use of the Intelligence Management Services, or the results obtained from the Intelligence Management Services, including, without limitation, the data and any reports or alerts provided by Splunk; (c) whether to use the tools made available to you to anonymize any data you provide to Splunk hereunder; (d) any decisions regarding reliance on/use of data, results or other information obtained from or provided by the Intelligence Management Services; and (e) the terms of any contracts between you, any users you authorize and third parties.
(C) Regulated Data. Without otherwise limiting your obligation to comply with laws in connection with your use of Intelligence Management Services, you may not transmit and/or store PHI Data, PCI Data or ITAR Data within the Intelligence Management Services.
(D) Registration. You agree to provide accurate and complete information when you register for and use any Intelligence Management Service and agree to keep this information current. Each person who uses any Intelligence Management Service must have a separate username and password. You must provide a valid email address for each person authorized to use your Intelligence Management Services, and you may only have one person per username and password. Splunk may reasonably require additional information in connection with certain Intelligence Management Services (e.g. technical information necessary for your connection to an Intelligence Management Service), and you will provide this information as reasonably requested by Splunk. You are responsible for securing, protecting, and maintaining the confidentiality of your account usernames, passwords, and access tokens.
(E) Export Compliance. You will comply with all applicable export laws and regulations of the United States and any other country (“Export Laws”) where your users use any of the Intelligence Management Services. You certify that you are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You will not export, re-export, ship, transfer or otherwise use the Intelligence Management Services in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, the Crimea Region of Ukraine, Sudan, and North Korea, and you will not use any Intelligence Management Service for any purpose prohibited by the Export Laws.
(F) Acceptable Use. Without limiting any terms under this Agreement, you will also abide by our Intelligence Management Services acceptable use policy: https://www.splunk.com/view/SP-CAAAMB6.
(A) 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 this Agreement, 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 this Agreement and who are subject to confidentiality obligations no less stringent than those herein.
(B) 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. If the Receiving Party is compelled to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
The payment terms below only apply when you purchase Intelligence Management Services directly from Splunk. When you purchase from an authorized reseller, the payment terms are between you and the authorized reseller.
(A) Fees. You agree to pay all Fees specified in the Orders. Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in this Agreement. Without limiting any of our other rights or remedies herein, overdue charges may accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Fees are due and payable either within 30 days from the date of Splunk’s invoice or as otherwise stated in the Order.
(B) Credit Cards. If we agree you can pay by credit or debit card, you: (i) will provide Splunk or its designated third-party payment processor with valid credit or debit card information; and (i) hereby authorize Splunk or its designated third-party payment processor to charge such credit or debit card for all items listed in the applicable Order. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order. You are responsible for providing complete and accurate billing and contact information and notifying Splunk in a timely manner of any changes to such information.
(C) Taxes. All Fees quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. You are responsible for paying any taxes or similar government assessments (including, without limitation, value-added, sales, use or withholding taxes). We will be solely responsible for taxes assessable against us based on our net income, property, and employees.
(A) Relationship to Applicable Law. We will not seek to limit our liability, or any of your warranties, rights, and remedies, to the extent the limits are not permitted by applicable law (e.g., warranties, remedies or liabilities that cannot be excluded by applicable law).
(B) General Corporate Warranty. Splunk warrants that it has the legal power and authority to enter into this Agreement.
(C) intelligence Management Services Warranty. Splunk warrants that during the applicable Term: (i) Splunk will not materially decrease the overall functionality of the Intelligence Management Services; and (ii) the Intelligence Management Services will perform materially in accordance with the applicable Documentation. Our sole and exclusive liability, and your sole and exclusive remedy for any breach of these warranties, will be your right to terminate the applicable Intelligence Management Services, and we will refund to you any prepaid but unused Fees for the remainder of the Term.
(D) Disclaimer of Implied Warranties. Except as expressly set forth above, the Intelligence Management Services are provided “as is” with no warranties or representations whatsoever, express or implied. Splunk and its suppliers and licensors disclaim all warranties and representations, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, noninfringement, or quiet enjoyment, and any warranties arising out of course of dealing or trade usage. Splunk does not warrant that use of Intelligence Management Services will be uninterrupted, error free or secure, or that all defects will be corrected.
(A) intelligence Management Services. As between you and Splunk, Splunk owns and reserves all right, title, and interest in and to the Intelligence Management Services, related tools and other Splunk materials, including all intellectual property rights therein. We retain rights in anything delivered or developed by us or on our behalf under this Agreement. No rights are granted to you other than as expressly set forth in this Agreement.
(B) Customer Content. You own and reserve all right, title and interest in your Customer Content. By sending Customer Content to the Intelligence Management Service, you grant us a worldwide, royalty free, non-exclusive license to access and use the Customer Content for purposes of providing you the Intelligence Management Service. Splunk has no responsibility or liability for any Customer Content.
(C) Feedback.You have no obligation to provide us with ideas for improvement, suggestions or other feedback (collectively, “Feedback”) in connection with the Intelligence Management Service, unless otherwise expressly set forth in the applicable Order. If, however, you provide any Feedback, you hereby grant to Splunk a non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.
(A) Term and Renewal. This Agreement will commence upon the Effective Date and will remain in effect until the expiration of the Intelligence Management Services acquired hereunder, unless earlier terminated pursuant to this Section. Termination of this Agreement will have the effect of terminating all Orders entered into hereunder. Unless indicated otherwise in an Order, the Term of a Intelligence Management Service (and this Agreement) for paid subscriptions will automatically renew for an additional period of time equal to the length of the preceding Term, unless one party notifies the other of its intent not to renew at least one (1) day in advance of the expiration of the Term or then-current renewal period.
(B) Termination.Either party may terminate this Agreement, or the Intelligence Management Service, by written notice to the other party in the event of a material breach of this Agreement that is not cured within thirty (30) days of receipt of the notice. Upon any expiration or termination of the Intelligence Management Service, the rights and licenses granted to you for the Intelligence Management Service will automatically terminate, and you agree to immediately (i) cease using and accessing the Intelligence Management Service, (ii) return or destroy all copies of any Splunk materials and Splunk Confidential Information in your possession or control and, (iii) upon our request, certify in writing the completion of such return or destruction. Unless otherwise noted in this Agreement or an applicable Order, upon termination of an Intelligence Management Service, Splunk will have no obligation to refund any Fees or other amounts received from you during the Term. Notwithstanding any early termination above, except for your termination of our uncured material breach, you will still be required to pay all Fees payable under an Order.
(C) Refund Upon Termination for Splunk’s Breach.If an Intelligence Management Service is terminated by you for Splunk’s uncured material breach in accordance with this Agreement, Splunk will refund you any prepaid subscription fees covering the remainder of the Term after the effective date of termination.
(D) Return of Customer Content. If you require assistance in connection with migration of your Customer Content, depending on the nature of the request, we may require a mutually agreed upon fee for assistance.
(E) Survival. The termination or expiration of this Agreement will not affect any provisions herein which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, ownership of intellectual property, confidentiality, payment obligations, effect of termination, limitation of liability, privacy, and the “Miscellaneous” section in this Agreement.
(F) Suspension of Service. In the event of a material breach or threatened material breach of this Agreement, Splunk may, without limiting its other rights and remedies, suspend your use of the Intelligence Management Service until such breach is cured or Splunk reasonably believes there is no longer a threat, provided that we will give you at least five (5) days’ prior notice before suspension. Suspension of an Intelligence Management Service will have no impact on the duration of the Term of the Intelligence Management Service or the associated Fees owed.
In no event will the aggregate liability of either party, together with any of its Affiliates, arising out of or related to a Intelligence Management Service exceed the total amount paid by you for that Intelligence Management Service in the twelve (12) months preceding the first incident out of which the liability arose. For the avoidance of doubt, the foregoing limitation will not limit your obligations under the “Payment” section above. Furthermore, the cap above will not be deemed to limit Splunk’s right to recover amounts for your use of an Intelligence Management Service in excess of the Capacity purchased or use outside of Internal Business Purposes.
In no event will either party or its Affiliates have any liability arising out of or related to this Agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages.
The foregoing limitations will apply whether the action is in contract or tort and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party’s or its Affiliates’ remedy otherwise fails of its essential purpose.
The limitation of liability herein will not apply to a party’s infringement of the other party’s intellectual property rights, indemnification obligations, or the fraud, gross negligence or willful misconduct of a party.
The foregoing disclaimers of damages will also not apply to the extent prohibited by law. Some jurisdictions do not allow the exclusion or limitation of certain damages. To the extent such a law applies to you, some or all of the exclusions or limitations set forth above may not apply to you, and you may have additional rights.
(A) Our Indemnification to You. Splunk will defend and indemnify you, and pay all damages (including attorneys’ fees and costs) awarded against you, or that are agreed to in a settlement, to the extent a claim, demand, suit or proceeding is made or brought against you or your Affiliates by a third party (including those brought by the government) alleging that a Intelligence Management Service infringes or misappropriates such third party’s patent, copyright, trademark or trade secret (a “Customer Claim”). Splunk will have no obligation under the foregoing provision to the extent a Customer Claim arises from your breach of this Agreement, your Customer Content or the combination of the Intelligence Management Service with: (i) Customer Content; (ii) any software other than software provided by Splunk; or (iii) any hardware or equipment. However, Splunk will indemnify against combination claims to the extent (y) the combined software is necessary for the normal operation of the Intelligence Management Service (e.g., an operating system), or (z) the Intelligence Management Service provides substantially all the essential elements of the asserted infringement or misappropriation claim. Splunk may in its sole discretion and at no cost to you: (1) modify a Intelligence Management Service so that it no longer infringes or misappropriates a third party right, (2) obtain a license for your continued use of the Intelligence Management Service, in accordance with this Agreement, or (3) terminate the Intelligence Management Service and refund to you any prepaid fees covering the unexpired Term.
(B) Your Indemnification to Us. Unless expressly prohibited by applicable law, you will defend and indemnify us, and pay all damages (including attorneys’ fees and costs) awarded against Splunk, or that are agreed to in a settlement, to the extent a claim, demand, suit or proceeding is made or brought against Splunk or its Affiliates by a third party (including those brought by a government entity) that: (i) alleges that your Customer Content infringes or misappropriates such third party’s patent, copyright, trademark or trade secret, or violates another right of a third party; or (ii) alleges that your Customer Content or your use of a Intelligence Management Service violates applicable law or regulation.
(C) Mutual Indemnity. Each party will defend (or settle), indemnify and hold harmless at its expense, any action brought against the other party by a third party to the extent that it is based upon a claim for bodily injury, personal injury (including death) to any person, or damage to tangible property resulting from the negligent acts or willful misconduct of the indemnifying party or its personnel hereunder, and will pay any reasonable, direct, out-of-pocket costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against the indemnified party (or are payable in settlement by the indemnified party).
(D) Process for Indemnification. The indemnification obligations above are subject to the party seeking indemnification to: (i) provide the other party with prompt written notice of the specific claim; (ii) give the indemnifying party sole control of the defense and settlement of the claim (except that the indemnifying party may not settle any claim that requires any action or forbearance on the indemnified party’s part without their prior consent, which will not unreasonably withhold or delay); and (iii) gives the indemnifying party all reasonable assistance, at such party’s expense.
Our Intelligence Management Services and policies may be updated over the course of our relationship. From time to time, Splunk may update or modify a Intelligence Management Service and our policies, provided that: (a) the change and modification applies to all customers generally, and are not targeted to any particular customer; (b) no such change or modification will impose additional fees on you during the applicable Term or additional restrictions on your use of the Intelligence Management Services, or alter our liability or the allocation of risk between us under this Agreement; (c) no such change or modification will materially reduce the security protections or overall functionality of the applicable Intelligence Management Service; and (d) any such change or modification will apply only prospectively, and will not apply to any breach or dispute that arose between the parties prior to the effective date of the change or modification.
This Agreement will be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to personal jurisdiction and venue therein. Splunk may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights of Splunk, its Affiliates, or any third party.
Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods will apply to this Agreement.
You agree that we may add your name to our customer list and identify you as a Splunk customer on Splunk’s websites. Any further public use of your name in connection with Splunk marketing activities (e.g., press releases) will require your prior approval.
(A) Different Terms. Splunk expressly rejects terms or conditions in any Customer purchase order or other similar document that are different from or additional to the terms and conditions set forth in this Agreement. 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.
(B) No Future Functionality. You agree that your purchase of an Intelligence Management Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Splunk regarding future functionality or features.
(C) Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be sent in writing 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, and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant system administrator designated by Customer.
(D) Assignment. Neither party may assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise without the prior written consent of the other party, however 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. 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.
(E) 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 this 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.
(F) Integration; Entire Agreement. This Agreement 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 this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
(H) Force Majeure. Neither party or its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will (except for the obligation to make any payments) be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond their reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockades, embargoes, riots, acts or orders of government, acts of terrorism, or war.
(I) Independent Contractors; No 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. There are no third-party beneficiaries of this Agreement. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise.
“Affiliates” 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).
“Capacity” means the measurement of usage and availability of a TruSTAR Service (e.g. API calls per day) that is purchased, as set forth in each applicable Order.
“CCPA” means the California Consumer Privacy Act of 2018.
“CommunityPlus” means the intelligence management technology feature of the TruSTAR Service that Splunk makes generally available to Intelligence Sharing Communities.
“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.
“Customer Content” means any data that is uploaded by or on behalf of you into a TruSTAR Service from your internal data sources that is restricted to a Private Enclave.
“Delivery” means the date Splunk makes the TruSTAR Service available to you for access and use.
“Documentation” means the online user guides, documentation and help and training materials published on Splunk’s website (such as at https://support.TruSTAR.co ) or accessible through the TruSTAR Service, as may be updated by Splunk from time to time.
“Effective Date” means the date that you access and use the TruSTAR Service from time to time.
“Enhancements” means any updates, upgrades, releases, fixes, enhancements or modifications to any part of the TruSTAR Service made generally commercially available by Splunk to its customers from time to time or under the Support Terms..
“Fees” means the fees that are applicable to a TruSTAR Service, as identified in the Order.
“Forwarder” means the Splunk software application that collects data from remote end points for use as specified in the Documentation.
“Intelligence Sharing Communities” means the approved non-profit organizations that collect, analyze, and share threat data and information to their members for the purposes of mitigating security related threats and risks.
“Internal Business Purpose” means your use of a TruSTAR Service for your own internal business operations, based on the analysis, monitoring or processing of your data from your systems, networks and devices. Such use does not include use on a service bureau basis or otherwise to provide services to, or process data for, any third party, or otherwise use to monitor or service the systems, networks and devices of third parties.
“ITAR Data” means information subject to the Arms Export Control Act (22 U.S.C. § 2778 et seq.), as amended, the International Traffic in Arms Regulations (22 C.F.R. Parts 120-130) (ITAR), the Export Administration Act (50 U.S.C. App. §§ 2401 et seq.), as amended, the Export Control Reform Act of 2018 (Pub. L. 115-232), and the Export Administration Regulations (15 C.F.R. 730-774) (EAR).
“Orders” means Splunk’s quote or ordering document (including online order forms and including statements of work for configuration and implementation services) accepted by you via your purchase order or other ordering document submitted to Splunk (directly or indirectly through an authorized reseller) to order TruSTAR Services, which references the TruSTAR Service, Capacity, pricing and other applicable terms set forth in an applicable Splunk quote or ordering document. Orders do not include the terms of any pre printed terms on your purchase order or other terms on a purchase order that are additional to or inconsistent with this Agreement.
“PCI Data” means credit card information within the scope of the Payment Card Industry Data Security Standard.
“PHI” means any protected health data, as defined under HIPAA.
“Private Enclave” means a restricted channel for Customer Content accessible only by authorized users of that enclave as administered by You. For clarity, data or information that is uploaded to the TruSTAR Service and restricted to a Private Enclave will not be accessible to any other authorized users at any time except those specifically designated and administered by You.
“Service Level Agreement” means a Splunk policy that applies to the availability and uptime of a TruSTAR Service and which, if applicable, offers service credits as set forth in Exhibit A.
“Term” means the duration of your subscription to the applicable TruSTAR Service that starts and ends on the date listed on the applicable Order. If no start date is specified in an Order or if there is no Order, the term will be one year from the first Delivery date.
“Intelligence Management Service” means the intelligence management technology service Splunk makes generally available that is hosted by or on behalf of Splunk and provided to you.
“Uptime” means 99.9% of the time on a 24x7 (twenty-four hours per day, seven days per week) basis during the Term.
“Usage Data” means data generated from the usage, configuration, deployment, access and performance of a TruSTAR Service. For example, this may include such things as information about your operating environment, such as your network and systems architecture, or sessions, such as page loads and session views, duration, or interactions, errors, number of searches, source types and format (e.g., json, xml, csv), ingest volume, number of active and licensed users, or search concurrency. Usage Data is not and does not include Customer Content.
This Service Level Agreement (SLA) Exhibit forms a part of the Terms and governs your purchase, and Splunk’s SLA for Intelligence Management Services.
Availability
Provider shall use commercially reasonable efforts to make the Services available for the Uptime. For every .05% deviation from the Uptime during a complete 24 hour period, Customer is eligible for 1 Service Credit.
a) For each redeemed Service Credit by Customer, Splunk will extend the contract period by a number of days equal to the total number of Service Credits redeemed.
b) Service Credits will automatically be posted to Customer’s account with Splunk
c) Maximum Service Credit.
The aggregate maximum number of Service Credits to be issued by Splunk to Customer for all issues that occur in a single calendar year shall not exceed thirty (30) days added to the end of the Term of the applicable Order for the Intelligence Management Services. Service Credits may not be exchanged for or converted to monetary amounts or transferred to another party.
Exclusions
Uptime will not apply due to the following: 1) Account suspension or termination due to Customer's breach of the Agreement; 2) Routine scheduled maintenance; 3) Unscheduled, emergency maintenance or an emergency caused by factors outside Splunk's reasonable control, including Force Majeures; 4) A Customer's equipment, software or other technology, or third-party equipment, software or technology (other than those which are under Splunk's control); 5) Failures resulting from software or technology for which Splunk is not responsible under the Agreement.
Service Credit Claims.
To receive a service credit, a Customer must file a claim for such credit within five (5) days following the end of the calendar quarter in which the Service Level Commitment was not met for an applicable Service, by contacting Splunk at splunk-cloud-billing@splunk.com with a complete description of the downtime, how the Customer was adversely affected, and for how long. Splunk reserves the right to deny the service credit if the Customer does not qualify.
The service credit remedy set forth in this Service Level Agreement is the Customer's sole and exclusive remedy for the unavailability of any applicable Intelligence Management Service.
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