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1552 lines
84 KiB
1552 lines
84 KiB
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SPLUNK GENERAL TERMS
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Last updated: February 13, 2020
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These Splunk General Terms ("General Terms") between
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Splunk Inc., a Delaware corporation, with its principal place
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of business at 270 Brannan Street, San Francisco,
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California 94107, U.S.A ("Splunk" or "we" or "us" or "our")
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and you ("Customer" or "you" or "your") apply to the
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purchase of licenses and subscriptions for Splunk's
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Offerings. By clicking on the appropriate button, or by
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downloading, installing, accessing or using the Offerings,
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you agree to these General Terms. If you are entering into
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these General Terms on behalf of Customer, you represent
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that you have the authority to bind Customer. If you do not
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agree to these General Terms, or if you are not authorized
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to accept the General Terms on behalf of the Customer, do
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not download, install, access, or use any of the Offerings.
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See the General Terms Definitions Exhibit attached for
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definitions of capitalized terms not defined herein.
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1. License Rights
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(A) General Rights. You have the nonexclusive, worldwide,
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nontransferable and nonsublicensable right, subject to payment of
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applicable Fees and compliance with the terms of these General
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Terms, to use your Purchased Offerings for your Internal Business
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Purposes during the Term and up to the Capacity purchased.
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(B) Copies for On-Premise Products. You have the right to make a
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reasonable number of copies of On-Premise Products for archival
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and back-up purposes.
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(C) Splunk Extensions. You may use Splunk Extensions in
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connection with the applicable Purchased Offering subject to the
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same terms and conditions for that Offering (including with respect
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to Term) and payment of any Fees associated with the Splunk
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Extensions. Some Splunk Extensions may be made available under
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license terms that provide broader rights than the license rights you
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have to the applicable underlying Offering (e.g., if the Extension is
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Open Source Software). These broader rights will apply to that
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Splunk Extension. Splunk Extensions may be installed on Hosted
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Services pursuant to our instructions.
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(D) Trials, Evaluations, Beta and Free Licenses.
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(i) Trials and Evaluations. Offerings provided for trials and
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evaluations, as specified in an Order, are provided at no
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charge, and their use will be for the specified limited duration.
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(ii) Beta Licenses. Some Offerings may be available to you as a
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preview, or as an alpha, beta or other pre-release version
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(each, a "Beta Offering"). All rights for Beta Offerings are
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solely for internal testing and evaluation. Your use of a Beta
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Offering will be for the term specified by us, and if no term is
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specified, then for the earlier of one year from the start date of
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the Beta Offering or when that version of the Beta Offering
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becomes generally available. We may discontinue the Beta
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Offering at any time and may decide not to make any of the
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features and functionality generally available
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(iii) Free Licenses. From time to time, we may make certain
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Offerings available for full use (i.e., not subject to limited
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evaluation purposes) at no charge. These free Offerings may
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have limited features, functions and other technical limitations.
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(E) Test and Development Licenses. For Offerings identified as
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"Test and Development" Offerings on your Order, you only have the
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right to use those Offerings up to the applicable Capacity on a non-
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production system for non-production uses, including product
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migration testing or pre-production staging, or testing new data
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sources, types, or use cases. Test and Development Offerings
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may not be used for any revenue generation, commercial activity,
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or other productive business or purpose.
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(F) Limitations. Notwithstanding anything to the contrary in these
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General Terms, we do not provide maintenance and support,
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warranties, or indemnification for Test and Development Offerings,
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trials, evaluations, or free or Beta Offerings.
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2. Purchasing Through Authorized Resellers
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If you purchase Offerings through a Splunk authorized reseller, these
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General Terms will govern those Offerings. Your payment obligations
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for the Purchased Offerings will be with the authorized reseller, not
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Splunk. You will have no direct Fee payment obligations to Splunk for
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those Offerings.
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Any terms agreed to between you and the authorized reseller that are in
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addition to these General Terms are solely between you and the
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authorized reseller. No agreement between you and an authorized
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reseller is binding on Splunk, or will have any force or effect with respect
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to the rights in, or the operation, use or provision of, the Offerings.
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3. Your Contractors and Third Party Providers
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You may permit your authorized consultants, contractors, and agents
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("Third Party Providers") to access and use your Purchased Offerings,
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but only on your behalf in connection with providing services to you, and
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subject to the terms and conditions of these General Terms. Any access
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or use by a Third Party Provider will be subject to the same limitations
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and restrictions that apply to you under these General Terms, and you
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will be responsible for any Third Party Provider's actions relating to or
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use of the Offering. The aggregate use by you and all of your Third
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Party Providers must not exceed the Capacity purchased, and nothing
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in this Section is intended to or will be deemed to increase such
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Capacity.
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4. Hosted Services
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(A) Service Levels. When you purchase Hosted Services as a
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Purchased Offering, we will make the applicable Hosted Services
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available to you during the Term in accordance with these General
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Terms. If a Service Level Schedule applies to your Hosted Service
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(as identified in the Specific Hosted Services Terms referenced in
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Section 4(I) below), the Service Level Schedule and associated
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remedies will apply to the availability and uptime of the Hosted
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Service. If applicable, service credits will be available for downtime
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in accordance with the Service Level Schedule.
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(B) Data Protection. Please refer to Sections 9 and 10 below for
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information on Splunk's security and data protection programs for
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our Hosted Services.
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(C) Maintaining Protections. Notwithstanding anything to contrary in
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these General Terms, or any policy or terms referenced herein via
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hyperlink (or any update thereto), Splunk may not, during a Term
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materially diminish the security protections provided by the controls
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set for the Hosted Service.
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(D) Connections. You are responsible for obtaining and maintaining all
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telecommunications, broadband and computer equipment and
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services needed to access and use Hosted Services, and for
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paying all associated charges.
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(E) Your Responsibility for Data Protection. You are responsible for:
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(i) selecting from the security configurations and security options
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made available by Splunk in connection with a Hosted Service; (ii)
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taking additional measures outside of the Hosted Service to the
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extent the Hosted Service Offering does not provide the controls
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that may be required or desired by you; and (iii) routine archiving
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and backing up of Customer Content. You agree to notify Splunk
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immediately if you believe that an unauthorized third party may be
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using your accounts or if your account information is lost or stolen.
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(F) Data Restrictions. You may not transmit and/or store PHI Data,
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PC&I Data or ITAR Data within the Hosted Services unless you
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have specifically purchased a Purchased Offering for that
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applicable regulated Hosted Services environment (as identified in
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an Order).
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(G) Refund Upon Termination for Splunk's Breach. If a Hosted
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Service is terminated by you for Splunk's uncured material breach
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in accordance with these General Terms, Splunk will refund you
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any prepaid subscription fees covering the remainder of the Term
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after the effective date of termination.
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(H) Return of Customer Content. Customer Content may be retrieved
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by you and removed from the Hosted Services in accordance with
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the applicable Documentation. We will make the Customer Content
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available on the Hosted Services for thirty (30) days after
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termination of a subscription for your retrieval. After that thirty (30)
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day period, we will have no obligation to maintain the storage of
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your Customer Content, and you hereby authorize us thereafter to
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delete all remaining Customer Content, unless we are otherwise
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legally prohibited from doing so. If you require assistance in
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connection with migration of your Customer Content, depending on
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the nature of the request, we may require a mutually agreed upon
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fee for assistance.
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(I) Specific Hosted Services Terms. Specific security controls and
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certifications, data policies, service descriptions, Service Level
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Schedules and other terms specific to Hosted Services ("Specific
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Hosted Services Terms") are set forth here:
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www.splunk.com/SpecificTerms, and will apply as applicable.
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5. Support and Maintenance
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Your Purchased Offerings may include support and maintenance
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services as part of your purchase. The specific Support Program
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purchased with a Purchased Offering will be identified in the applicable
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Order. Splunk will provide the purchased level of support and
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maintenance services in accordance with the terms of the Support
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Exhibit attached to these General Terms.
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6. Configuration and Implementation Services
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Splunk offers standard services to implement and configure your
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Purchased Offerings, subject to the payment of the Fees for these
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services in an Order, and the terms of the Configuration and
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Implementation Services Exhibit attached to these General Terms.
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7. Use Restrictions
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Except as expressly permitted in an Order or our Documentation, you
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agree not to (nor allow any third party to): (a) reverse engineer (except
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to the extent specifically permitted by statutory law), decompile,
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disassemble or otherwise attempt to discover source code or underlying
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structures, ideas or algorithms of any Offering; (b) modify, translate or
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create derivative works based on the Offerings; (c) use an Offering for
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service bureau purposes, or for any purpose other than your own
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Internal Business Purposes; (d) resell, transfer or distribute any
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Offering; (e) access or use any Offering in order to monitor its
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availability, performance, or functionality for competitive purposes; (f)
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attempt to disable or circumvent any license key or other technological
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mechanisms or measures intended to prevent, limit or control use or
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copying of, or access to, Offerings; (g) separately use any of the
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applicable features and functionalities of the Offerings with external
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applications or code not furnished by Splunk or any data not processed
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by the Offering; (h) exceed the Capacity purchased or (i) use any
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Offering in violation of all applicable laws and regulations (including but
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not limited to any applicable privacy and intellectual property laws).
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8. Our Ethics, Compliance and Corporate
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Responsibility
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(A) Ethics and Corporate Responsibility. Splunk is committed to
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acting ethically and in compliance with applicable law, and we have
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policies and guidelines in place designed to provide awareness of,
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and compliance with, the laws and regulations that apply to our
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business globally. We are committed to ethical business conduct,
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and we strive to perform in accordance with the highest global
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ethical principles, as described in the Splunk Code of Conduct and
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Ethics found here: https://investors.splunk.com/code-business-
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conduct-and-ethics-1.
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(B) Anti-Corruption. We use diligent efforts to implement and maintain
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programs to ensure compliance with applicable anti-corruption and
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anti-bribery laws. Splunk policy prohibits the offering or soliciting of
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any illegal or improper bribe, kickback, payment, gift, or thing of
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value to or from any of your employees or agents in connection with
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these General Terms. If we learn of any violation of the above, we
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will use reasonable efforts to promptly notify you at the main
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contact address provided by you to Splunk.
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(C) Export. We certify that Splunk is not on any of the relevant U.S.
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government lists of prohibited persons, including the Treasury
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Department's List of Specially Designated Nationals and the
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Commerce Department's List of Denied Persons or Entity List.
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Export information regarding our Offerings, including our export
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control classifications for our Offerings, is found here:
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https://www.splunk.com/en_us/legal/export-controls.html.
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9. Data Protection
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Splunk follows globally recognized data protection principles and
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industry-leading standards for the security of personal data. Splunk is
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self-certified with the U.S. Department of Commerce for the EU-U.S.
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and Swiss-U.S. Privacy Shield Frameworks. Splunk's data protection
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practices are set forth in Splunk Protects and include (as applicable)
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standard terms for the processing of Personal Data as defined under
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GDPR and Personal Information as defined under the CCPA. Please
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refer to the applicable Specific Hosted Services Terms that may apply to
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your Purchased Offering.
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10. Security
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(A) General Security. Splunk's information security management
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system ("ISMS") is calibrated to protect the confidentiality, integrity
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and availability of customer data. Splunk employees receive
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regular training on Splunk's security policies and procedures,
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including annual training on secure data handling practices, and
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supplemental, targeted trainings as appropriate. Employees are
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background checked and Splunk vendors are risk assessed prior
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to onboarding to determine if their data protection and security
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practices meet Splunk's standards.
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(B) Offering Security. Hosted Services meet industry leading cloud
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security standards appropriate to the nature of service provided,
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e.g., Splunk Cloud HIPAA Offering certified to HIPAA security
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requirements. We have commercially reasonable physical,
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technical and procedural measures in place to protect Customer
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Content against destruction, loss, alteration, unauthorized
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disclosure to third parties or unauthorized access by employees or
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contractors employed by Splunk. Any specific and additional
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security controls for a Hosted Service are set forth in the
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applicable Documentation and Specific Hosted Services Terms
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www.splunk.com/SpecificTerms. Third-party certificates of
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compliance issued as part of Splunk's audited third-party
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compliance program are located on Splunk Protects. In addition,
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for On-Premise Products, which are not provided as a service and
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therefore are not audited for compliance, Splunk follows industry
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standard security controls for the processing of customer data
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accessed or received through activities such as maintenance,
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implementation or configuration services. Those industry standard
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security controls are set forth in Splunk's Information Security
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Addendum ("ISA") located at www.splunk.com/on-pre-isa.
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(C) Product Development Security. Splunk deploys secure software
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development practices and uses a risk-based approach when
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applying its standard software development lifecycle (SDLC)
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methodology, which may include such things as performing
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security architecture reviews, open source security scans, virus
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detection, dynamic application security testing, network
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vulnerability scans and external penetration testing in the
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development environment. Product-specific information about the
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SDLC in our Offerings is detailed more fully in the ISA. Splunk's
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Product Security Portal contains detailed information about
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Splunk's program for managing and communicating product
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vulnerabilities. Splunk categorizes product vulnerabilities in
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accordance with the Common Vulnerability Scoring System
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("Medium," "High," or "Critical") and uses commercially reasonable
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efforts to remediate vulnerabilities depending on their severity
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level in accordance with industry standards.
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11. Usage Data
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From time to time, Splunk may collect Usage Data generated as a by-
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product of your use of Offerings (e.g., technical information about your
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operating environment and sessions, systems architecture, page loads
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and views, product versions, number and type of searches, number of
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users, source type and format). Usage data does not include Customer
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Content. We collect Usage Data for a variety of reasons, such as to
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identify, understand, and anticipate performance issues and the factors
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that affect them, to provide updates and personalized experiences to
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customers, and to improve the Splunk Offerings. Details on Splunk's
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Usage Data collection practices are set forth in Splunk's Privacy Policy.
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12. Capacity and Usage Verification
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(A) Certification. At Splunk's request, you will furnish Splunk a
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certification signed by your authorized representative verifying that
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your use of the Purchased Offering is in accordance with these
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General Terms and the applicable Order. Also, if your Purchased
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Offering requires usage reporting (as specified and agreed in the
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Order), you agree to provide this reporting pursuant to those
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requirements.
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(B) Specific Product Verification. For On-Premise Products, we may
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ask you from time to time, but not more frequently than once per
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calendar period, to cooperate with us to verify usage and
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adherence to purchased Capacities. If Splunk requests a
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verification process, you agree to provide Splunk reasonable
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access to the On-Premise Product installed at your facility (or as
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hosted by your Third Party Provider). If Splunk does any
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verification, it will be performed with as little interference as
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possible to your use of the On-Premise Product and your business
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operations. Splunk will comply with your (or your Third Party
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Providers') reasonable security procedures.
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(C) Overages. If a verification or usage report reveals that you have
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exceeded the purchased Capacity or the scope of your license
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grant for your Purchased Offering (e.g. used as a service bureau)
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during the period reviewed, then we will have the right to invoice
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you using the applicable Fees at list price then in effect, which will
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be payable in accordance with these General Terms. Without
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limiting Splunk's foregoing rights, with respect to Hosted Services,
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Splunk may work with you to reduce usage so that it conforms to
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the applicable usage limit, and we will in good faith discuss
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options to right size your subscription as appropriate. For the
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avoidance of doubt, notwithstanding anything to the contrary
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herein, Splunk will have the right to directly invoice you for
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overages, regardless of whether you purchased the Purchased
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Offering from an authorized reseller. See the Specific Hosted
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Services Terms for any additional information related to overages
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for a Hosted Service.
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13. Our Use of Open Source
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Certain Offerings may contain Open Source Software. Splunk makes
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available in the applicable Documentation a list of Open Source
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Software incorporated in our On-Premise Products as required by the
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respective Open Source Software licenses. Any Open Source Software
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that is delivered as part of your Offering and which may not be removed
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or used separately from the Offering is covered by the warranty, support
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and indemnification provisions applicable to the Offering. Some of the
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Open Source Software may have additional terms that apply to the use
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of the Offering (e.g., the obligation for us to provide attribution of the
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specific licensor), and those terms will be included in the
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Documentation; however, these terms will not (a) impose any additional
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restrictions on your use of the Offering, or (b) negate or amend any of
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our responsibilities with respect to the Offering.
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14. Splunk Developer Tools and Customer
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Extensions
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Splunk makes Splunk Developer Tools available to you so you can
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develop Extensions for use with your Purchased Offerings (Extensions
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that you develop, "Customer Extensions").
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You have a nonexclusive, worldwide, nontransferable, nonsublicensable
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right, subject to the terms of these General Terms, to use Splunk
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Developer Tools to (a) copy and modify Splunk Developer Tools to
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develop your Customer Extensions, including to support interoperability
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between the Offering and your system or environment, and (b) distribute
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your Customer Extensions exclusively for use with the designated
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Offering. Your rights are subject to the following conditions: (x) Splunk
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proprietary legends or notices contained in the Splunk Developer Tools
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may not be removed or altered when used in or with your Customer
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Extension; and (y) you may not make any statement that your Customer
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Extension is certified or that its performance is guaranteed by Splunk.
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You retain title to your Customer Extensions, subject to Splunk's
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ownership in our Offerings and any materials and technology provided
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by Splunk in connection with the Splunk Developer Tools. If you allow
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end users of Customer Extensions to modify or distribute the Customer
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Extensions, you will limit such modification or distribution to use with the
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designated Offering only, and will flow down the conditions in (x) and (y)
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above to end users of Customer Extensions. You agree to assume full
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responsibility for the performance and distribution of Customer
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Extensions.
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15. Third Party Extensions, Third Party Content
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and Unsupported Splunk Extensions
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(A) Third Party Extensions. Splunk makes no promises or
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guarantees related to Extensions on Splunkbase developed
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and/or made available by a third party ("Third-Party Extension").
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Splunk makes Third Party Extensions available for download on
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Splunkbase as a convenience to its customers. Splunk neither
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controls nor endorses, nor is Splunk responsible for, any Third
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Party Extension, including the accuracy, integrity, quality, legality,
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usefulness or security of the Third Party Extension. Nothing in
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these General Terms or on Splunkbase will be deemed to be a
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representation or warranty by Splunk with respect to any Third
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Party Extension, even if a particular Third Party Extension is
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identified as "certified" or "validated" for use with an Offering. We
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may, in our reasonable discretion, block or disable access to any
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Third Party Extension at any time. Your use of a Third Party
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Extension is at your own risk and may be subject to any additional
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terms, conditions and policies applicable to that Third Party
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Extension (such as license terms, terms of service, or privacy
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policies of the providers of such Third Party Extension).
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(B) Third Party Content. Hosted Services may contain features or
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functions that enable interoperation with Third Party Content that
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you, in your sole discretion, choose to add to a Hosted Service.
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You may be required to obtain access separately to such Third
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Party Content from the respective providers, and you may be
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required to grant Splunk access to your accounts with such
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providers to the extent necessary for Splunk to allow the
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interoperation with the Hosted Service. By requesting or allowing
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Splunk to enable access to such Third Party Content in connection
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with the Hosted Services, you certify that you are authorized under
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the provider's terms to allow such access. If you install or enable
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(or direct or otherwise authorize Splunk to install or enable) Third
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Party Content for use with a Hosted Service where the
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interoperation includes access by the third party provider to your
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Customer Content, you hereby authorize Splunk to allow the
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provider of such Third Party Content to access Customer Content
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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 Hosted Service, directly or indirectly, as a result of your use of,
|
|
and/or reliance upon, any Third Party Content, sites or resources.
|
|
|
|
(C) Unsupported Splunk Extensions. The Service Level Schedule
|
|
commitments for any applicable Hosted Services will not apply to
|
|
Splunk Extensions labeled on Splunkbase as "Not Supported."
|
|
You agree that Splunk is not responsible for any impact on your
|
|
experience of a Hosted Service as a result of your installation
|
|
and/or use of any "Not Supported" Splunk Extensions, and that
|
|
your sole remedy will be to remove the "Not Supported" Splunk
|
|
Extension from the applicable Hosted Service. Further, some
|
|
Splunk Extensions may not be compatible or certified for use with
|
|
that Hosted Service (e.g., only specific Splunk Extensions are
|
|
validated for our FedRAMP authorized environment for Splunk
|
|
Cloud). Please refer to the applicable Documentation for more
|
|
information related to the Splunk Extensions compatible with your
|
|
specific Purchased Offering.
|
|
|
|
16. Your Compliance
|
|
|
|
(A) Lawful Use of Offerings. When you access and use an Offering,
|
|
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 and users, for your users'
|
|
compliance with these General Terms, and the accuracy, lawful use
|
|
of, and the means by which you acquired your Customer Content.
|
|
|
|
(B) Registration. You agree to provide accurate and complete
|
|
information when you register for and use any Offering and agree
|
|
to keep this information current. Each person who uses any
|
|
Offering must have a separate username and password. For
|
|
Hosted Services, you must provide a valid email address for each
|
|
person authorized to use your Hosted Services, and you may only
|
|
have one person per username and password. Splunk may
|
|
reasonably require additional information in connection with certain
|
|
Offerings (e.g., technical information necessary for your connection
|
|
to a Hosted 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.
|
|
|
|
(C) 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 Offerings. 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 Offerings 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 Offering for any
|
|
purpose prohibited by the Export Laws.
|
|
|
|
(D) GovCloud Services. If you access or use any Hosted Services in
|
|
the specially isolated Amazon Web Services ("AWS") GovCloud
|
|
(US) region (including without limitation any Hosted Services that
|
|
are provisioned in a FedRAMP authorized environment), you
|
|
represent and warrant that users will only access the Hosted
|
|
Services in the AWS GovCloud (US) region if users: (i) are "US
|
|
Person(s)" as defined under ITAR (see 22 CFR part 120.15); (ii)
|
|
have and will maintain a valid Directorate of Defense Trade
|
|
Controls registration, if required by ITAR; (iii) are not subject to
|
|
export control restrictions under US export control laws and
|
|
regulations (i.e., users are not denied or debarred parties or
|
|
otherwise subject to sanctions); and (iv) maintain an effective
|
|
compliance program to ensure compliance with applicable US
|
|
export control laws and regulations, including ITAR, as applicable.
|
|
You are responsible for verifying that any user accessing Customer
|
|
Content in the Hosted Services in the AWS GovCloud (US) region
|
|
is eligible to access to such Customer Content. The Hosted
|
|
Services in the AWS GovCloud (US) region may not be used to
|
|
process or store classified data. You will be responsible for all
|
|
sanitization costs incurred by Splunk if users introduce classified
|
|
data into the Hosted Services in the AWS GovCloud (US) region.
|
|
|
|
(E) Acceptable Use. Without limiting any terms under these General
|
|
Terms, you will also abide by our Hosted Services acceptable use
|
|
policy: https://www.splunk.com/view/SP-CAAAMB6.
|
|
|
|
17. Confidentiality
|
|
|
|
(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 these 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 General
|
|
Terms 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.
|
|
|
|
18. Payment
|
|
|
|
The payment terms below only apply when you purchase Offerings
|
|
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 these General Terms. 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 you 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
|
|
|
|
|
|
19. Splunk's Warranties
|
|
|
|
(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 these General Terms.
|
|
|
|
(C) Hosted Services Warranty. Splunk warrants that during the
|
|
applicable Term: (i) Splunk will not materially decrease the overall
|
|
functionality of the Hosted Services; and (ii) the Hosted 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 Hosted Services Purchased
|
|
Offering, and we will refund to you any prepaid but unused Fees for
|
|
the remainder of the Term.
|
|
|
|
(D) On-Premise Product Warranty. Splunk warrants that for a period
|
|
of ninety (90) days from the Delivery of an On-Premise Product, the
|
|
On-Premise Product will substantially perform the material
|
|
functions described in the applicable Documentation for such On-
|
|
Premise Product, when used in accordance with the applicable
|
|
Documentation. Splunk's sole liability, and your sole remedy, for
|
|
any failure of the On-Premise Product to conform to the foregoing
|
|
warranty, is for Splunk to do one of the following (at Splunk's sole
|
|
option and discretion) (i) modify, or provide an Enhancement for,
|
|
the On-Premise Product so that it conforms to the foregoing
|
|
warranty, (ii) replace your copy of the On-Premise Product with a
|
|
copy that conforms to the foregoing warranty, or (iii) terminate the
|
|
Purchased Offering with respect to the non-conforming On-Premise
|
|
Product and refund the Fees paid by you for such non-conforming
|
|
On-Premise Product.
|
|
|
|
(E) Disclaimer of Implied Warranties. Except as expressly set
|
|
forth above, the Offerings 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 Offerings will be
|
|
uninterrupted, error free or secure, or that all defects will be
|
|
corrected.
|
|
|
|
20. Ownership
|
|
|
|
(A) Offerings. As between you and Splunk, Splunk owns and reserves
|
|
all right, title, and interest in and to the Offerings, developer 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 these General Terms. No rights are granted to
|
|
you other than as expressly set forth in these General Terms.
|
|
|
|
(B) Customer Content. You own and reserve all right, title and interest
|
|
in your Customer Content. By sending Customer Content to a
|
|
Hosted Service, you grant us a worldwide, royalty free, non-
|
|
exclusive license to access and use the Customer Content for
|
|
purposes of providing you the Hosted Service.
|
|
|
|
(C) Feedback. You have no obligation to provide us with ideas for
|
|
improvement, suggestions or other feedback (collectively,
|
|
"Feedback") in connection with an Offering, 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.
|
|
|
|
21. Term and Termination
|
|
|
|
(A) Term and Renewal. These General Terms will commence upon
|
|
the Effective Date and will remain in effect until the expiration of all
|
|
applicable Purchased Offerings, unless earlier terminated pursuant
|
|
to this Section. Termination of a specific Purchased Offering will not
|
|
affect the Term of any other Purchased Offering. Termination of
|
|
these General Terms will have the effect of terminating all
|
|
Purchased Offerings. Grounds for terminating a Purchased Offering
|
|
(e.g., for non-payment), that are specific to the Purchased Offering,
|
|
will not be grounds to terminate Purchased Offerings where no
|
|
breach exists. Unless indicated otherwise in an Order, the Term of
|
|
a Purchased Offering (and these General Terms) 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 these General Terms, or
|
|
any Purchased Offering, by written notice to the other party in the
|
|
event of a material breach of these General Terms, or the specific
|
|
terms associated with that Purchased Offering, that is not cured
|
|
within thirty (30) days of receipt of the notice. Upon any expiration
|
|
or termination of a Purchased Offering, the rights and licenses
|
|
granted to you for that Purchased Offering will automatically
|
|
terminate, and you agree to immediately (i) cease using and
|
|
accessing the Offering, (ii) return or destroy all copies of any On-
|
|
Premise Products and other 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. Upon termination of these General Terms or any
|
|
Purchased Offering, 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) Survival. The termination or expiration of these General Terms 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
|
|
these General Terms.
|
|
|
|
(D) 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
|
|
Hosted 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
|
|
a Hosted Services will have no impact on the duration of the Term
|
|
of the Purchased Offering or the associated Fees owed.
|
|
|
|
22. Limitation of Liability
|
|
|
|
In no event will the aggregate liability of either party, together with
|
|
any of its Affiliates, arising out of or related to any Purchased
|
|
Offering exceed the total amount paid by you for that Purchased
|
|
Offering 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, and will not be deemed to limit your
|
|
rights to any service level credits under any applicable Service
|
|
Level Schedule. Furthermore, the cap above will not be deemed to
|
|
limit Splunk's right to recover amounts for your use of an Offering
|
|
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 these General Terms 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.
|
|
|
|
23. Indemnity
|
|
|
|
(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 Purchased Offering
|
|
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 these General Terms,
|
|
your Customer Content, Third Party Extension, or the combination
|
|
of the Offering with: (i) Customer Content; (ii) Third Party
|
|
Extensions; (iii) any software other than software provided by
|
|
Splunk; or (iv) 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
|
|
Purchased Offering (e.g., an operating system), or (z) the
|
|
Purchased Offering 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 any
|
|
Purchased Offering so that it no longer infringes or misappropriates
|
|
a third party right, (2) obtain a license for your continued use of the
|
|
Purchased Offering, in accordance with these General Terms, or
|
|
(3) terminate the Purchased Offering 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 or
|
|
Customer Extensions 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 any Offering 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.
|
|
|
|
24. Updates to Offerings
|
|
|
|
Our Offerings and policies may be updated over the course of our
|
|
relationship. From time to time, Splunk may update or modify an
|
|
Offering 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 Offering, or alter our liability or the allocation of risk between us
|
|
under these General Terms; (c) no such change or modification will
|
|
materially reduce the security protections or overall functionality of the
|
|
applicable Offering; 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.
|
|
|
|
25. Governing Law
|
|
|
|
These General Terms 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 these General Terms 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 these General Terms.
|
|
|
|
26. Use of Customer Name
|
|
|
|
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.
|
|
|
|
27. Miscellaneous
|
|
|
|
(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
|
|
these General Terms. 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 any
|
|
Offering 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 these General Terms, all
|
|
notices related to these General Terms 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 these
|
|
General Terms, 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 these General Terms 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 these General Terms relates. Any attempt to assign
|
|
these General Terms other than as permitted herein will be null and
|
|
void. Subject to the foregoing, these General Terms will bind and
|
|
inure to the benefit of the parties' permitted successors and
|
|
assigns.
|
|
|
|
(E) U.S. Government Use Terms. Splunk provides Offerings for U.S.
|
|
federal government end use solely in accordance with the following:
|
|
Government technical data and rights related to Offerings include
|
|
only those rights customarily provided to the public as defined in
|
|
these General Terms. This customary commercial license is
|
|
provided in accordance with FAR 12.211 (Technical Data) and FAR
|
|
12.212 (Computer Software) and, for Department of Defense
|
|
transactions, DFARS 252.227-7015 (Technical Data-Commercial
|
|
Items) and DFARS 227.7202-3 (Rights in Commercial Computer
|
|
Software or Commercial Computer Software Documentation). If a
|
|
government agency has a need for rights not conveyed under these
|
|
terms, it must negotiate with Splunk to determine if there are
|
|
acceptable terms for transferring such rights, and a mutually
|
|
acceptable written addendum specifically conveying such rights
|
|
must be included in any applicable contract or agreement.
|
|
|
|
(F) Waiver; Severability. The waiver by either party of a breach of or a
|
|
default under these General Terms will not be effective unless in
|
|
writing. The failure by either party to enforce any provisions of
|
|
these 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 General Terms invalid or unenforceable, the remaining
|
|
provisions of these 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.
|
|
|
|
(G) Integration; Entire Agreement. These 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 General Terms 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 these General Terms 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. These General Terms does
|
|
not create a partnership, franchise, joint venture, agency, fiduciary
|
|
or employment relationship between the parties. There are no third-
|
|
party beneficiaries of these General Terms. 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.
|
|
|
|
|
|
General Terms Definitions Exhibit
|
|
|
|
"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 of an Offering (e.g.,
|
|
aggregate daily volume of data indexed, specific source type rights,
|
|
number of search and compute units, number of monitored accounts,
|
|
virtual CPUs, user seats, use cases, storage capacity, etc.) that is
|
|
purchased for an Offering, as set forth in the applicable Order. The
|
|
Capacities for each of our Offerings can be found here:
|
|
https://www.splunk.com/en_us/legal/licensed-capacity.html.
|
|
|
|
"CCPA" means the California Consumer Privacy Act of 2018.
|
|
|
|
"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.
|
|
|
|
"Content Subscription" means the right of Customer to receive content
|
|
applicable to an Offering (e.g., models, templates, searches, playbooks,
|
|
rules and configurations, as described in the relevant Documentation)
|
|
on a periodic basis over the applicable Term. Content Subscriptions are
|
|
purchased as an add-on service and are identified in an Order.
|
|
|
|
"Customer Content" means any data that is ingested by or on behalf of
|
|
you into an Offering from your internal data sources.
|
|
|
|
"Delivery" means the date of Splunk's initial delivery of the license key
|
|
for the applicable Offering or, for Hosted Services, the date Splunk
|
|
makes the applicable Offering 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
|
|
http://docs.splunk.com/Documentation) or accessible through the
|
|
applicable Offering, as may be updated by Splunk from time to time.
|
|
|
|
"Enhancements" means any updates, upgrades, releases, fixes,
|
|
enhancements or modifications to a Purchased Offering made generally
|
|
commercially available by Splunk to its customers under the terms and
|
|
conditions in the Support Exhibit.
|
|
|
|
"Extension" means any separately downloadable or accessible suite,
|
|
configuration file, add-on, technical add-on, example module, command,
|
|
function, playbook, content or application that extends the features or
|
|
functionality of the applicable Offering.
|
|
|
|
"Fees" means the fees that are applicable to an Offering, as identified in
|
|
the Order.
|
|
|
|
"GDPR" means the General Data Protection Regulation (Regulation
|
|
(EU) 2016/679 of the European Parliament and of the Council of 27
|
|
April 2016 on the protection of natural persons with regard to the
|
|
processing of personal data and on the free movement of such data) as
|
|
updated, amended or replaced from time to time.
|
|
|
|
"HIPAA" means the Health Insurance Portability and Accountability Act
|
|
of 1996, as amended and supplemented by the Health Information
|
|
Technology for Economic and Clinical Health Act.
|
|
|
|
"Hosted Service" means a technology service hosted by or on behalf of
|
|
Splunk and provided to you.
|
|
|
|
"Internal Business Purpose" means your use of an Offering for your
|
|
own internal business operations, based on the analysis, monitoring or
|
|
processing of your data from your systems, net-works 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 protected by the International Traffic in
|
|
Arms Regulations.
|
|
|
|
"Offerings" means the products, services and other offerings that
|
|
Splunk makes generally available, including without limitation On-
|
|
Premise Products, Hosted Services, Support Programs, Content
|
|
Subscriptions and Configuration and Implementation Services.
|
|
|
|
"On-Premise Product" means the Splunk software that is delivered to
|
|
you and deployed and operated by you or on your behalf on hardware
|
|
designated by you, and any Enhancements made available to you by
|
|
Splunk.
|
|
|
|
"Open Source Software" means software that is licensed under a
|
|
license approved by the Open Source Initiative or similar freeware
|
|
license, with terms requiring that such software code be (i) disclosed or
|
|
distributed in source code or object code form, (ii) licensed for the
|
|
purpose of making derivative works, and/or (iii) redistribute under the
|
|
same license terms.
|
|
|
|
"Orders" means Splunk's quote or ordering document (including online
|
|
order form) accepted by you via your purchase order or other ordering
|
|
document submitted to Splunk (directly or indirectly through an
|
|
authorized reseller) to order Offerings, which references the Offering,
|
|
Capacity, pricing and other applicable terms set forth in an applicable
|
|
Splunk quote or ordering document. Orders do not include the terms of
|
|
any preprinted terms on your purchase order or other terms on a
|
|
purchase order that are additional or inconsistent with the terms of
|
|
these General Terms.
|
|
|
|
"PC&I 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.
|
|
|
|
"Purchased Offerings" means the services, subscriptions and licenses
|
|
to Offerings that are acquired by you under Orders, whether directly or
|
|
through an authorized reseller.
|
|
|
|
"Service Level Schedule" means a Splunk policy that applies to the
|
|
availability and uptime of a Hosted Service and which, if applicable,
|
|
offers service credits as set forth therein.
|
|
|
|
"Splunkbase" means Splunk's online directory of or platform for
|
|
Extensions, currently located at https://splunkbase.splunk.com and any
|
|
and all successors, replacements, new versions, derivatives, updates
|
|
and upgrades and any other similar platform(s) owned and/or controlled
|
|
by Splunk.
|
|
|
|
"Splunk Developer Tool" means the standard application programming
|
|
interface, configurations, software development kits, libraries, command
|
|
line interface tools, other tooling (including scaffolding and data
|
|
generation tools), integrated development environment plug-ins or
|
|
extensions, code examples, tutorials, reference guides and other related
|
|
materials identified and provided by Splunk to facilitate or enable the
|
|
creation of Extensions or otherwise support interoperability between the
|
|
Software and your system or environment.
|
|
|
|
"Splunk Extensions" means Extensions made available through
|
|
Splunkbase that are identified on Splunkbase as built by Splunk (and
|
|
not by any third party).
|
|
|
|
"Support Programs" are the Support Programs offered by Splunk and
|
|
identified here: http://www.splunk.com/en_us/support-and-
|
|
services/support-programs.html
|
|
|
|
"Term" means the duration of your subscription or license to the
|
|
applicable Offering that starts and ends on the date listed on the
|
|
applicable Order. If no start date is specified in an Order, the start date
|
|
will be the Delivery date of the Offering.
|
|
|
|
"Third Party Content" means information, data, technology or materials
|
|
made available to you by any third party that you license and add to a
|
|
Hosted Service or direct Splunk to install in connection with a Hosted
|
|
Service. Third Party Content includes but is not limited to, Third Party
|
|
Extensions, web-based or offline software applications, data service or
|
|
content that are provided by third parties.
|
|
|
|
"Usage Data" means data generated from the usage, configuration,
|
|
deployment, access and performance of an Offering. 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 does not include Customer Content.
|
|
|
|
Support Exhibit to Splunk General Terms
|
|
|
|
This Support Exhibit forms a part of the Splunk General Terms and
|
|
governs your purchase, and Splunk's provision of Support Services.
|
|
|
|
1. Support Programs
|
|
|
|
Support Programs purchased as part of a Purchased Offering will be
|
|
identified in your applicable Order. Splunk will provide you the level of
|
|
Support Services described under the purchased Support Program,
|
|
subject to your payment of applicable Fees. "Support Programs" are
|
|
the Support Programs offered by Splunk and identified here:
|
|
http://www.splunk.com/en_us/support-and-services/support-
|
|
programs.html.
|
|
|
|
2. Support Services
|
|
|
|
"Support Services" include technical support for your Purchased
|
|
Offerings, and, when available, the provision of Enhancements for your
|
|
Purchased Offerings, subject to the Support Policy described below.
|
|
Technical support under a Support Program is available via email or
|
|
web portal, and certain Support Programs also make support available
|
|
via telephone. Support Services will be delivered by a member of
|
|
Splunk's technical support team during the regional hours of operation
|
|
applicable under the Support Program. Support Services are delivered
|
|
in English unless you are in a location where we have made localized
|
|
Support Services available.
|
|
|
|
3. Support Policy
|
|
|
|
Our Support Policy, provided here:
|
|
https://www.splunk.com/en_us/legal/splunk-software-support-policy.html
|
|
("Support Policy") describes the duration of our Support Services for
|
|
certain Splunk On-Premise Products and other policies associated with
|
|
our Support Services.
|
|
|
|
As we release new versions for our Offerings, we discontinue Support
|
|
Services for certain older versions. Our Support Policy sets forth the
|
|
schedule for the duration of support, and end of support, for Offering
|
|
versions. The current versions of our Offerings that are supported
|
|
under our Support Policy, and will be our "Supported Versions" herein.
|
|
For the avoidance of doubt, the Support Policy may not apply to Hosted
|
|
Services, and the product and services version we make available as
|
|
our Hosted Services will be deemed Supported Versions herein.
|
|
|
|
4. Case Priority
|
|
|
|
Each Support Program offers different support levels for your case
|
|
priority levels. When submitting a case, you will select the priority for
|
|
initial response by logging the case online, in accordance with the
|
|
priority guidelines set forth under your Support Program. When the case
|
|
is received, we may in good faith change the priority if the issue does
|
|
not conform to the criteria for the selected priority. When that happens,
|
|
we will provide you with notice (electronic or otherwise) of such change.
|
|
|
|
5. Exclusions
|
|
|
|
We will have no obligation to provide support for issues caused by any
|
|
of the following (each, a "Customer Generated Error"): (i)
|
|
modifications to an Offering not made by Splunk; (ii) use of an Offering
|
|
other than as authorized in the Agreement or as provided in the
|
|
applicable Documentation; (iii) damage to the machine on which an On-
|
|
Premise Product is installed; (iv) use of a version of an Offering other
|
|
than the Supported Version; (vi) third-party products that are not
|
|
expressly noted in the Documentation as supported by Splunk; or (vi)
|
|
conflicts related to replacing or installing hardware, drivers, and
|
|
software that are not expressly supported by Splunk and described in
|
|
the applicable Documentation. If we determine that support requested
|
|
by you is for an issue caused by a Customer Generated Error, we will
|
|
notify you of that fact as soon as reasonably possible under the
|
|
circumstances. If you agree that we should provide support for the
|
|
Customer Generated Error via a confirming email, then we will have the
|
|
right to invoice you at our then-current time and materials rates for any
|
|
such support provided by us.
|
|
|
|
6. Support for Splunk Extensions
|
|
|
|
Only Splunk Extensions that are labeled as "Splunk Supported" on
|
|
Splunkbase, or other Splunk-branded marketplace, are eligible for
|
|
support, and this support is limited. For those labeled Splunk Supported,
|
|
we will provide an initial response and acknowledgement in accordance
|
|
with the P3 terms that are applicable in the applicable Support Program.
|
|
Enhancements for Splunk Extensions labeled as Splunk Supported
|
|
when made available. No other terms of a Support Program will apply to
|
|
a Splunk Application. For those labeled as "Not Supported," Splunk will
|
|
have no support obligations.
|
|
|
|
7. Authorized Support Contacts
|
|
|
|
You are entitled to have a certain number of Support Contacts under
|
|
each Support Program. "Support Contacts" means the individual(s)
|
|
specified by you that are authorized to submit support cases.
|
|
The number of Support Contacts will be based on the Capacity of the
|
|
Offering purchased, and the applicable Support Program. The number
|
|
of Support Contacts will be set forth in customer's entitlement
|
|
information on the Splunk support portal.
|
|
|
|
We only take support requests from, and communicate with, your
|
|
Support Contacts in connection with support cases. We strongly
|
|
recommend that your Support Contact(s) are trained on the applicable
|
|
Offering. In order to designate Support Contacts, you must provide the
|
|
individual's primary email address and Splunk.com login ID.
|
|
|
|
8. Defect Resolution
|
|
|
|
Should we determine that an Offering has a defect, we will, at our sole
|
|
option, repair the defect in the version of the Offering that you are then
|
|
currently using or instruct you to install a newer version of the Offering
|
|
with that defect repaired. We reserve the right to provide you with a
|
|
workaround in lieu of fixing a defect should we in our sole judgment
|
|
determine that it is more effective to do so.
|
|
|
|
9. Your Assistance
|
|
|
|
Should you report a purported defect or error in an Offering, we may
|
|
require you to provide us with the following information: (a) a general
|
|
description of your operating environment; (b) a list of all hardware
|
|
components, operating systems and networks; (c) a reproducible test
|
|
case; and (d) any log files, trace and systems files. Your failure to
|
|
provide this information may prevent us from identifying and fixing that
|
|
purported defect.
|
|
|
|
10. Changes to Support Programs
|
|
|
|
You acknowledge that, subject to the Support Policy, and subject to any
|
|
commitment we have under an Order with you, we have the right to
|
|
discontinue the manufacture, development, sale or support of any
|
|
Offering, at any time, in our sole discretion. We further reserve the right
|
|
to alter Support Programs from time to time, using reasonable
|
|
discretion, but in no event will such alterations, during the Term of any
|
|
Order, result in diminished Support Services from the level of your
|
|
applicable purchased Support Program.
|
|
|
|
Configuration and Implementation
|
|
Services Exhibit to Splunk General
|
|
Terms
|
|
|
|
This Configuration and Implementation Services Exhibit forms a part of
|
|
the Splunk General Terms and governs your purchase, and Splunk's
|
|
provision of Configuration and Implementation Services.
|
|
|
|
Capitalized terms below are defined in the General Terms, this
|
|
Exhibit or in the Definition Exhibit attached to this Exhibit.
|
|
|
|
1. Services and Statements of Work
|
|
|
|
We will perform the C&I Services for you that are set forth in the
|
|
applicable Statements of Work. You will pay the Fees under each
|
|
Statement of Work in accordance with these General Terms, or
|
|
otherwise as we may expressly agree in the applicable Statement of
|
|
Work.
|
|
|
|
In each Statement of Work, we will designate our primary point of
|
|
contact for you for all matters relating to the applicable C&I Services
|
|
(which we may change from time to time upon notice).
|
|
|
|
2. Our Personnel
|
|
|
|
Qualifications. The Personnel we assign to perform the C&I Services
|
|
will be qualified, skilled, experienced and otherwise fit for the
|
|
performance of the C&I Services. If you, in your reasonable judgement,
|
|
determine that Personnel assigned to your project are unfit, we will in
|
|
good faith discuss alternatives, and we will replace Personnel as
|
|
reasonably necessary. You acknowledge that any replacement may
|
|
cause delay in the performance of the C&I Services.
|
|
|
|
Personnel Conduct. Our Personnel are subject to our Splunk Code of
|
|
Conduct and Ethics https://investors.splunk.com/code-business-
|
|
conduct-and-ethics-1, which includes, without limitation, an obligation to
|
|
comply with our policies on protecting customer information, prohibitions
|
|
on illegal drugs and any impaired job performance, avoiding conflicts of
|
|
interest, and acting ethically at all times. We also background check our
|
|
employees, per the Section below.
|
|
|
|
Use of Subcontractors. We reserve the right to use subcontractors in
|
|
performance of the C&I Services, provided: (a) any subcontractor we
|
|
use meets the requirements herein and conditions of these General
|
|
Terms and the Statement of Work; (b) we will be responsible for the
|
|
subcontractor's compliance with the terms herein and the Statement of
|
|
Work; and (c) upon your request or inquiry, we will identify any
|
|
subcontractor that we are using, or plan to use, for C&I Services, and
|
|
will cooperate in good faith to provide you with all relevant information
|
|
regarding such subcontractors.
|
|
|
|
No Employee Benefits. We acknowledge and agree that our Personnel
|
|
are not eligible for or entitled to receive any compensation, benefits, or
|
|
other incidents of employment that you make available to your
|
|
employees. We are solely responsible for all employment related taxes,
|
|
expenses, withholdings, and other similar statutory obligations arising
|
|
out of the relationship between us and our Personnel and the
|
|
performance of C&I Services by such Personnel.
|
|
|
|
3. Our Background Checks, Security and
|
|
Compliance Obligations
|
|
|
|
Compliance with Your Security Program. While on your premises,
|
|
our Personnel will comply with your security practices and procedures
|
|
generally prescribed by you for onsite visitors and service providers.
|
|
However, any requirement that is in addition to the compliance
|
|
requirements set forth in this Schedule (e.g., background checks that
|
|
are different from the background checks described herein) must be
|
|
expressly set forth in a Statement of Work. We agree to discuss in good
|
|
faith any condition or requirement you may have for our Personnel that
|
|
are different from standard policies, however any additional requirement
|
|
may delay C&I Services, and must be vetted and implemented by
|
|
mutual agreement of the parties and expressly set forth in a Statement
|
|
of Work. Splunk does not guarantee that it will be able to meet any
|
|
additional requested requirements.
|
|
|
|
Our Security Practices. We implement and follow an enterprise
|
|
security program, with the policies, plans, and procedures set forth here
|
|
www.splunk.com/prof-serv-isa. Our Personnel will be subject to the data
|
|
protection and confidentiality obligations set forth in these General
|
|
Terms with respect to any of your data that we may have access to in
|
|
connection with the C&I Services.
|
|
|
|
Background Checks. For U.S.-based projects, we will not assign an
|
|
employee to perform C&I Services under a Statement of Work unless
|
|
we have run the following background check on the employee: Criminal
|
|
Felony & Misdemeanor; SSN Validation; Federal Criminal; SSN Trace;
|
|
Employment Report - Three (3) Employers; Education Report - One (1)
|
|
Institution; Global Sanctions & Enforcement; Prohibited Parties;
|
|
Widescreen Plus National Criminal Search. You acknowledge that such
|
|
background checks may not be permitted or customary outside the
|
|
United States.
|
|
|
|
Permissions for Access. In the event you require any Personnel to
|
|
sign any waivers, releases, or other documents as a condition to gain
|
|
access to your premises for performance of the C&I Services ("Access
|
|
Documents"), you agree: (a) that Personnel who will be required to
|
|
sign Access Documents will sign on behalf of Splunk; (b) that any
|
|
additional or conflicting terms in Access Documents with these General
|
|
Terms will have no effect; and (c) you will pursue any claims for breach
|
|
of any terms in the Access Documents against Splunk and not the
|
|
individual signing.
|
|
|
|
4. Your Materials
|
|
|
|
We will have no rights in or to any Customer Materials, however you
|
|
grant us the right to use Customer Materials in order to provide the C&I
|
|
Services. Nothing in these General Terms will deemed to transfer to us
|
|
any ownership of Customer Materials.
|
|
|
|
5. C&I Services Materials and Customizations
|
|
Unique to You
|
|
|
|
C&I Services Materials. The C&I Services we perform (e.g.,
|
|
configuration of our Offerings), and the C&I Services Materials we offer,
|
|
create, and deliver to you in connection with the C&I Services, are
|
|
generally applicable to our business, and therefore we require the right
|
|
to be able to re-use the C&I Services Materials we create for one
|
|
customer in connection with all of our customers. For the avoidance of
|
|
doubt, our use of the C&I Services Materials created for you in
|
|
connection with C&I Services will comply with our ongoing obligations
|
|
and restrictions with respect to your Customer Materials and your
|
|
Confidential Information, and we will not identify you in any way in
|
|
connection with our further use of such C&I Services Materials.
|
|
|
|
Customer Owned Work Product. However, in the unlikely event that
|
|
the parties agree that C&I Services Materials for a project are custom
|
|
work product unique to your business, and not applicable to other
|
|
customers generally, we will transfer ownership to those agreed C&I
|
|
Services Materials to you under the applicable Statement of Work. C&I
|
|
Services Materials must be expressly identified as "Customer Owned
|
|
Work Product" under a Statement of Work for ownership to pass to
|
|
you. Subject to payment of applicable Fees under the Statement of
|
|
Work, we hereby assign to you all rights, title and interest (including all
|
|
Intellectual Property Rights therein) in and to all C&I Services Materials
|
|
identified as Customer Owned Work Product (but excluding all Pre-
|
|
Existing Splunk IP incorporated into the Customer Owned Work
|
|
Product). At your request and expense, we will assist and cooperate
|
|
with you in all reasonable respects and will execute documents, and
|
|
take such further acts reasonably requested by you to enable you to
|
|
acquire, transfer, maintain, perfect and enforce your ownership rights in
|
|
such Customer Owned Work Product.
|
|
|
|
Our Ownership. Subject to your ownership rights in Customer Owned
|
|
Work Product and Customer Materials, we will own all rights in and to all
|
|
C&I Services Materials.
|
|
|
|
License Rights. For those C&I Services Materials that are not
|
|
Customer Owned Work Product, you will have the right to access and
|
|
use those C&I Services Materials in connection with your applicable
|
|
Offerings, and those rights will be of the same scope and duration as
|
|
your rights to the underlying Offering.
|
|
|
|
6. C&I Services Warranty
|
|
|
|
We warrant that the C&I Services will be performed in a good and
|
|
workmanlike manner consistent with applicable industry standards.
|
|
This warranty will be in effect for a period of thirty (30) days from the
|
|
completion of any C&I Services. As your sole and exclusive remedy
|
|
and our entire liability for any breach of the foregoing warranty, we will,
|
|
at our option and expense, promptly re-perform any C&I Services that
|
|
fail to meet this warranty or refund to you the fees paid for the non-
|
|
conforming C&I Services.
|
|
|
|
7. Your Cooperation
|
|
|
|
You acknowledge that your timely provision of (and our access to) your
|
|
facilities, equipment, assistance, cooperation, data, information and
|
|
materials from your officers, agents and employees (the "Cooperation")
|
|
is essential to Splunk's performance of the C&I Services. We will not be
|
|
liable for any delay or deficiency in performing the C&I Services if you
|
|
do not provide the necessary Cooperation. As part of the Cooperation,
|
|
you will (1) designate a project manager or technical lead to liaise with
|
|
us while we perform the C&I Services; (2) allocate and engage
|
|
additional resources as may be required to assist us in performing the
|
|
C&I Services; and (3) making available to us any data, information and
|
|
any other materials reasonably required by us to perform the C&I
|
|
Services, including any data, information or materials specifically
|
|
identified in the Statement of Work.
|
|
|
|
8. Insurance
|
|
|
|
Throughout any period of C&I Services we perform for you, we will
|
|
maintain insurance policies in the types and amounts described below
|
|
at our own expense:
|
|
|
|
Commercial General Liability Insurance with a limit of not less than
|
|
$1,000,000 per occurrence and a general aggregate limit of not less
|
|
than $2,000,000.
|
|
|
|
Business Auto Insurance with a limit of not less than $1,000,000 per
|
|
accident. Such Insurance will cover liability arising out of "hired and
|
|
non-owned" automobiles.
|
|
|
|
Worker's Compensation Insurance as required by workers'
|
|
compensation, occupational disease and occupational health and safety
|
|
laws, statutes and regulations.
|
|
|
|
Technology Errors & Omissions Insurance with a limit of not less than
|
|
$3,000,000.
|
|
|
|
Umbrella/Excess Insurance with a limit of not less than $3,000,000.
|
|
|
|
9. Change Order Process
|
|
|
|
You may submit written requests to us to change the scope of C&I
|
|
Services described in a Statement of Work (each such request, a
|
|
"Change Order Request"). If we elect to consider a Change Order
|
|
Request, then we will promptly notify you if we believe that the Change
|
|
Order Request requires an adjustment to the fees or to the schedule for
|
|
the performance of the C&I Services. In such event, the parties will
|
|
negotiate in good faith a reasonable and equitable adjustment to the
|
|
fees and/or schedule, as applicable. We will continue to perform C&I
|
|
Services pursuant to the existing Statement of Work and will have no
|
|
obligation to perform any Change Order Request unless and until the
|
|
parties have agreed in writing to such an equitable adjustment.
|
|
|
|
10. Expenses
|
|
|
|
Unless otherwise specified in the Statement of Work, we will not charge
|
|
you for our expenses we incur in connection with a Statement of Work.
|
|
Our daily C&I Services rates are inclusive of any expenses. In the event
|
|
the parties agree that expenses are reimbursable under a Statement of
|
|
Work, we will mutually agree on any travel policy and any required
|
|
documentation for re-imbursement.
|
|
|
|
11. Prepaid C&I Services
|
|
|
|
Unless otherwise expressly stated in a Statement of Work, all prepaid
|
|
C&I Services must be redeemed within twelve (12) months from the
|
|
date of purchase/invoice. At the end of the twelve (12) month term, any
|
|
remaining pre-paid unused C&I Services will expire; no refunds will be
|
|
provided for any remaining pre-paid unused C&I Services. Unless
|
|
otherwise specifically stated in a Statement of Work, Education is
|
|
invoiced and payable in advance.
|
|
|
|
|
|
Configuration and Implementation
|
|
Services Definitions Exhibit
|
|
|
|
"C&I Services" means the services outlined in the Statement of Work.
|
|
|
|
"C&I Services Materials" means the materials and other deliverables
|
|
that are provided to you as part of the C&I Services, and any materials,
|
|
technology, know-how and other innovations of any kind that we or our
|
|
Personnel may create or reduce to practice in the course of performing
|
|
the C&I Services, including without limitation all improvements or
|
|
modifications to our proprietary technology, and all Intellectual Property
|
|
Rights therein.
|
|
|
|
"Customer Materials" means the data, information, and materials you
|
|
provide to us in connection with your use of the C&I Services.
|
|
|
|
"Fees" means the fees that are applicable to the C&I Services, as
|
|
identified in the Statement of Work.
|
|
|
|
"Intellectual Property Rights" means all worldwide intellectual property
|
|
rights, including copyrights and other rights in works of authorship;
|
|
rights in trademarks, tradenames, and other designations of source or
|
|
origin; rights in trade secrets and confidential information; and patents
|
|
and patent applications.
|
|
|
|
"Offerings" means the products, services and other offerings that
|
|
Splunk makes generally available for purchase and use.
|
|
|
|
"Orders" means Splunk's quote or ordering document (including online
|
|
order form) accepted by you via your purchase order or other ordering
|
|
document submitted to Splunk (directly or indirectly through an
|
|
authorized reseller) to order C&I Services.
|
|
|
|
"Personnel" means any employee, consultant, contractor, or
|
|
subcontractor of Splunk.
|
|
|
|
"Splunk Preexisting IP" means, with respect to any C&I Services
|
|
Materials, all associated Splunk Technology and all Intellectual Property
|
|
Rights created or acquired: (a) prior to the date of the Statement of
|
|
Work that includes such C&I Services Materials, or (b) after the date of
|
|
such Statement of Work but independently of the C&I Services provided
|
|
under such Statement of Work.
|
|
|
|
"Statement of Work" means the statements of work and/or any all
|
|
applicable Orders that describe the specific services to be performed by
|
|
Splunk, including any materials and deliverables to be delivered by
|
|
Splunk.
|
|
|
|
|
|
SPLUNK GENERAL TERMS (v1.2020)
|
|
|
|
|