SPLUNK APP END USER LICENSE AGREEMENT
THIS SPLUNK APP END USER LICENSE AGREEMENT (THIS “AGREEMENT”) GOVERNS THE LICENSING, INSTALLATION AND USE OF THE SOFTWARE DESCRIBED HEREIN AS PROVIDED BY SPLUNK. BY DOWNLOADING AND/OR INSTALLING THE SOFTWARE: (A) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF THE COMPANY, GOVERNMENT, OR OTHER ENTITY FOR WHICH YOU ARE ACTING (FOR EXAMPLE, AS AN EMPLOYEE OR GOVERNMENT OFFICIAL) OR, IF THERE IS NO COMPANY, GOVERNMENT OR OTHER ENTITY FOR WHICH YOU ARE ACTING, ON BEHALF OF YOURSELF AS AN INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY, GOVERNMENT OR OTHER ENTITY (IF ANY). AS USED IN THIS AGREEMENT, “SPLUNK,” REFERS TO SPLUNK INC., A DELAWARE CORPORATION, WITH ITS PRINCIPAL PLACE OF BUSINESS AT 270 BRANNAN STREET, SAN FRANCISCO, CALIFORNIA 94107, U.S.A.; AND “YOU” OR “YOUR” REFERS TO THE COMPANY, GOVERNMENT, OR OTHER ENTITY ON WHOSE BEHALF YOU HAVE ENTERED INTO THIS AGREEMENT OR, IF THERE IS NO SUCH ENTITY, YOU AS AN INDIVIDUAL.
1. DEFINITIONS “Affiliate” means, with respect to a party, any other person or entity that directly or indirectly Controls or is Controlled by such party, but only for so long as such Control exists. “Control” and its grammatical variants mean (i) a general partnership interest in a partnership, or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors. “Internal Business Purpose” means the use of any of the Software only for Your internal business use with Your systems, networks, devices and data. Such use does not include use of Your systems, networks or devices as part of services You provide for a third party’s benefit. “Software” means the Splunk software application indicated above or described on the download page and any updates, upgrades, releases, fixes, enhancements or modifications thereof or thereto.
2.1 License Grant. Subject to Your compliance with the terms and conditions of this Agreement, Splunk grants to You a non-exclusive, non-transferable, non-sublicensable, worldwide, fully-paid up license to download and use the Software, in object code form only, on the device that You own or control and only for Your Internal Business Purposes.
2.2 Qualified User. The Software is to be used only in conjunction with the specific Splunk product or service identified in materials distributed with the Software, with which such Software was designed to operate (“Splunk Product”). Therefore, You may use the Software only if You are an authorized user of the Splunk Product. This Agreement does not modify or alter the terms of the software license agreement delivered with the Splunk Product.
2.3 License Restrictions. You agree not to (a) use the Software except as expressly authorized in this Agreement; (b) copy the Software (except as required to run the Software and for reasonable backup purposes); (c) modify, adapt, or create derivative works of the Software; (d) rent, lease, loan, resell, transfer, sublicense (including, but not limited to, offering any of the functionality of the Software on a service provider, hosted or time sharing basis or making the Software available over a network where it could be used by multiple devices at the same time) or distribute the Software to any third party; (e) decompile, disassemble or reverse-engineer the Software or otherwise attempt to derive the Software source code; (f) disclose to any third party the results of any benchmark tests or other evaluation of the Software; or (g) authorize any third parties to do any of the above. Any consultant, contractor, or agent hired to perform services for You may operate the Software on Your behalf under these terms and conditions, provided that: (v) You are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to You; (x) such use is only in connection with Your Internal Business Purpose; (y) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (z) You remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section shall be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from Splunk shall be required.
3. OWNERSHIP. Splunk, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Software, including all related intellectual property rights (including patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered). Except as expressly stated in this Agreement, Splunk does not grant You any intellectual property rights in the Software, and all right, title, and interest in and to the Software not expressly granted herein remain with Splunk, its suppliers and/or its licensors. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove or obscure any copyright, trademark, and/or any other intellectual property or other proprietary notices from the Software.
5. NO WARRANTY. SPLUNK, ITS SUPPLIERS AND/OR ITS LICENSORS PROVIDE THE SOFTWARE AS-IS AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, AND INTEGRATION, AND OTHER WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SPLUNK SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. BECAUSE THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES OR JURISDICTIONS, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
6. LIMITATION OF LIABILITY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) SPLUNK AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “SPLUNK ENTITIES”) WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) SPLUNK ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00); IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER SPLUNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, YOU, AND NOT SPLUNK, ARE SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF YOUR DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF YOUR DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE).
7. TERM AND TERMINATION. The license granted under this Agreement is effective until terminated by You or Splunk. Your rights under this license will terminate automatically without notice from Splunk if You fail to comply with any term(s) of this Agreement. The license granted under this Agreement will automatically terminate upon termination or expiration of the license granted to You for the applicable Splunk Product. Upon termination, You shall cease all use of the Software, and destroy all copies, full or partial, of the Software.
8. EXPORT. You will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where You use the Software. You certify that You are not on any of the relevant U.S. Government lists of prohibited or restricted parties, including but not limited to the Treasury Department’s List of Specially Designated Nationals, and the Commerce Department’s List of Denied Persons or Entity List. You further certify that You shall not export, re-export, ship, transfer or otherwise use the Software in any country subject to an embargo, designated by the U.S. Government as a “terrorist supporting” country, or other sanction by the United States and that You shall not use the Software for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
9. GOVERNMENT END USER RIGHTS. You acknowledge that the Software was developed entirely at private expense and that no part of the Software was first produced in the performance of a Government contract. You agree that the Software and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. § 2.101, and if You are a U.S. Government agency or instrumentality or if You are providing all or any part of the Software or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Software is licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, You will have no rights in the Software except as expressly agreed to in writing by You and Splunk.
10. CHOICE OF LAW AND DISPUTES. (i) For other than the U.S. Government as a party, this Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California, U.S.A., and the parties hereby consent to personal jurisdiction and venue therein (except that Splunk may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Splunk Materials in any court of competent jurisdiction). If a dispute arises between You and Splunk, and either You or Splunk files suit in any court of competent jurisdiction to enforce rights under this Agreement, then the prevailing party shall be entitled to recover from the other party all costs of such action or suit, including, but not limited to, investigative costs, court costs and reasonable attorneys’ fees (including expenses incurred to collect those expenses). (ii) If a dispute arises between You and Splunk that is related to a Government customer, this Agreement shall be governed by and interpreted in accordance with the Contract Disputes Act of 1978, as amended (41 U.S.C. §§ 7101-7109). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the clause at 48 C.F.R § 52.233-1, which is incorporated in this Agreement by reference.
11. GENERAL. Unless otherwise provided herein, all rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Splunk may assign this Agreement in whole or in part to (i) an Affiliate, upon written notice to You (such notice to be delivered electronically or otherwise) or (ii) in connection with an internal reorganization or in connection with a merger, acquisition, or sale of all or substantially all of Splunk’s assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement constitutes the complete and exclusive understanding and agreement between the parties relating to Your use of the Software and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to the Software. Except as otherwise set forth in Section 12 of this Agreement, any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and agreed to by You and a duly authorized representative of Splunk.
12. MODIFICATION. Splunk may modify the terms and conditions set forth in this Agreement from time to time. Unless Spunk indicates otherwise, such modifications will be effective as of the date they are posted. You should therefore review these terms and conditions regularly. Splunk may provide notice, in accordance with the provisions of Section 13 of this Agreement, of material modifications.
13. NOTICES. Splunk may provide You with notices, including, but not limited to, notifications generated in connection with the Splunk Product and/or the Software, service announcements and notices regarding changes to the terms and conditions set forth in this Agreement, by, but not limited to, email, text message or SMS, MMS, push notification or in-app message, or other reasonable means now known or hereafter developed. You consent to receive the foregoing notices by any and all of the foregoing means, except to the extent that You have not opted in on Your Device to receive any of the foregoing. All notices required of or permitted from You under this Agreement will be in writing and delivered in person, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt.
14. ADDITIONAL TERMS REQUIRED BY APPLE.
14.1 Acknowledgement: You acknowledge that this Agreement is concluded between Splunk and You as the end-user only, and not with any third party, including Apple, Inc. (“Apple”). Splunk, not Apple, is solely responsible for the Software and the content thereof. The terms of this Agreement are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the Apple App Store Terms of Service (“App Store Terms of Service”) as of the date hereof (which You acknowledge You have had the opportunity to review).
14.2 Scope of License: Subject to all the terms and conditions set forth in this Agreement and supplementing the provisions of Section 2.1 of this Agreement, we hereby grant You a license to use the Software, only on Your App Store compatible device (“Device”). The license granted to You for the Software must be limited to Your use on an Apple-branded iOS mobile Device (such as iPhone, iPod touch and iPad) or Apple-branded tvOS Device (Apple TV) that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
14.3 Responsibility: You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software. Further, in the event of any failure of the Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Software to You; and that, to the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, costs or expenses relating to the Software or Your use of the Software. You acknowledge that Apple has no responsibility for addressing any claims relating to the Software or Your use of the Software, including but not limited to (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) any claims arising under consumer protection or similar legislation. In the event of any third party claim that the Software or Your use of that Software infringes upon that third party’s intellectual property rights, Splunk, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
14.4 Third Party Terms of Agreement: To the extent that any third-party terms are applicable when using the Software, You must comply with such terms when using the Software.
14.5 Third Party Beneficiary: Splunk and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third-party beneficiary hereof.
14.6 Developer Name and Address: Splunk’s address is 270 Brannan Street, San Francisco, CA 94107, U.S.A., Attn: General Counsel. Questions regarding the Software may be submitted to the Mobile Team at (415)848-8400 or firstname.lastname@example.org. Any complaints or claims regarding the Software may be submitted via email to email@example.com.