Splunk Inc. Services Agreement For SignalFx Cloud Services

Last Updated: October 1, 2019 (previously November 9, 2018, September 4, 2018 and October 4, 2015). Capitalized terms not defined below are defined in Section 12 below.

THIS DOCUMENT IS A LEGAL CONTRACT. PLEASE READ IT CAREFULLY. This Services Agreement (“Agreement”) is an agreement between you as our customer (“Customer” or “you”) and governs your access to and use of the SignalFx cloud software services (collectively, the “Service”) provided by Splunk Inc. (“Splunk” or “we”). Use of and access to the Service is conditioned upon your compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Your use of the Service indicates your acceptance of this Agreement, and that you understand and agree to be bound by this Agreement. We may modify this Agreement (including any policies we reference) at any time by posting a revised version on our website or by otherwise notifying you in accordance with Section 11.6. The modified Agreement will become effective upon posting (“Effective Date”). By continuing to use the Service after the Effective Date, you agree to be bound by the modified Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.

If you do not accept all of the terms of this Agreement, you may not access or use the Service.

1. Free Trial

You can receive a free trial to our Service for fourteen (14) days, or such longer period at the exclusive discretion of Splunk (the “Trial Period”). You may be required to agree to additional terms and conditions, which will be presented to you prior to your registration for the free trial. If you choose to subscribe to the Service at or before the end of the Trial Period, we will preserve your Data (as defined in Section 12) for continued use with your paid subscription plan. If you do not subscribe to a paid subscription plan at or before the end of the Trial Period, we reserve the right to delete your Data after the expiration of the Trial Period.

NOTWITHSTANDING SECTION 7 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE TRIAL PERIOD THE SERVICE IS PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY.

2. Use of Services

2.1 Account

In order to access and use the Service, you will need to register with us and create an account (“Account”). We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading. You are responsible for maintaining the confidentiality of your Account, including any tokens we provide to you that enable you to send data to the Service (“API Tokens”), and of the login and passwords for all users whom you have authorized to access your Account (“Authorized Users”). You agree to notify Splunk if any API Tokens or passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are responsible for all activities that occur under your Account, including those carried out by any Authorized Users associated with your Account. You will promptly notify Splunk of any unauthorized use of or access to the Service.

2.2 Rights to Use the Service

Subject to your compliance with this Agreement, we will make the Service available to you and your Authorized Users during the applicable subscription term or Trial Period. We hereby grant you and your Authorized Users a limited, non-exclusive, non-transferable, revocable right to access and use the Service during the applicable subscription term or Trial Period, solely for your own personal or internal business use. Your rights in the Service will be limited to those expressly granted in this Section 2.2. Splunk and its licensors reserve all rights and licenses in and to the Service not expressly granted under this Agreement.

2.3 Prohibitions

You will not: (i) sell, resell, license, sublicense, distribute, rent or lease the Service, whether for a fee or not; (ii) copy the Service in whole or in part; (iii) access the Service in order to build a competitive product or service; (iv) reverse engineer any part of the Service; (v) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or applicable documentation; (vi) attempt to gain unauthorized access to any part of the Service or its related systems or networks; (vii) transmit a virus to, overload, flood, spam, or paralyze the Service or take any action or inaction which interferes with the integrity of the Service; (viii) submit any information that, alone or in combination with other data, identifies or may lead to the identification of an individual (“Personal Data”) (e.g., contact information, national identifier, credit card number); or (ix) encourage, authorize, or enable anyone to do any of the foregoing.

2.4 Subscriptions

The Service is purchased as a subscription. Each subscription plan is described in the applicable Order (defined in section 4.1).

2.5 Maintenance and Support

We will provide you with limited maintenance and support services for your applicable subscription plan, in accordance with and subject to our standard 8 hours a day/5 days a week email support available Monday through Friday, 9am-5pm Pacific Standard/Daylight time, unless otherwise noted in a customized Order Form.

We will have no obligation of any kind to provide support for any issues relating to the operation or performance of the Service to the extent caused by any of the following: (i) non-SignalFx software or hardware products or use of the Service in conjunction therewith; or (ii) use of the Service other than as authorized in this Agreement.

2.6 Data Security

The security of your Data is important to us. We take commercially reasonable administrative, technical, organizational, and physical measures designed to protect the confidentiality, integrity and availability of your Data from accidental loss, unauthorized access, use, alteration and disclosure. When Data is transmitted via the Service, we encrypt this data in transmission using SSL or other technologies. Please be aware, however, that no method of transmitting information over the Internet or storing information is completely secure. Accordingly, we cannot guarantee the absolute security of any Data.

2.7 Modifications to Service

We may change the features within the Service and/or update the Service from time to time, without prior notice to you.

2.8 Beta Services or Features

From time to time, we may invite you to try our beta services or features under development (“Beta Services or Features”) at no charge. You may accept or decline any such invitation at your sole discretion. Beta Services or Features will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services or Features are for evaluation purposes only and not for production use, are not considered “Service” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services or Features will expire upon the earlier of six (6) months from the start date or the date that a version of the Beta Services or Features becomes generally available. We may discontinue Beta Services or Features at any time at our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service or Feature.

3. Third Party Technology and Services

The Service may provide links to certain third-party services, which are compatible with our Service, or plug-ins for our Service, or you may use third-party services and technology with our Service (“Third Party Technology”). We do not endorse and are not responsible or liable for the products or services provided by such third parties and are not responsible for the operation or functionality of such Third Party Technology. You are solely responsible for your use of any Third Party Technology, including compliance with the terms and conditions governing use of such Third Party Technology and you enable, use or access them at your own risk.

ANY THIRD PARTY TECHNOLOGY DOWNLOADED BY YOU OR OTHERWISE OBTAINED OR USED IN CONNECTION WITH THE SERVICE IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU AND YOUR AUTHORIZED USERS WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO SUCH USE, INCLUDING, BUT NOT LIMITED TO ANY DAMAGE TO COMPUTER SYSTEMS, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA, THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH THIRD PARTY TECHNOLOGY.

4. Fees and Payment for Services

4.1 Fees

By subscribing to the Service, you agree to pay Splunk all fees set forth in a customized order form (an “Order Form”) or an order receipt from an online purchase (the “Order Receipt”) (together, the Order Form and the Order Receipt are referred to as the Order (the “Order”). Except as otherwise specified in an Order: (i) payment obligations are non-cancelable and fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant subscription term. You agree that you will be responsible for reimbursing Splunk for any and all reasonable costs and expenses incurred in collecting any past due amounts or service charges, including, but not limited to, reasonable attorneys’ fees, chargeback fees or other related charges.

4.2 Payment by Payment Card

If you provide credit or debit card (“Payment Card”) information to us, you authorize Splunk: (i) to charge your Payment Card for verification, pre-authorization and payment purposes at the beginning of each subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased Subscriptions), and (ii) to bear any additional charges that your bank or other financial service provider may levy on you. Such charges will be made in advance or in accordance with any alternative billing frequency stated in an applicable Order. We reserve the right to suspend or cancel your subscription plan if we are unable to charge your Payment Card for any payment period. If you object to a charge, you agree to promptly notify Splunk and make reasonable attempts to resolve the objection before canceling payment.

4.3 Invoicing

If the Order specifies that payment will be by a method other than a Payment Card, we will invoice you in advance and otherwise in accordance with the relevant Order. Unless stated otherwise in the Order, invoiced charges are due net thirty (30) days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. Any past due payments shall be subject to a service charge equal to 1.0% per month of the amount due or the maximum amount allowed by law, whichever is less.

4.4 Changes to Fee Schedule

We reserve the right to change our fee schedule at any time and we will notify you in advance of such changes before they become effective. Changes to the fee schedule will not apply retroactively and will only apply at the conclusion of your subscription term for your subscription renewal. If you do not agree with the changes to our fee schedule, then your only recourse is to stop using the Service.

4.5 Taxes

All stated fees are exclusive of taxes or duties of any kind. You will be responsible for, and will promptly pay all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or your use of the Service, except for taxes based on Splunk’s net income.

4.6 Future Functionality

You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

5. Proprietary Rights and Licenses

5.1 Reservation of Rights

We and our licensors exclusively own the Service and all copyrights, patents, trademarks, and other intellectual property rights therein. You may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Service.

5.2 License by You to Host Your Data

We do not claim any ownership rights in your Data. Nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit your Data.

You hereby grant to Splunk a non-exclusive, worldwide, royalty-free, transferable license to access, use, reproduce and distribute this Data solely in connection with the Service and our provision, support and improvement of the Service to you. You represent and warrant that you or your licensors own all right, title and interest in and to this Data and that you have all rights and authorization in this Data necessary and sufficient to transmit to, upload to, run on, process on, store in, cause to interface with, or use, in connection with your Account on the Service, and to grant the rights contemplated by this Agreement. You are solely responsible for all of this Data, including but not limited to its accuracy, quality, lawful collection and use.

In order for the Service to perform the functions for which it was designed, the Service will gather and transmit certain technical information, account information, and metadata associated with your use of the Service, to our servers, including but not limited to information about your IP configurations, credentials, network metadata, and telemetry information about your operating system and use of the Service, such as session information (collectively, “Metadata”). For clarity, Metadata does not include your Data. You agree and consent to access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata by Splunk in order to administer, support, develop and improve the Service and Splunk’s other products and services, and to monitor compliance with this Agreement.

5.3 License for Downloaded Software

Any software that is made available to download in connection with this Service (“Downloaded Software”) is the copyrighted work of Splunk, its suppliers and/or its licensors. Your rights to access, download and use any Downloaded Software will be subject to the terms and conditions of the software license agreement identified on the site and/or in the Downloaded Software (each a “Downloaded Software License Agreement”). You may not install any Downloaded Software that is accompanied by or includes a Downloaded Software License Agreement unless you have agreed to the applicable Downloaded Software License Agreement (and the rights and obligations of you and Splunk for the Downloaded Software shall be governed exclusively by the Downloaded Software License Agreement). Except to the extent expressly permitted in any applicable Downloaded Software License Agreement, or expressly authorized under applicable law overriding any of the following restrictions, you agree that you will not sell, lease, lend, convey, transmit, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or attempt to derive source code from the Downloaded Software. Any reproduction, redistribution or other use or exploitation of the Downloaded Software not in accordance with the Downloaded Software License Agreement and/or this Agreement is expressly prohibited by law, and may result in civil and criminal penalties.

5.4 Feedback

If you provide Splunk with any suggestions, comments, or other feedback regarding the Service (“Feedback”), you acknowledge that such Feedback will become the exclusive property of Splunk, and we may use (or not use) any such Feedback in any manner and for any purpose, without compensation to you and without implying or creating any interest on your part in any of our products or services that may be based on such Feedback. You hereby irrevocably assign to Splunk all right, title, and interest in any Feedback provided to Splunk.

6. Confidentiality

Confidential Information” means the Service and your Data; any features, and other information relating to the Service (including, without limitation, all Feedback); any non-public business or technical information of either party that is disclosed to the other party in connection with this Agreement; and all other non-public information disclosed by a party to the other party that is designated as “confidential”, or that, given the nature of the information or circumstances surrounding the disclosure, should reasonably be understood to be confidential. The obligations in this Section will not apply to the extent any information: (i) is or becomes generally known to the public through no fault or breach of this Agreement by a party; (ii) is rightfully known by a party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by a party without access to or use of any Confidential Information; or (iv) is rightfully obtained by a party from a third party without restriction on use or disclosure. Neither party will use or disclose any Confidential Information, except as necessary to exercise the rights expressly granted to such party in this Agreement. Each party will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of a similar nature and importance. The recipient may disclose Confidential Information only to employees or its contractors or who have a bona fide need to know such Confidential Information and who are bound to written obligations of confidentiality at least as protective of the Confidential Information as those set forth in this Agreement.

7. Representations, Warranties, Exclusive Remedies and Disclaimers

7.1 Representations

Each party represents that it has entered into this Agreement and has the legal power to do so. For the avoidance of doubt, if the Service is to be used by or on behalf of a company or other organization, the individual accepting this Agreement represents and warrants that he or she has the authority to bind that company or other organization to this Agreement, and “you,” and “your” will refer to that company or other organization.

7.2 Our Warranties

We warrant that the Service will perform substantially in accordance with the user documentation for the Service that we make generally available to users (“Documentation”). As your sole and exclusive remedy and Splunk’s entire liability for any breach of this limited warranty, we will at our option and expense promptly correct the Service so that it conforms to this limited warranty or, if we are unable to do so after using reasonable efforts, we will in our discretion, allow you to cancel your subscription and provide you a pro rata refund for any pre-paid but unused Services at the time of termination.

7.3 Disclaimers

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, SPLUNK DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT SUCH A LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

8. Mutual Indemnification

8.1 Indemnification by You

You will indemnify, defend and hold Splunk and its officers, directors, employees and agents, harmless from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees (“Splunk Claim”) arising out of or in any way connected with: (i) your access to or use of the Service, including, but not limited to, your breach of this Agreement, or (ii) your Data, including but not limited to, the transmission to and use or processing of your Data in the Service, and infringement or misappropriation of any third party proprietary rights by your Data, provided that we: (a) promptly notify you in writing of the Splunk Claim; (b) grant you sole control of the defense and settlement of the Splunk Claim (except that you may not settle any Splunk Claim that requires any action or forbearance on Splunk’s part without Splunk’s prior consent, which Splunk will not unreasonably withhold or delay); and (c) provide you, at your expense, with all assistance, information and authority reasonably required for the defense and settlement of the Splunk Claim.

8.2 Indemnification by Us

We will defend you and pay all damages (including reasonable attorneys’ fees and costs) finally awarded against you, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against you by a third party (including those brought by the government) alleging that the Service or Splunk software infringes or misappropriates such third party’s United States patent, copyright, trademark or trade secret (“Customer Claim”), provided that you: (i) provide Splunk with prompt written notice of the Customer Claim; (ii) give Splunk sole control of the defense and settlement of the Customer Claim (except that Splunk may not settle any Customer Claim that requires any action or forbearance on your part without your prior consent, which you will not unreasonably withhold or delay); and (iii) give Splunk all reasonable assistance, at Splunk’s expense. Splunk will have no obligation under the foregoing provision to the extent a Customer Claim arises from your breach of the Agreement, your Data, or the combination of the Splunk Software with: (a) your Data or the data of a third-party; (b) any software other than the Splunk software; or (c) any hardware or equipment. Splunk may in its sole discretion and at no cost to you: (1) modify any Service and/or Splunk software so that it no longer infringes or misappropriates a third party right, (2) obtain a license for your continued use of the Splunk software, in accordance with the Agreement, or (3) terminate this Agreement and refund you the pro-rata amount of the fee you have paid for the then-current payment period.

8.3 Exclusive Remedy

THE PROVISIONS OF THIS SECTION 8 SET FORTH SPLUNK’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

9. Limitation of Liability

SPLUNK’S TOTAL LIABILITY TO YOU AND YOUR AUTHORIZED USERS FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID TO SPLUNK (OR ITS PREDECESSOR SIGNALFX) BY YOU FOR THE SERVICE DURING THE LAST PAYMENT PERIOD (I.E. YOUR SUBSCRIPTION TERM, NOT TO EXCEED 12 MONTHS) IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. WE WILL NOT BE LIABLE TO YOU OR YOUR AUTHORIZED USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10. TERM AND TERMINATION

10.1 Term of Agreement

This Agreement will remain in force and effect until all trials and subscriptions hereunder have expired or have been terminated.

10.2 Term of Purchased Subscription

The term of each subscription shall be as specified in the applicable Order, or as selected via the Splunk website or the functionality of the Service. Except as otherwise specified in an Order, subscriptions will automatically renew for the additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term, or, in the case of monthly subscriptions, at any time before the end of the subscription term. The subscription tier pricing during any automatic renewal term will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least sixty (60) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

10.3 Termination by You

You may terminate this Agreement for cause upon 30 days written notice to Splunk of a material breach if such breach remains uncured at the expiration of such period.

10.4 Suspension or Termination by Splunk

At Splunk’s sole discretion, we may suspend or terminate your Account and use of the Service, immediately and without notice, if: (a) you breach any of the terms in this Agreement, (b) you have act in a manner that clearly shows you do not intend to, or are unable to, comply with the terms of this Agreement, or (c) you have not paid fees due under the Agreement. In addition, we may suspend or limit your Account and use of the Service as we deem appropriate to prevent, investigate, or otherwise address any suspected misuse of the Service.

10.5 Surviving Provisions

The provisions of Sections 2.3 and 3 through 11 will survive any expiration or termination of this Agreement. After termination or expiration of this Agreement and only upon your written request, for paid subscription plans Account holders only, we will return the portion of your metrics Data submitted to the Service and stored in accordance with our data retention policy and procedures, provided however that we are solely responsible for the form, delivery mechanism and composition of this Data to be returned to you.

11. General Provisions

11.1 Export Control

You agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Service, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.

11.2 U.S. Government End Users

The Service and Documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212, DFARS 227.7202 and other government acquisition regulations, as applicable. If the Service and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Service and Documentation will be only those specified in this Agreement.

11.3 Dispute Resolution

This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. You and we irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in San Mateo County, in the State of California for any disputes arising under this Agreement.

11.4 Publicity

You agree that we may identify you as a customer of the Service and display your name and logo (if any) in connection with such identification, on the Splunk websites and in its other published marketing materials. We will use good-faith efforts to comply with any reasonable trademark usage guidelines you provide to Splunk in connection with your name and logo.

11.5 Assignment

You may not assign any rights or obligations under this Agreement, whether by operation of law or otherwise, without our prior written consent. We may assign this Agreement freely to any affiliate or in the event of merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

11.6 Notice

We may provide any notice to you under this Agreement by: (i) posting a notice on our website; or (ii) sending a message to the administrative email address(es) then associated with your Account. Notices we provide by posting on the our website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address(es) current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

11.7 Severability

In the event that any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.

11.8 Waiver

Splunk’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Splunk.

11.9 Force Majeure

Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

11.10 Entire Agreement

This Agreement constitutes the entire agreement between the parties regarding the Service, and it supersedes and replaces any prior agreements and understandings between the parties regarding the Service; provided that, in the event that any provision of this Agreement conflicts with the terms of an Order, such conflict or inconsistency shall be resolved by giving precedence to the Order.

12. Definitions for Order Receipt (applicable to online subscriptions only)

If you subscribe for the Service online and receive an Order Receipt, the following definitions shall apply:

Data” means information or other materials that you transmit to, upload to, or store in the Service under your Account.

Host” means a virtual machine or physical server with a dedicated operating system.

Container” means a stand-alone, executable package of software that includes application software and sufficient operating system libraries to run in isolation but shares the underlying operating system with other Containers.

Metric” means any unique combination of a Metric name and dimension value reporting data to Splunk within the last hour.

Custom Metric” means any Metric that is not automatically collected and reported as part of Splunk’s standard Host-based integrations.

High Resolution Metric” means any Metric reported to Splunk that is specifically identified as a High-Resolution Metric by Customer in a manner specified by Splunk in the service documentation. Any Metric with such designation shall be processed by Splunk at a resolution no coarser than the native reporting resolution or 1-second, whichever is coarser, and shall be retained according to the Metric retention policy of the service edition purchased.

Subscription Limits, Usage Measurement and Enforcement:

Subscription Limits. The Service is purchased as a subscription. Each subscription plan is defined by the subscription capacity limits as described in the Order (the “Subscription Limits”).

Usage Measurement. Splunk measures Customer’s maximum concurrent usage of each component in the Subscription Limits on an hourly basis. At the end of each monthly billing cycle, Splunk measures the monthly usage at the average of all hourly measurements during that monthly billing cycle (the “Monthly Usage Level”).

Subscription Limits Enforcement. If Customer’s Monthly Usage Level exceeds the allowable Subscription Limits, Customer agrees to pay Splunk an overage fee (the “Overage Fee”) based upon overage pricing as specified in the Order (the “Overage Rate”), or Splunk may, at its sole discretion, limit Customer’s ability to monitor new Hosts, Containers or Metrics until it conforms to the contractual Subscription Limits, provided that, however, if Customer’s Usage at any time during the term of the Agreement is greater than or equal to a 5x multiple of allowable Subscription Limits, Splunk may, at its sole discretion, limit Customer’s ability to monitor new Hosts, Containers or Metrics, irrespective of Customer’s Monthly Usage Level.