TERMS AND CONDITIONS
THIS KINNEY GROUP SALES ORDER (“AGREEMENT”) GOVERNS THE PURCHASE OF THE KINNEY GROUP SPLUNK JUMPSTART SERVICE SPECIFIED HEREIN. As used in this Agreement, “KGI,” refers to Kinney Group, Inc., a Delaware corporation, with its principal place of business at 2425 W. Michigan St. Suite 100, Indianapolis, IN 46222, U.S.A. and “Client” refers to the company, government, or entity purchasing the Jumpstart Service.
- SALES AGREEMENT: The terms of this Agreement apply solely to the sale and performance of the Splunk Jumpstart. Client hereby agrees that any additional or different terms included in any purchase order (or other similar documentation) issued by Client, shall be of no force or effect. Any delivery or commencement of the work ordered by Client is done strictly in accordance with these terms and conditions and any terms and conditions supplied or communicated by Client are expressly rejected.
- JUMPSTART SERVICE DESCRIPTION: The Jumpstart Service is a remote service of up to eight hours of best effort services designed to review and assess Client’s Splunk Environment as descripted in the Jumpstart Service for Splunk Reference Guide.
- TAXES: Unless otherwise specified, the Sales Price excludes any applicable Taxes.
- ACCESS TO REQUIRED PERSONNEL FACILITIES AND SYSTEMS: Client acknowledges that all service is performed remotely. In order to facilitate service, Client will provide Kinney Group, Inc. with remote access to its Splunk environment, premises, and equipment to the extent necessary to perform the Splunk Jumpstart Service. Kinney Group, Inc. will not be making any changes to the environment or equipment. Kinney Group is not responsible for any errors or issues currently existing in the Splunk environment. The purpose for this access is only to review and make recommendations in accordance with established best practices for operating a Splunk environment. Client agrees that where participation by its own staff is necessary in KGI’s provision of Services, such staff shall possess the appropriate skill, experience and authority for the tasks assigned to them, and shall be available for the full duration of the performance of the Jumpstart Service. Client agrees to designate a member of its staff who shall have the authority to represent Client on all matters relating to the Services. As applicable to the Services rendered by KGI, Client will provide KGI with: a) use of data communications and telecommunication facilities as reasonably necessary to perform the Services, and c) the right, under Client’s license or agreement with each third-party licensor of software utilized by Client and relating to this Agreement, for KGI to perform its Services with respect to such software. Client shall indemnify and hold harmless KGI from all costs, claims, expenses, damages, and/or liability that KGI incurs as a result of any failure or claimed failure by Client to provide the rights referenced in this paragraph.
- FORCE MAJEURE: Neither party to this Agreement shall be liable to the other party for any failure to perform, or delay in the performance of, any of its obligations hereunder (except for payment obligations) due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of civil or military authority, fire, power failure, labor disputes, acts of war, changes in law, floods, epidemics or acts of terrorism.
- LAW, JURISDICTION, AND VENUE: This Agreement shall be governed by and construed in accordance with the laws of Indiana without regard to its conflicts of law principles. Any proceeding arising from this Agreement shall be brought in a state or federal court situated in Indiana, and each of the parties hereby consents to and waives any objections to personal jurisdiction of, and venue in, such courts.
- INDEPENDENT PARTIES: The Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
KGI warrants that it has the required skill, experience, and qualifications to perform the Services, it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and it shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ELSEWHERE UNDER THE SALES AGREEMENT, KGI MAKES NO OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A SPECIFIC PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, RELIABILITY OR FREEDOM FROM ERROR OR INTERRUPTION OF THE OPERATION, USE, AND FUNCTION OF THE SERVICES OR WORK PRODUCT OR OTHER ITEMS HEREUNDER.
EXCLUSIONS: The warranties set forth above do not apply to problems arising out of or relating to: (a) Client’s or a third-party’s modification of or damage to the Work Product or the media on which it is provided; (b) Client’s operation or use of the Work Product other than as intended; (c) Client’s combination, operation or use of the Work Product with any technology (including any software, hardware, firmware, system or network) or service not specified for Client’s use; (d) Client’s negligence or abuse of the Work Product; (e) Client’s failure to install all updates that KGI has made available to Client; (f) the operation of, or access to, a Client or a third party system or network; (g) Client’s breach of any material provision of this Agreement; (h) any other circumstances or causes outside of the reasonable control of KGI; or (i) Third Party Products.
- LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF ADVISED OF THE POSSIBILITY OF SAME. THE MAXIMUM AGGREGATE LIABILITY OF KGI FOR ANY CLAIM ARISING UNDER THIS AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT FOR THE SERVICES PROVIDED HEREUNDER.
- GENERAL: The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. The Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. The Agreement may not be modified except by written agreement signed duly authorized representatives of both Parties. The Agreement shall not be construed against any Party by reason of its preparation. Section headings used in this Agreement are for reference purposes only and shall not be used in the interpretation hereof. If one or more of the provisions contained in the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of the Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.