END USER LICENSE AGREEMENT
IMPORTANT–READ CAREFULLY: SUBJECT TO THE LICENSEE AS AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY (“LICENSEE”) ENTERING INTO AN LICENSE FOR THE SOFTWARE (“SOFTWARE”) WITH SANDISK CORPORATION (“SANDISK”) OR A THIRD PARTY AUTHORIZED BY SANDISK (“AUTHORIZED THIRD PARTY”), UNDER THIS END USER LICENSE AGREEMENT (“AGREEMENT”), SANDISK HEREBY OFFERS LICENSEE OR AUTHORIZED THIRD PARTY THE TERMS AND CONDITIONS SET FORTH BELOW. THIS AGREEMENT IS A BINDING AGREEMENT WITH SANDISK. DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT. CLICKING “ACCEPT” OR DOWNLOADING, USING OR INSTALLING THE SOFTWARE CONSTITUTES ACCPETANCE OF THESE TERMS. IF LICENSEE DOES NOT AGREE TO THESE TERMS, LICENSEE SHOULD NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The Software is owned by SanDisk and/or its third party licensors if applicable (“Licensors”). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
Subject to the license restrictions in Section 2, SanDisk grants to Licensee a limited, personal, non-exclusive, non-transferable and revocable license under SanDisk’s intellectual property rights to install and internally use the Software in executable form (the "License"). The Software is “in use” when it is either downloaded, copied, loaded into RAM or installed into the hard disk or other permanent memory of Licensee’s designated server.
2. License Restrictions.
a. Any use of the Software by Licensee in a manner not expressly allowed by this Agreement will immediately terminate Licensee’s license to the Software.
b. Licensee acknowledges and agrees that the Software is licensed and not sold. Except for the rights in the Software expressly granted to Licensee, SanDisk and its Licensors reserve and retain all rights, title, and interest in and to the Software, any derivatives thereto, and any corresponding intellectual property (including without limitation any images, and text incorporated into the Software, any accompanying printed materials, and any copies of the Software). No implied licenses are granted to Licensee.
c. The Software may incorporate third party software licensed under an open source license (“Open Source Software”). Such Open Source Software is licensed under terms provided by the Open Source Software licensors and not the terms of this Agreement. Licensee shall take no action which could cause the Software to become subject to the terms of an Open Source license.
d. To the extent enforceable by law, Licensee shall not reverse engineer, disassemble, decompile, rent, lease, or encumber the Software, or reverse engineer or discover the source code of the Software.
e. Licensee agrees that the Software is proprietary and confidential information of SanDisk and its Licensors, which Licensee shall strictly protect from unauthorized dissemination internally and/or disclosure to third parties. Hosting of the Software or of any Software-related services is prohibited. Licensee shall not separate the Software into component parts for sublicense, sharing, distribution or other form of transfer to a third party.
f. Licensee agrees not to remove and to retain any copyright notices, licensing statements or list of disclaimers included with the Software.
g. Licensee acknowledges that SanDisk may be irreparably harmed in the event of Licensee’s actual or threatened violation of Licensee’s obligations hereunder and that in addition to other remedies to which it may be entitled, SanDisk shall be entitled to seek injunctive relief or any appropriate decree of specific performance for any actual or threatened violations or breach by or on Licensee’s behalf.
h. Licensee grants SanDisk and its Licensors a worldwide, irrevocable, perpetual, transferable, royalty-free license with the right to sublicense, distribute and modify, to any feedback (including information, suggestions, ideas or comments) provided by Licensee to SanDisk regarding the Software.
3. Delivery and Access. Delivery of the Software and any keys necessary to use the Software are made to Licensee electronically. Licensee is fully responsible for downloading and installation of the Software, as well as for guarding keys as necessary to prevent unauthorized distribution or access to third parties. Electronic delivery may be accomplished by SanDisk electronically transmitting Software or keys to Licensee or by making Software or keys available for download by Licensee from a protected download site. Licensee is responsible for supplying all hardware, software, and services necessary to use the Software. Licensee acknowledges that the availability and performance of the Software may be subject to interruption or delay due to causes beyond the reasonable control of SanDisk.
5. Records and Compliance; Audit Rights. Licensee shall maintain and provide SanDisk upon request with appropriate information and records demonstrating Licensee’s compliance with applicable law, regulations and standards organizations. Licensee shall further maintain complete, clear, and accurate records of: (a) the location and use of each copy of the Software; and (b) any other information which may be reasonably requested by SanDisk to determine whether Licensee is paying correct fees and/or complying with the terms of this Agreement and shall provide certified copies of such records at SanDisk’s request. SanDisk or its representatives shall have the right, upon ten (10) days written notice, during Licensee’s normal business hours, to examine and audit Licensee’s books, records, computing devices, and operations to verify Licensee’s compliance with applicable law, regulations, standards organizations and/or this Agreement. Such examination or audit may be performed, in SanDisk’s sole discretion, onsite at Licensee’s premises or through remote access to Licensee’s systems. In the event the inspection or examination reveals a violation of applicable law, regulations and/or license restrictions under this Agreement, Licensee shall reimburse SanDisk for the actual reasonable costs and expenses incurred in connection with such onsite or remote operations audit.
6. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES AND NEITHER SANDISK NOR ITS LICENSORS MAKE ANY REPRESENTATION OR WARRANTY, STATUTORY OR OTHERWISE, IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, OR NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. SANDISK DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, THEN UNLESS LICENSEE IS CURRENT ON SUPPORT, THEN LICENSEE, AND NOT SANDISK (NOR SANDISK’S LICENSORS OR AUTHORIZED THIRD PARTIES IF APPLICABLE), ASSUME THE ENTIRE COST OF NECESSARY SERVICING, REPAIR, OR CORRECTION.
7. Indemnity. Licensee shall at Licensee’s own expense indemnify, defend and hold harmless SanDisk and its Licensors against all claims, suits, proceedings, losses, damages and expenses (including reasonable attorneys’ fees) arising from Licensee’s breach of license or other provisions of this Agreement.
8. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SANDISK OR ITS LICENSORS, NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, LICENSORS, LICENSEES OR AFFILIATES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE DOWNLOAD, DISTRIBUTION, USE OR PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE, EVEN IF SANDISK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF LICENSEE IS DISSATISFIED WITH ANY PORTION OF THE SOFTWARE, OR WITH ANY OF THESE TERMS OF SERVICE, LICENSEE’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SOFTWARE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ANY REMEDY PROVIDED FOR HEREUNDER IN ITS ESSENTIAL PURPOSE. IN NO EVENT WILL SANDISK’S OR ITS LICENSORS’ TOTAL LIABILITY TO LICENSEE EXCEED US$5.00. THE ABOVE LIMITATION MAY NOT APPLY IN CERTAIN JURISDICTIONS WHICH PROHIBIT EXCLUDING OR LIMITING LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
9. The Software is provided with “RESTRICTED RIGHTS.” Use, duplication or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14 and DFARS 252.227-7013 et seq. Use of the Software by the Government constitutes acknowledgement of SanDisk’s proprietary rights therein. Contractor or Manufacturer is SanDisk Corporation, 951 SanDisk Drive, Milpitas, CA 95035 USA. The Software is a “commercial item” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, the Software is licensed to U.S. Government as an End User only and pursuant to the terms and conditions therein.
10. Assignment. Licensee may not assign or transfer this Agreement (by contract or by operation of law) in part or in whole without SanDisk’s prior consent, and any attempt to do so shall be null and void. SanDisk may freely assign or delegate this Agreement.
11. Term and Termination. This Agreement commences on the date Licensee accepts the Agreement and remains effective until the Agreement is terminated. SanDisk may terminate this Agreement and the license immediately and without notice if Licensee breaches this Agreement. Upon termination of this Agreement, Licensee must delete or destroy all unused copies of the Software and report same to SanDisk.
12. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). SANDISK AND ITS LICENSORS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES AND SHALL NOT BE LIABLE FOR ANY LIABILITIES OR DAMAGES ARISING FROM SUCH USE.
13. General. This Agreement (together with other existing agreements, if any between Licensee and SanDisk or an Authorized Third Party contains the entire understanding between the parties with respect to Licensee’s purchase, installation and use of the Software. If any part of this Agreement is found void and unenforceable, it will not affect the validity of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement is governed by and construed under the laws of the State of California, USA and controlling U.S. federal law without regard to conflicts of laws provisions thereof. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be adjudicated in the state or federal courts of Santa Clara County, California, USA, and the parties hereby agree to the exclusive jurisdiction and venue of such courts. Licensee shall not remove or export from the United States or re-export from anywhere any part of the Software or any direct product thereof to any country in violation of U.S. Export Administration Regulations, or a successor thereto, except in compliance with and with all licenses and approvals required under applicable export laws and regulations including, without limitation, those of the U.S. Department of Commerce. The provisions of Sections 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination or expiration of this Agreement.