SanDisk End User License Agreement (SSD Caching Software) Manual

SanDisk End User License Agreement (SSD Caching Software) Manual

This SanDisk End User License Agreement (SSD Caching Software) (the “Agreement”) for ExpressCache™ software (“Software”) is a legal agreement between user (“You” or “Your”), and SanDisk Corporation together with its majority-owned subsidiaries (collectively “SanDisk”) for the use of the Software provided to You. The Software includes, among other things, software developed by SanDisk, material licensed to SanDisk by third parties, and associated documentation. By clicking the “ACCEPT AND AGREE” button below, or by accessing, copying, or otherwise using the Software or the hardware that includes the Software, You acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. If You do not agree to the terms and conditions of this Agreement, click the “CANCEL” button and do not access or use the Software. SanDisk will not and does not license the Software to You unless You agree to the terms of this Agreement. In consideration of the promises and covenants described below, and other good and valuable consideration, You agree as follows:

License Grant. Subject to the terms and conditions of this Agreement, SanDisk and its Licensors grant You a personal, nonexclusive, nontransferable, revocable, limited license to use the Software for Your personal use solely on the computing or other device on which you received the Software or with which the Software was bundled. Updates and/or upgrades to the Software, if any, which may be provided to you at SanDisk’s sole discretion, shall be governed by the terms and conditions of this Agreement. This Software is under exclusive license to SanDisk Corporation from Condusiv Technologies Corporation (formerly known as Diskeeper Corporation). You may use the Software in the market of personal computers.
Limitations and Restrictions. Except as specifically provided herein, You may not, in whole or in part: (a) copy the Software; (b) distribute copies of the Software, in whole or in part, to any third party; (c) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Software, except as otherwise permitted by law; (d) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Software to third parties; or (e) use the Software to act as a service bureau or application service provider, or to permit access to the Software by any third party. Nothing in this Agreement shall give You the right or license to use any trademarks used in connection with the Software including without limitation “SanDisk Corporation” and/or any marks of SanDisk’s providers and suppliers.
License Keys. If License Keys are applicable to this Software, You may not exercise Your rights to the Software unless you have purchased a valid License Key or unlock code, issued to a designated user only by SanDisk. A separate License Key is required for each piece of hardware for which the Software is installed. A “License Key” is a unique unlock code for the Software. Such License Keys are tied to the specific hardware on which the Software has been loaded and are obtained directly from SanDisk.
Demonstration / Evaluation. If the Software is labeled “Demo” or “Evaluation” then, notwithstanding any other sections of this Agreement, Your use of the Software is limited to use for demonstration, test or evaluation purposes, and the Limited Warranty in Section 6 below will not apply to Your use of the Software.
Proprietary Rights and Confidentiality. The Software is owned by SanDisk and its licensors and is protected by copyright, patent and trade secret laws. You will take those reasonable steps necessary to protect SanDisk’s and its licensors’ proprietary rights in the Software related to Your use and possession of the same, including but not limited to maintaining the confidentiality of your passwords, if any. You will keep the Software confidential and will not disclose or publish it, or any part of it, to others, except as specifically provided herein. All design elements of the Software, including but not limited to the design, text, graphics, interfaces and the selection and arrangement thereof, are protected by copyrights owned by SanDisk. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO SANDISK CORPORATION.
Limited Warranty. Maintenance and support are not offered under this Agreement, but may be purchased separately from SanDisk. SanDisk warrants that the Software will perform substantially in accordance with its published specifications for a period of thirty (30) days from the date of Your receipt of the Software (the “Limited Warranty”). Any supplements or updates to the Software, including without limitation, any (if any) service packs or updates provided to You after the expiration of the thirty (30) day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. THE LIMITED WARRANTY IN THIS SECTION 6 IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. EXCEPT FOR THIS LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SANDISK AND ITS LICENSORS PROVIDE THE SOFTWARE AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, AND OF LACK OF VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE. ADDITIONALLY, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
Limitation on Remedies. Should the Software fail to meet its Limited Warranty, SanDisk and its licensors’ entire liability and Your exclusive remedy shall be, at SanDisk’s option, (a) return of the price paid directly by You to SanDisk (if any) for the Software, or (b) repair or replace the Software. SanDisk shall have no liability or obligation under this Section 7 if the failure of the Software has resulted from (w) alteration of the Software, except by SanDisk; (x) installation, operation, repair, or maintenance of the Software not in accordance with instructions supplied by SanDisk; (y) abnormal physical or electronic stress, misuse, negligence or accident; or (z) use in ultra-hazardous activities. Any replacement Software will be warranted for the remainder of the original Limited Warranty period or thirty (30) days, whichever is longer. To exercise Your remedy, contact the manufacturer of the hardware on which the Software was originally installed or bundled with. Outside the United States, neither these remedies nor any product support services offered by SanDisk and its licensors are available without proof of purchase from an authorized non-U.S. source.
Limitation of Liability. IN NO EVENT SHALL SANDISK AND SANDISK’S LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER RELATED OR SIMILAR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE CONNECTED WITH THE USE OF OR INABILITY TO USE THE SOFTWARE, AND FOR ANY CAUSE OF ACTION, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SANDISK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES ARISING UNDER THIS AGREEMENT OR THE USE OF THE SOFTWARE THAT SANDISK (INCLUDING ITS LICENSORS) IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE LICENSE FEES (IF ANY) ACTUALLY PAID BY YOU TO SANDISK FOR THE SOFTWARE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. No action, regardless of form, arising out of any transaction under this Agreement, may be brought by You more than one year after You have knowledge of the occurrence which gives rise to the cause of such action.
Fees and Taxes. By agreeing to this Agreement, You acknowledge that You have paid or are obligated to pay SanDisk the license fee if applicable for the Software. You shall pay all taxes and other governmental charges, however characterized (except based on SanDisk’s income), in connection with Your licensing of the Software.
Termination. SanDisk may immediately terminate this Agreement, and exercise any other rights it may have, if (a) You breach this Agreement; or (b) You fail to pay the applicable license fee for the Software. Upon termination for any reason, You shall either promptly return to SanDisk all copies of the Software in Your possession or control or destroy (i.e. uninstall or delete) Your copies of the Software and certify in writing that all such copies have been destroyed. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement, including without limitation Sections 5 through 17.
Governing Law. This Agreement shall be governed by the laws of the State of California in the United States, without giving effect to the State of California’s choice of law principles and not including the 1980 United Nations Convention on Contracts for International Sale of Goods. Venue for any action under this Agreement shall lie in Santa Clara County, California. If any action is brought to enforce, or arises out of, this Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such action, including without limitation necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof.
Acknowledgment of Understanding – Entire Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive statement of the agreement between SanDisk and You regarding the subject matter addressed herein and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between SanDisk and You relating to the subject matter addressed herein. This Agreement may not be amended, except by an agreement in writing that is signed by authorized representatives of SanDisk and You. To the extent the terms of any SanDisk policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control.
Severability. You agree that the terms and conditions stated in this Agreement are severable. If any paragraph, provision, or clause in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall be valid and enforceable and the parties shall use good faith to negotiate a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
Injunctive Relief. You agree that, because of the unique nature of the Software, SanDisk may suffer irreparable injury in the event You fail to comply with any of the terms of this Agreement, and that monetary damages would be inadequate to compensate SanDisk for any such breach by You. Accordingly, You agree that SanDisk will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement.
Export Control. The Software may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using the Software, You are agreeing to the foregoing, and You are representing and warranting that You are not located in, under the control of, or a national or resident of any such country or on any such list.
U.S. Government License Rights. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described in this Agreement. All Software provided to the U.S. Government pursuant to solicitations issued before December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and the Rights in Data-General clause at FAR 52.227-14, as applicable. Use, duplication or disclosure by the governments of any other countries is subject to the restrictions of similar applicable laws.
Anti-Piracy and Anti-Counterfeiting Assistance. You agree to take reasonable steps to prevent the creation of illegal, counterfeit or pirated copies of this Software and to immediately notify and reasonably assist SanDisk and its licensors in handling where it may be found that illegal copies of the Software have been made.