EFTA01223692.pdf

KINGSTON DIGITAL, INC. END USER LICENSE AGREEMENT IMPORTANT - READ CAREFULLY: This End User License Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity) and Kingston Digital, Inc. ("Kingston"). This Agreement relates to the software accompanying Kingston's products in any medium, which includes computer software and may include associated media, printed materials and "online" or electronic documentation (the "Software"). The Software contains certain software, programs or code belonging to Kingston, and/or Kingston's third party licensors ("Licensors"), which are being provided to you under the terms and conditions of this Agreement, and/or a separate and distinct license agreement that is included with the accompanying Kingston urDrive (the "Licensed Product") and incorporated herein by reference ("Thirty Party Licenses'). If there is a conflict between this Agreement and Third Party Licenses with respect to any software, program or code belonging to the Licensors, the provisions of the applicable Third Party License shall prevail. BY CLICKING ON "I AGREE' OR DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND FURTHER AGREE THAT THE THIRD PARTY LICENSORS ARE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All of the Software is licensed, not sold. All right and title in and to the Software (including, but not limited to, any images, photographs, animation, video, audio, music, text and applications incorporated into the Software) is owned by Kingston or one or more of the Licensors. Kingston and its Licensors reserve all rights that this Agreement does not expressly grant to you. 1. License Grant. (a) Grant of License. Subject to the terms and conditions of this Agreement, you may access and use the Software in connection with the use of the Licensed Product. (b) Restrictions on Use. The Software is provided to you solely for use as installed on the Licensed Product. Use of this Software with any other flash disk, flash card, resident flash array or solid state disk of any kind is expressly prohibited, and constitutes an illegal infringement of patents, copyright and other rights of Kingston and Licensors in and to the Software. 2. Limitations on Reverse Engineering, Decompilation and Disassembly. You may not reverse engineer, deoompile, reverse compile, adapt or disassemble any of the Software or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 3. Non-Circumvention. You are not allowed to circumvent, bypass, modify or defeat any of the functions or protections of the Software or any mechanisms operatively linked to the Software. 4. Termination. Without prejudice to any other rights, Kingston may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. Also, if you fail to comply with the terms and conditions of Third Party Licenses, your right to use the Software may be terminated. In case of such termination, you must destroy all copies of the applicable Software and all of its component parts. 5. Intellectual Property Rights. Title to the Software, and all rights with respect to the Software not specifically granted under this Agreement, including without limitation all rights of modification, disassembly and decompilation and all copyright, patent, trademark, trade secret and other proprietary rights and interests are reserved for Kingston and Licensors. You may not remove or alter any "read-me" file or copyright notices in the Software. Certain of the names used in this Agreement and the Software may constitute trademarks of Kingston or Licensors. You are not authorized to use any such trademarks and should not remove, alter, cover or deface any such trademarks on the Software. 6. Third Party Applications. (a) Definition. The Software has a graphical user interface that can be remotely updated, from time to time, to display various third party products and applications ("Third Party Applications"). The provider of each such product or application is solely responsible for that Third Party Application, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any 2011-01-28 SYCR my 2 REDLINE - 2010-02-26 I0-0226_Kingston_urDrive_EULA_-_Kingston_Comments-CYrev3 - Clean (2).DOC EFTA01223692 other party may have relating to that Third Party Application or your use of that Third Party Application. Certain Third Party Applications may display, include or make available content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party websites ("Third Party Websites"). (b) Your Responsibility. Third Party Applications, Third Party Materials and links to Third Party Websites are provided solely as a convenience to you. If you buy or obtain access to a Third Party Application, your relationship and recourse is entirely with the third party provider of that Third Party Application and not Kingston. Kingston is merely providing the medium for you to access such Third Party Applications and is not a party to the relationship (contractual or otherwise) between you and the provider of the Third Party Application. Kingston, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any responsibility or liability, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or inability to use Third Party Applications, Third Party Materials or Third Party Websites or claims that you or any other party may have relating to the Third Party Applications, Third Party Materials or Third Party Websites. (c) Connection by Default. The Software connects with remote servers over the Internet, by default, in order to update the Third Party Applications. By using the Software, you consent to such communications. You are responsible for all telecommunications or other connectivity charges incurred through the use of the Software. (d) Fee. Certain Third Party Applications are available upon payment for a fee. If you proceed to use or access such Third Party Applications, you will be obligated to pay the fees presented to you directly by the providers of such Third Party Applications. Please review the pricing information carefully before you use any Third Party Application. (e) Privacy. Certain Third Party Applications and Third Party Websites may collect your personally identifiable information. You should be aware that the providers offering or operating these Third Party Applications and Third Party Websites have their own information collection practices and privacy policies. Kingston assumes no responsibility or liability for the actions of such third parties with respect to their use of your information or otherwise. Please carefully review these privacy policies and make sure you are aware of, and comfortable with, these privacy policies before you reveal any personally identifiable information. 7. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KINGSTON AND LICENSORS PROVIDE THE SOFTWARE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT AND MAINTENANCE SERVICES IN RELATION TO THE SOFTWARE ("SUPPORT SERVICES"). ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND SUPPORT SERVICES, IF ANY, REMAINS WITH YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KINGSTON, A LICENSOR, OR AN AUTHORIZED REPRESENTATIVE OF KINGSTON OR A LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ALONE (AND NEITHER KINGSTON NOR ANY LICENSOR) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE FULLEST EXTENT ALLOWED BY LAW, KINGSTON ALSO EXCLUDES FOR ITSELF AND LICENSORS ANY LIABILITY, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR DOWN-TIME OR USER'S TIME, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THIS SOFTWARE OR SUPPORT SERVICES, EVEN IF KINGSTON OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND LIMITS ITS LIABILITY TO REPLACEMENT, REPAIR OR REFUND OF THE PURCHASE PRICE PAID, AT KINGSTON'S OPTION. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED EVEN IF ANY REMEDY PROVIDED HEREIN SHALL FAIL OF ITS ESSENTIAL PURPOSE. 2011-01-28 SYCR rev 2 REDLINE - 2010-02-26 10-0226_Kingston_urDrive_EULA_-_Kingston_Comments-CYrev3 - Clean (2).DOC EFTA01223693 9. LIMITATION OF LIABILITY AND REMEDIES. IN ADDITION TO THE FOREGOING, AND NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF KINGSTON AND LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE USE OF SOFTWARE OR U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 10. Notice to United States Government End Users. If you are a unit or agency of the United States Government, the following applies: The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in Subparagraph 252.227-7013 (c)(1Xii) of the Rights in Technical Data and Computer Software at DFARS, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Kingston Digital, Inc. 11. Export Restrictions. You agree to comply with all export and reexport restrictions and regulations ("Export Restrictions') imposed by the United States or any other country in which you conduct business. Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Kingston regarding an ultimate destination of the Software, you represent and warrant that you understand the U.S. law currently prohibits the export or reexport, directly or indirectly (including via remote access) of U.S. origin products and technology to certain proscribed countries (including Cuba, Iran, Sudan, North Korea and Syria and/or any other country that may become subject to an embargo by the United States), entities, organizations and individuals, without prior authorization from the U.S. Government. You will not commit any act or omission that will result in a breath of any such Export Restrictions. Your breach of this clause shall constitute cause for immediate termination of this Agreement. 12. High Risk Activities. The Software is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury or severe physical or environmental damage ("High Risk Activities"). Kingston specifically disclaims any express or implied warranty of fitness for High Risk Activities. 13. Amendment. Kingston reserves the right to amend any of the terms of this Agreement at its sole discretion by providing notice on Kingston's website or by any other legally recognizable form of notice. If you do not agree to the amendment, you should promptly contact Kingston for instructions. Your continued use of the Software after the effective date of any such notice shall be deemed your acceptance of such amendment. 14. Miscellaneous. The laws of the State of California, United States of America, exclusive of conflict- of-laws provisions, shall govern this Agreement in all respects. Any dispute between you and Kingston regarding this Agreement will be subject to the exclusive venue of the state and federal courts in Orange County, California and Kingston and you expressly consent to and waive all defenses to jurisdiction and venue of such courts. This Agreement is the entire agreement between us and supersedes any other communications or advertising with respect to the Software. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Kingston's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Kingston and you expressly waive trial by jury with respect to any matters arising under or relating to this Agreement. USE OF THE SOFTWARE DESCRIBED HEREIN CONSTITUTES YOUR AGREEMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. 2011-01-28 SYCR rev 2 REDLINE - 2010-02-26 I0-0226_Kingston_urDrive_EULA_-_Kingston_Comments-CYrev3 - Clean (2).DOC EFTA01223694