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CONSEQUENTIAL, 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. 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 YOU EXCEED
THE AMOUNT YOU PAID TO US FOR THE USE OF THE SOFTWARE.
5. 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, 601 McCarthy Blvd. Milpitas, CA 95035.
6. Transfer. If you sell or otherwise transfer the SanDisk product that incorporates
the Software as a whole, you may transfer the Software as fully integrated into such
product provided that you also supply this Agreement to the purchaser or recipient of
the product, at which time all of your rights under this Agreement will immediately cease.
Except as stated above, you may not assign or transfer this Agreement in part or in
whole, and any attempt to do so shall be void.
7. Termination. We may terminate this Agreement and the license immediately and
without notice if you breach it. Upon termination of this Agreement, you must delete or
destroy all copies of the Software.
8. 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.
9. General. This Agreement contains the entire understanding between the parties
with respect to your use of the Software. If any part of this Agreement is found void and unenforceable, it
will not affect the validity of the balance 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
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, and
the parties hereby agree to the exclusive jurisdiction and venue of such courts. You will
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. Any waivers or
amendments of this Agreement shall be effective only if made in writing and signed by
an authorized representative of each party. You agree that the Licensors are third party
beneficiaries of this Agreement to enforce your performance of the terms and conditions
of this Agreement. The provisions of Sections 2, 3, 4, 5, 6, 7, 8 and 9 shall survive the
termination or expiration of this Agreement.
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