SD Memory Card Formatter END USER LICENSE AGREEMENT
BY DOWNLOADING, INSTALLING OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE PRODUCT; PROMPTLY RETURN (IF APPLICABLE) THE PRODUCT TO THE SDA OR YOUR SDA DISTRIBUTOR. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement (“Agreement”) is between the entity or individual entering into this Agreement (“You”) and the SD Card Association, a California Mutual Benefit Corporation (“SDA”). “You” includes you and your employees and Affiliates. “Affiliate” is defined as an entity which controls, is controlled by, or shares common control with a party where such control may exist through ownership of securities or by contract. In addition to the restrictions imposed under this Agreement, any other usage restrictions contained in the Product installation instructions or release notes shall apply to Your use of the Product.
1. PRODUCT. “SDA Software” means the object code version of the SD Memory Card Formatter
tool program(s) provided, via delivery or electronic transmission to You. SDA Software includes computer files, enhancements, maintenance modifications, upgrades, updates, bug fixes, and error corrections made available to you by the SDA or its authorized distributor.
“Documentation” means all written or graphical material provided by SDA or its authorized distributor in any medium, including any technical requirements or specifications, relating to the functionality or operation of the SDA Software.
“Product” means the SDA Software and Documentation.
2 LICENSE Subject to the terms of this Agreement, SDA grants You a non-exclusive, non-transferable, terminable (as set forth in Section 5 below), perpetual license for each copy of the SDA Software to do the following:
(a) install the SDA Software on Your hardware located at a facility owned or controlled by You in the country where You acquired the SDA Software;
(b) operate the SDA Software solely for Your own internal business operations solely to format SD Cards owned by You and to use the Documentation solely for such internal use; and
(c) make one copy of the SDA Software for backup and archival purposes only (collectively a “License”).
3. RESTRICTIONS: You agree to NOT:
(a) disassemble, reverse engineer, decompile, or otherwise attempt to derive any source code for the SDA Software from executable code;
(b) rent, lease, network, loan, sublicense, distribute, disclose, or otherwise transfer or provide the SDA Software to any third party (including without limitation, use in a service bureau or shared environment);
(c) alter, merge, modify, edit, translate, adapt in any way, or prepare any derivative work based upon the SDA Software;
(d) remove, obscure, or modify any markings or any notice of proprietary rights; or(e) provide a third party with the results of any functional evaluation, or benchmarking, or performance tests, without SDA’s prior written approval.
Notwithstanding the restriction in 3(a) above, if You are a European Community (“EC”) resident and required for interoperability, SDA agrees to make available to You the information necessary to achieve interoperability to the SDA Software with other programs within the meaning of the EC Directive on the Legal Protection of Computer Programs upon written request.
4. FEEDBACK. If You send or transmit any communications or materials to SDA or any of its authorized distributors or licensors by mail, electronic mail, telephone, or otherwise, suggesting or recommending changes to the Product or any portion thereof (“Feedback”), including without limitation, improvements, new features, or functionality relating thereto, or any comments, questions, suggestions, or the like, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and to any and all Feedback, and any intellectual property rights in or to such Feedback, to the SDA. The SDA and any of its authorized distributors or licensors are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SDA is not required to use any Feedback.
5. TERMINATION. This Agreement shall immediately terminate if You breach any of its terms. Upon termination, for any reason, You must uninstall the SDA Software, and either certify the destruction of the SDA Software or return it to SDA. Sections 4, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive termination.
6. OWNERSHIP OF THE PRODUCT. SDA and/or its licensors retain all right, title, and interest in the SDA Product and all intellectual property, informational, industrial property, and proprietary rights therein. SDA neither grants nor otherwise transfers any rights of ownership in the SDA Product to You. SDA Products are protected by applicable copyright, trade secret, and industrial and intellectual property laws. SDA reserves any rights not expressly granted to You herein.
7. WARRANTY DISCLAIMER. NEITHER SDA NOR ITS LICENSORS OR DISTRIBUTORS MAKE ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PRODUCT. ALL IMPLIED WARRANTIES AS TO THE SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. SDA NOR ITS LICENSORS OR DISTRIBUTORS WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED. THE SDA IS NOT OBLIGATED TO PROVIDE YOU WITH ANY ENHANCEMENTS, MAINTENANCE MODIFICATIONS, UPGRADES, UPDATES, BUG FIXES, OR ERROR CORRECTIONS FOR THE PRODUCT BUT MAY DO SO IN ITS SOLE DISCRETION.
8. LIMITATION OF LIABILITY. NEITHER SDA NOR ITS LICENSORS OR DISTRIBUTORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES RELATED TO THIS AGREEMENT AND/OR THE PRODUCT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT, OR LOSS OF DATA, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF SDA OR ITS LICENSORS AND/OR DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS LICENSE FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. IN NO EVENT WILL SDA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (USD 100.00). ADDITIONALLY, IN NO EVENT SHALL SDA’S LICENSORS OR DISTRIBUTORS BE LIABLE FOR ANY DAMAGES UNDER THIS AGREEMENT.
9. INDEMNIFICATION. You shall indemnify, defend and hold SDA and any and all of its officers, directors, employees, agents, members, consultants, distributors, and licensors (collectively, the “SDA Indemnitees”) harmless against any costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) that such SDA Indemnitee suffers in relation to, arising from, or for the purpose of avoiding any claim or demand from a third party (“Claim”) alleging or arising out of Your use of the Products other than as permitted under this Agreement. Notwithstanding anything herein to the contrary, You shall not consent to any settlement or compromise of, or the entry of any judgment with respect to, any third-party claim without the prior written consent of SDA.
10. EXPORT CONTROLS. You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Product or any underlying information or technology except in full compliance with all United States, foreign, and other applicable laws and regulations.
11. U.S. GOVERNMENT RESTRICTED RIGHTS. The SDA Software under this Agreement is “commercial computer software” as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
12. ARBITRATION. Any dispute between You and SDA arising out of this Agreement or the breach or alleged breach thereof, shall be determined by binding arbitration conducted in English. The arbitration shall be held in San Francisco, California, U.S.A., under the current rules of the American Arbitration Association (“AAA”). Arbitration may be conducted by one (1) attorney arbitrator by mutual agreement or by three (3) arbitrators if the parties are unable to agree on a single arbitrator within thirty (30) days of first demand for arbitration. All arbitrators are to be selected from a panel provided by AAA. In the case of a three-arbitrator panel, the chairman and one other arbitrator shall be attorneys at law, and the third arbitrator shall have a background or training in either computer law, computer science, computer engineering, or marketing of computer industry products. The arbitrator(s) shall have the authority to permit discovery, to the extent deemed appropriate by the arbitrator(s), upon request of a party. The costs of the arbitration shall be borne equally pending the arbitrator’s award. The award rendered shall be final and binding upon the parties and shall not be subject to appeal to any courts, and may be enforced in any court of competent jurisdiction. Nothing in this Agreement shall be deemed as preventing either party from seeking injunctive or other equitable relief from any court having jurisdiction over the parties and the subject matter of the dispute as necessary to protect either party’s confidential information, ownership, or any other proprietary rights.
13. MISCELLANEOUS TERMS. The parties hereto are independent contractors. You shall abide by all local, state, federal, and international laws, rules, regulations, and orders applying to Your use of the Products. This Agreement will be governed and construed in accordance with the laws of the State of California without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act shall not apply to this Agreement. This Agreement constitutes the entire agreement between You and SDA and supersedes any prior or contemporaneous negotiations or agreements, whether oral, written, or displayed electronically, concerning the Product and related subject matter. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both SDA and You. You may not assign or transfer this Agreement or a License to a third party without SDA’s prior written consent. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. The parties have agreed that this Agreement and the documents related thereto be drawn up in the English language. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.