Western Digital Technologies, Inc. and Arkeia Software Inc. (collectively, “WD Arkeia”) provides the WD Arkeia suite of products and user documentation (collectively, the "Product") and licenses its use worldwide. Your license of this Product is subject to the terms and conditions set forth in this Agreement.
1. Grant of License.
WD Arkeia, as “Licensor,” grants to you, the “Licensee,” a non-exclusive, non-transferable license to use, on a single computer, the copy of the Product which accompanies this Agreement. You may use the Product only on one computer at one time. You may not transfer the Product, or any part thereof, to any other party. You may not use the Product for the benefit of any third party.
The license is exclusively granted to the Licensee exclusively for its own use and cannot be used for, sub-licensed, leased or be given access to a third party against compensation or otherwise without express prior authorization from Licensor.
2. Proprietary Rights.
Title, ownership rights, and intellectual property rights in the Product belong to and shall remain with Licensor. You acknowledge such ownership and intellectual property rights and agree that you will not take any action to jeopardize, limit or interfere in any manner with Licensor's ownership rights with respect to the Product.
3. Copy Restrictions and Permitted Use.
The Product is copyrighted. The internal aspects and components of the programs are proprietary to Licensor. You may copy the programs and database only as necessary to use them on a single computer as permitted by this Agreement and for back-up purposes. Any copy made for your use or back-up purposes must include the same Licensor copyright and other proprietary notices as they appear on the copies which accompany this Agreement. You may not modify, adapt, translate, reverse engineer, disassemble, decompile or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based upon the Product. Duplication of the Product for any purpose, other than back-up protection, including duplication for any commercial purpose, is a violation of the copyright laws of the United States of America and the laws of other countries. Except as otherwise expressly permitted in this Agreement, you may not: (i) sell, redistribute, encumber, rent, lease, sublicense, or otherwise transfer rights to the Product; (ii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (iii) publish any results of benchmark tests run on the Product to a third party without the Licensor's prior written consent. YOU MAY NOT COPY, MODIFY OR TRANSFER THE PRODUCT, OR ANY COPY, MODIFICATION OR MERGED PORTION, IN WHOLE OR IN PART. IF YOU TRANSFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED PORTION OF THE PRODUCT TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED.
This license shall remain in effect until terminated. You may terminate this license at any time by destroying the Product, together with all copies, modifications and merged portions in any form. You agree upon such termination to destroy the Product along with all copies, modifications and merged portions in any form. Without prejudice to any other Licensor rights, this Agreement will terminate automatically without notice if you fail to comply with your obligations under this Agreement. Upon termination, you must immediately cease all use of the Product and destroy all copies of the Product. In addition to any other remedy available to Licensor, you agree that Licensor may seek immediate injunctive relief in the event of a breach of this Agreement by you.
5. Updates; Non-Personally-Identifiable Information.
Licensee acknowledges that Licensor has no obligation to provide you with any support for Updates (as defined below) to the Product. However, Arkeia may, from time to time, issue updated versions of the Product and the Product may automatically connect to Licensor or third-party servers via the Internet to check for available updates to the Product, such as bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions (collectively, “Updates”) and may either (1) automatically electronically update the version of the Product or (2) give Licensee the option of downloading it. By installing the Product and not disabling any automated check for Updates, if applicable, Licensee hereby agree to automatically request and receive Updates from Licensor or third-party servers. Licensee consents to such automatic upgrading, and agrees that the terms and conditions of this Agreement will apply to all such Updates.
The Product may contain automatic communications features which relay certain non- personally-identifiable information to Licensor in connection with the operation of the Product. This information may include your Product settings and what version of the Product you are using. Licensor may use this information for research purposes including statistical analysis of aggregate customer behavior. Licensee further acknowledges that Licensor is not responsible for, nor makes any representations or warranties with respect to, any information (including personally identifiable information) you may share with a third party. Safekeeping of the information you provide to a third party is the responsibility of such third party.
6. DISCLAIMER OF WARRANTY.
THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING, OR LACKS VIRUSES. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY YOU, AS LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
YOU SHOULD NOT SUBSTITUTE THIS PRODUCT FOR YOUR OWN INDEPENDENT JUDGMENT. LICENSOR ASSUMES NO LIABILITY FOR LOSSES INCURRED BY ANY USE OF OR RELIANCE UPON THE PRODUCT. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE PRODUCT. LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT.
7. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES THAT YOU PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY LICENSOR UNDER ANY SEPARATE SUPPORT AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
8. U.S. Government End Users.
The Product 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 , all U.S. Government End Users acquire the Product with only those rights set forth herein. The Product is provided with restricted rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in 48 C.F.R. 52.227-19(b) when applicable or the applicable provisions of 48 C.F.R. 252.227-7014.
9. Export Control.
You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export, re-export, or transfer the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product from the U.S. or any other jurisdiction. Neither the Product nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to applicable U.S. trade sanctions covering the Product, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to any person on an applicable U.S. Government list of denied or restricted persons including but not limited to the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Product, you agree to the foregoing and represent and warrant that you comply with these conditions.
10. High Risk Activities.
The Product is not fault-tolerant and 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 Product could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. You agree that Licensor and its suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions. (c) In the event a judicial proceeding is necessary, the exclusive forums for resolving disputes arising under or relating to this Agreement shall be the state and federal courts located within the County of Orange, California, and all related appellate courts and the parties hereby consent to the exclusive jurisdiction of such courts, and hereby waive any and all objections based on venue or forum non conveniens. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (f) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (g) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (h) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (i) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of your assets to another entity. (j) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (k) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (l) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. (m) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (n) If any Licensor professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between Licensor and Licensee. You acknowledge that such services are acquired independently of the Product licensed hereunder, and that provision of such services is not essential to the functionality of the Product. (o) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. (p) Licensor may use your name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/or provide your name and the names of the Product licensed by you to third parties.
12. License Outside the U.S.
If Licensee is located outside the U.S., then the provisions of this Section shall apply. (a) Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattache, soient rédigés en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language.") (b) You are responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Product, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
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