Product Images Download Agreement

End User License Agreement

KIOXIA Corporation

PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING THIS IMAGE DATA (“IMAGE DATA”). THIS EULA IS ENTERED INTO BY AND BETWEEN YOU AND KIOXIA CORPORATION (“KIOXIA”) TO PROVIDE YOU WITH THE IMAGE DATA COPYRIGHTED BY KIOXIA.
BY DOWNLOADING THE IMAGE DATA, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE AND COMPLY TO THE TERMS AND CONDITIONS OF THIS EULA, YOU MAY NOT DOWNLOAD OR USE THE IMAGE DATA.

1.License Grant and Restrictions

• (1) Subject to the terms and conditions of this EULA, KIOXIA grants to you who has downloaded the Image Data, either as an individual or a single entity (“you”), a personal, non-exclusive, non-transferable and royalty-free license to use the Image Data, unless otherwise stated in this EULA. You shall not:
• • (i) translate, rent, lease or transfer the Image Data in whole or in part,
  • (ii) remove, erase, deface, change or alter copyright notices, labels, trademarks and other marks that are on the Image Data in whole or in part, or
  • (ⅲ) use copies of any images or text posted on the KIOXIA's official website except the Image Data.
• (2) You are entitled to make one backup copy if this is necessary to secure future use. You shall visibly affix the note “backup copy” as well as a copyright notice of KIOXIA in the backup copy created.
• (3) You shall only be entitled to decompile and duplicate the Image Data if this is provided for by law. However, this shall only apply under the condition that KIOXIA has not made the necessary information available to you on request within a reasonable period of time.
  If you are a corporation, company or other legal entity, you shall oblige your directors, officers and employees who use thee Image Data to comply with the terms and conditions of this EULA.

2.Terms of Use

You may use the Image Data for purposes of press releases of, commentaries on, sales, marketing, advertising or promotion of KIOXIA products except pre-owned or used KIOXIA products by personal consumers. You may not duplicate, redistribute or sublicense the Image Data in whole or in part unless otherwise required by the EULA or the applicable law.

3.Reservation of Rights

• (1) The Image Data is licensed, not sold to you. All rights relating to the Image Data including but not limited to any intellectual property rights to the Image Data are owned and reserved by KIOXIA and are not assigned or transferred to you unless otherwise specified in this EULA.
• (2) You agree not to take any action that interferes with or challenges, in any manner, KIOXIA’s rights with respect to the Image Data.

4.No Support

KIOXIA may, at its sole discretion and without notice, provide updates for or may no longer provide updates or support for the Image Data.

5.Disclaimer of Warranties

• (1) KIOXIA DOES NOT WARRANT THE ABSENCE OF DEFECTS IN IMAGE DATA PROVIDED TO YOU FREE OF REMUNERATION (FOR SUCH DATA). THIS DOES NOT ACCOUNT FOR DEFECTS IN IMAGE DATA THAT WERE FRAUDULENTLY CONCEALED BY KIOXIA. IN THIS CASE KIOXIA REMAINS LIABLE FOR THE CONCEALED DEFECT ACCORDING TO THE STATUTORY PROVISIONS.
• (2) YOU ACKNOWLEDGE THAT THE IMAGE DATA IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OR REPRESENTATION HEREUNDER. KIOXIA MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
• (3) KIOXIA DOES NOT MAKE ANY MANUFACTURER’S WARRANTY ABOUT AND DISCLAIMS ALL SUCH MANUFACTURER’S WARRANTIES WITH RESPECT TO ANY THIRD-PARTY CONTENT, ANY NON-KIOXIA DEVICE, OR THE ACTIONS OR OMISSIONS OF A SERVICE PROVIDER OR THIRD-PARTY CONTENT OWNER.
• (4) EXCEPT IN CASE OF INTENTIONAL CONDUCT, GROSS NEGLIGENCE AND CLAIMS BASED ON THE PRODUCT LIABILITY ACT, AS WELL AS IN CASE OF DEATH AND PERSONAL OR PHYSICAL INJURY, KIOXIA IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT, ACCURACY, COMPLETENESS, TIMELINESS, VALIDITY, CPOYRIGHT COMPLIANCE, LEGALITY, DECENCY, QUALITY OR OTHER ASPECT OF THIRD PARTY CONTENT.

6.Indemnity

• (1) Subject to the limitations in this clause 6, you shall indemnify KIOXIA against all claims of third parties which are asserted – whether on legitimate or illegitimate grounds – against KIOXIA in connection with your exercise of the rights granted under this EULA; this includes reimbursement of all reasonable costs incurred or to be incurred by KIOXIA for its legal defense.
• (2) KIOXIA remains entitled to take appropriate measures to defend itself against third party claims or to pursue his rights.
• (3) The provisions of this clause 6 shall not apply as far as the claim(s) of the third party
• • (i) is/ are based on an exercise of the rights granted to you under this EULA compliant with this agreement or, prevailing, mandatory applicable law, and/ or
  • (ii) exist(s) in absence of a breach of duty you are being responsible for.

7.Limitation of Liability

• (1) KIOXIA shall be liable for compensation of damages only as far as KIOXIA caused such damage intentionally or grossly negligent. For the avoidance of doubt: Liability for damages suffered as a direct result of a defect in the Image Data remains exclusive subject to clause 5, paragraph 1 of this EULA.
• (2) Liability of KIOXIA for any damage caused by gross negligence, shall be – irrespective of the cause in law, specifically on grounds of impossibility, default, breach of contract, violation of obligations during contract negotiations and tortuous acts – limited to damages which KIOXIA, on conclusion of the contract, foresaw as a potential consequence of a breach of contract or should have foreseen when exercising due care and attention. When such damage results from a violation of a “material contractual obligation”, KIOXIA shall be liable according to applicable statutory laws.
• (3) Material contractual obligations are duties whose fulfilment is a prerequisite for the contractual performance, or where the breach of the relevant duty jeopardizes the purpose of the contract and where the customer could legitimately rely upon its fulfilment.
  Any liability of KIOXIA for lost data shall be limited to compensatory damages in the amount necessary for restoration of the data using electronic backup media. Your responsibility to back-up data on a regular basis according to the state of the art shall remain unaffected thereby.
• (4) The exclusions and limitations of liability above shall equivalently apply to any personal liability of the executive bodies, legal representatives, employees and other vicarious agents of KIOXIA.
• (5) The exclusions and limitations above shall not apply to any liability under the German Product Liability Act (“Produkthaftungsgesetz”), as well as guaranteed characteristics of state or a guarantee of durability.

8.Unintended Use

THE IMAGE DATA IS NEITHER INTENDED NOR WARRANTED FOR USE IN EQUIPMENTS OR SYSTEMS THAT REQUIRE EXTRAORDINARILY HIGH LEVELS OF QUALITY AND/OR RELIABILITY, AND/OR A MALFUNCTION OR FAILURE OF WHICH MAY CAUSE LOSS OF HUMAN LIFE, BODILY INJURY, SERIOUS PROPERTY DAMAGE AND/OR SERIOUS PUBLIC IMPACT ("UNINTENDED USE"). Unintended Use includes, without limitation, equipment used in nuclear facilities, equipment used in the aerospace industry, medical equipment, equipment used for automobiles, trains, ships and other transportation, traffic signaling equipment, equipment used to control combustions or explosions, safety devices, elevators and escalators, devices related to electric power, and equipment used in finance-related fields.

9.Severability

The invalidity or unenforceability of any provision of this EULA pursuant to any applicable law shall not affect the validity or enforceability of the remaining provisions hereof, but this EULA shall be construed as if not containing the provision held invalid or unenforceable in the jurisdiction in which so held, unless, in the reasonable opinion of either party hereto, such invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from the remainder of, this EULA, in which case this EULA, in such jurisdiction, shall immediately terminate and be of no further force and effect.
A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive the applicable term or condition or any subsequent breach thereof.

10.Termination

This EULA may be terminated in text form by KIOXIA or you without notice for good cause. An important reason that entitles KIOXIA to terminate the EULA is especially given if you violate KIOXIA's rights of use by using the Image Data beyond the extent permitted under this EULA and do not remedy the violation within an appropriate period of time after a warning from KIOXIA.
Upon termination, you shall immediately cease all use of the Image Data and destroy all copies of the Image Data.

11.Governing Law

This EULA shall be governed by, and construed and enforced in accordance with the laws of GERMANY. This EULA shall not be governed by Convention on International Sales of Goods. Düsseldorf, Germany shall be the place of jurisdiction for all disputes arising in context with this EULA.

12.Survival

Sections 3, 5, 6, 7 and 11 of this EULA and any other provisions of this EULA that require or contemplate performance after the termination of this EULA, shall be enforceable notwithstanding termination of this EULA.