Software Download Agreement

End User License Agreement

TOSHIBA CORPORATION

PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE INSTALLING, USING THIS SOFTWARE (“SOFTWARE”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”), DO NOT INSTALL OR USE THE SOFTWARE.

1.License.

Subject to the terms of this Agreement, TOSHIBA CORPORATION (hereafter “TOSHIBA”) grants to you a non-exclusive, non-transferable and royalty-free license to use the Software only if you use the Software for or with TOSHIBA solid state drive products. You shall not: copy or modify the Software; reverse compile, reverse engineer, disassemble or reverse assemble all or any portion of the Software; rent, lease, license, sublicense, distribute, transfer or sell the Software; or create derivative works of the Software.
With respect to non-TOSHIBA Software (specified in Exhibit A), TOSHIBA shall in no way grants license rights of the non-TOSHIBA Software to you unless TOSHIBA separately license to you. You shall, at your own responsibility, obtain license rights from the licensor of such non-TOSHIBA Software.

2.Title.

All right, title and interest to the Software, and any intellectual property right, including but not limited to, patent, trademark, design patent, copyright, know-how and trade secret, and application therefor (“Intellectual Property Right”) to the Software shall remain in TOSHIBA, its subsidiaries, and/or its licensors.

3.No Support.

TOSHIBA may update the Software at its sole discretion and without notice, but TOSHIBA shall not be obligated to support, update or provide training for the Software.

4.No Warranty.

YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OR REPRESENTATION HEREUNDER. TOSHIBA, ITS SUBSIDIARY, ITS SUPPLIER AND/OR ITS LICENSOR SHALL NOT BE LIABLE FOR ANY LIABILITY (INCLUDING SPECIAL, CONSEQUENTIAL, INCIDENTAL, DIRECT OR INDIRECT DAMAGE OR LIABILITY SUCH AS LOST REVENUES OR PROFITS AND LOST OF DATA) ARISING FROM THE SOFTWARE EVEN IF TOSHIBA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LIABILITY. ALL TOSHIBA AND NON-TOSHIBA SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND BY TOSHIBA.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOSHIBA, ITS SUBSIDIARY, ITS SUPPLIER AND/OR ITS LICENSOR DISCLAIM ALL WARRANTIES WITH REGARD TO THE SOFTWARE, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. NEITHER TOSHIBA, ITS SUBSIDIARIES, ITS SUPPLIERS NOR ITS LICENSOR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TOSHIBA OR A TOSHIBA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

5.Indemnity.

You agree to indemnify, defend and hold TOSHIBA harmless from and against any and all liabilities, damages, claims, expenses (including reasonable attorney’s fees) associated with or arising out of your use of the Software, any actual or alleged breach of this Agreement by you, or any other matter relating to the Software, including but not limited to the use of any of third party license.

6.LIMITATION OF LIABILITY.

TOSHIBA’S ITS SUBSIDIARIES’ ITS SUPPLIERS' AND/OR ITS LICENSORS’ ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU SEPARATELY FOR THE SOFTWARE OR U.S. $10.00 WHICHEVER IS LESS. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

7.Unintended Use.

THE SOFTWARE 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. IF YOU USE THE SOFTWARE FOR UNINTENDED USE, TOSHIBA ASSUMES NO LIABILITY FOR THE SOFTWARE.

8.Export Control.

In connection with the Software, you shall comply with all applicable export control laws and regulations, including, but not limited to U.S. Export Administration Regulations. Without limiting the generality of the foregoing, you shall not export the Software, if applicable under the above laws and regulations, without authorization from the appropriate government authorities, and shall not use the Software for any purpose to develop and/or manufacture nuclear, chemical, biological weapons and/or missiles.

9.No Assignment.

Neither this Agreement, nor any of the obligations or liabilities of either party hereunder, may be assigned, transferred or conveyed by either party by you to any party, by operation of law or otherwise, except upon the prior written consent of TOSHIBA.

10.Termination.

TOSHIBA may terminate this Agreement immediately, upon notice from TOSHIBA, if you breach any provision of this Agreement. Upon termination, the licenses granted to you shall terminate, and you shall cease all use of the Software.

11.General.

This Agreement constitutes the entire agreement between TOSHIBA and you regarding the subject matter hereof and supersedes all previous oral or written communications between the parties. This Agreement will be governed by the laws of Japan, excluding its conflict of law provisions. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. To the extent the terms of any Toshiba policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control.

12.United States Government Restricted Rights.

The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government, its agencies and/or instrumentalities is subject to restrictions of this Agreement pursuant to FAR 12.211, FAR 12.212(a), DFARS 227.7202-1, DFARS 227.7202-3(a), and DFARS 252.227.7014(a)(1) as applicable. Without limiting the foregoing, use, duplication, or disclosure by the United States Government, its agencies and/or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software Clause at DFARS 252.227-7013 (October 1988) or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, FAR 52.227-19(b)(1) and (2) (DEC 2007), FAR 52.227-14 (DEC 2007) including Alt. III, FAR 52.227-20, and DFARS 252.227-7015 as applicable.