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End User License Agreement

Kioxia Corporation

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

1.License Grant and Restrictions

• (1) Subject to the terms of this EULA, Kioxia Corporation or its subsidiaries or affiliates (hereinafter referred to as "KIOXIA") grants to you, either as an individual or a single entity (“you”), a personal, non-exclusive, non-transferable and royalty-free license to use the Software.
• (2) You shall use the Software only with KIOXIA solid state drive products. You shall not: copy, modify or translate the Software; reverse compile, reverse engineer, disassemble or reverse assemble all or any portion of the Software; rent, lease, license, sublicense, distribute, transfer, sell, encumber, publish or disclose the Software; or create derivative works of the Software or attempt to circumvent or disable the Software or any technology features or measures in the Software, including without limitation any access controls or copyright protection mechanisms, by any means or in any manner.
• (3) With respect to non-KIOXIA Software (specified in Exhibit A), KIOXIA shall in no way grants license rights of the non-KIOXIA Software to you unless KIOXIA separately license to you. You shall, at your own responsibility, obtain license rights from the licensor of such non-KIOXIA Software.
• (4) If you are a corporation, company or other legal entity, you shall cause your director, officers and employees who use the Software, to comply with the terms and conditions of this EULA.

2.Reservation of Rights

• (1) 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 KIOXIA and/or its licensors. In addition, you shall not remove, deface, change or alter copyright notices, labels, trademarks and other marks that are on the Software.
• (2) You shall not use the Software in any manner to aid in the violation of any intellectual property rights of any third party, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of any applicable jurisdiction, including without limitation libel, defamation, obscenity, and privacy-related torts.
• (3) You agree not to take any action that interferes with or challenges, in any manner, KIOXIA’s rights with respect to the Software.

3.Use of Non-KIOXIA Devices

In some instances, the Software may operate with devices manufactured by entities other than KIOXIA (“Non-KIOXIA Device(s)”), you acknowledge and agree that KIOXIA makes no representations or warranties with respect to the quality or capability of any of these Non-KIOXIA Devices. You acknowledge that KIOXIA may offer support for some Non-KIOXIA Devices and not others; KIOXIA makes no guarantees that the Software is, will be, or will remain compatible with any applicable Non-KIOXIA Device.

4.No Support

KIOXIA, KIOXIA’s supplier and/or KIOXIA’s licensors (collectively “Supplying Group”) may update the Software at its sole discretion and without notice, but KIOXIA shall not be obligated to support, update or provide training for the Software.

5.Warranty

YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OR REPRESENTATION HEREUNDER. KIOXIA DOES NOT WARRANT THE SECURITY, RELIABILITY OR TIMELINESS OF THE SOFTWARE. KIOXIA DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE. KIOXIA DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE CONTINUOUS OR UNINTERRUPTED AND KIOXIA SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE. SUPPLYING GROUP 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 SUPPLYING GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LIABILITY. ALL KIOXIA AND NON-KIOXIA SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND BY SUPPLYING GROUP.

KIOXIA DOES NOT MAKE ANY REPRESENTATIONS ABOUT AND DISCLAMS ALL 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. KIOXIA IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT, ACCURACY, COMPLETENESS, TIMELINESSS, VALIDITY, COPYRIGHT COMPLIANCE, LEGALITY, DECENCY, QUALITY, OR ANY OTHER ASPECT OF THIRD PARTY CONTENT. KIOXIA, ITS OFFICERS, AFFILIATES, AND SUBSIDIARIES DO NOT WARRANT OR ENDORSE AND DO NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPOSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD PARTY CONTENT OR WEB SITES, OR FOR ANY OTHER MATERIALS, PRODUCTS, OR SERVICES OF THIRD PARTIES ACCESSED THROUGH THE SOFTWARE. TO THE EXTENT YOU CHOOSE TO USE OR ACCESS ANY THIRD PARTY CONTENT THROUGH THE SOFTWARE. YOU DO SO AT YOUR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ANY APPLICABLE LAWS INCLUDING WITHOUT LIMITATION APPLICABLE LOCAL LAWS AND PRIVACY AND DATA COLLECTION LAWS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLYING GROUP 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. IN NO EVENT SHALL SUPPLYING GROUP 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 SUPPLYING GROUP OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

6.Indemnity

You agree to indemnify, defend and hold Supplying Group 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 EULA by you, or any other matter relating to the Software, including but not limited to the use of any of third party license.

7.LIMITATION OF LIABILITY

SUPPLYING GROUP’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU SEPARATELY FOR KIOXIA SOLID STATE DRIVE PRODUCTS. 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. IN NO EVENT SHALL KIOXIA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE EXCEED THE PURCHASED PRICE WITH WHICH YOU PURCHASED KIOXIA SOLID STATE DRIVE PRODUCTS.
KIOXIA IS NOT RESPOSIBLE OR LIABLE FOR ANY INFECTIONS OF, CONTAMINATION OF, OR DAMAGE TO YOUR SYSTEM, OR DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE OR KIOXIA SOLID STATE DRIVE PRODUCTS.

8.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, SUPPLYING GROUP ASSUMES NO LIABILITY FOR THE SOFTWARE.

9.Export and Import Control

In connection with the Software, you shall comply with all applicable export control laws and regulations, including, but not limited to Japanese Foreign Exchange and Foreign Trade Law and 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. You further acknowledge and understand that certain functionality of the Software, such as encryption or authentication, may be subject to export and import restrictions and you are responsible for complying with all applicable restrictions and regulatory requirements.

10.No Assignment.

Neither this EULA, 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 KIOXIA.

11.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 Agreement or any breach thereof, in any one instance, shall not waive the applicable term or condition or any subsequent breach thereof.

12.Termination.

KIOXIA may terminate this EULA immediately, upon notice from KIOXIA, if you breach any provision of this EULA.
Upon termination, you shall immediately cease all use of the Software and destroy all copies of the Software.

13.Governing Law

This EULA shall be governed by, and construed and enforced in accordance with the laws of JAPAN. This EULA shall not be governed by Convention on International Sales of Goods. All disputes, controversies, or differences in connection with or arising out of this EULA that cannot be resolved by a mutually amicable arrangement between the parties hereto shall be finally settled according to the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the Rules. Arbitration proceedings shall be conducted in English language and shall take place in Tokyo, Japan. The decision of the arbitration proceedings shall be final and binding upon both parties. Judgment on any arbitration decision may be entered in any court of competent jurisdiction.

14.Survival

Sections 2, 5, 6, 7, 13 of this Agreement and any other provisions of this Agreement that require or contemplate performance after the termination of this Agreement, shall be enforceable notwithstanding termination of this Agreement.

15.Excused Performance

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.