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SDK LICENSE AGREEMENT

This Software Development Kit License Agreement (this “Agreement”) is a legal contract between you as an individual developer (“you” or “Developer”), and Western Digital Technologies, Inc., its subsidiaries and affiliates (collectively, “WDT”), governing your use of the software development kit and applicable documentation, including without limitation software source code, object code, simulators, tools, libraries, application programming interfaces, data, files, and other materials provided through this portal, https://developer.sandisk.com/ (“Portal”) by WDT at its sole discretion for use by you in connection with this Agreement and any updates that may be provided by WDT through associated online or electronic documentation (collectively, the “SDK”), and your development of a software application using the SDK that either operates locally on a WDT device or is otherwise designed for use with a WDT device (the “Application”).  WDT may update or modify this Agreement from time to time at its sole discretion by posting the changes on this site or by otherwise notifying you (such notice may be via email).  Changes to the Agreement may include the imposition of charges or revenue sharing requirements.  Your continued use of the SDK or distribution of Applications will constitute your acceptance of such changes.

 

1. Limited Use License. Subject to the terms of this Agreement, WDT hereby grants Developer a personal, limited, non-exclusive, revocable, non-sublicensable and non-transferable license to: (a) copy and use the SDK and install a reasonable number of copies of the SDK on computers and WDT devices owned or controlled by you, to be used internally by you for the sole purpose of developing one or more Applications, which shall be used for non-commercial use; and (b) use and modify any sample code provided to you as part of the SDK for the purpose of incorporating it or any derivative work thereof into your Application.  You may not use the SDK for any other purpose.  For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the SDK provided by WDT to you shall only be used in accordance with the limited license grant set forth in this Section 1.  

 

2. Open Source.  Use, reproduction and distribution of components of the SDK licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement.

3. Third Party Software.  Developer shall comply with the obligations (if any) under any third party license, including open source licenses, for any third-party software that it incorporates or uses in connection with the development or distribution of the Applications.  You agree that you are solely responsible for, and that WDT has no responsibility to you or to any third party for any Application or software that you create, transmit or display through your use of the SDK, and for the consequences of your actions, including any loss or damage which a third party or WDT may incur.

 

4. Restrictions.  Except as expressly permitted under this Agreement, you will not and you will not enable others to: (a) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of the SDK or any services provided by the SDK or otherwise provided hereunder, or any part thereof, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by open source licensing terms governing use of components or sample code included with the SDK (if any); (b) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the SDK to any third party;  (c) use the SDK in any manner to aid in the violation of any third-party intellectual property rights, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of the jurisdictions in which you are using the SDK, including without limitation libel, defamation, obscenity, and privacy-related torts; or (d) you agree that you will not engage in any activity with the SDK, including the development or distribution of an Application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party including without limitation WDT or any  communications carrier.  Under no circumstances may the SDK be used for distribution to third parties or commercial purposes without the express written permission of WDT.

 

5. WDT Approval; App Store Submission.  Before submitting your Application for distribution through any mobile application distributor (Apple App Store, Google Play, etc.) (“App Stores”), your Application must be approved by WDT.  Instructions for submitting your Application are posted in the Portal at https://developer.sandisk.com/. WDT may approve or reject your Application in its sole discretion.  WDT may approve Applications from third-party developers that are substantially similar to your Applications.  WDT may withdraw its approval of your Applications for use with WDT devices at any time and notify the App Stores of its determination.  In such event, WDT will use commercially reasonable efforts to provide you with prior notice of such determination.

You are solely responsible for securing approval of your Applications from each of the App Stores and for complying with all of their terms and conditions applicable to the development, submission, and distribution of applications.

6. Developer Credentials. You agree you will maintain the confidentiality of any username, password, or other developer credentials related to your use of the SDK or access to this Portal, and assume all responsibility related to any loss, theft, or other destruction of any data as the result of any access to your account via the use of your credentials.

7. Updates; Registration and Information Collection. You acknowledge that WDT has no obligation to provide you with any support for the SDK, including bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions to the SDK (collectively, “Updates”). WDT may disable, stop, temporarily or permanently, distributing the SDK to you at is sole discretion, without prior notice to you.  You agree that WDT may provide Updates to the SDK that may change certain features of the SDK without prior notice to you and that future versions of the SDK may be incompatible with Applications developed on previous versions of the SDK.

As part of any Developer registration process, WDT may request registration-related information, including without limitation your name, e-mail address, username, or password. By providing this information, you consent to its collection and use by WDT to provide non-promotional communications regarding any WDT Device or the SDK, including notices of Update availability, product recalls, or safety concerns.  WDT’s use of information it collects from you in connection with the registration process, or that you otherwise provide to WDT in connection with WDT’s SDK or WDT products, shall be governed by the WDT Privacy Policy located at https://www.sandisk.com/about/legal/privacy, which is incorporated into this Agreement by reference. By agreeing to the terms of this Agreement, you agree to the terms of the WDT Privacy Policy.  If you do not agree to the terms of the Privacy Policy, you should not use the SDK.

Notwithstanding the foregoing, you acknowledge and agree that WDT may use your name and the name, logos, and icons associated with your Applications to market and promote WDT and its products and services without further consent or approval.

8. Trademarks. Developer shall not use any trademarks, trade names, service marks of WDT or refer to WDT in any promotional activity or material without first obtaining the prior written consent of WDT, and if such permission is granted, to be consistent with the relevant WDT trademark and brand guidelines as provided on WDT’s website (e.g., www.sandisk.com).  Nothing in this License Agreement gives you a right to use any of WDT trademarks, trade names, service marks, logos, domain names, or other distinctive brand features.

9. Feedback.  Developer may from time to time provide suggestions, comments or other feedback to WDT with respect to the SDK or WDT products (“Feedback”). Developer agrees that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as “confidential” or “proprietary” by Developer, will not create any confidentiality or other obligation for WDT. You hereby grant WDT all rights, title and ownership of such Feedback (including all intellectual property rights therein), and WDT may use the Feedback for any and all commercial and non-commercial purposes with no obligation of any kind to you. WDT’s right to use Feedback as stated in this paragraph will survive the expiration or termination of this Agreement.

10. DISCLAIMER OF WARRANTY

THE SDK IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WDT AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OR LACK OF VIRUSES. WDT DOES NOT WARRANT THAT THE SDK WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SDK REMAINS WITH YOU. YOU UNDERSTAND AND AGREE THAT ANY SOFTWARE, MATERIAL, OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PORTAL OR THE USE OF THE SDK IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, DEVICE, SYSTEM OR NETWORK, INCLUDING ANY LOSS OR CORRUPTION OF DATA. THE FOREGOING WARRANTY DISCLAIMER SHALL NOT MODIFY, CONSTRUE, OR AMEND THE APPLICABLE WARRANTY THAT RELATES TO YOUR USE, IF APPLICABLE, OF WD DEVICES.

WDT DOES NOT MAKE ANY REPRESENTATIONS ABOUT AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, ANY NON-WDT DEVICE, OR THE ACTIONS OR OMISSIONS OF ANY THIRD PARTY.. WDT DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD-PARTY MATERIALS, PRODUCTS, OR SERVICES ACCESSED OR MADE AVAILABLE THROUGH THE PORTAL OR THAT MAY BE INCLUDED WITH THE SDK. YOU USE OR ACCESS THIRD PARTY MATERIALS, PRODUCTS, AND SERVICES AT YOUR OWN INITIATIVE AND RISK.

 

11. LIMITATION ON LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WDT OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION LOSS OF DATA, COMPUTER SYSTEM FAILURE, MALFUNCTION OR OTHER PECUNIARY LOSS RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SDK OR THE PORTAL, EVEN IF WDT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL WDT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN CONNECTION WITH THE SDK EXCEED $25. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

WDT IS NOT RESPONSIBLE OR LIABLE FOR ANY INFECTIONS OR CONTAMINATION OF YOUR SYSTEM, DAMAGE TO YOUR SYSTEM, OR DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF OR RELATED TO YOUR USE OF THE SDK OR THE PORTAL.

12. U.S. Government Restricted Rights. The SDK is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.

13. Export Restrictions.  WDT makes no representation that the Software is appropriate for use in your country of use. You acknowledge that no part of the SDK or underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) any countries or regions subject to U.S. trade embargo (currently Iran, Cuba, Syria, North Korea, Sudan, and the region of Crimea), or anyone on any of the U.S. government’s Lists of Parties of Concern including, the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List and Entity List. By using the SDK, you are agreeing to the foregoing, and are representing and warranting that you are not located in or under the control of a national or resident of any such country or on any such list and you agree that you will not use the SDK in any activities directly or indirectly related to the proliferation of weapons of mass destruction, except as authorized under applicable laws and regulations.  You further acknowledge and understand that certain functionality of the SDK, 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. 

14.  Indemnity.  To the maximum extent permitted by law, you agree to defend, indemnify, and hold harmless WDT and its respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (a) your use of the SDK; (b) any Application you develop on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent, or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy; and (c) any breach of your obligation under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation.

15. Termination.  Without prejudice to any other WDT rights, WDT may immediately terminate this Agreement, including without limitation termination of any user accounts associated with the SDK, with or without notice to you if WDT deems that you fail to comply with your obligations under this Agreement. Upon termination, you must immediately cease all use of the SDK and destroy all copies of the SDK. You may terminate this Agreement at any time by ceasing your use of the SDK. Upon termination of this Agreement, all licenses granted in this Agreement shall immediately expire and you must cease use of the SDK. The parties to this Agreement will not be liable to each other for any damages resulting solely from termination of this Agreement as permitted under this Agreement.  Sections 4, 6, 8, 9, 10, 11, 14, and 16 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.

16. General. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions.  In the event of a dispute between you and WDT both consent to the exclusive jurisdiction of the state and federal courts sitting in Orange County, California. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is held unenforceable by a court of competent 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. 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. The provisions of this Agreement that require or contemplate performance after the termination of this Agreement shall be enforceable notwithstanding such termination. 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.

Last Updated: October 2016

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