Western Digital End User License Agreement
IMPORTANT – PLEASE READ CAREFULLY. SECTION 10 CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES THE PROMPT RESOLUTION OF DISPUTES ON AN INDIVIDUAL BASIS, LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT OF LAW AND YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING, LIMITS THE TIME PERIOD WITHIN WHICH YOU MAY BRING A CLAIM AGAINST WDT, AND WAIVES YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS FOR CERTAIN DISPUTES.
This Western Digital End User License Agreement (this “Agreement”) is a legal contract between you, either as an individual or acting in your capacity as an employee or other representative of your company or other entity (“you”), and Western Digital Technologies, Inc. and its affiliates (collectively, “WDT”), governing your use of the software, firmware, services, associated online or electronic documentation, and any applicable Updates (as defined below) that are published, distributed, or otherwise made available by WDT (collectively, the “Software”), and if applicable, your use of the Software designed for application with WDT hardware devices and products, including without limitation WDT storage devices (collectively, “Devices”). For WDT software or services that are accompanied by a separate license agreement, the terms of that separate license agreement will govern your use of that WDT software or services.PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING TO ACCEPT THE TERMS IN THIS AGREEMENT OR BY INSTALLING, ACTIVATING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE WDT PRIVACY STATEMENT (AS INCORPORATED BY REFERENCE IN SECTION 5), WHICH ARE CONDITIONS TO WDT’S LICENSE GRANT TO YOU PURSUANT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND THE WDT PRIVACY STATEMENT, YOU MAY NOT INSTALL, ACTIVATE, COPY, OR OTHERWISE USE THE SOFTWARE.
WDT may update or modify this Agreement from time to time. By accepting any modifications to this Agreement, including, by continuing to use the Software after reasonable notice is provided to you, you are agreeing to be bound by such modifications to this Agreement.1. LICENSE AND RESTRICTIONS
The Software is licensed to you and not sold. Subject to your continuous compliance with the terms of this Agreement, WDT grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Software for your internal purposes only, and to make a reasonable number of copies of the Software solely for the purpose of using the Software as permitted pursuant to this Agreement.Except as expressly permitted under this Agreement, you agree that you will not and you will not enable others to: copy, distribute, encumber, sell, rent, lease, lend, sublicense, or otherwise transfer, publish, or disclose the Software to any third party; modify, translate, adapt, or create derivative works of the Software; decompile, reverse engineer, disassemble, decrypt, or attempt to derive the source code of the Software; use the Software to do anything illegal or violate any laws or regulations; use the Software 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 any applicable jurisdictions, including without limitation libel, defamation, obscenity, and privacy-related torts; 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; and remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in or on the Software or used in connection with the Software.
2. RESERVATION OF RIGHTS
You acknowledge that the Software is protected by copyrights and other intellectual property and proprietary rights. WDT and its third-party licensors (“Licensors”) reserve and retain ownership of all right, title, and interest in and to the Software, including without limitation any and all intellectual property rights. WDT and its Licensors reserve all rights not expressly granted to you. You agree not to take any action that interferes with or challenges, in any manner, WDT’s or its Licensors’ rights with respect to the Software.3. USE OF THIRD-PARTY DEVICES
In some instances, the Software may operate with devices manufactured by entities other than WDT (“Third-Party Devices”). You acknowledge and agree that WDT makes no representations or warranties with respect to the quality or capability of any Third-Party Devices. You acknowledge that WDT may offer support for some Third-Party Devices and not others. WDT makes no guarantees that the Software is, will be, or will remain compatible with any applicable Third-Party Device.4. UPDATES; AUTOMATIC FEATURES
You acknowledge that WDT has no obligation to provide you with, but may, from time to time, issue updates to the Software, including without limitation bug fixes, patches, upgrades, additional or enhanced functions, plug-ins, and new versions (collectively, “Updates”). The Software may automatically connect to WDT or third-party servers via the Internet to check for available Updates and may automatically download and install Updates on your device or give you the option of manually downloading and installing Updates. By accepting this Agreement and using the Software, you agree to receiving these types of automatic Updates.5. REGISTRATION AND INFORMATION COLLECTION; SHARING SERVICES
As part of any Software or Device registration process, WDT may request registration-related information, including without limitation your name, email address, username, or password. By providing this information, you consent to its collection and use by WDT to provide non-promotional communications regarding any Device purchased with the Software, including without limitation notices of Update availability, product recalls, or safety concerns. Some Software may provide sharing services to allow you to share content with other users and may display information about you (e.g., name, email address, username) when using those sharing services. By choosing to use such Software that provides sharing services, you consent to the sharing of your information for this purpose. The Software may also contain automatic communication features that relay certain information to WDT and its third-party data analytics providers in connection with the operation of the Software. WDT’s use of information it collects from you or that you otherwise provide to WDT in connection with the Software, shall be governed by the WDT Privacy Statement, which is incorporated into this Agreement by reference and located and available on WDT’s website at https://www.wdc.com/about-wd/legal/privacy-statement.html. By accepting this Agreement, you also agree to the terms of the WDT Privacy Statement. If you do not agree to the terms of the WDT Privacy Statement, you may not use the Software.6. CREDENTIALS
You agree that you will maintain the confidentiality of your username and password related to your use of the Software, and assume all responsibility for any loss, theft, or other destruction of any data resulting from any failure to comply with these obligations.7. THIRD-PARTY CONTENT AND SERVICE PROVIDERS
The Software may allow you to access and use third-party software, websites, or content (collectively, “Third-Party Content”). You acknowledge that all Third-Party Content is the property of the applicable Third-Party Content owner(s) and may be protected by copyright and other intellectual property rights. You may not use any Third-Party Content in any manner that has not been authorized by the applicable service provider (“Service Provider”) or Third-Party Content owner(s). You acknowledge that you may be required to enter into a separate agreement with a Service Provider or Third-Party Content owner(s), or comply with a Service Provider’s terms or conditions of use, in order to access or have the right to access and use certain Third-Party Content. It is your responsibility to ensure that accessing, reproducing, displaying, or otherwise using Third-Party Content in connection with your use of the Software does not infringe any third-party intellectual property rights. It is WDT’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws and to terminate the accounts of repeat infringers in appropriate circumstances, as described in the WDT Copyright Policy, which is incorporated into this Agreement by reference and located and available on WDT’s website at https://www.wdc.com/about-wd/legal/copyright.html.8. DISCLAIMER OF WARRANTY
THE SOFTWARE 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, NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, OR LACK OF VIRUSES, AND ANY WARRANTIES REGARDING THE INTEGRITY, SECURITY, OR RELIABILITY OF THE SOFTWARE. WDT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE. WDT DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE CONTINUOUS OR UNINTERRUPTED, AND WDT SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. YOU UNDERSTAND AND AGREE THAT ANY SOFTWARE, MATERIAL, OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE 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 WITHOUT LIMITATION 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 DEVICES.
WDT DOES NOT MAKE ANY REPRESENTATIONS ABOUT, AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY CONTENT, ANY THIRD-PARTY DEVICE, OR THE ACTIONS OR OMISSIONS OF A SERVICE PROVIDER OR THIRD-PARTY CONTENT OWNER. WDT IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT, ACCURACY, COMPLETENESS, TIMELINESS, VALIDITY, COPYRIGHT COMPLIANCE, LEGALITY, DECENCY, QUALITY, OR ANY OTHER ASPECT OF THIRD-PARTY CONTENT. 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 CONTENT OR WEBSITES, 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.NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON, OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE ON BEHALF OF WDT THAT DIFFERS FROM THE TERMS OF THIS AGREEMENT.
9. 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 EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, SALES, BUSINESS, GOODWILL, OR DATA, FOR BUSINESS INTERRUPTION, FOR COMPUTER SYSTEM FAILURE OR MALFUNCTION, OR FOR OTHER PECUNIARY LOSS RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DEVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, 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 THIS AGREEMENT OR THE SOFTWARE EXCEED $50 USD. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.10. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
a. Disputes. The terms of this Section 10 shall apply to all Disputes between you and WDT. For the purposes of this Section 10 and subject to the exceptions set forth in this Section 10.a, “Dispute” means any dispute, claim, controversy, or action between you and WDT arising out of or relating to the Software, Devices, this Agreement, or your relationship with WDT, under any legal theory, including without limitation contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND WDT AGREE THAT “DISPUTE” AS DEFINED IN THIS AGREEMENT SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR WDT RELATING TO THE ENFORCEMENT, INFRINGEMENT, OR VALIDITY OF (i) TRADE SECRETS, (ii) PATENTS, (iii) COPYRIGHTS, OR (iv) TRADEMARKS. NOTWITHSTANDING SECTION 10.g, YOU AGREE THAT A COURT, NOT THE ARBITRATOR, MAY DECIDE IF A CLAIM FALLS WITHIN ONE OF THESE FOUR EXCEPTIONS.b. Dispute Notice; Informal Resolution. In the event of a Dispute, you or WDT must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). You and WDT agree to try for sixty (60) days after the Dispute Notice is received to resolve any Disputes informally. The Dispute Notice to WDT must be addressed to: Western Digital Technologies, Inc., ATTN: Legal Department, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. (the “WDT Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address WDT has on file or otherwise in our records for you.
c. Binding Arbitration. You and WDT agree that, failing informal resolution, any Disputes shall be resolved by binding individual arbitration pursuant to the terms set forth in this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In some instances, the costs of arbitration may exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and binding and may be entered as a judgment enforceable by any court with jurisdiction over the parties. You and WDT agree that this Section 10 shall survive termination of this Agreement.d. Small Claims Court. Notwithstanding the foregoing, either party may bring an individual action in small claims court if the action is within that court’s jurisdiction and is pending only in that court.
e. TIME LIMITATION. TO HELP RESOLVE ANY ISSUES BETWEEN THE PARTIES PROMPTLY AND DIRECTLY, YOU AND WDT AGREE THAT ANY ARBITRATION OR SMALL CLAIMS COURT PROCEEDING REGARDING A DISPUTE UNDER THIS AGREEMENT MUST BE INITIATED WITHIN ONE YEAR AFTER THE DISPUTE FIRST AROSE; OTHERWISE THE DISPUTE IS PERMANENTLY BARRED.f. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND WDT AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
g. Arbitration Procedure. You and WDT agree that this Agreement memorializes a transaction involving interstate commerce and the interpretation and enforcement of this Section 10 shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.). If a party elects to commence arbitration, the arbitration shall be governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”), available at https://www.jamsadr.com or by calling 1-800-352-5267, and the terms set forth in this Agreement. If there is a conflict between the JAMS Rules and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, scope, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, except as provided for in Section 10.a. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Santa Clara County, California, U.S.A., at your option.h. Initiation of Arbitration Proceeding. Instructions for how to initiate an arbitration are available from JAMS at https://www.jamsadr.com. To initiate an arbitration, you or WDT must: (i) Write a Demand for Arbitration that includes a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at https://www.jamsadr.com (“Demand for Arbitration”); (ii) Send two copies of the Demand for Arbitration, plus the appropriate filing fee, to your local JAMS office or to JAMS, 160 W. Santa Clara Street, Suite 1600, San Jose, CA 95113, U.S.A.; and (iii) Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
i. Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by WDT or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or WDT is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.k. Award in Your Favor. For Disputes in which you or WDT seeks $75,000 USD or less in damages exclusive of attorney’s fees and costs, if the arbitrator’s decision results in an award to you of an amount greater than WDT’s last written offer to settle the Dispute, if any, WDT will: (i) pay you $1,000 USD or the amount of the award, whichever is greater; (ii) pay you twice the amount of your reasonable attorney’s fees, if any; and (iii) reimburse you for any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing the Dispute in arbitration. Except as agreed upon by you and WDT in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by WDT pursuant to this Section 10.k.
l. Attorney’s Fees. WDT will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under this Agreement. Your right to attorney’s fees and expenses under Section 10.k above does not limit your rights to attorney’s fees and expenses under applicable law; notwithstanding the foregoing, you agree not to seek and the arbitrator may not award duplicative awards of attorney’s fees and expenses.m. Opt-out. You may elect to opt-out (exclude yourself) from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Agreement by sending a written letter to the WDT Notice Address within thirty (30) days of your acceptance of this Agreement that specifies: (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section 10. If you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including without limitation the requirement to provide a Dispute Notice prior to litigation.
n. Severability. If any provision in this Section 10 is found to be unenforceable, that provision shall be severed with the other terms of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 10.f; if Section 10.f is found to be unenforceable, the entire Section 10 (but only Section 10) shall be null and void.11. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software contains “commercial items,” as that term is defined at 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 or 48 C.F.R. § 227.7202, as applicable. Accordingly, if you are using the Software on behalf of the U.S. government, or any contractor therefor, the government shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or 48 C.F.R. § 12.212, with respect to all other U.S. government licensees and their contractors.12. EXPORT RESTRICTIONS
WDT makes no representation that the Software is appropriate for use in your country of use. You acknowledge and agree that the Software, including without limitation any underlying information or technology, may be subject to the U.S. Export Administration Laws and Regulations, the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) Economic Sanctions Regulations, as well as export laws of other countries, and that diversion of the Software contrary to U.S. law or the law of other applicable countries is prohibited. You agree that no part of the Software, including without limitation any underlying information or technology, will be used for any nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the U.S. government (or other relevant government) for such purposes. You acknowledge and agree that no part of the Software may be directly or indirectly downloaded or otherwise exported, re-exported, shipped, transferred, or acquired for/to any countries or regions subject to U.S. trade embargo (or their citizens, nationals, or residents), anyone on the OFAC list of Specially Designated Nationals, or anyone on the restricted or denied party list maintained by the U.S. government or Wassenaar member countries. By using the Software, you agree to the foregoing, and represent and warrant that you are not on any such list and are not a citizen of, located in, customarily resident in, or under the control of a national or resident of any such country/region. You further acknowledge and understand that certain functionality of the Software, such as encryption or authentication, as well as your own materials, files, data, or use may be subject to export or import restrictions and you agree to comply strictly with all export, re-export, and import laws and assume sole responsibility for obtaining licenses to export, re-export, or import as may be required.13. 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 and WDT’s Licensors from and against any and all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, fines, and expenses (including without limitation reasonable attorney’s fees) arising out of any breach of this Agreement by you.14. TERMINATION
Without prejudice to any other WDT rights, WDT shall have the right to immediately terminate this Agreement and any accounts associated with the Software, with or without notice to you if WDT deems that you are failing or have failed to comply with your obligations under this Agreement. Upon termination, you must immediately cease all use of the Software and destroy all copies of the Software subject to this Agreement.15. OPEN SOURCE SOFTWARE
The Software licensed under this Agreement may include open source software that is subject to open source license terms. Notwithstanding anything to the contrary herein, use of such open source software shall be subject to the applicable open source license terms to the extent required by the applicable licensor. WDT provides no support for such open source software.16. SUPPORT
For questions regarding the Software, please visit the relevant support forum on the WDT website related to your product or contact WDT at https://support.wdc.com.17. GENERAL
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any and all prior or contemporaneous oral or written understandings. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided for in Section 10, this Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. Subject to the terms of Section 10, you and WDT agree that any judicial proceeding to resolve a Dispute shall be brought exclusively in the federal or state courts sitting in Santa Clara County, California, U.S.A., except you agree that WDT shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. You may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or the Software. Subject to Section 10.n of this Agreement, if any term of this Agreement is held unenforceable by a court of competent jurisdiction, such term 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 terms 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. Neither party shall be in default or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.18. APPLE
Notwithstanding anything to the contrary in this Agreement, your use of the Software with Apple, Inc. (“Apple”) devices shall be subject to the following additional terms in this Section 18. You agree and acknowledge that: this Agreement is concluded between you and WDT only, and not with Apple, and WDT, not Apple, is solely responsible for the Software and the content thereof to the extent described in this Agreement; the license in Section 1 of this Agreement is a non-transferable license to use the Software on any Apple products that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, except that the Software may be accessed, acquired, and used by other accounts associated with the purchaser via Apple Family Sharing; WDT is solely responsible for providing any maintenance and support services with respect to the Software, to the extent specified in this Agreement, or as required under applicable law, and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software; in the event of any failure of the Software to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price for the Software to you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, if applicable and not disclaimed herein, will be WDT’s sole responsibility; to the extent not already disclaimed in this Agreement and subject to Section 10, WDT, not Apple, is responsible for addressing any claims from you or any third party relating to the Software or your possession and/or use of the Software, including without limitation product liability claims, any claim that the Software fails to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation; to the extent not already disclaimed in this Agreement and subject to Section 10, WDT, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any intellectual property rights claims; and Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Last modified: July 2018