EdgeRover Terms of Service
Effective as of January 1, 2021
Western Digital Technologies, Inc.
5601 Great Oaks Parkway
San Jose, CA 95119, U.S.A.
Europe: 2-4 bd des Iles, Bat A
92130 Issy les Moulineaux, France
UK: Hamilton House, Regent Park
Kingston Rd, Leatherhead, Surrey KT22 7PL, UK
IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE U.S. PLEASE READ THIS NOTICE REGARDING DISPUTE RESOLUTION: The TOS contains provisions that govern how claims you and we may have against each other are resolved (see Section 27), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, and limits the time period within which you may bring a claim against us, unless you opt out in accordance with Section 27(g). Unless you opt out of arbitration: you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
- ACCEPTANCE OF TERMS. The Terms of Service (the “TOS”) describes your rights and obligations that are applicable to your use of the EdgeRover service provided to you by Western Digital Technologies, Inc. (“WDT,” “we,” “us,” “our”), including WDT’s data computation and storage services and any other WDT services that link to the TOS; all software, firmware, Updates (defined below), and related documentation that may be made available by or on behalf of WDT in connection with the EdgeRover service, including WDT’s web, mobile, and desktop applications (the “Software”); and all websites, data, text, images, and other content made available by or on behalf of WDT through any of the foregoing (all of the preceding in this Section 1 collectively referred to as the “Service”). WDT is the provider of the Service, which may permit you to use certain services, including indexing, searching, organizing, storing, and accessing Your Content (defined below). Please read the TOS carefully because you will be legally bound by the terms and conditions in the TOS. WDT only provides the Service to you subject to the TOS. For WDT software or services that are accompanied by a separate agreement, the terms of that separate agreement will govern your use of that WDT software or services. By accepting the TOS or by installing, accessing, or using the Service, you represent and warrant to WDT that you have the full right and authority to enter into the TOS, and you agree to be bound by the TOS (including the Privacy Statement, available at https://www.westerndigital.com/legal/privacy-statement, and the Acceptable Use Policy, available at https://www.westerndigital.com/legal/acceptable-use-policy, both of which are incorporated here by reference). If you are entering into the TOS on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind the applicable entity to the TOS. In that case, the terms “you” or “your” shall also refer to the applicable entity. If you do not have necessary authority, or if you do not agree with the TOS, you may not install, access, or otherwise use the Service.
You acknowledge that the TOS is a binding legal contract between you and WDT, even though it is electronic and is not physically signed by you and WDT, and it governs your use of the Service.
- UPDATES TO THE TOS. We may change the TOS as the Service evolves. If we make a material change to the TOS, we will provide you with reasonable notice prior to the effective date of the changes by sending an email to the email address associated with your account with EdgeRover (“Account”), by posting a notice on this website, or via an in-product notification. The revised terms and conditions of the TOS will become effective on the earlier of the date you accept the revised terms and conditions or on the date set forth in the applicable notice. By accepting the revised terms and conditions or by accessing or using the Service after the effective date of the revised terms and conditions, you agree to be bound by the revised terms and conditions of the TOS. If any change to the TOS is not acceptable to you, you must terminate your Account as described in Section 18 and stop using the Service. You can review the most current version of the TOS at any time by visiting https://www.westerndigital.com/legal/edgerover/terms-of-service.
- PRIVACY STATEMENT. Please review our Privacy Statement, to understand how we treat your personal information and protect your privacy when you use the Service. The Privacy Statement is part of and is governed by the TOS and by agreeing to the TOS, you agree to be bound by the terms of the Privacy Statement and agree that we may use personal information in accordance with its terms. You can review the most current version of the Privacy Statement at any time by visiting https://www.westerndigital.com/legal/privacy-statement. To provide the Service to you, we may use third-party cloud provider Amazon Web Services, Inc. or its affiliates to store content, including Your Content (defined below) and information related to your Account.
- ACCEPTABLE USE POLICY. Please review our Acceptable Use Policy, to understand your responsibilities when using the Service. The Acceptable Use Policy is part of and is governed by the TOS and by agreeing to the TOS, you agree to be bound by the terms of the Acceptable Use Policy. You can review the most current version of the Acceptable Use Policy at any time by visiting https://www.westerndigital.com/legal/acceptable-use-policy.
- REGISTRATION. As part of any registration process, WDT may request registration-related information, including your name, email address, username, or password. By providing this information, you consent to its collection and use by WDT in accordance with the Privacy Statement (see Section 3), to provide non-promotional communications regarding the Service, including notices related to your Account, transactions, Updates (defined below), product recalls, safety concerns, and changes to our policies and terms. You are responsible for maintaining the confidentiality of your username, password, and Account, and for all activities that occur under your username, password, and Account. You are also responsible for the accuracy of the Account information you provide and for keeping it up to date.
- AFFIRMATIVE REPRESENTATIONS REGARDING YOUR USE OF THE SERVICE. By installing, accessing, or otherwise using the Service, you represent that (a) you are at least eighteen (18) years of age (or have reached the age of majority if that is not eighteen (18) years of age where you reside), (b) you are fully able and competent to enter into and comply with the terms and conditions in the TOS, and (c) your use of the Service does not violate any applicable law or regulation. The Service is not directed to children under thirteen (13) years of age, so if you are under thirteen (13), you are not permitted to access or use the Service. If you have registered for an Account, and we become aware that you are using the Service even though you are under thirteen (13), we will terminate your Account.
- SCOPE OF THE SERVICE.
- The Service does not include any content (including Your Content, as defined below), software application, or service that is provided by you or a third party, which you access or use in connection with the Service and which may be governed by other terms.
- You acknowledge that WDT has no obligation to provide you with, but may, from time to time, issue updates to the Service, including bug fixes, patches, upgrades, additional or enhanced functions, plug-ins, and new versions (collectively, “Updates”). The Service 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 the TOS or by using the Service, you agree to receiving automatic Updates.
- Any modifications and new features added to the Service are also subject to the TOS. WDT reserves the right to modify or discontinue the Service, any portion thereof, or any feature or functionality thereof, as described in Section 18.
- All rights, title, and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to WDT.
- ACCESS AND USE OF THE SERVICE. You may access and use the Service only for lawful, authorized purposes, and you shall not misuse or abuse the Service in any manner, including as described in our Acceptable Use Policy (see Section 4). You shall comply with any codes of conduct, policies, storage limitations, or other notices we provide or publish in connection with the Service, but if any of those policies materially change the TOS, we will provide you with reasonable notice as provided in Section 2.
You shall promptly notify WDT at PSIRT@WDC.COM if you learn of a security breach related to the Service. Please see https://www.westerndigital.com/support/productsecurity for additional information on security reporting.
- WDT INTELLECTUAL PROPERTY RIGHTS. Subject to the terms and conditions of the TOS, WDT only grants you a limited, personal, non-exclusive, non-transferable, and non-sublicensable license to use the Service. Any Software made available is licensed to you, not sold. Any rights not expressly granted herein are reserved by WDT and its third-party licensors (“Licensors”). 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 Service. Except for Your Content, the Service and any related trademarks, service marks, and logos are owned by or licensed to us and are subject to copyright and other intellectual property rights under U.S. and foreign laws and international conventions. In addition, the Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
- THIRD-PARTY DEVICES. The Service 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 Service is, will be, or will remain compatible with any applicable Third-Party Device.
- LIMITED TIME TRIAL. WDT may, but is not obligated to, offer a limited time trial for your Account for use with the Service, subject, in each case, to the TOS and any additional terms and conditions stated in the applicable trial offer, which we will provide to you at the time we extend the applicable offer to you. Each trial offer is subject to change by us at any time, which will apply prospectively. Eligibility for a trial offer is determined by WDT at its sole discretion, and we may limit eligibility or duration to prevent abuse. Certain Paid Subscriptions may offer a trial prior to charging your payment method. At the end of the trial period, we will charge your payment method for your next billing period, and your Paid Subscription (defined below) will automatically renew unless you cancel the Paid Subscription before the trial ends.
- PAYMENT AND FEES.
- GENERAL. If you purchase any features of the Service that we offer for a fee (“Paid Services”), such purchase is additionally subject to the terms of the applicable provisions of our Terms of Sale (Consumer), available at https://www.westerndigital.com/legal/terms-and-conditions-of-sale-consumer. In the event of any conflict with the Terms of Sale (Consumer), for purposes of the Service, the terms of the TOS control. For Paid Services, including Paid Subscriptions (defined below), you authorize us and our designated payment processors to store your payment information and other related information. You also agree to pay the applicable fees for the Paid Services, including periodic fees for Paid Subscriptions. You are responsible for any applicable taxes, duties, levies, overseas transaction fees, currency conversion fees, and any similar charges applied by your bank or payment facility provider on payments that you make in relation to and applicable to the Service. Prices are subject to change by us at any time. For Paid Subscriptions, we will provide reasonable prior notice of any applicable price increases and obtain your consent to continue. Subject to the law in your jurisdiction, payments are not subject to refund, and there are no refunds for any partially used Paid Subscription periods. If WDT terminates your Paid Subscription without cause, you will receive a pro rata refund of any pre-paid fees.
- PAID SUBSCRIPTIONS. The Service may allow you to purchase access to certain features of the Service on a subscription basis (“Paid Subscriptions”). Paid Subscriptions automatically renew at the end of the then-current billing period, unless cancelled (see Section 18 for information on how to cancel). Paid Subscriptions are charged, at confirmation of purchase and at the start of every new billing period, unless cancelled, in accordance with the terms provided to you at the time of purchase. You may cancel your Paid Subscription at any time (see Section 18). Your cancellation must be submitted before the end of the then-current billing period to avoid incurring a charge for the upcoming billing period. Cancellation will take effect at the end of the then-current billing period. If your payment method cannot be charged for any reason (such as expiration or insufficient funds), and you have not cancelled the Paid Subscription, you remain responsible for any uncollected amounts. We reserve the right to cancel your Paid Subscription if we are unable to successfully charge your payment method to renew your subscription.
- RIGHT OF WITHDRAWAL. For Paid Subscriptions, you have the right to withdraw from and cancel your subscription without giving any reason during a fifteen (15)-day withdrawal period.
The withdrawal period will expire after fifteen (15) days from the day after your initial purchase or, if you are on an annual payment plan, after the start of any renewal term.
To exercise the right of withdrawal, you must inform WDT of your decision to withdraw from the subscription by an unequivocal statement (e.g., a letter sent by post or email) (see contact details at the beginning of the TOS). The easiest way to contact WDT to exercise your right of withdrawal is through https://www.westerndigital.com/support or by sending an email to SUPPORT@WDC.COM.
You may use the model of withdrawal form reproduced below, but it is not mandatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of Withdrawal. If you use your right of withdrawal, we shall reimburse to you all payments received from you, without undue delay and in any event not later than fifteen (15) days from the day on which we are informed about your decision to use your right of withdrawal. We will carry out such reimbursement using the same means of payment as you used for the initial transaction.
However, if you use your right of withdrawal whereas, previously, you expressly decided to start using the Service before the withdrawal period ends, we will keep an amount corresponding to the time period during which you used the Service until you send us your decision to cancel the Service.
MODEL WITHDRAWAL FORM
Please complete and return this form only if you want to cancel your subscription.
To: Western Digital Technologies, Inc. (see contact details at the beginning of the TOS):
— I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract for the provision of the following service:
— Ordered on (*)/received on (*):
— Name of consumer(s):
— Address of consumer(s):
— Signature of consumer(s) (only if this form is notified on paper):
(*) Delete as appropriate
- YOUR CONTENT RIGHTS AND RELATED RESPONSIBILITIES.
- “Your Content” means any content and materials you upload, store, share, index, post, transmit, or otherwise make available using the Service, and includes files you upload or index using the Service, metadata or tags associated or generated in connection with your files, comments you make on files, and profile information.
- To provide the Service to you, we require that you grant us certain rights with respect to Your Content. For example, we may need to be able to transmit, store, and copy Your Content to display it to you, to index it so you are able to search it, to make backups to prevent data loss, and for other purposes directly related to your use of the Service. Your acceptance of the TOS gives us the permission to do so and grants us any applicable rights necessary anywhere in the world to provide the Service to you, only for the purpose of providing the Service (and for no other purpose). This permission includes allowing us to use third-party service providers in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary for WDT to provide the Service to you.
- If you send us any feedback or suggestions regarding the Service, WDT may use any applicable feedback or suggestions for any purpose without any obligation to you, subject to any restriction of use under applicable law or regulation.
- You are solely responsible for your conduct, Your Content, and all communications with others while using the Service.
- We may choose to review Your Content for compliance with our policies and guidelines, but you acknowledge that WDT has no obligation to monitor any information on the Service.
- We are not responsible for the accuracy, appropriateness, or legality of Your Content or any other content shared with you or that you are otherwise able to access using the Service. The Service may provide features that allow you to share Your Content and other materials with others or to make it public. Please consider carefully what you allow to be shared or made public. You must evaluate, and bear all risks associated with, the use of and any reliance on Your Content.
- You agree to use the Service responsibly, and you represent and agree that your use of the Service and Your Content complies with our policies and guidelines, including as described in our Acceptable Use Policy (see Section 4).
- OUR MANAGEMENT OF THE SERVICE; USER MISCONDUCT. To the extent permissible under applicable law, we reserve the right, but do not undertake the obligation to: (a) monitor or review the Service for violations of the TOS and for compliance with our policies and guidelines; (b) report to law enforcement authorities anyone who violates the TOS and cooperate with law enforcement authorities in the prosecution of anyone who violates the TOS; (c) take legal action against anyone who violates the TOS; (d) pre-screen, refuse, restrict access to or the availability of, remove, delete, edit, or disable access to any of Your Content or any portion thereof, or your access to the Service, as applicable and to the extent technologically feasible, if Your Content is found to be in violation of the TOS, our policies, or our guidelines, or is otherwise objectionable; (e) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; (f) screen our users or members, or attempt to verify the statements of our users or members; and (g) monitor issues between you and other users or to terminate or block you and other users for violating the TOS.
If while using the Service, you encounter content or activity you believe is in violation of the TOS, or that you otherwise find inappropriate, you may report it by contacting WDT through https://www.westerndigital.com/support or by sending an email to SUPPORT@WDC.COM.
- ACCESS TO YOUR ACCOUNT AND YOUR CONTENT. To the extent permissible under applicable law, you acknowledge, consent, and agree that WDT may, in accordance with the terms of the Privacy Statement, access, preserve, and disclose your Account information and Your Content if required to do so by law or under a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any of Your Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of WDT, its users, or the public.
- INTERNET ACCESS; AVAILABILITY OF THE SERVICE. Access to the Internet may be required to use certain features of the Service. You are responsible for acquiring and paying for all equipment and licenses necessary to access and use the Internet in connection with your use of any applicable features of the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, including your inability to access the Internet, but WDT shall use reasonable efforts to provide prior notice of any material scheduled service disruption.
- TERM; TERMINATION.
- TERM OF THE TOS. The TOS will continue in full effect, as amended, unless and until your Account or the TOS is terminated as described in the TOS.
- YOUR RIGHT TO TERMINATE. If you have created an Account, you may terminate your Account at any time through your Account settings. Subject to Section 18(d), termination of an Account irrevocably deletes your profile and Your Content, including any content that you have shared with others or made public. If other users have copied your shared content into their own accounts or out of the Service, those copies will not be deleted. Your Content may remain on the Service for a period of time after we process your termination request and may remain in our backups beyond that time. If an Account is later reactivated, Your Content from your previous use of the Service may not be recovered.
- OUR RIGHT TO TERMINATE. WITHOUT LIMITING ANY OTHER PROVISION OF THE TOS OR ANY REMEDY WE MAY HAVE UNDER LAW OR IN EQUITY, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, TERMINATE YOUR ACCOUNT, DENY ACCESS TO AND USE OF THE SERVICE, OR MODIFY OR TERMINATE THE SERVICE. Cause for termination shall include: (i) your breach of any representation, warranty, or covenant contained in the TOS; (ii) your violation of the TOS or any of our policies or guidelines; (iii) your request to cancel or terminate your Account; (iv) a request or order from law enforcement, a judicial body, or other government agency; (v) your violation of any applicable law or regulation; (vi) where provision of the Service to you is or may become unlawful; (vii) unexpected technical or security issues or problems; and (viii) failure to pay any fees owed by you in relation to the Service, provided that in the case of non-material breach, WDT will be permitted to terminate only after giving you reasonable notice and a reasonable time period for you to cure the breach. In addition, WDT may terminate your Account if there is a general discontinuance of the Service or any part thereof. If we decide to discontinue the Service, we will give you reasonable prior notice.
- RETENTION OF YOUR CONTENT. Upon any termination of the Service, we have no obligation to maintain or provide any of Your Content stored with the Service; however, we intend to give you reasonable prior notice of any applicable termination and to provide you with the capability to download Your Content for a reasonable period of time after the applicable termination. Please review our Privacy Statement (see Section 3) for more information about the choices you have regarding Your Content.
- REFUNDS. If you elect to terminate your Account, or your Account is terminated by WDT due to your violation of the TOS or otherwise for cause, subject to any local applicable laws, we have no obligation to refund any amounts you have paid us. However, if WDT terminates your Account without cause, you will receive a pro rata refund of any pre-paid fees.
- SURVIVAL. Any terms of the TOS that require or contemplate performance after the termination of the TOS, shall survive and be enforceable notwithstanding termination of the TOS.
- DISCLAIMER OF WARRANTIES.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE EXCLUSION OF MANDATORY CONSUMER GUARANTEES, OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, WDT’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. WDT SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE SERVICE. THE FOLLOWING DISCLAIMERS ARE SUBJECT TO THIS EXPRESS WARRANTY.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WDT WILL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS OR USE OF ANY OF YOUR CONTENT, OR ANY CORRUPTION, DELETION, DESTRUCTION, OR LOSS OF ANY OF YOUR CONTENT.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WDT AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WDT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM WDT OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
- LIMITATION OF LIABILITY.
- SUBJECT TO SECTION 19(a), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WDT BE LIABLE TO YOU OR ANY THIRD PARTY FOR:
- ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOST SALES, LOST BUSINESS, OR LOST DATA, INCLUDING YOUR CONTENT; FOR BUSINESS INTERRUPTION; FOR COMPUTER SYSTEM FAILURE OR MALFUNCTION; FOR INFECTIONS OR CONTAMINATIONS OF, OR DAMAGE TO, YOUR SYSTEM; FOR DELAYS, INACCURACIES, ERRORS, OR OMISSIONS; OR FOR OTHER PECUNIARY LOSS, ARISING OUT OF OR RELATED TO THE TOS OR THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF WDT HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES;
- ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, TWENTY-FIVE U.S. DOLLARS ($25.00); AND
- ANY MATTER BEYOND OUR REASONABLE CONTROL.
- THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE TOS.
- WDT SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE SERVICE. THE LIMITATIONS IN THIS SECTION DO NOT APPLY WITH RESPECT TO LOSS RESULTING FROM (i) WDT’S FAILURE TO USE REASONABLE SKILL AND DUE CARE; (ii) WDT’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUDULENT REPRESENTATION; OR (iii) DEATH, PERSONAL INJURY, OR INJURY TO HEALTH.
- NOTICE TO NEW JERSEY USERS. Notwithstanding any terms set forth in the TOS, if any of the provisions set forth in Sections 19 or 20 are held unenforceable, void or inapplicable under New Jersey law, then any applicable provision shall not apply to you but the rest of the TOS shall remain binding on you and WDT. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute. Notwithstanding any provision in the TOS, nothing in the TOS is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
- NOTICE TO CALIFORNIA USERS. Under California Civil Code § 1789.3, users located in California are entitled to the following consumer rights notice. Users may contact us by writing to Western Digital Technologies, Inc., ATTN: Legal Department, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. We respect the rights of copyright owners to control the uses of their intellectual property and require users of the Service to do the same. It is WDT’s policy to respond to notices of alleged infringement that comply with the U.S. Digital Millennium Copyright Act and other applicable intellectual property laws. Responses may include removing or disabling access to material and terminating the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of WDT or others.
If you are a copyright owner or are authorized to act on behalf of one, and you believe that material or content residing on or accessible through the Service infringes a copyright, please contact WDT’s Copyright Agent as described in our Copyright Policy, available at https://www.westerndigital.com/legal/copyright-policy.
As mentioned in our Copyright Policy, please note that if we remove or disable access to the materials reported in a notice of alleged copyright infringement, Western Digital may send a copy of the notice, including your contact information, to the reported user. If a counter-notice is received by our Copyright Agent, Western Digital may send a copy of the counter-notice, including your contact information, to the original complaining party. Any emails that you send to us relating to claims of copyright infringement may be stored on servers located in the United States.
- NOTICE TO U.S. GOVERNMENT END USERS. 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 these 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.
- INTERNATIONAL USE. To the maximum extent permitted by law, WDT makes no representation or warranty that the Service is appropriate or available for use in your country of use. We may limit the availability of the Service, in whole or in part, to any person, geographic area, or jurisdiction we choose, at any time and in our sole discretion. You acknowledge and agree that some or all of the Service, including the materials contained thereon, may be subject to the U.S. Export Administration Regulations, the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) Economic Sanctions Regulations, as well as export and sanction laws of other countries or intergovernmental organizations (including the E.U. and the United Nations), and that diversion of such portions of the Service or materials contrary to U.S. law or other applicable laws is prohibited. You agree that no part of the Service, nor any direct product thereof or materials thereon, will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the U.S. government (and other relevant government) for such specific purposes/projects. You acknowledge and agree that no part of the Service, underlying information or technology, or data/materials thereon 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., E.U., or U.N. trade embargoes (and/or the citizens, nationals, or residents of such countries or regions); anyone on the OFAC list of Specially Designated Nationals And Blocked Persons or similar lawful sanctions lists; or anyone on the restricted or denied party lists maintained by the U.S. government or Wassenaar member countries. By accessing and using the Service, 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 Service, including 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.
- INDEMNIFICATION. To the maximum extent permitted by law, You shall defend, indemnify, and hold harmless WDT and its respective directors, officers, employees, and agents and WDT’s licensors from and against any claims, actions, or demands, including any losses, liabilities, damages, fines, expenses, and reasonable legal and accounting fees and costs, arising from or relating to your breach of the TOS, any of Your Content, or your use or misuse of the Service. WDT shall provide notice to you of any applicable claim, suit, or demand. WDT reserves the right to assume the exclusive defense and control of any matter involving a third party that is subject to indemnification under this Section. In that case, you agree to cooperate with any reasonable requests assisting WDT’s defense of such matters. YOU WILL NOT BE REQUIRED TO INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ANY APPLICABLE CLAIMS, SUITS, OR DEMANDS TO THE EXTENT RESULTING FROM WDT’S OWN NEGLIGENT CONDUCT.
- LEGAL DISPUTES AND ARBITRATION AGREEMENT.
IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE U.S.: PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- INFORMAL DISPUTE RESOLUTION. You may contact us at Western Digital Technologies, Inc., ATTN: Legal Department, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and we agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
- AGREEMENT TO BINDING ARBITRATION. If we do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is pursued pursuant to Section 27(a), then either party may initiate binding arbitration pursuant to the terms set forth in the TOS. All claims arising out of or relating to the terms set forth in the TOS (including their formation, performance, and breach), the Service, or the parties’ relationship with each other shall be finally settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. 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 the TOS, including any claim that all or any part of the TOS is void or voidable, and except as provided for in Sections 27(d)-(f). 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 in the U.S., or in Santa Clara County, California, U.S.A., at your option. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and WDT agree that this Section 27 shall survive termination of the TOS. The TOS memorializes a transaction involving interstate commerce and the interpretation and enforcement of this Section 27 shall be governed by the U.S. Federal Arbitration Act (9 U.S.C. § 1 et seq.).
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures or by calling 1-800-352-5267. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel, and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration. We will also pay JAMS to reimburse you for any portion of the filing fee that is more than what you would otherwise have to pay to file suit in a court of law. Unless otherwise 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.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
- CLASS ACTION AND CLASS ARBITRATION WAIVER. YOU AND WDT EACH FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN OUR RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. YOU AND WDT EACH EXPRESSLY WAIVE OUR RESPECTIVE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS, INCLUDING U.S. FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in Section 27(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- EXCEPTION – U.S. SMALL CLAIMS COURT CLAIMS. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an individual action in a U.S. small claims court if that action is within that court’s jurisdiction and is pending only in that court.
- EXCEPTION – CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT (PAGA) ACTION. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
- EXCEPTION – CLAIMS INVOLVING INTELLECTUAL PROPERTY RIGHTS. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim relating to the enforcement, infringement, or validity of (i) trade secrets, (ii) patents, (iii) copyrights, or (iv) trademarks. The parties agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
- 30-DAY RIGHT TO OPT-OUT. You can opt out of this agreement to arbitrate by sending a written letter to Western Digital Technologies, Inc., ATTN: Legal Department – Western Digital EdgeRover Arbitration Opt-Out, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. within thirty (30) days of your acceptance of the TOS, or within thirty (30) days of any subsequent modification to the arbitration agreement set forth in this Section 27. Your letter to opt out of arbitration must include your (i) name, (ii) username, (iii) mailing address, (iv) email address, and (v) express request to opt out from the arbitration agreement set forth in this Section 27. If you opt out of this agreement to arbitrate consistent with the procedure set forth above, all other terms and conditions set forth in the TOS shall continue to apply to your use of the Service.
- 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 CLAIM UNDER THE TOS MUST BE INITIATED WITHIN ONE YEAR AFTER THE CLAIM FIRST AROSE; OTHERWISE THE CLAIM IS PERMANENTLY BARRED.
- OPEN SOURCE SOFTWARE. The Service may include open source software that is subject to open source license terms. Notwithstanding anything to the contrary herein, use of applicable 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 applicable open source software.
- CHOICE OF LAW.
The TOS shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE U.S.: Except as provided for in Section 27, all claims arising out of or relating to the TOS, the Service, or the parties’ relationship with each other shall be governed by the laws of the State of California, without regard to conflict of law provisions.
IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) A COUNTRY OUTSIDE OF THE U.S.: The laws of your country of residence will apply to all claims arising out of or relating to the TOS, the Service, or the parties’ relationship with each other.
- EXCLUSIVE VENUE FOR LITIGATION.
IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE U.S.: To the extent that the arbitration provisions set forth in Section 27 do not apply, or if you have opted out of arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Santa Clara County, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Santa Clara County, California for any litigation other than small claims court actions. In the event of litigation relating to the TOS, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) A COUNTRY OUTSIDE OF THE U.S.: The courts of your country of residence will apply to all claims arising out of or relating to the TOS, the Service, or the parties’ relationship with each other.
- ENFORCEABILITY. If any provision of the TOS is found to be unenforceable or invalid, that provision will be interpreted to give the fullest possible effect to its original intent or eliminated to the minimum extent necessary so that the TOS will otherwise remain in full force and effect and enforceable.
- COMPLETE AGREEMENT. The TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and terminates all previous written and oral agreements, communications, and other understandings relating to the subject matter of the TOS. As used in the TOS, the term “include(s)” or “including” means “include(s) (or including) without limitation” and shall not be construed to limit any general statement that it follows.
- RELATIONSHIP OF THE PARTIES. No agency, partnership, joint venture, or employment is created as a result of the TOS, and you do not have any authority of any kind to bind WDT in any respect whatsoever.
- ASSIGNMENT. You may not assign the TOS without the prior written consent of WDT, except, if you are a company or other legal entity, you may assign the TOS in connection with a merger, re-organization, or acquisition of all or a substantial portion of your assets by another company, but only upon thirty (30)-days’ prior notice to WDT. WDT may assign or transfer the TOS, in whole or in part, without restriction.
- NOTICES. All notices provided by WDT under the TOS, including those regarding modifications to the TOS, may be given by email, by posting on WDT’s website, or via an in-product notification. You agree that any applicable notices that we send you electronically will satisfy any legal communication requirements.
- WAIVER. The failure of WDT to exercise or enforce any right or provision of the TOS shall not constitute a waiver of the applicable right or provision. The waiver of any applicable right or provision will be effective only if in writing and signed by a duly authorized representative of WDT.
- EVENTS BEYOND REASONABLE CONTROL. 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.
- ADDITIONAL PROVISIONS FOR APPLE USERS. Notwithstanding anything to the contrary in the TOS, your use of the Service with Apple Inc. (“Apple”) devices shall be subject to the following additional terms in this Section. You agree and acknowledge that: the TOS is concluded between you and WDT only, and not with Apple, and WDT, not Apple, is solely responsible for the Service and the content thereof to the extent described in the TOS; the license granted to you under the TOS is a non-transferable license to use the Service 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 Service 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 Service, to the extent specified in the TOS, or as required under applicable law, and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service; in the event of any failure of the Service to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price for the Service to you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, 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 the TOS and subject to Section 27, WDT, not Apple, is responsible for addressing any claims from you or any third party relating to the Service or your possession and/or use of the Service, including product liability claims, any claim that the Service 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 the TOS and subject to Section 27, 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 the TOS, and upon your acceptance of the terms and conditions of the TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce the TOS against you as a third-party beneficiary thereof.