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DEVICE SUBSCRIPTION SERVICE TERMS OF USE

Last Updated: July 13, 2020


PLEASE READ EACH PROVISION OF THESE DEVICE SUBSCRIPTION SERVICE TERMS OF USE (THE “SERVICE TERMS”) CAREFULLY.  THESE SERVICE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE (DEFINED BELOW).  BY USING THE SERVICE, YOU AGREE TO BE LEGALLY BOUND BY THESE SERVICE TERMS.  PLEASE REVIEW THESE SERVICE TERMS PRIOR TO SUBSCRIBING TO THE SERVICE.  IF YOU DO NOT AGREE TO THESE SERVICE TERMS, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER PROVISIONS, DO NOT USE THE SERVICE. 

IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE U.S. PLEASE READ THIS NOTICE REGARDING DISPUTE RESOLUTION: These Service Terms contain provisions that govern how claims you and we may have against each other are resolved (see Section 12 below), 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 12(g) below. 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.

These Service Terms include the Acceptable Use Policy attached as Appendix A (as amended from time to time, the “AUP”).  These Service Terms, including the AUP, constitute a legally binding agreement between you (“you”, “your”) and Western Digital Technologies, Inc. (“WDT”, “us”, “we” or “our”).  You may not modify these Service Terms by making any changes for any purpose.  We agree to rent to you the Device (defined below) and to provide the Storage Service, subject to the terms and conditions set forth in these Service Terms, the applicable provisions of our Terms of Sale (Consumer), and our Privacy Statement. In the event of any conflict, for purposes of any rented Devices, the terms of these Service Terms control.

1. Services Description
Upon receipt by WDT of your order and any refundable deposit (if required by WDT, at its sole discretion), as described in Section 5 below, WDT will send you the rental storage device that includes all software and programs contained within the device or downloaded to the device by WDT (collectively, the “Device”) you selected through any of the websites offered by WDT (collectively, the “Site”).  The Device will be sent to you via the shipping method you have selected on the Site.  Also included with your Device is a cloud-based service that permits you to access or manage content you have stored on the Device via a mobile or desktop app (“Storage Service”).  Rental of the Device and the Storage Service is collectively referred to as the “Service”.

2. Term
The term of the Service shall be month-to-month (“Term”) with the exception of the first Term, which will be for a term of one month + ten (10) days to accommodate for time to ship and deliver the Device.  The Term begins as soon as you place an order for your Device, regardless of when or whether you begin to use the Device or connect to the Storage Service and ends at 11:59 PM (Pacific Time) on the last day of each Term. As provided in Section 8 below, you may cancel the Service at any time for any reason and you will be responsible for all charges, if any, incurred through date of our receipt of your cancelled Device.

3. Rental Fees and Other Charges
You agree to pay all charges associated with the Service, including, but not limited to the monthly rental fee, any refundable deposit amounts, applicable federal, state and local taxes and fees (however designated), recovery fees, activation fees, equipment charges and any other recurring and nonrecurring charges detailed within the billing details available in your online account (“Account”). Recovery fees are not taxes and are not required by law, but are set by WDT and may change.  You also agree to pay any additional charge or fees applied to your Account, including interest and charges due to insufficient funds. 

4. Billing
You will be billed monthly in arrears within five (5) days of the end of each Term, for the Service.  Based on your election and subject to our approval, WDT or its agent will bill your charge card or alternative payment method, as selected when placing your order or updated within your Account.


5. Refundable Deposit
We may require that you provide us with a refundable deposit, which will be indicated at the time of your order for the Service.  We may also require an additional deposit after the Term begins should you fail to pay any amounts when due.  Unless applicable law requires a shorter period, within ninety (90) days after termination of your Service, we will return your deposited amounts, less any unpaid amounts due on your Account, including any amounts owed for unreturned or damaged Device(s).  Amounts held on deposit will not accrue interest, except as required by applicable law. 

6. Late Payments and Fees
You may be billed fees, charges and assessments related to late or non-payment if, for any reason, we do not receive payment for full amounts billed to you by the due date.  We do not anticipate that you will fail to pay on a timely basis, and we do not extend credit to customers.  Any fees, charges and assessments due to late payment or non-payment are liquidated damages intended to be a reasonable estimate of our costs resulting from late payments and non-payments.  These costs will be difficult to calculate or to predict when we set such fees, charges and assessments, because we cannot know in advance (a) whether you will pay on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or non-payment. 

7. We Will Evaluate Your Creditworthiness
We may evaluate your credit history before providing you the Service.  As such, we may obtain a credit report from a consumer reporting agency (i.e., credit bureau) to determine your creditworthiness.  If you fail to pay your bill on time and in full, we may submit negative information to a consumer reporting agency, which will negatively impact your credit report.  We reserve the right to make credit inquiries even after establishing an Account with you.

8. Cancellation or Termination of Service
You may cancel the Service at any time and for any reason by giving notice to WDT as set forth in this Section 8.  You may provide notice to WDT of cancellation of the Service at any time by calling Customer Service or submitting a cancellation request through the ‘My Account’ page within your Account. Unless otherwise required by applicable law, cancellation of the Service will terminate these Service Terms, effective on the date of our receipt of your cancelled Device, and you are responsible for all charges, if any, incurred through that date, including any charges for returning the Device to WDT.

WDT reserves the right to change, limit, terminate, modify or temporarily or permanently cease providing the Service or any part of it, at any time and for any reason with or without prior notice.   Should we elect to change the Service or a part thereof, we will use best efforts to provide you with sufficient prior notice that you may elect to cancel the Service before the next billing cycle.  If you violate these Service Terms or WDT otherwise terminates your Service under this Section 8, you must immediately stop using the Service and you will be responsible for any applicable charges.

8.1 Deletion of Data Upon Cancellation or Termination
YOU AGREE THAT IF YOUR SERVICE IS CANCELLED OR TERMINATED FOR ANY REASON, WDT HAS THE RIGHT TO IMMEDIATELY DELETE ALL DATA, FILES AND OTHER INFORMATION STORED ON THE DEVICE OR STORAGE SERVICE, WITHOUT FURTHER NOTICE TO YOU.  IT IS YOUR RESPONSIBILITY TO REMOVE OR COPY ANY CONTENT ON THE DEVICE OR STORAGE SERVICE PRIOR TO TERMINATION OR CANCELLATION; OTHERWISE IT MAY BE LOST. 

8.2 Return of Equipment Upon Cancellation or Termination
You must return the Device to WDT or you will be charged the fair market value for the Device.  Failure to return the Device, or returning the Device in a damaged condition (subject only to reasonable wear and tear), will result in our assessment of a device recovery fee that may be substantial. 

9. Changes to Services and to these Service Terms
Subject to applicable law, we have the right to change our Service, rates and charges, at any time with or without notice to you.  We may deliver any notice concerning changes to the Service, including, but not limited to updates of these Service Terms, in any of the following ways, as determined by WDT in its full discretion: (1) by posting notice of the changes on our Site, including within your Account, or on any other website about which you have been notified or (2) by mail or email delivered to the addresses you provided to us.

10. Device
You expressly agree that you will use the Device in accordance with these Service Terms and that the Device belongs to us or other third parties and will not be deemed to be a fixture.  You may not sell, lease, abandon, or give away the Device, or permit your service providers or agents to use the Device, including a Device for which you have been charged due to your failure to return the Device.  You agree that you will not allow anyone other than WDT or our agents to service the Device.  You are responsible for loss, repair, replacement and other costs, damages, fees and charges if you do not return the Device to us in an undamaged condition.  For avoidance of doubt, the Device remains WDT-owned equipment, and WDT retains title to the Device, at all times, including, but not limited to, even after you have reimbursed WDT for the cost of a Device you have not returned or returned to WDT in a damaged state.

11. Limited and Revocable License
The Device, including, but not limited to, any firmware or software embedded in the Device is protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. For any software included during the Term with the Service, you agree to comply with all terms and conditions of the specific license agreement for such software, including all confidentiality obligations and restrictions on the sale, use, reverse engineering, copying, making, modifying, improving, sublicensing and transfer of such licensed software. You will not cause, induce or permit others’ noncompliance with the terms and conditions of any of these software license agreements.  

12. 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.

a. 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.

b. 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 12(a) above, then either party may initiate binding arbitration pursuant to the terms set forth in these Service Terms. All claims arising out of or relating to the terms set forth in these Service Terms (including their formation, performance, and breach), the Service, or the parties’ relationship with each other, under any legal theory, including contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, 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 these Service Terms, including any claim that all or any part of these Service Terms are void or voidable, and except as provided for in Sections 12(d)-(f) below. 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 including, if applicable, public injunctions. 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 12 shall survive termination of these Service Terms. These Service Terms memorializes a transaction involving interstate commerce and the interpretation and enforcement of this Section 12 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 12.

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.

c. 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 above in Section 12(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

d. 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.

e. 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.

f. 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. Notwithstanding the broad delegation clause set forth in Section 12(b) above, the parties agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.

g. 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, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. within thirty (30) days of your acceptance of these Service Terms, or within thirty (30) days of any subsequent modification to the arbitration agreement set forth in this Section 12. Your letter to opt-out of arbitration must include your (i) name, (ii) user name, (iii) mailing address, (iv) email address, and (v) express request to opt-out from the arbitration agreement set forth in this Section 12. If you opt-out of this agreement to arbitrate consistent with the procedure set forth above, all other terms and conditions set forth in these Service Terms shall continue to apply to your use of the Service.

h. 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 THESE SERVICE TERMS MUST BE INITIATED WITHIN ONE YEAR AFTER THE CLAIM FIRST AROSE; OTHERWISE THE CLAIM IS PERMANENTLY BARRED.

13. Warranties and Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY DEVICE (BUT ONLY WHEN SUCH WARRANTY IS INCLUDED WITH SUCH DEVICE), WDT (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES) (COLLECTIVELY THE "WDT PARTIES"), ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS AND AGENTS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON- INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. ALSO, THERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY WDT OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED.

WDT DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE CAN BE PROVIDED BECAUSE THE PROVISION OF THE SERVICE IS SUBJECT TO THE CAPACITY OF YOUR INTERNET CONNECTION AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT WE CANNOT PROVIDE THE SERVICE FOR ANY REASON, NEITHER YOU NOR WDT SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THESE SERVICE TERMS (OTHER THAN YOUR OBLIGATION TO RETURN ANY DEVICE).

WDT SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF THE DEVICE, OR RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.

IN NO EVENT SHALL THE WDT PARTIES OR WDT'S THIRD PARTY SERVICE PROVIDERS, SUPPLIERS OR AGENTS BE LIABLE FOR: (A) ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, OR RELIANCE ON OR PERFORMANCE OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF WDT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.

THE LIABILITY OF THE WDT PARTIES, OR OUR THIRD PARTY SERVICE PROVIDERS, SUPPLIERS OR AGENTS FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES (INCLUDING CHARGES FOR FAILURE TO RETURN THE DEVICE OR DAMAGE THERETO), REGULATORY FEES, SURCHARGES, FEES AND TAXES) YOU HAVE PAID TO WDT FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW.

ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 13 ALSO APPLY TO WDT'S THIRD PARTY PROVIDERS SUPPLIERS AND AGENTS AS THIRD PARTY BENEFICIARIES OF THESE SERVICE TERMS.

14. Indemnification

You agree to defend, indemnify and hold harmless the WDT Parties from and against all liabilities, costs and expenses, including reasonable attorneys' and experts' fees, related to or arising from your use of the Device (or the use of the Device by anyone else): (a) in violation of applicable laws, regulations or these Service Terms; (b) in any manner that harms or defames any person or results in the personal injury, reputation loss or death of any person or in damage to or loss of any tangible or intangible (including data) property; or (c) in any manner that results in claims for infringement of any intellectual property rights.

15. General

15.1 Entire Agreement
These Service Terms, including the AUP, the applicable provisions of the Terms of Sale (Consumer) and any other documents incorporated by reference, constitute the entire agreement and understanding between you and us with respect to the subject matter of these Service Terms, and replace any and all prior written or verbal agreements. If any portion of these Service Terms is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. We do not waive any provision or right if we fail to insist upon or enforce strict performance of any provision of these Service Terms.  Neither the course of conduct between you and us nor trade practice shall act to modify any provision of these Service Terms.

15.2 Additional Representations and Warranties
In addition to representations and warranties you make elsewhere in these Service Terms, you also represent and warrant that:

a. Age: You are at least 18 years of age.

b. Customer Information: You represent and warrant that you have provided us with information that is accurate, complete and current, including without limitation your legal name, address, telephone number(s) and payment data (including without limitation information provided when authorizing recurring payments). YOU AGREE TO NOTIFY US IMMEDIATELY IF THERE IS ANY CHANGE IN THE INFORMATION THAT YOU HAVE PROVIDED TO US, INCLUDING WITHOUT LIMITATION ANY CHANGE IN YOUR CONTACT INFORMATION. FAILURE TO DO SO IS A BREACH OF THESE SERVICE TERMS. IF YOU OWE ANY OUTSTANDING AMOUNTS FOR THE SERVICE OR HAVE ANY UNRETURNED DEVICE, THIS OBLIGATION SHALL SURVIVE THE TERMINATION OF THESE SERVICE TERMS AND SHALL CONTINUE UNTIL YOU PAY ALL OUTSTANDING AMOUNTS IN FULL AND RETURN ALL DEVICE. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. SEC. 227), AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT A MOBILE TELEPHONE NUMBER YOU HAVE PROVIDED.

15.3 Export Laws
You expressly agree to comply with all applicable export and re-export laws, including, but not limited to, the Export Administration Act, the Arms Export Control Act, and their implementing regulations. You further expressly agree not to use the Service(s) in any way that violates any provision of such laws or their implementing regulations.

15.4 Retention of Rights
Nothing contained in these Service Terms shall be construed to limit our rights and remedies available at law or in equity. Upon termination of these Service Terms for any reason, we and our agents reserve the right to delete all your data, files, electronic messages or other information that is stored by us or on the Device.  We shall have no liability whatsoever as the result of the loss of any such data, files, electronic messages or other information.

15.5 Monitoring and Recording
You agree that WDT and its agents may monitor and record any telephone calls or other voice, data or image communications that are transmitted between: (1) WDT and its agents and (2) you, your agents, any user of the Device, or any user of any phone numbers associated with your Account.

15.6 Choice of Law
Except as provided for in Section 12, these Service Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. To the extent that the arbitration provisions set forth in Section 12 do not apply, or if you have opted out of arbitration, the parties agree that any action brought by any party hereto shall be brought exclusively within the courts of Santa Clara County in the State of 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.

15.7 Assignment
You will not assign any of your rights or delegate any of your obligations under these Service Terms without WDT’s prior written consent. Any purported assignment or delegation in violation of these Service Terms is null and void. No assignment or delegation relieves you of any of your obligations under these Service Terms.

16. Important State Notices

16.1 California Customers
If you are a California customer who has a complaint related to the Device, Storage Service, Service, or fees that you have paid regarding same, you may file a complaint with the California Department of Consumer Affairs, by calling 1-800-952-5270 or by writing to: Consumer Information Division, 1625 N. Market Boulevard, Ste. N112, Sacramento, CA 95834.

 

APPENDIX A
Acceptable Use Policy

As referenced in the Device Subscription Service Terms of Use (the “Service Terms”), this Acceptable Use Policy (“AUP”) is part of the Service Terms and applies to all content on your Device.  All capitalized terms used herein have the same meanings as defined in the Service Terms. 

To the extent Western Digital Technologies, Inc. (“WDT”) becomes aware that the content on your Device is in violation of this AUP, WDT will consider such violation to be material breach of these Service Terms and WDT, as the owner of this Device and provider of the Service, will take any and all actions that may be warranted, including reporting such violations to law enforcement. 

You are responsible for any use or misuse of this Device and/or the Storage Service.  Accordingly, it is your responsibility to take steps to ensure that others who may have access to the Service (consistent with these Service Terms or otherwise) are aware of this AUP and agree to abide by it.  If you are unwilling to comply with this AUP, then you must immediately discontinue storing content on your Device and the Storage Service, remove all content from your Device and the Storage Service and notify WDT so that it can close your Account.

The Service may be used only for household, personal or family purposes in the United States of America and is not intended to be used for commercial or governmental purposes, except for your individual use for telecommuting.  Should  the Service be used for commercial or governmental purposes, WDT expressly disclaims all responsibility for content stored using the Service and its fitness for the purpose of compliance with laws governing the privacy or security of such content.

You agree to use the Service responsibly, and you represent and agree to comply with the General Conduct Requirements and Content Restrictions described below:

General Conduct Requirements

Do not misuse or abuse the Service in any manner, including, but not limited to:

  • Using the Service to store, transmit or make available to others any content that is threatening, abusive, harassing, harmful, violent, tortious, defamatory, libelous, invasive of another’s privacy, profane, discriminatory, offensive, hate speech, intimidating, disruptive or otherwise objectionable;
  • Using the Service to further the stalking, threatening, harassing, harming or bullying of others;
  • Using the Service to further the exploitation or abuse of minors in any way;
  • Using the Service to support activity that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
  • Using the Service to support activity that allows computer hardware or software to be interrupted, destroyed or functionally limited as a result of software viruses or any other computer code, files or programs;
  • Using the Service to support activity that allows you to modify, adapt, hack or otherwise attempt to gain unauthorized access to the Service or servers, networks, systems or other devices connected to the Service;
  • Using the Service to support activity that would constitute a violation of applicable local, state, national or international law, including any data privacy or export or import control laws, any regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
  • Using the Service to support activity that involves terrorism of any kind;
  • Using the Service to support activity that infringes upon the patent, trademark, trade secret, copyright or other proprietary right of any party by you or any other person;  and
  • Using the Service to support activity that collects and stores personal information about others in violation of any applicable law. 

Content Restrictions

Do not use the Service to store the following kinds of content:

  • Live performance recordings made without the consent of all performers;
  • Obscene material generally, but in particular, obscene images or other recordings of children or others who have not otherwise given or been capable of giving consent to such photography or recording;
  • Information of any kind that constitutes or is used for the purpose of perpetrating any criminal or illegal behavior, including, but not limited to, fraud, terrorism, defamation, stalking or infringing the intellectual property rights of any third party, or which otherwise violates any local, state, federal or international law, order or regulation;
  • Works that are derivative of information, software or other material that is protected by copyright or other proprietary right, without obtaining any required permission of the owner;
  • Tools or devices designed or used for compromising security, including, but not limited to, password guessing programs, decoders, keystroke loggers, analysers, cracking tools, packet sniffers, encryption circumvention devices, or Trojan Horse programs.

Also, to the extent the following information is stored using the Service, it is your responsibility to securely and permanently remove such information from the Device prior to returning it to WDT:

  • Biometric information of any kind;
  • Images or other recordings of any individuals for whom you do not maintain express consent for such photography or recordings; or
  • Intellectual property owned by a third party.

 

WDT Actions Regarding Content In Violation of this AUP

WDT reserves the right to remove or block any information or materials, in whole or in part, that it, in its sole discretion, deems to be a violation of this AUP.  WDT, nor any of its affiliates, suppliers, service providers or agents have any obligation to monitor the content on this Device.  However, WDT and its affiliates, suppliers, service providers or agents have the right to monitor your content from time to time during the rental period and when the Device is returned to WDT for violations of this AUP and to disclose, block or remove them in accordance with these Service Terms, and applicable law.

Although, WDT does not routinely monitor the activity of individuals using the Service for violations of this AUP, we will respond appropriately if we become aware of inappropriate content stored using the Service.  WDT reserves the right to investigate suspected violations of this AUP including the gathering of information from the complaining party, if any.  During an investigation, WDT may suspend your ability to access information on the Device and/or remove or block material that potentially violates this AUP.  You expressly authorize and consent to WDT and its suppliers, service providers or agents cooperating with law enforcement in the investigation of suspected legal violations.  Upon termination of the Service, WDT is authorized to delete any files, programs, data, email and other information stored on your Device.

WDT reserves the right, in its sole discretion and without notice to you, to revise this AUP and WDT will not be liable to you or to any third party for doing so. Your continued use of the Service will constitute your acceptance of any such changes.