Western Digital End User License Agreement

IMPORTANT - READ CAREFULLY. SECTION 8 OF THIS DOCUMENT CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES THE RESOLUTION OF DISPUTES ON AN INDIVIDUAL BASIS, LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT OF LAW, AND WAIVES YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR A JURY TRIAL FOR CERTAIN DISPUTES.

This End User License Agreement (this “Agreement”) is a legal contract between you, either as an individual or a single entity (“you”), and Western Digital Technologies, Inc., its subsidiaries and affiliates (collectively, “WDT”), governing your use of the WDT software and associated online or electronic documentation (such software and documentation, collectively, the “Software”), and if applicable, your use of Software designed for application with WDT hardware devices and products (“WDT Devices”).

BY INSTALLING, ACTIVATING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, WHICH ARE CONDITIONS TO WDT’S LICENSE GRANT TO YOU HEREIN, AND THE WDT PRIVACY POLICY, AS INCORPORATED BY REFERENCE IN SECTION 4. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, ACTIVATE, COPY, OR USE THE SOFTWARE. Except as provided in Section 8 herein, this Agreement may be amended from time to time by WDT with notification to you, including posting on WDT’s website (available at http://www.wdc.com/company/legal/), and you agree that you are given the opportunity to review any amendments to this Agreement by notification via posting on WDT’s website. You agree to be bound to any amendment to this Agreement if you continue to use the Software after any such notification described above.

1. LICENSE GRANT

The Software is licensed to you and not sold. Subject to the terms of this Agreement, WDT hereby grants you a personal, non-exclusive, non-transferable (subject to Section 13), non-sublicensable, and revocable license to use the Software for your personal or internal purposes, and to make a reasonable number of copies of the Software for such use.

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 all such rights with respect to the Software, except for the license expressly granted to you in Section 1. Except for such express license, no right, title, interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you. You agree not to take any action that interferes, in any manner, with WDT or its Licensors’ rights with respect to the Software. Your use of the Software may allow you to download and use third-party software or link to third-party content accessed through the Software (such software and content collectively, “Third-Party Content”). You also acknowledge that all Third-Party Content is the property of the applicable Third-Party Content owners and may be protected by applicable copyright and other intellectual property rights. Neither this Agreement nor your use of the Software to access Third-Party Content gives you any rights to such Third-Party Content. 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. It is your responsibility to ensure that your use of the Software to access, reproduce, display or otherwise use Third-Party Content does not infringe any third-party intellectual property rights. You acknowledge that you may be required to enter into a separate agreement with a Service Provider or Third-Party Content owner, or comply with a Service Provider’s terms or conditions of use in order to access or have the right to access certain Third-Party Content.

3. RESTRICTIONS

You acknowledge and agree that you will not: (a) reproduce the Software, except as expressly permitted under Section 1; (b) modify, adapt, translate or create any derivative works of the Software; (c) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner; (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software; (e) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under Section 13); (f) 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; or (g) 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 the jurisdictions in which you are using the Software, including without limitation libel, defamation, obscenity, and privacy-related torts.

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

4. UPDATES; NON-PERSONALLY IDENTIFIABLE INFORMATION

You acknowledge that WDT has no obligation to provide you with any support for Updates (as defined below) to the Software. WDT may, however, from time to time, issue updated versions of the Software and the Software may automatically connect to WDT or third-party servers via the Internet to check for available updates to the Software, such as bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions (collectively, “Updates”) and may either (a) automatically electronically update the version of the Software that you are using on your personal device or (b) give you the option of manually downloading such Updates. By installing the Software and not disabling any automated check for Updates, if applicable, you hereby agree and consent to automatically request and receive Updates from WDT or third-party servers, and that the terms and conditions of this Agreement shall apply to all such Updates.

The Software may contain automatic communications features which relay certain non- personally identifiable information to WDT and its third-party data analytics providers in connection with the operation of the Software. This information may include your Software settings, versions of the Software you are using, and other items as identified in the WDT Privacy Policy (available at the website address below). WDT and its data analytics providers may use this information for research purposes including statistical analysis of aggregate customer behavior. You further acknowledge that WDT is not responsible for, nor makes any representations or warranties with respect to, any information (including personally identifiable information) you may share with a Service Provider or Third-Party Content owner. Safekeeping of the information you provide to the Service Provider or Third-Party Content owner is the responsibility of such Service Provider or Third-Party Content owner.

For more information on the use of collected information, please read the WDT Privacy Policy at http://www.wd.com/en/company/corporateinfo/privacy.aspx. You agree to the terms of the WDT Privacy Policy, which are expressly incorporated herein by reference.

5. REGISTRATION INFORMATION

As part of any Software or WDT Device registration process, WDT may request registration-related information, including your name and e-mail address. By providing this information, you consent to its collection and use by WDT to provide non-promotional communications regarding any WDT Device purchased with the Software, including notices of Update availability, product recalls, or safety concerns. You will also have the opportunity to opt-in to receive promotional e-mails and materials from WDT and its business partners. By choosing the opt-in option, you give your consent to receive such promotional materials from WDT and its business partners until you exercise your option to unsubscribe from such communications. WDT’s use of personally identifiable information shall be governed by the WDT Privacy Policy.

6. 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 AND NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OR LACK OF VIRUSES. WDT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE. FOR PURPOSES OF CLARITY, WDT DOES NOT MAKE ANY REPRESENTATIONS ABOUT AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY CONTENT OR THE ACTIONS OR OMISSIONS OF A SERVICE PROVIDER OR THIRD-PARTY CONTENT OWNER. 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 THE 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 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 WDT DEVICES.

7. LIMITATION ON LIABILITY

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

WDT IS NOT RESPONSIBLE OR LIABLE FOR ANY INFECTIONS OR CONTAMINATION OF YOUR SYSTEM, DAMAGE TO YOUR SYSTEM, OR DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE. THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS OR AIR TRAFFIC CONTROL MACHINES OR ANY OTHER MACHINES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

8. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS

8.1 Disputes. The terms of this Section 8 shall apply to all Disputes between you and WDT. For the purposes of this Section 8 and subject to the exception provided herein, “Dispute” shall mean any dispute, claim, or action between you and WDT arising under or relating to the Software, WDT Devices, this Agreement, or other transaction involving you and WDT, whether in 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 CONCERNING THE ENFORCEMENT OR VALIDITY OF YOUR, WDT’S, OR EITHER PARTY’S LICENSORS’ INTELLECTUAL PROPERTY RIGHTS, INCLUDING CLAIMS OF (A) TRADE SECRET MISAPPROPRIATION, (B) PATENT INFRINGEMENT, (C) COPYRIGHT INFRINGEMENT AND MISUSE, AND (D) TRADEMARK INFRINGEMENT AND DILUTION.

8.2 Binding Arbitration. You and WDT further agree: (a) to arbitrate all Disputes between the parties pursuant to the provisions herein; (b) this Agreement memorializes a transaction in interstate commerce; (c) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section 8; and (d) this Section 8 shall survive termination of this Agreement. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is pending only in that court. 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. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.

8.3 Dispute Notice. 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”). The Dispute Notice to WDT must be addressed to: Western Digital Technologies, Inc., ATTN: Legal Department, 3355 Michelson Drive, Suite 100, Irvine, CA 92612, U.S.A. (the “WDT Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If WDT and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or WDT may commence an arbitration proceeding pursuant to this Section 8. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.

8.4 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, CLASS ARBITRATIONS, OR PRIVATE ATTORNEY GENERAL ACTIONS.  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.

8.5 Arbitration Procedure. 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 http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. If there is a conflict between the JAMS Rules and the rules set forth in this Agreement, the rules set forth in this Agreement shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws. 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. With the exception of issues relating to the enforceability of the arbitration provision, all issues related to this Agreement, including the Agreement’s scope and the arbitrability of a Dispute, are for the arbitrator to decide. 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 Orange County, California, at your option.

(a) Initiation of Arbitration Proceeding. If either you or WDT decide to arbitrate a Dispute, we agree to the following procedure:

(i) Write a Demand for Arbitration. The demand must include 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 http://www.jamsadr.com (“Demand for Arbitration”).

(ii) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:

JAMS 
500 North State College Blvd., Suite 600 
Orange, CA 92868, U.S.A.  

(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.

(b) 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.

(c) Arbitration Fees. WDT shall pay, or (if applicable) reimburse you for, all JAMS filing, administration, and arbitrator fees for any arbitration commenced (by you or WDT) pursuant to provisions of this Agreement.

(d) Award in Your Favor. For Disputes in which you or we seek $75,000 or less in damages exclusive of attorney’s fees and costs, if the arbitrator’s decision results in an award to you in an amount greater than WDT’s last written offer, if any, to settle the Dispute, WDT will: (i) pay you $1,000 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 8.5(d).

(e) 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 8.5(d) above does not limit your rights to attorney’s fees and expenses under applicable law; notwithstanding the foregoing, the arbitrator may not award duplicative awards of attorney’s fees and expenses.

(f) 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 assent to this Agreement (including the purchase, download, installation of the Software or other applicable use of WDT Devices, products and services) 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 8. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including the requirement to provide notice prior to arbitration.

8.6 Amendments to Section 8. Notwithstanding any provision herein to the contrary, you and WDT agree that if WDT makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to WDT’s address) in this Agreement, you may reject any such amendment by sending a written letter to WDT within thirty (30) days of the change to the WDT Notice Address provided above. By rejecting any future amendment, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section 8.

8.7 Severability. If any provision in this Section 8 is found to be unenforceable, that provision shall be severed with the remainder 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 8.4; if Section 8.4 is found to be unenforceable, the entire Section 8 (but only Section 8) shall be null and void.

9. U.S. GOVERNMENT RESTRICTED RIGHTS

The Software is provided with restricted rights. Use, duplication, or disclosure by the U.S. government is subject to restrictions as set forth in subparagraph (b)(3)(i) of The Rights in Technical Data and Computer Software clause of DFARS 252.227- 7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. The manufacturer is Western Digital Technologies, Inc., 3355 Michelson Drive, Suite 100, Irvine, CA 92612.

10. EXPORT RESTRICTIONS

WDT makes no representation that the Software is appropriate for use in your country of use. You acknowledge that no part of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) any countries subject to U.S. trade embargo (currently Iran, Cuba, Syria, North Korea, and Sudan), or anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using the Software, you are agreeing to the foregoing, and are representing and warranting that you are not located in or under the control of a national or resident of any such country or on any such list. You further acknowledge and understand that certain functionality of the Software, such as encryption or authentication, may be subject to import restrictions in the event you transport the Software from the country of delivery and you are responsible for complying with all applicable restrictions. 

11. INDEMNITY

You hereby agree to indemnify, defend and hold WDT and its Licensors harmless from and against any and all liabilities, damages, claims, fines and expenses (including reasonable attorney’s fees and costs) arising out of any breach of this Agreement by you.

12. TERMINATION

Without prejudice to any other WDT rights, this Agreement shall terminate automatically without notice if you fail 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. In addition to any other remedy available to WDT, subject to the provisions of Section 8, you agree that WDT may seek immediate injunctive relief in the event of a breach of this Agreement by you.

13. TRANSFER

You may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or the Software. Notwithstanding the foregoing, you may permanently transfer all your rights under this Agreement to a buyer of the WDT Device, if any, with which the Software is connected, provided (a) such buyer agrees to assume all of your obligations under this Agreement, and (b) you transfer all copies of the Software to such buyer and cease all use of the Software.

14. OPEN SOURCE SOFTWARE

The Software licensed hereunder may include “Open Source” software (computer software that is distributed under a licensing arrangement, which provides that the computer code can be shared, viewed, and modified by the public).  The restrictions of Section 3 of this Agreement only apply to any such Open Source software when and to the extent that they do not conflict with any terms of the Open Source software’s respective license(s).

15. SUPPORT

For questions regarding the Software, please visit WDT’s support forum at http://support.wdc.com or submit an email to WDT’s customer support using the web form at http://wdc.custhelp.com/app/ask/.

16. MISCELLANEOUS

This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. In the event of a Dispute in which the provisions in Section 8 are inapplicable, severed from the remainder of the Agreement by a court of competent jurisdiction, or you opt-out pursuant to the provisions of Section 8, you and WDT both consent to the exclusive jurisdiction of the state and federal courts sitting in Orange County, California. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to Section 8.7 herein, if any provision of this Agreement is held unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. The provisions of this Agreement that require or contemplate performance after the termination of this Agreement shall be enforceable notwithstanding such termination. Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay), or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. For any Disputes arising under this Agreement that are excluded from the scope of Section 8 herein, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.

4078-705022-A07 September 2013