Last updated December 13, 2016
Welcome to SanDisk Cloud (“SanDisk Cloud”).
BY CLICKING “AGREE” AND USING SANDISK CLOUD, YOU AGREE THAT THESE TERMS OF SERVICE (“TERMS”) ARE AN AGREEMENT BETWEEN YOU AND WESTERN DIGITAL, AND ALL OBLIGATIONS UNDER THESE TERMS (INCLUDING WITHOUT LIMITATION PAYMENT, TERMINATION, AND INTELLECTUAL PROPERTY MATTERS) ARE BINDING ON YOU. SECTION 22 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 YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING, AND WAIVES YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS or CLASS ARBITRATIONS FOR CERTAIN DISPUTES.
You should also read the SanDisk Privacy Statement, currently available at https://www.sandisk.com/about/legal/privacy to understand how we deal with personal information we collect from you and others.
1. Legal Agreement & Requirements for Use of the Services
By using the Services, you agree to be bound by these Terms and you represent that you have the authority to enter into these Terms. If you do not agree to these Terms, you should not use SanDisk Cloud or buy a subscription.
The Services are only available to individuals aged 13 years or older. We do not knowingly collect, use or disclose personal information from children under 13 without verifiable parental consent.
To use the Services, you cannot be a person barred from receiving the Services under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the Services. By accepting these Terms, you represent that you understand and agree to the foregoing.
Use of the Services may require Internet access and certain software, require periodic updates and be affected by the performance of these factors. The latest version of required software may be required for certain features. You agree that meeting these requirements is your responsibility.
You agree to use the Services only for purposes permitted by these Terms and to the extent permitted by applicable law or regulation. If your use of the Services or other activities impact Western Digital’s ability to provide the Services or other systems, Western Digital shall be entitled to take all reasonable steps to protect the Services and Western Digital’s systems, which may include suspension of your access to the Services. Repeated violations of the limitations may result in termination of your Account.
Account: You must set up an Account and make payment directly to Western Digital (or its designated payment processor) in order to use the Services.
Paid Subscription: An Account for a subscription for some time period (e.g., monthly or annual) subject to corresponding subscription payments to Western Digital.
Payment Method: The credit card, PayPal account or other method you use to pay for an Account and Paid Subscription.
Representatives: Western Digital’s officers, directors, employees, agents, advisors, contractors, affiliates, subsidiaries, suppliers, partners, licensors and other representatives.
Services: All services, software and information provided to you by Western Digital, including SanDisk Cloud and all Western Digital online services and the Western Digital website, as well as mobile and client apps used to provide the SanDisk Cloud services.
Terms: These Terms of Service.
User Files: The digital files that you and others may upload, download, store, or send using the Services.
We/Our/Us/Western Digital: Refers solely to Western Digital Technologies, Inc. and its affiliates
You/Your: Refers to you, or the company or entity you represent.
3. Changes to these Terms
We may modify these Terms at any time, at our sole discretion. If we do, we will post the modified Terms on our website or notify you through other communications. It is important that you check our Terms from time to time because if you continue to use the Services after we have posted modified Terms on our website, you are indicating to us that you agree to be bound by the modified Terms. If you do not agree to the modified Terms, then you should not use the Services anymore.
4. Changes to the Services
SanDisk Cloud is always evolving so some or all of the Services may change over time. We may also change which features, benefits or restrictions apply to different Account types. We reserve the right to make these changes at any time and without notice, at our sole discretion. For example, we may establish or change for various types of Accounts:
Also, if you make changes to your Account yourself, it may affect the Services provided to you.
If we make any changes that reduce the size, storage space or number of User Files you are entitled to use or store, we will provide notice to you. After we give you notice, if you still have not deleted excess User Files, then we may delete them in our sole discretion.
We may suspend or terminate your Account and/or Paid Subscription if your usage does not comply with the features, benefits and restrictions that apply to your Account at that time.
Whenever you provide us with information about yourself, you agree to provide accurate, current and complete information. You also agree to keep your information up to date. We reserve the right to suspend or terminate your Account if it is not. You agree that we may communicate with you, including sending notices, using the email address you provided to create your Account.
We will have no liability for anything that may happen, or may not happen, because the information we have about you is inaccurate, such as our having the wrong email address for you. You authorize us, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your information, which may include providing your information to those third parties.
6. Your Responsibilities: Backup your User Files and Data
Because we provide the Services “as is” and make no warranty for the Services (see below in these Terms under the section called “Disclaimer of Warranties”), you should save and maintain a backup copy of any User File. Also, features of the Services that synchronize data between our servers and your computer or other devices necessarily may result in the deletion or replacement of your User Files. You are responsible for maintaining and protecting your User Files including all of your data and information that is uploaded, downloaded, stored, or otherwise processed by the Services. You will be responsible for all costs and expenses that you or others may incur with respect to backing up, restoring and recreating any User Files, data and information that is lost or corrupted as a result of your use of the Services.
We are not required to backup or store any current or superseded versions of your User Files, although we may choose to do so.
As part of the registration process, you will identify a user name and password for your Account. You are responsible for maintaining the confidentiality of your user name, password, and Account and for all activities that occur under your login or Account.
7. Payment Terms
These Payment Terms apply to purchases you make with respect to SanDisk Cloud.
By purchasing a Paid Subscription, you agree to pay all charges in effect at that time for the Services you buy, along with all applicable taxes and other fees. You authorize Western Digital to charge your Payment Method for your initial purchase, as well as any future purchases and automatic renewals of any Paid Subscription.
If any fee is not paid in a timely manner and/or we are unable to charge your Payment Method (for example, because your credit card has expired), you are still responsible for paying us and we reserve the right to revoke access to your Account and files without liability to you. If you do not bring your Paid Subscription balance current within five (5) days after we provide you with notification that your Account is in arrears, we reserve the right in our sole discretion to delete some or all User Files without liability to you. Except as described under "Termination" below, all fees are nonrefundable. All amounts are to be paid in US Dollars unless another currency was specified when you made your purchase.
Automatic renewal and payment of subscriptions
Your Paid Subscriptions is for an initial one year period of time.
The fees for your Paid Subscription will be billed from the date you create an Account for a Paid Subscription and on each monthly renewal period thereafter unless and until you cancel your Account and your Paid Subscription.
All fees and charges are nonrefundable and there are no refunds or credits for partially used periods.
At the end of the initial one year period, your Paid Subscription will be automatically renewed on a monthly basis unless you cancel.
If you do not cancel before the end of your current subscription period, your Paid Subscription will be automatically renewed, you will be responsible for paying for the next subscription period, and you authorize Western Digital to charge your Payment Method at the current, full-price rate for your specific type of Paid Subscription.
Cancelling Paid Subscriptions
You may cancel your Paid Subscription at any time either on the SanDisk Cloud website or by contacting our customer service at billing-help@WesternDigital.com. If you cancel before the end of your current monthly or annual subscription period, your subscription will not be renewed. You will not be entitled to a refund of any amount for the remaining time of your current Paid Subscription.
If the SanDisk Cloud Services are discontinued and you have already paid for such Services, we will give you a proportional refund of that amount for the remaining time in your current subscription period.
We will automatically bill your credit card each month on approximately the calendar day corresponding to the commencement of your Paid Subscription. In the event your Paid Subscription began on a day not contained in a given month or year, we will bill your credit card on the last day of such month or year. For example, if your Paid Subscription began on January 31st, February 28th is the next time your credit card would be billed.
You must cancel your Paid Subscription before it renews in order to avoid billing of the next subscription period’s fees to your credit card.
You acknowledge that the amount billed during each subscription period may vary for reasons that include without limitation differing amounts due to our programs and/or services, differing amounts due to changes in your Account, or changes in the amount of applicable sales tax, and you authorize us to charge your credit card for such varying amounts. We may also periodically authorize your credit card in anticipation of account or related charges.
If you want to use a different credit card or if there is a change in your credit card validity or expiration date, you may edit your information by accessing your “Account Billing” page. If your credit card reaches its expiration date, your continued use constitutes your authorization for us to continue billing that credit card and you remain responsible for any uncollected amounts.
It is your responsibility to keep your contact information and payment information current and updated.
Change in authorized amount
The fees applicable to your Account may change in the future. If the amount to be charged to your Account changes (other than due to the imposition or change in the amount of state sales taxes, VAT, or similar taxes and fees), we will provide you with notice of the change and the new amount to be charged together with the date of the charge at least ten (10) days before the scheduled date of the transaction.
8. Intellectual property rights: User Files and rights you grant to us
We do not claim any ownership rights in your User Files. To the extent necessary for us to provide the Services, you hereby grant us and our third-party service providers a non-exclusive, worldwide, royalty-free, transferable, assignable license, with the right to grant sublicenses, to use, copy, modify, store, publicly display, publicly perform, transmit and distribute your User Files solely in connection with operating and providing the Services.
You represent and warrant that you own or have the necessary rights and permissions to send, upload, or store your User Files using the Services and that your User Files and your use of the Services will not infringe, misappropriate or violate any third party's patent, copyright, trademark, trade secret, moral rights, other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
If you have access to User Files of others, you must respect their intellectual property rights and only use those User Files according to the permissions granted to you by the owner of those User Files. You must not modify, rent, lease, loan, sell, distribute copies of or create derivative works based upon those files in any way that would violate others’ rights.
Some of the features of the Services are designed to upload, download and synchronize files between your computer, your other devices (like your phone or tablet) and our servers. Depending on the features you use, this can happen automatically. By using the Services, you give us permission to access your computer and other devices for the purpose of providing the Services to you.
You authorize Western Digital and its Representatives to share with each other any data, including personally identifiable information, for the sole purpose of the creation and servicing of your Account. Please review our Privacy Statement at https://www.sandisk.com/about/legal/privacy, which is incorporated by reference into these Terms, for more information. You are responsible for safeguarding your password. You agree not to disclose your password to anyone else. You have sole responsibility for any actions taken under your password, whether or not you authorized those actions. You will immediately notify Western Digital of any unauthorized use of your password.
Our Privacy Statement provides our practices and procedures for collecting, using, and disclosing your information. Our Privacy Statement governs your access of the Service, regardless of how you access it, and by using our Services you consent to the collection, transfer, processing, storage, disclosure and other uses described in the Privacy Statement.
10. Intellectual Property Rights: SanDisk Cloud Services
Western Digital and each of its licensors own all right, title and interest in and to the Services. Copyright, trademark and other laws of the United States and other countries protect the Services. You will not remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services. Except as expressly permitted in these Terms, you may not reproduce, modify, or prepare derivative works based upon the Services, or distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Services. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Western Digital or its licensors, except for the licenses and rights expressly granted in these Terms.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). Western Digital may use any Feedback you submit for any purpose without compensation to you.
11. Intellectual Property Rights: Copyright Policy
Western Digital respects copyright law and expects its users to do the same. Our policy is, in appropriate circumstances, to terminate Accounts of users who repeatedly infringe the rights of copyright holders. Western Digital reserves the right, in its sole discretion, at any time and without prior notice, to remove or disable access to any User Files that Western Digital believes to be in violation of these Terms or otherwise harmful.
If you believe that your work has been copied in a way that constitutes copyright infringement, please find information about submitting the appropriate requests in our Copyright Policy, available at https://www.wdc.com/about-wd/legal/copyright.html.
12. Intellectual Property Rights: Trademarks
Trademarks, service marks, product names, and logos appearing on the Services are the property of their respective owners. You may not use or display any trademark, service mark, product name, trade name, or logo without the owner's prior written consent.
13. Prohibited Actions
As a condition to your use of the Services, you agree not to:
Western Digital shall have the right to investigate and prosecute violations of any of the above, including without limitation, possible infringement of any intellectual property rights and possible security breaches to the fullest extent of the law. Western Digital may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that, although Western Digital has no obligation to monitor your access to or use of the Services, it has the right to do so for the purposes of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law, or the order or other requirement of a court, administrative agency, or other governmental body.
Western Digital reserves the right at all times to disclose, in its sole discretion, any User Files as necessary to (a) satisfy any law, regulation, or governmental request, or (b) reduce or prevent what Western Digital considers to be, in its sole discretion, a serious or imminent threat to your health or safety, or the health or safety of another.
In appropriate circumstances, Western Digital may, in its sole discretion, terminate the Accounts and/or delete the User Files of users who are, or are believed to be or are charged with, infringing or violating the intellectual property rights of third parties, any applicable law or regulation, or otherwise in violation of the “things you may not do” listed above.
14. Termination of Services: By You
For cancelling Paid Subscriptions, see above under the Section called “Payment Terms”.
15. Termination of Services
Western Digital reserves the right to discontinue the SanDisk Cloud Services at any time and without prior notice to you. As noted above under Payment Terms, if Western Digital discontinues the SanDisk Cloud Services that you have already paid for, we will give you a proportional refund of that amount for the remaining time in your current subscription period.
Western Digital may cancel or suspend your Paid Subscription if you have not paid for your Account when payment is due, with or without notice to you.
If you violate any of these Terms, Western Digital will have the right to terminate or suspend your Account, immediately at Western Digital’s sole discretion and without prior notice to you, and Western Digital shall not be required to refund any fees already paid by you. You will also remain liable for all amounts you were obligated to pay, but have not yet paid.
If your Account is terminated for any reason, Western Digital may delete your User Files on its servers without further notice to you.
16. Software License
Any software that may be made available by or on behalf of Western Digital in connection with the Services, including Western Digital’s web, mobile and desktop applications (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of these Terms, Western Digital only grants you a limited, revocable, personal, non-exclusive, non-sublicensable, non-transferable and non-assignable, license to use the object code version of any Software solely in connection with the Services for your personal purposes (excluding without limitation any commercial or service bureau use). Any rights not expressly granted herein are reserved.
THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICES, EXCEPT FOR USE OF THE SERVICES AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING WITHOUT LIMITATION POTENTIAL MONETARY DAMAGES FOR COPYRIGHT INFRINGEMENT.
17. Open Source Code
The Software licensed under this Agreement 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). Any restrictions of this Agreement only apply to any applicable 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). To the extent necessary to comply with the terms of the included Open Source software’s respective licenses, the necessary portion of the source code for Software is available upon request for a period of at least three years after your receipt of the Software from us. We provide no support for the Open Source software.
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
19. Disclaimer of Warranties
WESTERN DIGITAL DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME WESTERN DIGITAL MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE IN ACCORDANCE WITH THE TERMS OF THESE TERMS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WESTERN DIGITAL AND ITS REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, WESTERN DIGITAL AND ITS REPRESENTATIVES MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
WESTERN DIGITAL DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WESTERN DIGITAL DISCLAIMS ANY LIABILITY RELATING THERETO.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE, COMPUTER, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Western Digital and its Representatives from and against any claim, dispute, demand, liability, damage, loss and expense, including without limitation reasonable legal and accounting fees, relating to or arising out of, or in any way connected with the User Files you submit, transmit, or otherwise make available through the Services; your access to or use of the Services; any violation by you of these Terms; any action taken by Western Digital as part of its investigation of a suspected violation of these Terms or as a result of its finding or decision that a violation of these Terms has occurred; or your violation of any rights of another. This means that you cannot sue Western Digital or its Representatives as a result of its or their decision to remove or refuse to process any information or the User Files, to warn you, to suspend or terminate your access to the Services, or to take any other action during the investigation of a suspected violation or as a result of Western Digital’s conclusion that a violation of these Terms has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by these Terms. This obligation shall survive the termination or expiration of these Terms and/or your use of the Services.
21. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WESTERN DIGITAL AND ITS REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF WESTERN DIGITAL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES.
THE LIMITATION OF LIABILITY PROVISIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN UNDER THESE TERMS AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS AND/OR YOUR USE OF THE SERVICES.
IN NO EVENT WILL EITHER WESTERN DIGITAL’S OR ITS REPRESENTATIVES’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF, OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNT YOU PAID FOR USE OF THE SERVICES IN THE THREE (3) MONTHS LEADING UP TO THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY, OR US TWENTY DOLLARS (US $20) IF YOU HAVE NOT PAID ANYTHING FOR THE SERVICES, AS THE CASE MAY BE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY BY SERVICE PROVIDERS. TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
22. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
22.1 Disputes. The terms of this Section 22 shall apply to all Disputes between you and Western Digital. For the purposes of this Section 22 and subject to the exceptions set forth in this Section 22.1, “Dispute” shall mean any dispute, claim, or action between you and Western Digital arising out of or relating to the Software, Western Digital Devices, this Agreement, or other transaction involving you and Western Digital, 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 WESTERN DIGITAL AGREE THAT “DISPUTE” AS DEFINED IN THIS AGREEMENT SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR WESTERN DIGITAL FOR (A) TRADE SECRET MISAPPROPRIATION, (B) PATENT INFRINGEMENT, (C) COPYRIGHT INFRINGEMENT OR MISUSE, AND (D) TRADEMARK INFRINGEMENT OR DILUTION. MOREOVER, NOTWITHSTANDING SECTION 22.6, YOU AGREE THAT A COURT, NOT THE ARBITRATOR, MAY DECIDE IF A CLAIM FALLS WITHIN ONE OF THESE FOUR EXCEPTIONS.
22.2 Binding Arbitration. You and Western Digital further agree: (a) to arbitrate all Disputes between the parties pursuant to the provisions in this Agreement; (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 22; and (d) this Section 22 shall survive termination of this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
22.3 Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
22.4 Dispute Notice. In the event of a Dispute, you or Western Digital 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 Western Digital must be addressed to: Western Digital Technologies, Inc., ATTN: Legal Department, 3355 Michelson Drive, Suite 100, Irvine, CA 92612, U.S.A. (the “Western Digital Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address Western Digital has on file or otherwise in our records for you. If Western Digital and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Western Digital may commence an arbitration proceeding pursuant to this Section 22. Following submission and receipt of the Dispute Notice, each of the parties agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
22.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND WESTERN DIGITAL AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
22.6 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. 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, enforceability or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (a) trade secret misappropriation, (b) patent infringement, (c) copyright infringement or misuse, or (d) trademark infringement or dilution, which are excluded from the definition of “Disputes” in Section 22.1. 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 binding on the parties and may be entered as a judgment in any court of competent jurisdiction. 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 Western Digital decides to arbitrate a Dispute, both parties 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:
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 Western Digital or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Western Digital is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
(c) Arbitration Fees. Western Digital shall pay, or (if applicable) reimburse you for, all JAMS filing, administration, and arbitrator fees for any arbitration commenced (by you or Western Digital) pursuant to provisions of this Agreement.
(d) Award in Your Favor. For Disputes in which you or Western Digital seeks $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 Western Digital’s last written offer, if any, to settle the Dispute, Western Digital 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 Western Digital in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by Western Digital pursuant to this Section 22.6(d).
(e) Attorney’s Fees. Western Digital 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 22.6(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 Western Digital Notice Address within thirty (30) days of your assent to this Agreement (including without limitation the purchase, download, installation of the Software or other applicable use of Western Digital 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 22. 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 litigation.
22.7 Amendments to Section 22. Notwithstanding any provision in this Agreement to the contrary, you and Western Digital agree that if Western Digital makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Western Digital’s address) in this Agreement, Western Digital will obtain your affirmative assent to the applicable amendment. If you do not affirmatively assent to the applicable amendment, you are agreeing that you will arbitrate any Dispute between the parties in accordance with the language of this Section 22.
22.8 Severability. If any provision in this Section 22 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 22.5; if Section 22.5 is found to be unenforceable, the entire Section 22 (but only Section 22) shall be null and void.
23. Country and Export Restrictions
Western Digital makes no representation or warranty that the Services are appropriate for use in your country of use. You acknowledge that no part of the Services 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, 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 Services, 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 Services, such as encryption or authentication, may be subject to import restrictions in the event you transport the Services from the country of delivery and you are responsible for complying with all applicable restrictions.
These Terms, the Services and software and the relationship between you and Western Digital shall be governed by the laws of the State of California, excluding its conflicts of law provisions. You and Western Digital agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from these Terms, the Services and software and the relationship between you and Western Digital. These Terms are the entire and exclusive understanding and agreement between Western Digital and you regarding the Services. The Terms replace all prior oral or written understandings and agreements between Western Digital and you regarding the Services. If for any reason a court finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer your rights or obligations under these Terms without Western Digital’s prior written consent. Western Digital may freely assign or transfer its rights and obligations under these Terms without restriction.
Any notices or other communications provided by Western Digital under these Terms, including those regarding modifications to these Terms, will be given either by posting on Western Digital’s website, or by email, or both.
Western Digital’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Western Digital. Except as expressly stated in these Terms, the exercise by either you or us of any remedies under these Terms will be without prejudice to other remedies either you or we may have.