TERMS OF USE AGREEMENT
This document is a legally binding contract and in conjunction with any applicable End User License Agreement governs your use of the WD client application software known as "MioNet" (the "Software"), and related online or electronic documentation ("Documentation") (the Software and the Documentation collectively referred to herein as the "Software") and related remote access service (the "Service").
Read this document carefully!
If you do not accept any of these terms and conditions, you may not access or use the MioNet Resources.
SERVICES PROVIDED
The services offered by Western Digital Technologies, Inc. ("WD" or "we") includes the MioNet.com websites, using the MioNet service network, or using the servers operated for MioNet (collectively, the "MioNet Resources").
This Terms of Use Agreement ("Terms of Use") sets forth the legally binding terms for your use of the MioNet Resources. By using the MioNet Resources, you agree to be bound by the Terms of Use whether you are just visiting the site (a "Visitor") or you register to use the site or the software (a "Registered User"). "User" refers to both Visitors and Registered Users. You are only authorized to use the MioNet Resources if you agree to abide by all applicable laws and this Terms of Use. You agree that there shall be no third party beneficiaries to this agreement.
By accessing the MioNet.com websites and using the MioNet Resources, you are agreeing to be bound by the present Terms of Use and all other notices, terms and conditions, agreements and policies listed on this page and elsewhere on MioNet.com (including but not limited to our Privacy Policy located at the MioNet website). You also acknowledge that you are at least 18 years old, either entering into this Agreement for yourself or entering on behalf of your child or a child in your legal care who is at least 14 years old. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of the MioNet Resources.
We may change the Terms of Use at any time by posting new terms and conditions on the MioNet Resources or through email communication. Except by posting of or otherwise delivering such changes by Us, the Terms of Use may not be changed, except in a writing signed by an authorized representative of WD. Your continued use of the MioNet Resources, following any changes to the Terms of Use, constitutes your acceptance of the changes.
USE OF THE MIONET RESOURCES
Subject to the Terms of Use, the MioNet Privacy Policy, any applicable End User License Agreement(s), and terms and conditions of any separate licenses or other agreements you may be required to accept in order to use the MioNet Resources or other WD products and services, you are authorized to access and make use of the MioNet Resources as follows: (1) view and use the sections of the MioNet.com websites to which you have been given access by WD; (2) make one complete and unmodified copy of any page on this website to which you have been given access, provided you retain all copyright, trademark and other proprietary rights notices and that you use it solely for personal or internal business purposes and do not distribute or republish it; (3) obtain our products and register for our services (such as the MioNet service network), provided you pay all applicable charges ; and (4) use the MioNet Resources to which you have been given access to interact with WD and other users of our products and services in ways that do not violate the Acceptable Use Policy described below. Any other use of this website or its contents is prohibited.
WD RESERVES THE RIGHT TO MODIFY OR DISCONTINUE, TEMPORARILY OR PERMANENTLY, MIONET RESOURCES (OR ANY PART THEREOF) FOR ANY OR NO REASON, WITH OR WITHOUT NOTICE AT ANY TIME. YOU AGREE THAT WD SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF MIONET RESOURCES. WD RESERVES THE RIGHT TO MODIFY THE FEES CHARGED FOR THE USE OF THE MIONET RESOURCES AT ANY TIME, WITH OR WITHOUT NOTICE.
COPYRIGHT AND REPEAT INFRINGER POLICY
WD respects the rights of copyright owners to control the uses of their intellectual property, and requires our Users to do the same. You are responsible for complying with all copyright laws while using MioNet Resources.
You agree that you will not use the MioNet Resources to infringe the copyrights or other intellectual property rights of others in any way (an "Infringement"), including but not limited to, copying or distributing copyrighted works. You further agree that you will not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction (a "Circumvention").
You agree that any Infringement or Circumvention or attempt to do so constitutes a material breach of this Agreement and will cause irreparable harm to WD and entitle WD to receive equitable relief.
In appropriate circumstances, WD may terminate the account of any User who is using the MioNet Resources in violation of copyright law or who has repeatedly violated copyright law.
ACCEPTABLE USE POLICY
This Acceptable Use Policy governs your use of the MioNet Resources including MioNet.com websites, the MioNet network, the servers operated for MioNet, and any MioNet software you use.
1.
RIGHTS AND RESPONSIBILITIES
WD is not responsible for the content of any shared files or the actions of any User. The decision to share or to accept shared files or permit remote access to your computer is yours alone and you do so at your own risk.
By using the MioNet Resources, you are accepting any and all risks associated with sharing files and remote access to your computer and desktop including without limitation, interference, damaged files, changed configurations, malware, spyware, trackers, worms and viruses.
You are solely responsible for protecting your computer which may include installing a virus protection program and other security software and keeping it up to date. We encourage you not to share information that others could use to harm you. We encourage parents to be aware of and to exercise control over files shared by and activities of their children to keep them safe online. Parents may be held liable for the actions of their children.
You are solely responsible for the content that you make available via any of the MioNet Resources, and any material or information that you transmit to other Members, and for your interactions with other Users and their computers.
You are responsible for complying with all federal, state or other sovereign laws applicable to your use of the MioNet Resources. You may not use the MioNet Resources for any illegal purpose.
WD may block access to any content or User that in the sole judgment and discretion of WD violates this Acceptable Use Policy or which may be offensive, illegal and/or violate the rights, harm, and/or threaten the safety of any person.
WD assumes no responsibility for monitoring the MioNet Resources for inappropriate content or conduct. If at any time WD chooses, in its sole discretion, to monitor the MioNet Resources, WD assumes no responsibility or obligation to modify the content or conduct of the Users. WD does not endorse and has no control over the content available via the MioNet Resources. The content does not necessarily reflect the opinions or policies of WD and WD makes no warranties, express or implied, as to the content or to the accuracy and reliability of the content.
2.
PROHIBITED CONTENT AND CONDUCT
The following is a partial list of the kind of conduct that is illegal or prohibited while using the MioNet Resources.
a. Making available files that contain music, film, video, images, photographs, software or any other material protected by intellectual property laws, including but not limited to copyright and trade secret law, unless you own or control the rights or have received permission from the rights owner to share the content (i.e., unless you are the original author of the content, you must have the permission of the original author to share content);
b. Making available files that contain music, film, video, images, photographs, software or any other material that violates the rights of publicity or privacy of any third party;
c. Making available files that include offensive or illegal content, including without limitation, nudity of any sort including full or partial human nudity or nudity in simulated forms such as cartoons, fantasy art or manga, or files that incites, advocates, or expresses pornography, obscenity, vulgarity, profanity, hatred, bigotry, racism, or gratuitous violence;
d. Making available files that are intended to harm or exploit minors in any way;
e. Soliciting personal information for anyone under 18;
f. Downloading any file made available by another user that you know, or reasonably should know, cannot be legally copied, displayed, performed, or distributed in this manner;
g. Using the MioNet Resources for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including, without limitation, laws governing data protection and privacy, spamming, gambling, import or export controls, child pornography, obscene materials, bestiality, incest, illegal drugs, software piracy, and harassment;
h. Using the MioNet Resources for any tortious activity;
i. Making unsolicited offers, advertisements, proposals, or sending junk mail, to other users of the MioNet Resources;
j. Impersonating any person or entity, falsely claiming an affiliation with any person or entity, or accessing the MioNet accounts of others without permission;
k. Sharing MioNet-issued passwords with any third party;
l. Misrepresenting the source, identity or content of information transmitted via the MioNet Resources;
m. Harassing, abusing, defaming, threatening or defrauding Users of the MioNet Resources;
n. Removing, circumventing, disabling, damaging or otherwise interfering with: (a) security-related features of the MioNet Resources or (b) MioNet Resource features that enforce limitations on the uses of the MioNet Resources;
o. Intentionally interfering with or damaging the operation of the MioNet Resources or any User's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
p. Linking to adult websites;
q. Engaging in any kind of automated use of the MioNet Resources including using robots, spiders, and other information gathering programs;
r. Engaging in activities which create an undue burden on the MioNet Resources;
s. Reselling the use of MioNet Resources or your account without WD's authorization; and
t. Attempting to penetrate, modify or manipulate MioNet Resources or any of the hardware or software thereof, in order to invade the privacy of, obtain the identity of, or obtain any personal information about (including but not limited to IP addresses of) any WD account holder or user, or to modify, erase or damage any information contained on the computer of any user connected to the MioNet Resources.
3.
VIOLATIONS OF ACCEPTABLE USE
With respect to any violations of this policy, WD reserves the right to investigate and take appropriate legal action against anyone who, in WD's sole discretion, violates the Terms of Use including this Acceptable Use Policy. Such actions may include without limitation removing or blocking access to any offending files on the MioNet Resources and terminating the account of such violators:
WD does not assume any responsibility to take such action with respect to any violations of this policy. WD expressly disclaims liability for consequences arising from taking action for an Acceptable Use violation, failure to take such action, or for delay in taking action if it chooses to act. If you believe that there has been a violation of this Acceptable Use Policy, please contact WD customer support.
MIONET ACCOUNT INFORMATION
In order to use some of the MioNet Resources, you will have to create an account. You may never use another person's MioNet account without that person's permission. When creating your account, you are required to provide accurate and complete information; if we discover that you have failed to provide accurate information, we may terminate your account.
When you become a Registered User, you will be asked to choose a password. You must keep your password confidential. You agree not to disclose your password to any third party. You are solely responsible for any and all use of your account.
If you believe that there has been any unauthorized use of your account or a breach of security then you must notify WD customer support immediately. WD is not liable for any losses caused by any unauthorized use of your account.
The MioNet Resources are for the User's personal use only and may not be used in connection with any commercial activities, including but not limited to hyperlinking to commercial websites and collecting email address of members for the purpose of sending unsolicited email.
You may be held liable for the losses of WD or others due to unauthorized or improper use of your account.
PRIVACY POLICY
Your use of the MioNet Resources is subject to your acceptance of our Privacy Policy which is incorporated into the Terms of Use by this reference. Please read this policy carefully for disclosures relating to the collection and use of your personally identifiable information.
END USER LICENSE AGREEMENT
Your use of the MioNet Resources is subject to your acceptance of any applicable End User License Agreement(s). Please read all such agreements carefully regarding additional terms of the use for software used in connection with the MioNet Resources.
NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purposes, any portion of the MioNet Resources (including your account), use of the MioNet Resources, or access to the MioNet Resources.
SUBMISSIONS TO WD
By providing to WD any material, including but not limited to ideas, suggestions, feedback, information, text, movies, music, designs, pictures and graphics (the "Submitted Materials"), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable license in and to all rights in such Submitted Materials, including without limitation the copyright, publicity, patent and database rights in the Submitted Materials, and the right to exploit such rights in all manners, media, formats, forms, technologies, and platforms now known or hereafter devised. You also waive to the fullest extent allowed by law any so-called "authors rights" or similar rights which you may have now or in the future under any applicable laws, including without limitation any rights of attribution and/or royalties.
You represent and warrant that: (i) you own all of the Submitted Materials provided by you or otherwise have the right to grant the license described above, and (ii) the Submitted Materials does not violate the privacy rights, publicity rights, copyrights, contract rights, or any other rights of any person.
You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Submitted Materials provided by you.
You further agree that no Submitted Materials provided by you to WD contains any confidential information and that WD is under no obligation of confidentiality with regard to any such Submitted Materials.
FRAMING AND LINKING THE MIONET WEBSITE
Unless expressly authorized, you may not frame or otherwise display any portion of the MioNet.com websites or any of its contents on any other website or web page. You may not hyperlink to any password protected web pages on the MioNet.com websites. You may hyperlink to non-restricted web pages; however, WD reserves the right to review and/or terminate such hyperlinks and to prohibit such hyperlinks in the future in its sole discretion.
LINKS TO THIRD PARTY WEBSITES
As a convenience for its Users, WD may provide links on its website(s) to other Internet websites, resources, or information owned by third parties ("External Sites"). Because WD has no control over such External Sites you acknowledge and agree that WD is not responsible for the availability of such External Sites and does not endorse and is not liable for any content or actions or omissions of such External Sites. WD does not endorse any External Site and advises you to use caution when engaging in any transactions on the Internet.
TERMINATION
You agree that WD may, without prior notice, immediately terminate your MioNet account, your access to the MioNet Resources, or any part thereof or cease or suspend the operations of the MioNet Resources (collectively, "Terminations"). Cause for such Terminations may include, but are not limited to: (a) breaches or violations of these Terms of Use, MioNet's Privacy Policy, an applicable End User License Agreement or other relevant agreements or guidelines; (b) requests by law enforcement or other government agencies or judicial order, (c) a request by you; (d) your engagement in fraudulent or illegal activities, (e) unexpected technical or security issues, or (f) nonpayment of any fees owed by you in connection with the MioNet Resources. Further, you agree that all Terminations shall be made in WD's sole discretion and that WD shall not be liable to you or any third party for any damages or liabilities whatsoever that arises out of or in connection with any Termination.
INDEMNITY
You agree to indemnify and hold WD and its subsidiaries, affiliates, officers, agents, employees, partners, representatives and licensors harmless from any claim, suit, liability, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) files you transmit or otherwise make available through MioNet Resources; (b) your use of the MioNet Resources; (c) your violation or alleged violation of these Terms of Use, the MioNet Privacy Policy, any applicable End User License Agreement, or other applicable agreement or guidelines; (d) any Submitted Materials you have provided to WD, and/or (e) your violation or alleged violation of any rights of another or of any applicable laws.
NO WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE MIONET RESOURCES IS AT YOUR SOLE RISK. THE MIONET RESOURCES ARE PROVIDED BY WD "AS IS" AND "AS AVAILABLE". WD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT THE MIONET RESOURCES, AND WD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ALL KINDS REGARDING THE MIONET RESOURCES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF CONTENT, NON-INFRINGEMENT, OR THE AVAILABILITY OR QUALITY OF ANY PRODUCTS OR SERVICES AVAILABLE IN CONNECTION WITH OR VIA THE MIONET RESOURCES (EXCEPT AS IS EXPRESSLY SET FORTH IN ANY END USER LICENSE AGREEMENT OR OTHER SEPARATE AGREEMENT RELATED TO THE APPLICABLE PRODUCTS OR SERVICES).
WD MAKES NO WARRANTY THAT (i) THE MIONET RESOURCES WILL MEET YOUR REQUIREMENTS; (ii) THE MIONET RESOURCES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MIONET RESOURCES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE MIONET RESOURCES WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MIONET RESOURCES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WD OR THROUGH OR FROM THE MIONET RESOURCES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE.
LIMITATION ON DAMAGES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
IN NO EVENT SHALL WD BE LIABLE TO YOU OR ANY OTHER PARTY FOR DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE) ARISING DIRECTLY OR INDIRECTLY FROM (i) THE USE OR THE INABILITY TO USE THE MIONET RESOURCES; (ii) ANY PRODUCTS OR SERVICES DISTRIBUTED ON OR PROVIDED THROUGH THE MIONET RESOURCES (iii) THE PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE MIONET RESOURCES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MIONET RESOURCES; OR (vi) ANY OTHER MATTER RELATING TO THE MIONET RESOURCES, WHETHER AS A RESULT OF ERRORS, OMISSIONS, LOSS OF DATA, DEFECTS, VIRUSES, INTERRUPTIONS OR DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER CAUSE, EVEN IF WD HAS BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL YOU BE ENTITLED TO EQUITABLE OR INJUNCTIVE RELIEF OR TO RESTRAIN THE OPERATION OR DISTRIBUTION OF THE MIONET RESOURCES.
SOME JURISDICTIONS RESTRICT THE LIMITATION OF LIABILITY OR DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE LIMITATION OF DAMAGES SET FORTH ABOVE IS UNENFORCEABLE UNDER APPLICABLE LAW, WD'S AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
PROPRIETARY RIGHTS
All content and materials made available on the MioNet.com websites by WD (including but not limited to design, text, graphics, video, sounds, and software) are protected by applicable state, national and international law pertaining to copyrights, trademarks, patents, trade secrets and other proprietary rights. You agree not to violate any of WD's intellectual property rights, including without limitation to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, such content and materials.
You also agree that WD holds all rights, title and interest in and to all MioNet Resources including without limitation all intellectual property related thereto, and all other rights related to intangible property.
You acknowledge that no title or interest in such intellectual property is being transferred to you and you agree to make no claim of any interest in the MioNet Resources.
EXPORT
Software available in connection with the MioNet Resources is subject to United States export controls. No software may be downloaded from WD or otherwise exported or re-exported in violation of U.S. export laws. Downloading and using the software is at your sole risk.
UNITED STATES USE ONLY
The MioNet Resources are controlled by WD from its facilities in the United States of America. WD makes no representations that the MioNet Resources are legal or available for use from other locations. Those who access or use the MioNet Resources from outside the United States and its territories and possessions do so at their own risk and assume full responsible for compliance with local law.
GOVERNING LAW
The Terms of Use shall be governed by and construed in accordance with the laws of the State of California, without regard to or application of choice of law rules or principles. You hereby also consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County of the State of California.
Notwithstanding the foregoing, except for disputes as to the ownership of intellectual property rights in the MioNet Resources, any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration in front of a single arbitrator, and such arbitration shall be administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by California law and will be conducted in Lake Forest, California in English. The arbitrator shall have expertise in the field of remote file sharing and access. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. There shall be no class action arbitration pursuant to this agreement.
INTERSTATE NATURE OF MIONET RESOURCES
You acknowledge using MioNet Resources causes data to be transmitted over the Internet using communications protocols that may cause your data to be transmitted over many routes throughout the United States and/or abroad. Accordingly, you acknowledge that use of MioNet Resources results in interstate data transmissions subject to United States federal law.
MISCELLANEOUS
You may not revise or amend these Terms of Use without the prior written authorization of an officer of WD.
If any provision of these Terms of Use is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of these Terms of Use will not be affected.
No delay or failure by WD to exercise or enforce any of its rights under these Terms of Use will act as a waiver of such rights.
These Terms of Use governs your use of the MioNet Resources, superseding any prior agreements-other than End User License Agreements-between you and WD with respect to the MioNet Resources.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the MioNet Resources must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in these Terms of Use are for convenience only and have no legal or contractual effect.
These Terms of Use were last updated on: [12/24/08]