END USER LICENSE AGREEMENT
IMPORTANT: READ CAREFULLY. This End User License Agreement For MioNet, a product of Western Digital Technologies, Inc. ("Agreement") is a legally binding agreement between you, either as an individual or a single entity, ("You"), and Western Digital Technologies, Inc. ("WD"), regarding 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”).
YOU MUST CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE.
BY ACCEPTING THIS AGREEMENT, YOU ARE AGREEING TO REGISTER AS AN AUTHORIZED USER OF THE SERVICE BY COMPLETING THE WD USER REGISTRATION PROCESS AT THE TIME OF INSTALLATION. AS PART OF THE USER REGISTRATION PROCESS YOU MAY BE REQUIRED TO AGREE TO ADDITIONAL AGREEMENTS RELATED TO THE USE OF THE SERVICE.
1. LICENSE GRANT, RESTRICTIONS AND UPGRADES
(a) License Grant. WD hereby grants you a personal, non-exclusive, non-assignable, non-transferable, revocable license to use the object code copy of the Software as follows:
You may use the Software for one WD Subscription Account (a "Subscription Account" is comprised of the shared resources accessible by a single login ID) on no more than five (5) computers owned, leased, or, with authorization, routinely and primarily used by you. If multiple copies of the Software have been licensed by you, for each licensed copy you may authorize a single end user to install and use the Software in connection with such end user’s WD Subscription Account on no more than five (5) computers owned, leased, or, with authorization, routinely and primarily used by that end user. Each end user must agree to be bound by the terms of this Agreement and you shall be responsible for ensuring that such end users comply with all of the terms and conditions of this Agreement.
(b) Restrictions. You may not:
(i) modify, disassemble, decompile or reverse engineer the Software or the Service, except to the extent that such restriction is expressly prohibited by law;
(ii) rent, lease, loan, resell, sublicense, grant a security interest in, distribute or otherwise transfer or assign the Software to any third party or use the Software to provide time sharing or similar services for any third party;
(iii) make any copy of the Software beyond the number of copies authorized to be installed according to the number of licenses you have acquired (plus a single backup copy);
(iv) circumvent or disable any technology features or measures in the Software or Service for protection of intellectual property rights; or
(v) delete the copyright and other proprietary rights notices on the Software.
Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws and will immediately terminate this Agreement.
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
(c) Automatic Communications. The Software may contain automatic communications features which relay information to WD in connection with the operation of the Service. The communications features are automatic and are enabled by default. By installing and/or using the Software, you expressly consent to the Software's automatic communications features.
(d) Software Upgrades. You acknowledge that WD may from time to time issue upgraded or modified versions of the Software and may, in its sole discretion, automatically, remotely, electronically modify or upgrade the version of the Software that you are using on your computer with or without notice. You hereby expressly consent to such automatic modification or upgrading, and agree that the terms and conditions of this Agreement (as amended from time to time by notices posted on WD's website) will apply to all such modified or upgraded versions.
(e) Open Source. With respect to any open source code that may be incorporated in the Software, such open source code is subject to the applicable open source license agreement, if any, authorizing the use of such code.
2. OWNERSHIP OF SOFTWARE
The Software is the copyrighted proprietary material of WD. Your license under this Agreement is not a sale of the Software or any copy thereof and WD retains all right, title, and interest in the Software (and any copy thereof). WD reserves all rights not expressly granted under this Agreement.
3. USE OF THE WD SOFTWARE
The Software enables end users to access and use the Service. You agree that your use of the Service will be governed by the terms and conditions of the Terms of Use Agreement and the Privacy Policy posted on the Mionet website at www.mionet.com (as amended from time to time by notices emailed from WD or posted on the Mionet website or WD website at www.wdc.com). You agree to be bound to any changes to the Terms of Use Agreement and the Privacy Policy if you continue to use the Software or Service after any such modification is posted; accordingly, we urge you to visit the WD website periodically to review the current and effective terms and conditions for use of the Software, WD website and Service. You also agree to comply with all other notices, terms and conditions posted on the Mionet and WD websites.
You agree that you will not use the Software 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”).
4. TERMINATION OF THIS LICENSE
Your license for the Software will automatically terminate without any further action by WD if you fail to comply with the all of the terms, conditions, and limitations described in this Agreement. On termination, you agree to destroy all copies of the Software in your possession.
WD may revoke this license at any time for any reason or no reason. If WD does revoke this license, WD may, without notice, use technological measures to revoke your access to the Software or Service. Without limiting the foregoing, you further agree to voluntarily delete the Software from your computer in the event that WD notifies you that your license has been revoked.
You agree that WD may, without prior notice, immediately terminate your MioNet account, your access to the Service, or any part thereof or cease or suspend the operations of the Service (collectively, “Terminations”). Cause for such Terminations may include, but are not limited to: (a) breaches or violations of this Agreement, the Terms of Use Agreement, the Privacy Policy, 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.
You may terminate this Agreement at any time by ceasing use of the Software and destroying all copies of the Software in your possession.
5. DISCLAIMER
THE SOFTWARE IS PROVIDED "AS-IS." WD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SOFTWARE OR ITS OPERATION, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES, LACK OF NEGLIGENCE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF NON- INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW OR LIMIT THE SCOPE OF EXCLUSIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU IN FULL.
6. LIMITATION ON DAMAGES
WD 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 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.
IN NO EVENT SHALL WD BE LIABLE TO ANY PARTY FOR COMPENSATORY, DIRECT, INDIRECT, SPECIAL, PUNITIVE OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF THE SOFTWARE, ON ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM, OR OTHERWISE, EVEN IF WD HAS BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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.
7. GOVERNMENT END USERS
If this Software is being acquired on behalf of the United States Government, the following applies. Use, duplication, or disclosure by the U.S. Government is subject to
restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
8. EXPORT CONTROL
This Software originates in the United States and is subject to United States export laws and regulations. This Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, this Software may be subject to the import and export laws of other countries. You represent that you are entitled to favorable treatment under United States export laws and that you will not transfer or use the Software in violation of United States or foreign laws. You agree to comply with all United States and foreign laws related to use of the Software.
9. GOVERNING LAW
THESE 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. Except for disputes as to the ownership of intellectual property rights in the Software or Service, any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration before a single arbitrator and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by California law and will be held 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. You also hereby 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.
10. MISCELLANEOUS
WD may amend this Agreement at any time by a notice on its website. You agree to be bound to any changes to this Agreement if you continue to use the Software or Service after any such modification is posted; accordingly, we urge you to visit the WD website periodically to review the then current and effective terms and conditions for use of the Software, as well as the WD website and Service. You may not revise or amend these terms and conditions without the prior written authorization of an officer of WD. Certain provisions of these terms and conditions may be superseded by expressly designated legal notices or terms located within the WD website. This Agreement will bind and inure to the benefit of each party's successors and assigns, provided that you may not assign this Agreement, in whole or in part, without WD's prior written consent. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. No delay or failure by WD to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
11. INDEMNITY
You agree to indemnify, defend and hold harmless, WD, any third parties who distribute or market the Software, and any third parties who integrate the Software into their products, and their affiliates and assigns, and their respective officers, directors, employees, agents, licensors and representatives from and against all claims, demands, actions, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, (collectively, “Claims”) resulting from any violation of this Agreement by you or your authorized end users or any claim of fraud or manipulation or Infringement or Circumvention. WD reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with WD in asserting any available defenses. WD shall have the right and is hereby authorized and empowered by you to settle any Claim, to appear by WD’s attorneys in any Claim, and/or to otherwise adjust, settle, compromise, litigate, contest, satisfy Claims and/or judgments and take any other action necessary or desirable for the disposition of such Claims.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
© 2008 Western Digital Technologies, Inc. All rights reserved. WD, the WD logo, Western Digital, and MioNet are registered trademarks of Western Digital Technologies, Inc. in the United States and certain other countries.