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THIS IS A LEGAL AGREEMENT BETWEEN YOU AND WESTERN DIGITAL TECHNOLOGIES, INC. AND ITS AFFILIATES (COLLECTIVELY, “WDT”) STATING THE TERMS THAT GOVERN YOUR PARTICIPATION IN THE WDT DEVELOPER PROGRAM. PLEASE READ THIS WESTERN DIGITAL DEVELOPER AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CLICKING TO ACCEPT THE TERMS IN THIS AGREEMENT. BY CLICKING TO ACCEPT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE WDT DEVELOPER PORTAL AND WDT CONTENT PROVIDED THEREIN.
Western Digital Developer Agreement
This Western Digital Developer Agreement is a legal contract between you (“you” or “Developer”) and WDT, governing your: participation in WDT’s developer program (the “WDT Developer Program”); use of the WDT developer portal (the “Portal”); use of any WDT Content (as defined below); and the development of any software or mobile application that is designed for use with a WDT product or service using WDT Content (the “Application”). For purposes of this Agreement, “WDT Content” means materials or services provided to you via the Portal, including without limitation software development kit (“SDK”) files, software source code, object code, simulators, tools, libraries, application programming interfaces, data, documentation, and Updates (as defined below). You represent and warrant that you have the full legal authority to bind yourself or the employer or entity you represent to this Agreement; otherwise you must not use the Portal or WDT Content. You must not use the Portal or WDT Content if you are a person barred from receiving these services and content under the laws of the United States or other countries, including without limitation the country in which you are resident or from which you use the Portal or WDT Content.
WDT may update or modify this Agreement from time to time. WDT will provide you with reasonable notice prior to any material changes, including without limitation by posting a notice on this website or by sending an email to the email address associated with your account. You can review the most current version of this Agreement at any time by visiting this website. Your continued use of the Portal or WDT Content will constitute your acceptance of any such changes.
1. LICENSE
Subject to the terms of this Agreement, WDT grants Developer a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Portal and WDT Content solely for the purpose of developing the Application. You must not use the Portal and WDT Content for any other purpose. For the avoidance of doubt, the Portal and WDT Content must only be used in accordance with the license grant set forth in this Section 1, and no other rights or licenses are granted to you.
2. RESERVATION OF RIGHTS
WDT and its licensors reserve and retain ownership of all right, title, and interest in and to the Portal and WDT Content, including without limitation any and all intellectual property rights. WDT and its licensors reserve all rights not expressly granted to you.
3. RESTRICTIONS
You agree to use the Portal and WDT Content only as expressly authorized under this Agreement, and only through the interfaces and functionality we designate. You agree to comply with all instructions and requirements in any integration documents, guidelines, or other documentation that WDT provides. WDT reserves the right to periodically audit your participation in the WDT Developer Program and use of the Portal and WDT Content to ensure compliance with this Agreement.
Except as expressly permitted under this Agreement, you agree that you will not and you will not enable others to:
· copy, distribute, encumber, sell, rent, lease, lend, sublicense, or otherwise transfer, publish, or disclose WDT Content to any third party;
· modify, translate, adapt, or create derivative works of WDT Content;
· decompile, reverse engineer, disassemble, decrypt, or attempt to derive the source code of WDT Content;
· use the Portal, WDT Content, or the Application to do anything illegal or violate any laws or regulations;
· use the Portal, WDT Content, or the Application to engage in any activity that interferes with or otherwise disrupts, damages, or accesses in an unauthorized manner, the servers, networks, or other properties or services of WDT or any other third party;
· use the Portal, WDT Content, or the Application to facilitate the transmission or storage of any material depicting or promoting sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age or that could otherwise give rise to any civil or criminal liability under applicable laws or regulations;
· use the Portal, WDT Content, or the Application to harass, threaten, incite, degrade, intimidate, deceive, or mislead anyone;
· use the Portal, WDT Content, or the Application 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 the Portal, WDT Content, or the Application is being used, including without limitation libel, defamation, obscenity, and privacy-related torts;
· attempt to circumvent or disable the Portal or WDT Content or any technology features or measures in the Portal or WDT Content, including without limitation any access controls or copyright protection mechanisms, by any means or in any manner;
· remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in or on WDT Content or used in connection with WDT Content; and
· use the Portal, WDT Content, or the Application to collect, or facilitate the collection of, any information or data of any kind for any unlawful purpose.
You agree to protect the privacy and legal rights of any end users of the Application. If end users provide you with user names, passwords, or other login or personal information, you must make the end users aware that the information will be available to the Application, and you must provide legally adequate privacy notice and protection for those end users. If the Application stores personal or sensitive information provided by end users, it must do so securely. If the end user provides the Application with WDT account information, the Application may only use that information to access the end user’s WDT account when, and for the limited purposes for which, the end user has given you permission to do so. The Application’s privacy policy shall, at a minimum, be consistent with the WDT Privacy Statement and all applicable laws and regulations.
4. SECURITY
Developer agrees to maintain a comprehensive security program based on reasonable organizational, physical, and technical security controls. Developer agrees to: secure express consent from WDT end users to access each WDT product, and strictly comply with the scope of the express consent granted thereby; properly configure its networks, operating system, and software of its web servers, routers, databases, and computer systems to Internet industry standards, as required to securely operate the Application, or as prescribed by WDT; and promptly report to WDT any known or suspected security breach involving the Application, the Portal, WDT Content, or end-user data, and provide reasonable assistance to WDT on any remediation efforts. In the event of a security breach, Developer agrees that it will not make any public statements, including without limitation press releases, blogs, and bulletin boards, without prior written and express permission from WDT in each instance.
5. OPEN SOURCE
Use, reproduction, and distribution of components of WDT Content licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement.
In addition, you agree to not use WDT Content with any software or other materials that are subject to licenses or restrictions (e.g., open source software licenses) that, when combined with WDT Content would require you or WDT to disclose, license, distribute, or otherwise make all or any part of WDT Content available to anyone.
6. THIRD-PARTY MATERIALS AND SERVICES
Some components of WDT Content may be owned and made available by third parties, and your use of a third-party’s materials or services will be governed by the third-party terms accompanying them. Please read those terms carefully before accepting them or using the third-party materials or services. You should directly contact the applicable third party with any questions about those terms.
In addition, you shall comply with the obligations (if any) under any third-party license, including without limitation open source licenses, for any other third-party software that you incorporate or use in connection with the development or distribution of the Application. You agree that you are solely responsible for, and that WDT has no responsibility to you or to any third party, for any Application or software that you create, transmit, or display through your use of WDT Content, and for the consequences of your actions, including without limitation any loss or damage which a third party or WDT may incur.
7. CONFIDENTIALITY
By participating in the WDT Developer Program and using the Portal and WDT Content, you will have access to certain WDT confidential and proprietary information, including without limitation methods, techniques, programs, devices, operations, and other information (collectively, “Confidential Information”). You acknowledge that WDT Content, including without limitation the commands, parameters, and structure of the SDKs and APIs are also WDT Confidential Information. You agree to not disclose any WDT Confidential Information to any third party at any time. You agree to take reasonable efforts to protect WDT Confidential Information from disclosure to third parties. Upon WDT’s request, at any time, you agree to promptly destroy all copies of WDT Confidential Information and to provide certification to WDT that you have destroyed all WDT Confidential Information.
8. INDEPENDENT DEVELOPMENT
Nothing in this Agreement impairs WDT’s right to independently develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software, or technologies that you may develop, produce, market, or distribute (including without limitation Applications).
9. APPLICATION SUBMISSION AND APPROVAL
Developer acknowledges and agrees that the Application must be approved by WDT before the Application can be distributed through WDT, Developer, or any third-party application distributor (e.g., Apple App Store, Google Play) (collectively, “App Platforms”). Instructions for submitting the Application are posted in the Portal. WDT may approve or reject the Application in its sole discretion for any reason. WDT may approve Applications from third-party developers that are substantially similar to the Application. WDT may withdraw its approval of the Application at any time and notify the App Platforms of its decision. In such event, WDT will use commercially reasonable efforts to provide you with prior notice of that decision.
You are solely responsible for securing approval of the Application from each of the App Platforms and for complying with all of their terms and conditions applicable to the development, submission, and distribution of the Application.
10. DEVELOPER CREDENTIALS
You agree you will maintain the confidentiality of any username, password, or other developer credentials related to your use of the Portal and WDT Content, and assume all responsibility for any loss, theft, or other destruction of any data resulting from any failure to comply with these obligations. You agree that you will be solely responsible for all Applications that are developed under your developer credentials.
11. UPDATES
You acknowledge that WDT has no obligation to provide you with any support for WDT Content, including without limitation bug fixes, patches, upgrades, additional or enhanced functions, plug-ins, and new versions to WDT Content (collectively, “Updates”). WDT may disable or stop, temporarily or permanently, providing WDT Content to you at is sole discretion, without prior notice to you. You agree that WDT may provide Updates to WDT Content that may change certain features of WDT Content without prior notice to you and that future versions of WDT Content may be incompatible with Applications developed on previous versions of WDT Content.
12. REGISTRATION AND INFORMATION COLLECTION
As part of the Developer registration process, WDT may request registration-related information, including without limitation your name, email address, username, or password. By providing this information, you consent to its collection and use by WDT to provide non-promotional communications regarding WDT Content or WDT products or services, including without limitation notices of Update availability, product recalls, or safety concerns. WDT’s use of information it collects from you in connection with the registration process, or that you otherwise provide to WDT in connection with WDT Content or WDT products or services, shall be governed by the WDT Privacy Statement, which is incorporated into this Agreement by reference and located and available on WDT’s website at https://www.wdc.com/about-wd/legal/privacy-statement.html. By accepting this Agreement, you also agree to the terms of the WDT Privacy Statement. If you do not agree to the terms of the WDT Privacy Statement, you may not use the Portal and WDT Content.
13. TRADEMARKS; PUBLICITY
Developer shall not use any trademarks, trade names, or service marks of WDT or refer to WDT in any promotional activity or material without first obtaining WDT’s written consent. If such permission is granted, Developer shall only use the permitted marks consistent with the relevant WDT trademark and brand guidelines as provided on WDT’s website or otherwise made available by WDT. Nothing in this Agreement gives you a right to use any of WDT’s trademarks, trade names, service marks, logos, domain names, or other distinctive brand features.
Developer hereby grants to WDT a non-exclusive, transferable, royalty-free, worldwide license to use Developer’s name, trademarks, logos, service marks, or icons, including without limitation those associated with the Application (“Developer Marks”) to advertise and promote WDT products and services and the Application. You acknowledge and agree that WDT may use the Developer Marks to market and promote WDT and its products and services without further consent or approval.
14. FEEDBACK
Developer may from time to time provide suggestions, comments, or other feedback to WDT with respect to the Portal, WDT Content, or WDT products or services (“Feedback”). Developer agrees that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as “confidential” or “proprietary” by Developer, will not create any confidentiality or other obligation for WDT. WDT may use any Feedback (including without limitation any intellectual property rights therein) for any purpose without any obligation to you. WDT’s right to use Feedback as stated in this paragraph will survive the expiration or termination of this Agreement.
15. REPRESENTATIONS AND WARRANTIES
You represent and warrant that: you are at least the age of majority and have the ability, capacity, and authority to enter into this Agreement; you have obtained any and all necessary rights, licenses, and approvals to perform your covenants and agreements set forth in this Agreement; in connection with your obligations under this Agreement, you will not act in any manner that conflicts or interferes with any existing commitment or obligation you may have; no agreement previously entered into by you will interfere with your performance of your obligations under this Agreement; and you will not violate any intellectual property rights or other rights of others, or violate any applicable laws.
16. DISCLAIMER OF WARRANTY
THE WDT SERVICES AND MATERIALS MADE AVAILABLE THROUGH THE WDT DEVELOPER PROGRAM, INCLUDING WITHOUT LIMITATION THE PORTAL AND WDT CONTENT, ARE 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, NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, OR LACK OF VIRUSES, AND ANY WARRANTIES REGARDING THE INTEGRITY, SECURITY, OR RELIABILITY OF ANY CODE, FILES, OR MATERIALS PROVIDED BY WDT. WDT DOES NOT WARRANT THAT ITS SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE, CONTINUOUS, OR UNINTERRUPTED. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE WDT SERVICES AND MATERIALS REMAINS WITH YOU. YOU UNDERSTAND AND AGREE THAT ANY SOFTWARE, MATERIAL, OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE WDT SERVICES OR MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OR ANY USER’S COMPUTER, DEVICE, SYSTEM, OR NETWORK, INCLUDING WITHOUT LIMITATION 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 PRODUCTS OR SERVICES.
WDT DOES NOT MAKE ANY REPRESENTATIONS ABOUT, AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY SOFTWARE, ANY THIRD-PARTY DEVICE, OR THE ACTIONS OR OMISSIONS OF ANY THIRD PARTY. WDT DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD-PARTY MATERIALS, PRODUCTS, OR SERVICES ACCESSED OR MADE AVAILABLE BY WDT AS A PART OF THE WDT DEVELOPER PROGRAM. YOUR USE OR ACCESS OF THIRD-PARTY MATERIALS, PRODUCTS, AND SERVICES IS AT YOUR OWN INITIATIVE AND RISK.
17. 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 EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, SALES, BUSINESS, GOODWILL, OR DATA, FOR BUSINESS INTERRUPTION, FOR COMPUTER SYSTEM FAILURE OR MALFUNCTION, OR FOR OTHER PECUNIARY LOSS RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES AND MATERIALS MADE AVAILABLE BY WDT THROUGH THE WDT DEVELOPER PROGRAM, ANY DEVICES, OR ANY APPLICATIONS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, 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 THIS AGREEMENT, THE WDT DEVELOPER PROGRAM, THE PORTAL, AND WDT CONTENT EXCEED $25 USD. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
WDT IS NOT RESPONSIBLE OR LIABLE FOR ANY INFECTIONS OR CONTAMINATIONS OF, OR DAMAGE TO, YOUR SYSTEM, OR DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF OR RELATED TO YOUR PARTICIPATION IN THE WDT DEVELOPER PROGRAM, INCLUDING WITHOUT LIMITATION YOUR USE OF THE PORTAL OR WDT CONTENT.
18. U.S. GOVERNMENT RESTRICTED RIGHTS
The Portal and WDT Content contain “commercial items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Accordingly, if you are using the Portal or WDT Content on behalf of the U.S. government, or any contractor therefor, the government shall receive only those rights with respect to the Portal and WDT Content as are granted to all other end users under license, in accordance with 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or 48 C.F.R. § 12.212, with respect to all other U.S. government licensees and their contractors.
19. EXPORT RESTRICTIONS
WDT makes no representation that the services and materials made available through the WDT Developer Program, including without limitation the Portal or WDT Content, is appropriate for use in your country of use. You acknowledge and agree that some or all of the WDT services and materials, including without limitation the materials contained thereon, may be subject to the U.S. Export Administration Laws and Regulations, the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) Economic Sanctions Regulations, as well as export laws of other countries, and that diversion of such portions of the service or materials contrary to U.S. law or the law of other applicable countries is prohibited. You agree that no part of the service or materials, nor any direct product thereof or materials thereon, will be used for any nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the U.S. government (or other relevant government) for such purposes. You acknowledge and agree that no part of the WDT services or materials, underlying information or technology, or materials thereon may be directly or indirectly downloaded or otherwise exported, re-exported, shipped, transferred, or acquired for/to any countries or regions subject to U.S. trade embargo (or their citizens, nationals, or residents), anyone on the OFAC list of Specially Designated Nationals, or anyone on the restricted or denied party list maintained by the U.S. government or Wassenaar member countries. By using the WDT services or materials, you agree to the foregoing, and represent and warrant that you are not on any such list and are not a citizen of, located in, customarily resident in, or under the control of a national or resident of any such country/region. You further acknowledge and understand that certain functionality of the WDT services or materials, such as encryption or authentication, as well as your own materials, files, data, or use may be subject to export or import restrictions and you agree to comply strictly with all export, re-export, and import laws and assume sole responsibility for obtaining licenses to export, re-export, or import as may be required.
20. INDEMNITY
To the maximum extent permitted by law, you agree to defend, indemnify, and hold harmless WDT and its respective directors, officers, employees, and agents and WDT’s licensors from and against any and all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, fines, and expenses (including without limitation reasonable attorney’s fees) arising out of or related to (a) your participation in the WDT Developer Program, including without limitation your use of the Portal or WDT Content; (b) any Application you develop using WDT Content that infringes any copyright, trademark, trade secret, trade dress, patent, or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy; and (c) any breach of your obligation under this Agreement, any applicable third‑party contract or terms of service, or any applicable law or regulation.
21. TERMINATION
Without prejudice to any other WDT rights, WDT may terminate this Agreement and any accounts associated with the Portal and WDT Content, at any time. You may terminate this Agreement at any time by ceasing your use of the Portal and WDT Content. Upon termination of this Agreement, all licenses granted in this Agreement shall immediately expire and you must cease use of the Portal and WDT Content and destroy all copies of WDT Content and WDT Confidential Information in your possession or control. At WDT’s request, you agree to provide certification of such destruction to WDT. The parties to this Agreement will not be liable to each other for any damages resulting solely from termination as permitted under this Agreement. Sections 3, 8, 10, and 13-22 inclusive of this Agreement, and any other terms of this Agreement that require or contemplate performance after the termination of this Agreement, shall survive and be enforceable notwithstanding termination of this Agreement.
22. GENERAL
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any and all prior or contemporaneous oral or written understandings. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. You and WDT both consent to the exclusive jurisdiction of the state and federal courts sitting in Santa Clara County, California, U.S.A. Notwithstanding this, you agree that WDT shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. WDT may sublicense its rights and obligations under this Agreement to third parties and may use third parties, such as subcontractors, to assist WDT in exercising its rights or performing its obligations under this Agreement. You may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or your rights or obligations under this Agreement. If any term of this Agreement is held unenforceable by a court of competent jurisdiction, such term 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 terms 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. Neither party shall be in default or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
Last modified: July 1, 2018