WESTERN DIGITAL DATA RECOVERY PLAN TERMS & CONDITIONS

Terms & Conditions
The information contained in this document describes the terms and conditions for the Western Digital Data Recovery Plan (the “Plan”). This information is intended to be Your guide in knowing what is covered and how coverage works under the Plan. If You ever need assistance regarding Your Plan, contact the Administrator at any time.

IF YOU RESIDE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE U.S., PLEASE READ THIS NOTICE REGARDING DISPUTE RESOLUTION: This document contains provisions that govern how claims You and We may have against each other are resolved (see Legal Disputes and Arbitration Agreement provision below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require You to submit claims You have against Us to binding arbitration and limits the time period within which You may bring a claim against Us, unless you opt-out in accordance with the Legal Disputes and Arbitration Agreement provision below. Unless You opt-out of arbitration: You will only be permitted to pursue claims against Us on an individual basis, not as part of any class or representative action or proceeding and You will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Definitions: Within this document, the words “We”, “Us”, “Our”, or “Administrator” shall mean the party or parties obligated to provide service under this Plan, including Western Digital Technologies, Inc., 5601 Great Oaks Pkwy, San Jose, CA 95119. “You” or “Your” means the original purchaser of this Plan who is to receive the coverage provided hereunder. “Product” means the product which stores the data that is covered by this Plan. Coverage is limited to a single drive or storage device per Plan as designated through the registration of the Product serial number at the time of Plan registration. “Term” means the period in which the provisions of this Plan are valid. “Claim” means a demand for service in accordance with this Plan requested by You to Us. “Plan Purchase Receipt” refers to the receipt document (paper or email) provided to You as proof of Your Plan purchase that confirms the Plan purchase date, services to be provided and Term.

Term: Coverage under this Plan begins on the order shipment date and continues for the remainder of the coverage term/period as referenced on Your Plan Purchase Receipt.

Services Provided: We agree to provide the services outlined herein for Your Product in the event Your Product experiences a covered occurrence during the term of coverage of this Plan, as long as the Product (a) meets the definition of a “Product” as shown in the Definitions section above; and (b) is NOT covered under any insurance, warranty, guarantee and/or service agreement providing the same benefits as outlined herein; and (c) is NOT intended for industrial or rental use (meaning, a Product that is intended for use either in industrial applications or operations or for rental or loaner purposes) or products used by a Covered Entity that contains Protected Health Information as those terms are defined by HIPAA. To the extent possible, You should back up accessible data on Your Product before submitting it for service under this Plan. This Plan does not cover repairs or replacement of the Product for any causes or provide coverage for any losses set forth in the section titled “What is Not Covered.”

The Plan provides protection for Your Product for lost data. To initiate a Claim, submit a claim via the submission form provided by Ontrack: https://resources.ontrack.com/western-digital-job-submission or contact the Administrator at 1-888-426-5214. IMPORTANT: This benefit is not a guarantee that lost data will be recovered; however, all reasonable efforts will be used to recover Your data.

You will be asked to ship Your Product to the Administrator’s designated laboratory facility to attempt the retrieval of Your data (“In-Lab Data Recovery”). You must use the original Product packaging or packaging that provides an equal or greater level of protection for Your Product to prevent any further damage to the Product during shipping. Until Your Product is received at the Administrator’s laboratory facility, You are responsible for any risk of loss of the Product. The costs of shipping costs associated with shipping Your Product to the Administrator’s laboratory facility, as well as the cost of shipping the data storage media containing data recovered from Your original Product back to You shall be paid by Us. You are eligible for a maximum of one (1) In-Lab Data Recovery attempt under this Plan. Upon receipt of Your original Product at the Administrator’s laboratory facility, Administrator will take the following action(s):

  • Administrator will attempt to recover Your lost data and files.
  • Return of Recovered Data: Your recovered data may be made available for download via a secure link (if less than 2GB) or loaded on a media storage device and returned to You. If the recovered data is loaded on a media storage device and returned to You, you have two options:
    • Media Storage Device provided by the Administrator: The Administrator is responsible for procuring the appropriate media storage device at no cost to You. The Administrator, at its sole discretion, will provide the recovered data back to You on the media device of its choice.
    • Media Storage Device provided by You: In the event You wish to provide the Administrator with a media storage device of Your preference, You will be responsible for procuring such storage device and shipping it to the Administrator; including any incidental costs associated with the shipment. Your preferred media storage device must be approved by the Administrator, to ensure type and capacity is appropriate for the size of data to be recovered.
  • Unrecoverable Data:  If Your data is not recoverable, You will be entitled to reimbursement of the purchase price of this Plan; which may be provided to you in the form of a retail gift card, at Our sole discretion (the “Unrecoverable Data Compensation”). We shall then be discharged from any further obligations under this Plan. The Unrecoverable Data Compensation shall NOT apply in instances where partial recovery of Your lost data was successful; there must be a complete loss and non-recovery of data from Your Product to be eligible.
  • You may need to reinstall Your software to Your Product or Your replacement media device. Installation or re-installation of any and all software shall be Your responsibility and is not covered under this Plan.
  • Because data recovery efforts utilizing the In-Lab Data Recovery Service renders Your Product inoperable, Your original Product will be subject to secure disposal following an In-Lab Data Recovery attempt. To the extent possible You should back up accessible data on the Product before shipping it to the Administrator’s laboratory facility for an In-Lab Data Recovery attempt.

Performance Standards: We will use commercially reasonable efforts to complete Your In-Lab Data Recovery.  It may take up to fourteen (14) business days after We receive Your Product before You receive Your recovered data, or, if applicable, an explanation as to why Your lost data was unrecoverable.

Limitation of Liability: Our maximum liability in connection with all Claims processed pursuant to the terms and conditions of this Plan shall not exceed one (1) In-Lab Data Recovery attempt.

ADDITIONALLY, WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; INCLUDING BUT NOT LIMITED TO: PROPERTY DAMAGE, LOST TIME OR LOST DATA RESULTING FROM THE FAILURE OF ANY PRODUCT, FROM DELAYS IN SERVICE OR THE INABILITY TO RENDER SERVICE, OR RESULTING FROM THE UNAVAILABILITY OF REPAIR PARTS/COMPONENTS, OR FOR ANY AND ALL PRE-EXISTING CONDITIONS KNOWN TO YOU; INCLUDING ANY INHERENT PRODUCT FLAWS.

What is Not Covered:  AS RELATED AND APPLICABLE TO THE PRODUCT(S), THIS PLAN DOES NOT COVER ANY FAILURE, DAMAGE, REPAIRS OR SERVICES IN CONNECTION WITH OR RESULTING FROM:

  • A pre-existing condition known to You (“pre-existing condition” refers to a condition that within all reasonable probability, relates to the functional fitness of the Product before this Plan was purchased);
  • Any problem with the Product other than coverages outlined in this Plan;
  • Servicing of the Product in association with a non-covered Claim, and shipping or delivery charges associated with the initial purchase of the Product;
  • Fortuitous events; including, but not limited to: environmental conditions, exposure to weather conditions or perils of nature; collision; collapse, explosion; fire, any kind of precipitation, lightning, dirt/sand, smoke, nuclear radiation, radioactive contamination, riot, war or hostile action or any other external peril originating outside the Product;
  • Failure or damage that is covered under any other insurance, warranty, guarantee and/or service agreement providing the same benefits as outlined in this Plan;
  • Abuse (meaning, the intentional treatment of the Product in a harmful, injurious, malicious or offensive manner which results in its damage and/or breakdown), neglect, negligence, misuse, intentional harm or malicious mischief of or to the Product;
  • Rust, corrosion, warping, bending, animals, animal inhabitation or insect infestation;
  • Any items that are consumer replaceable and designed to be replaced over time throughout the life of the Product; including, but not limited to batteries;
  • Improper removal or installation of replaceable components, modules, parts or peripherals and/or installation of incorrect parts;
  • Routine, periodic or preventative maintenance or data recovery attempt by another provider;
  • Lack of providing manufacturer’s recommended maintenance or operation/storage in conditions outside manufacturer specifications, or use of the Product in such a manner as would be voidable coverage under the manufacturer’s warranty, or use of the Product in a manner inconsistent with its design or manufacturer specifications;
  • Any Product that has been confirmed to be used in a heavy industrial or rental capacity;
  • Adjustment, manipulation, modification, removal or unauthorized repairs of any internal component/part of a Product performed by anyone other than a service center/technician authorized by the Administrator or the manufacturer;
  • Any kind of manufacturer recall or rework order on the Product, of which the manufacturer is responsible for providing, regardless of the manufacturer’s ability to pay for such repairs; or
  • Service outside of the contiguous United States, Alaska or Hawaii.

 

IMPORTANT: RESTORATION OR TRANSFER OF SOFTWARE ARE EXPRESSLY EXCLUDED UNDER THIS PLAN. WHEN AT ALL POSSIBLE, WE STRONGLY ENCOURAGE YOU TO BACK UP ALL SOFTWARE AND DATA ON A REGULAR BASIS AND ESPECIALLY PRIOR TO SUBMITTING YOUR PRODUCT FOR SERVICING PURSUANT TO THE TERMS AND CONDITIONS OF THIS PLAN.

Cancelation: You may cancel this Plan at any time by informing the Administrator of Your cancellation request. NOTICE: The following cancellation provisions apply to the original purchaser of the Plan only.

If You Cancel this Plan:

  1. Within 30 days of the Plan purchase date, and no Claim has been made, You will receive a 100% refund of the full Plan purchase price paid by You.

 

We May Only Cancel this Plan For:

  1. Non-payment of the Plan purchase price by You;
  2. Material misrepresentation by You; or
  3. Substantial breach of duties under this Plan by You in relation to the Product or its use.

 

If We cancel this Plan, We will provide written notice to You at least thirty (30) days prior to the effective date of cancellation. Such notice will be sent to Your current address in Our file (email or physical address as applicable), with the reason for and effective date of such cancellation. If We cancel this Plan, You will receive a refund as follows:  (i) if within 30 days of the Plan purchase date, and no Claim has been made, You will receive a 100% refund of the full Plan purchase price paid by You; or (ii) if after 30 days from the Plan purchase date, or if a Claim has been made, You will receive a pro-rata refund based on 100% of the Plan purchase price paid by You, minus any Claims paid by Us.

Data Protection and Privacy: You agree that any information or data disclosed to Us under this Plan is not confidential. Furthermore, You agree that We may collect and process data on Your behalf when We provide the services contemplated under this Plan. This may include transferring Your data to affiliated companies or third party service providers in accordance with Our Customer Privacy Policy (https://www.westerndigital.com/legal/privacy-statement). Except for the purposes of providing services in this Plan, We will not share Your information with third parties without Your permission and We will comply with applicable privacy and data protection laws in Your specific jurisdiction.  Unless specifically prohibited by Your jurisdiction’s privacy and data protection laws, We may transfer Your information to other countries and jurisdictions provided that anyone to whom We transfer Your information provides an adequate level of protection. In addition, Your information may be accessed by law enforcement agencies and other authorities to prevent and detect crime and comply with legal obligations.

LEGAL DISPUTES AND ARBITRATION AGREEMENT.

IF YOU RESIDE IN THE U.S.: PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

  • INFORMAL DISPUTE RESOLUTION. You may contact us at Western Digital Technologies, Inc., ATTN: Legal Department, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. to address any concerns You may have regarding Your Plan. Most concerns may be quickly resolved in this manner. Each of You and We agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
  • AGREEMENT TO BINDING ARBITRATION. If You and We do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is pursued, then either party may initiate binding arbitration pursuant to the terms set forth herein. All claims arising out of or relating to the terms set forth herein under any legal theory, including contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, shall be finally settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. 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, scope, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable, except as provided for below. 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 in the U.S., or in Santa Clara County, California, U.S.A., at Your option. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity including, if applicable, public injunctions. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties, and may be entered as a judgment in any court of competent jurisdiction. You and We agree that these provisions of this section shall survive termination of this agreement. This agreement memorializes a transaction involving interstate commerce and the interpretation and enforcement of this section shall be governed by the U.S. Federal Arbitration Act (9 U.S.C. § 1 et seq.).

    The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures or by calling 1-800-352-5267. If You initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), We will pay the additional cost. If We are required to pay the additional cost of the filing fees, You should submit a request for payment of fees to JAMS along with Your form for initiating the arbitration, and We will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by You for legal counsel, travel, and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by Us even if You do not prevail in arbitration. We will also pay JAMS to reimburse You for any portion of the $250.00 filing fee that is more than what You would otherwise have to pay to file suit in a court of law. Unless otherwise agreed upon by You and Us in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by Us pursuant to this section.

    THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
  • CLASS ACTION AND CLASS ARBITRATION WAIVER. YOU AND WE EACH FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN OUR RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. YOU AND WE EACH EXPRESSLY WAIVE OUR RESPECTIVE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS, INCLUDING U.S. FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in section (b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
  • EXCEPTION – U.S. SMALL CLAIMS COURT CLAIMS. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an individual action in a U.S. small claims court if that action is within that court’s jurisdiction and is pending only in that court.
  • EXCEPTION – CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT (PAGA) ACTION. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
  • EXCEPTION – CLAIMS INVOLVING INTELLECTUAL PROPERTY RIGHTS. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim relating to the enforcement, infringement, or validity of (i) trade secrets, (ii) patents, (iii) copyrights, or (iv) trademarks. Notwithstanding the broad delegation clause set forth in section (b) above, the parties agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
  • 30-DAY RIGHT TO OPT-OUT. You can opt out of this agreement to arbitrate by sending a written letter to Western Digital Technologies, Inc., ATTN: Legal Department, 5601 Great Oaks Parkway, San Jose, CA 95119, U.S.A. within thirty (30) days of your purchase of the Plan, or within thirty (30) days of any subsequent modification to the arbitration agreement. Your letter to opt-out of arbitration must include your (i) name, (ii) mailing address, (iii) email address, and (iv) express request to opt-out from the arbitration agreement set forth in this section. If you opt-out of this agreement to arbitrate consistent with the procedure set forth above, all other terms and conditions set forth in this agreement shall continue to apply to your Plan.
  • TIME LIMITATION. TO HELP RESOLVE ANY ISSUES BETWEEN THE PARTIES PROMPTLY AND DIRECTLY, YOU AND WE AGREE THAT ANY ARBITRATION OR SMALL CLAIMS COURT PROCEEDING REGARDING A CLAIM UNDER THIS AGREEMENT MUST BE INITIATED WITHIN ONE YEAR AFTER THE CLAIM FIRST AROSE; OTHERWISE THE CLAIM IS PERMANENTLY BARRED.

 

General Provisions: We may subcontract or assign performance of Our obligations to third parties, but We shall not be relieved of Our obligations to You when doing so. The failure of any party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of these terms and conditions will be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity will not render these terms and conditions unenforceable or invalid as a whole and in such event, such provisions will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. You expressly consent to be contacted, for any and all purposes, at any telephone number, or physical or electronic address You provide Us. All notices or requests pertaining to this Plan will be in writing and may be sent by any reasonable means including by mail, email, facsimile, text message or recognized commercial overnight courier. Notices to You are considered delivered when sent to You by email or fax number that You provided to Us, or three (3) days after mailing to the street address You provided. This Plan cannot be transferred to any other party. This Plan is not renewable. 

THIS AGREEMENT IS NOT A POLICY OF INSURANCE, CERTIFICATE OR A SERVICE CONTRACT. THIS AGREEMENT DOES NOT PROVIDE FOR REPAIRS TO OR REPLACEMENTS OF ANY TANGIBLE EQUIPMENT OR PROPERTY WHETHER OR NOT SUCH DAMAGES ARISE FROM A MANUFACTURER DEFECT OR NORMAL WEAR AND TEAR, OR INDEMNIFICATION OR PAYMENT FOR DAMAGES TO ANY PROPERTY CAUSED BY OR ARISING FROM FORTUITOUS EVENTS.