This Beta Agreement (this "Agreement") is a legal contract between you as an individual non-commercial beta tester ("you" or "Beta Tester"), and Western Digital Technologies, Inc., its subsidiaries and affiliates (collectively, "WDT") regarding your use and conduct related to the evaluation of data storage software and hardware products and other similar products as provided to you as part of an evaluation program ("WDT Products").
Evaluation Materials. "Evaluation Materials" shall mean: (i) any pre-release version of the WDT Products provided to Beta Tester by WDT in connection with the Beta Test or this Agreement; (ii) any software included on, or provided in connection with, such pre-release version of the WDT Products; (iii) any improvements, updates, or inventions related thereto; and (iv) any and all other related information, whether provided orally, visually, or in writing (including, without limitation, features, release dates, product specifications, etc.) provided by WDT to Beta Tester in connection with the Beta Test or this Agreement.
Grant of License. Subject to the terms and conditions of this Agreement, WDT grants to Beta Tester, a personal, limited, nonexclusive, fully revocable, royalty-free, nontransferable, and non-sublicensable right to use the Evaluation Materials solely for evaluating and providing Feedback (as defined below) to WDT.
License Restrictions; Disclaimer.
3.1 License Restrictions. Beta Tester shall not (and shall not allow any third party to): (i) remove, alter, or obscure any proprietary notices contained on or within the Evaluation Materials; (ii) modify, reverse compile, reverse assemble, or reverse engineer all or any portion of the Evaluation Materials; (iii) distribute, disclose, market, rent, lease, sell, or otherwise transfer the Evaluation Materials to any third party; (iv) modify, incorporate into or with other software, or create a derivative work of any part of the Evaluation Materials; (v) disclose the results of the Evaluation Materials' performance benchmarks to any third party without WDT's prior written consent; or (vi) use the Evaluation Materials as a primary storage or networking solution or for production or commercial purposes. Beta Tester shall have no right to transfer, sublicense, or otherwise distribute the Evaluation Materials to any party without the prior written consent of WDT.
3.2 Disclaimer. Beta Tester agrees that the Evaluation Materials are pre-release versions and are not at the level of performance or compatibility of a final, generally available WDT Product offering. The Evaluation Materials may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn. In no event shall WDT be liable for any damage whatsoever arising out of the use of or inability to use such Evaluation Materials (including, without limitation, loss of data), even if WDT has been advised of the possibility of such damages.
Ownership. All right, title, and interest in and to the Evaluation Materials, including, without limitation, any improvements, modifications, and enhancements made thereto, are and shall remain in WDT. Except for those rights expressly granted to Beta Tester in Section 2, no other rights are granted, either express or implied, to Beta Tester hereunder.
Feedback. WDT may require Beta Tester to complete surveys and or provide suggestions, comments, technical information, evaluation results, or other feedback concerning the functionality and performance of the Evaluation Materials, including without limitation identifying potential errors and/or improvements ("Feedback") to WDT in connection with this Agreement. Feedback and other information that is provided by Beta Tester to WDT in connection with this Agreement may be used by WDT to improve or enhance its products and, accordingly, WDT shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, distribute, modify, and otherwise exploit such Feedback and information for any purpose and in any medium or product without restriction. Such right and license shall survive any termination or expiration of this Agreement for any reason. Beta Tester covenants that it will not assert against WDT or any of its directors, officers, employees, subcontractors, or agents any claim or action arising from the use or exploitation of the Feedback by WDT.
Confidentiality.
6.1 Confidential Information. Regardless of whether marked or designated "confidential" or "proprietary" by WDT, the Evaluation Materials and all trade secrets, performance data, designs, features, layouts, configurations, processes, formulae, specifications, programs, test results, Feedback, technical know-how, methods and procedures of operation, and other information relating thereto (or otherwise obtained in connection with Beta Tester's use or evaluation of the Evaluation Materials) shall be deemed to be confidential information of WDT ("Confidential Information").
6.2 Protection of Confidential Information. Beta Tester acknowledges that WDT claims Confidential Information as a special, valuable, and unique asset. Confidential Information is provided to Beta Tester solely for Beta Tester to evaluate and provide Feedback to WDT, and Beta Tester shall not use Confidential Information in any other manner. Beta Tester agrees that it will not disclose Confidential Information to any third party. Beta Tester shall maintain the confidentiality of Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. Without limiting the foregoing, Beta Tester shall not disclose to any third party, including, without limitation, any blog or website, Beta Tester's use of the Evaluation Materials or participation in the Beta Test program, the results of any tests of the Evaluation Materials, including, without limitation, any features, problems, on-screen displays, or any Feedback.
Collection of Information.
7.1 Consent to Use Registration Information. Beta Tester represents and warrants that the information Beta Tester provides to WDT during the Beta Test registration process ("Registration Information") is accurate and acknowledges that Beta Tester's selection as a beta tester may be based on WDT's review of such information. Beta Tester acknowledges and consents to WDT's use of Registration Information for: (i) qualifying Beta Tester into the Beta Test program, (ii) administrating the Beta Test program, and (iii) general marketing purposes. Registration Information shall be otherwise handled by WDT in accordance with its Privacy Statement (currently available at: https://www.westerndigital.com/legal/privacy-statement), which is hereby incorporated by reference.
7.2 Consent to Collection and Use of Additional Information. BY CLICKING TO ACCEPT THE TERMS IN THIS AGREEMENT OR BY SIGNING THIS AGREEMENT, YOU CONSENT TO WDT'S COLLECTION AND USE OF ADDITIONAL INFORMATION AS DESCRIBED IN THIS SECTION. Beta Tester acknowledges that the Evaluation Materials may contain software that collects and automatically reports to WDT certain data, Usage Data (as defined in this section), files, logs, and other related information that may include personally identifiable information (collectively, the "Additional Information"). "Usage Data" includes information about how you use the WDT Products and includes items such as device information and configuration; CPU/device and other usage statistics by application; API calls; service crash information; network status; storage utilization; search terms; file attributes (for example, content metadata such as file size, type, source, creation/modification/access dates and times, camera make/model, location, and tags/descriptions); correlations among files; and third-party account information that you link to the service. You agree that WDT may use Additional Information to improve the quality and performance of WDT's products, services, and apps and to personalize your experience with WDT's products, services, and apps, including by sending you in-app and push notifications. WDT shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, distribute, modify, and otherwise exploit such Additional Information for any purpose and in any medium or product without restriction. Such right and license shall survive any termination or expiration of this Agreement for any reason. Beta Tester covenants that it will not assert against WDT or any of its directors, officers, employees, subcontractors, or agents any claim or action arising from the transmission, collection, use, or exploitation of the Additional Information by WDT.
7.3 Consent to Collection and Use of Personally Identifiable Information for Marketing Communications. BY CLICKING TO ACCEPT THE TERMS IN THIS AGREEMENT OR BY SIGNING THIS AGREEMENT, YOU CONSENT TO WDT'S COLLECTION AND USE OF PERSONALLY IDENTIFIABLE INFORMATION FOR MARKETING COMMUNICATIONS AS DESCRIBED IN THIS SECTION. WDT may use personally identifiable information from your use of WDT's products and services to send you marketing communications, including targeted advertisements, via in-app messages, push notifications, and email. We may use personally identifiable information to provide you with ads that are relevant to you. This may include information related to your use of the WDT Products, such as your name, email address, IP address, subscription information, and account preferences (for example, language and time zone preferences); Additional Information; information about your use of any third-party services (for example, cloud and social media services such as Facebook, Instagram, Dropbox, Google Drive, and OneDrive) connected to the WDT Products; information about your use of Western Digital's services, such as the Western Digital Store, which may include your purchase history, location, and account preferences (for example, language preferences); and information about your use of Western Digital's sites and the use of cookies as described in our Cookie Statement, which is incorporated here by reference and available at https://www.westerndigital.com/legal/cookie-statement.
Termination; Return of the Evaluation Materials.
8.1 Termination. This Agreement shall terminate upon the delivery of written notice of termination by WDT to Beta Tester (e-mail to suffice).
8.2 Return of the Evaluation Materials. Beta Tester may be asked to return to WDT and/or destroy all Evaluation Materials, Confidential Information, and related materials, and within five (5) days after termination of this Agreement, or within two (2) days of WDT's request at any time, Beta Tester shall certify in writing its compliance thereto. If requested to return Evaluation Materials by WDT, Beta Tester shall delete all data stored on any applicable Evaluation Materials prior to returning such Evaluation Materials. It is the Beta Tester's responsibility to delete data from all applicable Evaluation Materials. WDT shall not be responsible for any possible disclosure of data, upon receipt of any Evaluation Materials.
8.3 Survival. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 shall survive the termination of this Agreement for any reason.
Remedies. Beta Tester agrees that the obligations of Beta Tester provided herein are necessary and reasonable in order to protect WDT and its business, and Beta Tester expressly agrees that monetary damages would be inadequate to compensate WDT for any breach by Beta Tester of its covenants and agreements set forth herein. Accordingly, Beta Tester agrees and acknowledges that any such violation or threatened violation (including without limitation a violation or threatened violation of Section 6) will cause irreparable injury to WDT and that, in addition to any other remedies that may be available in law, in equity, or otherwise, WDT shall be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement or the continuation of any such breach by Beta Tester, without the necessity of proving actual damages or posting a bond.
WARRANTY DISCLAIMER. WDT MAKES NO REPRESENTATION AS TO THE NATURE OR TIMING OF THE DELIVERY OF THE EVALUATION MATERIALS. THE EVALUATION MATERIALS MAY CONTAIN DEFECTS, MAY RESULT IN LOSS OF DATA IN THE EVALUATION MATERIALS AND THE BETA TESTER'S COMPUTER SYSTEMS, AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE EVALUATION MATERIALS AND ANY ANCILLARY SERVICES (INCLUDING, WITHOUT LIMITATION, INSTALLATION OR SUPPORT) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WDT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON‑INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF WDT ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). IN NO EVENT SHALL WDT HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL WDT HAVE LIABILITY FOR ANY LOSS OF DATA IN THE EVALUATION MATERIALS OR THE BETA TESTER'S COMPUTER SYSTEM. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BUT FOR BETA TESTER'S ACCEPTANCE OF THIS SECTION 11, WDT WOULD NOT HAVE GRANTED THE LICENSE HEREIN.
Miscellaneous. This Agreement shall be governed by the laws of California without reference to conflict of laws principles. Jurisdiction and venue for any dispute arising from or related to this Agreement shall be in the federal and state courts of Santa Clara County, California, U.S.A., and each party hereby consents to the exclusive jurisdiction and venue of such courts. Beta Tester shall not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of WDT. WDT shall have the right to assign this Agreement in connection with a merger, acquisition, sale of assets, change of control, or similar arrangement. Beta Tester shall comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the Evaluation Materials, technology, and documentation provided hereunder. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and shall supersede and replace any prior agreement on the subject matter hereto. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect. The headings contained herein are for reference only and shall not affect the scope or intent of any clause or provision of this Agreement.
