Terms of Use

IMPORTANT- READ CAREFULLY: USE OF THIS SOFTWARE AND/OR THE SERVICE SIGNIFIES YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS OF USE. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, DO NOT USE THE SITE OR THE SERVICE.  YOU ARE ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS OF USE AND SAVE THEM FOR YOUR  RECORDS.

Welcome to HomeCloud

The following Terms of Use (“Terms of Use”) are between you and Westell, Inc. ("Westell") and constitute a legal agreement that governs your use of the HomeCloud product, software, services and websites (collectively referred to as the “Service”). You must agree to these Terms of Use before you can use the Service. You understand and agree that by clicking the "I AGREE" button or by installing, accessing or using the Service, you will be bound by these Terms of Use.  If you agree to these Terms of Use on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to these Terms of Use and your agreement to these Terms of Use will be treated as the agreement of the business or organization.  In that event, "you" and "your" will refer to and apply to the user of the Service or that business or organization, as required by the context. If you do not agree to any of the following terms, Westell is not willing to grant you a license and you may not use the Service. You should print or otherwise save a copy of these Terms of Use for your records.

Updates

Westell may update or change these Terms of Use from time to time and recommends that you review the Terms of Use on a regular basis. You can review the most current version of the Terms of Use at any time at www.homecloud.com. If Westell makes a change to the Terms of Use, it will post the revised Terms of Use at the link noted above. You understand and agree that your continued use of the Service after the Terms of Use have changed constitutes your acceptance of the Terms of Use as revised. Without limiting the foregoing, if Westell makes a change to the Terms of Use that materially impacts your use of the Service, Westell may post notice of any such change on our website and/or email you notice of any such change to your HomeCloud account.

Registration Requirements and Customer Accounts

To access and use the Service or to access technical support, you agree to provide Westell with accurate and complete information when you register and to keep such information accurate and complete while you have a subscription for the Service. Failure to provide accurate, current and complete registration information may result in the suspension and/or termination of your account. To register for an account, you: (a) must be of legal age to form a binding contract with Westell, and (b) cannot be a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction.  Upon submitting this information, you will receive an "account."

You will be required to select a password.  Please choose a strong password and do not reveal your password to others.  You are solely responsible for maintaining the confidentiality of your user name and password, and solely responsible and liable for any and all activity that occurs on the account. Compromise of your username and password may compromise the security of your backed-up data. You agree to immediately notify Westell of any unauthorized use of your account.

The credit or debit card holder associated with a HomeCloud subscription is the owner of the backed-up data. If there is no such card associated with your HomeCloud subscription, your email address and your answers to security questions indentify you as the owner of the backed-up data. If you obtained access to the Service by a business or organization, or as a member of a group of users, the business or organization is the owner of the backed-up data. You further acknowledge and agree that the business, organization, or other group of users may have selected one or more administrators to control, manage and use the Service on behalf of such business or organization, or group of users, and the administrators may have been granted certain privileges such as access to and control of your backed-up data, without notice to you.

Westell does not sell products or services to children. You will not allow children under the age of 18 to use the Service without the supervision of a parent or guardian. EACH TIME YOU USE THE SERVICE, YOU REPRESENT THAT EACH PARTICIPANT IS EITHER: (A) 18 YEARS OF AGE OR OLDER; OR (B) A MINOR WHO IS USING THE SERVICE UNDER THE SUPERVISION, AND WITH THE VERIFIABLE PERMISSION OF, A PARENT, GUARDIAN OR OTHER RESPONSIBLE INDIVIDUAL FOR SUCH USE AND FOR THE COLLECTION OF CERTAIN INFORMATION IN ACCORDANCE WITH THE TERMS OF USE.

Service Description

Homecloud is a home-based application sharing and storage system that uses cloud technology to quickly and securely connect your devices, files, and favorite online services to each other (the “Service”).

Use of the Service requires one or more compatible devices, certain software and internet access with compatible ISP (broadband required for web applications); separate fees may apply.  Your use of the Service may be affected by certain combinations of hardware, software and/or internet access.  High speed internet access is strongly recommended. 

Payments, Rates, Charges and Taxes

Payments and Charges

You agree to pay Westell’s then-current and applicable subscription fees for the Service.  Subscription fees are payable in advance, and your account will not be activated or reactivated until payment is received.  In the absence of other arrangements, Westell will charge the subscription fees and other charges to the credit or debit card provided by you.  Westell may seek pre-authorization of your credit or debit card account prior to purchase to verify the card is valid and/or has the necessary funds or credit available to cover your purchase.  These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge.  Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement. 

By authorizing Westell to charge a credit or debit card for the fees associated with your subscription, you are authorizing Westell to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen or changed for any reason by the card issuer, and the issuer informs Westell of the new replacement card account) for all fees and charges associated with your subscription, including any renewal fees as described in these Terms of Use, until you provide Westell with written notice of cancellation and cease to use the Service.  You will not receive any credits or proration during the month of cancellation.

It is a violation of the law for you to misuse or fraudulently use credit and debit cards.  Westell will report all misuse and fraudulent use to government authorities, credit reporting services, financial institutions and credit card companies.

Automatic renewal

When you sign up online for the Service, your annual subscription will be set to automatically renew upon its expiration.  This means that unless you cancel your account or change its renewal settings prior to its expiration, your account will automatically renew for another year.  At the time of renewal, we will charge your credit or debit card the then-current fees to renew the Service.  About 30 days prior to your expiration date, we will notify you by sending an email to the email address associated with your account that your account is about to renew and remind you that your credit card will be billed the indicated Service fees on the renewal date.  You may change your account renewal settings at any time by going to www.homecloud.com.

Unpaid Charges

In the event charges due are not paid on time and in full for any reason, Westell will have the right to suspend all or any portion of the Service until such time as all charges and applicable interest amounts and/or late fees have been paid. A suspension of your account or a non-renewal, expiration or termination of these Terms of Use will not relieve you of any payment liability. You agree to reimburse Westell for any costs, expenses, or fees expended by Westell in connection with any collection efforts against you, including reasonable administrative costs and any professional fees incurred, including attorneys' fees.  In the event non-payment within thirty (30) days of the renewal date, you will no longer have the right to access or retrieve your Content (as defined herein).

Dispute Process

Westell will send you an electronic invoice to the email address on your account whenever any Service fee is charged to your credit card. If you dispute any portion of an invoice, you shall provide Westell with written notice of the basis for the dispute, in sufficient detail for Westell to investigate the dispute.  You agree to waive all billing disputes unless notice is provided to Westell within 60 days of the invoice date.

Rate Changes

YOU ACKNOWLEDGE AND AGREE THAT THE FEES FOR THE SERVICE or any part thereof ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU.  If you do not agree to a price change, you must cancel your account and stop using the service.  Your continued use of the service after the effective date of a price change will CONSTITUTE your acceptance of the price change.

Taxes and Regulatory Fees

You agree to pay any taxes, whether federal, state, local, municipal or value-added, that may be imposed upon or with respect to the Service performed hereunder, except for taxes on Westell’s net income.  You agree to be fully responsible for payment for all Service fees including applicable fees, duties, tolls, administrative assessments, surcharges, or taxes, including without limitation, any fraudulent or unauthorized usage.

License

You acknowledge and agree that Westell and/or its licensors own all legal right, title and interest in and to the Service and any software provided to you as part of and/or in connection with the Service (the “Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist.  You further agree that the Service (including the Software, or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. 

During the term of your subscription and subject to your compliance with these Terms of Use, Westell hereby grants you a personal, revocable, non-exclusive, non-transferable limited license to use the Software. The Software and its structure, organization, source code and documentation contains valuable trade secrets of Westell and its licensors and accordingly you agree not to (and agree not to allow third parties to): (1) sublicense, lease, rent, loan, transfer or distribute the Software and/or Service or any derivative thereof to any third party; (2) modify, adapt, translate, or prepare derivative works from the Software or Service; (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service; (4) extract portions of the Software’s files for use in other applications; or (5) remove, obscure, or alter Westell’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained with or accessed in conjunction with or through the Software or Service. You agree that use of the Service or a portion thereof may be subject to compliance with end user licensing agreements, terms and conditions, privacy policies, or other agreements of such third parties, and you agree to review and comply with all such third-party terms, whether provided by Westell or otherwise made available to you.

From time to time, you may receive updates to the Software or Service from Westell which may be automatically downloaded and installed to your device or hardware.  These updates may include bug fixes, feature enhancements, improvements or entirely new versions of the Software or Service.  You agree that Westell may automatically deliver such updates to you as part of the Service and you shall receive and install them as required.  You agree that these Terms of Use and any new or additional terms or conditions imposed upon the download or installation of the updates will apply to such updates.

Intellectual Property and Copyright Information

Westell, the Westell logo, HomeCloud, the HomeCloud logo, and all other Westell trademarks, service marks, graphics, and logos used in connection with the Service and Software are trademarks or registered trademarks of Westell in the United States and other countries.  Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners.  You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Service.

Content and Your Responsibility

“Content” means any information that may be generated or encountered through use of the Service, such as data files, written text, software, music, graphics, photographs, images, sounds, videos, messages and any other like materials.  You understand that all Content whether publicly posted or privately transmitted on the Service is the sole responsibility of the person for whom such Content originated.  This means that you are the sole owner and solely responsible for the Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Service. You understand that by using the Service you may encounter Content that you may find offensive, indecent, or objectionable, and that you may expose others to Content that they find offensive.  Westell does not control the Content posted via the Service, nor does it guarantee the accuracy, integrity or quality of such Content.  You understand and agree that your use of the Service and any Content is solely at your own risk. Although Westell is not responsible for any such Content, Westell may, at no liability to Westell, suspend any such Content of which Westell is made aware.

You shall comply with all laws while using the Service and shall not transmit any communication that violates any applicable laws, court orders, or regulations of both the United States of America as well as the applicable laws, court orders, or regulations of the country in which you are using the Service.  You shall not violate any third party rights in using the Service and shall not use the Service in any way that damages Westell’s property or interferes with or disrupts Westell’s system or violates the rights of other users or interferes with their use of the Service.  You will not use Service to send unsolicited mass mailings outside your company or organization. You further agree not to use the Service to communicate any message or content that is harassing, libelous, threatening, obscene, materially false, misleading or inaccurate, or would infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party. You will not use Service to transmit any message or content that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation or is otherwise unlawful.  You will not, if you are an adult, request personal or other information from a minor (any person under the age of 18 or such other age as local law defines as a minor) who is not personally known to you, including by not limited to any of the following: full name or last name, home address, zip/postal code, telephone number, picture, or the names of the minor’s school, church, athletic team or friends. You will not impersonate any person or entity, falsely state or otherwise misrepresent its affiliation with a person or entity, or forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service. You agree not to transmit any Content which contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

Term and Termination

These Terms of Use and your license to use the Service and Software begin at the time and on the day you click the “I AGREE” button or install, access or use the Service, whichever is earlier.  These Terms of Use, your license and your subscription to the Service will automatically terminate or expire upon the earlier of (i) non-renewal, cancellation or expiration of your subscription or your failure to pay invoices when due, (ii)  Westell’s discontinuance of the Service, or (ii) your failure to comply with these Terms of Use.  If any third party makes an intellectual property infringement claim relating to the Service, Westell reserves the right to immediately terminate your subscription to the affected Service. Westell may, in its sole discretion, deny use of and access to all or any portion of the Service, including suspending or terminating your license and account with Westell if you are using the Service or the Software in a manner not intended or in violation of the law. 

Upon any non-renewal, termination, or expiration of your subscription to the Service, (i) the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the Service or the Software, (ii) the Service and Software may be disabled by Westell without notice to you, and (iii) you will no longer have the right to access or retrieve your Content. You agree that, upon non-renewal, termination or expiration of your subscription, you will immediately destroy and permanently erase all copies of the Software. You acknowledge and agree that Westell’s policy is to automatically delete all of your Content upon non-renewal, termination, or expiration of your subscription to the Service and that it is solely your responsibility to seek another source for your back-up needs.

The sections of these Terms of Use that should, by their context, survive the expiration or termination of these Terms of Use shall so survive, including without limitation the sections entitled: Registration Requirements and Customer Accounts, Unpaid Charges, Dispute Process, Privacy and Data Use, Disclaimer of Warranty, Limitation of Liability, Indemnification, Export and Import Control Laws and Regulations, Enforceability/Waiver, Miscellaneous, Governing Law; Exclusive Forum; Jurisdiction, and Entire Agreement.

Questions or Comments

As part of the Service, you may submit questions or comments to Westell at www.homecloud.com.  Westell reserves the right to edit and post the questions or comments that are submitted to Westell, along with Westell answers, without revealing any personally identifiable information. All communications, comments, feedback, suggestions, ideas, and other submissions related to the Service submitted to Westell at www.homecloud.com (collectively, "Submissions") become the property of Westell with all worldwide rights, titles and interests in all copyrights and other intellectual property.

Links

The Service may include links to other websites ("Linked Sites"). You acknowledge and agree that such links are provided for convenience and do not reflect any endorsement by Westell with respect to the providers of the Linked Sites.  Westell makes no representations or warranties regarding the quality, reliability or any other characteristic or feature of the Linked Sites and Westell is not responsible in any manner for any losses or injury associated with the Linked Sites, including without limitation, the content provided on or through the Linked Sites. You use the Linked Sites solely at your own risk. In addition, you acknowledge that your use of the Linked Sites is subject to the terms of use applicable to such Linked Site.

Privacy and Data Use

You understand that by using the Service, you consent to the collection and use of certain information about you and your use of the Service.  You further consent that Westell may collect, use, transmit, process and maintain information related to your account, and any devices registered thereunder, for identification, account administration, analysis, fraud/loss prevention, and for purposes of providing the Service, and any features therein, to you.

Each party will comply with all applicable personal data protection and privacy laws where such party is located (the "Data Protection Laws"). The parties acknowledge and agree that: (i) Westell may have access to personal data under the Data Protection Laws and will: (a) use it solely for the purpose of providing the Service; (b) process it only in accordance with your instructions; and (c) take appropriate technical and organizational measures to prevent unauthorized or unlawful processing, accidental loss, destruction or damage to the data; (ii) personal data may be processed by Westell and its affiliates throughout the world; and (iii) you are the data controller and retain full responsibility for the data processed on your behalf by Westell acting as data processor. More details about how that information is used can be found in Westell's privacy policy which governs your use of the Service. Copies of the privacy policy will be provided to you at your request by contacting www.homecloud.com.

Westell is very concerned about protecting the privacy of children.  Westell does not intend to collect any personally identifiable information from children under 13 years of age or knowingly distribute such information.  Children under 13 are not permitted to use the Service or Westell’s web site, and Westell requests that children under 13 not submit any personally identifiable information to Westell.  If a child under 13 has provided Westell with personally identifiable information, the parent or guardian of that child should contact Westell immediately to delete this information from our files. 

Disclaimer of Warranty

YOU UNDERSTAND AND AGREE THAT THE SERVICE AND THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE” AND TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. WESTELL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WESTELL MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH WESTELL, OR THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS. WESTELL MAKES NO WARRANTIES OR REPRESENTATIONS THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, OR THAT THE SERVICE OR SOFTWARE WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. USE OF THE SERVICE, SOFTWARE AND WESTELL’S WEBSITE ARE AT YOUR SOLE RISK. WESTELL IS NOT LIABLE FOR ACTS OR OMISSIONS OF SUPPLIERS, LICENSORS OR OTHER THIRD PARTIES, OR FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND WESTELL’S REASONABLE CONTROL.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WESTELL SHALL CREATE ANY ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF WESTELL’S OBLIGATIONS HEREUNDER.  YOU HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST WESTELL AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF YOUR USE OF THE SERVICE, SOFTWARE, OR ANY THIRD PARTY COMPONENTS.  THE SERVICE AND SOFTWARE MAY  BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET.  YOU ACKNOWLEDGE AND AGREE THAT WESTELL DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G. HACKERS), MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS.  WESTELL SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.  YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS AND FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICE OR SOFTWARE.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WESTELL OR ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS (THE “WESTELL PARTIES”) BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER ARISING OUT OF, OR RESULTING FROM THE SERVICES, THE SOFTWARE, OR THE TERMS OF USE REGARDLESS OF THE LEGAL THEORY OF RECOVERY, EVEN IF THE WESTELL PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM CUMULATIVE LIABILITY OF THE WESTELL PARTIES AND YOUR EXCLUSIVE REMEDY UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT, FOR INDEMNIFICATION OR OTHERWISE, ARISING OUT OF OR RELATED TO THE SOFTWARE OR THE SERVICE (INCLUDING WITHOUT LIMITATION YOUR INABILITY OT USE THE SERVICE, ANY CHANGES MADE TO THE SERVICE, ANY TEMPORARY OR PERMANENT CESSATION FO THE SERVICE OR ANY PART THEREOF, THE UNAUTHORIZED ACCESS TO OR ALTERNATION OF YOUR TRANSMISSIONS OR DATA, THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA OR THROUGH THE SERVICE, OR THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY) SHALL NOT EXCEED THE AMOUNT BILLED TO YOU FOR THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE CIRCUMSTANCES GIVING RISE TO SUCH CLAIM. THE WESTELL PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGES INCURRED AS A RESULT OF ANY ERRORS OR OMISSIONS BY YOU. EACH PARTY FURTHER AGREES THAT ANY CAUSE OF ACTION THAT IT MAY HAVE AGAINST THE OTHER MUST COMMENCE AS PROVIDED IN THE TERMS OF USE; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Indemnification

You agree to indemnify, defend and hold the Westell Parties harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, made by a third party, which arise out of or relate to: (1) your use of the Service (including without limitation, any person accessing the Service using your account); (2) any actual or alleged violation of the Terms of Use or any applicable law, rule or regulation by you or any person accessing the Service using your account; (3) or any actual or alleged infringement or violation by your  or any person accessing the Service using your account of any intellectual property or privacy or other right of any person or entity.  This obligation will survive the non-renewal, expiration or termination of these Terms of Use and your use of the Service. 

Governmental Agencies

This clause applies to all use of the Service by or for the United States government, or any other government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States government.  Use of the Service by the United States Government or other governmental agencies shall be as "restricted computer software" or "limited rights data" as set forth in 48 CFR 52.227-14, or as "commercial computer software" or "commercial computer software documentation" under DFARS 252.227-7202, or other similar applicable terms and conditions to prevent the transfer of rights in the technology to the government or such agency other than under normal commercial licensing terms and conditions.  Use of the Service involves incidental access to or use of commercial computer software developed exclusively at private expense, and which in all respects comprise proprietary data belonging to Westell.  The acquisition or use of Services does not include the acquisition or delivery of any software or any rights therein. The terms and conditions of this clause shall govern the government’s use of the Services, and shall supersede and take precedence over any conflicting contractual terms or conditions.  If this provision fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to decline access to, or use of, any software belonging to Westell.

Export and Import Control Laws and Regulations

You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Service, the Software, the Content, and any related software. You agree not to violate any of the export laws of the United States or any foreign jurisdiction by exporting or re-exporting the Services, the Content, the Software, or any related software in any form. You agree not to export, directly or indirectly, the Service, the Software, or any related software in any form to any country for which the Untied States requires an export license, into any U.S. embargoed countries, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By using the Service, you represent and warrant that you are not located in any such country or on any such list.  You also agree that you will not use the Service of any purposes prohibited by United States law, including, without limitation, the development design, manufacture or production of missiles or nuclear, chemical or biological weapons.  You further agree not to upload any data or software that cannot be exported without proper written agreement governmental authorization, including, but not limited to, certain types of encryption software.  This assurance and commitment shall survive the non-renewal, termination or expiration of these Terms of Use.

Enforceability/Waiver

If any part of the Terms of Use is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks. The remainder of the Terms of Use will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Westell’s failure to exercise or enforce any right or provision of the Terms of Use will not constitute a waiver of such right or provision unless agreed to by Westell in a non-electronic writing manually signed by a duly authorized representative of Westell. If there is any law, rule, regulation or policy that causes these Terms of Use or any Service or policies of Westell to be in conflict with such law, rule, regulation or policy, Westell may terminate or modify the affected Service without liability.

Miscellaneous

Except as otherwise expressly provided herein, all remedies provided for in the Terms of Use shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. You acknowledge that Westell is an independent contractor, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by the Terms of Use. The Terms of Use are for the sole benefit of Westell and its affiliates, suppliers, licensors and you and are not intended to, nor shall they be construed to, create any right or confer any benefit on any other party. The parties do not intend that the Terms of Use will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Terms of Use. You authorize Westell to monitor and record your calls for the purposes of quality assurance and you further consent to Westell’s use of automatic dialing equipment to contact you. Westell’s performance of the Service is subject to existing laws and legal process, and nothing contained in the Terms of Use will conflict with Westell’s right to comply with governmental, judicial and law enforcement requests or requirements relating to your use of the Software or Service or information provided to or gathered by Westell with respect to such use. You may not assign the Terms of Use to any other person or entity, including a successor in interest as a result of a merger, sale or acquisition which results in a change of control without Westell’s prior written approval, but nothing restricts Westell’s ability to assign the Terms of Use or subcontract the Service hereunder. 

Governing Law; Exclusive Forum; Jurisdiction

The Terms of Use will be governed by the laws of the State of Illinois. The parties agree to resolve all disputes in the courts of Cook County and the federal court for the District Court of the Northern District of Illinois. You agree to service of process by mail directed to your billing address. You waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in your local courts. You agree that any claim or cause of action arising out of or related to the Terms of Use must be commenced within one (1) year after the cause of action arose. 

Force Majeure

Westell will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond Westell’s control, whether or not similar to the foregoing.

Entire Agreement

The Terms of Use (including any documents or policies incorporated by these Terms of Use) constitute the entire agreement between you and Westell with respect to the Service and supersedes all prior or contemporaneous communications and proposals, representations, promises, or agreements, whether electronic, oral, or non-electronic, between Westell and you. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, service agreement, acknowledgement, email, or other document that you may now or later provide to Westell, will have no effect and the Terms of Use (including any Westell documents or policies referenced in the Terms of Use) are the only binding agreement between Westell and you regarding use of the Service and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. A printed version of the Terms of Use and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Notices

Notices from Westell to you under the Terms of Use may be sent by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information provided by your for billing or account management purposes. Notices to Westell must be sent to the address mentioned in Westell’s invoice to you with a courtesy copy to 750 N. Commons Drive, Aurora, Illinois 60504; Telephone: (630) 375-4700; Email: webmaster@westell.com. All notices shall be in English.

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