Purchase Order Terms and Conditions

Last Updated August 10, 2020

1. Order, Controlling Provisions, Integration

This Order ("Order") consists of these Terms and Conditions ("Terms and Conditions") and the Purchase Order included with these Terms and Conditions ("Purchase Order"). This Order serves as the offer of, and is delivered by Western Digital Technologies, Inc. or an affiliate thereof, as identified on the face of the Purchase Order (each, a "Buyer"), to the Supplier specified in the Purchase Order ("Supplier") with regard to the product(s) and/or service(s) set forth therein ("Products" and "Services," respectively). THIS ORDER HEREBY EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS CONTAINED IN THIS ORDER. Upon its acceptance by Supplier, this Order shall constitute a binding agreement. Any written acceptance by Supplier, and/or any delivery by Supplier of Products or Services and/or the acceptance of any payments pursuant hereto, each shall be deemed an acceptance by Supplier of this Order without modification. In the event of a conflict between these Terms and Conditions and the Purchase Order, the terms of the Purchase Order shall prevail. This Order (including attached exhibits, schedules, and annexes) shall control the purchase and use of the Products and/or Services and performance thereof, and sets forth the entire, final, and complete agreement of Buyer and Supplier with respect to the subject matter hereof, and supersedes all prior or contemporaneous written and oral discussions, agreements, and understandings, if any, relating to the Products and/or Services, and no invoice, confirmation, acknowledgement, payment, end user license agreement, shrink wrap agreement, click-through agreement, other document issued by Supplier, or any course of dealing or practice shall have any effect upon, or modify, this Order in any respect; provided, however, that notwithstanding the foregoing, if the parties have executed a separate written and expressly signed agreement governing the purchase, sale, and use of the Products and/or Services and performance thereof, or the processing of personal data on behalf of Buyer, then such separate written agreement(s) shall govern, provided this Order shall be effective to show the quantity, model, date of order, and requested delivery date of the Products and/or Services, except to the extent that such terms are specifically contained in the separate written agreement. If under any given facts or circumstances this Order is alternatively deemed to constitute a definite and seasonable expression of acceptance or written confirmation sent within a reasonable time, then accordingly it is hereby expressly made conditional on assent by Supplier to any additional or different terms contained herein. Any reference of any kind anywhere in this Order to a quotation or other similar document of Supplier is made solely to facilitate identification of goods or services ordered, and not to incorporate any commercial terms and conditions stated therein, all of which are excluded from the terms of this Order and are hereby objected to and rejected.

2. Forecasts, Changes in Order, Termination

All forecasts provided by Buyer are non-binding, for planning purposes only, and are not to be relied upon by Supplier. Buyer may change or terminate this Order at any time in whole or in part upon written notice to Supplier. If Buyer terminates this Order for convenience, it will reimburse Supplier the lesser of (i) a 0.5% (one-half of one percent) restocking fee based on the value of the portion of the Order terminated, or (ii) Supplier's actual, reasonable, and direct out-of-pocket costs that are not capable of being mitigated ("Termination Costs"); provided, however, that such costs are not payable unless and until Buyer and Supplier have agreed as to the appropriate Termination Costs. Upon receipt of any notice of termination, Supplier shall immediately stop all work in progress and use its best efforts to mitigate any costs associated with the termination. Buyer has the option to purchase (a) works in progress at a prorated price based on the percentage of work remaining to be completed, and (b) any raw materials Supplier may have obtained to use in fulfilling the Order, at Supplier's actual cost for the raw materials. Supplier's sole remedies for termination of this Order are provided in this Section 2. If Buyer terminates this Order, in whole or in part, for default in the event Supplier (I) fails to make delivery or perform the Services within the time specified herein; (II) fails to perform any other provisions of this Order; (III) files a petition in bankruptcy, becomes or is declared insolvent, is unable to pay its debts as they become due, makes any assignment for the benefit of its creditors, or becomes subject of any proceeding related to its liquidation, insolvency, or the appointment of a receiver or trustee; or (IV) in the sole judgment of Buyer, so fails to make progress as to endanger performance within its terms, then Buyer may procure, upon such terms as Buyer may deem appropriate, supplies, products, or services similar or substantially similar to those so terminated, and Supplier shall be liable to Buyer for any excess costs associated therewith.  In the event of a change to this Order by Buyer, if any such change would result in an adjustment to the amount to be paid by Buyer pursuant hereto, Supplier shall promptly notify Buyer in writing prior to commencing work on such changed Order. Buyer shall then either accept such revised terms and accept the Products and/or Services or reject such revised terms and terminate this Order. Delivery of the Products and/or Services by Supplier without first delivering such written notice shall be deemed acceptance by Supplier of such changes without additional charge to Buyer. Buyer's payment shall be considered a complete and final discharge of any liability as a result of such change or termination.  In addition to and without limiting the foregoing, Buyer shall have the right to amend any quantities ordered hereunder based on prevailing market conditions that affect demand for its products and this shall not constitute a termination for convenience. Supplier shall give Buyer at least 180 days’ prior written notice before discontinuing the production of any Products covered by this Order, during which time Supplier shall accept final orders from Buyer at the negotiated price.

3. Price; Invoices

The prices in the Purchase Order shall include all charges for packing, storage, any import or export license fees, any shipping charges to Buyer's delivery location and any applicable value added, sales, use and any federal, state, local, or other applicable taxes or duties not subject to exemption, all of which shall be stated separately in Supplier's invoice. Supplier warrants that the prices quoted in the Purchase Order are no greater than those charged by Supplier (including any related rebates or other offsetting discounts or credits) to any other buyer for similar quantities of products and/or services (determined up to the date of shipment or performance). Supplier shall promptly refund or credit to Buyer's account, at Buyer's discretion, all excess amounts so charged.  Invoices shall comply with Buyer’s then-current invoice requirements policy (which is available in the supplier portal of Buyer’s ERP system) and shall include, without limitation, the following information (which shall match the information on the Order):  Purchase Order Number; item number; unit price, description of items, sizes, quantities, extended totals, applicable export/import classification codes, country of origin designations, and the information required to be itemized as described in Section 18 below.

4. Payment

Buyer issues payments on a monthly basis (“Monthly Payment Cycle”). Unless otherwise agreed to by Buyer in writing, payments will be made on the date of the next Monthly Payment Cycle following sixty (60) days after the later of (i) Buyer’s receipt of an undisputed invoice, or (ii) Buyer’s acceptance of all Products and/or Services associated with the Order. Payment hereunder does not constitute acceptance of Products and/or Services. Buyer shall not be obligated to pay any invoice from Supplier that is received by Buyer more than one hundred eighty (180) days after Buyer has accepted the applicable Products or Services.

5. Set-off

Buyer reserves the right to set-off, against any debt, credit, or other obligation due by Buyer to Supplier hereunder or otherwise (regardless when due) any amounts due by Supplier to (i) Buyer or (ii) any third party in connection with the Products or Services in the event Buyer pays such third party directly on Supplier's behalf. 

6. Delivery

All deliveries of Products and/or Services shall be in strict conformance with this Order. Supplier shall comply with Buyer’s international shipping instructions, which include, among other things: (a) country of origin marking instructions and all instructions for exports to Buyer; (b) packaging and labeling requirements; and (c) transportation routing guidelines.  In addition, unless the parties specifically agree otherwise, Supplier agrees to be the importer of record and to comply with all legal, regulatory, and administrative requirements associated with such importation of Products; and pay all duties, taxes, and fees associated with such importation. Title and risk of loss shall pass to Buyer upon acceptance by Buyer. Products and/or Services shall be deemed accepted if Buyer has not rejected the Products and/or Services within a reasonable time following their delivery. TIME IS OF THE ESSENCE. Buyer may reschedule any delivery date upon notice to Supplier.  Supplier agrees to notify Buyer (in writing) immediately of any matters or events that may delay delivery of the Products or Ser