Terms and Conditions of Sale (Commercial)

Last Updated June 22, 2021

1. Controlling Provisions, Integration

In the absence of a written agreement for the purchase of Goods from Western Digital Technologies, Inc. and/or its Affiliates (“WDT”), these Terms & Conditions of Sale (“Terms & Conditions”), together with the quote provided by WDT, constitute the entire agreement (“Agreement”) between WDT and the purchaser of the goods referenced in the quote (“Buyer”) relating to the purchase of the goods referenced in such quote or in any written purchase order (“Order”) submitted by Buyer to WDT in connection with such quote (“Goods”). “Affiliates” shall mean any company directly or indirectly controlling, being controlled by, or under common control with Western Digital Technologies, Inc. In the event of a conflict between the provisions of these Terms & Conditions and the quote prepared by WDT and provided to Buyer, the following order of priority shall apply to resolve such conflict: (i) the terms appearing in the quote provided by WDT and (ii) these Terms & Conditions. WDT expressly rejects any inconsistent terms in Buyer’s purchaser order, and WDT will only accept Buyer’s order on the basis of a mutually agreed signed contract or, in the absence of such signed contract, these Terms & Conditions. In the event of any discrepancy or inconsistency between the Agreement and any other form, agreement, or Order used or proposed by either party in connection herewith or with the transactions contemplated herein, the terms of the Agreement shall govern and such other form, agreement, or Order shall be effective only to show the quantity, model, date of order, and requested delivery date. Buyer’s placement of an Order with WDT for any of the Goods shall constitute Buyer’s acceptance of the terms hereof and, if Buyer’s Order constitutes an offer, WDT’s acceptance is expressly conditional on Buyer’s unqualified agreement to each of the terms and conditions of the Agreement. Unless authorized by WDT to purchase Goods through WDT’s online store at shop.westerndigital.com, which may require Buyer’s acceptance of additional and/or different terms and conditions, no addition to or modification of the Agreement shall be binding on WDT unless made in writing and signed by a duly authorized representative of WDT. No representations or statements of any kind made by any representative or agent of WDT which are not stated herein shall be binding on WDT. The express terms of the Agreement shall control course of performance and course of performance shall control both course of dealing and usage of trade.

2. Prices

Prices of Goods (“Prices”) do not include taxes. WDT shall invoice Buyer, and Buyer shall pay WDT as provided in §4 below, for the Prices and any such taxes and transportation and freight charges. If WDT receives a Order for Goods from Buyer and, prior to shipping Goods against such Order, WDT changes the price of the Goods with respect to Buyer, then: (i) in the event WDT reduces prices, WDT will ship and invoice Goods at the price in effect at the time of shipment; and (ii) in the event WDT raises prices, WDT will require Buyer to submit a new Order reflecting the change in the price of the Goods and if Buyer does not submit such new Order WDT may, without liability, terminate its obligation to sell Buyer any unshipped Goods.

3. Rescheduling

Buyer may only reschedule the delivery date for an Order if Buyer provides a written rescheduling request to WDT at least fourteen (14) or more days prior to the original scheduled delivery date and WDT accepts the rescheduling request in writing. Any rescheduled delivery date must be within thirty (30) days of the original scheduled delivery date, and is subject to WDT’s applicable lead time requirements.

4. Payment, Security Interest

Buyer shall pay the net invoiced amount to WDT in United States currency within thirty (30) days from the date of invoice. WDT may charge a late fee equal to ten percent (10%) per annum on all outstanding invoiced amounts not paid within thirty (30) days. WDT reserves the right at any time to suspend further shipments of Goods if Buyer does not comply with payment terms specified herein or in WDT’s invoice. In such event, Buyer shall comply with any new payment terms prescribed by WDT as a condition for further shipment of Goods. Each shipment shall constitute an independent transaction and Buyer shall pay for same in accordance with applicable payment terms. Buyer shall make payment for the Goods without regard to prior inspection of the Goods. However, any right of inspection available to Buyer shall not be impaired by such payment. To secure prompt and complete payment and the performance of its obligations hereunder, Buyer hereby grants, assigns, conveys, mortgages, pledges, hypothecates, and transfers to WDT, and acknowledges that WDT has reserved, a continuing first priority lien (a purchase money security interest) upon all of Buyer’s right, title, and interest in and to all Goods shipped and any proceeds thereof in the amount of the Price of such Goods plus any and all other charges owed to WDT in connection therewith. Buyer grants to WDT all the rights and remedies afforded to a secured party by the chapter on “Default” of Division 9 of the Uniform Commercial Code Secured Transactions of California in addition to all rights and remedies provided herein. Default shall be deemed to include any act consistent with the bankruptcy or insolvency of Buyer. Buyer agrees that WDT shall have no liability to Buyer for any damages by reason of WDT’s repossession of any Goods, including, without limitation, any possible liability for loss of business, and Buyer agrees to hold WDT harmless from any such claims by third parties. Buyer agrees to reimburse WDT for the expenses of retaking the Goods, including reasonable attorneys’ fees and legal expenses. Buyer authorizes the filing or recording of (and agrees to sign if necessary) any financing statement or other document that may be required to be filed or recorded with appropriate state or local authorities in order for WDT to perfect its security interests in the Goods.

If you elect to use the services of a third-party payment or billing provider (e.g., TreviPay) in connection with your purchase from us, your use of such services will be subject to the third-party provider's own terms and conditions. You may be required to create an account with such third-party provider and/or provide that third-party provider with your bank account or credit/debit card details. We are not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third-party payment or billing provider.

5. Delivery

Unless separate delivery terms are mutually agreed to by the parties in writing, the Goods shall be delivered ExWorks, or if WDT elects to pay shipping, CPT (Incoterms 2020) to WDT’s plant of manufacture, first airport/port of entry, or local distribution center, as determined by WDT in its discretion. Title of ownership to such Goods shall pass to Buyer at the time of transfer of risk of loss or damage in accordance with the agreed shipment terms. Shipment or delivery dates scheduled or proposed by WDT are estimates only. Any shipment or delivery dates in Buyer’s Order are requests for shipment or delivery on such dates and are not binding on WDT. WDT shall not be liable for any damages, losses, or other claims resulting from any delay in delivery or any non-delivery of Goods attributable in whole or in part to (i) any act of government, judicial action, war, civil disturbances, insurrection, sabotage, act of public enemy, labor difficulties or disputes, failure of or delay in delivery by WDT’s suppliers or carriers, commercial impracticability (irrespective of foreseeability at time of contracting), shortage of energy, raw materials, labor or equipment, inadequate yield of product despite WDT’s reasonable efforts, fire, flood, storm or other act of God or any other cause whether similar or dissimilar beyond WDT’s reasonable control, or (ii) Buyer’s fault or negligence (any event described in (i) or (ii) constituting an “Excusable Delay”). The delivery dates shall be considered extended by a period of time equal to the period of the Excusable Delay. In the event, however, that WDT is unable to wholly or partially perform its obligations to ship Goods because of any Excusable Delay, WDT shall be relieved of such obligations without further liability. In the event that demand for any WDT products which comprise any of the Goods exceeds WDT’s ability to produce and ship such products as ordered, WDT may allocate production and shipment among its customers as WDT deems warranted by the circumstances, and to the extent that such allocations of Goods to Buyer do not fulfill WDT’s obligations under the Agreement, WDT shall not be liable.

6. Limited Warranty

Subject to the limitations below, WDT warrants that at the time of shipment, Goods of WDT's own manufacture will be free from defects in material and workmanship and will conform to applicable WDT specifications. The foregoing limited warranty shall extend for a period of one (1) year, unless a different warranty period is set forth in a communication from WDT, which warranty period shall commence upon shipment of the Goods to Buyer, and such warranty shall be subject to the limitations of WDT's warranty policy in effect on the date of the Order. No warranty shall apply to any Goods that are experimental, developmental, preproduction, sample, or designated by WDT (on the face thereof or otherwise) as "incomplete" or "out of specification." The foregoing limited warranty shall not apply and WDT shall have no liability in the event that Buyer returns or otherwise disposes of Goods in violation of the RMA process set forth in Section 8 below, or, if upon WDT's examination of the Goods, WDT determines that any of WDT's then-current, standard warranty exclusions apply, which include, but are not limited to: (i) the asserted defect or nonconformity not being present; (ii) the asserted defect or nonconformity not being capable of being verified because of damage to the Goods; or (iii) the asserted defect or nonconformity being attributable to misuse, neglect, improper installation or assembly, alteration, accident, unauthorized repair, improper testing, mishandling, or use or operation that is inconsistent with the applicable published specifications for the Goods (including, but not limited to, exceeding specified acceptable temperature ranges and power on cycles). The foregoing limited warranty extends to Buyer only and not to Buyer's customers or to any users of Buyer's products. THE FOREGOING LIMITED WARRANTY IS WDT'S SOLE WARRANTY. WDT MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED BY WDT AND EXCLUDED. Subject to the limitations below, Buyer and WDT expressly agree that Buyer's sole and exclusive remedy, and WDT's sole and exclusive liability, for breach of the foregoing warranty shall be to, at WDT's option and subject to the limitations set forth in §7 below: (i) repair or replace the Goods, or (ii) provide a credit to Buyer at the then-current warranty credit value. If WDT elects to repair or replace Goods, WDT shall have a reasonable time, but in no event less than forty-five (45) days, in which to make the repair or replacement. WDT's foregoing warranties shall extend to repaired or replacement Goods but only for the balance of the applicable period of the original warranty or thirty (30) days from the date of shipment of repaired or replacement Goods, whichever is greater.

7. Limitation of Liability

WDT SHALL HAVE NO LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR ANY FINANCIAL LOSS, LOST PROFITS OR EXPENSES, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, DELIVERY, USE, OR PERFORMANCE OF THE GOODS OR THE PERFORMANCE OR NONPERFORMANCE BY WDT OF THE TERMS SET FORTH HEREIN UNDER ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EVEN IF WDT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WDT'S MAXIMUM LIABILITY AND BUYER'S MAXIMUM RECOVERY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, USE OR PERFORMANCE OF THE GOODS SHALL NOT IN THE AGGREGATE EXCEED THE PURCHASE PRICE OF THE GOODS TO WHICH THE CAUSE OF ACTION RELATES PURCHASED CUMULATIVELY BY BUYER DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EXCLUDING TRANSPORTATION AND FREIGHT CHARGES AND ANY TAXES (LESS THE PRICE OF ANY SUCH GOODS RETAINED BY BUYER HEREUNDER) (THE "LIABILITY CAP"). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMITATION.

8. Acceptances, Rejections, Returns

Buyer shall be deemed to have accepted the Goods upon transfer of title. For Goods that do not meet the Limited Warranty, Buyer may return Goods to WDT only when and if authorized by WDT by means of a Return Material Authorization (“RMA”) number assigned by WDT through WDT’s web-based RMA tool, in compliance with, and subject to the terms and conditions of, WDT’s RMA Policy, found at www.wdc.com under the “Support” heading. All authorized returns shall be shipped, with freight charges prepaid by Buyer. Title to and risk of loss of Goods returned to WDT by Buyer shall remain in Buyer until final acceptance and approval of such returned Goods by WDT at the designated location, whereupon title and risk of loss shall pass to WDT. Buyer shall not dispose of any allegedly deficient Goods in any manner without WDT’s prior written authorization.

9. Termination

Buyer has no right to cancel, suspend, or place a “hold” on WDT’s performance under the Agreement in whole or in part. Buyer’s liability for any such action taken without WDT’s written consent shall include, but not be limited to: costs for work-in-process, freight charges, taxes, lost profits, prorated expenses, price increases (“bill-back” charge) if the quantity of Goods actually delivered is less than that required for quantity discount pricing granted based on the Order, and any other charges, expenses, or liabilities incurred by WDT. WDT may terminate this Agreement for convenience upon sixty (60) days’ notice to Buyer. Neither party shall terminate the Agreement for breach of any of its provisions by the other party without giving such other party advance written notice thereof and a reasonable time in which to cure the alleged breach, except in the event of (i) insolvency of such other party, or (ii) failure of Buyer to make payment when due, in either of which events the non-breaching party may terminate the Agreement immediately. Upon such termination for breach, the parties shall be entitled to rights and remedies available at law or provided by this Agreement, except to the extent excluded or limited by this Agreement. WDT, without terminating the Agreement, may decline to make further shipments of Goods in the event of a breach of the Agreement by Buyer, but should WDT elect to continue shipments despite the breach, such actions shall not constitute a waiver of Buyer’s breach or in any way affect WDT’s remedies therefor.

10. Trademark Usage

This Agreement does not authorize Buyer to use WDT’s trademarks. Any use of WDT’s trademarks must be authorized in writing by WDT under a separate agreement.

11. Gray Market

(i) Unless the Goods are retail products packaged for individual sale, Buyer may not sell, market, or distribute any unit of Goods apart from a completely assembled desktop, notebook, server, or consumer electronic system. Any unit of Goods that Buyer purchased from WDT that is sold, distributed, or discovered apart from a completely assembled desktop, notebook, server, or consumer electronic system shall be referred to as a Gray Market Item, or "GMI". (ii) If at any time Buyer breaches §11(i), WDT shall be entitled to recover liquidated damages equal to the greater of fifty thousand dollars (USD$50,000) or the value of the entire Lot (as defined herein) of Goods from which any one GMI is found ("1st Breach"). For purposes of these Terms & Conditions, "Lot" shall mean all Goods purchased by Buyer from WDT within the previous ninety (90) days. In addition, WDT may, in its sole discretion, (A) terminate the Agreement immediately upon notice to Buyer or (B) stop shipping Goods to Buyer for a period of two (2) weeks, commencing on the date that WDT issues a 1st Breach notice. (iii) If Buyer has breached §11(i) one (or more) additional times following the 1st Breach, in lieu of the liquidated damages specified in §11(ii), WDT shall be entitled to recover liquidated damages equal to the greater of one hundred fifty thousand dollars (USD $150,000) or three (3) times the value of the entire Lot of Goods from which any one GMI is found ("2nd Breach"). In addition, WDT may, in its sole discretion, (X) terminate the Agreement immediately upon notice to Buyer or (Y) stop shipping Goods to Buyer for a period of one (1) month, commencing on the date that WDT issues a 2nd Breach notice. BUYER ACKNOWLEDGES THAT WDT'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE IN THE EVENT OF BUYER'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER §11(i) AND THAT THE LIQUIDATED RECOVERY SET FORTH ABOVE, IN THE EVENT OF BUYER'S 1ST AND 2ND BREACH OF §11(i), ARE REASONABLE ESTIMATES OF WDT'S DAMAGES. THE LIQUIDATED RECOVERY PAYMENT BY BUYER TO WDT SHALL, THEREFORE, BE LIQUIDATED DAMAGES TO WDT. BUYER AND WDT FURTHER ACKNOWLEDGE THAT THE LIQUIDATED RECOVERY TO WDT PURSUANT TO THIS SECTION IS MATERIAL CONSIDERATION FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.