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 Services hereunder.  If expedited shipment becomes necessary to fulfill Supplier's delivery obligations, Supplier shall pay the difference between the expedited charges and ordinary freight charges. In addition to other remedies available to Buyer, if Supplier fails to deliver Products and/or Services on the delivery date, Buyer may purchase substitute products and/or services elsewhere, and Supplier shall reimburse Buyer for additional out-of-pocket costs incurred as a result of the purchase of such substitute products and/or services.  Over-shipments of any Products in excess of quantities ordered by the Buyer, or any Products delivered to Buyer prior to the delivery dates specified by Buyer, will in each case (i) be held at Supplier's cost, risk, and expense for a reasonable time awaiting shipping instructions, and (ii) constitute a breach of this Order by Supplier.  Return shipping charges for over-shipments, or premature delivery, shall be in each case at Supplier's expense.  Unless otherwise specified, all orders shall be packed, shipped, marked, and otherwise prepared for shipment in containers that are clearly labeled with the name of Supplier, the contents, the date, the quantity, and the purchase order number clearly stated and visible thereon and in a manner which is: (a) in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate and in accordance with ICC regulations, and (c) adequate to ensure safe arrival at the named destination.  Supplier shall bear responsibility for Product damage resulting from improper packaging. An itemized packing sheet must accompany all shipments.  Any provisions of this Order for the delivery of Products or the rendering of Services by Supplier in installments shall not be construed as making the obligations of Supplier severable.

7. Right to Inspect and Reject

Buyer reserves the right to inspect and test all Products and/or Services within a reasonable time after delivery to Buyer. In addition to all other rights provided by law, Buyer may reject any Products and/or Services that: (i) are damaged, (ii) do not conform to the specifications set forth in this Order and those which are provided to Supplier thereafter as well as all descriptions, models, samples, and other information and materials made available by Supplier (collectively "Specifications") or the warranties, (iii) are not shipped correctly or on time, or (iv) are not properly packaged as required herein.  Any return and/or replacement of Products hereunder shall be at Supplier's sole cost and expense. At Buyer's option, Supplier shall (a) replace such rejected Products in the manner and within the time specified by Buyer, (b) refund or credit Buyer's account for the purchase price of such rejected Products, (c) re-perform the Services until they meet the warranties, or (d) reimburse Buyer for the costs incurred in engaging a third-party to provide substitute products and/or services, and in each case Buyer may terminate the Order for default.  Acceptance of any part of a shipment shall not bind Buyer to accept the remainder of that shipment or any future shipments, nor constitute a waiver of Buyer's acceptance or return rights herein.

8. Warranties

Supplier represents and warrants to Buyer that for a period of five years from the date of delivery to Buyer (the "Warranty Period"), each Product and all components thereof (including components specified by Buyer): (i) shall conform to this Order and to the applicable Specifications and approved samples; (ii) shall be free from defects in materials, workmanship, and design, unless the design was solely supplied by Buyer; (iii) shall be safe and fit for the purposes intended by Buyer; (iv) do not infringe upon any third-party patent, copyright, trade secret, trade name, trademark, service mark, or other intellectual property or proprietary right; (v) and shall be free from liens and encumbrances and other restrictions. Supplier warrants that at time of delivery to Buyer, the Products shall be new and not contain used or reconditioned parts (unless otherwise specified). Supplier represents and warrants that all Services shall be performed in a timely and professional manner and in accordance with Specifications and accepted industry standards. All warranties shall run to Buyer and Buyer's customers. Supplier warrants that Supplier, and its agents and subcontractors, and the Products and/or Services shall comply with all applicable laws, rules, and regulations, including, without limitation, those relating to: (a) import, export, and re-export of commodities, materials, technical data, and software, (b) health and safety, (c) labor and employment, (d) the environment, (e) use, treatment, disposal, and handling of hazardous chemicals and materials, and (f) data privacy, data protection, and security breach notice laws and regulations. Supplier represents and warrants to Buyer it (I) will not use, disclose, or transfer across borders any information that is processed for Buyer that may identify an individual (“personal data”), except to the extent necessary to perform under this Order and in accordance with Section 19 below, and (II) will maintain reasonable technical, administrative, and physical data security for all personal data, and will cooperate fully with Buyer’s requests for access to, correction of, and destruction of personal data in Supplier’s possession or control. Supplier further represents and warrants that the Products and/or Services are compliant with Buyer's specification 2096-001669 (WD Guidelines for Materials, Components & Products), as amended from time to time ("WD Guidelines"), a copy of which is available upon request.  Supplier shall also comply with the Responsible Business Alliance (formerly, the Electronic Industry Citizenship   Coalition) code of conduct (“RBA”), as updated from time to time and available at www.responsiblebusiness.org/standards/code-of-conduct/. Supplier must also require that its own suppliers comply with all applicable laws, rules, regulations, the WD Guidelines, and the RBA. Supplier shall provide Buyer a certificate(s) of compliance with applicable laws, rules, regulations, WD Guidelines and the RBA, if requested.

Supplier further represents and warrants to Buyer that any software or firmware included in the Products or otherwise furnished in connection with this Order does not (i) contain any so-called "open source" or "free" software (e.g., Linux, GPL, LGPL, PERL, Mozilla Public License, SCSL, SISL) or (ii) contain any code, programming instruction, or set of instructions that is intentionally constructed to damage, interfere with, or otherwise adversely affect either the operation of the products of Buyer into which the Products may be incorporated or Buyer's systems. If any Products and/or Services include or are associated with hazardous materials, Supplier represents and warrants that Supplier understands the nature of, and hazards associated with, the handling, transportation, and use of such hazardous materials. Prior to causing hazardous materials to be on Buyer's premises, Supplier shall provide Buyer with Safety Data Sheets in English, as well as in the applicable local language, pursuant to applicable laws and regulations, and any other documentation reasonably necessary to enable Buyer to comply with applicable laws and regulations, and obtain written approval from Buyer's Environmental Health and Safety Department. Upon a breach of any warranty, in addition to any other remedies available to Buyer in law or equity, Buyer may, at its sole election and without additional cost, require Supplier to (i) repair or replace the Products, (ii) re-perform the Services, (iii) refund to Buyer all amounts paid by Buyer for the Products which the Buyer returns, or (iv) reimburse Buyer the costs incurred by Buyer to have a third-party correct the non-conformance or provide substitute products and/or services.  The foregoing warranties shall constitute conditions and are in addition to all other warranties, whether express or implied, and shall survive any delivery, inspection, acceptance or payment by Buyer. Buyer's approval of Supplier's material or design shall not relieve Supplier of the warranties herein. 

9. California Proposition 65

Without limiting the warranties referenced in Section 8 above, Supplier further represents and warrants that all Products and Product components that Supplier supplies to Buyer may be sold by Buyer to consumers in California without any warning required by California Health & Safety Code Sections 25249.5 et seq. ("Proposition 65").  Supplier may not supply Products or Product components to Buyer that are labeled with, or accompanied by, Proposition 65 warnings without the prior written approval of Buyer. Should it become known to Supplier that a Proposition 65 warning may be required for sales to consumers in California of any Product or Product components it has supplied or intends to supply to Buyer, then Supplier shall notify Buyer immediately and provide complete information on the specific Product component or other basis for a Proposition 65 warning. In such event, Buyer may, in its sole discretion, and in addition to all other rights and remedies available to Buyer, do any or all of the following: (i) refuse to accept additional Products from Supplier; (ii) return any unsold Products to Supplier for a full credit; (iii) require Supplier to provide Proposition 65-compliant warnings on the labels of, or accompanying any, additional products to be supplied to Buyer; or (iv) require Supplier to re-label or otherwise ensure that Proposition 65-compliant warnings are provided for any Products already supplied to Buyer that are intended for sale to consumers in California.

10. Materials

Supplier shall not use, reproduce, appropriate for, or disclose to anyone any material, equipment, tooling, designs, dyes, mods, jigs, fixtures, patterns, machinery special test equipment, special taps and gauges, or other property or information furnished by, paid for, or charged against Buyer, or which have had their cost amortized ("Material"), without Buyer's prior written approval. Title to all Material shall remain in Buyer, and the Material shall be clearly marked to indicate Buyer's ownership and shall be segregated on Supplier's premises. Supplier shall bear the risk of loss or damage to the Material until returned to Buyer and Supplier shall not loan, rent, lease, use as collateral, or otherwise encumber the Material. All Material shall be returned to Buyer, or disposed of as specified by Buyer, at termination or completion of this Order, or earlier if requested by Buyer. 

11. Indemnification

Supplier shall defend, indemnify, and hold harmless Buyer and its affiliates, customers, and each of their respective successors, assigns, employees, directors, and agents with respect to all liabilities, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, relating to or arising out of any actual or alleged claims for: (i) patent, copyright, or trademark infringement, trade secret misappropriation, or violation of any other intellectual property or proprietary right, arising out of the purchase, sale, or use of the Products and/or Services by Buyer, its agents, or customers; (ii) Supplier's performance or breach of this Order, including all warranties; and (iii) death, personal injury, or property damage arising out of the use of the Products and/or Services by Buyer, its agents, or customers. If an intellectual property indemnification or misappropriation claim is or is likely to be made, then in addition to, and without limiting, the indemnification obligations in the immediately preceding sentence, Supplier shall, at its own expense, exercise the first of the following remedies that is practicable: (a) obtain for Buyer the right to continue to use, sell, and license the Products and Services consistent with this Order; (b) modify Products and Services so they are non-infringing and in compliance with this Order; (c) replace the infringing Products and Services, and any other affected Products or Services, with non-infringing ones that comply with this Order; or (d) at Buyer's request, accept the cancellation of infringing Services and the return of infringing Products and refund any amounts paid.

12. Insurance and Security

Supplier shall obtain and keep (until completion of this Order), worker's compensation and general comprehensive liability insurance covering each occurrence of bodily injury and property damage in the amount of not less than USD$1,000,000 combined single limit, with special endorsements providing coverage for: (i) Products and Completed Operations Liability; (ii) Blanket Broad Form Supplier's Liability; (iii) Blanket Contractual Liability; and (iv) Automobile Liability. If requested, Supplier shall furnish Buyer with a certificate evidencing the required insurance. If Supplier or any of its employees, consultants, or agents enter Buyer's premises in the course of fulfilling this Order, they shall at all times comply with Buyer's safety and security policy, a copy of which is available upon request.