Terms and Conditions of Sale (Commercial)

Last Updated June 23, 2020

1. Controlling Provisions, Integration

In the absence of a written agreement for the purchase of Goods from Western Digital Technologies, Inc. (“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”). 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.

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.

12. Technical/Confidential Data, Inventions

The Agreement is for the sale and purchase of Goods only and confers on Buyer no right in, license under, access to, or entitlement of any kind to any of WDT’s technical data, including, but not limited to, designs, process technology, and drawings, or to WDT’s inventions (whether or not patentable) or trademarks (even if such technical data, inventions, or trademarks or any portion thereof result from work performed under or in the course of the Agreement, and even if Buyer has paid or is obligated to pay WDT for any part of the design and/or development of the Goods). Buyer shall not disclose to WDT any information that Buyer deems to be confidential or proprietary to Buyer, and no information or data, whether technical or otherwise, furnished to WDT by Buyer in connection with the Agreement shall be considered to be confidential or proprietary to Buyer. The use or disclosure by WDT of any such information or data shall not be restricted in any way unless (and only to the extent that) Buyer and WDT shall have entered into a separate written confidentiality agreement with respect to such specific information. Any legend or other notice on or pertaining to such information or material that is inconsistent herewith shall create no obligation of the part of WDT. Without limiting the foregoing, Buyer acknowledges and agrees that all product pricing, specifications, roadmaps, marketing plans, and other related information provided by WDT to Buyer is WDT’s confidential and proprietary information and that Buyer will not disclose such information to any third parties without WDT’s prior written consent. Buyer’s obligation to protect WDT’s confidential and proprietary information shall survive for a period of five (5) years from the date of disclosure by WDT.

13. Anti-Corruption

Buyer and its subsidiaries, directors, officers, employees, and other persons acting on its behalf shall at all times comply with the U.S. Foreign Corrupt Practices Act, as amended, the U.K. Bribery Act, and all applicable anti-corruption laws in the jurisdictions in which they operate (collectively, the “Anti-Corruption Laws”), and: (A) in connection with this Agreement or any transaction involving WDT, Buyer and its subsidiaries, directors, officers, employees, and other persons acting on its behalf shall not take any action, directly or indirectly, that may result in a violation of the Anti-Corruption Laws by Buyer or WDT, including, without limitation, making, offering, authorizing, or promising any payment, contribution, gift, business courtesy, bribe, rebate, kickback, or giving of any other thing of value, regardless of form or amount, to any (i) foreign or domestic government official or employee, (ii) employee of a foreign or domestic government-owned or government-controlled entity, (iii) foreign or domestic political party, political official, or candidate for political office, or (iv) any officer or employee of a public international organization, to receive favorable treatment in obtaining or retaining business, to pay for favorable treatment already secured, or to obtain a competitive advantage for any party; (B) in connection with any aspect of this Agreement or any transaction involving WDT, Buyer and its subsidiaries, directors, officers, employees, and other persons acting on its behalf shall not make, offer, authorize, or promise any payment, contribution, gift, business courtesy, bribe, rebate, kickback, or giving of any other thing of value, regardless of form or amount, to anyone to obtain or retain business or a business advantage; (C) if Buyer learns or has reason to know that conduct in violation of this Section has or may have occurred, then it shall immediately notify WDT of such conduct; (D) at WDT’s request, Buyer shall, where this is the case, certify in writing that conduct in violation of this Section has not occurred; (E) Buyer shall maintain accurate accounting of all expenses incurred in connection with WDT business; (F) Buyer represents that in the ten (10) years preceding the date of the quote provided by WDT, neither Buyer nor any of its subsidiaries has received notice from, made a voluntary disclosure to, or been assessed any fine or penalty by, the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.K. Serious Fraud Office, or any other governmental entity regarding alleged, possible, or actual violations of the Anti-Corruption Laws; and (G) WDT or a third party of its choosing has the right to access, review, and audit the books, records, and accounts of Buyer and any of its affiliates and subsidiaries, to the extent that they are relevant to this Agreement or any other transaction involving WDT in order to monitor and ensure Buyer’s compliance with this Section. Such access, audit and review shall be reasonable as to scope, place, date, and time. Should WDT reasonably determine that Buyer has violated this Section, WDT may immediately terminate this Agreement. Company shall not be required to pay any invoices or other amounts related to the violation of this Section.

14. Trade Agreements Act Certification

WDT makes no representations that Goods comply with the country of origin requirements of the laws of any country, including without limitation the Trade Agreements Act of 1979, Pub.L. 96-39, enacted July 26, 1979, codified at 19 U.S.C. ch.13. Any representation made by Buyer on this issue is made at Buyer's own risk and Buyer shall indemnify WDT for any liability relating to any such representation by Buyer. Any software included in or sold as a Good is a "commercial item" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, any such software is licensed to U.S. Government as an end user only and pursuant to the terms and conditions therein. Any software, documentation and related items and technology provided hereunder are Commercial Software and Commercial Technical Data as defined in DFARS 252.227-7015 and FAR 12.211. Any use, modification, reproduction, release, distribution, performance, display, or disclosure of the software, documentation, and related items and technology provided hereunder shall be in strict accordance with the manufacturer's standard commercial license and/or the terms and conditions of this Agreement, as applicable, as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), DFARS 252.227-7015, FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. If Buyer or a reseller of Goods from Buyer is permitted under this Agreement to provide such Goods or documentation and/or related items and technology to any third party, including any agency of the U.S. or any state and local government, Buyer shall include the legend set forth above in any agreement governing the provision of such items.

15. Compliance with Law

Unless notified otherwise in writing by WDT, Buyer shall comply, and bear responsibility for compliance with all applicable laws, relevant interpretative guidance, enforcement policies, authority administrative practices, good manufacturing practices and requirements of enforcement bodies in relation to its activities under this Agreement and will obtain all necessary permits, licenses and consents of all governmental authorities necessary for the performance of its activities under this Agreement. Without prejudice to the generality of the foregoing, for Goods that are imported into an European Union ("EU") member state by Buyer or its customers, unless notified otherwise in writing by WDT, Buyer shall comply with (a) all requirements under relevant EU Directives and Regulations including, without limitation, the following as may from time to time be amended, as well as EU legislation repealing and replacing the following in the Territory: (i) Regulation 1907/2006 (REACH); (ii) Directive 2011/65 (RoHS 2); (iii) Directive 2012/19 (WEEE); (iv) Directive 94/62/EC (packaging and packaging waste); (v) Directive 2006/66 (batteries); (vi) Directive 2001/95 (general product safety); and (b) any relevant non-harmonized EU Member State national laws.

16. Miscellaneous

The terms and provisions of the Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of California without giving effect to its conflicts of law provisions. Buyer consents to venue and jurisdiction in any state or federal court located in Orange County, California, and waives any arguments of forum non conveniens. Buyer irrevocably designates as additional agents for service of process: any person designated by Buyer, in a document submitted by Buyer to WDT, as Buyer's agent for service of process; any office, division, or subsidiary of Buyer located in the U.S.; and any partner, majority shareholder, or employee of Buyer located in the U.S. Buyer waives the right to contest the validity of service of process, including the right to move to quash, if Buyer obtains actual notice of legal action commenced by WDT against Buyer. In the event either party shall commence any action or proceeding to collect amounts due from the other party under the Agreement, the prevailing party in such action or proceeding shall be entitled to receive from the other party all its costs and expenses, including reasonable attorney fees, incurred in connection with such action or proceeding, in addition to any other relief to which such party is granted. If any provision contained herein is declared invalid or unenforceable, the remainder of the Agreement shall be deemed severable and shall remain in full force and effect.