Terms and Conditions of Sale (Commercial)

Last Updated September 27, 2024

In the absence of a written agreement for the purchase of Goods from Sandisk Technologies, Inc. and/or its Affiliates (“Company”), these Terms & Conditions of Sale (“Terms & Conditions”), together with the quote provided by Company, constitute the entire agreement (“Agreement”) between Company 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 Company in connection with such quote (“Goods”). “Affiliates” shall mean any company directly or indirectly controlling, being controlled by, or under common control with SanDisk Technologies, Inc. In the event of a conflict between the provisions of these Terms & Conditions and the quote prepared by Company and provided to Buyer, the following order of priority shall apply to resolve such conflict: (i) the terms appearing in the quote provided by Company and (ii) these Terms & Conditions. Company expressly rejects any inconsistent terms in Buyer’s purchaser order, and Company 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 Company for any of the Goods shall constitute Buyer’s acceptance of the terms hereof and, if Buyer’s Order constitutes an offer, Company’s acceptance is expressly conditional on Buyer’s unqualified agreement to each of the terms and conditions of the Agreement. Unless authorized by Company to purchase Goods through Company’s online store at https://www.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 Company unless made in writing and signed by a duly authorized representative of Company. No representations or statements of any kind made by any representative or agent of Company which are not stated herein shall be binding on Company. 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.

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

Buyer may only reschedule the delivery date for an Order if Buyer provides a written rescheduling request to Company at least fourteen (14) or more days prior to the original scheduled delivery date and Company 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 Company’s applicable lead time requirements.

Buyer shall pay the net invoiced amount to Company in United States currency within thirty (30) days from the date of invoice. Company may charge a late fee equal to ten percent (10%) per annum on all outstanding invoiced amounts not paid within thirty (30) days. Company reserves the right at any time to suspend further shipments of Goods if Buyer does not comply with payment terms specified herein or in Company’s invoice. In such event, Buyer shall comply with any new payment terms prescribed by Company 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 Company, and acknowledges that Company 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 Company in connection therewith. Buyer grants to Company 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 Company shall have no liability to Buyer for any damages by reason of Company’s repossession of any Goods, including, without limitation, any possible liability for loss of business, and Buyer agrees to hold Company harmless from any such claims by third parties. Buyer agrees to reimburse Company 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 Company 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.

Unless separate delivery terms are mutually agreed to by the parties in writing, the Goods shall be delivered ExWorks, or if Company elects to pay shipping, CPT (Incoterms 2020) to Company’s plant of manufacture, first airport/port of entry, or local distribution center, as determined by Company in its discretion. In the case of orders through Company's online store, currently located at https://www.westerndigital.com ("Company Store"), the Incoterm shall be DDP (Incoterms 2020) to Buyer's specified delivery location, unless otherwise mutually agreed to by the parties in writing. 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 Company 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 Company. Company 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 Company’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 Company’s reasonable efforts, fire, flood, storm or other act of God or any other cause whether similar or dissimilar beyond Company’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 Company is unable to wholly or partially perform its obligations to ship Goods because of any Excusable Delay, Company shall be relieved of such obligations without further liability. In the event that demand for any Company products which comprise any of the Goods exceeds Company’s ability to produce and ship such products as ordered, Company may allocate production and shipment among its customers as Company deems warranted by the circumstances, and to the extent that such allocations of Goods to Buyer do not fulfill Company’s obligations under the Agreement, Company shall not be liable.

Subject to the limitations below, Company warrants that at the time of shipment, Goods of Company's own manufacture will be free from defects in material and workmanship and will conform to applicable Company 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 Company, which warranty period shall commence upon shipment of the Goods to Buyer, and such warranty shall be subject to the limitations of Company'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 Company (on the face thereof or otherwise) as "incomplete" or "out of specification." The foregoing limited warranty shall not apply and Company 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 Company's examination of the Goods, Company determines that any of Company'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 COMPANY'S SOLE WARRANTY. COMPANY 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 COMPANY AND EXCLUDED. Subject to the limitations below, Buyer and Company expressly agree that Buyer's sole and exclusive remedy, and Company's sole and exclusive liability, for breach of the foregoing warranty shall be to, at Company'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 Company elects to repair or replace Goods, Company shall have a reasonable time, but in no event less than forty-five (45) days, in which to make the repair or replacement. Company'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.

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 Company only when and if authorized by Company by means of a Return Material Authorization (“RMA”) number assigned by Company through Company’s web-based RMA tool, in compliance with, and subject to the terms and conditions of, Company’s RMA Policy, found at https://www.westerndigital.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 Company by Buyer shall remain in Buyer until final acceptance and approval of such returned Goods by Company at the designated location, whereupon title and risk of loss shall pass to Company. Buyer shall not dispose of any allegedly deficient Goods in any manner without Company’s prior written authorization.

Buyer has no right to cancel, suspend, or place a “hold” on Company’s performance under the Agreement in whole or in part. Buyer’s liability for any such action taken without Company’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 Company. Company 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. Company, 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 Company elect to continue shipments despite the breach, such actions shall not constitute a waiver of Buyer’s breach or in any way affect Company’s remedies therefor.

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

(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. Furthermore, unless you have been approved by Company to be a reseller and agreed to the Reseller Supplemental Terms, purchase of Goods for resale, via the Company Store, is strictly prohibited. Any unit of Goods that Buyer purchased from Company 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), Company 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 Company within the previous ninety (90) days. In addition, Company 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 Company 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), Company 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, Company 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 Company issues a 2nd Breach notice. BUYER ACKNOWLEDGES THAT COMPANY'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 COMPANY'S DAMAGES. THE LIQUIDATED RECOVERY PAYMENT BY BUYER TO COMPANY SHALL, THEREFORE, BE LIQUIDATED DAMAGES TO COMPANY. BUYER AND COMPANY FURTHER ACKNOWLEDGE THAT THE LIQUIDATED RECOVERY TO COMPANY PURSUANT TO THIS SECTION IS MATERIAL CONSIDERATION FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.

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 Company’s technical data, including, but not limited to, designs, process technology, and drawings, or to Company’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 Company for any part of the design and/or development of the Goods). Buyer shall not disclose to Company any information that Buyer deems to be confidential or proprietary to Buyer, and no information or data, whether technical or otherwise, furnished to Company by Buyer in connection with the Agreement shall be considered to be confidential or proprietary to Buyer. The use or disclosure by Company of any such information or data shall not be restricted in any way unless (and only to the extent that) Buyer and Company 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 Company. Without limiting the foregoing, Buyer acknowledges and agrees that all product pricing, specifications, roadmaps, marketing plans, and other related information provided by Company to Buyer is Company’s confidential and proprietary information and that Buyer will not disclose such information to any third parties without Company’s prior written consent. Buyer’s obligation to protect Company’s confidential and proprietary information shall survive for a period of five (5) years from the date of disclosure by Company.

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 Company, 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 Company, 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 Company, 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 Company of such conduct; (D) at Company’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 Company business; (F) Buyer represents that in the ten (10) years preceding the date of the quote provided by Company, 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) Company 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 Company 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 Company reasonably determine that Buyer has violated this Section, Company may immediately terminate this Agreement. Company shall not be required to pay any invoices or other amounts related to the violation of this Section.

Company 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 Company 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.

Unless notified otherwise in writing by Company, 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 Company, 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. For the avoidance of doubts it is further clarified that Buyer is responsible for collecting, reporting and paying to local authorities all taxes and levies (including copyright levies) applicable in the Country of import. Buyer shall neither sell nor directly or indirectly transfer any Goods or related technical data or software to: (i) any person, company or other if the Buyer knows or has reason to believe that the Goods, software or technical data will be re-exported, sold, transferred in violation of U.S., European Union, United Nations or applicable local law and regulations, (ii) any entity or individual appearing on any of the lost of prohibited persons or entities of such jurisdictions, or (iii) any person, company or other entity if Buyer is aware of or has grounds for suspecting or knows that such Goods, software or technical data may be intended, in their entirety or part, or are of use in nuclear, chemical or biological weapons.

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 Company, 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 Company 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.