1. DEFINITIONS. "Affiliate" means any entity that Controls, is Controlled by, or is under common Control with another person or entity. "Channel Partner" means a party other than Company or a Company Affiliate that provides a Product to a Recipient, whether directly or indirectly, for Evaluation. "Control" means more than 50% of the ownership of voting shares, by contract or otherwise but only so long as such Control exists. "Evaluation" means a customer’s evaluation of one or more Company Products. "Products" means the hardware and or software provided in connection with an Evaluation. "Recipient" means the party to whom Products are provided for Evaluation. "Company" refers to Western Digital Technologies, Inc. and/or its Affiliates. "Trial Period" means the period of time agreed to in writing by Company for a Recipient’s Evaluation of a Product or, if Company has not agreed to a period of time in writing, seventy-five (75) days from the date the Product is shipped by Company.
2. RIGHTS AND LIMITATIONS. These Evaluation Terms apply to products provided by Company in connection with an Evaluation. Unless otherwise indicated in writing by Company, Recipient may only use the Products: (i) at the delivery location (or, if not the site of the Evaluation, another location approved by Company in writing in advance), (ii) during the Trial Period and (iii) for the purpose of evaluating the Product(s) to determine whether to purchase or keep them. Recipient may not, without the written approval of Company, use Products in a production environment nor may it sell, transfer, lend or otherwise make Products or any related documentation available to any third party.
3. DELIVERY, TITLE & RISK OF LOSS. Products shall be shipped DAP (Incoterms 2010) Recipient’s designated shipping point and Recipient shall be the importer of record, if applicable. Except as otherwise provided in Section 4 hereof, title to and ownership of any Products, including related documentation, and all patents, copyrights, trade secrets, trademarks and other proprietary rights therein, shall remain at all times with Company or its applicable third party licensors.
4. RETURNING OR RETAINING PRODUCTS. When returning a Product, Recipient shall securely package (per Company instructions) and ship the Products and related materials to an address specified by Company. Unless otherwise agreed in writing by Company, return shipping shall be FCA (Incoterms 2010) Company’s designated point of delivery except that return shipping for Company’s InfiniFlash Products shall be DDP (Incoterms 2010) Company’s designated point of delivery. Recipient shall ensure that all data stored on any Product is deleted before the return shipment. If Recipient does not ship a Product for return before the end of the Trial Period, Recipient shall be deemed to have purchased such Product (or a license to the Product, in the case of Software) as of the expiration of the Trial Period and title to Product hardware shall pass to Recipient as of the time of purchase. The purchase shall be deemed to have taken place between Company and Recipient, if the Product was provided to Recipient directly from Company, or between the Channel Partner and Recipient, if the Product was provided through the Channel Partner. Purchases from Company shall be governed by Company’s standard terms and conditions of sale, which are available upon request.
5. PAYMENT FOR NON-RETURN. If a Product has not been shipped for return before the end of the Trial Period, Company may, at any time after the Trial Period, invoice Recipient for the Product. If the Product was provided to Recipient through a Channel Partner, Company may elect to invoice Recipient or the Channel Partner for the Product. The purchase price for the Product shall be the Company MSRP in effect at the end of the Trial Period. Invoices are due within thirty (30) days of the date of invoice.
6. PROFESSIONAL SERVICES AND SUPPORT. If Company provides services to install and/or initiate operation of the Products ("Services"), then a summary description of the Services shall be as described on Company’s designated website or will be made available upon request. Services are deemed accepted immediately upon completion. Recipient acknowledges that no product development activity will be included as part of the Services. Company may engage trained and experienced third-party resources to deliver all or part of the Services.
7. INTELLECTUAL PROPERTY MATTERS. Use of the Products may require corresponding software ("Software") that is subject to the terms of the end user license agreement provided in connection with the Software. Recipient may need to download the Software (at no charge) or the Software may come pre-installed on the Product, in which case Recipient will review and be bound by the end user license agreement that is either presented to Recipient at the time of download or that otherwise accompanies the Software. Recipient shall not: (i) copy, uninstall, or otherwise remove the Software from the Product; (ii) remove or alter copyright or other proprietary notices on or in any Product; or (iii) knowingly take any action that would adversely affect Company’s title to and ownership of any Product.
8. FEEDBACK. Recipient may provide feedback to Company concerning the functionality and performance of the Products, including identifying potential errors and improvements ("Feedback"). To the extent permitted by law, Recipient grants Company an irrevocable, perpetual license to use the Feedback, free of charge, without obtaining any further consent from Recipient. Recipient will maintain the confidentiality of all Feedback, all Product performance data, and all other information obtained through evaluation of the Products, unless otherwise agreed by the parties.
9. CHANNEL PARTNER RESPONSIBILITIES. If Channel Partner provides a Product to a Recipient for an Evaluation, it must first obtain the Recipient’s acceptance of these Evaluation Terms. If a Recipient fails to ship the Product for return by the end of the Trial Period and Company elects to invoice Channel Partner for the list price of the Product, Channel Partner shall be responsible to pay the invoice whether or not it receives payment from Recipient.
10. NO WARRANTY. EXCEPT FOR A DEEMED PURCHASE OF PRODUCTS UNDER SECTION 4 HEREOF, THE PRODUCTS ARE PROVIDED "AS IS". ALL SERVICES ARE PROVIDED "AS IS". COMPANY DOES NOT WARRANT THAT THE PRODUCTS ARE NEW OR WILL OPERATE WITHOUT ERROR OR INTERRUPTION. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. RECIPIENT ASSUMES ALL RISKS AND COSTS OF USE AND COMPANY ASSUMES NO SUPPORT OBLIGATIONS. RECIPIENT ASSUMES ALL RISKS AND COSTS OF USE AND COMPANY ASSUMES NO SUPPORT OBLIGATIONS FOR THE PRODUCTS.
11. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL COMPANY HAVE LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO AN EVALUATION (WHETHER THE CLAIM IS BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) EXCEED THE MSRP OF THE PRODUCTS AND SERVICES SUBJECT TO THESE TERMS.
12.1 Definitions. "Confidential Information" means all confidential or proprietary information that is made available or made accessible by Company to the Recipient or Channel Partner (each, a "Receiving Party") in connection with these Evaluation Terms, including, without limitation, information about Company’s business, finances, operations, customers, suppliers, employees, products, plans or technology, if (i) such information is in writing and marked as proprietary or confidential, or (ii) such information is disclosed orally or visually and identified as proprietary or confidential, at or prior to disclosure, or (iii) it would be apparent to a reasonable person, familiar with Company and the industry in which it operates, that such information is of a proprietary or confidential nature. The Products (including related Software and documentation) and these Terms are also Confidential Information.
12.2 Treatment of Confidential Information. Receiving Party shall hold all Confidential Information of Disclosing Party in confidence and protect such Confidential Information from unauthorized use, publication or dissemination with the same degree of care normally used to protect its own confidential information, but in no event less than a reasonable degree of care. Receiving Party shall not disclose Confidential Information to any person outside of Receiving Party’s organization (other than Receiving Party’s counsel, accountants or financial advisors, and then only if the same are bound to protect the confidentiality thereof). Receiving Party shall disclose Confidential Information only to persons within Receiving Party’s organization who have a need to know in the course of performing their duties and who are bound to protect the confidentiality of such Confidential Information. Receiving Party shall use Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of any other party. Recipient shall not publish, make accessible to or disclose to any third party the results of any benchmark or other tests, absent Company’s prior written consent.
12.3 Exceptions. Receiving Party’s obligations in Section 11.2 shall not apply with respect to Confidential Information if and to the extent that Receiving Party can show that such Confidential Information: (i) is or becomes generally known to the public through no wrongful act on the part of a Receiving Party; (ii) is in Receiving Party’s possession at the time of disclosure other than as a result of a breach of any legal obligation by Receiving Party or any other party from whom Receiving Party has obtained such information; (iii) becomes known to Receiving Party through disclosure by sources other than Company having the legal right to possess and disclose such Confidential Information; (iv) is developed independently by Receiving Party without use of or reference to any Confidential Information; or (v) is required to be disclosed by Receiving Party under a valid court order or to comply with applicable laws or governmental regulations, provided that Receiving Party provides to Disclosing Party prior written notice of such disclosure and a reasonable opportunity to contest such disclosure.
13. MISCELLANEOUS. Either party may terminate these Evaluation Terms at any time upon written notice to the other party. Recipient shall ship Products for return according to Company’s instructions within two business days of termination. Products that are not returned within the required period shall be deemed to have been purchased by the Recipient pursuant to Section 4 hereof. Recipient will comply with all applicable export regulations and all applicable laws and regulations relating to its use of Company Products, including without limitation those relating to privacy and personal data protection. If Recipient is located in the United States or Canada, these Terms will be governed by the laws of the State of California without reference to conflict of law principles, and any action or proceeding arising from or relating to these Evaluation Terms shall be governed exclusively by state or federal courts having jurisdiction in Santa Clara County, California. If Recipient is located outside of the United States or Canada, these Terms will be governed by the laws of the Republic of Ireland without reference to conflict of law principles, and any action or proceeding arising from or relating to these Evaluation Terms shall be exclusively and finally settled by binding arbitration (in English language) in Dublin, Ireland by one or more arbitrators appointed in accordance with the International Chamber of Commerce ("ICC") Arbitration Rules. The parties and arbitrator or arbitrators shall use reasonable, diligent efforts to complete the arbitration within sixty (60) calendar days after the appointment of the arbitrator or arbitrators under this Section. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The parties and arbitrator or arbitrators shall use reasonable, diligent efforts to complete the arbitration within sixty (60) calendar days after the appointment of the arbitrator or arbitrators under this Section. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The preceding terms of venue do not apply to a party’s right to enforce its confidential information and/or intellectual property rights. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Evaluation Terms. Recipient shall not assign any rights or obligations hereunder without Company’s prior written consent. The headings in the Terms are for convenience of reference only and shall not be considered in construing this Terms. If any provision of the Terms is held by a court of competent jurisdiction to be unenforceable for any reason, the validity of the remaining provisions shall not be affected.