united-states contract-law warranties adhesion-contracts
Can a product&#39;s manufacturer attach conditions (such as an arbitration agreement) to the sale of its product by third parties?
<h2>TL;DR</h2>

<p><strong>Is the contract of sale, including binding arbitration, referenced on the packaging of Western Digital (WD) products legally binding?</strong></p>

<p>To summarise the relevant facts:</p>

<ul>
<li>This is a contract of sale between WD and the consumer, and the packaging of products from WD subsidiary SanDisk claim that WD is the seller of record. However, these products are available for sale from third parties, making it unclear who the actual seller is. Whether privity of contract would prevent WD from entering into such a contract is therefore unclear.</li>
<li>The existence of said contract is marked on the box, and the actual terms are available online and inside the box.</li>
<li>As worded, this is a <strong>contract of sale</strong> which takes effect at purchase time. It is <strong>not</strong> a "shrink wrap" contract or license agreement; the text of the contract does not contain a license to the drive's firmware or other copyrighted content.</li>
</ul>

<hr>

<p>On the retail packaging of a WD hard drive I recently purchased, I noticed text stating that the purchase is subject to terms and conditions listed on the WD website and inside the box, including binding arbitration (<a href="http://www.wdc.com/wdproducts/library/QIG/global/4079-705120.pdf" rel="nofollow noreferrer">example</a>). To clarify, this is <strong>not</strong> a license agreement; the contract does not contain a copyright or other IP license.</p>

<p>I understand that WD could refuse warranty service for a variety of valid reasons and shouldn't be liable for data loss due to failure, and it can place disclaimers on the product that are enforceable. However, what strikes me as legally questionable is the manufacturer's attempt to bind the buyer to a contract for a sale it is not involved in (<em>see edit below</em>). I only found this text on the bottom of the box after purchase and was never presented with a contract to sign at the time of the purchase that had WD as a party to it. </p>

<p>Given that the implied contract of sale is between the retailer and consumer, can a company impose conditions on the sale of products that it manufactured without being a party to said contract of sale? Under what circumstances, if any, is the arbitration agreement enforceable? Would the terms apply even if I never sought warranty service?</p>

<p>Indeed, does the manufacturer have any ownership or other rights (aside from intellectual property) on the physical products sold by a retailer? If so, does this enable the manufacturer to impose conditions of this sort? (For example, can an authorized retailer contract between the manufacturer and retailer allow or require the latter to execute such an agreement on behalf of the manufacturer without the consumer's knowledge?) Is there an exception to <a href="https://en.wikipedia.org/wiki/Privity_of_contract" rel="nofollow noreferrer">privity of contract</a> that allows this?</p>

<hr>

<p>On a routine trip to Best Buy, I found the following text on the packaging of a SanDisk product (WD acquired SanDisk in 2016):</p>

<blockquote>
  <p>Western Digital Technologies, Inc. is the seller of record and licensee in the Americas of SanDisk® products.</p>
</blockquote>

<p>The verbiage here strongly suggests that despite the fact that I'm buying the product from a retailer, the actual owner of the product prior to its sale is WD.</p>

<p>If the owner is indeed WD, how am I able to enter into a contract of sale with the <em>retailer</em> to purchase the product? Am I missing something?</p>

<p>The central question, as I now understand it, is about WD's position that <em>they</em> are the seller of record, and the contract is between them and you. The complication is that usually, you don't go to WD itself and buy their product, you buy from an authorized distributor / reseller. It would thus <em>seem</em> that you are buying from Big Buy, not WD, and whatever contract you have is with BB, not WD. In actuality, BB is merely in possession of the drive, but WD owns it, and BB acts as WDs agent in the transaction. (BB does not have to sell units back to WD, they return them). While the retail seller BB will collect taxes at the point of sale, WD will be legally responsible for those taxes.</p>

<p>The liability that BB has to the customer is not clear. Certain things such as the policy of return within N days, must retain original packaging, include receipt, are probably set by the agent BB, hence they are liable on those points. Also, if they re-package and re-sell returned items defectively (wrong cable, for instance), they are liable. Liability for manufacturing defecta, OTOH, would be the liability of the seller WD.</p>

<p>WD products are sold with no warranty, if not purchased from an authorized distributor (they have disclaimed any warranty). If you buy in an "authorized" manner, you are subject to the terms of their sales contract. It is legal to buy a drive from a neighbor (assuming that they own it). You have virtually no recourse against WD in that case: even if the drive is in the original box, unopened and unused, if it is a brick, you have to talk to the neighbor, and not WD (and the neighbor almost certainly has no liability). I leave open the possibility that there are statutory liability laws that would cover the case that the drive exploded and killed you, due to manufacturing defect.</p>

<p>As a general rule, if you purchased something that had a notice (like yours) ON THE PACKAGE that its use was "subject to terms..." then you are legally deemed to have notice of such terms, as incorporated by reference. By continuing to use the product, once you have had access to such terms, you may certainly be deemed to have manifested your intent to be legally bound by them.  The more interesting question arises when you had "no idea" there were other applicable terms at the time of purchase, and what rights or obligations you may have (if any) to return the product when you refuse to agree to those terms.  What if you were to buy the unit second-hand, without packaging or document inserts?</p>
