Please read this Lyve Storage as a Service agreement carefully. By clicking to accept the terms of this Lyve Storage As A Service agreement for a free trial or by taking any step to set up, access, or use the Service, your company (“Company”) accepts all the terms and conditions of this Lyve Storage as a Service agreement. By your accepting these terms for your company, you represent that you are an authorized representative who has the authority to legally bind your company to this Lyve Storage as a Service agreement. If you do not agree to these terms, do not click to accept the terms, and do not set up, access, or use the Services.
This Lyve Storage as a Services agreement (“Agreement”) is entered into by the applicable Seagate entity(ies) below (individually, “Seagate”) as of the date Company accepts these terms (“Effective Date”). Where Seagate provides Services to Company in a Territory, as identified below, then the applicable Seagate party designated below for such Territory will be deemed to provide such Services. Company and each Seagate party providing Services hereunder are parties to the Agreement for such Territory.
Seagate Technology LLC
47488 Kato Road, Fremont, CA 94538 USA
Seagate Technology (Netherlands) B.V.
Tupolevlaan 105, 1119 PA Schiphol-Rijk, The Netherlands
Lyve (SG) PTE. LTD.
90 Woodlands Avenue 7, Singapore (737911)
Nippon Seagate, Inc.
Tennoz Parkside Bldg., 2-5-8 Higashi-Shinagawa, Shinagawa-ku, Tokyo, Japan
Company agrees as follows:
1.1 For the purposes of this Agreement, these initially capitalized words have the following meanings:
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, a party hereto.
“Company Data” means any data that Company or any of its Users inputs or transfers into the Service for processing, hosting, computation, collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, transmission, dissemination, or otherwise making available, alignment, combination, restriction, erasure, or destruction, as part of the Services, including any personally identifiable information forming part of such data.
“Documentation” means the then-current software user and administrator manuals and documentation regarding the use of the Services made available by Seagate to customers of the Services, including additional, updated, or revised documentation made available to Company by Seagate from time to time on the Portal.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Portal” is defined as each of the websites made available and identified by Seagate for ordering, accessing, and managing the Services. As of the Effective Date, the Lyve Cloud Services Portal is located at https://<account_id>.console.lyvecloud.seagate.com.
“Seagate Lyve Cloud” means the computer software applications, tools, application programming interfaces, and connectors provided by Seagate as its data storage online platform as a service offering, together with the programs, networks and equipment that Seagate uses to make such platform available to its customers for processing, hosting, computation, collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, transmission, dissemination, or otherwise making available, alignment, combination, restriction, erasure, or destruction of Company Data.
“Services” means the Seagate Lyve Cloud services offerings through the Portal that Company orders to pursuant to this Agreement.
“Territory” means the geographic areas identified in the box above in which Company and Users may exercise their rights to the Services, subject to applicable laws.
“User” means each individual, company, organization, or entity that accesses or uses any of the Services or Portal through Company’s account, including any Affiliate, employee, contractor, agent, account administrator, Services reseller, customer, or other user authorized by Company.
2. LICENSE GRANTS AND PROPRIETARY RIGHTS
2.1 License by Seagate. Subject to the terms and conditions of this Agreement, Seagate hereby grants, under its Intellectual Property Rights, to Company a limited duration, non-exclusive, non-transferable, fee-free, royalty-free license, without right to sublicense, within the Territory, to (a) access and use, and permit its Users to access and use, the Services, in accordance with the Documentation, and (b) reproduce, distribute, access and use the Documentation, and permit its User to do the same, in each case solely for Company’s evaluation of the Services. The duration of this license will be for a 30-day period beginning upon Company’s first access to the Services. Seagate reserves all other rights not expressly granted in this Agreement. Upon the expiration of the 30-day license granted, all Company’s and Users’ rights to the Services immediately terminate.
2.2 License by Company. Company hereby grants to Seagate a limited duration, non-exclusive, transferable, worldwide, royalty-free, fully-paid-up license, with the right to sublicense (to its Affiliates, independent contractors, and sub-processors) to use the Company Data, solely as necessary to provide and perform the Services and as otherwise may be agreed in writing by Company. Notwithstanding anything to the contrary in this Agreement, should Company provide any suggestions for improvement of the Services to Seagate or its Affiliates, then Company hereby grants to Seagate and its Affiliates a non-exclusive, transferable, worldwide, royalty-free, fully-paid-up license, with the right to sublicense, to use, reproduce, make derivative works of, perform, display, distribute, import, export, make, have made, and otherwise dispose of such suggestions in the sole discretion of Seagate or its Affiliates. Company shall not provide any of such suggestions without the right to do so and grant the above license therefor.
3. USE OF SERVICES; OPERATIONAL ISSUES
3.1 Company’s General Responsibilities. Company is, and shall assure that its Users are, solely responsible for (i) obtaining and maintaining their respective internet access to, and (ii) protecting as private and not selling, distributing, transferring, or sublicensing any log-in credentials to, the Services. Company (and not Seagate) is responsible for the accuracy, quality and integrity of the Company Data. In order for Users to access the Services, Company shall assure that its Users have an account with Services. Company acknowledges that the use of the Services under this Agreement is for testing and assessment purposes only and Company shall not use the Services for any active business being conducted by Company. Company shall not input or transfer any personal data into the Service.
3.2 Company Responsible for User Accounts. Company shall create, and shall assure that its Users create, only 1 account per email address. Company shall provide, and assure its Users provide, accurate and complete information in the creation of all accounts. Company shall permit its Users to establish or be provided with a username and password. Seagate may require Users to use other access credentials, such as an encryption key. Company is responsible for maintaining the security or confidentiality of any User account credentials, and for all activity occurring under Users’ accounts (except to the extent any such activity is caused by Seagate or its agents) and for complying with all laws and regulations applicable to Company’s use of the Services. Company shall comply, and shall ensure that its Users comply, with the Services’ use requirements and restrictions set out in this Agreement. Company is responsible for acts and omissions of its Users relating to this Agreement as though they were Company’s own. Company also shall (a) notify Seagate promptly when Company becomes aware of any unauthorized use of any Company or User password or account (or any other breach of security of the Services), and (b) notify Seagate promptly upon becoming aware of, and make a reasonable effort to stop, any misuse of any aspect of the Services.
3.3 Use Restrictions. Company shall not, and shall assure that its Users do not, cause, permit, or attempt:
(a) use, reproduction, modification, adaptation, creation of derivative works, rental, resale, sublicense, distribution, sublease, operation of a service bureau, transfer, or other commercial exploitation of the Services, or grant any third-party access to any element of the Services, except to the extent expressly permitted by this Agreement;
(b) reverse engineering, disassembling, de-compiling, translating, or deriving the source code, object code, or underlying proprietary information of the Services;
(c) gaining unauthorized access to the Services or its related systems or networks (for example, by impersonation of another user of the Services, provision of false identity information, or using the Access Credentials of another user);
(d) interfering with, circumventing of, disabling of, or disrupting the integrity, security, or performance of the Services or the data contained therein (including via unsolicited solicitations, like spam), unauthorized benchmark testing, penetration testing, overloading, mail bombing, broadcast techniques, or flooding techniques);
(e) sending, storing, or using any data, information, or material containing any viruses, worms, time bombs, spyware, Trojan horses, hijacking software, or other malicious or harmful computer code, files, scripts, agents, or programs in connection with the Services;
(f) sending, storing or using any Company Data in connection with the Services for which Company or Users lack sufficient ownership, rights, consents, or valid legal grounds;
(g) using the Services or Third Party Content in connection with any infringing, obscene, threatening, harmful, abusive, libelous, fraudulent, or otherwise unlawful or tortious material, purpose, or activities (including which adversely reflects upon the name, reputation, or goodwill of Seagate or the Lyve brand);
(h) providing information that is inaccurate, untrue, or misleading in subscribing to, accessing, or using the Services;
(i) sharing Access Credentials or failing to maintain the security or confidentiality of any Access Credentials;
(j) accessing or using the Services in a way intended to avoid or exceed applicable usage limits;
(k) monitoring or crawling data or traffic on the Services;
(l) using the Services for any illegal purpose, in violation of the rights of a third party (including through surveillance technology) or in violation of any applicable local, state, federal, and foreign laws, treaties, regulations, or conventions, or in manner that may subject Seagate or its Affiliates to unfavorable regulatory action;
(m) using the Services for cryptocurrency or other distributed-ledger technology including for plotting, creating ash, mining, farming, pooling, coining, or any related activities;
(n removing, or altering Seagate’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Services; or
(o) using any Services or any data or materials obtained from the Services: to build a competitive product or service; to build a product or service that uses ideas, features, functions, or graphics that are the same as or similar to Services; to copy any ideas, features, functions, or graphics of Services; or for any purpose competitive to Seagate (including competitive benchmarking).
Company shall indemnify and hold Seagate Indemnitees harmless against any claims arising from any User’s violations of the above use restrictions.
3.4 Suspension. If Seagate, acting reasonably in the circumstances then known to Seagate, determines that (a) Company is in material breach of this Agreement, (b) Company is in breach of any payment obligation or of Section 2, or (c) Company’s or any of Users’ use of the Services or any other factor poses a credible threat to (i) the security or integrity of any Company Data or the data of any other Seagate customer, (ii) the security of, operation of, or Intellectual Property Rights in the Services, (iii) the compliance of the Services with any applicable law, including export control laws, (iv) others, including by way of any harmful, abusive, or offensive purposes or activities, including activities or conduct that tarnish or adversely reflect upon the name, reputation, or goodwill associated with Seagate or its Affiliates or its or their offerings, trademarks, or brands, or (v) the availability of the Services to Company, its Affiliates or Users, or to any other Seagate customer (collectively, a “Suspension Threat”), then Seagate may suspend Company’s and Users’ use of the Services until the Suspension Threat is resolved and Seagate is able to restore the Services.
3.5 Third-Party Content and Sharing Information with Third Parties using the Services. Third-party data, content, offerings, services, and websites (“Third-Party Content”) may be made available through the Services. Use of Third-Party Content may be governed by third-party terms, end-user license agreements, and Intellectual Property Rights laws. Further, the Services may use tools, features, and offerings that enable Company to import and export data and content from and to third parties, third-party websites, third-party products, and other non-Seagate services, and to access, download, and use Third-Party Content. Company acknowledges that third parties are not under Seagate’s control. Seagate is not responsible or liable for any acts or omissions of third parties or for Third‑Party Content. Seagate does not make any representations, warranties, or guarantees with respect to the Third-Party Content. Company and Users use Third-Party Content at their own risk.
3.6 High-Risk Activities. Services are not designed for use in high-risk activities or environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft systems, air traffic control, life support machines, weapons systems, or any other environment in which an interruption, error, or failure of the Services could lead directly to death, personal injury, or severe physical environmental, or property damage. Seagate does not wish to expose itself to the risk of injury or damage or to the possibility of litigation arising out of the use of Services in high-risk activities. Accordingly, if Company includes Services or sells Services to customers for use in systems for use for high-risk activities, then Company assumes the risk of loss associated with the activity and Company shall indemnify and hold Seagate Indemnitees harmless against all claims or actions arising out of the use of the Services in the high-risk activity.
4. DATA, PRIVACY, SECURITY, AND TELEMETRY
4.1 If Company, Users, or any third parties acting on Company’s behalf, access or use the Services to collect, store, process, transmit, any Personal Data, Company shall ensure that all such activities and use comply with applicable laws and data subject rights. Company shall provide legally adequate privacy notices to the required parties, and obtain all necessary consents from the data subjects of the Personal Data (and parental consents where applicable), including under the Children’s Online Privacy Protection Act (“COPPA”), the General Data Protection Regulation (“GDPR”), California Consumer Privacy Act (“CCPA”) and similar laws. Company represents to Seagate and its contractors, and Affiliates that Company has provided all necessary privacy notices, obtained all necessary consents, and possesses lawful grounds to allow Company to access and use the Services in accordance with the terms of this Agreement and applicable laws. Company is responsible for notifying Seagate if any data collected or stored using the Services must be deleted under applicable laws.
4.3 Diagnostics and Telemetry Data. Seagate may store diagnostic and telemetry data about the operation of the Services, including performance, usage, configuration, and errors (“Telemetry Data”). Seagate may periodically transmit and receive the Telemetry Data from the Services. Company Data does not include Telemetry Data. Seagate does not access or transmit Company Data as part of the Telemetry Data. Seagate retains all rights, title, and interest to the Telemetry Data.
4.4 Monitoring and Recording. Unless separately agreed between the parties, Seagate and its agents may monitor and record any telephone calls or other voice, data, or images transmitted to Seagate by Company or Users or agents, or transmitted using Company’s Access Credentials, phone numbers, email addresses, credentials, or account information.
5.1 Payment of Services Fees. Seagate provides the Services under this Agreement at no charge. Company shall pay its own costs and expenses required to access and use the
6. DISCLAIMER OF WARRANTIES
6.1 Disclaimer of Implied Warranties. Neither Neither party makes any representation or warranty in connection with the Services. The Services are delivered “as is” without warranty of any kind. To the maximum extent permitted by applicable law, Seagate disclaims all express and implied warranties and conditions, including (i) any implied warranty of merchantability or fitness for a particular purpose; any implied warranty of non-infringement or implied obligation to indemnify for infringement; any implied warranty arising from course of performance, course of dealing, or usage of trade; and any statutory remedy, (ii) any warranty that the Services will be uninterrupted, error-free, or free of harmful components, and (iii) that any Company Data will be secure or not otherwise lost or altered. Company assumes sole responsibility and entire risk as to potential loss of data and the suitability and results obtained from use of the Services.
7.1 Seagate will have no obligation to defend or indemnify Company, or its affiliates, employees, officers, directors, or customers for any infringement arising out of the use of any Services, regardless of the theory whether in law, equity or
7.2 Indemnification by Company. Company shall defend and indemnify Seagate and its Affiliates, and their directors, officers, and employees, to the extent any claim or action brought against Seagate, to the extent the claim or action is based on any a violation of law or a breach of this Agreement by Company or Users. Seagate shall not take any action that impairs Company’s defense. Company shall not admit liability or enter into any settlement that adversely affects Seagate without Seagate’s prior written consent. Company shall pay all defense costs (including the costs of Seagate attorneys, employees, and contractors in response to such claim or action) as incurred, and damages and costs finally awarded against Seagate in any suit based on the claims or actions arising from the foregoing, but Company will have no liability for settlements incurred without its consent.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 No Rights Transferred. Seagate does not transfer to Company any right to Seagate’s Intellectual Property Rights.
8.2 Proprietary Notices. Company shall not, and shall ensure that Users shall not, remove or obscure any proprietary notices incorporated in, marked on, or affixed to the Services or the Portal.
9.1 Confidential Information. “Confidential Information” means all non-public business and technical information regarding the Services or Portal. Confidential Information includes (a) the quantity and prices of Services sold to Company, (b) both parties’ sales and marketing plans, designs, and technical data, and (c) Services not yet announced or made public. Confidential Information does not include Company Data.
9.2 Marking. In order to be protected under this Agreement, the Confidential Information will be marked as confidential or designated in writing as confidential after disclosure.
9.3 Non-Disclosure. Neither party may allow the Confidential Information of the other party to be disclosed without the other party’s consent, except that a receiving party may disclose the other party’s Confidential Information to its and its Affiliates’ employees and independent contractors who have a need to know it and who have at least an equivalent confidentiality obligation, as those set out herein, to the receiving party to protect such Confidential Information.
9.4 Exceptions. The obligation of confidentiality does not apply to any information that: (a) the receiving party knew before receiving it under this Agreement, (b) becomes publicly available without breach of this Agreement, (c) is received from another without an obligation of confidentiality or breach of this Agreement, (d) is disclosed by the disclosing party to another without an obligation of confidentiality, or (e) is developed independently by the receiving party without having access to or use of the disclosing party’s Confidential Information.
9.5 Compelled Disclosures. The obligation of confidentiality does not restrict either party from complying with any legal order compelling disclosure of Confidential Information; however, the party under the order shall make reasonable attempts to notify the other party to allow it to seek to protect the Confidential Information.
9.6 Expiration. The obligation of confidentiality expires 3 years after the date of disclosure of the Confidential Information.
9.7 Publicity. Neither party may issue any press release or other publicity regarding this Agreement without the other party’s approval.
10. LIMITATIONS OF LIABILITY
10.1 Limitation of Amount of Liability. The maximum, total, aggregate liability of Seagate, its Affiliates, and suppliers under this Agreement, regardless of the basis of liability or the form of action, will not exceed $100.
10.2 Limitation of Types of Liability. Neither Seagate, its Affiliates, nor its licensors will be liable to Company or its Affiliates or its Users for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, revenues, customers, opportunities, goodwill, use, or data) however caused, whether for breach of contract, tort (including negligence), or otherwise, even if a party has been advised of the possibility of such damages. The limitations in this section 10 apply only to the maximum extent permitted by applicable law.
10.3 Purpose and Applicability. The purpose of this Section 10 is to limit the potential liability of Seagate arising out of this Agreement and the foregoing allocation of risk is reflected in the prices of the Services. The parties acknowledge that the disclaimers and limitations set out herein are an essential part of the Agreement. This Section 10 will apply notwithstanding any other provisions of this Agreement or the failure of any remedy of its essential purpose.
11. DISPUTE RESOLUTION
11.1 Governing Law, Language. The governing laws set forth below (listed in order of descending precedence should any dispute involve more than one Territory), without regard to any conflicts-of-laws rules, govern this Agreement, all Services Agreements, Orders, and any disputes or breaches arising thereunder, on the basis of where the Services will be provided: (a) Americas: the laws of the State of California, USA, (b) EMEA: the laws of The Netherlands, (c) APAC: the laws of Singapore. Venue and jurisdiction for the adjudication of any claim or dispute arising out of this Agreement will be only in the arbitrator identified in Section 12.2 for each Territory, and the parties to this Agreement hereby consent to such venue and jurisdiction exclusively and hereby waive any objection that such venue is inconvenient or does not have jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement is in English, and all communications and proceedings will be conducted in English. If this Agreement is translated, the English language version will control.
11.2 Good-Faith Negotiation Followed by Mediation. Except for disputes about payment or Intellectual Property Rights, the parties shall attempt to resolve any dispute relating to this Agreement in the following manner: First, they shall engage in informal efforts of appropriate business principals for 10 days. Thereafter, they shall submit their dispute to mediation before a mutually agreed mediator from Judicial Arbitration and Mediation Services (“JAMS”) to be scheduled within 10 business days. Mediation will be conducted at a JAMS facility in San Jose, California, to whose jurisdiction the parties hereby consent. The parties shall bear their own costs.
11.3 Jurisdiction and Venue in Courts. Should the above mediation prove to not fully resolve the applicable dispute, the parties may resort to the courts solely as set forth herein to litigate such dispute. The parties irrevocably consent to the exclusive personal jurisdiction and venue of the federal and state courts embraced in Santa Clara County, California, U.S.A. for any litigation that arises under this Agreement, and waive all defenses thereto including the defense of forum non-conveniens.
11.4 Equitable Relief Excluded. Regardless of the status of negotiation or mediation, either party may seek equitable relief to enforce the rights granted in this Agreement to obtain a temporary restraining order or other provisional remedy to preserve the status quo or prevent irreparable harm.
11.5 Enforcement. The provisions of this Section 10 may be enforced by any court of competent jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
12.1 Changes to Online Terms. Seagate may modify online terms referenced or incorporated in this Agreement (including any references to agreements or policies) at any time by posting a revised version on the Seagate website or by notifying Company. The modified terms will become effective upon posting or, if Seagate notifies Company in writing, as stated in the notification. By continuing to use the Services or Portal after the effective date of any modifications to this Agreement, Company agrees to be bound by the modified terms. It is Company’s responsibility to check Seagate’s website regularly for modifications to the online terms.
12.2 Ethical Business Practices. Company shall maintain written policies and procedures requiring its employees and contractors to comply with all applicable laws relating to bribery, corruption, antitrust, competition law, anti-monopoly law, anti-money-laundering, privacy, confidentiality, environmental practices, labor practices, health and safety, and other laws relating to ethical business practices. Company shall train its employees to exercise ethical business practices and provide proof of its policies, procedures, and training to Seagate upon request. Seagate may immediately terminate this Agreement if Company breaches any provision of this paragraph.
12.3 International Trade Compliance. Company shall comply with all international trade, export control and other laws affecting Company Data and its use of any Services. Company shall ensure, and require its users to ensure, that (a) the Portals and Services may not be used by restricted party or a party owned or controlled by one or more restricted parties (U.S. government restricted parties lists are found at: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm); (b) used in destinations subject to comprehensive U.S. embargoes on Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine or in or in embargoed countries as determined by other applicable countries' laws affecting Company Data and its use of the Services; (c) used for in activities related to weapons of mass destruction including, designing, developing, producing, or using nuclear, chemical, or biological weapons, materials, or facilities, or activities related to missiles or supporting missile projects; (d) used for other military or military intelligence or security classified end uses (including to processing technical data controlled under the U.S. International Traffic in Arms Regulations) or other applicable countries' laws on military or military intelligence or security classified end uses; or (e) used in the manner that requires any export (or other) license or approval under the laws of any applicable country where Company has not obtained and maintained such license or approval. Company shall inform each User in writing that Company and Seagate may delay, suspend, or terminate the Services for such User should such User not be permitted to receive or use the Services under applicable international trade, export control and other laws. The Services Terms may set forth additional international trade requirements for specific Services. A violation of the provisions of this section (or international trade requirements in the Services Terms) serves as grounds for immediate suspension or termination of services by Seagate. Company shall fully indemnify and hold Seagate Indemnitees harmless against any and all costs, expenses, fees (including attorneys' fees), and penalties resulting from Company’s and its Users’ failure to comply with the provisions of this section.
12.4 Assignment. Company shall not assign this Agreement or any right or interest, or delegate any obligation, under this Agreement to any other party. Any attempted assignment or delegation in contravention of the prior sentence is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
12.5 No Third-Party Beneficiary Rights. Only the parties named in this Agreement have any rights or remedies under this Agreement. If Seagate accepts a purchase order from Company’s Affiliates, the Affiliates will become bound by all terms of the Agreement and Company shall assume joint and several liability for all obligations relating to the purchase order and its Affiliates’ acts and omissions, including, payment for all Services provided to the Affiliates
12.6 Force Majeure. Neither party will be liable to the other for breach of this Agreement if its performance, other than a failure to pay Fees when due, is delayed by circumstances beyond its reasonable control (including hurricanes, earthquakes, epidemics, pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, acts of war, terrorism, acts of governments such as expropriation, condemnation, embargo, changes in laws, and shelter-in-place or similar orders) and is neither due to its fault nor its account in accordance with applicable law.
12.7 Severability; Survival.
12.8 Entire Agreement; Amendments in Writing. This Agreement and the documents referred to in this Agreement constitute the entire agreement of the parties with respect to this subject matter, superseding (a) all prior written and oral, and (b) all contemporaneous oral agreements, understanding, representations, and warranties between the parties. This Agreement expressly excludes any of Company’s or its Affiliates’ general terms and conditions, including boilerplate terms, contained in any purchase order or other document issued by Company or its Affiliates. This Agreement may be changed expressly as provided for in this Agreement and by written amendment signed by both parties.
12.9 Notices. All notices and other communications will be in writing and will be effective when tangibly delivered to the addresses designated on the signature page of this Agreement.
12.10 Counterparts. The parties may sign, either physically or electronically, this Agreement in multiple counterparts. The signatures of each of the parties need not appear on the same counterpart, and delivering a facsimile of a signed counterpart signature page is as effective as executing and delivering this Agreement in the presence of the other party(ies) to this Agreement. Should Company accept this Agreement by way of a clicking an electronic button on the Portal or otherwise, this Agreement is binding on Company.
12.11 No Waiver. Except as expressly set out herein, neither party's failure or delay to exercise any of its rights under this Agreement will be deemed a waiver of forfeiture of those rights.
12.12 Relationship of the Parties. The relationship of the parties under this Agreement is that of independent contractors. Except as expressly provided in this Agreement, no party shall hold itself out as an agent, legal representative, joint venturer or partner of the other party for any purpose whatsoever. No party is authorized to make any contract, warranty, or representation by or on behalf of the other party.
12.13 U.S. Government Rights. This Section 11.13 applies if the U.S. government is the Company or is a User. The Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If the Services or these terms fail to meet the U.S. government’s needs or are inconsistent in any respect with federal law, Company will immediately discontinue the U.S. government’s use of the Services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.