PLEASE READ THIS LYVE SERVICES MASTER AGREEMENT CAREFULLY. BY CLICKING TO ACCEPT THE TERMS OF THIS LYVE SERVICES MASTER AGREEMENT OR BY TAKING ANY STEP TO SET UP, ACCESS, OR USE THE SERVICES, YOUR COMPANY ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS LYVE SERVICES MASTER 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 SERVICES MASTER 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 Services master agreement (“Agreement”) is entered into by the applicable Seagate entity(ies) below (individually and collectively, “Seagate”) and the company named below (“Company”) as of the date Company accepts these terms as indicated in the first paragraph above (“Effective Date”). Should Seagate provide any Services to Company in a Territory 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 this Agreement.
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
The parties agree as follows:
1. DEFINITIONS AND SCOPE
1.1 Definitions. For the purposes of this Agreement, these initially capitalized words have the following meanings:
“Access Credentials” has the meaning as set out in Section 2.3.
“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.
“Americas” means the countries in North America, Central America, and South America, including the islands of the Caribbean Sea.
“APAC” means the countries in Asia, Australia, and all other countries not in the Americas and EMEA, excluding Japan.
“Company Data” means any data (including any Personal Data and Access Credentials), that Company or any User inputs or transfers into the Services or provides to Seagate in connection with the Services, including for processing, hosting, computation, collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, transmission, dissemination, rendering, alignment, combination, restriction, erasure, or destruction.
“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.
“EMEA” means the countries located in Europe, the Middle East, and Africa.
“Fees” means the fees, as set out in this Agreement and in the applicable Services Agreement or Order, Company is to pay to Seagate for the Services (including access to any Support Programs).
“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.
“Lyve” means the ‘Lyve’ trademarks of Seagate in the USA (including USA registered trademark with the serial number 90558928) and in other countries of the world.
“Lyve Hardware” means any hardware, physical components, and accessories provided to Company as part of the Services.
“Order” means any quote, order, or ordering documents for the Services signed or agreed to by the parties in writing, and includes orders placed by Company through an online Portal. Orders set forth details for the Services ordered such as pricing, Service Period, and related information.
“Personal Data” means any information from which a person (a data subject) can be reasonably identified.
“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 Portals are located at https://lyve.seagate.com/ and https://console.lyvecloud.seagate.com.
“Services” means each of the Lyve subscription or services offerings that Company orders or subscribes to pursuant to a Services Agreement.
“Services Agreement” means a Services addendum or separate agreement signed or agreed in writing by the parties that includes the Order or order details (such as pricing, Services Period, and related information) and incorporates by reference this Agreement, and the Services Terms for the Services ordered. Attached to this Agreement is the Lyve Cloud Services addendum comprising Exhibits A – Exhibit F hereto.
“Services Period” has the meaning set forth in Section 11 below.
“Services Terms” means additional terms made available by Seagate that apply to the specific ordered Services such as Services descriptions, Documentation, service level agreements, Support Programs, information security, data privacy, Portal access, Fees, Order procedures, the process for terminating Services, additional usage rights or licenses, and statements of work.
“Support Program” means the Seagate support and maintenance services program specified in the applicable Services Agreement.
“Territory” means the geographic region(s) or location(s) where any of the Services are made available by Seagate as set forth in the applicable Services Agreement or Order.
“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. ACCESS AND USE OF THE SERVICES
2.1 Services General Access and Use License. Subject to the terms and conditions of this Agreement and the applicable Services Agreement, Seagate hereby grants to Company a non-exclusive, non-transferable, royalty-free right and license, without right to sublicense, solely for the Services Period, to access and use, and to permit Users to access and use, the Services in each case solely for Company’s and Users’ ordinary course of business. Seagate reserves all other rights not expressly granted in this Agreement. Section 8 (Intellectual Property Rights) sets forth additional terms relating to the parties’ respective Intellectual Property Rights. Further, the Services Terms may provide additional Services-specific usage rights, licenses, limitations, and restrictions, including to software under end-user license(s). Unless the end user license agreement states otherwise, the rights granted thereunder terminate upon termination of the applicable Services Agreement (including any renewals) or this Agreement, whichever occurs first. Seagate does not sell any software to Company under this Agreement or any Services Agreement. During the applicable Services Period, and subject to the terms and conditions of this Agreement, Seagate shall provide Company the Services within the Territory.
2.2 Company’s General Responsibilities. Company is, and shall assure that Users are, responsible for (a) maintaining an internet connection to access the Services, (b) ensuring that in each case, respectively, the User has an authorized User account (associated with Company’s master Services account) for the Services, (c) protecting as private and not selling, distributing, transferring, or sublicensing any Access Credentials to the Services, and (d) the accuracy, quality, and integrity of the Company Data input or transferred into, or provided in connection with, the Services. The Services and Portals are not provided for personal, family, or household use or purposes; Company shall not permit Users or any third party to use the Services for such purposes.
2.3 Company Responsibilities for Users and Accounts. Company shall ensure that Users are assigned only 1 User account for the Services per email address. Company shall provide and maintain, and assure Users provide and maintain, accurate and complete information at all times in connection with access to and use of the Services, including with respect all accounts and ordering. Company shall fully indemnify and hold Seagate Indemnitees harmless against any costs, losses or liability resulting from Company’s or Users failure to provide accurate information to Seagate. Company shall permit Users to establish or be provided with a username and password, and Seagate may require Users to use, according to this Agreement and the applicable Services Terms, additional access credentials (such as user names, passwords, encryption keys, and access codes) issued by Seagate to access and use certain Services (collectively, “Access Credentials”). Except to the extent any such activity is caused by Seagate, Company is responsible for all activity occurring under Company’s and Users’ accounts. Except to the extent any such activity is caused by Seagate, Company shall comply, and shall ensure that Users comply, with all laws and regulations applicable to Company’s use of the Services. Company shall comply, and shall ensure that Users comply, with the Services’ use requirements and restrictions set out in this Agreement and the Services Terms. Company is responsible for the acts and omissions of Users relating to this Agreement or anyone accessing the Lyve Cloud Services using any User’s Access Credentials as though such acts and omissions were Company’s own. Company also shall (a) notify Seagate promptly when Company becomes aware of any unauthorized use of any Company or User Access Credentials, or any other breach or attempted 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. Company shall reasonably cooperate with Seagate to identify the source of any problem with the Services that may be attributable to Company’s activities, actions, communications, content, or materials, or those of Users or Company’s agents.
2.4 Use Restrictions. Company shall not, and shall not, cause, permit, or attempt any of the following, including through or by Users or third parties:
(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;(o) removing, or altering Seagate’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Services or any Lyve Hardware; or
(n) 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.
2.5 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.
2.6 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 shall attempt to contact Company to resolve the Suspension Threat. If Seagate is unable to contact Company, or if Seagate contacts Company but Company is unable to immediately remediate the 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. ORDERING, FEES AND TAXES
3.1 Ordering. Company may order Services by agreeing to, or placing an Order as described in this Agreement or the Services Terms. Seagate may accept or reject any Order in its discretion. The Services Agreement constitutes Company’s binding commitment for Services it orders. Company may allow Users to place Orders (including through the Portals). Company is financially responsible for all Orders placed by Users. If Seagate agrees in writing to a separate Services Agreement with or Order from a Company Affiliate, all references to “Company” in this Agreement include the Company Affiliate, the Affiliate is become bound by all terms of the Agreement, and Company assumes joint and several liability for all obligations relating to the Services Agreement and its Affiliates’ acts and omissions thereunder, including payment for Services.
3.2 Regional Seagate Affiliates. Seagate provides Services in each Territory through a Seagate Affiliate identified on the applicable Services Agreement or Order, which will be the sole Seagate Affiliate obligated to perform the Services in the Services Agreement or Order. With respect to each Services Agreement or Order, all references to Seagate under this Agreement shall mean the applicable Seagate Affiliate identified in the Services Agreement or Order. As of the Effective Date, the Seagate Affiliate for each Territory is as follows based on where the Services will be provided: (a) Americas: Seagate Technology LLC, 47488 Kato Rd., Fremont, CA, 94538, USA, (b) EMEA: Seagate Technology (Netherlands) B.V., Tupolevlaan 105, 1119 PA Schiphol-Rijk, The Netherlands, (c) Japan: Nippon Seagate, Inc., Tennoz Parkside Bldg., 2-5-8 Higashi-Shinagawa, Shinagawa-ku, Tokyo, Japan, and (d) APAC (excluding Japan): Lyve (SG) PTE. LTD. 90 Woodlands Avenue 7, Singapore,737911.
3.3 Payment of Services Fees. Company shall pay Seagate the Fees for the Services as specified in the applicable Order and the applicable Services Agreement. Unless specified otherwise in the applicable Order, the following apply: (a) Seagate invoices in arrears for use of the Services unless otherwise set forth in the applicable Services Agreement, (b) Company shall make all payments within 30 days of the date of Seagate’s invoice, and (c) all Fees are stated and payable in U.S. dollars. If Company does not pay Fees when due, then Seagate may invoke a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less. If Seagate uses a collection agency or attorney to collect money owed by Company, Company shall pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ Fees, and arbitration or court costs.
3.4 Additional Fees. Additional fees may apply depending on the Service, including up-front fees, minimum usage commitments, hardware fees (including for delivery, return, loss and damage), and amounts charged to Seagate from Company’s bank for insufficient funds.
3.5 Right to Make Credit Inquiries and Investigations. If Company applies for credit terms with Seagate, Company authorizes Seagate to make inquiries and to receive information about Company’s credit experience from others, to enter and store this information, and to disclose this information to appropriate third parties for reasonable business purposes. Seagate may require additional materials such as a credit reports, and Seagate may run risk assessments, including credit checks and criminal checks, on any customer. Seagate will not discriminate in the application of credit inquiries and deposit policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any risk assessments conducted by Seagate or by third-parties on behalf of Seagate will be done in conformance with all laws. Seagate may make additional credit inquiries, fraud checks, and risk assessments after receiving payment from Company for the Services.
3.6 Debit Memos. Seagate will not accept any debit memos unless authorized in writing by Seagate. Company is not entitled to any credit taken pursuant to any unauthorized debit memo.
3.7 Purchasing Services from Resellers. Company may engage a Seagate authorized Services reseller (“Reseller”) to order Services, manage Company orders, and administer Company’s account. All payment obligations and liabilities for Services Company purchases from a Reseller, are between Company and the Reseller, not Seagate. Resellers are not agents of or authorized to bind Seagate. If Company purchases Services from a Reseller or grants a Reseller administrator access to Company’s Services account, Company authorizes the Reseller to order and manage Company’s Orders, and to communicate with Seagate regarding the Services. Company authorizes Seagate to provide the Reseller administrative-level access to Company’s Services and Portals accounts and Company Data, including information provided to Seagate in setting up Company’s Services and Portal accounts, ordering Services, managing Services, and providing support. Should Company enter into a separate agreement regarding Services with a Reseller, to the extent there is a conflict between the terms of this Agreement and such other separate agreement, (i) the terms of such other separate agreement will govern as between Company and Reseller, and (ii) the terms of this Agreement will govern as between Seagate and Company.
3.8 Transaction Taxes. Unless the Order expressly states otherwise, the Fees do not include any transaction taxes, levies, or duties, such as value-added, sales, services, use, or withholding taxes; or any other duties, charges, fees, copyright levies, WEEE (waste electronic and electrical equipment) and related or equivalent environmental legislation compliance costs or registrations (subject to applicable law), charges related to any packaging directive or other assessments, that Seagate is legally obligated to charge (collectively “Taxes”). Company is responsible for paying all Taxes in connection with the Services and this Agreement, excluding Taxes based on Seagate’s income except if there is a legal obligation on Company to collect such Taxes by way of withholding as outlined below. If Seagate has the legal obligation to pay or collect Taxes for which Company is responsible under this section, Seagate will add the Taxes to the Fees and Company shall pay the Taxes to Seagate, unless Company provides Seagate with a valid tax exemption certificate authorized by the appropriate taxing authority. Company agrees to provide Seagate its valid VAT ID upon request where applicable or required.
3.9 Withholding. If Company is required to withhold taxes imposed upon Seagate for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Services are delivered, used, or obtained, then such payments shall be made by Company on behalf of Seagate by deducting them from the payment then due Seagate and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted upwards appropriately so that Seagate actually receives the full amount of the Fees set forth in the applicable Order. Company shall provide Seagate with official documentation or tax receipts on such withholdings supporting such taxes and such payments as may be required by Seagate for its tax records as soon as reasonably possible following payment to the applicable tax authority, and in any event no later than when required by applicable law.
3.10 Inventory Taxes. Company shall pay all inventory taxes, personal property taxes, or use taxes, duties, or fees arising out of Company’s possession, control, or use of the Lyve Hardware.
3.11 Tax Indemnification. Company shall indemnify and hold harmless Seagate Indemnitees against any inventory taxes, personal property taxes, or use taxes, duties, or fees asserted against Seagate arising out of Company’s possession, control, or use of the Lyve Hardware; any taxes that Company is obligated to pay pursuant to this Section 3, but fail to pay and any related seizure and recovery costs; and any claims, causes of action, costs (including reasonable attorneys’ and advisors’ fees) and any other liabilities of any nature related to such taxes.
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. WARRANTIES, DISCLAIMERS, AND HIGH RISK ACTIVITIES
5.1 Limited Warranties. During the Services Period, Seagate warrants to Company that:
(a) Limited Warranty of Functionality. During the Services Period, the Services, in the form provided by Seagate, will in all material respects, provide the functionality set forth in the applicable Services Agreement.
(b) Viruses. Seagate shall use commercially reasonable efforts, using applicable current industry practices, to prevent the Services, in the form provided by Seagate to Company under this Agreement, from containing any identified computer virus, Trojan horse, trap door, worm, or other similar malicious code.
(c) Compliance with Law. The Services, in the form provided or made available by Seagate, will comply with all laws applicable to Seagate in its provision and performance of the Services.
(d) Enter into the Agreement. Seagate has the right to enter into this Agreement and perform its obligations hereunder.
5.2 Performance Remedy. Subject to any applicable service level agreement in the applicable Services Agreement, if any of the Services or Lyve Hardware fails to conform in any material respects to the warranty set forth in this Section 5 and Company provides written communication of the non-conformance to Seagate within the applicable Services Period, then, as Company’s sole and exclusive remedy and Seagate’s sole and exclusive obligation: (a) Seagate shall either repair or, at its option, reperform the Services or replace the non-conforming Lyve Hardware or components of the Services or, (b) if Seagate is unable to correct the non-conformance within 30 days of receipt of such written notice from Company, either party may terminate the applicable Services Agreement, Company shall return the Lvye Hardware provided under the terminated Services Agreement, and Seagate shall refund to Company a pro-rata amount of any Fees prepaid to Seagate and applicable to the unutilized portion of the Services Period for the terminated Services Agreement. The right to terminate under this section exists only as long as the material non-compliance exists without resolution. For clarity, the terms of any applicable service level agreement in the applicable Services Agreement govern over the terms of this section.
5.3 Bugs and Abatement; Scope. Without limiting the express warranties in this Section 5, neither does Seagate warrant that the Services are completely free from all bugs, errors, or omissions, nor does Seagate warranty the security of Company Data. Except for the warranties in Section 5, Seagate provides Services to Company on an “as-is” and “as available” basis. The warranties in this Agreement are for the sole benefit of Company and may not be extended to any other person or entity.
5.4 Company Warranties. Company warrants that no Company Data infringes or misappropriates any Intellectual Property Rights. Company has the right to enter into this Agreement and perform its obligations hereunder.
5.5 Disclaimer of Implied Warranties. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SERVICES, EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED IN THIS AGREEMENT, SEAGATE DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING (A) 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, (B) ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, AND (C) THAT ANY COMPANY DATA WILL BE SECURED OR NOT OTHERWISE LOST OR ALTERED.
5.6 Warranty Exceptions and Limitations. The warranties made by Seagate in this Agreement do not cover any problems caused by (a) accident, abuse, neglect, (including shock, electrostatic degaussing, heat or humidity) or use beyond the Services or applicable Lyve Hardware specifications; (b) improper or unauthorized installation, operation, maintenance, or modification; (c) any misuse contrary to the instructions in the Documentation or use not in compliance with this Agreement, the Services Agreement, or applicable law; (d) lost Access Credentials; or (e) malfunctions caused by other equipment, networks, or systems. The Seagate warranties in this Section 5 are void if any of Company, or its Affiliates or Users violate any restriction set out in Section 2.4, or use the Services in violation the Services Agreement or applicable law. The warranties made by Seagate in this Agreement do not apply to Company Data or any other data stored or lost, or costs related to retrieving and returning any data. The warranties made by Seagate in this Agreement extend only to Company and may not be assigned or transferred.
5.7 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.
6.1 Seagate and its independent auditors have the right, upon reasonable notice to Company, to examine Company’s use of the Portals and the Services to verify compliance with this Agreement, including verification of data usage. If the audit identifies unauthorized use, then Company shall promptly pay to Seagate any additional fees that Seagate is owed, and the reasonable costs of conducting the audit.
7.1 Indemnification by Seagate. Seagate shall defend and indemnify Company and its directors, officers and employees (“Company Indemnitees”), to the extent any claim or action brought against Company, (a) alleges that any Services infringe a United States patent, copyright, or trade secret right, and (b) any third-party claims brought against Company to the extent relating to personal injury or tangible property damage caused by Seagate’s gross negligence. Company shall promptly notify Seagate of the claim or action, give reasonable assistance to Seagate, and permit Seagate the sole and exclusive control of the defense. Company shall not take any action that impairs Seagate’s defense. Seagate shall pay all damages and costs finally awarded against Company in any suit based on the infringement claim, but Seagate will have no liability for settlements or costs incurred without its consent.
7.2 Notice of Potential Infringement and Remedial Action. If any Services become, or in Seagate’s opinion is likely to become, subject to a claim or action that qualifies for infringement or misappropriation indemnification under Section 7.1, Seagate shall notify Company in writing to stop using and selling the affected Services. Company shall, and shall ensure Users will, immediately stop accessing and using the affected Services upon Company’s receipt of Seagate’s notice.
7.3 Remedial Action. Seagate may remediate the infringement allegation qualifying for indemnification under Section 7.1 by (a) substituting functionally equivalent, non-infringing Services for the infringing Services, (b) modifying the infringing portion of Services so that it no longer infringes, (c) obtaining for Company the right to continue using the Services, or (d) refunding to Company the pro-rata purchase price paid for the unused Services, provided Company and Users immediately cease all use of the Services as to the remedies under (a), (b), and (d). Seagate’s performance of any of these remedial actions in (a), (b), (c) or (d) will constitute Company Indemnitees’ sole remedy for any damages suffered as a result of infringement as to the infringing Services after Seagate provides such remedial action. Seagate may select, in its sole discretion, which remedies or combination of remedies to provide Company Indemnitees.
7.4 Exceptions. Seagate will have no obligation to defend or indemnify Company for any claim or action arising out of the following (collectively (a) – (j), “Exceptions”):
(a) the use of any Services in any non-Seagate systems if the cause of the infringement or claim is the system itself or the combination of the Services with the system or any of its components;
(b) any modification to Services not made by Seagate;
(c) the use of infringing Services where Seagate has provided non-infringing replacements or modifications for, or notified Company to not use or permit Users to use, the infringing Services;
(d) the use of Services for purposes not contemplated by this Agreement or its intended use;
(e) Company’s systems, any third-party content or components, or the combination of any of the Services with Company’s system or any third-party content or components;
(f) use of the Seagate CORTX open-source software if Company obtained it not as part of the Services;
(g) Seagate's compliance with a specification or design provided by Company;
(h) any use of the Services in High Risk Activities (as set out in Section 5 above);
(i) a violation of law or a breach of this Agreement by Company or Users; or
(j) a dispute between Company and a User.
7.5 Indemnification by Company. Company shall fully indemnify and hold Seagate Indemnitees harmless against any claim or action brought against Seagate is based on (a) any or all of the Exceptions, (b) any violation of law in connection with Company or any of Users in connection with the Services, or (c) any infringement of a third party’s Intellectual Property Rights and any acts or omissions causing personal injury or tangible property damage except to the extent covered by Seagate’s indemnification obligations under this Agreement. 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 approval. 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 Company’s indemnification obligations under this Agreement, but Company will have no liability for settlements or costs incurred without its consent.
7.6 Exclusive Remedy. This Section 7 provides the sole and exclusive liability and remedies regarding claims or actions that the Services or Portals infringe or misappropriate a patent, copyright, or trade secret.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Seagate Intellectual Property. Seagate and Seagate’s licensors retain all ownership right, title and interest and all Intellectual Property Rights in and to the Services, Portals, Seagate’s Confidential Information, and all enhancements or improvements to, or derivative works of any of the foregoing, including based on Feedback (collectively, “Seagate Intellectual Property”). Nothing in this Agreement transfers or conveys to Company or Users any ownership interest in or to the Seagate Intellectual Property.
8.2 Company Data Ownership. As between Seagate and Company, Company retains all of its ownership rights, title and interest and Intellectual Property Rights in and to the Company Data and Company Confidential Information. No ownership interest in the Company Data or Company Confidential Information is transferred or conveyed to Seagate by virtue of this Agreement.
8.3 License to Company Data. Company hereby grants to Seagate a non-exclusive, transferable, worldwide, royalty-free, fully-paid-up license, with the right to sublicense (to its Affiliates, independent contractors, and sub-processors) for the Services Period, to collect, store, process, use, reproduce, encrypt, display, and transmit the Company Data, solely as necessary to provide and perform the Services and as otherwise may be instructed or agreed in writing by Company (including via the Portals).
8.4 Feedback. If Company or any of Users provides Seagate with any suggested improvements or enhancements, features, or other feedback relating to Services (“Feedback”), then Company agrees that any suggestions are not Company Confidential Information and 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 Feedback in the sole discretion of Seagate or its Affiliates. Company shall not provide any of such Feedback without the right to do so and the ability to grant the above license therefor.
8.5 Software. Software is licensed not sold. Any software that is included with or as part of the Services may be subject to a separate end-user license agreement. Company (and Users) shall comply with the terms of all end-user license agreements that are either included in the Services Agreement or provided with the Lyve Services (“EULAs”)
8.6 Attachment Order, Bankruptcy, Assignment to Creditors. If Company becomes subject to an attachment order, bankruptcy, liquidation, assignment for the benefit of creditors, or similar disposition of assets, Company shall notify the bailiff levying the attachment, insolvency practitioner, and administrator that Seagate owns all proprietary rights relating to the Portals, Services, and any included hardware.
9.1 Confidential Information. “Confidential Information” means all non-public information regarding either party or the Services or Portal that is clearly marked or identified in writing as confidential at the time of disclosure or that should reasonably be understood to be confidential given the nature of the information or the circumstances surrounding its disclosure. Confidential Information includes: (a) Company Data, (b) both parties’ sales and marketing plans, designs, and technical data, (c) Services not yet announced or made public, and (d) the quantity and prices of Services sold to Company.
9.2 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 the information to exercise the receiving party’s rights and perform its duties under this Agreement and who have at least an equivalent confidentiality obligation regarding the disclosing party’s Confidential Information, as those set out herein. Further, Seagate may share and disclose Company Data as agreed by Company under this Agreement and as Company and Users instructs or consent through the Services. The recipient of Confidential Information shall not use Confidential Information except as necessary to perform its obligations or exercise its rights under the Agreement.
9.3 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, (e) is developed independently by the receiving party without having access to or use of the Confidential Information, (f) is aggregated or anonymized data (such as Telemetry Data) regarding Company use of the Services that does not contain any Personal Data or customer-specific information; or (g) is Feedback.
9.4 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.
9.5 Confidentiality Expiration. The obligation of confidentiality expires 3 years after the date of disclosure of the Confidential Information.
9.6 Other Agreements. The parties may enter into separate non-disclosure agreements governing specific disclosures. To the extent the terms governing a specific disclosure are more restrictive than the terms of this Agreement, the more restrictive terms will control for the specific disclosure.
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 THE TOTAL FEES PAID, NET OF ALL DISCOUNTS AND REFUNDS, TO SEAGATE BY COMPANY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INITIAL CLAIM DIRECTLY CAUSING THE LIABILITY.
10.2 No Consequential Damages. NEITHER SEAGATE, ITS AFFILIATES, NOR ITS LICENSORS WILL BE LIABLE TO COMPANY OR ITS AFFILIATES OR 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. FURTHER, NEITHER SEAGATE, ITS AFFILIATES, NOR ITS LICENSORS WILL BE WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) COMPANY’S OR USERS’ INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) SUSPENSION THREAT OR EXPIRATION, TERMINATION, OR SUSPENSION OF THIS AGREEMENT OR USE OF OR ACCESS TO THE SERVICES, (II) DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) EXCEPT AS EXPRESSLY SET FORTH IN THE SERVICE LEVEL AGREEMENT IN EXHIBIT A, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OF OR FAILURE TO STORE ANY COMPANY DATA, CONTENT, OR OTHER DATA. THE LIMITATIONS IN THIS SECTION 10 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE DISCLAIMERS SET FORTH IN THIS SECTION 10.2 DO NOT APPLY TO OR LIMIT COMPANY’S LIABILITY FOR (A) ANY BREACH OF ANY LICENSES OR RIGHTS GRANTED THIS AGREEMENT OR IN ANY SERVICES TERMS OR COMPANY’S INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF SEAGATE, OR (B) COMPANY’S BREACH OF SECTION 2.4 (USE RESTRICTIONS), SECTION 4 (DATA, PRIVACY, SECURITY, AND TELEMETRY), OR SECTION 9 (CONFIDENTIALITY) OF THIS AGREEMENT.
10.3 Free Offerings. Seagate will bear no liability (including for any direct, indirect, consequential, special, incidental, punitive, exemplary, cover, or reliance damages) in connection with offerings, Services, services, and code Seagate provides or makes available free of charge or payment obligation.
10.4 Purpose and Applicability. THE PURPOSE OF THIS SECTION 10 IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES 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.
10.5 Exclusions. Some laws do not allow the exclusion of implied warranties, or disclaimers or limitations of liability for incidental or consequential damages or willful misconduct or gross negligence; the limitations of liability and disclaimers in this Agreement will apply only to the extent permitted by applicable law.
11. TERM AND TERMINATION
11.1 Agreement Term. This Agreement is effective as of the Effective Date, and will continue according to its terms until terminated.
11.2 Services Period and Renewal. The initial Services Period for each of the Services ordered is specified in the Order or the Services Agreement containing the order details (respectively, an “Initial Period”). Respectively, for each Service, the Initial Period and each renewal term of the applicable Services are individually referred to as a “Services Period”. Each Services Agreement may set forth additional details about the Initial Period, Services Period, termination, and renewal, respectively, for the ordered Service(s).
11.3 Termination for Inactivity. If Company does not actively use any Services during the prior 6 months, Seagate may terminate this Agreement (and close Company’s Services and Portal accounts) upon 30 days’ notice.
11.4 Termination for Cause. Either party may terminate this Agreement, including all Company Orders and Services Agreements, immediately if the other party breaches a material obligation of this Agreement or the applicable Services Agreement or Order and fails to cure the breach within 30 days after receiving written notice of breach from the non-breaching party. Seagate may terminate this Agreement in its sole discretion should Company not resolve nonpayment or a Suspension Threat within 10 days following notice from Seagate (including any suspension notice). In addition, Seagate may terminate this Agreement immediately for breach of Section 2.4 (Use Restrictions), Section 13.4 (International Trade Compliance) or international trade requirements included in a Services Agreement.
11.5 Termination for Insolvency. Either party may terminate this Agreement immediately if (a) a receiver is appointed for the other party or its property, (b) the other party makes an assignment for benefit of its creditors, (c) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor’s relief law, or (d) the other party liquidates or dissolves its business or attempts to do so.
11.6 Effect of Termination or Expiration. Upon the termination or expiration of the Agreement, all Company’s and Users’ rights to the Services immediately terminate. Termination or expiration of this Agreement will not relieve either party from any payment obligation to the other party. Except as otherwise specified in this Agreement or the applicable Services Agreement, termination of the Agreement or of any Services will not entitle Company to any refund of or relief from payment of any Fees paid or payable under this Agreement for Services provided. Company is not entitled to recover any compensation from Seagate due to expiration or termination of this Agreement. Regardless of the grounds for termination, Company shall return all Lyve Hardware as described in the Services Terms upon termination or expiration of the Services for which the Lyve Hardware is provided. Company waives the benefit of any law or regulation providing compensation arising from the termination or failure to renew this Agreement and Company warrants that its waiver is irrevocable and enforceable by Seagate.
11.7 Termination Processes, Data. The applicable Services Agreement sets forth the processes for termination of the Services including the deletion and retrieval of the Company Data. It is Company’s responsibility to back up or remove Company Data from the Lyve Services before the end of the Services Term, and before returning Lyve Hardware. Seagate will have no liability arising out of any damage to or loss of stored data after the end of the Services Term or in connection with returned Lyve Hardware.
12. DISPUTE RESOLUTION
12.1 Governing Law, Venue, and 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.
12.2 Binding Arbitration. Any dispute or claim between Seagate and Company relating to the Agreement, the Services, or Portals will be resolved through individual arbitration. As used in these arbitration provisions, “Seagate” includes its predecessors, successors, assigns, parents, subsidiaries, and Affiliates, and each of their respective officers, directors, employees, and agents; and “Company” includes Company’s users, Users, and beneficiaries of the Services. The parties shall submit their disputes to the following arbitration facilities, listed in order of descending precedence should any dispute involve more than one Territory: (a) Americas: American Arbitration Association facility in San Jose, California; (b) EMEA: International Arbitration Center in Amsterdam, The Netherlands; (c) APAC: Singapore International Arbitration Centre in Singapore. Company may deliver notice regarding arbitration to Seagate by mail at Seagate Technology LLC, Attn: Legal/Litigation Dept., 47488 Kato Road, Fremont, CA, 94538 USA. The arbitration will be administered pursuant to the arbitrator’s commercial arbitration rules as modified by the arbitration provisions of this Agreement. If the identified arbitrator will not administer the arbitration proceeding, the parties shall agree on a substitute arbitration organization, or if the parties cannot agree, the parties shall mutually petition a court of competent jurisdiction to appoint an arbitration organization that will administer a proceeding under the arbitration provisions in this Agreement. The arbitration will be resolved by a single arbitrator. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect each party’s confidential or proprietary information, including Company’s account information. The arbitrator will issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in a court of competent jurisdiction only if necessary for purposes of enforcing the arbitrator’s award. No party nor its Affiliates will enter into any court an arbitrator’s award that has been fully satisfied. Each party will be responsible for its own fees and costs except as provided in the commercial arbitration rules of the arbitrator.
12.3 Waiver of Jury Trial and Collective Relief. Seagate and Company each waive the right to a trial by jury for any claim arising in connection with this Agreement, the Services or Portals, whether in court or in arbitration. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party. The arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding. This waiver of collective relief is an essential part of this arbitration provision and cannot be severed from it.
12.4 Time Limitation. Subject to applicable law, any claim or action arising under this Agreement must be initiated within 2 years after the events giving rise to the claim first occurred, otherwise the claim will be permanently barred.
13.1 Changes to the Services. Seagate may change or discontinue any of the Services from time to time. Seagate will provide Company advance notice if Seagate discontinues material functionality of any of the Services that Company is using. Notice will not be required if the notice or notice period: (a) would pose a security risk or give rise to a potential intellectual property infringement claim in connection Services; (b) is economically or technically burdensome; or (c) would cause Seagate to violate applicable laws. If any of the Services has been retired and is end-of-life, subject to the Services Terms, Company and Seagate will each have the right to terminate the affected Services and Company will be entitled to a refund of the pro-rata portion of any unused Services Fees paid by Company for the remaining portion of the unused Services Period.
13.2 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, subject to Section 13.1 above, by posting a revised version on the Seagate website or by notifying Company in accordance with Section 13.1. Subject to the foregoing notice period, 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.
13.3 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 section.
13.4 International Trade Compliance. Company shall comply with all international trade, export control and other laws affecting Company Data and its use of the Lyve Services and Lyve Hardware. 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 Lyve 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 Subscription Services for such User should such User not be permitted to receive or use the Subscription 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.
13.5 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 is void unless expressly permitted by this Agreement. Seagate may assign or transfer this Agreement and any of the Seagate rights or delegate any of the Seagate obligations under this Agreement to any Seagate Affiliate, or to another party in connection with a merger, acquisition, or sale of substantially all of the assets to which the Services relate, by written notice to Company. Should Seagate transfer this Agreement to another party, such party is substituted for Seagate as party to this Agreement and Seagate is fully released from all of its obligations and duties to perform under this Agreement. 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.
13.6 No Third-Party Beneficiary Rights. Except as expressly set forth in this Agreement, only the parties named in this Agreement have any rights or remedies under this Agreement. There are no third-party beneficiaries to this Agreement. Company assumes joint and several liability for all its Affiliates’ and Users’ obligations relating to the Services including the payment for all Services provided to the Affiliates.
13.7 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.
13.8 Severability; Survival. The terms of this Agreement are severable. If any term is unenforceable for any reason, that term will be enforced to the fullest extent possible, and the Agreement will remain in effect. All obligations that by their terms or nature survive termination of this Agreement will continue until fully performed, provided that Sections 1, 2.2-2.5, 3.3, 3.4, 3.6-3.11, 4, 5.5-5.7, 6 (for 3 years), and 7-13 will survive any expiration or termination of this Agreement.
13.9 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. Notwithstanding the foregoing, if Company is party to an existing executory agreement with Seagate governing Company’s access to and use of any Portals (including as part of Services Terms), then the agreements and terms specific to the respective Portal (as amended from time to time by Seagate) shall supplement this Agreement and the applicable Services Agreement until the earlier of (y) the expiration or termination this Agreement or the Services Agreement, or (z) the Portal terms are amended or superseded as agreed by 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.
13.10 Notices. Except as otherwise specified in this Agreement all notices between the parties in connection with this Agreement, Services, and Portals, must be in writing and will be effective when delivered to the notice addresses designated on the Services Agreement or the Order if not included on the Services Agreement. All legal notices to Seagate shall be delivered in writing to “Legal Notices” at the applicable address for the Seagate contracting party identified in Section 3.2 this Agreement. Seagate may provide Company notices via electronic mail to Company’s contact through the Portal.
13.11 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.
13.12 No Waiver. Except as expressly set out herein, no party's failure or delay to exercise any of its rights under this Agreement will be deemed a waiver of forfeiture of those rights.
13.13 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.
13.14 U.S. Government Rights. This Section 13.14 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 Services. 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. Each Services Agreement may add other information regarding security and sub-processors.
COMPRISING EXHIBITS A - F
SERVICE LEVEL REQUIREMENTS
“Lyve Cloud Services” means the Services directly related to 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.
This Exhibit A (“Exhibit A”) describes the maintenance and technical support to be provided under the Agreement. Company’s sole and exclusive remedies and Seagate sole and exclusive obligations for any performance or support issues are as provided in this Exhibit A.
Lyve Cloud Services Commitment
Each calendar month, Seagate shall use commercially reasonable efforts to make the Lyve Cloud Services available with an uptime as more fully set out below (“Monthly Uptime”). In the event Lyve Cloud Services do not meet the Monthly Uptime, Company will be eligible to receive a Lyve Cloud Services Credit as described below.
Lyve Cloud Services Credits
The parties calculate Lyve Cloud Services Credits as a percentage of the total charges paid or owed by Company for the applicable Lyve Cloud Services affected for the billing cycle for the respective Monthly Uptime requirements as set out below.
|Monthly Uptime||Lyve Cloud Services Credits|
|Less than 99.5% but greater than or equal to 99.0%||10%|
|Less than 99.0% but greater than or equal to 95.0%||25%|
|Less than 95.0%||100%|
Seagate shall credit to Company any Lyve Cloud Services Credits against future payments otherwise due from Company for the Lyve Cloud Services. Lyve Cloud Services Credits will not entitle Company to any refund or other payment from Seagate. The parties shall not transfer or apply to any other account the Lyve Cloud Services Credits. Company’s sole and exclusive remedy for any unavailability, non-performance, or other failure by Seagate to provide the Lyve Cloud Services is the receipt of a Lyve Cloud Services Credit (if eligible) in accordance with these terms.
Credit Request and Payment Procedures
To receive a Lyve Cloud Services Credit, Company shall submit a written claim to Seagate by the end of the second billing cycle after which the incident occurred and will include:
Should Seagate confirm the actual Monthly Uptime applicable to the month of such request is less than the applicable Monthly Uptime requirement, then Seagate shall issue the Lyve Cloud Services Credit to Company within 1 billing cycle following the month of the confirmed request.
Should Company Data be unencrypted, then Seagate shall encrypt the Company Data using (a) encryption keys provided by Company, or (b) should Company not provide such encryption keys, then Seagate shall encrypt such Company Data using Seagate’s key management system.
Lyve Cloud Services Exclusions
The Monthly Uptime does not apply to any unavailability, suspension or termination of an Lyve Cloud Services, or any other Lyve Cloud Services performance issues: (i) caused by factors outside of Seagate reasonable control, including any force majeure event under Section 14.7 or Internet access or related problems beyond the demarcation point of the Lyve Cloud Services; (ii) that result from any actions or inactions of Company or any third party; (iii) that result from Company’s equipment, software, other technology, or third party equipment, software or other technology (other than third party equipment within Seagate direct control); (iv) reasonable, planned and announced downtime for upgrades to Lyve Cloud Services; or (v) arising from Seagate suspension or termination of Company’s right to use the Lyve Cloud Services in accordance with the Agreement (collectively, the “Exclusions”). If availability is impacted by factors other than those used in the Seagate calculation of the Monthly Uptime, then Seagate may issue a Lyve Cloud Services Credit to Company considering such factors at the Seagate discretion.
Seagate has a fair-use policy mechanism to ensure that all Seagate customers can successfully utilize the Lyve Cloud Services regardless of the load conditions. Seagate strives to prevent Users from utilizing excess Lyve Cloud Services at the expense of other Users.
For each Seagate User account, this fair-use policy mechanism dynamically controls the amount of concurrent API requests as well as the upload, download, and Lyve Cloud Services resources. The resource allocations for each User account depends on the storage volume. For example, a User with 1 PB or more of Lyve Cloud Services storage will receive a higher resource allocation than a User with 1 TB of Lyve Cloud Services storage.
Information Security Program
Seagate shall carry out the Information Security Program set out in Exhibit D.
“Error Rate” means: (i) the total number of internal server errors returned by the Lyve Cloud Services divided by (ii) the total number of requests for the applicable request type during that 5-minute interval. Seagate shall calculate the Error Rate for each Lyve Cloud Services account as a percentage for each 5-minute interval in the monthly billing cycle. The calculation of the number of internal server errors will not include errors that arise directly or indirectly as a result of any of the Exclusions.
Monthly Uptime is calculated by subtracting from 100% the average of the Error Rate from each 5-minute interval in the monthly billing cycle. If Company does not make any requests in a given 5-minute interval, that interval is assumed to have a 0% Error Rate.
A “Lyve Cloud Services Credit” is a dollar credit, calculated as set forth above, that Seagate may credit back to a Company Lyve Cloud Services account for use for additional Lyve Cloud Services.
** end of Exhibit A **
Company shall pay the Fees as set out below:
** end of Exhibit B **
Seagate shall provide the following support of Lyve Cloud Services:
1.1 “Incident” means an unplanned interruption or reduction in service quality of the Lyve Cloud Services.
1.2 “Support Interface” means the Seagate support interface made available to Company by Seagate, which may include some or all of the following: a knowledge base, on-line case tracking, frequently asked questions, a download page for Updates and Upgrades, and documentation.
1.3 “Updates and Upgrades” means subsequently released versions of the Lyve Cloud Services. Updates and Upgrades do not include any products that Seagate licenses separately from the Lyve Cloud Services or for an additional fee to any of Seagate’s customers.
1.4 “Workaround” means a modification or “patch” for a particular version of the Lyve Cloud Services, or instruction to Company, which may be of a temporary or interim nature, and which avoids, corrects, or circumvents issues that impact service quality. Any Workaround will be supported by Seagate until a resolution is in effect.
2. Maintenance and Support. In consideration of payment made in accordance with the Agreement of the Fees, Seagate shall provide Maintenance and Technical Support as further described herein.
3. Maintenance. Seagate shall use reasonable efforts to maintain the Lyve Cloud Services so that they operate at a predetermined service quality levels (“Maintenance”).
4. Technical Support
4.1 Eligibility. The Technical Support (defined below) is for Company. Users are not eligible for any support under this Agreement.
Support. Subject to Section 4.1 of this Exhibit C, Seagate shall provide the support as described herein to assist in Company’s use of the Lyve Cloud Services and resolve Incidents in the Lyve Cloud Services (“Technical Support”). Technical Support is available globally on a 24x7x365 basis through the Support Interface.
4.2 For Incidents initiated by Company, Seagate shall log, track and use reasonable, professional and workmanlike efforts to restore the services to the agreed upon service quality.
4.3 Acknowledgement. Seagate agrees to use reasonable efforts to acknowledge Incidents and provide Workarounds reported to Seagate by Company through the Support Interface. Acknowledgements will be sent to Company via email or through the Support Interface. For any Severity 1 Incident, acknowledgement will not be satisfied by automatically generated acknowledgement only.
4.4 Incident Severity Levels, Response Times, and Restoration. Once Company has reported an Incident to Seagate, Seagate shall respond to the Incident, and/or restore the service within the timeframes in the table below.
|Severity Level||Business Impact||Description||Definition||Escalation||Response Time||Follow-Up Time||Restore Time|
|Severity 1||Very Serious||Production system down||Company business operations halted and users are unable to complete daily operations.||Seagate immediately notifies Company Support Management||Immediate, or within 30 minutes||1 hour||Seagate shall use reasonable efforts to provide a workaround within 8 hours|
|Severity 2||Critical||Severe functionality loss||Company cannot perform key business functions||Seagate immediately notifies Company Support Management||Immediate, or within 30 minutes||4 hours||Seagate shall use reasonable efforts to provide a workaround within 24 hours|
|Severity 3||Important||Limited functionality||Issue impacts minor business operations||Next scheduled patch release or acceptable workaround||12 hours||24 hours||Use reasonable efforts to include with next scheduled patch release or acceptable workaround|
|Severity 4||Minor||Non-server, frequently asked questions or documentation issue||Issue has minimal impact on business operations||Next scheduled patch release or acceptable workaround||24 hours||1 week||Use reasonable efforts to include with next scheduled patch release or acceptable workaround|
4.6 Seagate will establish a monthly technical review in which Company may ask questions about the Lyve Cloud Services of Seagate. The purpose of such technical review is to empower the Company to successfully address objections, concerns, and questions regarding the Lyve Cloud Services.
4.7 Seagate and Company shall conduct a calendar quarterly business review to discuss the state of the relationship between the parties in light of this Agreement, and review the forecast of future sales opportunities of Lyve Cloud Services.
** end of Exhibit C **
INFORMATION SECURITY PROGRAM
Seagate will implement, maintain, monitor and, where necessary, update a comprehensive written information security program that contains appropriate administrative, technical, and physical safeguards to protect Company Data (including personally identifiable information) against anticipated threats or hazards to its security, confidentiality or integrity (such as unauthorized access, collection, use, copying, modification, disposal or disclosure, unauthorized, unlawful, or accidental loss, destruction, acquisition, or damage or any other unauthorized form of processing) (“Information Security Program”).
Company acknowledges that the Information Security Program is subject to technical progress and development and that Seagate may update or modify such program from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Lyve Cloud Services purchased by the Company.
Seagate does not review, edit, or take any responsibility for data, content or material created, stored or made accessible through the Lyve Cloud Services, and, as a result, does not accept responsibility from Company or its Affiliates or Users for any resulting damages or liabilities arising therefrom.
Seagate reserves the right to investigate any violation of this policy or misuse of the contract services. Seagate may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
** end of Exhibit D **
PROCESS FOR TERMINATION OF LYVE CLOUD SERVICES
When a party desires to terminate the Lyve Cloud Services, the parties shall follow the process set out below in this Exhibit E:
Notice of Termination by Company:
Notice of Termination by Seagate:
** end of Exhibit E **
** end of Exhibit F **