LYVE SERVICES CLICKWRAP AGREEMENT

PLEASE READ THIS LYVE SERVICES CLICKWRAP AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING TO ACCEPT THE TERMS OF THIS AGREEMENT OR BY TAKING ANY STEP TO SET UP, ACCESS, OR USE THE SERVICES, YOUR COMPANY (“COMPANY”) ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS 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 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 Agreement is entered into by the applicable Seagate entity(ies) below (individually and collectively, “Seagate”) as of the date Company clicks to accept these terms as indicated in the first paragraph above (“Effective Date”). Where an Order is placed by Company or any Company Affiliate indicates that Seagate will provide any Services to Company in a Territory below, then the applicable Seagate party as identified below for such Territory will be deemed to provide such Services. Company and each Seagate party providing Services hereunder are parties to this Agreement.

 

For Americas
Seagate Technology LLC
47488 Kato Road, Fremont, CA 94538 USA
For EMEA
Seagate Technology (Netherlands) B.V.
Tupolevlaan 105, 1119 PA Schiphol-Rijk, The Netherlands
For Singapore
Lyve (SG) PTE. LTD.
90 Woodlands Avenue 7, Singapore (737911)
For Japan
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 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.

Stored 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 user and administrator manuals and documentation regarding the use of the Services generally 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).

High-risk Activities” means 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.

“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 the USA registered trademark with the serial number 90558928) and in other countries of the world.

Order” means any purchase, order, or ordering documents for the Services (e.g., a Seagate quote) signed or separately agreed to by the parties in writing, and incorporates by reference this Agreement. Orders set forth details for the Services ordered such as pricing, Services Period, Territory, and related information, and may include descriptions, Documentation, service level agreements, Support Programs, information security, data privacy, Fees, additional usage rights or licenses, statements of work and additional terms as may apply to the specific ordered Services.

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 Lyve Services Portal is located at https://<account_id>.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 as identified in the table immediately below or as separately agreed in writing by the parties that may include purchasing details (such as pricing, Services Period, and related information) and incorporates by reference this Agreement, and the Services Terms for the Services ordered.

Services Agreement Addenda

Exhibits

·         Lyve Cloud

A-E

·         Lyve Archive

C-E, I

·         Lyve Managed Migration

D-E, M

·         zCompute

D, E, Z

·         Iguazio Analytics

D, E, AA

·         Business Associate Addendum

BA

 

 

Services Period” has the meaning set forth in Section 11 below.

Support Program” means the Seagate support and maintenance services program specified in the applicable Services Agreement.

Territory” means the country(ies) 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, customer, or other user authorized by Company.

1.2 Scope. This Agreement governs Company’s purchase of, access to, and use of the Services. To the extent of a conflict between the terms of this Agreement and any of the Services Agreements, the Services Agreements will govern. However, to the extent of a conflict between the terms of this Agreement and terms governing access or use of the Portals, the terms of this Agreement will govern. In addition, the Services and Portals may contain links to Seagate.com. Access to and use of Seagate.com and materials and content available there, are governed by the terms of use located at https://www.seagate.com/legal-privacy/terms-and-conditions/ and the privacy policy located at https://www.seagate.com/legal-privacy/lyve-cloud/data-privacy-terms/#ps.

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 the 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 Order 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 Stored 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 or any other purpose outside of each Users’ trade, business, craft or profession, or for use in any High-risk Activities; 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 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 Order, additional access credentials (such as usernames, 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’s non-compliance with Section 2.7 of the Data Privacy Agreement, Company is responsible for all activity accessing or occurring under Company’s and Users’ accounts or with User’s Access Credentials. 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 Agreement. 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 Compliance with Laws. Company shall comply, and shall ensure that its Users comply, with all laws in connection with the access, use, (and resale where authorized) of the Portals and the Services. Company is responsible for ensuring that its use of the Services to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements. Company shall store any credit card and tax identification data only in the designated fields for credit card and tax identification data.

2.5 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 data, information, or material 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 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 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.

2.6 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, and, to the extent there is a conflict between the terms of such Third-party Content and the terms of this Agreement, the terms of the Third-party Content will govern solely insofar as such terms directly pertain to such Third-party Content. 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.

2.7 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 Stored 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 pursuant to the Services Agreement. 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 in this Section, which will be the sole Seagate Affiliate obligated to perform the Services per the Services Agreement or Order in the Territory. With respect to each Services Agreement or Order in the applicable Territory, 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. If Company selects to pay by credit card, Seagate will charge Company’s credit card for each billing cycle. Alternatively, if Seagate extends credit terms to Company, then Seagate will invoice Company at the end of each payment period. 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, and amounts charged to Seagate from Company’s bank for insufficient funds.

3.5 Credit Card Payments Information. If Company elects to pay the Fees by credit card, Company authorize Seagate to charge the Fees to the credit card Company identifies on the request form in the ordering process. Company authorizes Seagate to verify the account has credit available to cover Company’s anticipated Fees. Company shall provide current and complete information for Company’s credit card account and Company’s contact information, including, if applicable, the legal business name, the physical address where Company will be using the Services, Company’s email address, and Company’s phone numbers. Company shall promptly update Seagate if any of this information changes.

3.6 Credit Terms (Pay-by-Invoice). To qualify for credit terms with Seagate, Company must meet the following requirements: (a) Company must order at least US$10,000 per month of Services and at least US$100,000 in total value; (b) Company must provide Seagate with audited financial history (at a minimum, the annual financial reports for Company’s two most recent fiscal years, and Company’s four most recent quarterly financial reports) upon request; and (c) Company must complete and submit a credit application and documented proof of identity and business address upon request. Following Company’s initial credit application, Company may be required to provide Seagate with copies of Company’s annual report and quarterly statements within 60 days after the close of each of Company’s fiscal periods. Seagate may change Company’s credit line based on changes to Company’s credit history, financial condition, or additional purchases. If Company exceed Company’s credit line or do not qualify for continued credit terms for a purchase, Seagate may determine that it is unable to offer Company additional services. Seagate’s support team will contact Company to start the process of obtaining credit from Seagate after Company’s completes registration to pay-by-invoice through the Portals.

3.7 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 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.

3.8 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.

3.9 Collection Costs. 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. If Company changes its telephone number or other contact information without notifying Seagate, Company will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Seagate or Seagate’s collection agent as a result of any attempt to collect any debt through the telephone number or contact information Company provided, including any costs or liabilities associated with misdirected calls.

3.10 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 Stored 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.

3.11 Transaction Taxes. Unless the Order expressly states otherwise, the Fees do not include any transaction taxes, levies, or duties, such as value-added, sales, 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. If Company is required for tax compliance purposes to notify applicable tax authorities that Seagate provided Services to Company (such as digital platform or other services subject to the 7th amendment to Council Directive 2011/16/EU or ‘DAC7’), Company shall so notify Seagate in writing within 30 days after it is made. 

3.12 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 Company shall pay such taxes 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.

3.13 Tax Indemnification. Company shall indemnify and hold harmless Seagate Indemnitees against any inventory taxes, personal property taxes, or use taxes (other than taxes on Seagate’s income), duties, or fees asserted against Seagate arising out of Company’s use of the Services; 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, or transfer (“Process”) 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 (by way of an explicit and affirmative action on part of the data subjects to the extent required by applicable law) 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 any other similar laws. Company represents to Seagate and its contractors, and its 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.

4.2 The Processing of Stored Data is an essential feature of the Services. Company consents to Seagate’s, its contractors’ and its Affiliates’ collecting, storing, processing, and transmitting Stored Data and Personal Data included therein. This Agreement incorporates the Lyve Privacy Policy located at https://www.seagate.com/legal-privacy/lyve-cloud/data-privacy-terms/#sps, as may be updated from time to time. Section 8 (Intellectual Property Rights) and the Services Agreement include additional terms regarding Stored Data and Personal Data. This Agreement incorporates by reference the data privacy terms for the Services located at https://www.seagate.com/legal-privacy/lyve-cloud/data-privacy-terms/#dpa, including its exhibit therein (the “Data Privacy Agreement”) as may be updated from time to time. Unless (i) inclusion of protected health information is clearly noted in the applicable Order and (ii) the parties include a Business Associate Addendum as a Services Agreement. Company represents and warrants that it and its Users will not utilize the Services to Process (as defined by the Data Privacy Agreement) protected health information subject to the Health Insurance Portability and Accountability Act or other information (such as special categories of personal data within the meaning of Art. 9 GDPR) that requires Company to enter into specific contractual arrangements and/or additional compliance steps or measures that extend beyond the provisions of the Data Privacy Agreement. Company shall indemnify and hold harmless Seagate and its Affiliates against all claims or actions arising from the breach of the prior sentence or breach of Company’s obligations under the Data Privacy Agreement.

4.3 In the event of: (a) any change to the terms of the Services and/or the Portal which directly or indirectly has any impact on the Data or Processing thereof; or (b) any change to the basis on which consent was obtained from data subjects in relation to the Processing of the Data, in accordance with Section 13.2, it shall be the sole responsibility of the Company to: (i) inform the data subjects of such change; (ii) obtain prior updated consents from such data subjects for Processing of such Data; (iii) inform Seagate of its compliance with the requirements under Applicable Laws with respect to such change and the obligations under this Agreement and any Services Agreement; and (iv) maintain copies of consents obtained from the data subjects, for any purpose as Seagate may require.

4.4 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. Stored Data does not include Telemetry Data. Seagate does not access or transmit Stored Data as part of the Telemetry Data. Seagate retains all rights, title, and interest to the Telemetry Data.

5. WARRANTIES AND DISCLAIMERS

5.1 Limited Warranties. During the Services Period, Seagate warrants to Company that:

(a) Limited Warranty of FunctionalityDuring the Services Period, the Services will in all material respects, provide the functionality set forth in the applicable Services Agreement.

(b) VirusesSeagate shall use reasonable efforts, using applicable current industry practices, to prevent the Services, from containing any identified computer virus, Trojan horse, trap door, worm, or other similar malicious code.

(c) Compliance with Law. The Services will comply with all laws applicable to Seagate in its provision of the Services.

(d) Enter into the AgreementSeagate has the right to enter into this Agreement.

5.2 Performance Remedy. Subject to any applicable service level agreement in the applicable Services Agreement, if any of the Services 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 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 and Order, and Company and its Users shall cease use of the Services. 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 Stored 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 Stored Data infringes or misappropriates any Intellectual Property Rights. Company has the right to enter into this Agreement.

5.5 Warranty Exceptions and Limitations. The warranties made by Seagate in this Agreement do not cover, and Seagate will have no liability or responsibility for, any problems caused by (a) accident, abuse, neglect or use beyond the Services; (b) improper or unauthorized installation, operation, maintenance, or modification; (c) any misuse contrary to the instructions in the Documentation; (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 2.5, or use the Services in violation of the Agreement, Services Agreement, or applicable law. The warranties made by Seagate in this Agreement do not apply to Stored Data or any other data stored or lost, or costs related to retrieving and returning any data.

6. DISCLAIMER OF IMPLIED WARRANTIES

6.1  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 AND CONDITIONS, 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 STORED DATA WILL BE SECURED OR NOT OTHERWISE LOST OR ALTERED.

7. INDEMNIFICATION

7.1 Indemnification by Seagate. Seagate shall defend and indemnify Company and its directors, officers and employees (“Company Indemnitees”), to the extent any third-party claim or action brought against Company, (a) alleges that any of the Services infringes a United States patent, copyright, or trade secret right, and (b) alleging personal bodily 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 ActionSeagate 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 and agree to the terminate the relevant Services Agreement. Seagate’s performance of any of these remedial actions in (a), (b), (c) or (d), and the indemnity provided under this Section 7.1, will constitute Company Indemnitees’ sole remedies 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. Seagate will have no obligations or liability arising from Company’s use of the Services after Seagate has notified Company to discontinue such use because of an infringement allegation under Section 7.1.

7.4 Exceptions. Seagate will have no obligation to defend or indemnify Company for any claim or action related to or arising out of the following (collectively (a) – (e), “Exceptions”):

(a) the use of any Services in any non-Seagate systems, including Company’s systems, any third party content or components, or the combination of any of the Services with the Company’s system or any third party content or components, if the cause of the infringement or claim is the system itself or the combination of the Services with such system or any of its components, including Seagate’s compliance with a specification or design provided by Company;

(b) 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;

(c) the use of Services for purposes not contemplated by this Agreement or its intended use; including any use of the Services in High-risk Activities and any modification to the Services not made by Seagate;

(d) a violation of law or a breach of this Agreement by Company or Users; or

(e) a dispute between Company and a User.

7.5 Indemnification by CompanyCompany shall fully indemnify and hold Seagate Indemnitees harmless against any claim or action brought against Seagate to the extent based on (a) any or all of the Exceptions, (b) any violation of law by Company or any of Users in connection with the Services, (c) Company’s or any of its Users’ failure to provide accurate information to Seagate, (d) any infringement of a third party’s Intellectual Property Rights, or (e) 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.

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 Stored 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 Stored Data and Company Confidential Information. No ownership interest in the Stored Data or Company Confidential Information is transferred or conveyed to Seagate by virtue of this Agreement.

8.3 License to Stored 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 Stored 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 such suggestions are deemed to not be Company Confidential Information and Company, or Users as may be required, 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, and shall take reasonable steps to prevent Users from providing, any 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 shall comply, and shall assure that its Users comply with the terms of all end-user license agreements that are either included in the Services Agreement or provided with the Services.

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 and Services.

9. CONFIDENTIALITY

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, (c) Services not yet announced or made public, and (d) the terms of this Agreement. Confidential Information does not include Stored Data.

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 Stored 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 disclosing party’s 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 ExpirationThe obligation of confidentiality expires 3 years after the date of expiration or termination of the Agreement.

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.

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 ANY LIABILITY TO ARISE.

10.2 Exclusion of Damages. NEITHER SEAGATE, ITS AFFILIATES, NOR ITS LICENSORS WILL BE LIABLE TO COMPANY OR ITS AFFILIATES OR USERS FOR ANY LOSS OF PROFITS, REVENUES, ANTICIPATED SAVINGS OR BUSINESS, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA, NOR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE) 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 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 OR UNAVAILABILITY 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 STORED DATA, CONTENT, OR OTHER DATA (OR THE VALUE OF ANY SUCH STORED 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 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 AGREEMENT OR COMPANY’S INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF SEAGATE, OR (B) COMPANY’S BREACH OF SECTION 2.5 (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 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.

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). If a Services Agreement does not specify otherwise, the Initial Period will be 12 months, and will renew automatically for renewal terms of 12 months each. Either party can stop the Services Period from automatically renewing by providing written notice to the other party of its intention to not renew at least 60 days prior to the end of the Initial Period, or any renewal term.

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 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 2.5 (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. 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 Stored Data. It is Company’s responsibility to back up or remove Stored Data from the Services before the end of the Services Term. Seagate will have no liability arising out of any damage to or loss of stored data after the end of the Services Term.

12. DISPUTE RESOLUTION

12.1 Governing Law, Venue, and LanguageThe 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 ArbitrationAny 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 waives 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. MISCELLANEOUS

13.1 Changes to the Services. Seagate may change or discontinue any of the Services from time to time. Seagate will provide Company advance communication if Seagate discontinues material functionality of any of the Services that Company is using. Such communication will not be required if the communication or advance communication 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, 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 advance communication 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 Stored Data and its use of any Services. Company shall ensure, and require its Users to ensure, that 

a. for Portal and Services used in any member state of the European Union (“EU”) or United Kingdom will not be (i) used by a restricted party or a party owned or controlled by one or more restricted parties Consolidated Screening List (trade.gov/consolidated-screening-list) (EU restricted parties list are found on EU Consolidated Sanctions List (https://webgate.ec.europa.eu/fsd/fsf/public/files/pdfFullSanctionsList/content?token=dG9rZW4tMjAxNw); or (ii) used in destinations subject to other applicable economic sanctions;

b. for Portal and Services used outside the EU or United Kingdom will not be (i) used by a restricted party or a party owned or controlled by one or more restricted parties (U.S. government restricted parties lists are found at Consolidated Screening List (trade.gov/consolidated-screening-list)); or (ii) used in destinations subject to comprehensive U.S. embargoes on Cuba, Iran, North Korea, Syria, and the Crimea region or other occupied territory of Ukraine or in or in embargoed countries as determined by other applicable countries' laws affecting the Services;

c. will not be 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. will not be 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. will not be 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. 

13.5 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 Agreement 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 Agreement) serves as grounds for immediate suspension or termination of the 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.

13.6 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.

13.7 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 Users.

13.8 Force MajeureNeither 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.

13.9 Severability; Survival. This 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. Sections 1, 2.5, 3.3, 3.9, 3.11-3.13, 4, 5.4-5.7, 6, 7, 8.1-8.4, 9, 10, 11.6-11.7, 12, and 13 will survive any expiration or termination of this Agreement.

13.10 Entire Agreement; Amendments in WritingThis 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 Agreement), 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 Order or other document issued by Company or its Affiliates, even if later signed, processed, or accepted by Seagate. This Agreement may be changed expressly as provided for in this Agreement and by written amendment signed by both parties.

13.11 Notices. Except as otherwise specified in this Agreement, all notices between the parties must be in writing and sent to the email address, or physical mailing addresses specified in this Agreement or any other emails or addresses the parties may designate in writing. Such notice will be effective upon receipt by the other party. Provided both email and physical mailing are used, such notice will be effective upon receipt by the other party or 5 business days after posting the physical notice. All legal notices to Seagate must be delivered in writing to “Legal Notices” at CorporateContracts@seagate.com at the applicable address for the Seagate contracting party identified under this Agreement.

13.12 CounterpartsThe 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.

13.13 No WaiverExcept 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.

13.14 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.

13.15 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.

* *End of Agreement * *

 

ADDENDUM

LYVE CLOUD SERVICES AGREEMENT COMPRISES EXHIBITS A - E

EXHIBIT A

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 Stored Data.

This Exhibit A (“Exhibit A”) describes the maintenance and technical support Seagate provides 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 in the table 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 Lyve Cloud Services charges for the calendar month according to the respective Monthly Uptime percentages as set out in the table below.

Monthly Uptime

Lyve Cloud Services Credits

Greater than 99.5%

 

0%

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:

1. the words “Lyve Cloud Services Credit Request” in the subject line;

2. the billing cycle with respect to which Company is claiming Lyve Cloud Services Credits together with the dates and times of each incident; and

3. Company’s request logs that document claimed incident(s) when the Lyve Cloud Services did not meet the Monthly Uptime.

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.

Encryption

Should Stored Data be unencrypted, then Seagate shall encrypt the Stored Data using (a) encryption keys provided by Company, or (b) should Company not provide such encryption keys, then Seagate shall encrypt such Stored 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 13.7 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.

 

Definitions

“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 **

EXHIBIT B

PRICING

Company shall pay the Fees as set out below:

Pricing and Minimum:

  • Company shall pay U.S. $9.00 per Terabyte (“TB”) of Stored Data stored in Lyve Cloud Services per month, exclusive of applicable sales, value-added, use and similar taxes.
  • Company shall pay each month for a minimum of 1 Petabyte (“PB”) of Services. One PB equals 1,000 TBs.
  • The TB is calculated by the arithmetic average of the daily maximum Terabytes of Lyve Cloud Services used by Company and its Users for each day of the applicable calendar month. 
  • Unless specified otherwise in the applicable Order, Seagate shall invoice Company each month.
  • Company may be required to pay in a currency other than U.S. dollars pursuant to applicable local law.  

Initial Period, Renewal Periods, and Service Period:

  • The Initial Period for the Lyve Cloud Services will commence on the date on which Seagate makes the Lyve Cloud Services available to Company and end on the date 12 months thereafter. Each Order will automatically renew for an unlimited number of additional 12-month renewal periods.
  • Subject to other rights of termination or suspension set out in the Agreement, either party may stop such auto-renewal by providing notice to the other party not less than 60 days prior notice to the end of the Initial Period (or then-current renewal period of the Services Period) that it does not want the applicable Order to renew.
  • Seagate may increase the per-TB pricing for any renewal period by informing Company not less than 60 days, as applicable, prior to the end of the Initial Period or then-current renewal period of the Services Period. Any such adjusted pricing will be automatically integrated into this Exhibit B as to the applicable renewal period and Orders.

Territory:

For Lyve Cloud Services, the Territory is those countries where Seagate has data centers for Lyve Cloud Services and sells the Lyve Cloud Services therefrom. As Seagate adjusts the number of its data centers (whether through expansion or contraction), the Territory automatically and correspondingly adjusts.

** end of Exhibit B **

 

EXHIBIT C

SUPPORT

Seagate shall provide the following support of Lyve Services:

1. DEFINITIONS.

1.1. “Incident” means an unplanned interruption or reduction in service quality of the Lyve 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 Services. Updates and Upgrades do not include any products that Seagate licenses separately from the Lyve 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 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. MaintenanceSeagate shall use reasonable efforts to maintain the Lyve Services so that they operate at the predetermined service quality levels (“Maintenance”).

3. Technical Support

3.1. Eligibility. The Technical Support (defined below) is for Company. Other Users are not eligible for any support under this Agreement.

o Support. Subject to this Section 4.1, Seagate shall provide the support as described herein to assist in Company’s use of the Lyve Services and resolve Incidents in the Lyve Services (“Technical Support”). Technical Support is available globally on a 24x7x365 basis through the Support Interface.

3.2. For Incidents initiated by Company, Seagate shall log, track and use reasonable, professional and workmanlike efforts to restore the Lyve Cloud Services to the agreed upon service quality.

3.3. Acknowledgement. Seagate agrees to use reasonable efforts to acknowledge Incidents and provide Workarounds reported to Seagate by Company through the Support Interface. Seagate shall send acknowledgements to Company via email or through the Support Interface. For any Severity 1 Incident, acknowledgements will not be satisfied by an automatically generated acknowledgement only.

3.4. 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

** end of Exhibit C **

 

EXHIBIT D

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 designed to protect Stored 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. Subject to such updates and modifications, the Information Security Program will include the security controls identified below.

Seagate does not review, edit, or take any responsibility for data, content or material created, stored or made accessible through the Services, and, as a result, does not accept responsibility from Company or Users for any resulting damages or liabilities arising therefrom. 

Seagate reserves the right to investigate any violation of the Information Security Program or misuse of the Services. Seagate may report any activity that Seagate suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties, and assist all such parties with such investigations.

 

Information Security Controls for Lyve Cloud Services

 

Security Control Category

Description

1.       Governance

a.        Assign to an individual or a group of individuals appropriate roles and responsibilities for developing, coordinating, implementing, and managing Seagate’s administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Stored Data

b.       Use of data security personnel that are sufficiently trained, qualified, and experienced to be able to fulfill their information security-related functions

2.       Risk Assessment

a.        Conduct periodic risk assessments designed to analyze existing information security risks, identify potential new risks, and evaluate the effectiveness of existing security controls

b.       Maintain risk assessment processes designed to evaluate likelihood of risk occurrence and material potential impacts if risks occur

c.        Document formal risk assessments

d.       Review and approve formal risk assessments by appropriate managerial personnel

3.       Information Security Policies

a.        Create information security policies, approved by management, published and communicated to all employees.

b.       Review policies at planned intervals or if significant changes occur to ensure its continuing suitability, adequacy, and effectiveness.

4.       Human Resources Security

a.        Maintain policies requiring reasonable background checks of any new employees who will have access to Stored Data or Seagate Systems, subject to local law

b.       Regularly and periodically train personnel on information security controls and policies that are relevant to their business responsibilities and based on their roles within the organization 

5.       Asset Management

a.        Maintain policies establishing data classification based on data criticality and sensitivity

b.       Maintain policies establishing data retention and secure destruction requirements

c.        Implement procedures to clearly identify assets and assign ownership

6.       Access Controls

a.        Identify personnel or classes of personnel whose business functions and responsibilities require access to Stored Data, Seagate Systems and the organization’s premises

b.       Maintain controls designed to limit access to Stored Data, Seagate Systems and the facilities hosting the Seagate Systems to authorized personnel

c.       Review personnel access rights on a consistent basis

d.       Maintain physical access controls to facilities containing Seagate Systems, including by using access cards or fobs or other relevant physical access equipment issued to Seagate personnel as appropriate

e.       Maintain policies requiring termination of physical and electronic access to Stored Data and Seagate Systems after termination of an employee

f.        Implement access controls designed to authenticate users and limit access to Seagate Systems

g.       Implement policies restricting access to the data center facilities hosting Seagate Systems to approved data center personnel and limited and approved Seagate personnel

h.       Maintain Multi-Factor Authentication processes for Seagate employees with administrative access rights to Seagate Systems

7.       Cryptography

a.        Implement encryption key management procedures

b.       Encrypt sensitive data using a minimum of AES/256 bit ciphers in transit and at rest

8.       Physical Security

a.        Require two factor controls to access data center facilities

b.       Register and escort visitors on premises

9.       Operations Security

a.        Perform periodic network and application vulnerability testing using dedicated qualified internal resources

b.       Contract with qualified independent 3rd parties to perform periodic network and application penetration testing

c.        Implement procedures to document and remediate vulnerabilities discovered during vulnerability and penetration tests

10.    Communications Security

a.        Maintain a secure boundary using firewalls and network traffic filtering

b.       Require internal segmentation to isolate critical systems from general purpose networks

c.        Require periodic reviews and testing of network controls

11.    SDLC (System Development Lifecycle) Security

a.        Provide a framework for addressing security concerns through governance, review, testing, and evaluation of new systems development.

b.       Mitigate risk to production applications and infrastructure

12.    System Acquisition, Development and Maintenance

 

a.        Assign responsibility for system security, system changes and maintenance

b.       Test, evaluate and authorize major system components prior to implementation

13.    Supplier Relationships

Periodically review available security assessment reports of vendors or contractors hosting Seagate Systems to assess their security controls and analyze any exceptions set forth in such reports

14.    Information Security Breach Management

a.        Monitor the access, availability, capacity and performance of the Seagate Systems, and related system logs and network traffic using various monitoring software and services

b.       Maintain incident response procedures for identifying, reporting, and acting on Data Incidents

c.        Perform incident response table-top exercises with executives and representatives from across various business units

d.       Implement plan to address gaps discovered during exercises

e.        Establish a cross-disciplinary Data Incident response team

15.    Business Continuity Management

a.         Design business continuity program with goal of meeting specified RTO and RPO requirements

b.       Conduct scenario-based testing annually

16.    Compliance

 

a.        Establish procedures designed to ensure all applicable statutory, regulatory and contractual requirements are adhered to

** end of Exhibit D **

 

EXHIBIT E

PROCESS FOR TERMINATION OF LYVE SERVICES

When a party desires to terminate the Lyve Services, the parties shall follow the process set out below in this Exhibit E:

Notice of Termination by Company:

  • Company shall submit a support ticket to through the Support Interface indicating that Company desires to terminate the Lyve Services.
  • Seagate shall communicate with Company to confirm the authenticity of such support ticket.
  • Seagate shall update the support ticket confirming such authentication.
  • Should Company desire to reinstate the Lyve Services after Company provides the applicable termination notice and before the termination of the Lyve Services, Company shall so timely notify Seagate and the Lyve Services will not terminate and the above termination notice will be void.

Notice of Termination by Seagate:

  • Seagate shall suspend the Company account for Lyve Services approximately 24 hours before the termination of the Lyve Services.
  • On or about 30 days after the termination, Seagate shall delete all the Stored Data from the Lyve Services, subject to Section 9 of the Agreement.

 

** end of Exhibit E **