This Lyve Management Portal & Reseller Agreement (this “Agreement”) is entered into by you (“you” or “your”) and the following Seagate contracting party (“Seagate”):
|Location where Lyve Services will be provided||Seagate Party|
|Americas||Seagate Technology LLC
47488 Kato Rd., Fremont, CA, 94538, USA
|EMEA||Seagate Technology (Netherlands) B.V.
Tupolevlaan 105, 1119 PA Schiphol-Rijk, The Netherlands
|Japan||Nippon Seagate, Inc.
Tennoz Parkside Bldg., 2-5-8 Higashi-Shinagawa, Shinagawa-ku, Tokyo
This Agreement governs your access to and use of the Lyve Management Portal website at https://lyve.seagate.com (the “Lyve Portal”), the Lyve Data Transfer Services (which include hardware subscriptions), and additional services offered by Seagate on the Lyve Portal (collectively, the “Lyve Services”). Please read this Agreement carefully before you use the Lyve Portal. By clicking “I AGREE” or creating a Lyve Portal account or accessing or using the Lyve Portal, you agree to be bound by this Agreement. If you do not agree to this Agreement do not create a Lyve Portal account or use the Lyve Portal. You must be authorized by Seagate before acting, or marketing yourself as, an authorized reseller of Lyve Services (“Reseller”). Upon Seagate’s acceptance of you as a Reseller, you will be required to sign additional terms, including terms related to the following with respect to your end customers of the Lyve Services (“end customers”):
A Seagate sales representative will reach out to you assist you in registering you as a Reseller.
This Agreement is effective on the date you create an account with Lyve Portal and will remain in effect until terminated according to the terms of this Agreement.
By creating a Lyve Portal account or accessing or using the Lyve Portal, you represent that you are of legal age and capable of forming a binding contract with Seagate. If you are entering into this Agreement on behalf of a company or other entity, then you represent that you are an agent of that company or entity, authorized to enter into this Agreement on behalf of that company or entity, and in that case, “you” refers to your company or entity. If you are an Authorized User as defined in Paragraph 1.4, you agree that you will comply with the terms of this Agreement.
1. USE OF LYVE PORTAL
1.2 Other Terms and Control. The Lyve Services are governed by additional terms specific to the applicable Lyve Service (“Service Terms”). The Service Terms are available to you through the Lyve Portal, and at https://www.seagate.com/legal-privacy/lyve/service-terms/. To the extent of a conflict between the terms of this Agreement and the Service Terms, the Service Terms will govern. Third-party content, offerings, services, and websites (“Third-Party Content”) may be made available through the Lyve Portal or Lyve Services. Your use of Third-Party Content may be governed by third-party terms and end user license agreements. Seagate is not responsible or liable for any third parties or Third Party Content. Seagate does not make any representations, warranties, or guarantees with respect to the Third-Party Content. Use Third-Party Content at your own risk.
1.3 Access and Use. Subject to the terms of this Agreement, Seagate grants you a nontransferable, non-sublicensable, nonexclusive, revocable right to access and use the Lyve Portal during the term of this Agreement solely for your own internal business purposes. The Lyve Portal and Lyve Services are not provided for personal, family, or household use or purposes.
1.4 Authorized Users. You may allow your employees, contractors, and other users, to access and use the Lyve Portal and Lyve Services as Authorized Users subject to the terms of this Agreement and the Service Terms. Each individual that accesses the Lyve Portal or Lyve Services through your account is an “Authorized User”. You are responsible and liable for your Authorized Users’ acts and omissions. You are responsible for ensuring your Authorized Users comply with the terms of this Agreement. For clarity, you are an Authorized User if you enter into this Agreement and access the Lyve Services on your own behalf and account. If you are a Reseller, your end customers are not your Authorized Users; however, they may allow you to be their Authorized User, including for account ordering and administration.
2. YOUR RESPONSIBILITIES
2.1 Passwords, Accounts, Credentials. Seagate will issue credentials (such as passwords, usernames, and access keys and codes) that allow you and your Authorized Users to access the Lyve Portal and the Lyve Services. You are responsible for maintaining the confidentiality of your credentials. You are responsible for all electronic communications and other activity that takes place in your Lyve Portal and Lyve Services accounts; that is issued using your credentials; or that originates from the email addresses associated with your Lyve Portal and Lyve Services accounts. Seagate is entitled to treat any electronic communications it receives from your Lyve Portal or Lyve Services accounts as being a genuine communication from you. You are responsible for all access to, ordering, and use of the Lyve Portal or Lyve Services through use of your Lyve Portal or Lyve Services accounts, or your credentials, or Authorized Users’ credentials. You shall promptly notify Seagate of any unauthorized access or use of your credentials, Lyve Portal, or Lyve Services accounts, or email addresses associated with your Lyve Portal or Lyve Services accounts. You shall notify Seagate promptly (no later than 10 days) if you become aware of any security or data breach related to the Lyve Portal or any Lyve Services.
2.2 Cooperation. You shall provide information or other materials as reasonably requested by Seagate to verify your compliance with this Agreement. You shall reasonably cooperate with Seagate to identify the source of any problem with the Lyve Portal or the Lyve Services that may be attributable to your activities, actions, communications, content, materials, or those of your Authorized Users, or of you end customers when you are acting as a Reseller.
2.3 Compliance with Laws. You shall comply, and shall ensure that your Authorized Users comply, with all laws in connection with the use of the Lyve Portal and the Lyve Services. You are responsible for ensuring that your use of the Lyve Services to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements. You shall store any credit card and tax identification data only in the designated fields for credit card and tax identification data. You shall not use the Lyve Services to send any electronic communication that is unlawful, harassing, libelous, defamatory, or threatening.
2.4 International Trade Compliance. You shall comply with all international trade laws affecting any Lyve Services and Lyve Hardware. Further, the Lyve Services may not be used by restricted parties (U.S. government restricted parties lists found at: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) or engaged in activities related to weapons of mass destruction including, activities related to designing, developing, producing, or using nuclear weapons, materials, or facilities, missiles or supporting missile projects; or chemical or biological weapons; or military or military intelligence uses (including to process technical data controlled under the U.S. International Traffic in Arms Regulations). The Service Terms set forth additional international trade requirements for specific Lyve Services. If you apply for credit with Seagate without credit card information, you will be subject to international trade compliance validation.
2.5 Your Duty to Provide Accurate Information. You shall ensure that all information associated with your Lyve Portal and Lyve Services accounts, including your business name, address, phone number, and all other information submitted to Seagate to authorize payment, is accurate at all times. You shall also ensure as a Reseller that all the information submitted for and by your end customers is accurate at all times and not misleading. You shall immediately update Seagate if there is any change in the information associated with your or your end customers’ Lyve Portal or Lyve Services accounts. Your failure to provide accurate information to Seagate is a material breach of this Agreement. You shall defend Seagate against any claim or action and indemnify Seagate against any costs, losses or liability resulting from your failure to provide accurate information to Seagate, including resulting from Seagate attempting to contact you at a telephone number you have provided.
2.6 Privacy Notices. If you, or you allow any Authorized User or third party, including end customers, to, access or use the Lyve Portal or the Lyve Services to collect, store, process, or transmit any personally identifying information or personal data relating to any identifiable person (“Personal Data”), you shall provide legally adequate privacy notices to the required parties, and you shall obtain all necessary consents from the subjects of the Personal Data. You shall provide any required notices and obtaining any required verifiable parental consent under the Children’s Online Privacy Protection Act (COPPA) or similar laws. You shall obtain any required consent of individuals appearing in any images or videos. You represent to Seagate that you have provided all necessary privacy notices and obtained all necessary consents to allow you to access and use the Lyve Portal and the Lyve Services in accordance with the terms of this Agreement and applicable laws. You are responsible for notifying Seagate if any data collected or stored using the Lyve Portal and the Lyve Services must be deleted under applicable laws.
2.7 Data Related to Children. If you anticipate that you may use the Lyve Services in connection with websites, programs, or other applications that are directed or targeted, in whole or in part, to children under age 13 and subject to COPPA or similar laws you must provide all required notices and obtain all required verifiable parental consent under COPPA or similar laws. You shall not use the Lyve Services to store or retain voice or text utterance information from websites, programs, or other applications that are directed or targeted, in whole or in part, to children under age 13 and subject to COPPA or similar laws.
2.8 Using Lyve Services to Share Information with Third Parties. The Lyve Services include tools, features, and offerings that enable you 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 data and content shared by third parties. You acknowledge that third parties are not under Seagate’s control, and this Agreement is not binding upon third parties other than your end customers when you act on their behalf as a Reseller. Seagate is not responsible or liable for the acts or omissions of third parties or any Third-Party Content.
3. PROHIBITED USE
3.1 You shall not, and shall not allow any third party, end customer, or Authorized User to use the Lyve Portal or the Lyve Services for any illegal purpose, in violation of the rights of a third party, or in violation of any applicable laws, or for any harmful, abusive, or offensive purposes or activities, including activities or conduct that adversely reflect upon the name, reputation, or goodwill associated with Seagate or the Lyve brand.
3.2 You shall not, and shall not allow any third party, end customer, or Authorized User to rent, lease, resell, sublicense, distribute, reprovision, or share credentials or access to the Lyve Portal or the Lyve Services, including any hardware, physical components, and accessories deployed or provided to you as part of the Lyve Services (“Lyve Hardware”), or allow third parties to exploit the Lyve Portal or the Lyve Services, other than end customers when you are acting as a Reseller.
3.3 You shall not, and shall not allow any third party, end customer, or Authorized User to disable or circumvent any feature of the Lyve Portal or the Lyve Services that provides or enhances security, restricts access, meters or monitors use, or enforces limitations on use.
3.4 You shall not, and shall not allow any third party, end customer, or Authorized User to introduce to the Lyve Portal or the Lyve Services any virus, worm, time bomb, spyware, or other code, file or program that may or is intended to damage or hijack the operation of any hardware, software, system, environment, equipment, or negatively affect the security, integrity, or operation of the Lyve Portal or the Lyve Services.
3.5 You shall not, and shall not allow any third party, end customer, or Authorized User to share non-public features of the Lyve Portal or the Lyve Services with any third party, other than end customers when you are acting as a Reseller.
3.6 You shall not, and shall not allow any third party, end customer, or Authorized User to disassemble, decompile, reverse engineer, or translate any software or hardware made available in connection with or related to the Lyve Portal or Lyve Services, or attempt to discover any software source code, object code, or underlying proprietary information, except to the extent that this restriction is prohibited by applicable law.
3.7 You shall not, and shall not allow any third party, end customer, or Authorized User to disrupt, disable, or interfere with the integrity or performance of the Lyve Portal or the Lyve Services or third-party data contained therein.
3.8 You shall not, and shall not allow any third party, end customer, or Authorized User to modify, translate, adapt, merge, or make derivative works of the Lyve Portal or the Lyve Services, or frame or mirror or reproduce the presentation or navigational structure of any part of the Lyve Portal or the Lyve Services.
3.9 You shall not, and shall not allow any third party, end customer or Authorized User to remove or alter Seagate’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Lyve Portal or the Lyve Services.
3.10 You shall not, and shall not allow any third party, end customer, or Authorized User to use the Lyve Portal or Lyve Services for the purpose of mining cryptocurrency or any related activities.
3.11 You shall not, and shall not allow any third party, end customer, or Authorized User to use the Lyve Portal or Lyve Services or any data or materials obtained from the Lyve Portal or Lyve Services to build a competitive product or service, to build a product or service that uses ideas, features, functions, or graphics that are similar to the Lyve Portal or Lyve Services), or to copy any ideas, features, functions, or graphics of the Lyve Portal or the Lyve Services, or for any purpose competitive to Seagate (including competitive benchmarking).
4. ORDERING AND PAYMENT
4.1 Ordering Lyve Services. You may order Lyve Services as described below and as may be further detailed in the Service Terms. Each Lyve Services quote or ordering document accepted by you is an “Order”. Your Order constitutes your binding commitment for the Lyve Services set forth in the Order. After you register your Lyve Portal account, receive authorization from Seagate to be a Reseller, and continue to create a ‘project’ to order Lyve Services, Seagate may redirect you to an assisted sale via a Seagate sales representative, due to the size of your order or your selected payment method, or other criteria. After receiving your request for quote, Seagate may provide you with a quote (with pricing, subscription start date, etc.) or request additional information to create a quote. By accepting the quote, you agree to be bound by its terms. Additional service options may be available through an assisted sale, subject to further screening. You will not be charged until the hardware in the Order has shipped or performance of the Services in the order has started. Thereafter, Seagate will provide you an order confirmation that includes tracking information. If there is a conflict between this Agreement and any Order, the conflicting terms of the Order will control only with respect to the Lyve Services ordered under that Order. The terms of any acknowledgement or other counter terms will not have any effect unless agreed to in writing by Seagate. Seagate may redirect you to an assisted sale order flow where a Seagate representative may aid in the selection and ordering of the Lyve Services. Customers ordering through the assisted sale option may be eligible for additional service options, subject to additional screening where applicable.
4.2 Pricing. You will receive the pricing for the Lyve Services through the ordering process. Seagate may post descriptions of additional services and updated pricing online at any time. Updated pricing is immediately effective for all new Orders. For any Lyve Services with automatically renewing subscription terms, pricing from the original Order will remain in effect until Seagate provides you notice of updated pricing, and the new prices shall take effect on the date indicated in the price change notice or the applicable subscription term renewal date immediately following the notice, whichever is later.
4.3 Invoicing and Payment Terms. Seagate will calculate and invoice you for the fees according to your Order. You shall pay the fees when due. If you select the credit card payment option, Seagate will charge your credit card for each billing cycle. Alternatively, if Seagate extends credit terms to you, then Seagate will invoice you at the end of each payment period. You shall pay Seagate’s invoices in accordance with the payment terms on the Order. If you do not pay the invoiced fees on time, then Seagate may charge you a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less, until you pay the fees in full. Seagate’s failure to charge your credit card or issue you an invoice does not excuse your obligation to pay the fees.
4.4 Additional Fees. Additional fees may apply depending on the Lyve Service, including the following:
(a) Minimum Usages Fees. Lyve Services purchased by you may include a minimum usage commitment.
(b) Insufficient Funds. If Seagate is charged any fees or charges by your banking institution for insufficient funds in your account, you shall pay the fees or charges to Seagate.
(c) Hardware Fees. Hardware Fees are further described in the Service Terms, and may include delivery and return shipping for Lyve Hardware ordered and additional fees for Lyve Hardware lost or damaged beyond regular wear and tear.
(d) Upfront Fees. Upfront fees may apply to certain Lyve Services as stated in the Service Terms.
4.5 Credit Card Payments Information. If you elect to pay the fees by credit card, you authorize Seagate to charge the fees to the credit card you identify on the request form in the ordering process. You authorize Seagate to verify the account has credit available to cover your anticipated fees. You shall provide current and complete information for your credit card account and your contact information, including, if applicable, the legal business name, the physical address where you will be using the Lyve Services, your email address, and phone numbers. You shall promptly update Seagate if any of this information changes.
4.6 Credit Terms (Pay-by-Invoice). To qualify for credit terms with Seagate, you must meet the following requirements: (a) you must order at least US$10,000 per month of Lyve Services; (b) you must provide Seagate with audited financial history (at a minimum, the annual financial reports for your two most recent fiscal years, and your four most recent quarterly financial reports) upon request; and (c) you must complete and submit a credit application and documented proof of identity and business address upon request. Following your initial credit application, you may be required to provide Seagate with copies of your annual report and quarterly statements within 60 days after the close of each of your fiscal periods. Seagate may change your credit line based on changes to your credit history, your financial condition, or your additional purchases. If you exceed your credit line or do not qualify for continued credit terms for a purchase, Seagate may determine that it is unable to offer you additional services. Seagate’s support team will contact you to start the process of obtaining credit from Seagate after you complete your registration to pay-by-invoice through the Lyve Portal.
4.7 Right to Make Credit Inquiries. You authorize Seagate to make inquiries and to receive information about your credit experience from others, to enter and store this information, and to disclose this information to appropriate third parties for reasonable business purposes. 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-party credit bureaus will be done in conformance with all laws. Seagate may make additional credit inquiries after receiving payment from you for the Lyve Services.
4.8 Collection Costs. If Seagate uses a collection agency or attorney to collect money owed by you, you 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 you change your telephone number or other contact information without notifying Seagate, you 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 you provided, including any costs or liabilities associated with misdirected calls.
4.9 Debit Memos. Seagate will not accept any debit memos unless authorized in writing by Seagate. You are not entitled to any credit taken pursuant to any unauthorized debit memo.
5.1 Transaction Taxes. 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 compliance costs, charges related to any packaging directive or other assessments, that Seagate is legally obligated to charge (collectively “Taxes”). You are responsible for paying all Taxes, excluding Taxes based on Seagate’s income. If Seagate has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, Seagate will add the Taxes to your fees and you shall pay the Taxes to Seagate unless you provide Seagate with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.2 Inventory Taxes. You shall pay all inventory taxes, personal property taxes, or use taxes arising out of your, or your end customer’s possession, control, or use of the Lyve Hardware.
5.3 Tax Indemnification. You shall defend and indemnify Seagate against any inventory taxes, personal property taxes, or use taxes asserted against Seagate arising out of your possession, control, or use of the Lyve Hardware; any taxes that you are obligated to pay pursuant to this Section 5, but fail to pay; and any claims, causes of action, costs (including reasonable attorneys’ fees) and any other liabilities of any nature related to such taxes.
6. SUSPENSION AND TERMINATION
6.1 Subscription Term. The term of the Lyve Services is set forth in the Order for the Lyve Services based on the available options you select (the “Subscription Term”). The Service Terms provide additional details about the term and termination of specific Lyve Services. Termination or expiration of a Subscription Term does not automatically terminate this Agreement.
6.2 Termination for Inactivity. If you do not maintain an active subscription to any Lyve Services during the prior 6 months, Seagate may terminate this Agreement (and close your Lyve Portal accounts) upon notice to you. Upon the expiration of all Subscription Terms and the fulfilment of your obligations for all Orders under your account, you may terminate your account and this Agreement through the Lyve Portal or by contacting a Lyve agent.
6.3 Early Termination and Termination Fees. The Services Terms will provide the procedures and fees for terminating the Lyve Services before expiration of the Subscription Term.
6.4 Termination for Cause. Either party may immediately terminate this Agreement and all of your Lyve Service subscriptions and Lyve Portal accounts if the other party commits a material breach of any provision of this Agreement, the Service Terms, or any Order, and does not cure the breach within 30 days of written notice from the non-breaching party. The notice from the non-breaching party must state the reasons for the claimed breach in sufficient detail to provide the other party a meaningful opportunity to cure the alleged breach. Seagate may immediately terminate this Agreement upon notice to you if you breach Section 3 (Prohibited Use), or if you cease to operate in the ordinary course, make an assignment for the benefit of creditors or a similar disposition of assets, or become subject to any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.5 Suspension of Services. Seagate may immediately suspend your and your end customers’ access to the Lyve Portal or Lyve Services for any accounts in which any payment is past due. If not paid within 10 days after suspension, Seagate may terminate this Agreement and all of your accounts. In addition, Seagate may immediately suspend your access to the Lyve Services if: (a) Seagate reasonably concludes that the Lyve Services are being used to engage in denial of service attacks, spamming, or illegal activity, or the Lyve Services are causing immediate, material, or ongoing harm to anyone, or (b) you are in breach of Section 3 of this Agreement. Seagate will use reasonable efforts to limit the suspension to the offending use of the Lyve Portal or Lyve Services, and to reinstate Lyve Portal and Lyve Services promptly following resolution of the issues triggering suspension. Seagate will not be liable to you or any third party for any losses or claims relating to the suspension or termination of the Lyve Portal or the Lyve Services. You remain responsible for all applicable fees associated with your ordered subscriptions and services subject to and during any suspension imposed under this section.
6.6 Effects of Termination. Your rights to use the Lyve Portal and Lyve Services will immediately cease upon termination or expiration of your Lyve Portal account, or upon termination or expiration of this Agreement. In addition, your rights, and the rights of your end customers, to use the Lyve Services will immediately cease upon termination or expiration of the Subscription Term for the Lyve Service. If you terminate this Agreement or any Lyve Portal account under this Agreement for any reason other than as permitted by this Agreement or the applicable Service Terms or if Seagate terminates this Agreement or any Subscription Term or Order for a Lyve Service as a result of your, or your end customer’s, breach, then Seagate will be entitled to all of the unpaid fees due for the entire Subscription Term of all the terminated accounts. If you terminate this Agreement as a result of Seagate’s breach, then all of your Subscription Terms for Lyve Services will automatically terminate and you will be entitled to a refund of the pro rata portion of any subscription fees prepaid by you for the remaining portion of any unused Subscription Term. Regardless of the grounds for termination, you and your end customer shall return all Lyve Hardware to Seagate as described in the Service Terms upon termination or expiration of the Lyve Services for which the Lyve Hardware is provided.
6.7 Retrieval of Data Before Termination. Following termination or expiration of your Lyve Portal account, this Agreement, or the applicable Subscription Term, Seagate may deactivate your Lyve Portal account, deactivate your access to associated Lyve Services, and delete Your Data (defined in Section 7) from the Lyve Services. It is your responsibility to ensure your end customers back up or remove Your Data from the Lyve Services before the end of the Subscription Term, and before returning or servicing any Lyve Hardware. Seagate will have no liability arising out of any damage to or loss of stored data after the end of your Subscription Term, or in connection with Lyve Hardware returns or servicing.
6.8 No Expectation of Continuation. Seagate may stop offering any Lyve Services after expiration of your Subscription Term. Seagate is under no obligation to agree to a renewal or extension with respect to any Lyve Services.
7. DATA, PRIVACY, SECURITY, AND TELEMETRY
7.1 Your Data. “Your Data” is all data that you (or your affiliates, agents, end customers, or Authorized Users) provide to Seagate through or in connection with your Lyve Portal account or your use or resale of the Lyve Services, including text, software, sound, video, images, and Personal Data. The storage, processing, and transmission of Your Data is an essential feature of the Lyve Services. You consent to Seagate and its contractors, and affiliates, collecting, storing, processing, and transmitting Your Data.
7.2 Security. Seagate has adopted a written security policy that includes administrative, technical, and physical safeguards that are intended to protect Your Data from unauthorized access and use, and will use reasonable measures to protect the security, integrity, and availability of the Lyve Services; however any connection to the Internet provides the opportunity for unauthorized third parties to circumvent any precautions and gain access to Your Data. Seagate cannot and does not guarantee the privacy, security, or authenticity of any information transmitted over or stored in any system connected to the Internet. Unless authorized by Seagate, you shall encrypt any of Your Data that is subject to specific legal requirements or safeguards regarding security or privacy before transferring it to or using it with the Lyve Services.
7.4 Diagnostics and Telemetry Data. The Lyve Services may store diagnostic and telemetry data about the operation of the service, including performance, usage, configuration, and errors (“Telemetry Data”). The Lyve Services may periodically transmit the Telemetry Data to Seagate. Your Data stored on the Lyve Services is not accessed, transmitted, or provided to Seagate as part of the Telemetry Data. The Telemetry Data is owned by Seagate.
7.5 Internet Connection Requirements. You may be required to establish an internet connection to access and use the Lyve Services. Specific internet connection requirements for the Lyve Services are set forth in the applicable Service Terms.
7.6 Monitoring and Recording. Seagate and its agents may monitor and record any telephone calls or other voice, data, or images transmitted to Seagate by you, your end customers, or your agents or transmitted using your phone numbers, email addresses, credentials, or your account information.
8. LIMITED WARRANTIES
8.1 Limited Warranty of Functionality. Seagate warrants to you that the Lyve Services will provide the functionality described in the Service Terms in all material respects during the Subscription Term of the Lyve Services. Except as provided in this Agreement, Seagate will not materially decrease the functionality of the Lyve Services during the Subscription Term.
8.2 Third-Party Warranties. The warranties in this Agreement apply only to the Lyve Service and the Lyve Hardware included in the Lyve Service. Third-party products and services may be licensed and warranted pursuant to separate third-party written agreements.
8.3 Warranty Exceptions. The warranties in this Agreement do not apply to, and Seagate will not have any liability for any defects, errors, or failures caused by: (a) use of the Lyve Services not in compliance with this Agreement, the Service Terms (including user documentation), the Order, or applicable law; (b) lost, forgotten, or inaccessible credentials; (c) accident, abuse, neglect, shock, electrostatic discharge or degaussing, or heat or humidity beyond specifications with respect to Lyve Hardware; (d) improper or unauthorized installation, operation, maintenance, or modification; or (e) malfunctions caused by equipment, networks, or systems outside of Seagate’s control. The warranties in this Agreement do not apply to Your Data or any other data, or any data integrity or loss, or costs related to retrieving and returning any data. The warranties in this Agreement are void if the serial numbers, labels, covers, seals, or components for any Lyve Hardware are removed, damaged, or tampered.
8.4 Remedies. If the Lyve Services or included Lyve Hardware fail to materially comply with the warranty specified in this Agreement, Seagate shall use reasonable efforts to repair, replace, or modify the Lyve Services to bring them into material compliance with the warranty. You must initially notify Seagate of non-compliance issues through the support menu in the Lyve Portal within 30 days after your discovery of the issue. If Seagate is unable to bring the non-conforming Lyve Services into material compliance with the warranty within 30 days following your written notice, either party may terminate this Agreement for cause according to Paragraph 6.4; however, the right to terminate exists only as long as the material non-compliance exists without resolution. This Paragraph 8.4 sets forth Seagate’s sole obligations, and your sole remedies, for any failure to comply with any warranties made by Seagate.
8.5 Your Warranties. You warrant that you (and your licensors as applicable) own all rights to Your Data (including Feedback, defined below) and that you have all rights necessary to grant the rights you purport to grant under this Agreement and the Service Terms. You warrant that the use of Your Data (including that of your Authorized Users) will not violate the terms of this Agreement or the Service Terms.
9. WARRANTY DISCLAIMERS; HIGH-RISK ACTIVITIES; AS-IS
9.1 WARRANTY DISCLAIMERS. The warranties stated in Section 8 are the sole warranties offered by Seagate for the Lyve Portal and the Lyve Services. Seagate makes no representations or warranties except as provided in Section 8. Seagate disclaims all other warranties relating to the Lyve Portal and the Lyve Services, whether express, implied, statutory, or in any other provision of this Agreement or communication with you, including, any warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement of third-party rights. Seagate disclaims any warranties arising from course of dealing or course of performance. Seagate will not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Lyve Services.
9.2 PROHIBITED HIGH-RISK ACTIVITIES. The Lyve Services are not fail-safe and are not designed or intended for use in high-risk activities (such as in the operation of nuclear facilities, aircraft systems, air traffic control, life support machines, weapons systems) or any environment requiring fail-safe performance or in which an error or interruption in the Lyve Services could lead to severe injury to business, persons, property, or environment (“High-Risk Activities”). You assume the risks of any damages or losses resulting from use of the Lyve Portal or the Lyve Services in connection with High-Risk Activities.
9.3 AS-IS AND AS AVAILABLE. Except for the warranties in Section 8, Seagate provides the Lyve Portal and Lyve Services to you on an “as-is” and “as available” basis.
10. PROPRIETARY RIGHTS
10.1 No Rights Transferred. Except as provided in this Agreement, Seagate does not grant or transfer to you any rights or interest in any patents, copyrights, mask works, industrial design, trademarks, service marks, trade secrets, or other form of intellectual property (“Proprietary Rights”) relating to the Lyve Portal or Lyve Services.
10.2 Your Data. Except as provided in this Agreement, you do not grant or transfer any Proprietary Rights to Seagate in Your Data. You grant Seagate and its contractors, and affiliates, a nonexclusive, revocable license to access, use, duplicate, reproduce, modify, display, and create derivative works of Your Data as necessary to provide the Lyve Portal and Lyve Services to you and your end customers.
10.3 Software. Software is licensed not sold. Any software that is included with or as part of the Lyve Services may be subject to a separate end-user license agreement. You shall comply, and you shall ensure that your end customers shall comply with the terms of all end-user license agreements that are either included in the Service Terms or accompany the Lyve Services (“EULAs”). Upon any termination of this Agreement, your rights under all EULAs will also terminate, except to the extent that the EULA states otherwise.
10.4 No Copying, Modifications or Reverse Engineering. You shall not copy, modify, reverse engineer, decompile, or make derivative works of the Lyve Portal or the Lyve Services. You shall ensure that your end customers comply with this Paragraph 10.4. Any unauthorized modifications, derivative works or enhancements are owned by Seagate; and you, and you on behalf of your end customers, hereby irrevocably assign to Seagate all modifications, derivative works, or enhancements and all Proprietary Rights therein.
10.5 Proprietary Notices. You, and your end customers shall not remove or obscure any proprietary notices incorporated in, marked on, or affixed to the Lyve Portal or the Lyve Services.
10.6 Feedback. If you or your end customers provide Seagate with any suggested improvements or enhancements, features, or other feedback relating to the Lyve Portal or the Lyve Services (“Feedback”), then you and your end customers agree that Seagate may use the Feedback without restriction for any other purpose in connection with Seagate’s business. You hereby irrevocably assign to Seagate all Feedback and all Proprietary Rights therein, without further compensation to you. You shall ensure your end customers also irrevocably assign Seagate all Feedback and Proprietary Rights therein.
11.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means all non-public information regarding either party (you or Seagate) that is clearly marked or identified in writing as confidential at the time of disclosure or that should reasonably be understood to be confidential given the nature of the information or the circumstances surrounding its disclosure. Confidential Information includes Your Data stored on the Lyve Portal or the Lyve Services, non-public information about the Lyve Portal and the Lyve Services, each party’s proprietary technology, business processes and technical product information, and any communications between the parties regarding the Lyve Portal or the Lyve Services.
11.2 Non-Disclosure and Non-Use. The recipient of Confidential Information shall not use Confidential Information except as necessary to perform its obligations or exercise its rights under the Agreement. The recipient shall protect the other party’s Confidential Information from disclosure to any third party without the other party’s consent; however, Seagate may share and disclose your Confidential Information as agreed by you in Section 7 and as you instruct or consent through the Lyve Services. The recipient may disclose the other party’s Confidential Information to the recipient’s employees, agents, and contractors who have a need to know the information to exercise the recipient’s rights and perform the recipient’s duties under this Agreement so long as the employee or agent is under a duty of confidentially substantially similar to the duty in this Agreement.
11.3 Exceptions. Confidential Information does not include 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 the Confidential Information; (f) is aggregated or anonymized data (such as Telemetry Data) regarding your use of the Lyve Services that does not contain any Personal Data or customer-specific information; or (g) is Feedback.
11.4 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 must make reasonable attempts to notify the other party to allow it to seek to limit the required disclosure of the Confidential Information.
11.5 Expiration. The obligation of confidentiality under this Agreement expires 3 years after the date of disclosure of the Confidential Information, except the confidentiality obligations for Your Data will expire once deleted from the Lyve Services and Seagate’s records.
11.6 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.
11.7 Publicity. Neither party may issue any press release or other publicity regarding this Agreement without the other party’s approval.
12. DEFENSE AND INDEMNIFICATION
12.1 Seagate Defense Against Third-Party Claims. Seagate will defend and indemnify you against: (a) all third-party infringement claims brought against you alleging that your use of the Lyve Services infringes any third-party copyright, trade secret or United States patent, and (b) any third-party claims brought against you to the extent relating to personal injury or tangible property damage caused by Seagate’s gross negligence.
12.2 Procedural Prerequisites. Seagate’s obligation to defend and indemnify you is subject to the condition that you: (a) notify Seagate in writing within 30 days after you become first aware of the claim; (b) give Seagate sole authority and control of the defense or settlement of the claim; and (c) provide all reasonable information and assistance requested by Seagate to handle the defense or settlement of the claim.
12.3 Exceptions. Seagate will have no obligation to defend or indemnify you for any infringement or other claim arising out of: (a) your systems, any third-parties or Third-Party Content, or the combination of the Lyve Services with your system or any of its components or any Third-Party Content; (b) use of CORTX software if obtained as open source and not provided by Seagate to you as part of the Lyve Services; (c) any modification to the Lyve Services not made by Seagate or not made with Seagate's written authorization; (d) the use of a prior version the Lyve Services or portion thereof subject to an infringement claim under Paragraph 12.1(a) where Seagate has provided an updated version of, replacements for, or modifications to the Lyve Services to make them non-infringing; (e) any use of the Lyve Services in violation of this Agreement or for purposes not contemplated by this Agreement or its intended use; (f) Seagate's compliance with a specification or design provided by you; or (g) any use of the Lyve Services in High Risk Activities or violation of any laws.
12.4 Obligation to Modify or Obtain Rights. If Seagate determines that you or your end customer are likely to be prevented from using the Lyve Services by reason of an infringement claim, then, at Seagate’s option, Seagate shall either: (a) substitute functionally equivalent, non-infringing product or services for the claimed infringing Lyve Services; (b) attempt to obtain the rights required to permit Seagate to grant you the right to use the Lyve Services; or (c) modify or replace the Lyve Services to make them non-infringing. If Seagate is unable to achieve an option in the previous sentence on commercially reasonable terms, as determined by Seagate, then Seagate may terminate this Agreement or the affected Lyve Services and upon termination, you will be entitled to a refund of the pro rata portion of any subscription fees prepaid by you for the remaining portion of the unused subscription term.
12.5 Indemnification by You. You shall defend and indemnify Seagate against claims arising from or related to: (a) any violations of laws in connection with your or your end customer’s use of the Lyve Portal or Lyve Services; (b) actual or alleged infringement of a third party’s Proprietary Rights except to the extent the infringement is covered by Seagate’s indemnification obligations as set forth in Paragraph 10.1 above; or (c) acts or omissions causing personal injury or tangible property damage. Seagate shall give you sole authority and control of the defense or settlement of the claim, and Seagate shall provide all reasonable information and assistance requested by you to handle the defense or settlement of any claim.
12.6 ENTIRE OBLIGATION. The indemnification obligations set forth in this Agreement and the applicable Service Terms are Seagate’s entire obligation and liability arising from or related to third-party claims.
13. LIMITATIONS OF LIABILITY
13.1 LIMITATIONS ON AMOUNT OF LIABILITY. The maximum aggregate liability of Seagate and its suppliers arising out of or relating to this Agreement, the Lyve Portal and any Lyve Services, whether based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or any other theory, will not exceed the direct damages finally awarded up to US$5,000, or the fees paid or payable by you for the applicable Lyve Service from which the liability arose in the 12 months preceding the event that first gave rise to the liability, whichever is greater.
13.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. The subscription fees do not include consideration for assumption by either party of the risk of the other party’s incidental or consequential damages. In no event will either party or their respective suppliers be liable to anyone for lost profits, lost revenue, or for incidental, consequential, punitive, cover, special, reliance, or exemplary damages, including damages suffered due to loss of data or costs of procurement of substitute goods. To the maximum extent permitted by law, neither party will be liable for indirect damages of any kind, however caused, whether from breach of warranty, breach or repudiation of contract, negligence, or any other legal cause of action related to this Agreement, regardless of whether either party has been advised of the possibility of such damages. The disclaimers set forth in this Paragraph 13.2 do not apply to or limit your liability for (a) any breach of any licenses or rights granted in any Service Terms or your, or your end customer’s infringement or misappropriation of any Proprietary Rights of Seagate, or (b) your or your end customer’s breach of Section 3 (Prohibited Use), Section 7 (Data, Privacy, Security, and Telemetry) or Section 11 (Confidentiality) of this Agreement.
13.3 Free Product. Seagate will bear no liability (including for any direct, indirect, consequential, punitive, cover special, reliance exemplary damages) in connection with offerings, services, and code Seagate provides or makes available free of charge or payment obligation, which includes the Lyve Portal.
13.4 No Liability for Lost Data. Seagate will not be liable for lost data under any circumstances.
13.5 Purpose of Limitations. The essential purpose of this Section 13 is to limit the potential liability of the parties arising from this Agreement. The limitations in this Section 13 are integral to the amount of fees charged for the Lyve Services; if Seagate were to assume any additional liability, the fees would be set substantially higher. The limits in the Section 13 will apply notwithstanding any other provisions of this Agreement or the failure of any remedy of its essential purpose.
13.6 Exclusions. In addition, some laws do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages; the limitations of liability in this Section 13 will apply only to the extent permitted by laws.
14.1 Audits. Seagate and its independent auditors have the right, upon reasonable notice to you, to examine your, and your end customer’s use of the Lyve Portal and the Lyve Services to verify compliance with this Agreement, including verification of data usage. If the audit identifies unauthorized use, then you shall promptly pay to Seagate any additional fees that Seagate is owed, and the reasonable costs of conducting the audit.
15. COMPLAINTS AND DISPUTE RESOLUTION
15.1 Governing Law. Based on the Seagate contracting party, the governing laws and courts set forth below govern this Agreement, without regard to any conflicts-of-laws rules. Each party consents to the personal jurisdiction and venue of the courts and tribunals identified below. The United Nations Convention on Contracts for International Sale of Goods does not apply to this Agreement.
|Seagate Contracting Party||Governing Laws||Governing Courts|
|Seagate Technology LLC||the laws of the State of California, USA||the courts located in Santa Clara County, California|
|Seagate Technology (Netherlands) B.V.||the law of the Netherlands||the courts located in the Netherlands|
|Nippon Seagate, Inc.||the laws of Singapore||the courts located in Singapore|
15.2 Binding Arbitration. Unless prohibited by law, any dispute between Seagate and you will be resolved through individual arbitration, including any claim or controversy related to Seagate, the Lyve Portal, or the Lyve Services. These arbitration provisions are governed by the United States Federal Arbitration Act. As used with regard to the arbitration provisions in this Agreement, “Seagate” means Seagate and any of its predecessors, successors, assigns, parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees and agents; and “you” means you and any users or beneficiaries of the Lyve Services.
15.3 Right to Sue in Small Claims Court. As an exception to the arbitration provision in this Agreement, Seagate or you may elect to have an action heard in a small claims court in the area where you access the Lyve Portal or receive the Lyve Services if the claim is not aggregated with the claim of any other person or entity and if the amount in controversy is properly within the jurisdiction of the small claims court.
15.4 Right to Opt-Out. If you do not wish to arbitrate disputes, you may decline to have your disputes arbitrated by notifying Seagate, within 30 days after the activation of your Lyve Portal account, at email email@example.com, or in writing by mail to Seagate Technology LLC, Attn: Arbitration Opt-Out, 47488 Kato Rd, Fremont, CA, 94538, USA. Any Opt-Out submitted after 30 days will not be considered effective. Your written notice must include your name, address, and account number as well as a clear statement that you do not wish to resolve disputes with Seagate through arbitration. Your decision to opt out of this arbitration provision will have no adverse effect on your relationship with Seagate or your right to access and use the Lyve Portal or the Lyve Services. You must separately opt out for each Lyve Portal account under which you receive Lyve Services.
15.5 Initiation of Arbitration Proceeding. The party initiating the arbitration proceeding may open a case with the American Arbitration Association (AAA) by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). You may deliver any required or desired notice to Seagate by mail to Seagate Technology LLC, Attn: Legal/Litigation Dept, 47488 Kato Rd, Fremont, CA, 94538, USA. The arbitration will be administered by the AAA pursuant to its Consumer Arbitration Rules as modified by these arbitration provisions. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). If there is a conflict between the AAA Consumer Arbitration Rules and the arbitration provisions in this Agreement, the conflicting term in this Agreement will control. If the AAA 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 appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under the arbitration provisions in this Agreement.
15.6 Selection of Arbitrator and Venue. The arbitration will be resolved by a single arbitrator in Santa Clara County, California. Unless both parties agree, any arbitration hearing will take place at a location convenient to you in the county or in the area that contains the address you provided on the Order for the Lyve Services. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect your account information and other confidential or proprietary 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 any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied will not be entered in any court.
15.7 Arbitration Fees and Costs. If your claim seeks more than US$75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA rules. If your claims seek less than US$75,000 in the aggregate, Seagate will pay AAA’s fees and costs. However, if the arbitrator finds that your claim was frivolous or brought for an improper purpose (as measured by the standards set forth in United States Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs will be governed by the AAA Rules and you shall reimburse Seagate for all fees and costs that were your obligation to pay under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Agreement to the contrary, Seagate will pay all fees and costs that Seagate is required by law to pay.
15.8 Waiver of Class Actions and Collective Relief. You waive the right for any claims to be arbitrated or litigated on a class action, joint or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (such as a private attorney general), other subscribers, or other persons or entities. 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 class actions and collective relief is an essential part of this arbitration provision and cannot be severed from it. The remaining portions of this arbitration provision are not essential parts of this arbitration provision and can be severed from it by a court of competent jurisdiction.
15.9 Waiver of Jury Trial. Seagate and you each waive the right to a trial by jury for any claim arising in connection with this Agreement, the Lyve Portal, or the Lyve Services, whether in court or in arbitration.
15.10 Exception for California Private Attorneys General Act (PAGA). Either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
15.11 Exception for Intellectual Property Claims. Either party may seek relief in a court of law for a claim relating to the enforcement, infringement, or validity of trade secrets, patents, copyrights, or trademarks.
15.12 Time Limitation. 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.
15.13 Important Notice for California Subscribers. If you or your end customers are a subscriber in California who has a complaint related the Lyve Portal, Lyve Services, or this Agreement, you may file a complaint with the California Department of Consumer Affairs by calling 1-800-952-5210 or by writing to Consumer Information Division, 1625 North Market Boulevard, Suite N-112, Sacramento, CA 95834.
16.1 Changes to the Services. Seagate may change or discontinue the Lyve Portal or any of the Lyve Services from time to time. Seagate will provide you advance notice if Seagate discontinues material functionality of a Lyve Service that you or your end customers are using. Notice will not be required if the notice or notice period: (a) would pose a security risk or give rise to a potential intellectual property infringement claim in connection with the Lyve Portal or Lyve Services; (b) is economically or technically burdensome; or (c) would cause Seagate to violate applicable laws. If a Lyve Service has been retired and is end-of-life, subject to the Service Terms, you and Seagate will each have the right to terminate the affected subscription or service and you will be entitled to a refund of the pro rata portion of any subscription fees paid by you for the remaining portion of the unused Subscription Term.
16.2 Changes to this Agreement. Seagate may modify this Agreement (including any references to agreements or policies) at any time, subject to Paragraph 16.1 above, by posting a revised version on the Seagate website or by notifying you in accordance with Paragraph 17.7. Subject to the foregoing notice period, the modified terms will become effective upon posting or, if Seagate notifies you in writing, as stated in the notification. By continuing to use the Lyve Portal or Lyve Services after the effective date of any modifications to this Agreement, you and your end customers agree to be bound by the modified terms. It is your responsibility to check Seagate’s website regularly for modifications to this Agreement. Seagate last modified this Agreement on the date listed at the top of this Agreement.
17.1 Assignment. You shall not assign this Agreement or any right or interest under this Agreement, or delegate any obligation under this Agreement to any other party. Any attempted assignment or delegation by you is void. Seagate may assign or transfer this Agreement and any rights or 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 Lyve Portal or Lyve Services relate, by written notice to you.
17.2 No Third-Party Rights. There are no third-party beneficiaries to this Agreement. Only the parties named in this Agreement have any rights or remedies under this Agreement. Only the Seagate contracting party identified in the introductory paragraph of this Agreement will have obligations with respect to your Lyve Portal and Lyve Services accounts, unless you purchase from a Reseller. Seagate’s invoices will reflect the Seagate party that is responsible for your applicable Lyve Services account during the applicable billing period.
17.3 Force Majeure. Except with respect to payment obligations, neither party will be liable to the other if its performance is delayed by circumstances beyond its reasonable control.
17.4 Survival; Severability. If you owe any outstanding amounts to Seagate under this Agreement, or if you have any unreturned Lyve Hardware, then this Agreement will survive until you have paid in full and returned all Lyve Hardware. All other obligations that by their terms or nature survive termination of this Agreement will continue until fully performed. The terms of this Agreement are severable. If any term is unenforceable for any reason, that term will be enforced to the fullest extent possible, and the Agreement will remain in effect.
17.5 English Language. This Agreement is in English. All communications and proceedings must be conducted in English. If this Agreement is translated, the original English language version of this Agreement will control.
17.6 Entire Agreement. This Agreement and the documents referred to in this Agreement constitute the entire agreement between you and Seagate with respect to this subject matter. This Agreement excludes any of your general terms and conditions contained in any purchase order or other document issued by you. But if you are party to an existing active signed customer agreement with Seagate that governs your access to the Lyve Portal and purchase of Lyve Services (“Existing Agreement”), then the Existing Agreement will control until it expires or is terminated.
17.7 Notices. Except as otherwise permitted in this Agreement, all legal notices and other communications between the parties in connection with this Agreement, the Lyve Portal, and the Lyve Services must be in writing, delivered to the addresses designated on the Order (including your designated email address for notices to you). All legal notices to Seagate shall be delivered in writing to “Legal Notices” at the applicable address for the Seagate contracting party identified in the introductory paragraph of this Agreement.
17.8 No Waiver. Except as set out herein, neither party's failure or delay to exercise any of its rights under this Agreement will be deemed a waiver of forfeiture of those rights.
17.9 Electronic Business Transactions. The parties may exchange electronic documents in lieu of printed purchase orders, order acknowledgments, change orders, invoices, forecasts, or similar documents. The parties shall not contest the enforceability or legal sufficiency of electronic documents on the grounds that they fail to comply with the Statute of Frauds or similar laws requiring contracts to be in writing, such as UCC Section 2-201 or its state-law equivalent; however, neither party is prohibited from asserting that an electronic document is invalid for any reason that would invalidate a written document.