Please read this Lyve Cloud 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.
If you signed an offline variant of this Agreement, either with Seagate or an authorized reseller, for use of the Lyve Cloud Services under the same Lyve Cloud Services account, the terms below do not apply to you, and your offline terms govern your use of the Lyve Cloud Services.
This Agreement is entered into by the applicable Seagate entity(ies) as identified in the Contracting Entities List available here: https://www.seagate.com/legal/lyve-cloud/eligible-countries (individually and collectively, “Seagate”), based on the location where the Services are provided to Company, and is effective as of the date Company clicks to accept these terms as indicated in the first paragraph above (“Effective Date”). This Agreement governs all transactions by which Seagate provides Services to Company.
The parties hereto agree as follows:
- Lyve Services
- Description of the Services. Seagate shall provide each of the Lyve services offerings pursuant to an Order (“Services”) to Company under the terms of this Agreement. The Services are made up of software applications, tools, APIs, and connectors provided by Seagate as an online data storage platform-as-a-service, together with the Lyve portals, programs, software, tools, and networks that Seagate uses to make the platform available to its customers for collecting, organizing, storing, hosting, processing, retrieving, transmitting, and managing electronic data. All data that Company inputs or transfers to the Services is “Stored Data.”
- “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, that incorporates by reference this Agreement.
- “Services Addendum” means a Services addendum , as identified in the table immediately below, or as separately agreed in writing by the parties that include additional terms applicable to the Services as identified in the Order.
- Orders for Services. Company may order Services by placing an Order. Pursuant to an Order, Company accesses the Services through online portals. Each Order will include the description of the Services, such as the storage volume commitments, Services Period, pricing, region, renewals, and related information. Each Order will be deemed to incorporate the terms of this Agreement and the applicable Services Addenda.
- Regional Affiliates. 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 is called an “Affiliate”. Seagate provides Services in different countries identified here: https://www.seagate.com/legal/lyve-cloud/eligible-countries/ (each an “Eligible Country”) through a Seagate Affiliate identified at the same website, which will be the sole Seagate entity responsible to perform the Services in the applicable Eligible Country. All references to “Seagate” under this Agreement will mean the applicable Seagate Affiliate identified as aligning to the Eligible Country where the Services are provided.
- Use of the Services
- Authorized Users. Subject to Company’s and its Users’ compliance with the terms and conditions of this Agreement, and the applicable Services Addenda, and Orders, Seagate hereby grants, under Seagate’s intellectual property rights, to Company a non-exclusive, non-transferable, royalty-free 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 solely for Company’s and Users’ ordinary course of business. Seagate reserves all other rights not expressly granted in this Agreement.
- Company’s “Users” means each individual, company, organization, or entity that accesses or uses any of the Services or Lyve portal through Company’s account, including any Affiliate, employee, contractor, agent, account administrator, customer, or other user authorized by Company.
- The “Services Period” means that period of time, including renewal periods, in which Seagate provides Company the applicable Services according to an Order.
- Access Credentials. When setting up a Services account on the applicable Seagate portal, Company shall identify an administrative User. Such administrative User shall issue credentials to Users, such usernames, passwords, encryption keys, or access codes (“Access Credentials”) that allow them to access and use the Services.
- Business Use Only. The Services are for business use only in Company’s ordinary course of business. Company shall not use or permit its Users to use the Services for personal, family, or household use.
- Responsibility for Use of Services. Company is responsible for paying for all Services used by Company and its Users. Company accepts joint and several liability for Users’ acts and omissions related to their access to and use of the Services.
- Data Encryption. If Company’s Stored Data is unencrypted, Seagate shall encrypt the Stored Data using encryption keys provided by Company. If Company does not provide encryption keys to Seagate, Seagate shall encrypt the Stored Data using Seagate’s key management system, and provide the keys to Company. Once encrypted, Seagate will have no ability to access the content of the Stored Data.
- Fees and Payment
- Payment of Services Fees. Company shall pay the fees for the Services as specified in the applicable Order to the Seagate or authorized reseller entity identified in such Order. Seagate or the authorized reseller may change the fees for any renewal period by informing Company at least 60 days before the start of the renewal period for which the changed pricing will apply.
- Invoicing. Seagate (or its local branch office, where applicable, as stated in the invoice) or the authorized reseller shall invoice Company according to the Order. Unless otherwise stipulated in the Order, invoicing will be monthly in arrears for Services provided in the previous month. All invoiced amounts will be in U.S. dollars and are payable in U.S. dollars, unless otherwise stipulated in the Order. Where local law requires that Company pay or be allowed to pay in a currency other than U.S. dollars, the parties shall cooperate in good faith to convert the amounts to be paid such that Company will pay the correct invoiced amount when such payment amount is converted back to U.S. dollars or its equivalent at the time of payment.
- Payment Terms. Company shall pay all invoices without setoff or debit memo within 30 days after the date of the invoice.
- Late Payments. If Company does not pay any invoice when due, then a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less, may be applied. If a collection agency or attorney is engaged to collect money from Company, Company shall pay the reasonable costs of collection, including any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
- Transaction Taxes. Unless the Order expressly states otherwise, the fees do not include any transaction taxes, levies, or duties, such as value-added, sales, services, use, or withholding taxes; or any other duties, charges, fees, copyright levies, WEEE (waste electronic and electrical equipment) and related or equivalent environmental legislation compliance costs or registrations (subject to applicable law), charges related to any packaging directive or other assessments, that are applicable to the transaction (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. Taxes will be added to the fees and Company shall pay the Taxes along with the fees in the invoice, unless Company provides 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.
- Tax Withholdings. If Company is required by law to withhold taxes imposed upon any payment under this Agreement, then Company shall pay the withheld amount to the proper authorities on a timely basis, and the amount due under the invoice will be adjusted upwards appropriately so that the full amount of the fees set forth in the applicable Order is paid, notwithstanding the withholding tax. Company shall provide proof that the withheld amount as been paid to the proper authorities to the invoicing entity immediately following payment. Company shall defend and indemnify Seagate against any claim or action asserted against Seagate for any taxes described in this paragraph that Company fails to withhold or pay.
- Tax Compliance Notifications. 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 notify Seagate in writing within 30 days after it is made.
- Company Requirements
- Company’s General Responsibilities. Company is responsible for (a) maintaining an internet connection to access the Services, (b) ensuring that all Users have authorized user accounts associated with Company’s Services account, and (c) protecting the security of all Access Credentials.
- Responsibility for Stored Data. Company is responsible for: (a) the accuracy, quality, and integrity of the Stored Data; (b) backing up the Stored Data, and (c) mitigating the risks inherent in storing or transmitting the Stored Data in the Services, including the risk of data loss.
- Responsibilities for Users. Company shall ensure that Users only obtain a single account per email address. Company is responsible for all activity occurring under Company’s and Users’ accounts or with Users’ Access Credentials. Company shall ensure that its Users comply with all laws and regulations applicable to the use of the Services.
- Notice of Unauthorized Users. Company shall notify Seagate promptly if Company becomes aware of (a) any unauthorized use of any Access Credentials, (b) any security breach or attempted security breach of the Services, or (c) any misuse of the Services. Company shall cooperate with Seagate to identify the source of any problem with the Services that may be attributable to Company’s or its Users’ actions.
- Use Restrictions
- General Requirements. Company shall comply with the use restrictions in this section, and shall ensure that its Users and any parties accessing the Services through the Access Credentials comply with the use restrictions in this section (“Use Restrictions”).
- Unauthorized Access. Company and its Users shall not allow any third party to access the Services, except to the extent expressly permitted by this Agreement. Company and its Users shall not provide false identification or impersonate another person or use the Access Credentials of another person to access the Services.
- High-risk Activities. Company and its Users shall not use the Services for any 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.
- Circumventing Usage Limits. Company and its Users shall not engage in any activity designed to avoid or exceed applicable usage limits.
- Illegal Purposes. Company and its Users shall not use the Services for any harmful or illegal purpose, in violation of the rights of a third party, in violation of any applicable law, or in any manner that may subject Seagate or its Affiliates to regulatory action, including, but not limited to, (a) use the Services to send, store, or use any viruses, worms, time bombs, spyware, Trojan horses, hijacking software, or other malicious or harmful computer code, files, scripts, agents, or programs; (b) use the Services to store or process any Stored Data for which Company or its Users lack ownership, consents, or other valid legal rights to store or use; or (c) use the Services for any activities that are obscene, threatening, harmful, abusive, libelous, or fraudulent.
- System Overloading. Company and its Users shall not perform unauthorized benchmark testing, penetration testing, monitoring or crawling of data or traffic, overloading, mail bombing, broadcasting, or flooding techniques. Company and its Users shall not use the Services for cryptocurrency or other distributed-ledger technology including for plotting, creating ash, mining, farming, pooling, coining, or related activities.
- System Interference. Company and its Users shall not interfere with, circumvent, disable, or disrupt the integrity, security, or performance of the Services.
- Proprietary Notices. Company and its Users shall not remove or alter Seagate’s copyright notices, trademarks, or other proprietary rights notices within the Services.
- Agreement Term and Services Period
- Agreement Term. This Agreement is effective as of the Effective Date stated on the signature page and will remain in effect until terminated.
- Services Period. The Services Period for each of the Services ordered will be specified in the Order details, or if left unspecified will be 12 months.
- Annual Renewal. Upon expiration of each Services Period, the Services will renew for an additional Services Period, unless either party provides written notice to the other that it does not intend to renew the Services at least 60 days before the end of the then-current Services Period. Unless otherwise specified in the Order, a renewal Services Period will be for 12 months.
- Termination for Inactivity. If Company uses no Services during any 6-month period, Seagate may terminate this Agreement and all Orders, and close Company’s accounts with 30 days’ advance notice.
- Termination for Nonpayment. Seagate may terminate this Agreement and any or all Orders for the Services if Company fails to pay any Seagate invoice when due. Seagate must give Company written notice of the overdue payment and allow Company at least 10 days to make payment before terminating this Agreement or any or all Orders.
- Termination for Cause. Either party may terminate this Agreement or any relevant Orders if the other party breaches a material obligation of this Agreement or a Services Addendum. The non-breaching party must give the breaching party written notice of the breach and allow the breaching party at least 30 days to cure the breach before terminating this Agreement or any or all Orders.
- Termination for Insolvency. Either party may terminate this Agreement and all Orders 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.
- Suspension. Seagate may suspend the Services if the Stored Data or the Services are threatened by a potential security breach or other interrupting, harmful, abusive, illegal, or infringing activity or event. Seagate shall notify Company of any suspension, and Company and Seagate shall cooperate to resolve the threat and restore the Services.
- Effect of Termination or Expiration. Company is responsible for backing up or retrieving any Stored Data from the Services before the termination or expiration of this Agreement or the applicable Services Period. Upon the termination or expiration of the Agreement or the Services Period, Company’s and Users’ rights to the Services will terminate. Seagate will have no liability to Company or Users due to their inability to access the Services or any Stored Data after termination or expiration of this Agreement or the applicable Services Period. If a Services Addendum provides a timeline and process for returning and deleting Stored Data, then that timeline and process will control to the extent it conflicts with this paragraph.
- Performance Warranty. Seagate warrants that the Services will provide the functionality described in the applicable Services Addenda, in all material respects, subject to any service level agreement that Seagate and Company may enter into governing the performance of the Services.
- Warranty Exclusions and Limitations. While Seagate shall employ at least industry-standard protocols to protect and make available Stored Data, Seagate does not warrant that the Services will be completely free from interruptions, errors, or harmful components, or the complete security, accessibility, or inalterability of Stored Data. The warranties made by Seagate do not cover problems caused by (a) abuse, neglect, or misuse, or (b) malfunctions caused by other equipment, networks, or systems. The warranties made by Seagate do not apply to issues arising from Stored Data or any other data stored or lost, or costs related to retrieving and returning any data. Except for the warranties in this section, Seagate provides the Services on “as-is” and “as available” without any warranties or conditions of any kind.
- Third-party Content and Data Sharing. The Services may allow Company and its Users to access third-party content and third-party services and enable Company and its Users to import data from and export data to non-Seagate sources. Seagate does not make any representations or warranties regarding third-party content and services, and non-Seagate sources or their interoperability with Services. Use of third-party content and services may be governed by separate third-party terms. Company and its Users’ access and use third-party content and services, and non-Seagate sources is at their own risk. The terms, conditions, or notices for using some third-party software used in Services may be found here: http://www.seagate.com/support/by-topic/downloads/ or may be available directly from the third-party provider.
- Violations Void Warranties. The warranties and any service level commitments made by Seagate are void if Company or its Users access or use the Services in violation of this Agreement, a Services Addendum, an Order or applicable law.
- Disclaimer of Implied Warranties. Seagate makes no warranties except as expressly provided in this Agreement. Seagate disclaims all implied warranties and conditions, including (a) any implied warranty of merchantability or fitness for a particular purpose; (b) any implied warranty of non-infringement or implied obligation to indemnify for infringement; and (c) any implied warranty arising from course of performance, course of dealing, or usage or trade. Except for the warranties in this section, Seagate provides the Services on “as-is” and “as available” without any warranties or conditions of any kind.
- Warranties Not Assignable. The warranties made by in this Agreement are for the sole benefit of Company and may not be extended or transferred to any other person or entity.
- Intellectual Property Rights
- Rights to the Services. Seagate, its Affiliates, and Seagate’s licensors retain all rights and interests to the Services and all enhancements or derivative works of the Services, except as described in this Agreement
- Rights to Stored Data. Company retains all rights and interests to its 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, 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).
- Use of Feedback. If Company or Users provide Seagate with any suggestions or other feedback relating to Services, then Seagate will have the right to use Company’s and Users’ suggestions and feedback in any activities related to the Services, including use, reproduce, make derivative works of, perform, display, distribute, import, export, make, have made, and otherwise practice the suggestions and feedback.
- 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 with, and shall ensure that its Users comply with, all applicable end-user license agreements as part of the Services.
- Personal Information and Privacy
- Documents Incorporated by Reference. This Agreement incorporates Seagate’s Lyve Services Data Privacy Agreement, located here: https://www.seagate.com/legal/lyve-mobile-seagate-systems-leasing/data-privacy-agreement/. Unless otherwise defined herein, capitalized terms used in this section will have the definition provided in the Data Privacy Agreement.
- Compliance with Laws. If any of Company, Users, or any third parties acting on Company’s behalf, access or use the Services to Process any Personal Data, then Company shall ensure that all such activities comply with Applicable Privacy Laws and data subject rights.
- Privacy Notices. Company shall provide legally adequate privacy notices to the required parties, and obtain all necessary consents from the data subjects of the Personal Data, including parental consents where applicable. Company represents to Seagate, its contractors and its Affiliates that Company has provided all necessary privacy notices, obtained all necessary consents, and has lawful grounds to allow Company and Users to access and use the Services in accordance with the terms of this Agreement and Applicable Privacy Laws.
- Required Deletions. Company is responsible to delete or destroy that part of Stored Data from Services where such Stored Data must be deleted or destroyed under applicable laws and regulations, including Applicable Privacy Laws.
- Processing Stored Data. The collecting, storing, processing, and transmitting of Stored Data is an essential feature of the Services. Company consents to Seagate and its Affiliates and contractors Processing any Personal Data included in the Stored Data.
- HIPAA Requirements. Prior to Company Processing any Personal Data that is subject to the Health Insurance Portability and Accountability Act (“HIPAA”), Company (i) shall advise Seagate of its intention to Process such Personal Data; and (ii) must have agreed to the terms of the Business Associate Addendum identified as Exhibit 8 in this Agreement, which will then apply to all Services involving the Processing of HIPAA-regulated Personal Data. Company shall solely Process such Personal Data in Seagate’s applicable data centers certified for Processing such Personal Data as identified here: https://www.seagate.com/legal/lyve-cloud/eligible-countries/. Should Company Process any other information that requires Company to enter into specific contractual arrangements or additional compliance steps or measures that extend beyond the provisions of the Data Privacy Agreement, the parties will assure that any applicable contractual arrangements or additional compliance steps or measures are in place prior to any such Processing. Company shall defend and indemnify Seagate and its Affiliates against any claim or action asserted against Seagate for any violation by Company or Users of the Data Privacy Agreement, HIPAA requirements, or requirements to have other specific contractual arrangements or additional compliance steps or measures in place for the Processing of any Personal Data.
- 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, or any Personal Data, as part of the Telemetry Data. Seagate retains all rights to and interest in the Telemetry Data.
- Disclosures. Either party or its Affiliates (“Discloser”) may disclose Confidential Information to the other party or its Affiliates (“Receiver”).
- Confidential Information. “Confidential Information” means all non-public, unencrypted information disclosed by the Discloser during the term of this Agreement and that is marked “confidential”, “internal”, “restricted”, or with similar language at the time of disclosure. Confidential Information includes the volume and prices of Services.
- Exceptions. Confidential Information does not include information that (a) is or becomes generally known to the public other than due to a breach of a nondisclosure obligation owed to the Discloser; (b) was known to the Receiver before receipt from the Discloser; (c) is obtained from another party without confidentiality obligations or breach of a nondisclosure obligation owed to the Discloser; (d) is independently developed without using the Confidential Information; (e) is disclosed by the Discloser to another party without an obligation of confidentiality, or (f) is aggregated or anonymized data (such as Telemetry Data) regarding Company’s and Users’ use of the Services.
- Non-Disclosure. Except as set forth below, the Receiver shall take reasonable measures to prevent the Confidential Information from unauthorized use or disclosure to any third party.
- Use of Confidential Information. The Receiver may use and disclose the Discloser’s Confidential Information to its employees, contractors, agents, and Affiliates who need to use the Discloser’s Confidential Information to fulfil the Receiver’s obligations or exercise the Receiver’s rights under this Agreement or facilitate any other transaction between the parties. The Receiver shall ensure that such employees, contractors, agents, and Affiliates are bound by written confidentiality obligations at least as protective as those of this Agreement before disclosing the Discloser’s Confidential Information to them. Receiver shall ensure that its employees, contractors, agents, and Affiliates comply with the nondisclosure and use restrictions in this Agreement.
- Compelled Disclosures. The obligation of confidentiality does not restrict the Receiver from complying with any legal order compelling disclosure of Confidential Information; however, the Receiver shall make reasonable attempts to notify the Discloser to allow the Discloser to seek to protect the Confidential Information.
- Confidentiality Expiration. The Receiver’s duty to protect Confidential Information starts on the date the Confidential Information is disclosed and expires 3 years after disclosure.
- Notice of Unauthorized Disclosures. The Receiver shall promptly notify the Discloser in writing if the Receiver becomes aware of any unauthorized use or disclosure of the Confidential Information.
- Return or Destruction. Upon the Discloser’s written notice, the Receiver shall promptly return, delete, or destroy any Confidential Information in the Receiver’s possession and in the possession of its employees, contractors, agents, and Affiliates; and the Receiver shall certify in writing that the Confidential Information has been returned or destroyed. The Receiver may retain copies of Confidential Information that are (a) stored in its information technology backup systems until the ordinary schedule for deleting its backups and archives, or (b) stored for purposes of its legal department. This Agreement will continue to apply to all copies of Confidential Information until returned or destroyed or the confidentiality period expires.
- Defense and Indemnification
- Defense against Third-party Claims. Each party (“Indemnitor”) shall indemnify the other party and its Affiliates and each of their respective directors, officers and employees (“Indemnified Parties”) against any third-party claim or action brought against the Indemnified Parties (each a “Claim”) to the extent the Claim alleges the Indemnitor infringes or misappropriates any patent, copyright, trademark, trade secret, trade name, trade dress, industrial design, mask work, or other intellectual property right of the third party, and against any resulting losses, liabilities, costs, damages, or expenses (including reasonable attorneys’ and other professionals’ fees and expenses) finally awarded against an Indemnified Party as a result of a Claim. For purposes of the foregoing, Users are not third parties, regardless of their relationship to Company.
- Notification and Defense Obligations. The Indemnified Party shall promptly notify the Indemnitor of any Claim for which it seeks indemnity under this section. The Indemnified Party shall permit the Indemnitor to control the defense and settlement of each Claim. The Indemnified Party shall give reasonable assistance and cooperation to the Indemnitor in defending the Claim. Any Indemnified Party may employ counsel at its own expense with respect to any Claim; however, if an Indemnified Party must employ counsel because the Indemnitor does not assume control of the defense or because of an Indemnitor’s conflict of interest, then the Indemnitor shall pay the expense. Except in the event in which the prior sentence applies, the Indemnified Party shall not admit liability or settle any Claim that adversely affects an Indemnitor without that party’s prior written approval.
- Remedial Action. If any Services become or are likely to become subject to a Claim against Company or any User, Seagate may notify Company in writing to stop accessing and using the affected Services. Company shall, and shall ensure its Users, immediately stop accessing and using the affected Services until Seagate remediates Claim. In its discretion, Seagate may remediate the Claim by (a) substituting functionally equivalent Services for the Services subject to the Claim, (b) modifying the Services to avoid the Claim, (c) obtaining for Company the right to continue using the Services free of the Claim, or, if (a), (b), and (c) are not practicable, then by (d) terminating this Agreement or the applicable Order and refunding to Company any pre-paid amounts for the unused Services. Seagate’s performance of any of these remedial actions will constitute Company Indemnitees’ sole indemnification remedies for any Claim.
- Exceptions. Seagate will have no obligation to defend or indemnify Company for any Claim to the extent it is based on (a) Company’s or Users’ access or use of the Services with non-Seagate systems or with any third-party content or components, to the extent the Claim is arises from the use of the non-Seagate systems, the third-party content or components, or any combination of the Services, the non-Seagate systems, and the third-party content or components; (b) Company’s or Users’ continued use of non-remediated Services after Seagate has completed any of the remedial actions specified in the preceding paragraph; (c) Company’s or Users’ use of the Services in violation of the law or breach of this Agreement; or (d) a dispute between Seagate and Company or any Users.
- Limitations of Liability
- Limitation of Amount of Liability. Neither party or its Affiliates will be liable to the other, in the aggregate, for any amounts exceeding the total fees paid or payable by Company for the Services during the 12 months immediately preceding the initial claim directly causing any liability to arise, net of any discounts or refunds.
- Limitation of Type of Liability. Neither party or its Affiliates will be liable to the other for any indirect, incidental, punitive, exemplary, special, general, or consequential damages, including lost profits, lost data, the value of lost data, and cost of cover, even if advised of the possibility of such damages.
- Exclusions from Limitations. The limitations in this section do not apply to or limit either party’s liability for its infringement or misappropriation of the other party’s intellectual property rights or for breach the use restrictions).
- Free Offerings. From time to time, Seagate may offer Services or other offerings available for free. In those cases, Seagate makes no warranties or representations for such free offerings and will have no liability (including for any direct, indirect, incidental, punitive, exemplary, special, or consequential damages, including lost profits, lost data, the value of lost data, and cost of cover), even if advised of the possibility of such damages, in connection with any of the free offerings.
- Purpose and Applicability. The purpose of this section is to limit each party’s potential liability under this Agreement and is an essential part of the Agreement. The limitations in this section are reflected in the price of the Services. This section will apply notwithstanding any other provisions of this agreement or the failure of any remedy of its essential purpose. If any laws prohibit or limit the exclusion of implied warranties or disclaimers or limitations of liability for incidental or consequential damages, the limitations and disclaimers in this Agreement will only apply to the extent permitted by law.
- Dispute Resolution
- Governing Law, Venue, Arbitration. Any dispute or claim between Seagate and Company relating to the Services or this Agreement will be resolved through binding arbitration conducted in English before a single arbitrator. The arbitration will be administered as follows, based on the jurisdiction where the dispute arose. If the dispute involves more than one jurisdiction, the first applicable subsection below will take precedence over subsequent subsection, for example, subsection (a) will take precedence over subsections (b) through (d):
- Americas: For disputes arising over Services performed in the Americas, this Agreement and any disputes related to this Agreement will be governed by the laws of the State of California, USA. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA’s Commercial Arbitration Rules and Mediation Procedures. The seat and venue of arbitration will be Santa Clara County, California, USA.
- EMEA: For disputes arising over Services performed in EMEA, this Agreement and any disputes related to this Agreement will be governed by the laws of the Netherlands. The arbitration will be conducted by the International Arbitration Center in Amsterdam, the Netherlands under their rules. The seat and venue of arbitration will be in Amsterdam, the Netherlands.
- APAC: For disputes arising over Services performed in APAC, this Agreement and any disputes related to this Agreement will be governed by the laws of laws of Singapore. The arbitration will be administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the SIAC’s Arbitration Rules of the Singapore International Arbitration Centre. The seat and venue of arbitration will be in Singapore.
- Japan: For disputes arising over Services performed in Japan, this Agreement and any disputes related to this Agreement will be governed by the laws of Japan. The seat and venue will be in Tokyo, Japan and the arbitration will be administered by the Japanese International Dispute Resolution Center in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration Association.
- Arbitration Procedures. Each party consents to each of the arbitration tribunals, venues, jurisdictions, and seats listed above. 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 consistent with applicable law and that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in a court of competent jurisdiction, but only if necessary to enforce the arbitrator’s award; the parties shall not enter an arbitrator’s award into court if the award is fully satisfied. Each party will be responsible for its own fees and costs except as provided in the rules of the arbitrator.
- Replacement Arbitration Administrator. If the arbitration administrator indicated in this section is not available, the parties shall agree on a substitute arbitration administrator, 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.
- Waiver of Jury Trial and Collective Relief. Seagate and Company each acknowledge that by agreeing to arbitration they are waiving the right to jury trial for any claim related to the Services or this Agreement. The arbitrator may award relief only in favor of individual parties seeking relief. The arbitrator may not consolidate more than one person’s or entity’s claims and may not 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.
- 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.
- CISG. The United Nations Convention on Contracts for the International Sale of Good does not apply to this Agreement,or any Order.
- Changes to the Services. Seagate may change or discontinue the Services. Seagate will provide advance notice before discontinuing any material functionality that Company is using as part of the Services, but may discontinue any functionality immediately without notice if the notice or notice period would pose a security risk or give rise to a potential intellectual property infringement claim in connection Services or would cause Seagate to violate applicable law.
- Changes to Linked Online Terms. Seagate may change any online terms referenced by or incorporated into this Agreement by posting a revised version on the Seagate website or by notifying Company. By continuing to use the Services after the effective date of the changes, Company accepts the modified terms. It is Company’s responsibility to check Seagate’s website regularly for modifications to the online terms.
- 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.
- No Third-party Beneficiary Rights. Only the parties named in this Agreement and the Seagate regional Affiliates providing the Services have any rights or remedies under this Agreement. There are no other third-party beneficiaries to this Agreement.
- Force Majeure. Neither party will be liable to the other for breach of this Agreement, other than a failure to pay fees when due, if the breach is caused by is an unexpected event that (a) prevents or delays a party (the “Affected Party”) from performing an obligation under this Agreement, in whole or in part, whether foreseen or unforeseen; (b) is beyond the reasonable control of the Affected Party; and (c) is not able to be avoided or overcome through the exercise of reasonable diligence by the Affected Party.
- Notices. All notices given under this Agreement must be in English, and sent to addresses specified on the signature page (as to Seagate, including the email address), or any other addresses the parties designate in writing. All notices are effective when received, or upon attempted delivery if receipt is refused.
- Electronic Signatures and Click-to-Agree. Either party may accept or sign any document through electronic means, such as an electronic signature or clicking a virtual button on a webpage that indicates that party’s acceptance. The parties shall not contest the validity or enforceability of electronic signatures and acceptances on the grounds that they fail to comply with the Statute of Frauds or similar laws requiring that contracts be in writing.
- 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. No party is authorized to make any contract, warranty, or representation by or on behalf of the other party.
- U.S. Government Rights. This paragraph applies if the U.S. government is the Company or one of the Users. 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 shall 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.
- Survival. The following sections of this Agreement will survive termination or expiration of this Agreement: section 1 (Company Requirements), section 5 (Use Restrictions), section 7 (Warranties), section 8 (Intellectual Property Rights), section 9 (Personal Information and Privacy), section 10 (Confidentiality), section 11 (Defense and Indemnification), section 12 (Limitations of Liability), section 13 (Dispute Resolution), and section 14 (Miscellaneous).
- Entire Agreement, Changes, Waivers, Severability. This Agreement, including the Services Addenda, and the documents referred to in this Agreement merge and integrate all prior and contemporaneous discussions and agreements and constitute the entire agreement of the parties with respect to this subject matter. Any change to this Agreement must be in writing and signed by authorized representatives of both parties. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party against whom the waiver is to be enforced. Except as expressly set out herein, no party's failure or delay to exercise any of its rights under this Agreement will be deemed a waiver of those rights. 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 other provisions of the Agreement will remain in effect.
- Assignment. Company shall not assign this Agreement or any right or interest, or delegate any obligation, under this Agreement to any other party. Any attempted assignment or delegation in contravention of the prior sentence is void. Seagate may assign its rights, delegate its duties, or transfer this Agreement to any party in Seagate’s sole discretion; the assignee, delegee, or transferee is deemed substituted for Seagate as a 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.
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