This Solution Provider & Lyve Portal Agreement (this “Agreement”) is entered into by you (“you”, “your”, You, or “Your”) and the following Seagate contracting party (“Seagate”):
Location where Services will be provided
Seagate Technology LLC
47488 Kato Rd., Fremont, CA, 94538, USA
Seagate Technology (Netherlands) B.V.
Tupolevlaan 105, 1119 PA Schiphol-Rijk, the Netherlands
Nippon Seagate, Inc.
Tennoz Parkside Bldg., 2-5-8 Higashi-Shinagawa, Shinagawa-ku, Tokyo, Japan
APAC (excluding Japan)
Lyve (SG) Pte. Ltd.
90 Woodlands Avenue 7, Singapore 737911
This Agreement governs your access to and your purchase, resale, and use of each of the Lyve and Seagate services offered on the Portal (individually and collectively, the “Services”). Services include Lyve Mobile, Lyve Cloud, and Seagate Systems Leasing each of which is separately defined in its respective Service Terms. The Services include software applications, tools, APIs, platforms, and connectors provided by Seagate to its customers for collecting, organizing, storing, hosting, processing, retrieving, transmitting, and managing electronic data. Certain Services include Hardware subscriptions. “Hardware” is defined as any hardware, physical components, and accessories deployed or provided to you or your designated destination as part of the Services. In addition, this Agreement governs your access to and use of the Lyve Management Portal website at https://lyve.seagate.com (the “Portal”).
Please read this Agreement carefully before you use the Portal. By clicking “I AGREE”, agreeing to an Order (defined in Paragraph 4.1 below) issued by Seagate that incorporates this Agreement, or creating a Portal account or accessing or using the Portal, you agree to be bound by this Agreement. If you do not agree to this Agreement do not create a Portal account or use the Portal. You must be authorized by Seagate before acting, or marketing yourself as, an authorized solution provider, aggregator, or reseller of the Services (“Solution Provider”). To qualify as a Solution Provider, you must: (a) be in the business of managing or reselling services such as the Services (as applicable, functionality, account, billing, etc.) to your customers for a fee; (b) indicate in your Order or when purchasing the Services, that you intend to purchase or use the Services on behalf of your customers, and (c) purchase the Services as a Solution Provider. Upon your acceptance of this Agreement, you are obligated to comply with the Solution Provider-specific terms included or referenced in either this Agreement or your Order, or both (as applicable), and as accepted by you in writing (or through the Portal) at the time of purchase, related to the following with respect to your resellers of the Services (“your resellers”) and your and your resellers’ end customers of the Services (“end customers”)(collectively, “Customers”).
- Creating and managing orders for your Customers' projects through the Portal;
- Providing your Customers' project and order information to Seagate;
- Authorizing Seagate to contact and contract with your Customers in order to validate the Customers, obtain the necessary consents to both provide the Services to end customers and to authorize your resellers to resell and manage the Services to their end customers; and
- Additional Solution Provider terms.
A Seagate sales representative may reach out to you assist you in registering you as a Solution Provider.
This Agreement is effective on the date you create an account at the Portal and will remain in effect until terminated according to the terms of this Agreement.
By creating a Portal account or accessing or using the 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.
- USE OF PORTAL
- Other Terms and Control. End customer access and use of the Services are governed by additional service terms specific to the applicable Service(s) (“Service Terms”). Services terms governing Solution Provider access, use, and resale (including use to provide your services, offerings, or solutions (each, a “Solution”) to your Customers) of the Services are available to you through the Portal, and at https://www.seagate.com/legal-privacy/lyve/ for Lyve Mobile and Seagate Systems Leasing, and at https://www.seagate.com/legal/lyve-cloud/ for Lyve Cloud, as may be updated from time to time (“Solution Provider Service Terms”). Service Terms and Solution Provider Service Terms may refer to you as “Company” if indicated therein. The resale of the Services (including use for purposes of providing Solutions to your Customers), is conditioned on your compliance with the Solution Provider plan terms included or referenced in your Order or the Solution Provider Service Terms or accepted by you via the Portal or in writing (“Solution Provider Plan”). To the extent of a conflict between the terms of this Agreement, the Solution Provider Service Terms, and/or the Solution Provider Plan terms, the following order of precedence shall apply: Solution Provider Plan terms, then Solution Provider Service Terms, then this Agreement. Third-party content, offerings, services, and websites (“Third-Party Content”) may be made available through the Portal or Services. 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. Your use of Third-Party Content is at your own risk.
- 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 Portal during the term of this Agreement and solely in the context of your use of the Portal and the resale of the Services. The Portal and Services are not provided for personal, family, or household use or purposes and you agree not to sell to any end user customers for such purposes.
- Authorized Users. You may allow your employees, Affiliates, customers, contractors, and other users, to access and use the Portal and Services as Authorized Users subject to the terms of this Agreement and the Solution Provider Service Terms. Each individual that accesses any of the Portal or Services through your account is an “Authorized User”. You are responsible and liable for your Authorized Users’ acts and omissions. related to their access to and use of the Services. You are responsible for ensuring your Authorized Users comply with the terms of this Agreement. Your Customers are not automatically designated as your Authorized Users; however, you may designate them as such through the Portal and they may allow you to be their Authorized User, including for account ordering and administration.
- YOUR RESPONSIBILITIES
- 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 Portal and the Services. When setting up an account on the Portal, you shall identify an administrative user. Such administrative user shall issue credentials to Authorized Users, such usernames, passwords, encryption keys, or access codes that allow them to access and use the Services. You are responsible for maintaining the confidentiality of the credentials provided to you. You are responsible for all electronic communications and other activity that takes place in your Portal and Services accounts; that is issued using your credentials; or that originates from the email addresses associated with your Portal and Services accounts. Seagate is entitled to treat any electronic communications it receives from your Portal or Services accounts as being a genuine communication from you. You are responsible for all access to, ordering, and use of the Portal or Services through use of your Portal or Services accounts, or your credentials, or Authorized Users’ credentials. You shall promptly notify Seagate of any unauthorized access or use of your credentials, Portal, or Services accounts, or email addresses associated with your Portal or Services accounts. You shall notify Seagate promptly (no later than 5 days) if you become aware of any security or data breach related to the Portal or any Services.
- 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 Portal or the Services that may be attributable to your activities, actions, communications, content, materials, or those of your Authorized Users, or of your Customers when you are acting as a Solution Provider.
- Compliance with Laws. You shall comply, and shall ensure that your Authorized Users comply, with all laws in connection with the access and use (and resale where authorized) of the Portal and the Services. You are responsible for ensuring that your use of the 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 Services to send any electronic communication that is unlawful, harassing, libelous, defamatory, or threatening.
- International Trade Compliance. You shall comply with all international trade laws affecting any Services and Hardware and applicable to your use and resale of, and the location of shipment or use of, the Services and Hardware. You shall ensure, and require your Authorized Users and Customers to ensure, that the Portal and Services are not:
- for Hardware and Services shipped by Seagate to or used in any member state of the European Union (“EU”) or United Kingdom, (or Canada or Mexico, subject to Eligible Countries limitations and conditions for the applicable Service) (i) used by a restricted party or a party owned or controlled by one or more restricted parties Consolidated Screening List (trade.gov)(EU restricted parties list are found on EU Consolidated Sanctions List); or (ii) used in destinations subject to other applicable economic sanctions;
- for Hardware and Services shipped by Seagate to or used outside the EU and United Kingdom, (i) used by a restricted party or a party owned or controlled by one or more restricted parties (U.S. government restricted parties lists are found at Consolidated Screening List (trade.gov)); or (ii) used in destinations subject to comprehensive U.S. embargoes on Cuba, Iran, North Korea, Syria, and the Crimea region or other occupied territories of Ukraine or in or in embargoed countries as determined by other applicable countries' laws affecting the Services;
- used for activities related to weapons of mass destruction including designing, developing, producing, or using nuclear, chemical, or biological weapons, materials, or facilities, or activities related to missiles or supporting missile projects; or
- used for other military or military intelligence activities (including processing technical data controlled under the U.S. International Traffic in Arms Regulations) or other applicable countries’ laws on military or military intelligence end uses.
- The Solution Provider Service Terms set forth additional international trade requirements for specific Services. A violation of the provisions of this paragraph (or international trade requirements in the Solution Provider Service Terms) serves as grounds for immediate suspension or termination of Services by Seagate. You shall fully indemnify Seagate for any and all costs, expenses, fees (including attorneys' fees), and penalties resulting from your or your Customers’ or Authorized Users’ failure to comply with your international trade compliance obligations under this Paragraph 2.4 or the Solution Provider Service Terms.
- Your Duty to Provide Accurate Information. You shall ensure that all information associated with your Portal and Services accounts, including your business name, address, phone number, tax registration numbers (including for value added tax) and all other information submitted to Seagate to authorize payment, is accurate at all times. You shall also ensure as a Solution Provider that all the information submitted for and by your 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 Authorized Users’ or Customers’ Portal or 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.
- Privacy Notices. If you, or you allow any Authorized User, Customer, or third party to, access or use any of the Portal or the Services to collect, store, process, or transmit any personally identifying information or personal data relating to any identifiable person (“Personal Data”), you (including through your Customers as applicable in all cases in this paragraph) shall provide legally adequate privacy notices to the required parties, obtain all necessary consents from the subjects of the Personal Data, and ensure that you have the right to provide their Personal Data to Seagate. You shall provide any required notices and opportunities to opt-out, and obtain any required consent under applicable privacy laws, including the General Data Protection Regulation ("GDPR"). 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 Portal and the Services in accordance with the terms of this Agreement and applicable laws. You are responsible for notifying Seagate if any data collected or stored by you using the Portal and Services must be deleted under applicable laws.
- Using Services to Share Information with Third Parties. The Services include tools, features, and offerings that enable customers 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 Customers when you act on their behalf as a Solution Provider. Seagate is not responsible or liable for the acts or omissions of third parties or any Third-Party Content.
- PROHIBITED USE
- You shall not, and shall not allow any third party, Customer, or Authorized User to:
- use the Portal or the Services for any illegal purpose, in violation of the rights of a third party (including through use of surveillance technology), 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 brands;
- sublicense, distribute, reprovision, or share credentials or access to the Portal or the Services, including Hardware, or allow third parties to exploit the Portal or the Services, other than renting, leasing, reselling, or sublicensing to Customers when you are acting as a Solution Provider;
- disable or circumvent any feature of the Portal or the Services relating to security, access, meters or monitors use, or usage limits;
- introduce to the Portal or the 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 Portal or the Services;
- share non-public features of the Portal or the Services with any third party, other than Customers when you are acting as a Solution Provider;
- disassemble, decompile, reverse engineer, or translate any software or hardware made available in connection with or related to the Portal or 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;
- disrupt, disable, or interfere with the integrity, security, or performance of the Portal or the Services or third-party data contained therein;
- modify, translate, adapt, merge, or make derivative works of the Portal or the Services, or frame or mirror or reproduce the presentation or navigational structure of any part of the Portal or the Services;
- remove or alter Seagate’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Portal or the Services;
- perform unauthorized benchmark testing, penetration testing, monitoring or crawling of data or traffic, overloading, mail bombing, broadcasting, or flooding techniques; or
- use the Portal Services or any data or materials obtained from the Portal or 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 Portal or Services), or to copy any ideas, features, functions, or graphics of the Portal or the Services, or for any purpose competitive to Seagate (including competitive benchmarking).
- ORDERING AND PAYMENT
- Ordering Services. You may order Services as described below and as may be further detailed in the Solution Provider Service Terms. Each Seagate official Services quote or ordering document issued to and accepted by you is an “Order”. An Order may include the description of the Services, minimum commitments, Services Period, pricing, region, renewals, and related information, as applicable. Your Order constitutes your binding commitment for the Services set forth in the Order.
- Assisted Sale Order. After you register your Portal account, receive authorization from Seagate to be a Solution Provider, and continue to order Services, Seagate may redirect you to an assisted sale via a Seagate sales representative, due to the size of your order, 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.
- Order Processing. Seagate may accept or reject any Order in its discretion. The Solution Provider Service Terms will indicate when you will be charged for the Services. Where applicable, Seagate will provide you an Order confirmation that includes tracking information. Seagate’s evidence of shipment and any included installation, or of making the Services available to you (or your Authorized User or Customer as applicable) will demonstrate Seagate’s right to invoice and be paid.
- Order Terms. If there is a conflict between this Agreement and any Order, the conflicting terms of the Order will control only with respect to the 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. If Seagate agrees in writing to an Order from or Solution Provider Plan with your Affiliate, all references to “you” in this Agreement include your Affiliate, your Affiliate is bound by all terms of the Agreement and the Solution Provider Plan and you assume joint and several liability for all obligations relating to the Agreement and your Affiliates’ acts and omissions hereunder, including payment for Services. 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 Affiliate obligated to perform the Services in the Order. With respect to each Order, all references to Seagate under this Agreement shall mean the applicable Seagate Affiliate identified in the Order. As used in this Agreement “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, a party hereto.
- Pricing. You will receive the pricing for the Services through the ordering process. All prices and fees are in United States Dollars (“USD”) unless otherwise stipulated in the Order. Where local law requires that you 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 you 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. The applicable Solution Provider Service Terms, your Order, or both, set forth payment and invoicing options and terms available for the Service. Seagate may post descriptions of additional Services and updated pricing online at any time. Updated pricing is immediately effective for all new Orders placed after the posted price change. For any 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. For Services with automatically renewing Services Periods (defined below), list pricing for the Services (and any included Hardware) in effect as of the first day of the new Services Period will apply for the duration of the renewed Services Period, except as otherwise stated in the Order.
- Invoicing and Payment Terms. Seagate (or its local branch office or Affiliate, where applicable, as stated in the invoice) will calculate and invoice you for the fees according to your Order. You shall pay the fees when due. If credit card payment options are made available and are used by you, 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.
- Additional Fees. Additional fees may apply depending on the Service, including the following:
- Minimum Usages Fees. Services purchased by you may include a minimum fee or usage commitment.
- 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
- Hardware Fees. Hardware fees are further described in the Solution Provider Service Terms, and may include delivery and return shipping for Hardware ordered and additional fees for Hardware lost or damaged beyond regular wear and tear.
- Upfront Fees. Upfront fees may apply to certain Services as stated in the Solution Provider Service Terms.
- 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 Services, your email address, and phone numbers. You shall promptly update Seagate if any of this information changes.
- Credit Terms (Pay-by-Invoice). To qualify for credit terms with Seagate, you must meet the following requirements: (a) you provide your documented proof of identify and business address (such as a W-9 in the USA, VAT registration in Europe, or similar document in other jurisdictions); (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 Portal.
- Right to Make Credit Inquiries and Investigations. 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 may require additional materials from you such as a credit reports, and Seagate may run risk assessments, including credit checks and fraud and criminal checks, on any customer. Seagate will not discriminate in the application of credit inquiries and deposit policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any risk assessments conducted by Seagate or by third parties on behalf of Seagate will be done in conformance with all laws. Seagate may make additional credit inquiries, fraud checks, and risk assessments after receiving payment from you for the Services.
- 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.
- 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.
- Purchasing Services from Solution Providers. You may engage a Seagate authorized Services Solution Provider to order Services, manage your orders, and administer your account. All payment obligations and liabilities for Services you purchase from a Solution Provider, are between you and the Solution Provider, not Seagate. Solution Providers are not agents of or authorized to bind Seagate. If you purchase Services from a Solution Provider or grant a Solution Provider administrator access to your Portal account, you authorize the Solution Provider to order and manage your Orders, and to communicate with Seagate regarding the Services. You authorize Seagate to provide the Solution Provider administrative level access to your Portal account and Your Data (defined in Section 7), including information provided to Seagate in setting up your Portal account, ordering Services, managing Services, and providing support.
- 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 (waste electronic and electrical equipment) and related or equivalent environmental legislation compliance costs or registrations (subject to applicable law), charges related to any packaging directive or other assessments, that Seagate is legally obligated to charge (collectively “Taxes”). You are responsible for paying all Taxes, excluding Taxes based on Seagate’s income except if there is a legal obligation on you to collect such Taxes by way of withholding as outlined below. 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. You agree to provide Seagate your valid VAT ID upon request where applicable or required.
- Withholding Taxes. If you are required to withhold Taxes from any payment by you to Seagate under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Services are delivered, used or obtained, then you will make such deductions in the minimum amount required by law and remit such Taxes to the proper authorities on a timely basis, and the amount payable by you under this Agreement will be increased such that the amounts received and retained by Seagate following deduction of Taxes are equal to the amounts that would have been received and retained by Seagate had no such Taxes been payable. You shall provide Seagate with official documentation or tax receipts on such withholdings supporting such Taxes and such payments as may be required by Seagate for its tax records as soon as reasonably possible following payment to the applicable taxing authority, and in any event no later than when required by applicable law.
- Inventory Taxes. You shall be responsible for paying all inventory taxes, personal property taxes, or use taxes arising out of your (including your Authorized Users’ or Customers’) possession, control, or use of the Hardware.
- 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 Hardware; any Taxes that you are obligated to pay pursuant to this Section 5, but fail to pay and any related seizure and recovery costs; and any claims, causes of action, costs (including reasonable attorneys’ and advisors’ fees, together with any applicable Tax thereon) and any other liabilities of any nature related to such taxes.
- Tax Compliance Notifications. If you are required for tax compliance purposes to notify applicable tax authorities that Seagate provided services to you (such as digital platform or other services subject to the 7th amendment to Council Directive 2011/16/EU or ‘DAC7’), you shall inform Seagate in writing of this notification within 30 days after it is made.
- SUSPENSION AND TERMINATION
- Services Period. The term of the Services is set forth in the Order for the Services based on the available options you select (the “Services Period”). The Solution Provider Service Terms provide additional details about the term and termination of specific Services. Termination or expiration of a Services Period does not automatically terminate this Agreement. The Solution Provider Service Terms for a Service may refer to the Services Period a subscription term or leasing term, or similar.
- Termination for Inactivity. If you do not maintain an active subscription to any Services during the prior 6 months, Seagate may terminate this Agreement (and close your Portal accounts) upon notice to you. Upon the expiration of all Services Periods and the fulfilment of your obligations for all Orders under your account, you may terminate your account and this Agreement through the Portal or by contacting a Seagate designated representative or agent for the Services.
- Early Termination and Termination Fees. The Solution Provider Service Terms provide the procedures and fees for terminating the Services, if any, before expiration of the Services Period.
- Termination for Cause. Either party may immediately terminate this Agreement and all of your Services subscriptions and Portal accounts if the other party commits a material breach of any provision of this Agreement, the Solution Provider Service Terms, or any Order, and does not cure the breach within 30 days of written notice from the non-noticing party. The notice from the non-noticing 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), Paragraph 2.4 (International Trade Compliance) terms relating to international trade requirements in the Solution Provider Service Terms 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. Seagate may delete your account and associated information without notice if you breach Paragraph 2.5 or Section 3 in connection with creating your Portal or Service account, or if Seagate detects fraudulent use under Paragraph 4.7.
- Suspension of Services. Seagate may immediately suspend your and your Customers’ access to the Portal or 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 Services if: (a) Seagate reasonably concludes that the Services are being used to engage in denial of service attacks, spamming, or illegal activity, or the Services are causing immediate, material, or ongoing harm to anyone, or (b) you are in breach of Paragraph 2.4 or Section 3 of this Agreement. Seagate will use reasonable efforts to limit the suspension to the offending use of the Portal or Services, and to reinstate the affected Portal and 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 Portal or the Services. You remain responsible for all applicable fees associated with your ordered subscriptions and services subject to and during any suspension imposed under this paragraph.
- Effects of Termination. Your rights to use the Portal and Services will immediately cease upon termination or expiration of your Portal account(s), or upon termination or expiration of this Agreement. In addition, your rights, and the rights of your Authorized Users and Customers, to use the Services will immediately cease upon termination or expiration of the Services Period for the Service. If you terminate this Agreement or any Portal account under this Agreement for any reason other than as permitted by this Agreement or the applicable Solution Provider Service Terms or if Seagate terminates this Agreement or any Services Period or Order for a Service as a result of your, or your Customer’s, breach, then Seagate will be entitled to all of the unpaid fees due for the entire Services Period of all the terminated accounts. If you terminate this Agreement as a result of Seagate’s breach, then all of your Services Periods for 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 Services Period. Regardless of the grounds for termination, you (and your Authorized Users and Customers) shall return all Hardware to Seagate as described in the Solution Provider Service Terms upon termination or expiration of the Services for which the Hardware is provided. To the extent permitted by applicable law, (a) you waive the benefit of any law or regulation providing compensation arising from the termination or failure to renew this Agreement and you warrant that your waiver is irrevocable and enforceable by Seagate; and (b) you shall defend and indemnify Seagate against any claims or actions asserted by you or your Customers or Authorized Users arising out of the termination or expiration of this Agreement.
- Retrieval of Data Before Termination. Following termination or expiration of your Portal account, this Agreement, or the applicable Services Period, Seagate may deactivate your Portal account, deactivate your access to associated Services, and delete Your Data (defined in Section 7) from the Services. It is your responsibility to ensure you and your Authorized Users and Customers back up and remove Your Data from the Services by performing a secure full erasure of all drives before the end of the Services Period, and before returning or servicing any Hardware. You or your Customer shall confirm in writing to Seagate that Your Data has been erased from the Hardware, once the erasure of Your Data has been fully completed. The details for erasure shall be made available through the Portal (or a Seagate support agent). By providing Seagate data erasure confirmation on behalf of your Customer, you warrant that you have obtained such data erasure confirmation from your Customer. Seagate will have no liability arising out of any damage to or loss of stored data after the end of your Services Period, or in connection with Hardware returns or servicing.
- No Expectation of Continuation. Seagate may stop offering any Services after expiration of your Services Period. Seagate is under no obligation to agree to a renewal or extension with respect to any Services.
- DATA, PRIVACY, SECURITY, AND TELEMETRY
- Your Data. “Your Data” is all data that you (or your affiliates, agents, Customers, or Authorized Users) provide to Seagate through or in connection with your Portal account(s) or your use or resale of the Services, including text, software, sound, video, images, and Personal Data. The storage, processing, and transmission of Your Data is an essential feature of the Services. You (including on behalf of your Customers) consent to Seagate and its contractors, and affiliates, collecting, storing, processing, and transmitting Your Data.
- 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 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 Services.
- Your and Your Customer's Security Obligations. Notwithstanding the safeguards described in Section 7.2 above, during your or your Customer’s possession (directly, or indirectly such as at your selected off premise or co-location facilities) of the Services or Hardware, you or Your Customer shall have and maintain appropriate and industry-standard physical, organizational and technical processes, security standards, guidelines, controls and procedures (“Appropriate Safeguards”) to protect Your Data. You understand that once the Service or Hardware is in your or your Customer’s physical possession or control, the effectiveness of the Appropriate Safeguards to protect Your Data is your (and your Customer’s) responsibility. Accordingly, Seagate will have no liability arising out of any damage to or loss of stored data during the Services Period, or while the Hardware is in your or your Customer’s possession or control.
- Diagnostics and Telemetry Data. Certain Services may store diagnostic and telemetry data about the operation of the service, including performance, usage, configuration, and errors (“Telemetry Data”). Where applicable, the Services may periodically transmit the Telemetry Data to Seagate. Your Data stored on the Services is not accessed, transmitted, or provided to Seagate as part of the Telemetry Data. The Telemetry Data is owned by Seagate.
- Internet Connection Requirements. You may be required to establish an internet connection to access and use the Services. Specific internet connection requirements for the Services are set forth in the applicable Solution Provider Service Terms.
- 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 Authorized Users or Customers, or transmitted using your phone numbers, email addresses, credentials, or your account information.
- LIMITED WARRANTIES; DISCLAIIMERS; HIGH RISK ACTIVITIES
- Limited Warranty of Functionality. Seagate warrants to you that the Services will provide the functionality described in the Solution Provider Service Terms in all material respects during the Services Period of the Services. The Solution Provider Service Terms for a specific Service may include additional warranty terms, exceptions, and disclaimers. Except as provided in this Agreement, Seagate will not materially decrease the functionality of the Services during the Services Period.
- Third-Party Warranties. The warranties in this Agreement apply only to the Services and Hardware included in the Services. Third-party products and services may be licensed and warranted pursuant to separate third-party written agreements.
- Warranty Exceptions. The warranties in this Agreement do not apply to, and Seagate will not have any liability for any defects, interruptions, errors, or failures caused by: (a) use of the Services not in compliance with this Agreement, the Solution Provider 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 Hardware; (d) improper or unauthorized installation, operation, maintenance, or modification; or (e) malfunctions caused by equipment, networks, or systems outside of Seagate’s control, including your Solutions. 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. Seagate does not warrant the complete security, accessibility, or inalterability of Your Data. The warranties in this Agreement are void if the serial numbers, labels, covers, seals, or components of any Hardware are removed, damaged, or tampered.
- Remedies. If the Services or included Hardware fail to materially comply with the warranty specified in this Agreement, Seagate shall use reasonable efforts to repair, replace, or modify the 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 Portal within 30 days after your discovery of the issue. If Seagate is unable to bring the non-conforming 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.
- 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 Solution Provider 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 Solution Provider Service Terms.
- WARRANTY DISCLAIMERS. Except for the limited warranty made by Seagate in this Section 8 (as supplemented by any additional warranties made by Seagate in the applicable Solution Provider Service Terms), Seagate provides the Portal, Services, and Hardware to you on an “as-is” and “as available” basis. This is the sole warranty offered by Seagate for the Portal, Services, and Hardware. Seagate makes no representations or warranties except as described in this Section 8. Seagate disclaims all other warranties relating to the Portal, the Services, and the Hardware, 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. To the maximum extent permitted by applicable law and subject to Paragraph 12.6 (Exclusions), Seagate will not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services.
- PROHIBITED HIGH-RISK ACTIVITIES. The 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 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 Portal or the Services in connection with High-Risk Activities.
- PROPRIETARY RIGHTS
- No Rights Transferred. Except as provided in this Agreement, Seagate does not grant or transfer to you, your Authorized Users, or Customers 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 Portal or Services.
- 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 collect, store, process, encrypt, transmit, access, use, duplicate, reproduce, modify, display, and create derivative works of Your Data as necessary to provide the Portal and Services to you and your Authorized Users and Customers.
- 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. You shall comply, and you shall ensure that your Authorized Users and Customers shall comply with the terms of all end-user license agreements that are either included in the Service Terms (or Solution Provider Service Terms as applicable to Solution Providers) or accompany the 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.
- No Copying, Modifications or Reverse Engineering. You shall not copy, modify, reverse engineer, decompile, or make derivative works of the Portal, Hardware, or the Services. You shall ensure that your Customers comply with this paragraph. Any unauthorized modifications, derivative works or enhancements are owned by Seagate; and you, and you on behalf of your Authorized Users and Customers, hereby irrevocably assign to Seagate all modifications, derivative works, or enhancements and all Proprietary Rights therein.
- Proprietary Notices. You, and your Customers shall not remove or obscure any proprietary notices incorporated in, marked on, or affixed to the Portal, Hardware or the Services.
- Feedback. If you or your Authorized Users or Customers provide Seagate with any suggested improvements or enhancements, features, or other feedback relating to the Portal, Hardware or the Services (“Feedback”), then you and your 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 Authorized Users and Customers also irrevocably assign Seagate all Feedback and Proprietary Rights therein.
- Attachment Order, Bankruptcy, Assignment to Creditors. If you become subject to an attachment order, bankruptcy, liquidation, assignment for the benefit of creditors, or similar disposition of assets, you shall notify the bailiff levying the attachment, insolvency practitioner, and administrator that Seagate owns all proprietary rights relating to the Portal, Services and any included hardware.
- 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 and as you instruct or consent through the 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.
- 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 Services that does not contain any Personal Data or customer-specific information; or (g) is Feedback.
- 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.
- Expiration. The obligation of confidentiality under this Agreement expires 3 years after the date of disclosure of the Confidential Information.
- 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.
- Publicity. Neither party may issue any press release or other publicity regarding this Agreement without the other party’s written approval.
- DEFENSE AND INDEMNIFICATION
- 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 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.
- 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.
- Exceptions. Seagate will have no obligation to defend or indemnify you for any infringement or other claim arising out of: (a) non-Seagate systems or offerings, your Solutions, any third-parties or Third-Party Content, or the combination of the Services with your Solutions or any non-Seagate system or offering or any of their components or any Third-Party Content; (b) any modification to the Services not made by Seagate or not made with Seagate's written authorization; (c) the use of a prior version the Services or portion thereof subject to an infringement claim under Paragraph 11.1(a) where Seagate has provided an updated version of, replacements for, or modifications to the Services to make them non-infringing; (d) any use of the Services in violation of this Agreement or for purposes not contemplated by this Agreement or its intended use; (e) Seagate's compliance with a specification or design provided by you; or (f) any use of the Services in High Risk Activities or violation of any laws.
- Obligation to Modify or Obtain Rights. If Seagate determines that you or your Authorized Users or Customers are likely to be prevented from using the 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 Services; (b) attempt to obtain the rights required to permit Seagate to grant you the right to use the Services; or (c) modify or replace the 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 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.
- 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 Authorized Users’ or Customers’ use of the Portal, Hardware, or 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 11.1 above; (c) acts or omissions causing personal injury or tangible property damage; (d) your Solutions; and (e) any of the indemnification exceptions set forth in Paragraph 11.3 above. 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.
- ENTIRE OBLIGATION. The Seagate indemnification obligations set forth in this Agreement and the applicable Solution Provider Service Terms are Seagate’s entire obligation and liability arising from or related to third-party claims.
- LIMITATIONS OF LIABILITY
- LIMITATIONS ON AMOUNT OF LIABILITY. To the fullest extent permitted by applicable law and subject to the exclusions set forth in Paragraph 12.6 below, the maximum aggregate liability of Seagate and its suppliers arising out of or relating to this Agreement, the Portal, Hardware and any 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 Services from which the liability arose in the 12 months preceding the event that first gave rise to the liability, whichever is greater.
- EXCLUSION OF CONSEQUENTIAL DAMAGES.The subscription and service 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 Affiliates or 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 12.2 do not apply to or limit your liability for (a) any breach of any licenses or rights granted in any Solution Provider Service Terms or your, or your Authorized Users’ or Customers’ infringement or misappropriation of any Proprietary Rights of Seagate, or (b) your or your Authorized Users’ or Customers’ breach of Section 3 (Prohibited Use), Section 7 (Data, Privacy, Security, and Telemetry) or Section 10 (Confidentiality) of this Agreement.
- 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 Portal, subject to the exclusions in Paragraph 12.6 below.
- Data Backup and No Liability for Lost Data. The Services do not replace the need for you to maintain regular data backups or redundant data archives. SEAGATE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA. Seagate will not be liable for lost data or the value of lost data under any circumstances, subject to the exclusions in Paragraph 12.6 below.
- Purpose of Limitations. The essential purpose of this Section 12 is to limit the potential liability of the parties arising from this Agreement. The limitations in this Section 12 are integral to the amount of fees charged for the Services; if Seagate were to assume any additional liability, the fees would be set substantially higher. The limits in this Section 12 will apply notwithstanding any other provisions of this Agreement or the failure of any remedy of its essential purpose.
- Exclusions. Some laws and countries do not allow the exclusion of implied warranties, or disclaimers or limitations of liability for incidental or consequential damages or willful misconduct or gross negligence; the limitations of liability and disclaimers in this Agreement will apply only to the extent permitted by applicable law.
- Audits. Seagate and its independent auditors have the right, upon reasonable notice to you, to examine your, and your Authorized Users’ and Customers’ use of the Portal and the Services to verify compliance with this Agreement. 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.
- COMPLAINTS AND DISPUTE RESOLUTION
- Governing Laws and Venue. Based on the Seagate contracting party, the governing laws 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 arbitrators (including the facilities in Paragraph 14.5) and courts (where applicable), identified below. The United Nations Convention on Contracts for International Sale of Goods does not apply to this Agreement.
Seagate Contracting Party
Seagate Technology LLC
the laws of the State of California, USA
arbitrators and courts located in Santa Clara County, California
Seagate Technology (Netherlands) B.V.
the laws of the Netherlands
arbitrators and courts located in the Netherlands
Nippon Seagate, Inc.
the laws of Singapore
arbitrators and courts located in Singapore
Lyve (SG) Pte. Ltd.
the laws of Singapore
arbitrators and courts located in Singapore
- 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 Agreement, the Portal, or the 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 Services.
- 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 Portal or receive the 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.
- 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 Portal account, at email firstname.lastname@example.org, 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 Portal or the Services. You must separately opt out for each Portal account under which you receive Services.
- Initiation of Arbitration Proceeding, Facilities, Notice, Fees. The party initiating the arbitration proceeding may open a case with the arbitration facility identified below for the applicable territory, facilities are listed in order of descending precedence should any dispute involve more than one territory: (a) American Arbitration Association (www.adr.org) facility in San Jose, California, for disputes arising out of the Americas; (b) International Arbitration Center in Amsterdam, the Netherlands for disputes arising out of EMEA; and (c) Singapore International Arbitration Centre in Singapore for disputes arising out of APAC or Japan. 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 pursuant to the arbitrator’s commercial arbitration rules (except where applicable mandatory law dictates that consumer arbitration rules shall apply) as modified by these arbitration provisions. If there is a conflict between the arbitrator’s rules and the arbitration provisions in this Agreement, the conflicting term in this Agreement will control. If the arbitrator will not administer the arbitration proceeding, the parties shall agree on a substitute arbitration organization, or if the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under the arbitration provisions in this Agreement. The arbitration will be resolved by a single arbitrator. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect each party’s confidential or proprietary information. 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. Each party will be responsible for its own fees and costs except as provided in the commercial arbitration rules of the arbitrator. 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.
- 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 a basis 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.
- 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 Portal, or the Services, whether in court or in arbitration.
- Exception for California Private Attorneys General Act. You may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act (“PAGA”) provided that the claim satisfies all criteria required for relief under PAGA.
- 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.
- Time Limitation. Subject to applicable mandatory 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.
- Important Notice for California Subscribers. If you or your Customers are a subscriber in California who has a complaint related the Portal, 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, provided that your complaint satisfies the requirements established by the California Department of Consumer Affairs.
- Changes to the Services. Seagate may change or discontinue the Portal or any of the Hardware or Services from time to time. Seagate shall make commercially reasonable efforts to provide thirty (30) days’ advance notice to you if Seagate discontinues material functionality of a Service that you or your Authorized Users or Customers are using. Notice will not be required if the notice or notice period:
- would pose a security risk or give rise to a potential intellectual property infringement claim in connection with the Portal or Services;
- is economically or technically burdensome; or
- would cause Seagate to violate applicable laws. If a Service has been retired and is end-of-life, subject to the Solution Provider 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 Services Period.
- Changes to this Agreement. Seagate may modify this Agreement (including any references to agreements or policies) at any time, subject to Paragraph 15.1 above, by posting a revised version on the Seagate website or by notifying you in accordance with Paragraph 16.7. 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 Portal or Services after the effective date of any modifications to this Agreement, you and your 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.
- 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 Portal or Services relate, by written notice to you.
- 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 Portal and Services accounts, unless you purchase from a Solution Provider, in which case the agreement between you and your Solution Provider sets forth the respective rights and obligations between you. Seagate’s invoices will reflect the Seagate party that is responsible for your applicable Services account during the applicable billing period.
- Force Majeure. Neither party will be liable to the other for failure to perform under this Agreement to the extent that its performance is delayed by circumstances beyond its reasonable control and is neither due to its fault nor its account in accordance with applicable law.
- Survival; Severability. All obligations that by their terms or nature survive termination of this Agreement will continue until fully performed, including all obligations relating to payment and any unreturned Hardware. 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.
- 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.
- 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 Portal and purchase of Services (“Existing Agreement”), then the Existing Agreement will control until it expires or is terminated.
- Legal Notices. Except as otherwise permitted in this Agreement, all legal notices and other communications between the parties in connection with this Agreement, the Portal, and the 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 email@example.com with copy to “Legal Notices” at the applicable address for the Seagate contracting party identified in the introductory paragraph of this Agreement.
- 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.
- U.S. Government Rights. This Paragraph 16.9 applies if you are or you represent the U.S. government, or the U.S. government is a Customer or an Authorized User. The Services are provided to the U.S. government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services. If the Services or these terms fail to meet the U.S. government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue the U.S. government’s use of the Services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Ethical Business Practices. You shall maintain written policies and procedures requiring your 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. You shall train your 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 you breach any provision of this paragraph.
- 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.
Version: June 20, 2023