| Last Updated: May 3, 2021
Seam Platform Agreement

This Seam Platform Agreement (this “Agreement”) is between Halcyon Labs, Inc. dba Seam (“Seam” or “us”) and the legal entity (including sole proprietors) that you identified on the sign-up page (“you”). You represent that you have the authority to agree to this Agreement on behalf of such legal entity and that all of the information you provide to us is accurate and complete. Your access, use or integration of the Seam Platform is subject to this Agreement, and by accessing, using or integrating the Seam Platform, you expressly agree to the terms and conditions of this Agreement.

  1. Definitions

    • “End Device” is any non-Seam device passing data to, or configured to pass data to, any Hub.
    • “Hub” is any Seam-branded hardware.
    • “Hub Data” means data collected by any Hub.
    • “Hub Users” means any individuals or third parties who own, deploy, install or configure any Hub.
    • “Individuals” are individuals whose data (including data about their physical activity, even if such data is not personally identifiable) may be sent by an End Device to a Hub and included in Hub Data.
    • “Platform Users” means any individuals or third parties who may access the data or other services made available through the Seam Platform.
    • “Seam Platform” is the Seam API and any related website, mobile application or other services provided by Seam.
  2. Your Obligations You will not use the Seam Platform if you are under the age of 16 or allow others under the age of 16 to use the Seam Platform. You will keep your credentials to your Seam Platform secure. If you become aware of, or reasonably suspect, any unauthorized access or use of your Seam Platform account or Hub Data, you will promptly notify Seam in writing. You must take all reasonable steps to ensure that your Hub Users do not use the Seam Platform in violation of this Agreement, including the Seam Acceptable Use Policy, and you are responsible for any violation of this Agreement by your Hub Users. To the extent that you become aware of or reasonably believe a Platform User or Hub User is violating this Agreement, you must promptly notify Seam in writing. You will comply with all applicable laws and regulations (including related to privacy and security) and your agreements with third parties in connection with your use of the Seam Platform, any Hub and any End Device (including any End Device terms). You may not, nor may allow any third party to, (a) use the Seam Platform, any Hub or any Hub Data for any fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, any person or third party or otherwise in violation of the Seam Acceptable Use Policy; (b) circumvent Seam’s intended limitations for any feature of the Seam Platform, Hub or in a manner inconsistent with Seam documentation; (c) make any representation, warranty or commitment on behalf of Seam; (d) use any Seam logo, or trade or service mark in a manner inconsistent with guidelines provided by Seam. Seam is not responsible for the services or products you make available or provide to third parties.

  3. Hub Data You must prominently notify and clearly explain to Individuals what categories of Hub Data that you may collect and how such Hub Data will be used, retained, shared and otherwise processed, in accordance with applicable laws (such notice, “End Privacy Notice”), and you must obtain any consents or offer any opt-outs required by applicable laws. If you do not have a direct relationship with nor directly interact with Individuals, you must obtain the agreement of Hub Users and Platform Users to provide a prominent End Privacy Notice and obtain any consents or offer any opt-outs required by applicable laws to Individuals, and you must use all reasonable efforts to periodically assess compliance with the foregoing. You represent that you have obtained all necessary rights and consents under applicable law to allow Seam to collect, use, retain, and share the Hub Data as reasonably necessary to provide you the Hub Data and Seam Platform and to improve the Hub and Seam Platform. For more information regarding how Seam collects, users, retains, and shares the Hub Data, please review the Seam Privacy Notice. You will use all reasonable efforts to protect and secure Hub Data from unauthorized access, use or disclosure. You will not knowingly include as part of the Hub Data any personal information that is considered sensitive under applicable law or for children under the age of 16.

  4. Fees and Payment Fees applicable to you for the Seam Platform will be reflected on your Seam Order Form, and you agree to pay such fees in accordance with your Seam Order Form and this Agreement. If you are using an electronic payment method, you authorize Seam to automatically charge such fees on the basis described in your Seam Order Form and this Agreement to the payment card you provide, including for any automatic renewal. If the Seam Order Form provides that you are not using an electronic payment method, you agree to pay Seam within 30 days of receipt of invoice from Seam if no other payment period is identified on the Seam Order Form. Seam’s fees are exclusive of any applicable sales or value-added tax, except as expressly stated to the contrary. If Seam is required to withhold any taxes, Seam may charge you such taxes in addition to the fees shown on your Seam Order Form and pay them to the appropriate taxing authority. If you are exempt from payment of such taxes, you must provide Seam with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status.

  5. Term and Termination The term of this Agreement will begin when you register your account on the Seam Platform or otherwise access or use the Seam Platform. Unless otherwise specified on the Seam Order Form, this Agreement and the Seam Platform services ordered on the Order Form will automatically renew at the end of the term identified on your Seam Order Form, unless either party provides 30 days advance notice of its intent not to renew this Agreement. Either party may terminate this Agreement upon 30 days notice if the other party materially breaches this Agreement, provided that such material breach is not cured within such 30 days. Seam may also immediately terminate this Agreement or suspend your access to the Seam Platform, Seam Data or suspend your use of any Hub, if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding, or if Seam determines that you are engaged in activity that fails to comply with applicable law or causes a significant risk of reputational harm to Seam. Sections 4 through 10 will survive termination of this Agreement. No earlier than 30 days after the termination of this Agreement, Seam reserves the right to permanently delete all Hub Data and Seam Platform Data collected under this Agreement.

  6. Representations and Warranties You represent and warrant that you will use the Seam Platform, and will not knowingly permit the use of the Seam Platform in a manner that is not,with all applicable laws and regulations (including related to privacy and security) and your agreements with third parties in connection with your use of the Seam Platform, any Hub and any End Device (including any End Device terms). You represent and warrant that you will not use the Seam Platform, or knowingly permit the use of the Seam Platform in a manner that is, fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, any person or third party or otherwise in violation of the Seam Acceptable Use Policy.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SEAM PROVIDES THE SEAM PLATFORM “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SEAM DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SEAM PLATFORM. SEAM MAKES NO WARRANTY THAT THE SEAM PLATFORM WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU USE ALL HUB DATA (AS DEFINED BELOW), THE SEAM PLATFORM, AND THE HUBS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND SEAM DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO ANY PERSONAL PROPERTY, OTHER PROPERTY OR GOODS, FOOD OR OTHER PERISHABLES, FACILITIES, EQUIPMENT, PERSONS, HUBS, OTHER END DEVICES CONNECTED TO THE HUB, RESULTING FROM YOUR USE OF THE HUB DATA, SEAM PLATFORM, OR HUBS.

  1. Indemnification You agree to defend, indemnify, and hold harmless Seam, its affiliates, service providers, and their respective directors, officers, employees and agents (each a “Disclaiming Entity”) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) any disputes between you and any individual or third party relating to the Seam Platform, Seam Data, any Hub or any End Device; or (b) your use of the Seam Platform, Seam Data, any Hub or any End Device in a manner that is illegal, causes Seam harm or is inconsistent with Seam documentation.
  2. Limitations of Liability Seam is not responsible for, and disclaims all liability, for any End Device and for your, your employees’, and your agents’ acts or omissions, including in configuring the Hub to any End Device or the Seam Platform. In no event will a Disclaiming Entity be liable for any lost profits, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to this Agreement or Seam Platform, including the use of, inability to use, or unavailability of the Seam Platform. The Disclaiming Entities have no liability or responsibility for any of the following: (a) personal injury or property damage, of any nature whatsoever, resulting from use of the Seam Platform or the Services; (b) damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to, or use of, any Hub, any End Device or the Seam Platform, including any unauthorized access to or use of third-party servers used in connection with the Seam Platform or the Services and/or any personal information stored therein; (c) interruption of the Seam Platform; (d) software bugs, viruses, or other harmful code that may be transmitted to or through the Seam Platform; (e) errors, inaccuracies, or omissions of information, or any damages or losses incurred as a result of such errors inaccuracies or omissions, resulting from the use of the Seam Platform; (f) information that is transmitted using the Seam Platform that is defamatory, offensive, or illegal; or (g) conduct of any third party. Without limiting the foregoing provisions of this Section 8, the Disclaiming Entities’ cumulative liability to you in connection with the Seam Platform (including under this Agreement) will be limited to direct damages and in all events will not exceed in the aggregate the amount of fees paid by you to Seam during the three (3) month period immediately preceding the event giving rise to the claim for liability. This Section 8 applies to the maximum extent permitted by law, and applies regardless of the legal theory on which the claim is based, including contract, tort (including negligence, product liability, or otherwise), strict liability, or any other basis. The limitations apply even if the Disclaiming Entities have been advised of the possibility of such damage. This limitation is cumulative and will not be increased by the existence of more than one incident or claim.
  3. Dispute Resolution. If you have a dispute with Seam, you agree to contact us through the contacts provided on your Seam Order Form regarding your dispute to attempt to resolve the issue informally first by your Seam representative or as may be escalated to the Seam legal or leadership team. If we are not able to resolve the dispute informally, then this section will govern any legal dispute that relates to the Seam Platform or this Agreement. Binding Arbitration. You and Seam agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Seam Platform (collectively "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Seam both agree to waive the right to a trial by jury. Class Action Waiver. You and Seam agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that, in connection with any Dispute, you and Seam both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Seam agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person's claims and may not preside over any form of class action proceeding. Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules then in effect (the "AAA Rules"), except as modified by this "Dispute Resolution" section. (The AAA Rules are available at http://www.adr.org.) Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules. Arbitration Location and Procedure. The seat of the arbitration shall be in San Francisco, California unless you and Seam agree otherwise or the AAA Rules provide otherwise. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Seam submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties. Arbitrator's Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the "Limitations of Liability" section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant's individual claim. Fees. Each party's responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
  4. Confidentiality

“Confidential Information” shall mean the details of your Seam Order Form and all other information disclosed to you that Seam characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Seam. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Seam in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Seam in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Seam prior to such disclosure to allow Seam an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Seam in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. 11. Other General Legal Terms a. Governing Law, Disputes, and Interpretation. This Agreement is governed by California law, and the courts in Santa Clara County have exclusive jurisdiction of any disputes relating to or arising from this Agreement that are not subject to arbitration pursuant to Section 9. Each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Seam may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. This Agreement does not limit any rights of enforcement that Seam may have under trade secret, copyright, patent, or other laws. Seam’s delay or failure to assert any right or provision under this Agreement does not constitute a waiver of such right or provision. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term. b. Assignment. Seam may assign or delegate this Agreement. Upon notice to Seam, you may assign this Agreement to your successor or acquirer in connection with your merger, change of control or a sale of all or substantially all of your assets relating to this Agreement, provided that such successor or acquirer is not a competitor of Seam. c. Entire Agreement. This Agreement constitutes the entire agreement between you and Seam with respect to the Seam Platform. This Agreement describes the entire liability as between you and Seam and sets forth your exclusive remedies with respect to the Seam Platform. If there is any irreconcilable conflict between the provisions of this Agreement and specific policies referenced herein (e.g. the Seam Acceptable Use Policy or Seam Privacy Notice), the specific policies referenced govern unless explicitly provided otherwise in this Agreement. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it should be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. d. Feedback. All suggestions or feedback provided by you to Seam with respect to the Hub Software shall be Seam property. Seam may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. e. Independent Contractors. You and Seam are independent entities, and this Agreement does not create any partnership, agency, or employment relationship between you and Seam, or the employees or agents of either party. f. Notices. Any notice to you may be provided by email to the address that you registered with Seam. g. Right to Modify. Seam may amend this Agreement (including the Acceptable Use Policy) upon notice to you, which may be provided through email, the Seam Platform, or Seam’s website. You agree that any changes to this Agreement will be binding on you 7 days after the amendment is made by Seam (or, if a longer period is required by applicable law, such longer period). If you elect to not accept the changes to this Agreement, you must (a) provide notice to Seam and (b) immediately cease using the Seam Platform. Where you do not provide such notice prior to the amendments becoming binding, by continuing to use the Services you agree that you are consenting to any such changes to this Agreement.