LYVE SOLUTION PROVIDER SERVICES AGREEMENT - LYVE MOBILE SERVICE

 

This Lyve Solution Provider Services Agreement – Lyve Mobile Service (“Services Agreement”) is entered into by you (“you” or “your”) and the following Seagate contracting party (“Seagate”):

Location where Lyve Services will be providedSeagate Party
Americas Seagate Technology LLC
47488 Kato Rd., Fremont, CA, 94538, USA
EMEA Seagate Technology (Netherlands) B.V.
Tupolevlaan 105, 1119 PA Schiphol-Rijk, The Netherlands
Japan Nippon Seagate, Inc.
Tennoz Parkside Bldg., 2-5-8 Higashi-Shinagawa, Shinagawa-ku, Tokyo, Japan
APAC (excluding Japan) Lyve (SG) PTE. LTD.
90 Woodlands Avenue 7, Singapore (737911)

 

This Services Agreement governs your use of, access to, purchase of, and resale of the Lyve Mobile Services, with respect to your resellers of the Lyve Mobile Services (“your resellers”) and your and your resellers’ end customers of the Lyve Mobile Services (“end customers”)(collectively, “Customers”).

Please read this Services Agreement carefully before you use, purchase, or resell the Lyve Mobile Services. By clicking “I AGREE” or entering into an agreement with Seagate that incorporates this Services Agreement, or by accessing, purchasing reselling, or using the Lyve Mobile Services, you accept and agree to be bound and abide by this Services Agreement. If you do not agree to this Services Agreement, do not use or resell the Lyve Mobile Services.

This Services Agreement is effective as of the date you first access or purchase the Lyve Mobile Services identified in an Order, unless an earlier date is specified in your Lyve Solution Provider agreement with Seagate. This Services Agreement will remain in effect until expiration of your Lyve Solution Provider agreement (or your ‘Solution Provider Plan’ with Seagate thereunder if terminated earlier) unless this Services Agreement is terminated earlier in accordance with its terms. The terms of this Services Agreement shall continue to apply with respect to Customer Orders accepted by Seagate during the term of your Lyve Solution Provider agreement with Seagate.

By entering into this Services Agreement and accessing, purchasing, reselling, or using the Lyve Mobile Services, you represent and warrant that you are of legal age and capable of forming a binding contract with Seagate. If you are entering into this Services Agreement on behalf of a company or other entity, then you represent that you are an agent of that company or entity and are authorized to enter into this Services Agreement on behalf of that company or entity, and in such case, the term “you” as used in this Services Agreement refers to your company or entity.

 

1. SERVICE TERMS

1.1  Lyve Management Portal & Solution Provider Agreement. This Services Agreement incorporates by reference the Lyve Management Portal & Solution Provider Agreement located at https://www.seagate.com/legal-privacy/lyve/reseller-agreement/ (“Solution Provider Agreement”). To the extent of a conflict between the terms of this Services Agreement and the Solution Provider Agreement, this Services Agreement will control with respect to the Lyve Mobile Services identified in this Services Agreement. Terms defined in the Solution Provider Agreement have the same meaning in this Services Agreement unless otherwise defined herein.

1.2  Lyve Data Privacy Agreement. This Services Agreement incorporates the Lyve Data Privacy Agreement (“Lyve DPA”) when your or your Customers’ use of the Lyve Mobile Services includes the processing of Personal Data. The Lyve DPA is available at https://www.seagate.com/legal-privacy/lyve/. Use of the term “Company” in the Lyve DPA refers to the term “you” (or “your” as applicable) as used in this Agreement. If you or your Customers collect, store, process, or transmit Personal Data in your or your Customers’ use of the Lyve Mobile Services, you or your Customer shall provide legally adequate privacy notices and obtain all necessary consents and possess lawful grounds for the processing of the Personal Data using the Lyve Mobile Services.

1.3  Access and Use. Seagate grants you a nontransferable, non-sublicensable, nonexclusive, revocable right to access and use, and resell to your Customers the Lyve Mobile Services in the jurisdictions listed in Appendix 1 during the Subscription Term. Your rights and responsibilities relating to end use of any software included with or provided as part of the Lyve Mobile Services are governed by separate end-user license agreements. You shall comply with the terms of all end-user license agreements that are either included in this Services Agreement, the Order, or accompanying the Lyve Mobile Services (“EULAs”) for software you access or use as an end user in connection with the Lyve Services. The EULA for Lyve Mobile Services (“Mobile EULA”) is located at https://www.seagate.com/legal-privacy/lyve/product-eula/. To the extent of a conflict between the terms of this Services Agreement and the Mobile EULA, the Mobile EULA will control with respect to the subject matter of the Mobile EULA.

1.4  Additional Services. There may be other Lyve Services available to you or your Customers. All other services are subject to the terms and fees that apply to that service.

1.5  Upgrades. You shall promptly apply any upgrades, patches, bug fixes, or other maintenance to the Lyve Mobile Services as they are made available by Seagate.

1.6  Compliance with Service Specifications. You shall comply with the instructions, user manual, and specifications provided for the applicable Lyve Mobile Services and resale thereof.

1.7  Limited Warranties. The limited warranties set forth in Section 8 of the Solution Provider Agreement apply to this Services Agreement. Those limited warranties are the exclusive warranties offered by Seagate for the Lyve Mobile Services. The warranty limitations and exceptions of the Solution Provider Agreement apply to this Services Agreement. The Lyve Mobile Services are not fail-safe and are not designed or intended for use in High-Risk Activities requiring fail-safe performance or in which an error or interruption in the Lyve Mobile Services could lead to severe injury to business, persons, property, or environment. You assume the risks of any damages resulting from your use of the Lyve Mobile Services in connection with High-Risk Activities. Seagate will not be liable for any inconvenience, loss, liability, or damage resulting from High-Risk Activities.

1.8  Solution Provider Plans. As a Solution Provider user, you may select a “Project Plan” or an “Annual Plan” for the Lyve Mobile Services. Business plans are made available by Seagate to business user end customers and are not provided or intended for personal, family, or household use or purposes, and you agree not to resell Lyve Mobile Services to end customers for such purposes.

 

2. PROJECT PLAN

2.1  Minimum Term. The Subscription Term for Project Plan subscriptions will be set forth in the Order, with a 1-month minimum term unless the Order states otherwise. The subscription becomes active based on the estimated arrival date of Lyve Hardware shipped to the delivery address plus one day.

2.2  Renewals. Upon expiration of the Subscription Term, the Lyve Mobile Services will auto-renew for recurring monthly terms unless you or your Customer: (1) initiates a return of the Lyve Hardware during the Subscription Term through the Lyve Portal or contact a Seagate support agent, and (2) the Lyve Hardware is returned to Seagate in accordance with the terms of this Services Agreement.

2.3  Cancellation. You may cancel a Subscription Term on your own account or that of your Customer (when acting with their authorization and on their behalf as their solution provider or reseller) and initiate return of Lyve Hardware at any time through the account dashboard at the Lyve Portal or by contacting a Seagate support agent within the Lyve Management Portal. All upfront payments are non-refundable. Seagate may charge you a per-unit return hardware shipping fee upon receipt of a request to cancel by you or your Customer. Seagate will issue a shipping label and other necessary information to return the Lyve Hardware. Seagate will daily-prorate fees for the final month of service, with the Subscription Term ending upon the date the Lyve Hardware is shipped back to Seagate’s designated facility (subject to receipt of all equipment in working order). You will continue to be charged for services on a recurring basis until the Lyve Hardware is returned, including all associated components and ancillary items.

 

3. ANNUAL PLAN

3.1  Minimum Term. The Subscription Term for Annual Plan subscriptions will be set forth in the Order, with a 1-year minimum term. The Subscription Term starts on the estimated arrival date the Lyve Hardware shipped to the Customer plus one day.

3.2  Renewals. Your Customer (or you when acting as a solution provider or reseller on their behalf) may renew the Lyve Mobile Services for additional 1-year terms through the Lyve Portal or by contacting a Seagate sales representative. If you do not renew your Lyve Mobile Services subscription the Annual Plan subscription will automatically convert to a monthly Project Plan (minus subscription term-based discounts) and continue to renew on a monthly basis until you or your Customer elects to terminate in accordance with the terms of this Services Agreement.

3.3  Cancellation. You may cancel an Annual Plan on your own account (or that of your Customer when acting with their authorization and on their behalf as a Solution Provider) and initiate return of Lyve Hardware at any time through the account dashboard on the Lyve Portal, or by contacting a Seagate support agent. All upfront payments are non-refundable. You will continue to be charged monthly at the Project Plan rate for each additional month of service until the Lyve Hardware is returned.

3.4  Discounts Cancellation on Early Termination. All discounts and rebates based on the Subscription Term will be canceled if you or your Customer terminates the Annual Plan before the end of the then-current Subscription Term, and Seagate will invoice you for all amounts you would have originally been invoiced if you had not received the discounts and rebates.

3.5  “Flex up” Amendment. You or your Customer may add or substitute different Lyve Hardware through the Lyve Portal under the Annual Plan, subject to additional subscription and shipping fees.

3.6  “Flex down” Amendment. If more than 5 Lyve Hardware units are ordered for you (or your Customer’s) project, you (or your Customer where applicable) may reduce the number of Lyve Hardware units by no more than 20% of the total units once during the Subscription Term. You will be required to pay return shipping fees for any Lyve Hardware units returned to Seagate. You will be billed for each Lyve Hardware unit on a prorated basis until the date it arrives at Seagate’s facility.

3.7  Annual Up-Front Plan”. For selected Lyve Services, you may have the option to pay up-front for one full year of subscription services, which payment is non-refundable, including for early termination and “flex down”. The Lyve Services offered under the Annual Up-Front Plan are subject to renewal at the expiration of your subscription term.

 

4. PRICING AND PAYMENTS

4.1  Pricing. Your Lyve Mobile Services pricing and fees are based on the pricing made available in the service selection and ordering process at the Lyve Portal and included in your Order.

4.2  Initial Billing. Your initial invoice will be issued upon the date of service activation after the Lyve Hardware is shipped, and may include one-time charges such as delivery shipping and other applicable up-front fees, as specified in your Order. Payment of the initial invoice is non-refundable.

4.3  Billing Cycle. You will be billed monthly in arrears for all recurring Lyve Mobile Services charges, unless the Order states otherwise. Invoices will be issued monthly, on or about the first calendar day of each month for the Lyve Services. You may contact Seagate to request a different billing date. Depending on the date of service activation your first bill may be daily-prorated for a partial month.

4.4  Additional Fees. If stated on your Order, you shall pay a one-time charge to cover delivery of any Lyve Hardware units, and you will be charged a return shipping fee when returning any Lyve Hardware units to Seagate. Shipping fees may vary based on the region, type of hardware equipment, method of shipping, and other factors. Additionally, you may be required to pay fees or penalties related to professional services, special shipping arrangements, or loss or damage of hardware, including hardware cases.

 

5. LYVE HARDWARE TERMS

5.1  Shipping Terms. Seagate will ship all Lyve Hardware DAP (Delivery at Place) of the destination (Incoterms 2020) provided that Seagate will be responsible for import clearance on Seagate shipments of Lyve Hardware to the Eligible Counties identified in Annex 1 of this Services Agreement (unless otherwise agreed by Seagate and you in writing) and you will be responsible for risk of loss as provided in Paragraph 5.3 below. Notwithstanding the preceding, for shipments of Lyve Hardware to Switzerland, you agree to be the importer of record responsible for clearing the goods for import and paying all import costs including any duties, taxes, or other clearance charges. All scheduled shipment dates are estimates only.

5.2  Care and Maintenance. The Lyve Hardware shall be maintained (at your cost and financial responsibility) in the same condition as when it was initially received from Seagate (with the exception of ordinary wear and tear that results from normal use). You and your Customers shall comply with the provided instructions, user manual, and specifications for the Lyve Hardware. You and your Customers shall exercise the same degree of care toward the Lyve Hardware as exercised towards your own property of similar nature, but no less than reasonable care. You shall (and you shall require that your Customer) inform Seagate via the Lyve Portal (or other support contact mechanism designated by Lyve) to report any hardware technical or operational issues, and enable Seagate or its designated service representative to provide support and other maintenance or replacement of Lyve Hardware.

5.3  Risk of Loss. You (including for your Customer) bear the risk of loss of or damage to the Lyve Hardware and any other items provided by Seagate, including any associated accessories, such as shipper cases, power supplies and cables, and connectors, from the point where it is delivered to you by Seagate until you return the Lyve Hardware to Seagate’s carrier properly packaged for return shipment to Seagate. If Lyve Hardware is lost or damaged, you are subject to a loss fee up to and including the fees set forth in Paragraph 6.6 (Hardware Loss Fee). In addition, if Lyve Hardware becomes confiscated or subject to additional duties or fees as a result of failure by You or your Customer to accept the Lyve Hardware at the place of shipment or based on use of Lyve Hardware in violation of this Services Agreement, you shall pay the reasonable costs incurred by Seagate to recover the Lyve Hardware up to the designated Hardware Loss fee. You are responsible for injuries to any person or property resulting from the use or possession of the Lyve Hardware. Seagate is not liable for any loss or damage to any person or property resulting from the use or possession of the Lyve Hardware.

5.4  Title and Ownership. You and your Customer may use the Lyve Hardware as part of the Lyve Mobile Services, however Seagate retains all rights, title, and interest in and to the Lyve Hardware and related firmware. Seagate does not sell, lease, rent, or transfer to you or your Customer any rights or interests in the Lyve Hardware except for the limited usage rights expressly specified in this Services Agreement. You shall not remove or obscure any tags or markings that identify the Lyve Hardware as Seagate’s property. You shall sign any documents, instruments, recordings, or filings requested by Seagate to preserve Seagate’s interest in to the Lyve Hardware. You shall cooperate with Seagate in taking all reasonable measures to protect Seagate’s interest in the Lyve Hardware. You shall not attempt to transfer any legal interest in the Lyve Hardware to any third party.

5.5  Protection from Encumbrances. You shall not allow the Lyve Hardware to be subject to any claims, liens, or encumbrances by any third parties asserting claims against you. You shall defend and indemnify Seagate against any third-party claims, liens, encumbrances, or seizure of the Lyve Hardware by any third party asserting claims against you. Seagate may exercise any available legal remedies to enforce its rights hereunder, including perfecting a security interest in the Lyve Hardware, repossessing the Lyve Hardware, or exercising other rights permitted by Law.

5.6  Deployed Hardware. Seagate may expand, modify, substitute, replace, or remove any Lyve Hardware component deployed as a service at any time. Lyve Hardware returns, suspensions, and deactivation are further detailed below.

5.7  Internet Connection Requirements and Lyve Hardware Access Codes. Per the accompanying instructions provided by Seagate, you or your Customer  shall establish an Internet connection that allows the Lyve Hardware to authenticate the host and your (or Customer’s) access credentials and grant you (or your Customer) access to the Lyve Mobile Services (by means of confidential unique access keys or codes), and to report location, usage, diagnostic, and telemetry data to Seagate. The credentials granting access to the Lyve Mobile Services expire after 30 days unless re-established while connected to the Internet or pre-defined through the user permissions set through the Lyve Portal account. Accordingly, at least once every 30 days you (or your Customer where applicable) shall establish an Internet connection to maintain access to the Lyve Hardware and Lyve Mobile Services. Failure to do so, may result in suspension of any rights to access or use the Lyve Mobile Services and applicable Lyve Hardware until you (or your Customer where applicable) establish an Internet connection sufficient to validate the access credentials. You remain responsible for all payment obligations for the Lyve Mobile Services even while your or your Customer’s access is suspended due to failure to connect to the Internet. You and your Customer must follow any additional logon procedures designated by Seagate to allow the Lyve Hardware to connect with Seagate’s servers. You acknowledge that your electronic communications will involve transmission over the Internet, which includes networks that are not owned or operated by Seagate. Seagate is not responsible for the reliability or performance of any Internet connections or networks not owned or operated by Seagate.

5.8  Usage Environment and Installation Requirements. In any use of or interaction with the Lyve Hardware, you and your Customer must adhere to all Lyve Hardware specifications and maintenance guidelines, including all electricity, power, physical storage, and physical security requirements, before deploying the hardware. You shall not modify the Lyve Hardware without the advance express written consent of Seagate. You and your Customer may install Seagate-provided firmware and software updates.

5.9  Usage by Third Parties. Only Authorized Users may use Lyve Hardware provided under a Lyve Portal account.

5.10  International Trade Compliance. The Lyve Mobile Services and Lyve Hardware may include subscription products, services, technology, and software that are subject to the export/import control laws of the United States, including restrictions related to encryption technology, and may also be subject to the export/import laws of the country in which the Lyve Mobile Services and Lyve Hardware are provided and used. The Lyve Mobile Services and Lyve Hardware may not be sold, leased, or transferred to (a) restricted countries or territories (including Cuba, Iran, North Korea, Syria, or the Crimea region); or (b) outside of the territory of the European Economic Area, United Kingdom, Switzerland, and the United States if Seagate delivered the Lyve Hardware to you or your Customer in a country located within them. You (or your Customer or users where applicable) shall obtain export/import authorizations or licenses as required to support transfer of technical data or hardware from one country to another. Further, the Lyve Mobile Services and Lyve Hardware may not be used by restricted parties listed on U.S. restricted party lists or any other list applicable in your jurisdiction (U.S. government restricted parties lists found at: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm), or engaged in activities related to weapons of mass destruction including, activities related to designing, developing, producing, or using nuclear weapons, materials, or facilities, missiles or long-range drones; or chemical or biological weapons; or military or military intelligence uses (including to process technical data controlled under the U. S. International Traffic in Arms Regulations). You shall make your Customers and users aware of any export/import controls and other laws pertaining to Lyve Mobile Services and Lyve Hardware and you represent that you, your Customers and your users shall fully comply with all such regulations and laws.

5.11  Movement of Hardware. Subject to the terms of this Services Agreement, including the international trade requirements under Paragraph 5.10, above, you (and your Customer) may, at your respective sole risk and expense, transport the Lyve Hardware to different locations under your control. You are responsible (and shall ensure that your Customers are responsible) for obtaining any import/export licenses and any product or producer registrations under applicable laws (including under or pursuant to any applicable waste electronic and electrical equipment ("WEEE") schemes) and paying any associated taxes or fees (including any applicable WEEE registration fees). Seagate is not responsible for any loss, damage, theft, or seizure of the Lyve Hardware or Your Data or that of your Customer. You must (and will ensure that your Customer shall as applicable) transport the Lyve Hardware back to the country of original deployment before shipping back to Seagate. Seagate’s ability to provide remedies to a failure of the limited functionality warranty (referenced in Paragraph 1.7 above) may be limited or not available if the Lyve Hardware is moved to a location other than the initial ship-to country. Seagate disclaims the limited functionality warranty with respect to Lyve Hardware moved to a location other than the initial ship-to country. You must (and will ensure that your customer shall as applicable) promptly respond to our inquiries as to Lyve Hardware location and status.

 

6. RETURNS PROCESS

6.1  Notice of Returns. You (or your Customer) shall return the Lyve Hardware at the end of the Subscription Term as required by Seagate. In addition, Seagate may require return of Lyve Hardware at any time. Once you (or your Customer) have provided notice of intent to terminate the Lyve Mobile Services, or if Seagate requires Lyve Hardware return, Seagate will provide shipping instructions via the Lyve Portal or via a Seagate representative.

6.2  Return Procedure. To return Lyve Hardware, you (or your Customer) shall: (a) promptly contact Seagate support at the Lyve Portal to initiate return of the Lyve Hardware (refer to the self-service hardware return menu in the Lyve Portal) to obtain return information and instructions; (b) return the Lyve Hardware to Seagate in accordance with Seagate’s reasonable shipping instructions; and (c) ensure that all information stored on the Lyve Hardware is removed in its entirety.

6.3  No Responsibility for Your Data. Seagate will not be liable to you, your Customer, or any third party for Your Data or any other information remaining on the Lyve Hardware returned to Seagate. Seagate has the right to delete and destroy Your Data and any other information.

6.4   Inspection. Seagate or its agents may conduct routine hardware inspection and servicing following receipt of returned Lyve Hardware. Seagate will notify you of any repair or reasonable replacement costs associated with any damage to the Lyve Hardware while in your (or your Customer’s) possession or control (other than normal wear and tear).

6.5  Deadline for Return.  Your final statement will be daily pro-rated based on the date of return shipment, subject to Seagate’s confirmation that all Lyve Hardware is returned in working order according to this Services Agreement. Seagate may request return of the Lyve Hardware at any time; the return period is specified in Paragraph 6.6. Seagate may suspend or terminate access to Lyve Hardware remotely, including for failure to return Lyve Hardware. If Seagate does not receive all components of the Lyve Hardware, Seagate may continue to charge you the subscription or service fees until Seagate receives the returned the Lyve Hardware.

6.6  Hardware Loss Fee. If the Lyve Hardware is not returned to Seagate within 30 days after receipt of Seagate’s demand or within 30 days after termination or expiration of the Subscription Term, Seagate may charge the account a Hardware Loss Fee (including charges for unreturned Lyve Hardware accessories, per unit) up to the amounts shown below. The payment of the Hardware Loss Fee does not result in a sale of or the transfer of title to any Lyve Hardware. All Lyve Hardware remains the property of Seagate, and Seagate retains all right, title, and interest in and to the Lyve Hardware. There is no option for you or your Customer to purchase the Lyve Hardware. Even if the Hardware Loss Fee is paid in full, neither you nor your Customer obtains title to the Lyve Hardware and neither you nor your Customer shall not use or resell the Lyve Hardware.

Hardware TypeHardware Loss Fee (US Dollars)
Lyve Mobile Protective Case $500
Lyve Mobile Array – 60TB HDD $25,000
Lyve Mobile Array – 96TB HDD $30,000
Lyve Mobile Array – 46TB SSD $40,000
Lyve Mobile Array – 92TB SSD $70,000
Lyve Mobile Rackmount Receiver (any model) $5,000
PCIe Adapter $500
Car Mount $500
Accessory (per unit) up to $800

 

7. SUPPORT AND MAINTENANCE

7.1  Service and Maintenance Requests. You (or your Customer) must notify Seagate immediately if the Lyve Hardware is damaged or not working properly. You may not modify or remove any component of the Lyve Hardware. No party other than Seagate or its service representative may perform maintenance or service on Lyve Hardware.

7.2  Site and Equipment Access. You shall cooperate with Seagate and your Customer to grant Seagate or its designated service representative physical access to the Lyve Hardware as well as access to required electricity and/or internet connection.

7.3  Responding to Support Requests. Seagate or its representative will contact you to address the Lyve Hardware issue reported by you. Seagate may be able to provide support with the Lyve Hardware remaining on your premise, or Seagate may ship you replacement Lyve Hardware to address the issue and provide you with instructions and materials for Lyve Hardware to be returned to Seagate.

7.4  Software and Firmware Upgrades. Seagate may periodically update Lyve Hardware software and/or firmware remotely. You shall ensure that the Lyve Hardware has been updated with the latest software/firmware versions and security upgrades made available to you by Seagate.

7.5  Third Party Service Providers. Seagate may designate a third party to service or maintain the Lyve Hardware. This includes 24/7 remote hands as well as onsite servicing. Third parties who have not been designated by Seagate as service representatives are restricted from interacting with or servicing Lyve Hardware, or the software or firmware provided with the Lyve Mobile Service.

7.6  Substitute Hardware. If Seagate requires return Lyve Hardware for support or technical issues during a Subscription Term, substitute Lyve Hardware will be provided reasonably in advance to allow transfer of the data stored on the Lyve Hardware. You and your Customers are responsible for backing-up and transferring all data stored on any Lyve Hardware prior to return or deactivation of the hardware.

 

APPENDIX 1

to LYVE SOLUTION PROVIDER SERVICES AGREEMENT – LYVE MOBILE SERVICE

ELIGIBLE COUNTRIES

Lyve Mobile Services are available to customers located (established) in the following countries. Seagate will ship Lyve Hardware only to customers and customer addresses located in these counties:

AMERICAS

     -  United States of America

EMEA

     -  Austria

     -  Belgium

     -  France

     -  Germany

     -  Italy

     -  The Netherlands

     -  Norway

     -  Spain*

     -  Sweden

     -  Switzerland

     -  United Kingdom

 

*Required disclosure of certain product registration numbers: Spain WEEE Registration #7783, Spain Batteries Registration # 2308

 

Version: November 15, 2021