LYVE SERVICES AGREEMENT - LYVE DATA TRANSFER SERVICE

 

This Lyve Services Agreement – Lyve Data Transfer 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

This Services Agreement governs your use of and access to the Lyve Data Transfer Services.

Please read this Services Agreement carefully before you use the Lyve Data Transfer Services. By clicking “I AGREE” or accessing or using the Lyve Data Transfer 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 the Lyve Data Transfer Services. This Services Agreement is effective as of the date you first access the Lyve Data Transfer Services identified in your Order, unless an earlier date is specified in your Order. This Services Agreement will remain in effect until expiration of the Subscription Term unless terminated earlier in accordance with the terms of this Services Agreement.

By entering into this Services Agreement and accessing or using the Lyve Data Transfer 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. If you are an Authorized User as defined in the Customer Agreement, you agree that you will comply with the terms of this Services Agreement.

1. SERVICE TERMS

1.1 Lyve Management Portal Customer Agreement. This Services Agreement incorporates by reference the Lyve Management Portal & Customer Agreement located at https://www.seagate.com/legal-privacy/lyve/customer-agreement/ (“Customer Agreement”). To the extent of a conflict between the terms of this Services Agreement and the Customer Agreement, this Services Agreement will control with respect to the Lyve Data Transfer Services identified in this Services Agreement. Terms defined in the Customer 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 the GDPR applies to your use of the Lyve Data Transfer Services to process Personal Data. The Lyve DPA is available at https://www.seagate.com/legal-privacy/lyve/. This Services Agreement incorporates the Seagate CCPA Terms (“CCPA Terms”), when the California Consumer Privacy Act applies to your use of the Lyve Data Transfer Services to process Personal Information (as defined in the CCPA Terms). The CCPA Terms are available at https://www.seagate.com/legal-privacy/california-consumer-privacy-act-notice/.

1.3 Access and Use. Seagate grants you a nontransferable, non-sublicensable, nonexclusive, revocable right to access and use the Lyve Data Transfer Services in the jurisdictions listed in Appendix 1 during the Subscription Term. Your rights and responsibilities regarding any software included with or provided as part of the Lyve Data Transfer 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 Data Transfer Services (“EULAs”). The EULA for Lyve Data Transfer Service (“DTS 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 DTS EULA, the DTS EULA will control with respect to the subject matter of the DTS EULA.

1.4 Additional Services. There may be other Lyve Services available to you. 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 Data Transfer 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 Data Transfer Services.

1.7 Limited Warranties. The limited warranties set forth in Section 8 of the Customer Agreement apply to this Agreement. Those limited warranties are the exclusive warranties offered by Seagate for the Lyve Data Transfer Services. The warranty limitations and exceptions of the Customer Agreement apply to this Agreement. The Lyve Data Transfer 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 Data Transfer 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 Data Transfer 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 Business Plans. As a business user, you may select a “Project-Based Plan” or an “Annual Plan” for the Lyve Data Transfer Services. Business plans are not provided or intended for personal, family, or household use or purposes.

2 PROJECT-BASED PLAN

2.1 Minimum Term. The Subscription Term for Project-Based Plan subscriptions will be set forth in the Order, with a 1-month minimum term unless your Order states otherwise. The Subscription Term starts on the date Seagate ships the Lyve Hardware ships to you.

2.2 Renewals. Upon expiration of the Subscription Term, the Lyve Data Transfer Services will auto-renew for recurring monthly terms unless you: (1) initiate a return of the Lyve Hardware during the Subscription Term through the Lyve Portal or contact a Seagate support agent at the phone number designated in the Lyve Portal for return assistance, and (2) return the Lyve Hardware to Seagate in accordance with the terms of this Services Agreement.

2.3 Cancellation. You may cancel your Subscription Term and initiate return of Lyve Hardware at any time through your account dashboard at the Lyve Portal or by contacting a Seagate support agent at the phone number designated in the Lyve Portal. All upfront payments are non-refundable. Seagate will charge you a per-unit return hardware shipping fee upon receipt of your request to cancel. Seagate will issue a shipping label and other necessary information to return the Lyve Hardware. Seagate must receive the Lyve Hardware within 7 days after the date of your final invoice; otherwise, you will continue to be charged on a monthly 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 term starts on the date Seagate ships the Lyve Hardware ships to you.

3.2 Renewals. You may renew the Lyve Data Transfer Services for additional 1-year terms through the Lyve Portal or by contacting a Seagate sales representative. If you do not renew your Lyve Data Transfer Services subscription the Annual Plan subscription will automatically convert to a Project-Based Plan (minus discounts) and continue to renew on a monthly basis until you elect to terminate in accordance with the terms of this Services Agreement.

3.3 Cancellation. You may cancel your Annual Plan and initiate return of Lyve Hardware at any time through your account dashboard on the Lyve Portal, or by contacting a Seagate support agent. All upfront payments are non-refundable. Seagate must receive the Lyve Hardware within 7 days after the date of your last invoice; otherwise you will continue to be charged monthly for each additional month of service until you return the Lyve Hardware.

3.4 Discounts Cancellation on Early Termination. All discounts and rebates will be canceled if you terminate your Annual Plan before the end of your 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 may add or substitute different Lyve Hardware through the Lyve Portal under your Annual Plan, subject to additional subscription and shipping fees.

3.6 “Flex down” Amendment.If you order more than 5 Lyve Hardware units, you 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.

4 PRICING AND PAYMENTS

4.1 Pricing. Your Lyve Data Transfer 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 the Lyve Hardware is shipped, and will include a delivery shipping charge, as well as the first full month of fees upfront. Payment of the initial invoice is non-refundable.

4.3 Billing Cycle. Following your initial invoice, you will be billed monthly for all Lyve Data Transfer Services, unless the Order states otherwise.

4.4 Additional Fees. 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 due to loss or damage of hardware, including shipper cases.

5. LYVE HARDWARE TERMS

5.1 Shipping Terms. Seagate will ship all Lyve Hardware CPT (Carriage Paid To) the destination (Incoterms 2020). If shipments outside the United States are available, you are responsible for clearing the goods for import and paying all import costs including any duties, taxes, and other clearance charges. All scheduled shipment dates are estimates only.

5.2 Care and Maintenance. You shall maintain all Lyve Hardware at your own cost in the same condition as when it was initially received by you (with the exception of ordinary wear and tear that results from normal use). You shall comply with the provided instructions, user manual, and specifications for the Lyve Hardware. You shall exercise the same degree of care toward the Lyve Hardware as you exercise towards your own property of similar nature, but no less than reasonable care. You shall 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 bear the risk of loss of or damage to the Lyve Hardware and any other items provided to you 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 your failure to accept the Lyve Hardware at the place of shipment or based on your 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 may use the Lyve Hardware as part of the Lyve Data Transfer 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 any rights or interests in the Lyve Hardware except for the limited usage rights 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 to you 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 shall establish an Internet connection that allows the Lyve Hardware to authenticate the host and your access credentials and grant you access to the Lyve Data Transfer Services (by means of confidential unique access keys or codes), and to report location, usage, diagnostic, and telemetry data to Seagate. Your credentials granting access to the Lyve Data Transfer Services expire after 30 days unless re-established while connected to the Internet or pre-defined through the user permissions set through your Lyve Portal account. Accordingly, at least once every 30 days you shall establish an Internet connection to maintain access to the Lyve Hardware and Lyve Data Transfer Services. If you fail to do so, any rights to access or use the Lyve Data Transfer Services and applicable Lyve Hardware will be suspended until you establish an Internet connection sufficient to validate your access credentials. You remain responsible for all payment obligations for the Lyve Data Transfer Services even while your access is suspended due to failure to connect to the Internet. You shall 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. You 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 may install Seagate-provided firmware and software updates.

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

5.10 International Trade Compliance. The Lyve Data Transfer Services may include subscription products, services, technology, and software that are subject to the customs and export control laws of the United States, including restrictions related to encryption technology, and may also be subject to the customs and export laws of the country in which the Lyve Data Transfer Services are provided and used. The Lyve Data Transfer Services may not be sold, leased, or transferred to restricted countries or territories (including the following under U.S. law: Cuba, Iran, North Korea, Syria, or Crimea region), or outside of the country where you receive the Lyve Data Transfer Services and Lyve Hardware, or outside of the territory of the European Economic Area if your country is located within it. You shall obtain export authorization or license as required to support transfers of technical data or encrypting hardware from one country to another. Further, the Lyve Data Transfer Services may not be used by restricted parties (U.S. government restricted parties lists found at: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) or engaged in activities related to weapons of mass destruction including, activities related to designing, developing, producing, or using nuclear weapons, materials, or facilities, missiles or supporting missile projects; or chemical or biological weapons; or military or military intelligence uses (including to process technical data controlled under the U. S. International Traffic in Arms Regulations). You shall make your users aware of any export controls and laws pertaining to Lyve Data Transfer Services and you represent that you and your users comply with all controls 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 may, at your risk and expense, transport the Lyve Hardware to different locations under your control. You are responsible for obtaining any import/export licenses and paying any associated taxes or fees. Seagate is not responsible for any loss, damage, theft, or seizure of the Lyve Hardware or Your Data. You must 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 promptly respond to our inquiries as to Lyve Hardware location and status.

6 RETURNS PROCESS

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

6.2 Return Procedure. To return Lyve Hardware, you shall: (a) promptly contact Seagate support to initiate return of the Lyve Hardware (or refer to the self-service hardware return menu in the Lyve Portal) to obtain return information and instructions; (b) promptly 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 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 possession or control (other than normal wear and tear).

6.5 Deadline for Return. Upon expiration or termination of your Subscription Term, Seagate will provide you with a 7- day grace period after the invoice date of your final statement to return the Lyve Hardware. Seagate may suspend or terminate your access to Lyve Hardware remotely, including for failure to return Lyve Hardware. If Seagate does not receive the equipment within the grace period, or if any components of the Lyve Hardware are missing, Seagate may continue to charge you the subscription or service fees until you return the Lyve Hardware.

6.6 Hardware Loss Fee. If you do not return the Lyve Hardware to Seagate within 30 days after your receipt of Seagate’s demand or within 30 days after termination or expiration of the Subscription Term, Seagate may charge you the Hardware Loss Fee 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 to purchase the Lyve Hardware. Even if you pay the Hardware Loss Fee, you do not obtain title to the Lyve Hardware and you shall not use or resell the Lyve Hardware.

Hardware TypeHardware Loss Fee (US Dollars)
Lyve Mobile Array Shipper $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

7. SUPPORT AND MAINTENANCE

7.1 Service and Maintenance Requests. You 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 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 Data Transfer Service.

7.6 Substitute Hardware. If Seagate requires you to return Lyve Hardware for support or technical issues during a Subscription Term, you will be provided with substitute Lyve Hardware reasonably in advance to allow you to transfer Your Data. You are responsible for backing-up and transferring Your Data from any Lyve Hardware prior to any hardware return or deactivation.

APPENDIX 1

to LYVE SERVICES AGREEMENT – LYVE DATA TRANSFER SERVICE

ELIGIBLE COUNTRIES

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

- United States of America