SEAGATE SYSTEMS LEASING

SERVICE TERMS

 

These Seagate Systems Leasing Service Terms (referred to herein as “Services Agreement”) is entered into by you (“you” or “your”) and the following Seagate contracting party (“Seagate”):

 

Location where Services will be provided

Seagate Party

Americas

Seagate Technology LLC
47488 Kato Rd., Fremont, CA, 94538, USA

 

This Services Agreement governs your use of, access to, and purchase of the Seagate Systems Leasing Services. “Seagate Systems Leasing Services” is defined as the lease, installation, maintenance, and/or deinstallation of Seagate hardware systems including but not limited to Seagate® Exos® 4U106, Seagate Exos 5U84, and Seagate Exos Corvault systems. The Seagate Systems Leasing Services are also referred to as the “Services” herein. Certain Services include Hardware subscriptions.

Please read this Services Agreement carefully before you use or purchase the Services. By clicking “I AGREE”, agreeing to an agreement with Seagate that incorporates this Services Agreement, or by accessing, purchasing, or using the 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 Services.

This Services Agreement is effective as of the date you first access or purchase the  Services identified in an Order, unless an earlier date is specified in your Customer Agreement with Seagate.  This Services Agreement shall remain in effect until expiration of the Leasing Term  unless terminated earlier in accordance with the terms of this Services Agreement or the Customer Agreement.

By entering into this Services Agreement and accessing, purchasing or using the 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   Customer & Lyve Portal AgreementThis Services Agreement incorporates by reference the Customer & Lyve Portal Agreement located at https://www.seagate.com/legal-privacy/lyve/customer-agreement/ (“Customer Provider 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 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  Data Privacy Agreement. This Services Agreement incorporates the Lyve Data Privacy Agreement (“Lyve DPA”) when your use of the Services (i.e., via the Hardware) includes the processing of Personal Data. The Lyve DPA is available at https://www.seagate.com/legal-privacy/lyve/. For purposes of this incorporation by reference, use of the term “Lyve Services” in the Lyve DPA includes the Seagate Systems Leasing Services, and use of the term “Company” in the Lyve DPA refers to the term “you” (or “your” as applicable) as used in this Services Agreement. If you collect, store, process, or transmit Personal Data in your use of the Services, you shall provide legally adequate privacy notices and obtain all necessary consents and possess lawful grounds for the processing of the Personal Data using the Services.

1.3  Access and Use. Subject to the terms of this Services Agreement, Seagate grants you a nontransferable, non-sublicensable, nonexclusive, revocable right to access and use the Services in the jurisdictions listed in Appendix 1 during the Leasing Term (defined in Paragraph 2.1 below). Your rights and responsibilities relating to end use of any software included with or provided as part of the 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 Services (“EULAs”). The EULA for the  Services (“EULA”) is located at https://www.seagate.com/legal-privacy/lyve/product-eula/. 

1.4  Additional Services. There may be other 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 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 Services.

1.7  Limited Warranties. The limited warranties set forth in Section 8 of the Customer Agreement apply to this Services Agreement. Those limited warranties are the exclusive warranties offered by Seagate for the Services, except that for the Seagate Systems Leasing Service Seagate also warrants that the Hardware will perform as outlined in the pertinent specification published by Seagate for the Hardware. The warranty limitations and exceptions of the Customer Agreement apply to this Services Agreement. The 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 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 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 Commercial Use. The Services made available by Seagate (including on the Portal) are neither provided or intended for personal, family, or household use or purposes, and you agree not to use the Services customers for such purposes.

2.  SERVICES PLAN

2.1  Term. The term of the Services is set forth in the Order for the Services based on the available options you select (the “Leasing Term”). The Leasing Term as used in this Services Agreement has the same meaning as assigned to “Services Period” in the Customer Agreement. The Leasing Term  for will be 3 years. The Services become active on the delivery date plus one day (unless you ordered Hardware installation services from Seagate in which case it will be the earlier of the date that Seagate’s installation services are completed or one week following delivery) and will expire 3 years from the delivery date.

2.2  End of Leasing Term. Upon expiration of the Leasing Term, the Services will terminate and you shall: (1) initiate a return of the Hardware through the Portal or a Seagate support agent, and (2) ensure that the Hardware is returned to Seagate in accordance with the terms of this Services Agreement. If you and Seagate agree to a new or renewal Order to extend or renew a Leasing Term (in advance of expiration of the existing Leasing Term), you may be permitted (only where so authorized by Seagate in writing) to continue to use the same Hardware as issued for the expiring Leasing Term without required return upon expiration of the expiring Leasing Term. 

2.3  Cancellation. You may cancel a Leasing Term by providing 180 days’ advance notice of termination, however all fees for the Leasing Term shall apply. You may initiate return of Hardware through the account dashboard at the Portal or by contacting a Seagate support agent within the 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. Seagate will issue a deinstallation team to remove the Hardware. Seagate will invoice you the fees for the full Leasing Term upon the date the Hardware is deinstalled and 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 Hardware is returned and approved to be in working order, including all associated components and ancillary items.

2.4  “Flex up” Amendment. You may add or substitute different Hardware through the Portal (once available) under the Services Agreement, subject to additional subscription and shipping fees.

3. PRICING AND PAYMENTS

3.1  Pricing. The Services pricing and fees are based on the pricing made available in the service selection and ordering process and included in your Order.

3.2  Initial Billing. The initial invoice will be issued upon the date of service activation after the Hardware is delivered, and may include one-time charges such as delivery shipping and other applicable up-front fees, as specified in your Order. Except as provided in your Order (i.e., for any up-front fees), you will not be charged for subscriptions involving Hardware until one day after the Hardware in the Order has been delivered (unless you ordered installation services from Seagate in which case you will not be charged until the earlier of the date that Seagate’s installation services are completed or one week following delivery). Payment of the initial invoice is non-refundable.

3.3  Billing Cycle. You will be billed monthly in arrears for all recurring Services charges, unless the Order states otherwise. Invoices will be issued monthly, on or about the first calendar day of each month for the 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.

3.4  Additional Fees. If stated on your Order, you shall pay a one-time charge to cover delivery, and installation of Hardware units, and you will be charged a return shipping and deinstallation fee when returning 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.                  

4. HARDWARE TERMS

4.1  Shipping Terms. Seagate will ship all Hardware DAP (Delivery at Place) of the destination (Incoterms 2020) provided that Seagate will be responsible for import clearance on Seagate shipments of Hardware to the Eligible Counties identified in Appendix 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 4.3 below. All scheduled shipment dates are estimates only.

4.2  Care and Maintenance. You shall maintain the Hardware (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 shall comply with the provided instructions, user manual, and specifications for the Hardware. You shall exercise the same degree of care toward the Hardware as you exercise towards your own property of similar nature, but no less than reasonable care. You shall  inform Seagate via the Portal (or other support contact mechanism designated in the Order) 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 Hardware.

4.3  Risk of Loss. You bear the risk of loss of or damage to the 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 Hardware to Seagate’s deinstallation team to be properly packaged for return shipment to Seagate. If Hardware is lost or damaged, you are subject to a loss fee up to and including the fees set forth in Paragraph 5.6 (Hardware Loss Fee). In addition, if Hardware becomes confiscated or subject to additional duties or fees as a result of your failure to accept the Hardware at the place of shipment or based on use of Hardware in violation of this Services Agreement, you shall pay the reasonable costs incurred by Seagate to recover the 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 Hardware. Seagate is not liable for any loss or damage to any person or property resulting from the use or possession of the Hardware.

4.4  Title and Ownership. You may use the Hardware as part of the Services, however Seagate retains all rights, title, and interest in and to the Hardware and related firmware. Seagate does not sell, lease, rent, or transfer to you any rights or interests in the 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 Hardware as Seagate’s property. You shall sign any documents, instruments, recordings, or filings requested by Seagate to preserve Seagate’s interest in  the Hardware. You shall cooperate with Seagate in taking all reasonable measures to protect Seagate’s interest in the Hardware. You shall not attempt to transfer any legal interest in the Hardware to any third party.

4.5  Protection from Encumbrances. You shall not allow the 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 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 Hardware, repossessing the Hardware, or exercising other rights permitted by Law.

4.6  Deployed Hardware. Seagate may expand, modify, substitute, replace, or remove any Hardware component deployed as a service at any time with 60 days’ advance notice. Hardware returns, suspensions, and deactivation are further detailed below.

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

4.8  Usage by Third Parties. Only Authorized Users may use Hardware provided under a Portal account or Order.

4.9  International Trade Compliance. The Services and 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 Services and Hardware are provided and used. The Services and Hardware may not be (a)  sold, leased, or transferred to outside of the country in which Seagate delivered the Hardware to you; (b) for Hardware and Services shipped by Seagate to or used in any member state of the European Union (“EU”) or United Kingdom, (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; and (c) 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. Further, the Services and Hardware may not be used 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 Authorized Users aware of any export/import controls and other laws pertaining to Services and Hardware and you represent that you, your  Authorized Users shall fully comply with all such regulations and laws.

4.10 No Movement of Hardware. You may not transport the Hardware to different locations under your control or that of a third party. Seagate is not responsible for any loss, damage, theft, or seizure of the Hardware or Your Data. Seagate disclaims the limited functionality warranty with respect to Hardware moved to a location other than the initial ship-to location. You must promptly respond to our inquiries as to Hardware location and status.

5. RETURNS PROCESS

5.1  Required Return, Notice of Returns. You shall return the Hardware at the end of the Leasing Term as required by Seagate. In addition, Seagate may require return of Hardware at any time with 60 days advance written notice. Once you have provided notice of intent to terminate the Services, or if Seagate requires Hardware return, Seagate will provide return shipping instructions via the Portal or via a Seagate representative or Seagate will make available a de-installation team via the Portal or via a Seagate representative where de-installation services are available and requested.

5.2  Return Procedure. To return Hardware, you shall: (a) promptly contact Seagate support at the Portal to initiate return of the Hardware (via a deinstallation team where applicable); (b) ensure that all information stored on the Hardware is removed in its entirety; and (c) 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).

5.3  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 Hardware returned to Seagate. Seagate has the right to delete and destroy Your Data and any other information left on the Hardware.

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

5.5  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 Hardware is returned in working order according to this Services Agreement. Seagate may request return of the Hardware at any time; the return period is specified in Paragraph 5.6. Seagate may suspend or terminate access to Hardware remotely, including for failure to return Hardware. If Seagate does not receive all components of the Hardware, Seagate may continue to charge you the service fees until Seagate receives the returned the Hardware.

5.6  Hardware Loss Fee. If the Hardware is not returned to Seagate within 60 days after receipt of Seagate’s demand or within 30 days after termination or expiration of the Leasing Term, Seagate may charge the account a Hardware Loss Fee (including charges for unreturned 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 Hardware. All Hardware remains the property of Seagate, and Seagate retains all right, title, and interest in and to the Hardware. There is no option for you to purchase the Hardware under this Services Agreement. Even if the Hardware Loss Fee is paid in full, you do not obtain title to the Hardware and  you shall not use or resell the Hardware.

Hardware Type

Hardware Loss Fee (US Dollars)

Storage Node (per unit)

$75,000

 

6. SUPPORT AND MAINTENANCE

6.1  Support Contracts, Service and Maintenance Requests. You may purchase a support contract that includes maintenance, via an Order. At all times, you must notify Seagate immediately if the Hardware is damaged or not working properly. You may not modify or remove any component of the Hardware. No party other than Seagate or its service representative may perform maintenance or service on Hardware.

6.2  Site and Equipment Access. You shall  grant Seagate or its designated service representative physical access to the site of the Hardware as well as access to required electricity and/or internet connection.

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

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

6.5  Third Party Service Providers. Seagate may designate a third party to service or maintain the Hardware (including 24/7 remote hands as well as onsite servicing, subject to availability). Third parties who have not been designated by Seagate as service representatives are restricted from interacting with or servicing Hardware, or the software or firmware provided with the Services.

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

7. INSURANCE.  You shall obtain and maintain All-Risk property insurance for all risks to the Hardware while in your possession, care, or control, in an amount sufficient to cover your liability under this Services Agreement (including any Hardware Loss Fees, as set forth in this Services Agreement, per unit of Hardware).  In order for Seagate to ship the Hardware, you must provide proof of insurance naming Seagate as an additional insured and loss payee for Hardware.  You will notify Seagate of any change in your insurance.  Your purchase of, or failure obtain and maintain, the insurance required under this paragraph does not relieve you of your liability or obligations under this Services Agreement.

 

 

APPENDIX 1

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SEAGATE SYSTEMS LEASING SOLUTION PROVIDER SERVICE TERMS

ELIGIBLE COUNTRIES

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

AMERICAS

     -  United States of America

 

 

 

Version May 17, 2022