Ocean Genomics, Inc.

Software Support

Terms and Conditions

Access and use of software support services are provided by Ocean Genomics, Inc (“OCEAN”) in accordance with these Software Support Terms and Conditions (“Support Agreement”). Licensee agrees that by purchasing software support services, the terms of this Support Agreement govern.

  1. “Covered Software” shall mean the applications listed on the OCEAN website (www.oceangenomics.com/applications) for which maintenance services shall be provided.
  2. Term. Support services provided under this Support Agreement will begin on the date of purchase of the Support Agreement by Licensee and terminate on the sooner of the termination date provided on confirmation of purchase of the Support Agreement and twelve months.
  3. Support Services. Support services will be provided by OCEAN subject to Licensee’s compliance with its obligations under this Support Agreement. Support services will consist of technical advisory for use of the Covered Software. Under the terms of this Support Agreement OCEAN will: (a) provide confirmation of and initiation of support investigation within 1 business day. (Business days exclude Saturday, Sunday, and US national holidays); (b) provide information on product features and answers to usage and installation questions, including the interrelationships between supported products; and (c) Provide assistance with interpreting system error messages. OCEAN shall have no responsibility to fix any errors in the Covered Software. OCEAN may choose, at its sole discretion, to fix an error in the Covered Software and release an updated version. OCEAN will provide Support services primarily through the web-based help desk software available on the OceanGenomics.com website. When appropriate, support will also be provided through phone, web-conference and screen-sharing. This agreement does not include on-site support, which may be contracted with OCEAN separately.
  4. Support Services Exclusions. OCEAN shall have no responsibility to provide support services to Licensee with respect to any problem with the Covered Software caused by: (a) any software, device, or other product not supplied by OCEAN; (b) neglect, misuse, alteration, modification, and/ or enhancement to the Covered Software by any party other than OCEAN; (c) failure of Licensee to provide a suitable installation or operating environment for the Covered Software; (d) use of the Covered Software for a purpose other than the purpose for which it was designed; or (e) failure of Licensee to install any support software provided by OCEAN. OCEAN shall have no responsibility to provide assistance in areas of experimental design, or interpretation of results. These services may be contacted with OCEAN separately, OCEAN shall have no responsibility to fix any errors in the Covered Software. OCEAN may choose, at its sole discretion, to fix an error in the Covered Software and release an updated version
  5. Support Services Case Closure. A support incident is defined as a question relating to a specific, discrete problem that can be answered by isolating its origin to a single cause. While our goal is to resolve issues on the first exchange, we will continue to work with each issue through resolution. Some incidents may require multiple exchanges to reach resolution. An incident has reached resolution when you receive any of the following: (a) information that resolves a configuration problem; (b) information that resolves a software problem; (c) information on how to obtain a patch(es) that will resolve a software problem; (d) notice that a software problem is caused by a known, unresolved bug in the software; (e) notice that a problem is caused by software other than the Covered Software; (f) notice that a problem has been identified as a hardware problem.
  6. Licensee’s Responsibilities. As a Software Agreement Licensee, you must take reasonable steps to ensure security in your contact with OCEAN. OCEAN reserves the right to refuse service if it reasonably suspects fraud. The Licensee will ensure that proper licenses have been obtained for all software and will adhere to all licensing terms and conditions. The Licensee must present a clear description of the support issue, with steps to reproduce it, if appropriate. The Licensee must make a reasonable effort to respond to clarification questions from OCEAN.
  7. Licensee’s Data. Any data sent by Licensee to OCEAN will be used by OCEAN solely for the purpose of resolving the Licensee’s incident. OCEAN claims no ownership of such data. OCEAN will destroy the data once the incident is resolved. Licensee must ensure that any data sent to OCEAN contains no Personally Identifiable Information (PII).
  8. Payment of Fees. All amounts due are due and payable upon delivery of the applicable invoice to Licensee. OCEAN shall be entitled to charge interest on all amounts overdue by more than thirty (30) days at the rate of one and one-half percent (1.5%) per month.
  9. Warranty. OCEAN warrants that the support services will be performed using reasonable skill and care consistent with generally accepted computer software industry practices. OTHER THAN THE EXPRESS SERVICES WARRANTY SET OUT ABOVE, OCEAN DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES RELATED TO TITLE, COMPATIBILITY WITH SOFTWARE OR HARDWARE, NON-EXISTENCE OF ERRORS, NON-EXISTENCE OF VIRUSES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT, SHALL OCEAN BE LIABLE TO LICENSEE, OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOST INCOME, OR REPLACEMENT COSTS, NOR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, HOWSOEVER ARISING, WHETHER RELATED TO THE COVERED SOFTWARE OR SUPPORT SERVICES, EVEN IF OCEAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OCEAN’S TOTAL LIABILITY DURING ANY SUPPORT SERVICES TERM, WHETHER ARISING IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE SHALL NOT EXCEED THE TOTAL AMOUNT OF SUPPORT AGREEMENT FEES PAID BY LICENSEE TO OCEAN DURING THE CURRENT SUPPORT AGREEMENT TERM.
  11. Term and Termination. The Support Agreement shall begin on the date of execution and shall continue until terminated in accordance with the provisions of this Support Agreement. If Licensee fails fully to remedy a material breach within thirty (30) days of notice by OCEAN, including failure to pay an invoice, OCEAN may terminate this Support Agreement upon the provision of written notice to Licensee. OCEAN may terminate the Support Agreement at its own option with thirty (30) days written notice to the Licensee, providing a pro rata refund for the unexpired term (months) of the Support Agreement. Either party may terminate this Support Agreement if the other party: (a) becomes insolvent; and (b) has a receiver or receiver manager appointed with respect to it or any of its assets. The provisions contained in Sections 8, 10, 11, and 12 of this Support Agreement shall survive any termination.
  12. General Provisions.
    1. 12.1 Assignment. Licensee shall not assign or transfer this Support Agreement or any right or obligation hereunder, including by operation of law or otherwise, without OCEAN’s prior written consent, which consent shall not be unreasonably withheld. OCEAN may subcontract performance of its obligations under this Support Agreement to third parties but shall not be relieved of its responsibilities under this Support Agreement in doing so.
    2. 12.2 Notices. Any notice under this Support Agreement must be given in writing. Any notice from Licensee to OCEAN is deemed effective when sent to the attention of the General Counsel either: (a) via certified or registered mail, postage prepaid, or (b) via express mail or nationally recognized courier service to OCEAN’s physical address as specified in the order confirmation. Any notice from OCEAN to Licensee is deemed effective when sent to the email address provided by the Licensee in purchasing the Support Agreement.
    3. 12.3 Governing Law. This Support Agreement and each party’s performance hereunder shall be governed by the laws of the Commonwealth of Pennsylvania, excluding its conflicts and choice of law rules. Venue for any litigation shall be in the courts of appropriate jurisdiction in Pittsburgh, Pennsylvania. If Licensee or OCEAN commence any litigation or proceeding against the other related to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and court costs.
    4. 12.4 Limitation of Actions. No action, regardless of form, arising out of this Support Agreement may be brought more than one (1) year after the cause of action has arisen.
    5. 12.5 Waiver; Severability. The waiver or failure of a party to exercise in any respect any right provided herein shall not be deemed a waiver of such right. If any provision of this Support Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed severed from this Support Agreement, but all remaining provisions shall continue in full force and effect.
    6. 12.6 Headings. The headings contained in this Support Agreement are intended for convenience or reference only and shall not control or affect the meaning or construction of any provisions of this Support Agreement.
    7. 12.7 Entire Agreement. This Support Agreement is the complete and exclusive statement of the agreement between OCEAN and Licensee. This Support Agreement may not be amended, except by written agreement.