This Maintenance and Support Agreement (“MSA”) describes the policies and procedures under which Seagull Scientific, Inc. or the applicable Seagull Scientific, Inc. subsidiary (“Seagull Scientific” or “we”, “us” or “our”) provides technical support services (“Technical Support”) and software maintenance (“Maintenance”) for its proprietary software product BarTender (“BarTender”) to its registered end users (“you” or “your”) who have a paid Standard or Premium Maintenance and Support Agreement.
Technical Support is provided for BarTender software product(s) pursuant to your paid MSA subscription level. Technical Support is provided for the term specified in your ordering document.
Technical Support is provided through the supported channels as indicated on Availability and Channels for Support of this MSA (“Supported Channels”).
This MSA sets forth expectations for Technical Support between you and Seagull Scientific’s Technical Support team, including:
a. Who is authorized to submit an Incident
b. How to submit an Incident
c. How and when a support ticket is qualified
d. What types of Incidents are supported
e. How and when our Technical Support team responds to and closes a reported Incident
f. The availability and access to the Technical Support team
g. Access and rights to software updates and upgrades
Documentation: Any supporting product help and technical specifications documentation provided by Seagull Scientific with the BarTender software to you. Documentation does not include white papers, community forums, training videos, tutorials, Knowledge Base articles or other similar resources which may be made available for your convenience
Incident: Each individual question or issue about your licensed BarTender product that is reported to Seagull Scientific Technical Support by the registered end user or their Seagull Scientific authorized partner through a Supported Channel.
Standard Support: Support level that is offered under the terms of a paid MSA to registered end users of a licensed BarTender product. The scope of support is as described in the paragraph below entitled “What Technical Support Includes.”
Premium Support: Support level that is offered under the terms of a paid MSA to registered end users of licensed BarTender product(s) who have a paid MSA and have also paid for Premium-Support add-on(s). Premium Support covers the same scope of incidents as does Standard Support but reported incidents receive premium priority, responsiveness, and tracking to assure the fastest reasonable resolution. Premium Support is only available for Automation and Enterprise editions of BarTender.
Supported Channels: The available path(s) through which you can submit Incidents to our Technical Support team. Further information on Supported Channels can be found in Availability and Channels for Support.
Business Hour: Individual hours within open office hours of the BarTender office region where an Incident originated or the BarTender office region to which an Incident has been transferred.
Calendar Hour: A standard clock hour with no limitations.
First Response Time: The amount of time between your submittal of a request through a Supported Channel, and our Technical Support team member making the First Response to you.
First Response Method: Our First Response to you will usually be through the same communication method you used to submit your Incident.
Next Reply Time: The amount of time between your response to our First Response, and our Technical Support team member responding back to you.
Eligible Company: Your Company is in good standing with no past due Seagull Scientific invoice amounts and owns a BarTender license with a paid MSA for Standard or Premium Support.
Scope of Support
What Technical Support Includes: Technical Support is intended to provide assistance to a registered end user of a licensed BarTender product, or their authorized Seagull Scientific partner for such licensed BarTender product, for issues and questions, the resolution of which is beyond the scope available in our Documentation. Our Technical Support team members shall use commercially reasonable efforts to provide you with Technical Support services for supported versions of BarTender running on supported versions of Windows. We provide support through the following: (a) our response to Incidents you submit; (b) entries presented in a community forum where you, partners, and other users of BarTender software share information and ideas about using BarTender; (c) access to the Supported Channels, and (d) troubleshooting related to the following activities with respect to using our product(s):
a. Product activation assistance
b. Installation and configuration issues
c. Software operation issue diagnosis and support
d. Post-sales updates, patches, and support addressing the software capabilities and features
What Technical Support excludes: Consistent with commercially reasonable support of its products, Seagull Scientific’s Technical Support can assume no support obligation to address issues that arise relative to:
a. Operation of your equipment, network connections or other infrastructure
b. Use of BarTender that violates the terms of either the Maintenance and Support Agreement or EULA
c. Any alterations, add-ons, customizations, or modifications to BarTender Seagull Scientific has not authorized in writing
d. Incapability of your hardware or software arising from any factors beyond our reasonable control or
e. Any issues arising from unauthorized use of BarTender
f. Introductory and in-depth product training
g. Consultation and implementation assistance
h. Configuration and usage best practices
i. Programming, coding, and integration design
j. Custom label and template design
Seagull Scientific’s Technical Support Efforts. We will make commercially reasonable efforts to correct defects or other errors in BarTender and respond to Incidents as described in this MSA; however, you acknowledge that it may not be possible for our Technical Support to correct every or any defect, error, or problem reported by you or of which we are otherwise made aware. To the extent applicable, warranties, if any, shall be limited to those stated in the EULA.
Use of Support
Details on how to use support are found on our Use of Support page.
Updates to any supported version of BarTender are available to you when you’re ready to implement them into your production systems. Seagull Scientific strongly recommends that updates and upgrades are performed in accordance with our lifecycle schedule and deployed according to our recommended Best Practices. Downloads of the latest version are available anytime from the Customer Portal.
An active MSA is required for Printer Add-ons and Edition Upgrades. The MSA expiry date will remain the same for all software and printers associated with the Product Key Code (“PKC”).
Account and Product Registration
You must register for an account with us and register your product(s) under that account in the Customer Portal in order to activate Maintenance and Support, or access or receive Software and/or Maintenance and Support. Your registration information must be accurate, current, and complete. You must keep your registration current so that we may send notices about your Software Product(s), our Maintenance and Support Agreement, service releases, statements, and other information to you by email or through your account.
Standard Term and Renewal
The MSA will be provided for a period defined in your Ordering document. To renew your MSA, contact your reseller or Seagull Scientific at least 30 days before expiration. The MSA Term commences on the date of purchase. The MSA Term shall be specified on the MSA Purchase Confirmation that you receive upon purchase of an MSA.
Moving the Renewal Date
Upon request to Seagull Scientific, the Renewal Date may be changed to a later date. Payment for the additional months of Maintenance and Support is due at the time of change.
Seagull Scientific shall have the right, in its sole discretion, to suspend and/or terminate any MSA provided hereunder (i) upon Licensee's failure to pay any MSA Fees when due, if Licensee has failed to cure such failure within fifteen (15) days after receipt of written notice from Seagull Scientific, (ii) if Licensee or Licensee's employees or agents violate any provision of this MSA Terms and/or any other agreement additionally regulating maintenance, if Licensee has failed to cure such violation within fifteen (15) days after receipt of written notice from Seagull Scientific, (iii) if the product to which an MSA relates has been discontinued and is no longer supported by Seagull Scientific, (iv) in the event of Licensee's dissolution, ceasing of business, insolvency, bankruptcy or appointment of a liquidator, or (v) termination under the terms of the EULA.
Cancellation for Non-Payment
If payment for a renewal is not received prior to the end of the 30-day grace period following your Renewal Date, your Maintenance and Support Agreement will expire. To reinstate your MSA, we may require you to backpay to the date it expired.
Adding Maintenance and Support
Maintenance and Support may be added to existing licensed software for which Maintenance and Support had not previously been purchased or had expired, although we will require you to backpay Maintenance and Support either to the date of the original software purchase or the expiry date of your last MSA purchase.
Maintenance and Support fees are refundable only when the licensed software is returned for a refund within 30 days of purchase. After the standard return period, Maintenance and Support Program fees are not refundable.
Maintenance and Support becomes active once your order has been processed. If payment is not received within the NET terms of your sales order, Maintenance and Support will be canceled.
Governing Law; Jurisdiction and Venue.
Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of Washington, USA. Should any legal action be necessary between the parties such legal action shall be filed in Bellevue, Washington, USA. The prevailing party in any litigation arising out of this Agreement shall be entitled to be reimbursed for all attorneys’ fees, expense, and associated costs. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the remaining provisions shall nevertheless be given full force and effect. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
Notices and Reports
Any notice or report hereunder shall be in writing or in electronic format. If to Seagull Scientific by mail, such notice or report shall be sent to Seagull Scientific at 15325 SE 30th Place, Suite 100, Bellevue, WA 98007-6597 to the attention of “Legal Department”. If to Seagull Scientific by email, such notice or report shall be sent to: [email protected]seagullscientific.com. If to you, such notice or report shall be sent to the mailing or email address you provided upon placing your order. Notices and reports sent by mail shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service. Any notices and reports sent by email shall be effective upon receipt of the same.
No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. All conflicting terms in any purchase order or other business form employed by you, including any electronic invoicing portals, vendor registration processes, etc., are void, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
This Agreement, including the incorporation of the warranties the EULA contains is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.