Last Updated: July 1, 2016
THIS END USER LICENSE AGREEMENT and all electronic or paper Order Forms entered into between the parties hereunder (collectively, this “Agreement”) is a legal agreement between you and Morpheus Data, LLC a California limited liability company with its principal place of business at 800 Concar Drive, Suite 100, San Mateo, CA 94402 (“Morpheus”), that governs your acquisition and use of Morpheus’ proprietary Software directly from Morpheus or indirectly through a Morpheus authorized reseller or distributor (a “Reseller”). It is effective between you and Morpheus as of the date you download the Software.
*** IMPORTANT - PLEASE READ CAREFULLY BEFORE YOU DOWNLOAD OR USE THE SOFTWARE ***
By clicking on the “accept” button at the end of this document or by accessing, executing or otherwise using the Software, you acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions. If you are not willing to be bound by the terms of this Agreement, do not access or use the Software.
If you are using the Software in your capacity as employee or agent of a company or organization, then any references to “you” in this agreement shall refer to such entity and not to you in your personal capacity. You warrant that you are authorized to legally bind the company or organization on whose behalf you are accessing the Software. If you are not so authorized, then neither you nor your company or organization may use the Software in any manner whatsoever.
1.1. “Add-on” means a separate component which works in conjunction with Morpheus products to provide additional or enhanced functionality. Add- ons include, but are not limited to, plug-ins, macros, extensions and libraries.
1.2. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. “Documentation” means the published and generally available on-line user and administrator materials Morpheus delivers or makes available with the Software, including on-line help, as updated from time to time. You acknowledge that you have had the opportunity to review the Documentation during any free trial described below.
1.4. “Order Form” means Morpheus’s global online electronic order form or other Morpheus ordering document for placing orders hereunder, which order form is entered into between you and Morpheus, whether electronically via Morpheus’s website or otherwise, and identifies the Software ordered by you, including the license type, quantity, access information and any other restrictions or use limitations. Order Forms shall be deemed incorporated herein by reference.
1.5. “Software” means only the licensed Morpheus software program(s) set forth on an Order Form, including without limitation system files and other software, documentation, packaged APIs, and Morpheus API add-ons, Updates and corresponding documentation, online or electronic documentation, and, if any, associated media and printed materials.
1.6. "Support Services" mean those services provided to you by Morpheus pursuant to Section 4 hereof. You are required to purchase Support
Services for the term of your subscription for the Software. The terms and conditions of any maintenance and support services purchased through a Reseller shall be subject to any additional terms and conditions set forth in your agreement with such Reseller.
1.7. "Support Services Period" means that number of months set forth in the applicable Order Form for which you have either purchased Support Services for the Software separately or they have been bundled with the applicable license fee, the first month of which shall commence upon the initial delivery of the Software. To the extent the Order Form fails to set forth such period, the Support Services Period shall be 12 months.
1.8. "Update" means any subsequent release of the Software that Morpheus generally provides to its customers who are enrolled in and fully paid up under Support Services. Updates do not include any Software that is marketed and priced separately by Morpheus such as Add-Ons.
1.9. "User" means an individual who is authorized by you to use the Software in accordance with this Agreement and the applicable license type set forth herein, and who has been supplied credentials by you (or by Morpheus at your request). A User may include but is not limited to your employees and those of your consultants and contractors who use the Software on your behalf and who are bound by enforceable terms at least as protective of the Software and the Morpheus Confidential Information as this Agreement.
1.10. "You" means you if you are an individual, or the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. FREE TRIAL
If you either register on the Morpheus website for a free trial or otherwise order a free trial version, Morpheus will make certain Software available to you on a trial basis (the “Trial Version”) free of charge until the end of the free trial period for which you registered or ordered the applicable Software. You may elect to either download the Trial Version for use with up to 32 GB of RAM. Or use a hosted version of the Trial Version. The hosted Trial Version which will be hosted by Morpheus and will not be available for download. The Trial Version may be used only to review, demonstrate and evaluate the Software and may have limited features. The Trial Version may cease operating after the applicable time period or number of uses based on an internal metering mechanism within the Trial Version itself. Regardless of any such metering, you must stop use at the end of such period or number of uses. Additional trial terms and conditions may appear on the trial registration web page or Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Review the Documentation during the free trial so that you are familiar with the features and functions of the Software before you license the applicable Software.
You shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software or use the Trial Version of the Software on more than one computer, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without Morpheus’s prior written consent, (E) use the Trial Version for any commercial training or any application deployment or ultimate production purpose, (F) use the Trial Version of the Software to update Software that is no longer eligible for Support Services or (G) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to the Software.
ANY DATA YOU ENTER INTO THE SOFTWARE, AND ANY CONFIGURATIONS MADE TO THE SOFTWARE BY OR FOR YOU DURING ANY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A LICENSE TO THE SAME SOFTWARE AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SOFTWARE, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 9 (LIMITED WARRANTY AND DISCLAIMER), DURING A FREE TRIAL, THE SOFTWARE AND ANY APPLICABLE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY.
3. LICENSE GRANT
3.1. The licenses granted in this section are subject to all terms and conditions set forth in this Agreement. You are responsible for the compliance of your Users with the terms and conditions of this Agreement and the licenses granted herein and shall be liable for any breach of this Agreement by your Users. Morpheus grants you a limited, worldwide, royalty-free, non- assignable, non-transferable, non-sublicensable and non-exclusive license pursuant to this Agreement for the Subscription Term set forth on the Order Form to install and use the Software in accordance with the Documentation for the limited purpose set forth on the applicable Order Form, only on the number of compatible computer systems licensed to you in the applicable Order Form, and subject to any additional the restrictions set forth in the applicable Order Form. You may install and use the Software solely as permitted by the license type purchased, which license type is specified in the applicable Order Form and is described in this Agreement.
3.2. License Types
3.2.1. Concurrent User License: Under the terms of a Concurrent User License, the Software is licensed for use by a specified maximum number of individual Users at the same time. All eligible Users may access the applicable Software with a unique username and password, provided that only that number of Users as licensed by you under one or more Order Forms may access the Software at
any one time.
3.2.2. Named User License: Under the terms of a Named User License, the Software is licensed for use by a particular individual as the User. An eligible User may access the Software with a unique username and password on one device at a time. You must acquire and dedicate a license for each separate User that you wish to access the Software. A Named User License for the Software may not be shared.
3.2.3. Subscription or Term License: Under the terms of a Subscription, or Term License, the Software is licensed only for the period of time set forth in the Order Form. The Subscription, or Term License is in combination with the other license types set forth herein thereby limiting the use of the Software to such applicable license type for the period of time for the applicable subscription or term. The Subscription, or Term License begins on the date the Software is delivered and continues for the subscription or term specified in the Order Form. If the term or Subscription is not specified in the Order Form then the term is twelve (12) months. The Subscription, or Term License will terminate if you fail to comply with any term or condition in this Agreement, including failure to pay associated fees when due. Software with a Subscription or Term License may contain a device that limits Software usage in accordance with the license. Notwithstanding any of the aforementioned in 3.2.3, this section shall be further and finally governed in the event of any conflict with and by Section 11.2.
3.3. Delivery. Delivery of the Software shall be made by electronic means and such delivery shall be deemed to have been made upon Morpheus or its Reseller, as the case may be, making the Software or services available to you for download or by providing you with a key for such usage. Notwithstanding the foregoing, where the Order Form provides for physical delivery or where electronic delivery is not possible given the nature of the requirements, delivery shall be deemed to have been made upon the transfer of the Software by Morpheus or its Reseller to its shipping agent. Notwithstanding anything to the contrary herein, you may make one copy of the Software for the sole purpose of backing-up and archiving the Software. The copy of the Software is subject to all terms and conditions of this Agreement and must contain the same titles, trademarks, and copyrights as the original.
3.4. Virtualization Technology. The Software may be installed within a virtual (or otherwise emulated) hardware system so long as the use of the Software meets the terms of the license type and these virtual machines are run on hardware owned or leased by you. Virtualization technology may not be used to circumvent other licensing terms or restrictions.
3.5. Non-Human Devices. Non-human devices that use the Software without interaction are counted as Users. Each device that runs the Software must be properly licensed to use the Software with one of the license types described herein. Examples of non-human devices include, but are not limited to, virtual PCs, build servers, unattended PCs for batch jobs, or similar.
3.6. Usage Verification. At Morpheus’s written request, and no more than once every twelve (12) months, you will certify to Morpheus that you are in compliance with this Agreement and the restrictions set forth on the Order Form.
3.7. Restrictions. Your use of the Software is limited by the usage restrictions as are set forth on an Order Form and as set forth herein. Morpheus and its suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to you hereunder, and retain all rights, title and interest in and to the Software. Except as otherwise expressly permitted herein or in an Order Form, you shall not and shall not permit any third party to:
(a) copy (except for a reasonable number of archival copies), modify, adapt, transfer, distribute, resell, rent, lease, sublicense or loan the Software or create or prepare derivative works based upon the Software or any part thereof,
(b) use the Software in a service bureau, or application service provider environment, or in any commercial time share arrangement or otherwise use or make available the Software or any party of the Software for the benefit of any third party, or make the Software or any part of the Software publicly available for download or use via an internet website, (c) combine all or any part of the Software with other software or use all or part the Software to create a new product or application, (d) distribute any software or device incorporating all or part of the Software, (e) use the Software except on your own internal computer networks, (f) otherwise use the Software on any computer that you do not own or control, (g) use the Software in contravention to any applicable laws or government regulations, or (h) decompile, disassemble or otherwise reverse engineer the Software. If 3.7(h) is prohibited by applicable law, you shall provide Morpheus with a detailed prior written notice of any such intention to reverse engineer the Software and shall provide Morpheus with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services provider for such work. You shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Software.
3.8. Acceptable Use. You agree that your use of the Software will comply with all applicable laws, rules and regulations and that you will not, through use of the Software or otherwise, create any application or other program that would disable, hack or otherwise interfere with any security, digital rights management, verification or authentication mechanisms implemented in or by the Software.
3.9. Source Code. The provision of source code, if included with the Software, does not constitute transfer of any legal rights to such code, and resale or distribution of all or any portion of all source code and intellectual property is strictly prohibited hereunder. All Software and other files remain Morpheus’s exclusive property. If source code or modifiable files are provided, regardless of any modifications that you make, you may not redistribute them unless Morpheus has expressly designated these as re- distributable.
3.10. Export. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. You acknowledge that the export of any Software is subject to export or import control and you agree that any Software or the direct or indirect product thereof will not be imported or exported (or re-exported from a country of installation) directly or indirectly, unless you obtain all necessary licenses from the U.S. Department of Commerce or other applicable agency or governmental body as required under applicable law. Without limiting the generality of the foregoing, you agree that the Software is prohibited for export or re-export to Cuba, North Korea, Iran, Libya, Syria and Sudan or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, as such is changed from time to time.
3.11. Breach. In the event that you breach this Agreement, Morpheus may terminate your license, whereupon you must destroy all copies of the Software, with all other rights and obligations of both parties and all other provisions of this Agreement surviving any such termination.
3.12. Continual Development. You acknowledge that the Software may change and that future versions of the Software may be incompatible with prior versions of the Software. You acknowledge that Morpheus may stop (permanently or temporarily) providing the Software (or any features within the Software) to in Morpheus’s sole discretion, with prior notice, of at least twelve (12) months and not less than six (6) months prior notice. This Agreement governs any Updates, Add-Ons, releases, revisions or enhancements to the Software which Morpheus may furnish to you.
3.13. Third Party Applications for the Morpheus Software. If you use the Software with applications developed by a third party or to access data, content or resources provided by a third party, you agree that Morpheus is not responsible for those applications, data, content, or resources. You understand that all data, content or resources which you may access through such third party applications are the sole responsibility of the person from which they originated and that Morpheus is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party applications, data, content, or resources. You further acknowledge that the data, content, and resources presented to you and your Users through such a third party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf) and not Morpheus. Your use of those resources may require rights beyond those granted by this Agreement and you acknowledge that any use of third party applications, data, content, or resources may be subject to separate terms between you and the relevant third party.
3.14. Open Source Software. You acknowledge that certain third party software incorporated in the Software requires that Morpheus provide copyright notices and/or additional terms and conditions to you, which copyright notices and additional terms and conditions may be accessed by you https://www.morpheusdata.com/licensing and are made a part of, and are incorporated by reference into this Agreement. Use, reproduction and distribution of those components of the Software that are licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement.
4. SUPPORT SERVICES
During a Support Services Period, Morpheus will provide you with Support Services, including Updates, to the extent such services are provided for in the applicable Order Form, all in accordance with Morpheus’s Product
Support Program as it exists from time to time. Support Services are provided to your designated representatives for the current release of the Software. If and when reasonably requested by Morpheus, you shall provide the necessary access to your systems and Software for Morpheus to perform the Support Services hereunder. Morpheus may use technical information provided by you relating to the Software as part of the Support Services, including for product support and development. If Morpheus provides support for earlier versions of the Software, such support will be treated, billed, and paid for, as professional services. Morpheus makes no representation or warranty that all bugs will be fixed or all Software will be updated. In addition, as part of the Support Services, Morpheus may make available bug lists, planned feature lists, and other supplemental materials. Morpheus makes no representations or warranties of any kind for these materials.
5. FEES AND PAYMENTS
You shall pay Morpheus the fees, charges and other amounts specified in an Order Form in accordance with the terms of such Order Form. To the extent such fees are required to be paid up front, you shall pay such fees in accordance with the instructions provided in such requirement. In the event the Order Form or Reseller paperwork does not provide for the terms for the payment of such fees, you shall pay Morpheus the fees, charges and other amounts set forth in the applicable Order Form within thirty (30) days of the date of invoice. Morpheus is expressly authorized by you to deliver the Software upon execution of the applicable Order Form and, to the extent applicable, to invoice any applicable fees, charges or other amounts upon delivery. To the extent such fees are not required to be paid up front, you shall provide a purchase order or notice that a purchase order is not required for purchase or payment prior to the shipment of any Software or the provision of any Support Services. If your internal procedures require that an invoice be submitted against a purchase order before payment can be made, you shall be responsible for issuing such purchase order to Morpheus in a timely fashion and your failure to do so will not extend or obviate its responsibilities to pay all fees and other charges in accordance with this Agreement. All fees and other charges are quoted in United States dollars. Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law. Other than as specifically provided in Section 9.2 (c), you will not be entitled to a refund of amounts paid for the license to use the Software or services provided, or any other amounts for any reason. You shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on Morpheus’s income.
6. CONFIDENTIALITY AND DATA PRIVACY
6.1. Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the Software and the terms and pricing of this Agreement are the Confidential Information of Morpheus. You will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Software. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
6.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
6.3. Specific Performance. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. SOFTWARE ACTIVATION AND UPDATES
Morpheus’s Software may transmit license-related data at the time of installation, registration, use or update to a Morpheus license server in order to activate your license and provide you with update notifications, protect you and Morpheus against unlicensed or illegal use of the Software, and improve customer service. You acknowledge that the Software may include license keys, password protection, anti-copying subroutines, proprietary security measures to protect Morpheus’s intellectual property and measures designed to limit usage of the Software to that which is licensed hereunder. Such measures shall not interfere with your normal and permitted operation of the Software as licensed hereunder.
8. OWNERSHIP; FEEDBACK
8.1. Except as expressly provided in this Agreement, Morpheus and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software, including without limitation all enhancements, improvements, bug fixes, updates, upgrades, modifications and derivative works thereof, as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications you may develop, and all copies thereof. All rights not specifically granted in this Agreement, including Federal and international copyrights, are reserved by Morpheus and its suppliers. Morpheus agrees that it obtains no right, title or interest from you and your users (or your licensors) under this Agreement in or to any Customer Applications you use with the Professional Server Products.
8.2. You and your Users may, from time to time, make known to Morpheus suggestions, enhancement requests, techniques, know-how, comments, feedback or other input to Morpheus with respect to the Software (collectively, "Suggestions'). Unless otherwise agreed to in writing by the parties with respect to any Suggestion, Morpheus shall have a royalty- free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute and exploit any Suggestion without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development ("Improvement') incorporating or derived from any
Suggestion with no obligation to license or to make available the
Improvement to you or any other person or entity.
9. LIMITED WARRANTY
9.1. Except with respect to the Trial Version and the Freeware or Free Version of the Software for which Morpheus provides no remedies or warranties, Morpheus warrants that (a) for a period of thirty (30) days following the initial delivery of the Software to you (the "Warranty Period'), the Software will perform in conformity with its Documentation; and (b) any Support Services will be provided with reasonable skill and care conforming to generally accepted software industry standards. No oral or written information or advice given by Morpheus, its Resellers, dealers, distributors, agents, representatives or employees shall create any warranty or in any way increase any warranty provided herein.
9.2. Your exclusive remedy for Morpheus's breach of 9.1 is that Morpheus will, at its option and at no cost to you,
(a) provide remedial services necessary to enable the Software or Support Services to conform to the warranty, or
(b) replace any defective Software or media, or
(c) refund amounts paid in respect of the defective Software or Support Services. Morpheus's warranty obligations will only extend (i) to material errors that can be demonstrated to exist in an unmodified version of the Software except where the modifications were carried out by Morpheus or with its written approval and
(ii) in respect of alleged breaches for which Morpheus has received written notice within the Warranty Period, if applicable. You will provide Morpheus with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.
9.3. EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, THE SOFTWARWE IS PROVIDED “AS IS” AND MORPHEUS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND
REPRESENTATIONS, WHETHER OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. MORPHEUS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR WILL OPERATE WITHOUT INTERRUPTION. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. MORPHEUS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
If applicable law requires any warranties other than the foregoing, all such warranties are limited in duration to thirty (30) days from the date of delivery. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. The warranty provided herein gives you specific legal rights and you may also have other legal rights that vary from jurisdiction to jurisdiction. The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to you only to EXPRESS, IMPLIED, OR the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MORPHEUS NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE, LOSS OR CORRUPTION OF DATA , PROCUREMENT OF SUBSTITUTE GOODS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MORPHEUS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MORPHEUS’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU OR
RESELLER, IF ORDERED THROUGH A RESELLER, FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
The Limited Warranty and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between Morpheus and you. Morpheus and its suppliers would not be able to provide the Software on an economic basis without such limitations.
11. TERM AND TERMINATION
11.1. The term of this Agreement shall be the Subscription Term set forth in the applicable Order Form, subject to earlier termination as provided herein. Except as otherwise specified in the applicable Order Form, all Support Services shall automatically renew for a Support Services Period equal to the expiring period, unless one party gives the other notice of non-renewal at least forty-five (45) days before the end of the then-current Support Services Period.
11.2. This Agreement or an individual license granted hereunder may be terminated (a) in the case of Morpheus, if you fail to pay any amount due hereunder within thirty (30) days after written demand by Morpheus for payment thereof, (b) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing, (c) by mutual written agreement of the parties, or (d) by either party if the other party materially breaches this Agreement and fails to cure such breach to such party’s reasonable satisfaction within thirty (30) days following receipt of written notice thereof.
11.3. Upon any termination of this Agreement or a license granted hereunder, all applicable licenses are revoked and you shall immediately cease use of the applicable Software and certify in writing to Morpheus within thirty (30) days after termination that such Software and all copies thereof have been destroyed, purged or returned to Morpheus. Termination of this Agreement or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve you of your obligation to pay all fees that have accrued, have been paid, or have become payable hereunder. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement (including, without limitation, the provisions of Sections 1, 6, 8, 9.3, 10, 11.3, and 13) shall survive such termination.
12. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
This Section 12 applies to all acquisitions of the Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The Software was developed at private expense and is Commercial Computer Software, as defined in Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections
227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)). Accordingly, any use, duplication or disclosure by the Government or any of its authorized users is subject to restrictions as set forth in this standard license agreement for the Software. If for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, then the Government's rights to use, duplicate or disclose the Software are limited to "Restricted Rights" as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227- 7014(a)(14) (June 1995), as applicable. If this Agreement fails to meet the government's needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to Morpheus at the address set forth above.
13.1. This Agreement shall be governed by the internal laws of the State of California, U.S.A., without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in the State of California or the federal courts in the State of California to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
13.2. If this Software was acquired outside the United States, then you agree and assent to the adherence to all applicable international treaties regarding copyright and intellectual property rights which shall also apply. In addition, you agree that any local laws to the benefit and protection of Morpheus's ownership of, and interest in, its intellectual property and rights of recovery for damages thereto will also apply.
13.3. You agree to be identified as a customer of Morpheus and agree that Morpheus may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Morpheus’s marketing materials and web site. You hereby grant Morpheus a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Morpheus pursuant to this marketing section.
13.4. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, stock or business to which this Agreement relates. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5. This Agreement, all documents referenced herein, and the Order Form(s) entered into by the parties contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. This Agreement may only be amended through a written agreement executed by a duly authorized representative of each party. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect and all such terms or conditions shall be null and void. You acknowledge and agree that your agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Morpheus with respect to future functionality or features for the Software. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. The failure or delay of Morpheus to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
13.6. This Agreement is a click-wrap agreement that will be made available on the website where the Software will be available for download (the “Website”). Morpheus may make changes to this Agreement from time to time without further notice. When these changes are made, Morpheus will make a new version of the Agreement available on the Website. Continued use of the Software by you and your Users after any such changes constitutes your acceptance of the new License Agreement. If you and your Users do not agree to abide by these or any future Agreement, do not use (or continue to use) the Software.
13.7. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
13.8. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
13.9. Morpheus and other trademarks contained in the Software are trademarks or registered trademarks of Morpheus Software Inc. in the United States and/or other countries. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
13.10. This Agreement may be executed in counterparts (including counterparts delivered by facsimile or other electronic means), which taken together shall form one legal instrument. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) ”or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) ”including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
13.11. You acknowledge and agree that each member of the group of companies of which Morpheus may be the parent (or of which Morpheus may be a subsidiary) shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this Agreement. Neither party shall be deemed to be an employee, agent or other legal representative of the other party for any purpose whatsoever, or have the right or authority to assume or otherwise create any obligation or responsibility, express or implied on behalf of the other party or to bind the other party in any manner whatsoever.
13.12. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Software. Without limiting the foregoing, (i) you represent that you are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Users to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.