PLUGIN CORE SOURCE LICENSE AGREEMENT (“PSL”)
THIS PSL IS A LEGALLY BINDING AGREEMENT BETWEEN LICENSEE USER (“USER” or “YOU”) AND MORPHEUS SETTING FORTH THE TERMS AND CONDITIONS GOVERNING THE USE, ACCESS, AND OPERATION OF THE MORPHEUS THEN-CURRENT VERSION OF THE GENERALLY AVAILABLE PROPRIETARY PLUGIN CORE SOFTWARE (THE “SOFTWARE”) AND THE DOCUMENTATION (AS HEREINAFTER DEFINED). WHERE THE SENSE AND CONTEXT PERMIT, REFERENCES IN THIS PSL TO THE SOFTWARE INCLUDE THE DOCUMENTATION. BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING OR ACCESSING THE SOFTWARE, AND/OR OTHERWISE ACCEPTING THIS PSL, USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS PSL AND SUCH DATE SHALL BE DEEMED THE EFFECTIVE DATE OF THIS PSL. IF YOU ARE ACCEPTING THESE TERMS AND THIS PSL ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS. THIS PSL GOVERNS USER’S AND YOUR USER’S USE OF AND ACCESS TO THE SOFTWARE FOR A SPECIFIC TERM. IF USER DOES NOT AGREE TO OR ACCEPT THE TERMS OF THIS PSL, YOU AND ANY USERS MAY NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR OTHERWISE USE THE SOFTWARE OR DOCUMENTATION.
1.1. “Documentation” means Morpheus’ standard and then current on-line training materials, user manuals, handbooks, guides and technical specification, and documentation in the form of online and printed media which describe the Software feature set and operation, as may be updated from time to time by Morpheus.
1.2. “Morpheus” means Morpheus Data, LLC, a Delaware limited liability company with principal place of business being 5460 S Quebec St, Suite 330, Greenwood Village, CO 80111, USA.
1.3. “Plugin” means a software add-on that adds capabilities to or extends functionality of the Morpheus Platform (as hereinafter defined).
1.4. “Plugin Core” means the generally available interface library, used for building and compiling plugins for the Morpheus Platform (as hereinafter defined) and referred to herein as “Software”.
1.5. “User” also includes any 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.
The Software covered by this PSL is designated as “Free” and “Not-For-Resale (NFR)” and as such, the Software licensed hereunder is provided “AS-IS” WITH NO WARRANTY AND NO SUPPORT OR MAINTENANCE. Additional terms and conditions may appear on the morpheusdata.com or morpheushub.com web pages and are incorporated into this Agreement by reference.
3.1. License Grant. Subject to the terms and conditions of this Agreement and your compliance therewith, Morpheus grants to You for the Term (as defined in Section 6.1) the restricted, limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free, no charge right and license to access and use the Software solely for your business purposes and for developing and compiling new Plugins for the Software and the core Morpheus proprietary software, the use of which shall be subject to the following end user license agreement located at https://morpheusdata.com/terms-and-conditions/ (the “Morpheus Platform”).
3.2. Copyright and other Restrictions. Morpheus retains all rights, implied or otherwise, which are not expressly granted to You hereunder, and retains all rights, title and interest in and to the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold and contains copyrighted material, trade secrets and other proprietary material of Morpheus. All right, title and interest in the Software remains at all times exclusively with Morpheus. User will not disclose, transfer or otherwise make available the Software, or results of any tests of the Software, to any third party without the prior written consent of Morpheus. You may copy the Software solely for backup or archival purposes. You shall not use the Software or the Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, attempt, directly or indirectly, or allow any third party to attempt to (i) copy, modify, or create derivative works of the Software or Documentation, in whole or in part, other than the development and compilation of Plugins that are intended to interoperate with the Morpheus Platform; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software or Documentation, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Software or Documentation to develop a similar or competing product, software, or service; (vii) provide access to the Software or Documentation to any person or third party in order to build or assist in building a competitive service or software to the Software or Documentation or to benchmark with a non-Morpheus service or software; (viii) use the Software or Documentation on behalf of, or to provide any product or service to, third parties; (ix) use the Software or Documentation to transmit or display any false, inaccurate, or unlawful information; (x) permit the use of the Software or Documentation other than by Your Users; (xi) embed the Software, in whole or in part, into other application platforms with the intent of enabling the operation of the Software in products other than those expressly permitted in writing by Morpheus; or (xii) violate the terms and conditions of this Agreement or any terms and conditions posted on the Software or Documentation (collectively “Prohibited Conduct”).
3.3. Acceptable Use. You agree that Your use of the Software and Documentation will comply with all applicable laws, rules and regulations and that You will not, through use of the Software, Documentation 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. You are responsible and liable for all uses of the Software and Documentation or resulting from access provided by You to any User or third party, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, You are responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by You will be deemed a breach of this Agreement by You. You shall make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Software and Documentation and shall cause Users to comply with such provisions.
3.4. 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.
3.5. Continual Development. You acknowledge that Morpheus may stop (permanently or temporarily) providing the Software (or any features within the Software) in Morpheus’s sole discretion. This Agreement governs any Updates, Upgrades, releases, revisions or enhancements to the Software which Morpheus may furnish to You in its sole discretion.
3.6. YOUR AND THIRD PARTY APPLICATIONS AND PLUGINS. IF YOU USE THE SOFTWARE WITH APPLICATIONS OR PLUGINS DEVELOPED BY YOU OR A THIRD PARTY OR TO ACCESS DATA, CONTENT OR RESOURCES PROVIDED BY A THIRD PARTY OR YOU, YOU AGREE THAT MORPHEUS IS NOT RESPONSIBLE FOR YOUR OR THOSE THIRD PARTY APPLICATIONS, PLUGINS, DATA, CONTENT, OR RESOURCES. YOU UNDERSTAND THAT ALL DATA, CONTENT OR RESOURCES WHICH YOU MAY ACCESS THROUGH YOUR OR SUCH THIRD PARTY APPLICATIONS OR PLUGINS ARE THE SOLE RESPONSIBILITY OF YOU OR 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 YOUR OR THOSE THIRD PARTY APPLICATIONS, PLUGINS, DATA, CONTENT, OR RESOURCES. YOU FURTHER ACKNOWLEDGE THAT THE DATA, CONTENT, AND RESOURCES PRESENTED TO YOU AND YOUR USERS THROUGH YOUR OR SUCH A THIRD PARTY APPLICATION OR PLUGINS MAY BE PROTECTED BY INTELLECTUAL PROPERTY RIGHTS WHICH ARE OWNED BY THE PROVIDERS OR THIRD PARTIES (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 YOUR OR THIRD PARTY APPLICATIONS, PLUGINS, DATA, CONTENT, OR RESOURCES MAY BE SUBJECT TO SEPARATE TERMS BETWEEN YOU AND THE RELEVANT THIRD PARTY. FURTHER, YOUR OR THE THIRD PARTY APPLICATIONS, PLUGINS, AND SERVICES, FEATURES TO SUPPORT YOUR OR SUCH THIRD PARTY SERVICES AND THE INTEROPERATION WITH THE SOFTWARE ARE PROVIDED “AS-IS,” “WHERE IS” AND AS AVAILABLE. TO THE EXTENT PERMITTED BY LAW, MORPHEUS, AS IT RELATES TO YOUR OR THE THIRD PARTY APPLICATIONS, PLUGINS, SERVICES, FEATURES TO SUPPORT YOUR OR SUCH THIRD PARTY APPLICATIONS, PLUGINS, AND SERVICES AND THE INTEROPERATION WITH THE SOFTWARE, EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE TERMS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
3.7. 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 at https://morpheusdata.com/open-source-licensing/ 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.
3.8. Data Privacy. The terms and conditions of Morpheus’s then current Privacy Policy are set out in full at http://www.Morpheusdata.com/privacy-policy and are incorporated herein by this reference into this Agreement. In the event of a conflict between the Privacy Policy and this Agreement, the terms and conditions of this Privacy Policy will govern.
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 Morpheus intellectual property, including without limitation, the Software, Documentation, and 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. You may make known to Morpheus suggestions, techniques, know-how, feedback or other input with respect to the Morpheus intellectual property (collectively, “Suggestions”). You hereby assign to Morpheus on Your behalf, and on behalf of Your employees, contractors and/or agents, all right, title, and interest in any Suggestions (excluding Your pre-existing intellectual property), and 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 and without any attribution or compensation to any party, although Morpheus is not required to use any Suggestions. All rights not specifically granted in this Agreement, including federal and international copyrights, are reserved by Morpheus and its suppliers.
THE SOFTWARE IS PROVIDED “AS IS” AND MORPHEUS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MORPHEUS DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF DEFECTS OR WILL OPERATE WITHOUT INTERRUPTION. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS. MORPHEUS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IN NO EVENT WILL MORPHEUS, ITS AFFILIATES, RESELLERS, OR DISTRIBUTORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR SUPPORT AND MAINTENANCE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MORPHEUS’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO $100.
6.1. Unless terminated earlier pursuant to this Agreement’s express provisions, this Agreement will remain in effect for twelve (12) months from the Effective Date (“Term”) and shall automatically renew for successive twelve (12) month terms unless either party provides written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
6.2. This Agreement or an individual license granted hereunder may be terminated (a) in the case of Morpheus, at any time, with or without cause and for convenience, immediately upon notice to You, (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.
6.3. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement shall survive such termination.
6.4. Upon termination of this Agreement, Your and Your User’s access to the Software and Documentation will immediately terminate and You and Your Users will immediately cease all use of the Software and Documentation and destroy and certify destruction of all Documentation and other Morpheus intellectual property.
Use, duplication, or disclosure of the Software to or by the U. S. Government is subject to the provisions and restrictions as set forth in FAR 52.227-14 and FAR 52.227-19, or equivalent restrictions and provisions as set forth in DFAR 252.227-7013 and DFAR 252.227-7014.
9.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Morpheus shall include the Software, the Documentation, Morpheus intellectual property, and the Support and Maintenance and products thereof; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information does not include information that is: (a) in the public domain other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement, (b) rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement at the time of disclosure, (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party that to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality, or (d) the Receiving Party can demonstrate by written or other contemporaneously-created documentary records was independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, contractors, directors, or other representatives, who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder (collectively, “Representatives”). You shall require all Representatives and Users to execute an agreement protecting the confidentiality of the Morpheus Confidential Information and with license and use restrictions consistent with the confidentiality and terms of this Agreement and shall be responsible for the acts and omissions of any such Representatives.
9.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to its Representatives, who have a need to know such Confidential Information.
9.3. Compelled Disclosure. Notwithstanding anything to the contrary in this Section 9, the Receiving Party may disclose Confidential Information of the Disclosing Party if the Receiving Party is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
10.1. This Agreement shall be governed by the internal laws of the State of Colorado, 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 Colorado or the federal courts in the State of Colorado 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.
10.2. This Agreement may not be assigned by either party without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; except that either party may assign this Agreement without the consent of the other party to the surviving or acquiring party in a sale of substantially all the assets or equity of or a merger of that party into another entity. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
10.3. This Agreement, all documents referenced herein, 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.
10.4. Except as set forth herein, 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 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 PSL and any other agreement of document, the terms of the PSL shall prevail. Notwithstanding anything to the contrary contained herein, Morpheus reserves the right, in its sole discretion to make any changes to the Agreement, Software or associated services that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of the Software or Support and Maintenance to its customers; (ii) the competitive strength of or market for the Software; or (iii) the Software cost efficiency or performance; or (b) to comply with applicable laws or regulations. Notwithstanding anything to the contrary contained herein, Morpheus may modify or amend this Agreement at any time and will post access to details of any modifications or amendments to this Agreement on https://morpheusdata.com/plugin source-license. Changes will not apply retroactively and generally will become effective fourteen (14) days after they are posted. However, changes addressing new functions for the Software or made for legal reasons will be effective immediately. If You don’t agree to any modified or amended terms in the Agreement, You must stop using the Software and Documentation. Your continued use of the Software and Documentation after the effective date of any changes constitutes Your agreement to follow and be bound by such changes.
10.5. 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.
10.6. Morpheus shall not be liable for any delay or failure to perform its obligations due to circumstances beyond Morpheus’ control, such circumstances to include without limitation natural disasters, terrorism, labor disputes, war, declaration of governments, transportation delays, computer and/or network failures, acts of civil or military authorities, interruptions in third-party telecommunications or internet equipment or service, or misuse of the Software by You.
10.7. 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. 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.
10.8. You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Sections 3.2, 3.3, 3.4, 3.8, and 9 would cause Morpheus irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, Morpheus will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
10.9. You, at your sole cost and expense, shall purchase and carry appropriate levels of insurance coverage that are prudent and customary in the businesses in which You are engaged and maintain it in full force and effect during the term of this Agreement for the benefit of both You and Morpheus. Such policies may not be canceled without providing Morpheus with at least thirty (30) days’ prior notice of cancellation.
10.10. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked.
10.11. This Agreement may be executed in counterparts (including .pdf signatures and electronic signatures), each of which shall be deemed to be an original. This Agreement may also be entered into by electronic means. You may communicate Your acceptance of this Agreement by any electronic means which indicates to Morpheus that You desire to enter into this Agreement and/or obtain the Software, including, but not limited to, by (i) email; (ii) clicking on an agreement or consent button, box, or icon on the Morpheus website designed to solicit acceptance of this Agreement; or (iii) completing an electronic order form or quote on the Morpheus website or received via email and submitting it to Morpheus. Morpheus may likewise indicate its consent to this Agreement and may also indicate its consent to this Agreement s by providing access to the Software to You following Your acceptance of this Agreement.