MORPHEUS DATA LLC
GENERAL TERMS & CONDITIONS FOR SERVICES
Unless otherwise specifically agreed to in writing by the parties and executed by an authorized representative of each party, Morpheus Data, LLC (“Morpheus”) and the customer set forth in the SOW (“Customer”) acknowledge and agree that any statements of work, SKU-based services, other purchase of services from Morpheus (collectively, “SOW”) shall be and are governed exclusively by the terms and conditions set forth in this General Terms & Conditions for Services (this “Agreement”), which are incorporated into and made a part of each SOW by this reference.
The terms of any SOW, including this Agreement, are limited to the scope of each specific SOW, and are not applicable to any other SOWs that may be executed between the parties unless the parties otherwise agree in writing. To the extent there is a conflict between the terms of the SOW and this Agreement, then the terms of this Agreement control unless explicitly stated otherwise in the SOW. Further, this Agreement shall prevail over any Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, Purchase Order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.
DEFINITIONS
Capitalized terms not defined in the Agreement, have the meanings as defined in the SOW.
Customer shall, upon and subject to the written approval by Morpheus, purchase Services by issuing a Purchase Order. As used herein, the term “Purchase Order” shall mean a written order for Services submitted by Customer to Morpheus pursuant to this Section 1. A Customer’s authorized representative must either sign (and seal, if applicable) or, in the case of electronic transmission, send the Purchase Order or a Morpheus quote (“Quote”) on behalf of Customer. For each Purchase Order, include the SOW reference and project identification number(s), specific Services purchased, quantity, price, total purchase price, bill-to and ship-to addresses, tax exempt certifications if applicable, and any other special instructions (“Commercial Terms”). No contingency or terms and conditions contained in any Purchase Order is binding upon Morpheus. The terms of the SOW apply regardless of any additional or conflicting terms in any Purchase Order or other correspondence or documentation submitted by Customer to Morpheus, and any such additional or conflicting terms are deemed rejected by Morpheus. Morpheus shall have five (5) business days from the date of submission of a Purchase Order by Customer to reject an order (email being deemed sufficient). Accepted Purchase Orders shall constitute firm purchase obligations on behalf of Customer; provided that only the Commercial Terms shall be binding upon the parties and any other terms and conditions contained in such Purchase Order shall have no force and effect and shall not be binding upon the parties.
2.1. Morpheus Obligations. Morpheus shall use commercially reasonable efforts to provide the Services in accordance with this Agreement and the applicable SOW. Further, Morpheus shall use reasonable efforts to meet any performance dates specified in the applicable SOW, provided that the parties agree that any such dates shall be estimates only.
2.2. Other Services. Morpheus is not responsible for providing any Services to Customer beyond those Services expressly set forth in the SOW, including any Change Order mutually agreed upon by the parties pursuant to Section 3.
2.3. Customer’s Acts or Omissions. If Morpheus’ performance of its obligations under this Agreement or any SOW is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Morpheus shall not be deemed in breach of its obligations under this Agreement or any SOW or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
2.4. Customer’s Obligations. Customer shall:
2.4.1. cooperate with Morpheus in all matters relating to the Services and provide such either physical or remote access to Customer’s systems, infrastructure or, if applicable, premises, and such other facilities, equipment or accommodations as may reasonably be requested by Morpheus, for the purposes of performing the Services;
2.4.2. respond promptly to any Morpheus request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Morpheus to perform Services in accordance with the requirements of this Agreement or any SOW;
2.4.3. provide such Customer materials or information as Morpheus may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
2.4.4. obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
3.1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Morpheus shall, within a reasonable time after such request, provide a written estimate to Customer of:
3.1.1. the likely time required to implement the change;
3.1.2. any necessary variations to the fees and other charges for the Services arising from the change;
3.1.3. the likely effect of the change on the Services; and
3.1.4. any other impact the change might have on the performance of this Agreement.
3.2. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 25.
3.3. Notwithstanding Section 3.1 and Section 3.2, Morpheus may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the SOW.
3.4. Morpheus may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the SOW.
All prices are set forth in the applicable Purchase Order and SOW and are exclusive of any taxes, fees, duties or other similar charges. Customer shall pay all sales, use, withholding, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder and related to Services (other than taxes based on Morpheus’ net income) or present an exemption certificate acceptable to the taxing authorities. Morpheus may invoice Customer for applicable taxes as a separate item. Morpheus reserves the right to increase the Service fee in the event Customer determines any withholding tax obligation prevents Morpheus from receiving the specified prices for such Services set forth in the SOW.
5.1. Payment. Customer will pay Morpheus the fees set forth in the SOW, Quote, and/or Purchase Order without offset or deduction. Unless otherwise stated by Morpheus in writing or in the SOW, all payments shall be made in U.S. Dollars net thirty (30) days from Customer’s receipt of the invoice from Morpheus. Customer shall make all payments in U.S. Dollars by wire transfer or automated clearing house, in accordance with the Morpheus banking information set forth on the applicable SOW, Quote or Purchase Order. If Customer fails to make any payment when due, without limiting Morpheus’ other rights and remedies: (i) Morpheus may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Morpheus for all reasonable costs incurred by Morpheus in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) business days beyond the due date, Morpheus may suspend Customer’s and Customer’s employees, consultants, and representatives access to any portion or all of the Services until such amounts are paid in full. Each accepted Purchase Order, Quote or order form is a separate, independent transaction, and Customer has no right of set-off or deduction against other Purchase Orders, Quote or order forms with Morpheus. No discounts for prepayment are authorized hereunder.
5.2. Invoicing. Morpheus will invoice Customer in accordance with the SOW. If the SOW does not include an invoice schedule, then Morpheus may invoice customer as of the start date or effective date of the SOW.
6.1. This Agreement, the SOW, and any Services being performed under the SOW, may be terminated immediately by either party upon written notice for the following reasons:
6.1.1. if the other party breaches any of the material provisions of the SOW or this Agreement, and (a) the breach is not capable of being cured, or (b) the other party fails to cure such breach within thirty (30) days after receiving written notice from the non- breaching party requiring the breach to be cured;
6.1.2. if the other party (a) ceases, or threatens to cease, to carry on business as a going concern, (b) becomes or may become the object of a voluntary or involuntary proceedings in bankruptcy or liquidation, (c) a receiver or similar officer is appointed with respect to all or a substantial part of its assets, or (d) has an event occur similar to any of the foregoing under applicable law; or
6.1.3. If Customer has not paid Morpheus the Services fees when due and Morpheus has not received payment within ten (10) days after notice from Morpheus of such past due payment, Morpheus may immediately terminate the SOW and this Agreement.
6.2. Upon termination of any SOW or this Agreement, Customer shall pay Morpheus for all work Morpheus has performed up to the effective date of termination at the agreed upon prices, fees and expense reimbursement rates.
7.1. The parties acknowledge that each party may obtain confidential information disclosed by a party to the other 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”) as a result of, and related to, the SOW or this Agreement. For a period of two (2) years from the termination of this Agreement, the receiving party shall (a) keep in trust and confidence all such Confidential Information, (b) not use such Confidential Information other than as expressly authorized by the disclosing party under the SOW, and (c) 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. The receiving party shall not disclose any such Confidential Information to third parties without the disclosing party’s written consent.
7.2. Notwithstanding the above, Morpheus is authorized to disclose Customer’s Confidential Information to subcontractors, representatives, contractors or employees of Morpheus or its Affiliates who have a legitimate business need to have access to such information. As used herein, the term “Affiliate” shall mean with respect to a party, means any corporation, firm, partnership, limited liability company or other entity, whether de jure or de facto, that directly or indirectly owns, is owned by, or is under common ownership with such party to the extent of at least fifty percent (50%) of the equity having the power to vote on or direct the affairs of such party, and any person, firm, partnership, corporation, limited liability company or other entity actually controlled by, controlling, or under common control with such party.
7.3. Upon termination or expiration of the SOW or this Agreement (for any reason and at any time), the receiving party shall, if requested, immediately return to the disclosing party or destroy all Confidential Information (including all copies) in the receiving party’s possession, custody, or control, provided that the receiving party may keep archival copies for regulatory purposes and to enforce its rights and subject to the obligations of confidentiality herein.
7.4. The obligations of confidentiality do not apply to information that: (i) has entered the public domain, except where such entry is the result of the receiving party’s breach of the SOW or Agreement; (ii) was already rightfully in the receiving party’s possession prior to the disclosure hereunder without restriction on use or disclosure prior to such information’s being disclosed or made available; (iii) is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information to the receiving party; or (iv) 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.
7.5. The receiving party will be authorized to disclose Confidential Information pursuant to a valid order issued by a court, government agency or relevant regulatory authority (including a stock exchange), provided that the receiving party, if reasonably practicable, provides: (i) prior written notice to the disclosing party of such obligation, and (ii) the opportunity to oppose such disclosure.
7.6. Neither party may disclose, advertise, or publish the terms and conditions of the SOW or this Agreement without the prior written consent of the other party. Any press release or publication regarding the SOW is subject to prior review and written approval of the parties.
8.1. Morpheus shall perform the services provided under the SOW in a workmanlike manner in accordance with generally recognized industry standards for similar services.
8.2. The Morpheus shall not be liable for a breach of the warranty set forth in Section 8.1 unless Customer gives written notice of the defective Services, reasonably described, to Morpheus within thirty (30) days of the time when Customer discovers or ought to have discovered that the Services were defective.
8.3. SUBJECT TO SECTION 8.2, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MORPHEUS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT WILL BE, AT MORPHEUS’ SOLE DISCRETION, EITHER:
8.3.1. Repair or re-performance of the Services (or the defective part); or
8.3.2. Termination of the SOW or the applicable Service and reimbursement by Morpheus to Customer of the portion of the Service fees paid to Morpheus by Customer for such non-conforming Services.
8.4. THE WARRANTY SET OUT ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS, EXPRESS OR IMPLIED, ALL OF WHICH ARE EXCLUDED. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8.1 ABOVE, THE SERVICES PROVIDED HEREUNDER OR ANY SOW ARE PROVIDED AS IS AND WHERE IS AND MORPHEUS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, MORPHEUS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.1. IN NO EVENT WILL MORPHEUS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MORPHEUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
9.2. IN NO EVENT SHALL MORPHEUS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MORPHEUS PURSUANT TO THE APPLICABLE SOW IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.1. Except to the extent as otherwise expressly set forth in the SOW and subject to the terms and conditions of the SOW and Agreement and upon full payment of any and all fees set forth in such SOW and the applicable Purchase Order, Morpheus grants to Customer a non-exclusive, non-transferable, revocable, restricted, non-sublicensable license to use for Customer’s internal business use only: (i) Software (as defined in the SOW) provided as a result of the Services and designated as a Deliverable in the SOW, if any, solely in object code form; and (ii) the Deliverables specified in the SOW, if any (collectively and individually, the “Licensed Materials”). In addition, Morpheus grants to Customer a right to modify and create derivative works of any Scripts (as defined in the SOW), if any, provided by Morpheus to Customer pursuant to an SOW and designated as a Script in the SOW, solely for Customer’s internal business use. These license grants do not include the right to sublicense. Customer may permit its suppliers, subcontractors and other related third parties to use the Licensed Materials solely on Customer’s behalf for Customer’s direct benefit, provided that any such use is subject to license restrictions and confidentiality obligations at least as protective of Morpheus’ rights in such Licensed Materials as are specified in this Agreement.
10.2. Nothing in this Agreement or the SOW alters or affects the Morpheus Intellectual Property rights and/or licenses provided with any Morpheus Products (as defined in the End User License Agreement). The terms and conditions provided with the Software, or in the absence of such terms, the license posted at https://morpheusdata.com/terms-and-conditions/ (“End User License Agreement”), are hereby incorporated into this Agreement by this reference. To the extent there is a conflict between the terms of the End User License Agreement and this Agreement, the terms of the End User License Agreement will apply, unless explicitly stated otherwise in this Agreement. The provisions in this Section apply only to those Services, Deliverables, and other Intellectual Property provided by Morpheus to Customer pursuant to the SOW. As used herein, the term “Morpheus Intellectual Property” means the Services, Products, Deliverables, Reports, Scripts, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology provided or developed by Morpheus (or a third party acting on Morpheus’ behalf) pursuant to the SOW, including modifications, enhancements, improvements or derivative works of any of the foregoing, regardless of who first conceives or reduces to practice, and all Intellectual Property in any of the foregoing.
10.3. The license rights granted in this Section are a subscription, provided Customer is not in breach of this Agreement or the SOW. Except as otherwise expressly set forth in this Agreement or the SOW, Customer shall not (and shall not permit a third party to): (i) download more than one copy of the Software; (ii) copy, in whole or in part, any Software or Deliverable; (iii) make error corrections or derivative works of, or otherwise modify, decompile, decrypt, reverse engineer, disassemble or reduce all or any portion of any Software, or Deliverable to human- readable form; or (iv) transfer, sublicense, rent, lease, distribute, or sell any Software or Deliverables. Customer acknowledges that it does not receive any implied licenses under this Agreement, and all rights not expressly granted herein are reserved to Morpheus.
10.4. When Customer updates or upgrades a copy of Software (as defined in the SOW) to a new release, Customer shall not thereafter use concurrently, except for a limited period of parallel testing, that new release and any previous release of the Software. Customer shall not re-use, host or have hosted for later re-use, or transfer any previous release of the Software to any other device(s).
10.5. Customer grants to Morpheus a perpetual, irrevocable, royalty free, worldwide right and license to all Intellectual Property in the Customer Feedback (as defined below) to use and incorporate into any or all Services, Products, Deliverables, Reports, Scripts and Morpheus Pre-Existing Technology, and to use, make, have made, offer to sell, sell, copy, distribute, and create derivative works of such Intellectual Property for any and all purposes whatsoever, and Customer acknowledges that it will have no rights in or to any Services, Products, Deliverables, Reports, Scripts or Morpheus Pre-Existing Technology as a result of Morpheus’ use of any such Intellectual Property. As used herein, the term “Customer Feedback” means all oral or written communications regarding improvements or changes to any Services, Products, Deliverables, Reports, Scripts or Morpheus Pre-Existing Technology that Customer provides to Morpheus. As used herein, the term “Pre-Existing Technology” means pre-existing Intellectual Property, Confidential Information and materials, including, without limitation, proprietary ideas, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology that are owned by a party prior to commencement of any Services hereunder, or that are otherwise developed by or for such party outside the scope of the SOW.
11.1. Except to the extent as otherwise expressly set forth in the SOW, Morpheus owns and will continue to own all right, title, and interest in and to all Morpheus Intellectual Property.
11.2. Each party will retain the exclusive ownership of all of its Pre-Existing Technology.
11.3. Third party products will at all times be owned by the applicable third party, and will be subject to any applicable third party license terms.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Morpheus hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within twenty (20) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 12, the other party may thereafter terminate this Agreement upon ten (10) days’ written notice.
13.1. All matters arising out of or relating to any SOW or this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.
13.2. Any legal suit, action, or proceeding arising out of or relating to any SOW or this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Colorado in each case located in the City of Denver and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13.3. Notwithstanding the foregoing, either party has, at all times, the right to commence proceedings in any other court of its choice for interim injunctive relief in the event of threatened or actual breach of Intellectual Property rights or provisions regarding protection and non-disclosure of Confidential Information.
13.4. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.
The Services, Software and Deliverables utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software, Deliverables or the underlying software or technology to, or make the Deliverables or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Deliverables or the underlying software or technology available outside the US.
Neither this Agreement nor any SOW may 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 or any SOW 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 or any SOW made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this Agreement and any SOW shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
All notices required or permitted under the Agreement or any SOW will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt. All communications will be sent to the addresses set forth on the cover sheet of the SOW or the Purchase Order or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph. Notwithstanding the above, notices regarding general changes in pricing, policies, software updates, or programs may also be by posting on https://morpheusdata.com or by e-mail.
The Agreement, including any SOW and the End User License Agreement, is the complete agreement between the parties concerning the subject matter of the SOW and replaces any prior oral or written communications between the parties, except as agreed between the parties. There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein.
No waiver by Morpheus of any of the provisions of this Agreement or any SOW is effective unless explicitly set forth in writing and signed by Morpheus. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement or any SOW operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
In the event that one or more terms of any SOW or this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term will be null and void and deemed deleted from the applicable SOW or this Agreement, as applicable. All remaining terms of the applicable SOW or this Agreement, as applicable, will remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of any SOW is materially impaired for Morpheus, as determined by Morpheus, in its sole discretion, then Morpheus may terminate such SOW and/or this Agreement by written notice with immediate effect to Customer.
To the extent allowed under local law, in any suit or proceeding relating to any SOW or this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of each SOW or this Agreement, and will survive expiration or termination and may not be merged into any such judgment.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party. Notwithstanding anything to the contrary contained herein, Morpheus reserves the right, in its sole discretion to make any changes to the Agreement, Services that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of the Services to its customers; (ii) the competitive strength of or market for the Services; or (iii) the Services 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/services_terms. Changes will not apply retroactively and generally will become effective fourteen (14) days after they are posted. If Customer doesn’t agree to any modified or amended terms in the Agreement, Customer must stop using the Services. Customer’s continued use of the Services after the effective date of any changes constitutes Customer’s agreement to follow and be bound by such changes.
This Agreement and each SOW are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement or any SOW.
Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Limitation of Liability, Warranty, Force Majeure, and Survival.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement or any SOW shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.