MORPHEUS DATA LLC END USER LICENSE AGREEMENT (“EULA”)
THIS EULA IS A LEGALLY BINDING AGREEMENT BETWEEN LICENSEE END USER (“END 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 COMPUTER SOFTWARE PRODUCTS (THE “SOFTWARE”) AND THE DOCUMENTATION (AS HEREINAFTER DEFINED). WHERE THE SENSE AND CONTEXT PERMIT, REFERENCES IN THIS EULA TO THE SOFTWARE INCLUDE THE DOCUMENTATION. BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING OR ACCESSING THE SOFTWARE, AND/OR OTHERWISE ACCEPTING THIS EULA, END USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND SUCH DATE SHALL BE DEEMED THE EFFECTIVE DATE OF THIS EULA. IF YOU ARE ACCEPTING THESE TERMS AND THIS EULA 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 EULA TOGETHER WITH THE TRANSACTION DOCUMENTS GOVERNS END USER’S AND YOUR USER’S USE OF AND ACCESS TO THE SOFTWARE, SUPPORT, AND SUCH OTHER SERVICES AND PRODUCTS SET IN THE TRANSACTION DOCUMENTS FOR A SPECIFIC TERM.
IF END USER DOES NOT AGREE TO OR ACCEPT THE TERMS OF THIS EULA, END USER AND USERS MAY NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR OTHERWISE USE THE SOFTWARE OR DOCUMENTATION.
1.1. An “Appliance” or “Deployment” is a unique installation of the Software across one or more physical or virtual nodes.
1.2. “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.
1.3. “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.
1.4. “Plugin” means a software add-on that adds capabilities to or extends functionality of the Software.
1.5. “Support and Maintenance” shall mean the then current Morpheus Software support and maintenance, the current version of which is set forth on Exhibit A, attached hereto and incorporated herein by this reference.
1.6. “Transaction” and “Transaction Document” have the following meanings: “Transaction(s)” is a license transaction pursuant to which End User: (i) accepts this EULA as provided above; and (ii) for whom a license key or access code for the Software has been provided by Morpheus, or such other access to the Software has been provided by Morpheus in accordance with Morpheus’ then current, standard processes and procedures. A Transaction may take place by any lawful means, electronically or in writing, and may be confirmed by purchase orders, order forms, quotes, credit orders, commitment letters, proof of concept specifications, license keys, amendments to this EULA or other similar materials, signed or accepted electronically, (each a “Transaction Document(s)”). A Transaction may be initiated and implemented by any entity that is directly or indirectly a party to it, including End User, Morpheus, or authorized third party managed service providers (“MSP”) as well as distributors and/or resellers of the Software. A Transaction Document may contain usage, business, legal and other terms and conditions agreed to by the parties. The foregoing notwithstanding, each Transaction will require that: (i) this EULA be accepted by End User, and (ii) End User is provided a license key, access code or such other access to the Software by Morpheus. In the event of a conflict or inconsistency between the terms and conditions of this EULA and those set forth in a Transaction Document, the terms and conditions of the EULA will govern and control unless the specific section of the EULA is referenced and modified by the Transaction Document. Notwithstanding anything to the contrary contained herein, no terms and conditions set forth in Your purchase order or other purchasing document shall apply to this EULA or Your use and access to the Software and other Morpheus intellectual property.
1.7. “Updates” shall mean updates, patches, bug fixes, feature fixes and minor software enhancements and compatibility (but excluding Upgrades) of the Software that Morpheus releases commercially and as determined by Morpheus in its sole discretion.
1.8. “Upgrades” shall mean a new version of the software that offers a significant change or major improvement over the current version of the Software and as determined by Morpheus in its sole discretion.
1.9. “Usage Level” is defined as the maximum allowable number of concurrent Workload Elements in use at any time during the Term.
1.10. “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.
1.11. “Workload Element” is defined as a discovered or managed instance made up of any one of the following: (i) any server, including but not limited to any bare metal server, (ii) a virtual machine, (iii) a container deployment (made up of Pods or ReplicaSets), or (iv) such other machine or device for which the Software is used or accessed other than a hypervisor or docker host, which is not a Workload Element. For discovered instances (e.g., in a brownfield discovery scenario), a Workload Element is representative of an individual unit of compute as reported by the cloud into which the Software is connecting and discovering. For managed instances provisioned by the Software, a Workload Element is the logical application service which could include multiple VMs or containers.
2.1. A License designated as a “Free”, “Not-For-Resale (NFR)”, “Trial”, “Proof of Concept”, “Paid Pilot” or “Community” License in a Transaction Document or other means authorizes End User to use one (1) copy of the Software for limited term period for non-production evaluation or demonstration purposes only. Software under these designations is provided “AS-IS” WITH NO WARRANTY. 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 the Transaction Document and this Agreement and your compliance therewith, including your timely payment of any and all fees set forth in the Transaction Documents, Morpheus grants to You for the Term (as hereinafter defined) the restricted, limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide right and license to access and use the Software solely for your internal business purposes. As used herein, the “Term” shall mean either the period of time set forth in the Transaction Document or if no term is specified in the Transaction Document, twelve (12) months from the Effective Date.
3.2. Software Activation and Audit. Morpheus’ Software may transmit license-related data at the time of installation, registration, use or update to a Morpheus license server (“Morpheus Hub”) in order to activate Your license and provide You with update notifications. Morpheus may use the connection to Morpheus Hub to verify usage is in compliance with restrictions set forth in this Agreement and within the Transaction Documents as related to both term and quantity of supported, discovered, managed, or provisioned instances of Workload Elements. If connectivity is not possible then at Morpheus’ request, you will generate a monthly usage report and transmit such report to Morpheus at firstname.lastname@example.org. The report will include the peak use for the month. If usage exceeds the Usage Level, then Morpheus reserves the right to increase Your Usage Level and invoice You for the new Usage Level on a go-forward basis.
3.3. 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. End 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, the Documentation or the Support and Maintenance 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; (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; or (xi) violate the terms and conditions of this Agreement or any terms and conditions posted on the Software or Documentation (collectively “Prohibited Conduct”).
3.4. 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, Documentation, and Support and Maintenance 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, Documentation, and Support and Maintenance and shall cause Users to comply with such provisions.
3.5. 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.
3.6. Customer Access. Provided your core business has developed a customer-facing offer around the Software (such as a managed service or a branded product or service consisting of the Software along with other software, hardware or proprietary techniques You create) and you have executed a separate reseller, managed service provider, or distributor agreement with Morpheus, You may grant user access to Your customers for the Software. In such cases, You are responsible for Your customers’ compliance with all terms in this EULA, and You will provide direct support to Your customers with respect to their use of the Software.
3.7. Continual Development. You acknowledge that Morpheus may stop (permanently or temporarily) providing the Software (or any features within the Software) in Morpheus’ 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.
3.8. THIRD PARTY APPLICATIONS AND PLUGINS. IF YOU USE THE SOFTWARE WITH APPLICATIONS OR PLUGINS 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 THIRD PARTY APPLICATIONS, PLUGINS, DATA, CONTENT, OR RESOURCES. YOU UNDERSTAND THAT ALL DATA, CONTENT OR RESOURCES WHICH YOU MAY ACCESS THROUGH SUCH THIRD PARTY APPLICATIONS OR PLUGINS 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, PLUGINS, 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 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 THIRD PARTY APPLICATIONS, PLUGINS, DATA, CONTENT, OR RESOURCES MAY BE SUBJECT TO SEPARATE TERMS BETWEEN YOU AND THE RELEVANT THIRD PARTY. FURTHER, THE THIRD PARTY APPLICATIONS, PLUGINS, AND SERVICES, FEATURES TO SUPPORT 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 THE THIRD PARTY APPLICATIONS, PLUGINS, SERVICES, FEATURES TO SUPPORT 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.
3.9. 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. To the extent that Morpheus incorporates any open source software into the Software, Morpheus shall have the responsibility to ensure that such Software is properly licensed.
4.1. Payment Terms. You will pay Morpheus the fees set forth in the Transaction Documents without offset or deduction. Unless otherwise stated by Morpheus in writing or in the Transaction Documents, all payments shall be made in U.S. Dollars net thirty (30) days from Your receipt of the invoice from Morpheus. You 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 Transaction Document(s).
If You fail 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) You 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 Your and Your End Users’ access to any portion or all of the Software until such amounts are paid in full. Each accepted purchase order or order form is a separate, independent transaction, and You have no right of set-off or deduction against other purchase orders, order forms or other Transaction Documents with Morpheus. No discounts for prepayment are authorized hereunder.
4.2. Taxes. All prices are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs, duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale of the Product. You are responsible for any and all sales, use, value added and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts (“Taxes”) payable by You hereunder, other than any Taxes imposed on Morpheus’ income. Any such Taxes will be added to the price or subsequently invoiced to You. In the event Morpheus is required to pay or charge any such Tax, You will promptly reimburse Morpheus in accordance with the payment terms set forth in Section 4.1 above.
Morpheus will use commercially reasonable efforts to provide Support and Maintenance to the extent such support and maintenance are provided for in the applicable Transaction Document and subject to Morpheus’ then current product support program as set forth on Exhibit A (“SSA”) and which may be modified from time to time by Morpheus in its reasonable and sole discretion. To the extent the Transaction Document fails to set forth such period for Support and Maintenance (the “Support and Maintenance Period”), the Support and Maintenance Period shall be 12 months from date of Transaction Document. Other than as set forth in the SSA (to the extent it applies), or, if applicable, any separate statement of work accepted by You, Morpheus has no obligation to provide support, maintenance, Upgrades, Updates, modifications, or new releases of the Software.
Updates and Upgrades to the Software shall be made available during the Support Period as determined by Morpheus in its sole discretion. Support and Maintenance are provided for the current and one previous long-term-support release of the Software and any of its derivatives and do not extend to third party software, hardware, clouds, or other end points connected to the Software. Morpheus makes no representation or warranty that all support problems or tickets raised will be fixed unless such tickets relate to the workings of the Software itself. In addition, as part of the Support and Maintenance, Morpheus shall periodically make available bug lists, planned feature lists, and other supplemental materials.
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 IP, 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 IP (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.
7.1. Except with respect to any Free, Not-For-Resale, Trial, Proof of Concept, or Community Versions 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, when accessed and used in accordance with this Agreement and the Documentation, will perform in material conformity with its Documentation; and (b) any Support and Maintenance 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.
7.2. Morpheus’ sole liability and Your exclusive remedy for Morpheus’ breach of Section 7.1 is that Morpheus will, at its option and at no cost to You, provide remedial services necessary to enable the Software to conform to the warranty or refund amounts paid in respect of the defective Software or Support and Maintenance. Morpheus’ warranty obligations will only extend 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 in respect of alleged breaches for which Morpheus has received written notice within the Warranty Period, if applicable.
7.3. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, 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.
7.4. 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’ 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 (12) MONTHS IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
8.1. The Term for Software or Support and Maintenance shall be set forth in the applicable Transaction Document and if not, in Section 3.1, subject to earlier termination as provided herein.
8.2. 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 ten (10) 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.
8.3. Termination of this Agreement 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 shall survive such termination.
8.4. Upon termination of this Agreement, Your and Your User’s access to the Software, Support and Maintenance and Documentation will immediately terminate and You and Your Users will immediately cease all use of the Software, Support and Maintenance and Documentation and destroy and certify destruction of all Documentation and other Morpheus intellectual property. Upon any termination by either party under Section 8.2, there will be no refund for any fees paid hereunder, including but not limited to any prepaid fees for the Software and Support and Maintenance and You shall be obligated to pay all fees owed through the effective date of any termination.
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.
10.1. You shall defend, indemnify and hold harmless Morpheus and its affiliates and their respective officers, directors, employees and agents from and against any and all third-party claims, demands, actions, suits, proceedings, investigations, damages, settlement amounts, losses, costs, expenses, and any and all other liabilities arising out of or relating to (i) any breach by You of any of the provisions of this Agreement or Your Prohibited Conduct; (ii) any acts, omissions, negligence or willful misconduct of You or Your personnel or agents, including any personal injury or property damage caused by You; (iii) alleging that Your or any of Your User’s use of the Software or Documentation in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; (iv) based upon a representation made by You to a third party; or (v) modifications to the Software not made by Morpheus or authorized in writing by Morpheus. You shall pay any and all liabilities, damages, awards, judgments, settlements, fees and costs, including reasonable attorneys’ fees and other costs incurred in the defense and/or settlement of any and all such claims.
10.2. Morpheus shall defend at its expense and hold harmless You, Your Affiliates and their respective officers, directors, agents and employees (collectively, the “Indemnified Parties”) against any third party claim, action or suit brought against You or any other Indemnified Party alleging that the Software, when used in accordance with this Agreement and the Documentation, infringes, misappropriates or violates any US patent, copyright, trademark, service mark, or other US intellectual property rights of a third party, including expenses that relate to actions for injunctive or declaratory relief. This Section 10.2 will not apply to the extent that the alleged infringement arises from: (i) Your or Your User’s violation of this Agreement; (ii) revisions to the Software made by a party other than Morpheus or Morpheus’ designee, or without Morpheus’ written consent; (iii) Your failure to incorporate Updates, Upgrades or modifications that would have avoided the alleged infringement; or (iv) use of the Software in combination with hardware, software, or technology not provided or authorized in writing by Morpheus: (A) that is specifically forbidden by the Documentation; or (B) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
10.3. Each Party’s indemnification obligations pursuant to this Section 10 shall be subject to the indemnified party (i) notifying the indemnifying party promptly in writing of such action (provided, that any failure to provide prompt notice shall not relieve the indemnifying party of the indemnifying party’s obligations hereunder except to the extent the indemnifying party is materially adversely prejudiced thereby), (ii) giving the indemnifying party exclusive control and authority over the defense or settlement of such action; provided, however that any settlement shall require the indemnified party’s prior written consent, and provided, further, that if the indemnifying party fail to promptly assume the defense of the claim the indemnified party may do so at the indemnifying party’s expense, and (iii) providing all reasonable assistance in the defense of the claim to the indemnifying party (provided that the indemnifying party reimburse the indemnified party for its out-of-pocket expenses incurred in providing such assistance).
10.4. If any third party obtains an injunction or other relief against Your use of any Product as a result of any claim described in above, or if Morpheus determines, in its reasonable discretion, that Your use of any Product may be subject to any such claim, Morpheus may, at its own expense and option, (i) procure for You the right to continue using such Product, (ii) replace such Product with a Product of substantially equal or greater functionality, or (ii) modify such Product to avoid a claim; provided, however, that after any such replacement or modification, the Product must continue to substantially conform, in all material respects, to its original functional requirements and Documentation. If Morpheus determines that neither alternative is reasonably available, Morpheus may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You.
11.1. 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 IP, and the Support and Maintenance and products thereof; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Transaction Documents, 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.
11.2. 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.
11.3. Compelled Disclosure. Notwithstanding anything to the contrary in this Section 11, 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.
12.1. 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.
12.2. 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.
12.3. This Agreement, all documents referenced herein, and the Transaction Document(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.
12.4. 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 in a Transaction Document 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 Transaction Document, the terms of the EULA shall prevail unless the specific section of the EULA is referenced and modified by the Transaction Document. 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/terms-and-conditions/. 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, if applicable, the Support and Maintenance. Your continued use of the Software after the effective date of any changes constitutes Your agreement to follow and be bound by such changes.
12.5. 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.
12.6. 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.
12.7. 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.
12.8. You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Sections 3.3, 3.4, 3.6, 3.10, and 11 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.
12.9. 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.
12.10. 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.
12.11. This Agreement and any Transaction Documents may be executed in counterparts (including .pdf signatures and electronic signatures), each of which shall be deemed to be an original. This Agreement and any Transaction Documents may also be entered into by electronic means. You may communicate Your acceptance of this Agreement and any Transaction Documents by any electronic means which indicates to Morpheus that You desire to enter into this Agreement, any Transaction Documents, and/or obtain the Software and/or Support and Maintenance, 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 any Transaction Documents and may also indicate its consent to this Agreement and any Transaction Documents by providing access to the Software and/or Support and Maintenance to You following Your acceptance of this Agreement and any Transaction Documents.
EXHIBIT A: Support and Maintenance Agreement
1.1. Subject to proper payment to Morpheus either directly or via authorized resellers and in compliance with the terms and conditions of this Support and Maintenance Agreement (“SSA”) Morpheus shall make commercially reasonable efforts to provide You with basic service packs for fixes of problems in the Software in accordance with the Support Schedule included herein and further detailed at https://www.support.morpheusdata.com. Morpheus shall have the right to modify the Support Schedule at any time upon notice to You.
1.2. Support and Maintenance shall be provided, directly over email at email@example.com or in the support portal, for which access will be granted when the Transaction Document is executed and accepted, during the days and hours outlined in the Support Schedule. Submission and process of trouble tickets and email queries shall be subject to guidelines set forth at https://support.morpheusdata.com. English shall be the language used for Morpheus support communication.
1.3. For the avoidance of doubt, Morpheus Support and Maintenance do not include custom integrations, enhancements or modules specific to You. Any engineering development and timelines for not generally available functionality of the Software is subject to separate pricing and written statements of work fully executed by both parties.
1.4. Morpheus shall have no obligation to provide You with Support and Maintenance with regard to: (i) the Software, or any part, portion or module thereof which has been modified, disassembled, decompiled, reverse compiled, reverse assembled, reverse engineered or otherwise altered or modified by any party whatsoever without Morpheus prior written consent; (ii) errors caused due to malfunction of the operating environment, or causes external to the Software; (iii) the use by You of a version of the Software that is older than the current or one previous long-term-support release of the Software and any of its derivatives; (iv) the correction of errors and/or corrupted or lost data as a result of Your negligence or inappropriate use of the Software or the use of the Software not in accordance with the documentation accompanying the Software; or (v) the correction of errors caused by the use of the Software in combination with any other software not originally intended to be used together.
Morpheus shall provide the support in respect to the Software set forth in this Section 2 of Exhibit A. Support will be provided for break/fix of generally available features as documented in the latest version of the Software long-term support build. Support covers the generally marketed features and functions of the Morpheus software and the ability of Morpheus to work with supported integrations. It does not cover the troubleshooting of 3rd party hardware and software, or system optimization as related to those integrations. For all logged support requests submitted via firstname.lastname@example.org, a priority will be set in accordance with the following table with severity level being determined by You acting reasonably. Incidents will be escalated upon reasonable request by You.
S1 – Urgent A critical business service is non-operational impacting multiple users or multiple sites; or severe functional error or degradation of service affecting production, demanding immediate attention. Business risk is high, with immediate financial, legal or reputational impact.
S2- High A failure or performance degradation that severely impairs operation of a critical business service although a workaround may exist; or application functionality is lost; or significant number of users or major site is affected. Business risk is high.
S3 – Medium A problem that causes moderate business impact. The impact is limited to a user or a small site with no widespread impact. Business risk is low.
S4 – Low Standard service request (e.g., User Guidance); or updating documentation; or feature request. Low or Minor localised impact.
The Support and Maintenance shall be subject to the following service levels and definitions:
Standard Support is available for all currently licensed customers. Standard support contact options include e-mail and web ticketing with 24-hour response time Monday to Friday 8 am to 5pm US/UK.
Premium Support is a separately negotiated service level and subject to proper payment to Morpheus either directly or via authorized resellers. Unless otherwise specified in Transaction Documents, Premium Support response time shall be (i) 4-hour response time Monday to Friday 8 am to 5pm US/UK, (ii) 12-hour response time Monday to Friday 5pm to 8am US/UK, and (iii) 24-hour response time Saturday, Sunday, and Holidays.
Response Time covers the time for Morpheus to acknowledge the incident report and to indicate the likely timescales for dealing with the incident.