Morphon Technologies (Morphon) products are proprietary software applications. Your use of Morphon software is subject to the terms and conditions as outlined in the End User License Agreement.
The individual downloading and/or using this software represents and warrants that he or she has authority to enter into this agreement with Morphon on behalf of the Licensee, that he or she has read the terms and conditions set out herein and that the Licensee accepts and agrees to be bound by this agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product.
Accessible Code means source code contained within the Product that is unprotected and accessible under this agreement.
Morphon means Morphon Technoilogies BV, of Rotterdam, the Netherlands.
Authorised Machine means a single installation of a copy of the Product on a single physical computer.
Authorised Server Node means a single installation of a copy of the Product within a J2EE application server on a single physical server, which is either stand alone or within a connected cluster.
Authorised Use means the defined number of copies or instances of the Product that may be used by Licensee, and where applicable, limited to the number of Authorised Users, the number of Authorised Server Nodes and/or the number of Authorised Machines, as designated in the Quote/Invoice issued by Morphon.
Authorised User means a person or user account who is Licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee.
Commencement Date means the date that Morphon processes payment of the License or Maintenance Fees from Licensee.
Embedded Software means third party software licensed by Morphon from a Licensor and embedded in the Product.
License means the right to use the Product as defined by Authorised Use.
Licensee means the individual or entity (inclusive of subsidiaries) that has licensed the Product under the terms and conditions of this agreement.
Licensor means the licensor of the Embedded Software.
OEM Distribution means distribution of the Product as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premise application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.
Product means the Morphon product defined in the Quote/Invoice delivered by Morphon to Licensee, and which may contain Embedded Software, including any updates provided under the terms of this agreement in accordance with Clause 5.
Protected Code means source code contained within the Product that is protected against access by Morphon and is not accessible under this agreement.
Effective Date means the date on which this Agreement is entered into by purchasing or downloading a Morphon product.
A one-time fee paid by Licensee to Morphon, as designated by Product, in consideration for the Authorized Use of the Product. License fee is non-refundable and payable upon acceptance of the terms and conditions set out herein.
Subject to the terms of this agreement, including limitations defined by the License, Morphon grants to Licensee, and Licensee accepts from Morphon a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable License to use the Product as defined by Authorised Use.
Save as provided in clauses 13 and 14 below, the Product is provided on an "as is" and "as available" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that Morphon does not warranty that the Product will be error-free, complete, or correct. Morphon provides evaluation copies of the Product so that customers can assess the Product.
Upon receipt of Licensee Fee from Licensee, Morphon will (a) supply the Licensee with the Product via electronic download; and (b) provide Software Maintenance as defined in Section 6, for a period of twelve (12) months from the Commencement Date (the "Initial Maintenance Period").
Software Maintenance includes Morphon's provisioning to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support (and where applicable, phone support) to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product (excluding any form of on-site visits by Morphon personnel or contractors). The Initial Maintenance Period may be renewed for additional twelve (12) month periods ("Renewal Period") at the then-current rate for Software Maintenance. Subsequent Renewal Periods commence upon the expiration of the prior Software Maintenance regardless of when it is purchased.
The Licensee must at all times: (a) ensure that only an Authorised User may use the Product and only for Authorised Use in accordance with the terms and conditions of this agreement; (b) install all updates and enhancements provided by Morphon; (c) immediately advise Morphon, including in writing, if the Licensee becomes aware of any unauthorised use or distribution of the Product by any person; and (d) with respect to any use of the Product, include an attribution to Morphon to be included on all user interfaces in the following format: "Powered by Morphon", which must in every case include a hyperlink to http://www.morphon.com, and which must be in the same format as delivered in the Product.
Licensee may not, whether through deliberate or negligent act or act of omission: a) distribute or cause the distribution of the Product to any third party other than an Authorised User; or b) directly access or use any Embedded Software independently of the Product. Licensee is required to immediately report its knowledge of any violations of the foregoing to Morphon including in writing. Any such violations will entitle Morphon and/or its Licensors to, in addition to any other right or claim that Morphon or Embedded Software Licensor may have against Licensee, retroactively charge the Licensee, in addition to any other fees payable by the Licensee under this agreement, a fee calculated based on the number of prohibited distributions times the respective list prices that Morphon and/or the Embedded Software Licensor charges for the Product or Embedded Software respectively.
If Morphon reasonably suspects that the Product has been distributed to or obtained by any person or party without Morphon's prior written consent, or that Embedded Software is being accessed or used independently of the Product, Morphon has the right to request from the Licensee an unqualified certificate executed by the Licensee's auditor at the Licensee's cost for the purpose of verifying compliance with Authorised Use of the Product or Embedded Software.
Licensee must not, without the prior written consent of Morphon, which may be withheld and which may include certain conditions: (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, the Protected Code; (b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorised Person undertaking Authorised Use); (c) vary or amend the Authorised Use without Morphon's prior written approval; (d) publish, promote, broadcast, circulate or refer publicly to the Morphon name, trade name, trademark, service mark or logo, without the prior written consent of Morphon; (e) commit any act or omission the likely result of which is that Morphon's reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Morphon's interests. For avoidance of doubt, and subject to the terms and conditions contained herein, Licensee is permitted to modify the Accessible Code to develop bug fixes, customizations, or additional features, solely for the purpose of using the Product as defined in, and during the term of, this Agreement. Under no circumstance may Licensee distribute the Product via OEM Distribution without entering into a separate OEM Distribution Agreement with Morphon. Licensee shall also not copy or embed elements of the Accessible Code into other applications. In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Morphon. Licensee must not modify or alter those features to try to defeat the Product use rules that the license protection mechanisms are designed to enforce.
The term of this agreement begins on the Commencement Date and will continue in full force and effect until terminated in accordance with Clause 12.
This agreement may be terminated by either party if the other party commits a material breach. Either party will have thirty (30) days to remedy any material breaches. Immediately upon termination, any Accessible Code in possession, custody or control of Licensee must be destroyed and written confirmation of such destruction provided to Morphon. Clauses 1, 2, 4, 8 - 10, 14 - 15, 18, and 19 shall survive any termination of this agreement.
(a) Morphon will defend or settle, at its expense, any action brought against Licensee based upon the claim that the Product, if used within the scope of the License granted under this agreement, directly infringe a registered United States, European Union or Commonwealth patent or copyright; provided, however, that: Licensee shall notify Morphon promptly in writing of any such claim; (ii) Licensee shall not enter into any settlement or compromise any claim without Morphon's prior written consent; (iii) Morphon shall have sole control of any such action and settlement negotiations; and (iv) Licensee shall provide Morphon with information and assistance, at Morphon's request and expense, necessary to settle or defend such claim. Morphon agrees to pay all damages and costs finally awarded against Licensee attributable to such claim. The foregoing states the sole liability of Morphon and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Product or any other items provided by Morphon hereunder.
(b) If the Product becomes, or in the opinion of Morphon may become, the subject of a claim of infringement of any third party right, Morphon may, at its option and in its discretion: procure for Licensee the right to use the Product free of any liability; (ii) replace or modify the Product to make it non-infringing; or (iii) refund any license fees related to this Product paid by Licensee.
(c) Licensee will defend or settle, at its expense, any action brought against Morphon based upon the claim that any modifications to the Product or combination of the Product with products infringes or violates any third party right; provided, however, that: Morphon shall notify Licensee promptly in writing of any such claim; (ii) Morphon shall not enter into any settlement or compromise any such claim without Licensee's prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) Morphon shall provide Licensee with information and assistance, at Licensee's request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Morphon attributable to such claim.
(d) Notwithstanding Subsection (a) above, Morphon assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney's fees for, any claim based upon any modifications to any of the Product not approved by Morphon or combination of any of the Product with products not approved by Morphon.
Without limitation, Morphon will not be liable to any person for any loss, damage, cost, expense or other claim (including consequential, directly, indirect, special, punitive or other damages and loss of data or profits) in relation to the Product including, without limitation: (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in a Product); (b) any delay, interruption or other failure in the provision of the Product; or (c) any change in the form or content of the Product. In no event will Morphon's and Morphon's licensors' aggregate liability under any claims arising out of this agreement exceed the fees paid by licensee under this agreement. Except for each party's indemnification obligations or breach of Clauses 2, 8 or 10, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 4 are not allowed by applicable law, then the liability of Morphon, and the remedy of Licensee, shall be limited to: the re-supply of any defective Product; or (ii) the refund of any license fees paid by Licensee for such defective Product.
14.1 No Liability. The Morphon Software is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT MORPHON, ITS AFFILIATES, ITS LICENSORS AND THE MORPHON STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE MORPHON SOFTWARE, AS SET FORTH BELOW.
14.2 Limitation of Liability. IN NO EVENT SHALL MORPHON, ITS AFFILIATES, ITS LICENSORS OR THE MORPHON STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE MORPHON SOFTWARE, EVEN IF MORPHON, ITS AFFILIATES OR THE MORPHON STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE MORPHON SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH MORPHON SOFTWARE.
Warranties
14.4 No warranties. THE MORPHON SOFTWARE IS PROVIDED "AS IS", WITH NO WARRANTIES WHATSOEVER; MORPHON DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE MORPHON SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. MORPHON FURTHER DOES NOT REPRESENT OR WARRANT THAT THE MORPHON SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES MORPHON WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE MORPHON SOFTWARE.
The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of Morphon or the Licensors and Morphon is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product.
15.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the Morphon Software are and shall remain the exclusive property of Morphon and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in the Morphon Software, but may be accessed through use of the Morphon Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
15.2 With the exception of IP Rights of Morphon and/or its licensors in Morphon Software (including the Morphon API), You retain the intellectual property rights You may have in the applications, materials, products or processes You create which are based on or utilize the Morphon API. You hereby release and covenant not to hold liable Morphon or its Affiliates, or any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments or claims (a) pertaining to any intellectual property You develop that is based on, uses, or relates to the Morphon API; and (b) which otherwise may arise in connection with Your use of, reliance on, or reference to the Morphon API. As between You and Morphon, Morphon and its licensors retain the IP Rights in and to the Morphon Software and any derivative works thereto created by or for Morphon or its licensors.
(a) The Licensee grants Morphon the right to include the Licensee as a customer in Product promotional material.
(b) Licensee can deny Morphon this right by submitting a written request via email to sales@Morphon.com, requesting to be excluded from Product promotional material. Confirmation of such denial (via reply email) must be received prior to purchasing for this to be effective.
(c) Should the customer come to be or already be included in Product promotional material, as a result of any prior purchases where the Licensee did not request exclusion from Product promotional material, the Licensee can at any point in time, submit a written request via email to sales@Morphon.com to have Morphon remove the Licensee's name from Product promotional material. Upon receipt of such request, Morphon will remove any reference to the Licensee from such promotional material within 30 days and make no further reference to the Licensee.
Licensee may not amend this Agreement without prior written consent of Morphon. Licensee may assign this agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Morphon is notified in writing within ninety (90) days of the closure of such transaction. Morphon may assign its rights and obligation under this agreement without consent of Licensee.
Payments made by the Licensee under this agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Morphon the Licensee must pay to Morphon the amount of such taxes or duties in addition to the license fee under this agreement unless Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. Morphon will provide the Licensee with documents requested by Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit.
This agreement is governed by the laws of the Kingdom of the Netherlands, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Netherlands.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Morphon with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.