THESEI TERMS OF SERVICE (“TERMS”) GOVERN CUSTOMER’S ACCESS TO AND USE OF MORPH.AI SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF MORPH.AI SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR (3) USING THE SERVICES, CUSTOMER AGREES TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
MORPH.AI’s competitors are prohibited from accessing the Services, except with MORPH.AI’s prior written consent.
These Terms were last updated on March 27, 2024. It is effective between Customer and MORPH.AI as of the date of Customer’s accepting these Terms (the “Effective Date”).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” means MORPH.AI services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information or other materials made available to Customer through the Services, as more fully described in the Documentation (other than any Program Code).
“Customer” means in the case of an individual accepting these Terms on his or her own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms.
“Customer Data” means electronic data and information submitted by or for Customer to the Services or otherwise transmitted and/or retrieved from the Customer Systems, excluding Content.
“Customer Systems” mean the applications, software, databases, and electronic systems owned, developed and/or operated by Customer in respect of which Customer is using the Services.
“Documentation” means the standard written and published materials regarding the Services issued by MORPH.AI.
“Free Services” means Services that MORPH.AI makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and MORPH.AI, including any addenda and supplements thereto.
"Program Code” means any code or other output created by or for Customer through the Services.
“Purchased Services” means Services that Customer purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by MORPH.AI, including associated MORPH.AI offline or mobile components, as described in the Documentation. “Services” exclude Content.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting these Terms on behalf of a company or other legal entity employees or authorized contractors of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business who are subject to a confidentiality agreement with Customer and are authorized by Customer to use the Services, for whom Customer has purchased a subscription (or in the case of any Services provided by MORPH.AI without charge, for whom Services have been provisioned), and to whom Customer (or, when applicable, MORPH.AI at Customer’s request) has supplied a user identification and password (for Services utilizing authentication).
2.1 Provision of Purchased Services. MORPH.AI will (a) make the Services and Content available to Customer pursuant to these Terms, and the applicable Order Forms and Documentation, (b) provide applicable MORPH.AI standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased pursuant to an Order Form or through an online purchasing portal, and (c) provide the Services in accordance with laws and government regulations applicable to MORPH.AI’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with these Terms, the Documentation and the applicable Order Form.
2.2 Protection of Customer Data. MORPH.AI will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Upon request by Customer made within 30 days after the effective date of termination or expiration of these Terms, MORPH.AI will make Customer Data available to Customer for export or download as provided in the Documentation. After such a 30-day period, MORPH.AI will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 MORPH.AI Personnel. MORPH.AI will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with MORPH.AI’s obligations under these Terms, except as otherwise specified in these Terms.
2.4 Beta Services. From time to time, MORPH.AI may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not at their sole discretion.
2.5 Free Trial. If Customer registers on MORPH.AI’s website for a free trial, MORPH.AI will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by MORPH.AI in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY MORPH.AI” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MORPH.AI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MORPH.AI’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, MORPH.AI AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) CONTENT AND/OR PROGRAM COSE PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THESE TERMS TO MORPH.AI AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD.
CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
2.6 Free Services. MORPH.AI may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of these Terms. In the event of a conflict between this section and any other portion of these Terms, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that MORPH.AI, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that MORPH.AI will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if MORPH.AI terminates Customer’s account, except as required by law MORPH.AI will provide Customer a reasonable opportunity to retrieve its Customer Data.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY MORPH.AI” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MORPH.AI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MORPH.AI’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, MORPH.AI AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) CONTENT AND/OR PROGRAM CODE PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THESE TERMS TO MORPH.AI AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES.
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal (“Subscription Term”), (b) subscriptions for Purchased Services may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MORPH.AI regarding future functionality or features.
3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Customer will pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3 Customer Responsibilities. Customer will (a) be responsible for its Users’ compliance with these Terms, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify MORPH.AI promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with these Terms, Documentation, Order Forms and applicable laws and government regulations. Any use of the Services in breach of the foregoing by Customer or Users that in MORPH.AI’s judgment threatens the security, integrity or availability of MORPH.AI’s services, may result in MORPH.AI’s immediate suspension of the Services, however MORPH.AI will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party intellectual property or privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of MORPH.AI intellectual property except as permitted under these Terms, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.5 Removal of Content and Program Code. If Customer receives notice, including from MORPH.AI, that Content or any Program Code may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the terms hereof, Customer will promptly do so. If Customer does not take required action, including deleting any Content or Program Code Customer may have downloaded or otherwise received from the Services, in accordance with the above, or if in MORPH.AI’s judgment continued violation is likely to reoccur, MORPH.AI may disable the applicable Content, Service and/or Program Code. If requested by MORPH.AI, Customer shall confirm deletion and discontinuance of use of such Content and/or Program Code in writing and MORPH.AI shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if MORPH.AI is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, MORPH.AI may discontinue Customer’s access to Content through the Services.
3.6 Customer Systems. Customer will provide MORPH.AI with access to and use of the Company Systems as necessary for the integration and interoperation thereof with the Services (“Integration”). MORPH.AI IS NOT RESPONSIBLE FOR ANY CUSTOMER SYSTEMS. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR AND ALL RISK ARISING FROM THE CONTENT, FUNCTIONALITY, OR AVAILABILITY OF ANY CUSTOMER SYSTEMS OR CUSTOMER DATA THEREIN, AND HEREBY WAIVES AND RELEASES MORPH.AI FROM ANY CLAIMS DIRECTLY OR INDIRECTLY RELATED THERETO.
3.7 Services Deployment. During the Subscription Term, Customer shall provide MORPH.AI with such assistance and information reasonably requested by MORPH.AI for the configuration and deployment of the Services, including, without limitation, as necessary for the performance of the Integration.
4.1 Fees. Customer will pay all fees specified in Order Forms or in the applicable online purchasing portal. Except as otherwise specified herein, in the applicable online purchasing portal or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
4.2 Invoicing and Payment. If Customer provides credit card information to MORPH.AI, Customer authorizes MORPH.AI to charge such credit card for all Purchased Services listed in the Order Form or the applicable online purchasing portal for the initial Subscription Term and any renewal Subscription Term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form or applicable online purchasing portal. If the Order Form or applicable online purchasing portal specifies that payment will be by a method other than a credit card, MORPH.AI will invoice Customer in advance in accordance with the billing frequency stated in the applicable Order Form or applicable online purchasing portal. Unless otherwise stated in the Order Form or applicable online purchasing portal, invoiced fees are due Net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to MORPH.AI and notifying MORPH.AI of any changes to such information.
4.3 Overdue Charges. If any invoiced amount is not received by MORPH.AI by the due date, then without limiting MORPH.AI’s rights or remedies, (a) those charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) MORPH.AI may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
4.4 Suspension of Service and Acceleration. If any charge owing by Customer under these Terms or any other agreement with MORPH.AI for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized MORPH.AI to charge to Customer’s credit card), MORPH.AI may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under these Terms so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for Customer’s paying by credit card or direct debit whose payment has been declined, MORPH.AI will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
4.5 Payment Disputes. MORPH.AI will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6 Taxes. MORPH.AI's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If MORPH.AI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, MORPH.AI will invoice Customer and Customer will pay that amount unless Customer provides MORPH.AI with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, MORPH.AI is solely responsible for taxes assessable against it based on its income, property and employees.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, MORPH.AI, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights and all enhancements, modifications and derivatives thereof. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Access to and Use of Services Content. Customer has the right to access and use applicable Services and Content subject to the terms of applicable Order Forms, these Terms and the Documentation. Subject to the terms hereof, during each applicable Subscription Term, MORPH.AI grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable (except as otherwise provided in assignment clause of these Terms) limited right for Customer’s Users to access and use the Services and Content solely for Customer’s internal business purposes.
5.3 License by Customer to MORPH.AI.
5.3.1 Customer grants MORPH.AI, its Affiliates and applicable contractors a worldwide, limited and non-exclusive license to host, copy, use, transmit, and display any Program Code and Customer Data, each as appropriate for MORPH.AI to provide and ensure proper operation of the Services and associated systems in accordance with these Terms.
5.3.2 Customer grants MORPH.AI, its Affiliates and applicable contractors a worldwide, limited and non-exclusive license to access and use the Customer Systems as appropriate for MORPH.AI to perform the Integration and provide and ensure proper operation of the Services and associated systems in accordance with these Terms.
5.3.3 Notwithstanding anything to the contrary herein, MORPH.AI may aggregate and de-identify Customer Data, Program Code and other data collected in connection with Customer’s access or use of the Services, including performance, analytics, and statistical data related to Customer's use of or access to the Services (“Anonymized Data”). MORPH.AI may use, disclose, and transfer Anonymized Data, provided that following such aggregation or de-identification, the Anonymized Data does not identify Customer or otherwise contain any individually identifiable information of Customer.
5.3.4 Subject to the limited licenses granted herein, MORPH.AI acquires no right, title or interest from Customer or its licensors under these Terms in or to any Customer Data, Customer Systems or Program Code.
5.4 License by Customer to Use Feedback. Customer grants to MORPH.AI and its Affiliates a worldwide, perpetual, irrevocable, fully paid-up, royalty-free, transferable and sublicensable license to use, adapt, modify, create derivative works of, display, perform, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of MORPH.AI’s or its Affiliates’ services.
6.1 Definition of Confidential Information. “Confidential Information” means all 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 Customer includes Customer Data. Confidential Information of MORPH.AI includes the Services and Content, and the terms and conditions of these Terms and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of, or reference to, any Confidential Information. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional MORPH.AI services.
6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose these Terms or any Order Form to any third party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, MORPH.AI may disclose these Terms and any applicable Order Form to a contractor to the extent necessary to perform MORPH.AI’s obligations under these Terms, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) 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 that Confidential Information.
7.1 Representations. Each party represents that it has validly entered into these Terms and has the legal power to do so.
7.2 MORPH.AI Warranties. MORPH.AI warrants that during an applicable Subscription Term (a) the Services will perform materially in accordance with the applicable Documentation, and (b) MORPH.AI (or its licensors) has all necessary rights in the Services to grant Customer the subscriptions to the Services as contemplated hereunder.
THE FOREGOING WARRANTIES DO NOT APPLY TO ANY DEFECTS, DAMAGES, FAILURES OR MALFUNCTIONS TO ALL OR ANY PART OF THE SERVICES RESULTING FROM: (I) USE OF THE SERVICES OTHER THAN AS SPECIFIED IN THE DOCUMENTATION; (II) ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE SERVICES PERFORMED BY ANYONE OTHER THAN MORPH.AI OR UPON MORPH.AI’S WRITTEN AUTHORIZATION; OR (III) ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE SERVICES WITH OTHER HARDWARE OR SOFTWARE. Customer's sole and exclusive remedy for breach of the warranties set forth in this Section 7.2 shall be that Morph.AI, at Morph.AI’s sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Services within reasonable period after receiving written notice of the breach of the warranty that describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by Customer for such Services (after deducting amounts paid for actual use of the Services by Customer).
7.3 Customer Warranties. Customer represents and warrants that (I) it will comply, at all times, with all applicable laws and regulations in connection with its use of the Services and performance hereunder; (iv) its (and its Users’) access to and collection, use, relocation, storage, disclosure, transfer, and disposition of Customer Data shall comply with all applicable laws and regulations; (v) no Customer Data or Customer Systems (a) contain any defamatory, libelous, pornographic or otherwise offensive material, or (b) contain any Malicious Code; (vi) it has the legal right and ability to provide the Customer Data and Customer Systems for the purposes set forth herein; (vii) MORPH.AI’s use of the Customer Data and Customer Systems in accordance with the terms hereof will not infringe any intellectual property or other rights of any third party; and (viii) it has obtained all licenses, consents or other permissions from appropriate third parties (including, without limitation, any third party providers of Customer Systems) as may be necessary enable Customer to grant the rights in the Customer Data and Customer Systems granted herein.
7.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
SERVICES PROVIDED FREE OF CHARGE, CONTENT, PROGRAM CODE AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
CUSTOMER’S USE OF PROGRAM CODE IS AT CUSTOMER’S FULL AND EXCLUSIVE RISK. CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR (I) EVALUATING THE PROGRAM CODE FOR ACCURACY AND APPROPRIATENESS FOR CUSTOMER’S USE AND APPLICATION, INCLUDING, WITHOUT LIMITATION, THROUGH HUMAN REVIEW, AS MAY BE APPROPRIATE; (II) ALL ACTS OR OMISSIONS THAT IT, OR OTHERS ON ITS BEHALF CONDUCT IN CONNECTION WITH ITS USE OF THE SERVICES AND PROGRAM CODE, AND FOR ALL CONSEQUENCES RESULTING FROM SUCH ACTIVITIES OR ACTIONS; AND (III) CARRYING OUT ALL ACTIONS AS IT MAY DEEM APPROPRIATE IN ITS INDEPENDENT PROFESSIONAL JUDGEMENT AS A RESULT OF ITS USE OF THE SERVICES AND PROGRAM CODE.
8.1 Indemnification by MORPH.AI. MORPH.AI will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by MORPH.AI in writing of, a Claim Against Customer, provided Customer (a) promptly gives MORPH.AI written notice of the Claim Against Customer, (b) gives MORPH.AI sole control of the defense and settlement of the Claim Against Customer (except that MORPH.AI may not settle any Claim Against Customer without Customer’s prior approval (which shall not be unreasonably withheld or delayed) unless it unconditionally releases Customer of all liability), and (c) gives MORPH.AI all reasonable assistance, at MORPH.AI’s expense. If MORPH.AI receives information about an infringement or misappropriation claim related to a Service, MORPH.AI may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, but perform the same functions in an equivalent manner, (ii) obtain a license for Customer’s continued use of that Service in accordance with these Terms, or (iii) terminate Customer’s subscriptions for that Service upon written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by MORPH.AI, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order Form for which there is no charge; (IV) a Claim against Customer arises from Customer’s breach of these Terms, the Documentation or applicable Order Forms; (V) a Claim against Customers arises from use of the Services other than as specified in the Documentation or the terms of these Terms; or (VI) any alterations, modifications or adaptations of the Services performed by anyone other than MORPH.AI.
THIS SECTION 8.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT IN CONNECTION WITH THE SERVICES.
8.2 Indemnification by Customer. Customer will defend MORPH.AI, its Affiliates and each of their respective directors, officers, employees, independent contractors (collectively, the “MORPH.AI Indemnified Parties”) against any claim, demand, suit or proceeding made or brought against MORPH.AI by a third party (a) alleging that any Customer Data and/or Customer Systems used with the Services infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of these Terms, the Documentation, or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, (iii) any Customer Systems; or (iv) breach by Customer of applicable law or any of its representations, warranties, covenants or obligations hereunder (each a “Claim Against MORPH.AI”), and will indemnify the MORPH.AI Indemnified Parties from any damages, attorney fees and costs resulting from or arising out of a Claim Against MORPH.AI, provided MORPH.AI (A) promptly gives Customer written notice of the Claim Against MORPH.AI (provided that any failure to promptly notify the Customer will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices Customer’s ability to defend such claim, (B) gives Customer sole control of the defense and settlement of the Claim Against MORPH.AI (except that Customer may not settle any Claim Against MORPH.AI unless it unconditionally releases MORPH.AI of all liability), and (C) gives Customer all reasonable assistance in connection therewith, at Customer’s expense.
9.1 Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM ANY WILFULL MISCONDUCT, FRAUD OR ANY BREACH OF SECTIONS 3.4 OR 6 AND/OR OBLIGATIONS ARISING UNDER SECTION 8.2, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR DAMAGES ARISING FROM ANY WILFULL MISCONDUCT, FRAUD OR ANY BREACH OF SECTIONS 3.4 OR 6 AND/OR OBLIGATIONS ARISING UNDER SECTION 8.2, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR DATA OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.1 Term of these Terms. These Terms commence on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions. The term of each Subscription Term shall be as specified in the applicable Order Form or in the applicable online purchasing portal. Except as otherwise specified in an Order Form or in the applicable online purchasing portal, subscriptions will automatically renew for additional one year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant Subscription Term. Except as expressly provided in the applicable Order Form or in the applicable online purchasing portal, renewal of promotional or one-time priced subscriptions will be at MORPH.AI’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
10.3 Termination. A party may terminate these Terms for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination. If these Terms are terminated by Customer in accordance with the “Termination” section above, MORPH.AI will refund Customer any prepaid fees covering the remainder of the term of any applicable Subscription Terms after the effective date of termination. If these Terms are terminated by MORPH.AI in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of any applicable Subscription Terms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to MORPH.AI for the period prior to the effective date of termination.
10.5 Surviving Provisions. The sections titled “Free Trial”, “Free Services,” “Customer Responsibilities”, “Usage Restrictions”, , “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Program Code,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of these Terms, and the section titled “Protection of Customer Data” will survive any termination or expiration of these Terms for so long as MORPH.AI retains possession of Customer Data.
11.1 Export Compliance. The Services, Content, other MORPH.AI technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customerrepresents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria) or in violation of any U.S. export law or regulation.
11.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
11.3 Entire Agreement and Order of Precedence. These Terms are the entire agreement between MORPH.AI and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form or applicable online purchasing portal, (2) these Terms, and (3) the Documentation. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of these Terms.
11.4 Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.5 Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.
11.6 Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.
11.7 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if Customer is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of MORPH.AI, then MORPH.AI may terminate these Terms upon written notice. In the event of such a termination, MORPH.AI will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Manner of Giving Notice. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
11.10 Governing Law and Jurisdiction. These Terms will be construed and enforced in accordance with the laws of the State of California, without reference to its rules of conflicts of laws. If any party will institute legal action to enforce or interpret the terms and conditions of these Terms or to collect any monies under it, venue for any such action will be Santa Clara County, California. Each party irrevocably consents to the jurisdiction of the courts located in Santa Clara County, California for all suits or actions arising out of these Terms. Each party hereto waives to the fullest extent possible, the defense of an inconvenient forum, and each agrees that a final judgment in any action will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THESE TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO.
11.11 Changes to these Terms. MORPH.AI may change these Terms, in whole or in part, at our own discretion and at any time, and will provide Customer with a notification thereof. Customer’s continued use of the Services after being informed of the changes to these Terms indicates Customer’s consent to such changes. If Customer does not accept the amended Terms, MORPH.AI may terminate Customer’s subscription to the Services.
