This Subscription Software Service License Agreement(this “Agreement”), effective as of __________________ __, 2020 (the “Effective Date”), is by and between The Morf Corporation, an Ohio corporation with offices located at 2800 Corporate Exchange Drive, Suite 210, Columbus, OH 43231 (“Morf”) and ____________________________________, a _______________________ with offices located at _______________________________________________________________(“Customer”). Morf and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
Morf desires to license the subscription services to use the application software found at the websites www.buildaform.com, www.projectpegasus.com or a successor website address, and its mobile applications to Customer for use by the Authorized Users; and
Customer desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) “Authorized User” means an employee orc on tractor of Customer who Customer permits to access and use the Software and Documentation pursuant to Customer’s license hereunder; provided that there must always be at least two (2) Authorized Users on an annual basis and any additional or temporary Users listed on Exhibit A.
(b) “Documentation” means Morf’s user manuals, handbooks, and installation guides relating to the Software provided by Morf to Customer either electronically or in hard copy form/end user documentation relating to the Software available at www.buildaform.com, www.projectpegasus.com or a successor website address or its mobile applications.
(c) “Software” means the product described in Exhibit A in object code format, including any Updates provided to Customer pursuant to this Agreement.
(d) “Third-Party Products” means any third-party products described in Exhibit A provided with or incorporated into the Software, if any, including any open source software available under the GNU Affero General Public License(AGPL), GNU General Public License (GPL), GNU Lesser General Public License(LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
(e) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Morf generally makes available free of charge to all its customers.
2. License.
(a) License Grant. Subject to and conditioned on Customer’s payment of Fees (as defined below) and compliance with all other terms and conditions of this Agreement, Morf hereby grants Customer a non-exclusive, non-sub licensable, and non-transferable (except in compliance with Section 13(g)) license during the Term to: (i) use the Software solely for Customer’s internal business purposes up to the number of Authorized Users set forth in Exhibit A; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software.
(b) Scope of Licensed Access and Use. Customer may install, use, and run one copy of the Software on Customer's network for use by up to the number of Authorized Users set forth on Exhibit A at a time.The Authorized Users may remotely access and use the Software from any other device in accordance with and subject to the terms of the Mobile Application End-User License Agreement (“EULA”), which can be viewed at https://www.projectpegasus.com/eula or a successor website address. Customer shall provide written notice to Morf of the name of each new Authorized User and they will be listed in Exhibit A, and of any individuals who are no longer Authorized Users, immediately on adding, removing, or replacing any AuthorizedUser. Each of the Authorized Users shall be licensed for the Term of the Agreement as provided on Exhibit A; provided, that, if Customer needs to add additional Authorized Users on a month to month basis during the Term, it may do so by notifying Morf and paying the additional fees associated with such individuals use. The total number of Authorized Users shall not exceed the number set forth under this Agreement, except as expressly agreed to in writing by theParties and subject to any appropriate adjustment of the license fees payable hereunder.
(c) Usage Restrictions. Customer shall not use the Software or Documentation of or any purposes beyond the scope of the license granted in this Agreement. Use of Morf’s website and mobile applications is subject to the Terms of Use set forth at https://morfcorp.com/privacy-policy/#terms-of-use (“Terms of Use”)or a successor website address, and incorporated herein by reference, and as amended by Morf from time to time, and Customer hereby agrees to be bound by such Terms of Use. The Terms of Use are subject to change at Morf’s discretion. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv)remove any proprietary notices from the Software or the Documentation; or (v)use the Software 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.
(d) Reservation of Rights. Morf reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software or Documentation.
(e) Delivery. The Software is a web-based software solution and upon execution of this Agreement by Morf and Customer, Morf shall deliver to Customer the user name and passwords for each Authorized User. Each user name and password is solely for use by the Authorized User, and Customer agrees that it shall not be shared or used by anyone other than the designated Authorized User hereunder.
(f) Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Customer acknowledges and agrees that: (i) Morf may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Morf’s rights, including all intellectual property rights, in and to the Software and Documentation; (ii) Morf may deny any individual access to and/or use of the Software or Documentation on written notice to Customer if Morf, in its sole discretion, believes that person’s use of the Software or Documentation would violate any provision of this Agreement, regardless of whether Customer designated that person as an Authorized User; and (iii) Morf and its representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information aboutCustomer’s computers, systems and software, that Morf may gather periodically to improve the performance of the Software. This information will be treated in accordance with Morf’s Privacy Policy as described in Section 13(h) below, as amended from time to time, which can be viewed at: www.buildaform.com, www.projectpegasus.com or a successor website address.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such accessor use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and Documentation and shall causeAuthorized Users to comply with such provisions.
(b) Third-Party Products. Morf may distribute certain Third-Party Products with the Software. For purposes of this Agreement, such Third-Party Products are subject to their own license terms and the applicable flow through provisions referred to in Exhibit A. If Customer does not agree to abide by the applicable terms for such Third-Party Product, then Customer should not install or use such Third-Party Products. The Software also contains certain open source software identified on Exhibit A. Customer understands and acknowledges that such open source software is not licensed to Customer pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Customer shall have only such rights and/or licenses, if any, to use the open source software as set forth in the licenses referenced in Exhibit A.
4. Support. Morf shall provide Customer with the support services described on Exhibit B for the period set forth thereon.
5. Fees and Payment.
(a) Fees. Customer shall pay Morf the fees (“Fees”) set forth in Exhibit A without offset or deduction. All Fees are billed as set forth on Exhibit A. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Morf may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Morf for all reasonable costs incurred by Morf 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) days following written notice thereof, Morf may prohibit access to the Software and Documentation until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to the Software and Documentation.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Morf’s income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of thisAgreement with respect to matters necessary for accurately determining amounts due hereunder. Morf may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Morf with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’ sunder payment equals or exceeds 2% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two years after the termination or expiration of this Agreement.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential”(collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on anon-confidential basis from a third party; or (d) independently developed by the receiving 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 who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may discloseConfidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s ConfidentialInformation, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. EachParty’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to anyConfidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such ConfidentialInformation remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) Intellectual Property Ownership. Customer acknowledges that, as between Customer and Morf, Morf owns all right, title, and interest, including all intellectual property rights, in and to theSoftware and Documentation and, with respect to Third-Party Products, the applicable third-party licensors own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Morf by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”),Morf is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Morf on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Morf is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Morf is not required to use any Feedback.
8. Service Level Agreement. The Service Level Agreement (“SLA”) for the Software and services is set forth on ExhibitC attached hereto. The SLA setsforth Customer’s sole remedies for availability or quality of the Software and services including any failure to meet any guarantees set forth in the SLA.
9. LimitedWarranty and Warranty Disclaimer.
(a) Subject to the limitations and conditions set forth in this Section 9 and in this Agreement and the limitations and remedies set forth Exhibits B and C, the EULA and the Terms of Use, Morf warrants that the Software will substantially conform in all material respects as described in the Documentation for a period of 12 months from the Effective Date (the “WarrantyPeriod”), when installed, operated and used in accordance with the Documentation. THE FOREGOING LIMITED WARRANTY DOES NOT APPLY, AND MORF STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) The limited warranty set forth in Section 9(a) applies only if Customer: (i) notifies Morf in writing of the warranty breach before the expiration of the Warranty Period;(ii) has promptly installed all maintenance releases to the Software that Morf previously made available to Customer; and (iii) as of the date of notification, is in compliance with all terms and conditions of this Agreement(including the payment of all license fees then due and owing).
(c) The warranties set forth in Section 9(a) do not apply and become null and void if Customer breaches any provision of this Agreement, or if Customer, any Authorized User, or any other person provided access to theSoftware by Customer or any Authorized User, whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Morf in writing; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Morf in writing.
(d) If, during the period specified in Section 9(a), any Software fails to comply with the warranty in Section 9(a), and such failure is not excluded from warranty pursuant to Section 9(b)or (c), Morf shall, subject to Customer’s promptly notifying Morf in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Customer provides Morf with all information Morf requests to resolve the reported failure, including sufficient information to enable Morf to recreate such failure; or (ii) refund the Fees paid for such Software, on a pro rata basis, subject to Customer’s ceasing all use of and, if requested by Morf, returning to Morf all copies of the Software and Documentation. If Morf repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from Customer’s receipt of the repair or replacement. The remedies set forth in this Section 9(d) are Customer’s sole remedies and Morf’s sole liability under the limited warranty set forth in Section 9(a).
(e) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SOFTWARE, DOCUMENTATION AND SERVICES ARE PROVIDED “AS IS” AND MORF HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MORF SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), MORF MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS, SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREEOF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
10. Indemnification.
(a) Morf Indemnification.
(i) Morf shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees)(“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US patents or copyrights, provided that Customer promptly notifies Morf in writing of the claim, cooperates with Morf, and allows Morf sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Morf, at Morf’s sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Morf determines that none of these alternatives is reasonably available, Morf may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Morf or authorized by Morf in writing; (B) modifications to the Software not made by Morf; (C) use of any version other than the most current version of the Software or Documentation delivered to Customer; or (D)Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Morf’s option, defend Morf from and against any Losses resulting from any Third-Party Claim based on Customer’s, or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by Morf or authorized by Morf in writing; (iv) modifications to the Software not made by Morf; or (v) use of any version other than the most current version of the Software or Documentation delivered to Customer, provided that Customer may not settle any Third-Party Claim against Morf unless such settlement completely and forever releases Morf from all liability with respect to such Third-Party Claim or unless Morf consents to such settlement, and further provided that Morf will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND MORF’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL,THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. Limitations of Liability. IN NO EVENT WILL MORF BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;(c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS,INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (d) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MORF WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ORSUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL MORF’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO MORF UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until twelve (12) months from such date (the “Initial Term”). This Agreement will automatically renew for additional successive twelve (12) month term(s) unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Morf may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Morf’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of thisAgreement, the license granted hereunder will also terminate, and, without limiting Customer’s obligations under Section 6, Customer shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the Morf that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 12(d) and Sections 1, 5, 6, 7, 8, 9(d), 10, 11, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
13. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b)second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Morf be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Morf’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Columbus and County of Franklin, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Morf. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
(h) Personal Data Obligations. In performing its obligations hereunder, Morf will comply with its Privacy Policy, which is available at https://www.projectpegasus.com/privacy-policy, or a successor website address, as amended by Morf from time to time, and is incorporated herein by reference. The Privacy Policy is subject to change at Morf’s discretion.
(i) Export Regulation. The Software maybe subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(j) US Government Rights. Each of the Documentation and the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or(b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
(k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c) as well, would cause the other Party irreparable harm for which monetary damages would not bean adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including are straining 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.
(l) Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
(m) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of thisAgreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
THE MORF CORPORATION
___________________________________
Authorized
Signature:___________________________
Authorized
Signature:___________________________
Name:______________________________
Name: _____________________________
Title:_______________________________
Title:_______________________________
Date:_______________________________
Date:______________________________
Exhibit a
This Exhibit A is effective upon the Effective Date of the Subscription Software Service License Agreement between the Parties (the “Agreement”), and documents the Software and services being purchased under the terms and conditions of the Agreement.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
1. DESCRIPTION OF SOFTWARE AND SERVICES:
Software, Third Party Product or Services
Term (Months)
Pegasus
12
2. FEES:
Fee Terms: [__] Monthly [__] Annually
Authorized User Type
Authorized User Quantity
Fee Per Authorized User
Total Fee Per Authorized User Type
Annual
0
$100.00
$0.00
Monthly
0
$125.00
$0.00
Total Fees Billed
$0.00
Notwithstanding the foregoing, the Fee for the first month of the subscription service for the Software will be prorated based on the Effective Date of the Agreement, and Customer will only be charged the prorated Fee for the initial month, if applicable. Thereafter, Customer acknowledges and agrees that all Fees charged on a monthly basis are incurred as of the first day of each month during the Term and any termination mid-month or after the 1st of the month, Customer is liable for the full amount owed for that month. If billing is on an annual basis then the bill for each 12 month period shall be due and payable within 30 days of the date of invoice, and if billing is monthly the invoice is due and payable within 30 days of the date of each monthly invoice.
3. BILLING/PAYMENT:
Start Date: ______________________
End Date: ______________________
4. CUSTOMER BILLING INFORMATION
BillingInformation Needed
Billing Department Name or Individual Contact:
Billing DepartmentPhone:
Billing DepartmentEmail:
Billing Department
Address:
EXHIBIT B
This Exhibit B is effective upon the Effective Date of the Subscription Software Service License Agreement between the Parties (the “Agreement”), and documents the Software and services being purchased under the terms and conditions of the Agreement.
Capitalized terms used but not defined in this Exhibit B have the meaning given to those terms in the Agreement.
1. Support and Maintenance Services
Support and Maintenance Services are included in the subscription in Exhibit A and entitles Customer to the following:
2. Response and Resolution Goals
· “business hours” 8am-5pm EST, Monday thru Friday, except holidays.
· “Fix” means the repair or replacement of Software component to remedy Problem (as defined below).
· “Problem” means a defect in Software as defined in Morf’s standard Software specification that significantly degrades such Software.
· “Respond” means acknowledgement of Problem received containing assigned support engineer name, date and time assigned, and severity assignment.
· “Workaround” means a change in the procedures followed or data supplied by Customer to avoid aProblem without substantially impairing Customer’s use of the Software.
Problem Severity
Response Goals
Resolution Goals
1. The production system is creating a significant impact to the Customer’s business function preventing that function from being executed.
Morf will Respond within 2 business hours.
Upon confirmation of receipt, a Morf support personnel begins continuous work on the Problem, and a customer resource must be available at any time to assist with problem determination. Customer Support will provide reasonable effort for Workaround or Fix within 24 hours, once the Problem is reproducible or once we have identified the Software defect. Morf may incorporate Fix in future release of software.
2. The production system or application is moderately affected. There is no workaround currently available or the workaround is cumbersome to use.
Morf will Respond within 2 business hours.
Customer Support will provide reasonable effort for Work around or Fix within 7 business days, once the Problem is reproducible. Morf may incorporate Fix in future release of Software.
3. The production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround.
Morf will Respond within 8 business hours.
Customer Support will provide reasonable effort for Workaround or Fix within 10 business days, once the Problem is reproducible. Morf may incorporate Fix in future release of Software.
4. Non-critical issues, general questions, enhancement requests, or the functionality does not match documented specifications.
Morf will Respond within 24 business hours.
Resolution of Problem may appear in future release of Software.
3. Accessing Support
Customer Support offers several ways to resolve any technical difficulties. In addition to online help in the Software, which canbe accessed by clicking the “My Account” tab when logged into the Software.
The support email address is support@morfcorp.com. The support phone number is 440-773-3400.
EXHIBIT C
This Exhibit C is effective upon theEffective Date of the Subscription Software Service License Agreement between the Parties (the “Agreement”), and documents the Software and services being purchased under the terms and conditions of the Agreement.
Capitalized terms used but notdefined in this Exhibit C have the meaning given to those terms in theAgreement.
All Services will achieveSystem Availability (as defined below) of at least 99% during each calendar year of the Term. “System Availability” means the number of minutes in a year that the key components of the Software are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (a)scheduled maintenance, (b) events of Force Majeure as set forth in Section13(c) of the Agreement), (c) malicious attacks on the system, (d) issues associated with the Customer’s computing devices, local area networks or internet service provider connections, or (e) inability to deliver services because of acts or omissions of Customer. Morf reserves the right to take the Software or services offline for scheduled maintenance for which Customer has been provided at least 24 hour advance notice (other than in the case of an emergency where no advance notice may be given) and Morf reserves the right to change its maintenance window upon prior notice to Customer.
If Morf fails to meet SystemAvailability in the year, upon written request by Customer within 30 days after the end of the year, Morf will issue a credit in Customer’s next invoice in an amount equal to 1% of the yearly fee for the affected Software or services foreach 1% loss of System Availability below stated SLA per Software service, up to a maximum of the Customer’s fee for the affected Software or services. If the yearly fee has been paid in advance, then at Customer’s election Morf shall provide a credit to Customer to be used for additional users or term extension.The remedy stated in this paragraph is Customer’s sole and exclusive remedy for interruption of Software services and Morf’s failure to meet System Availability.
