Morpheus Master Service Agreement
This Morpheus Enterprise Master Services Agreement (this “Master Agreement”) is a binding contract between MorpheusXR, Inc. (referred to as “Morpheus,” “we,” “our,” or “us” as applicable) and the company identified as the Client (referred to as “Client”, “you”, or “your” as applicable) in the Order Form (defined below) and is effective as of the effective date on the first Order Form signed by you and Morpheus (the “Effective Date”). The Order Form is governed by this Master Agreement; the Order Form, this Master Agreement, and any attachments thereto are referred to, collectively, as the “Agreement”. “Client”, “you” or “your” refer to your organization on whose behalf you have the authority to bind, delineated in the Order Form as either a “Corporate Partner,” “Experience Partner,” “Creative Partner,” “Service Partner,” ”Integration Partner,” or otherwise, that is using the Services (deﬁned below). This Agreement governs your subscription and usage of the Services.
BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE MASTER AGREEMENT AND THE ORDER FORM. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT USE THE SERVICE.
“Order Form” means the form used by you for entering into a subscription for the Services, detailing the specific terms, including without limitation and as applicable, the subscription tier, the authorized Places (defined below) and the quantity of Places, the type of Universe (defined below), the relevant features, the number of unique Users (defined below), authorized Toolkits (defined below), design features, Service Term (as indicated in the Order Form), professional services, and Fees, which Order Form references and is governed by this Master Agreement and is mutually executed by the parties hereto.
1. Services; Platform
Description of Platform; Services. The Morpheus platform (“Platform)” is a proprietary metaverse platform consisting of mobile, desktop and virtual reality applications, that provides your designated Users (defined below) with access to virtual Environments (defined below). within the Morpheus metaverse, the types of which may be further delineated in an Order Form (collectively, “Environments”), where Users can schedule, host and attend events, interact with other Users, participate in activities, interact with virtual objects and entities and view content, including audiovisual work, as well as purchase experiences, services and Artifacts from a Marketplace (defined below) of third party offerings. “Services” refers to a Client’s Authorized Users’ access to the Private Universe and Public Spaces on the Platform and other ancillary services as specified in the Order Form; including the ability for Users to upload, transmit, submit, contribute, share and/or create through the act of participation in a Space (collectively, “Generate”), User Content (defined below) through use of the Service. All content, data, and other information that Users Generate in the Private Universe or Public Spaces on or through the Services through their use thereof, including without limitation, any text, photographs, drawings, sound recordings (and the musical works embodied therein), discussions, communications, Users’ Personal Characteristics (defined below), professional content, and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and/or other copyrights laws, is “User Content” for purposes of this Agreement. “User Content” shall be deemed to include “Private User Content” and “Public User Content” as further described below. For the avoidance of doubt, User Content excludes any and all Morpheus Content and Feedback (defined in Section 2 below). “Personal Characteristics” means a User’s likeness, name, voice, image, persona, and any other personal attributes that you provide or make available to Morpheus in videos, audiovisual works, sound recordings and/or photographs, through use of an avatar (through Morpheus or a Third Party Service) that takes on the aforementioned characteristics of a particular User. “Authorized User” or “User” means a unique user of the Platform, each of which has a unique user ID and login credentials and is authorized by Client to access and/or use the Services, it being understood that the number of Users, corresponding Fees (defined below), time frame for access and other relevant details will be delineated in the Order Form. In order to enjoy the full benefits of the Service, Client shall have a master account (an “Account”) which includes the number of designated Authorized Users as delineated in the Order Form; each Authorized User must register for the Service by entering account information and creating a login id and password. You are responsible for ensuring that each User’s account registration information is accurate, current and complete and you are responsible and liable for compliance by each Authorized User with the terms and conditions of this Agreement.
Description of Environments and Clients. Subject to the terms and conditions of this Agreement, Client’s Authorized Users will have a license and access, through the use of a virtual reality headset, mobile or desktop computing device, to the type of Environment specified in the Order Form, with the corresponding functionality for that Environment as described in the Order Form.
The defined terms below are used in the Order Form and this Agreement to describe the applicable Environment and delineate the type of Morpheus client using the Environment:
“Artifact” means a purposeful, typically interactive, virtual item that a client can buy, sell, own and/or keep in such client’s space.
“Creative Partner” means a client that builds Spaces and/or Artifacts that can be used by other Morpheus clients in the Morpheus Metaverse.
“Enterprise Client” means a company or organization that intends to use the Morpheus metaverse for its employee, contractor, customer and/or prospective customer use.
“Experience(s)” means one or more events and/or activities in which an individual or group may participate to gather knowledge, opinions, and/or skills.
“Experience Partner” means a professional workshop facilitator (individual or organization) that creates and facilitates virtual experiences for Users.
“Integration Partner” means a client that integrates certain software functionality into the Morpheus Metaverse for Morpheus clients’ use, such as, an embeddable version of an electronic whiteboard platform.
“Marketplace” means an Environment within the Morpheus Metaverse where clients can offer and sell products and/or services (such as experiences and workshops), which Marketplace is accessible only upon the execution by both client and Morpheus of a separate addendum to this Agreement (the “Marketplace Addendum”), the terms and conditions of which apply to client’s (and its Users’) access to the Marketplace; the Marketplace Addendum may provide a client offering goods and services access to a private Universe, or such client may market its goods and services only through access to a Public Space.
“Metaverse” means all Morpheus Universes and Public Spaces, collectively.
“Partner” means a client of Morpheus that is either a Creative Partner, Experience Partner, Integration Partner or similar.
“Place” means a part of the Private Universe that comprises one or several contiguous Spaces and is used by Users independently, to meet other Users, or to set up and run a particular experience or event; a User can navigate within a Place from one contiguous Space to another. For example, a User can ‘walk’ from the lobby and into a courtyard, over a bridge, and into the meditation garden; such Spaces are, collectively, referred to as a “Place”.
“Public Space” means a Space in the Metaverse that Morpheus makes available to any and all Authorized Users of the Platform, including without limitation, your Users; it is not for the exclusive use of one client.
“Service Partner” means a client that support other Morpheus clients through the provision of certain services, such as, headset rentals.
“Space” means a virtual environment where people are embodied as avatars; one experience can be set up in many Spaces that are joined by portals.
“Toolkit” means groupings of Artifacts that are added to the Spaces Places, such as microphones, whiteboards and markers, furniture, video displays, art and décor, writing tools, and more; different types of clients will get different types of Toolkits as specified in the Order Form, to support the types of experiences they will host in their Environment.
“Universe” or “Private Universe” means a vast and potentially unlimited virtual space licensed to one of Morpheus’ clients, accessible only to Client and Client’s Authorized Users. Each Private Universe will include at least one Place. Within such Universe, Users may have access to multiple Places. For example, an engineering campus and a marketing campus are two possible Places within one Universe; similarly, an auditorium and mediation room are two possible Places.
Access to the Service. The Service will be accessible via a third party’s virtual reality headset, mobile phone, tablet, or other wireless device as well as via desktop computer (collectively, “Access Device Provider”), on which installation of a Morpheus application is required in order to access the Morpheus Services. Your internet and mobile carrier’s normal data and other rates and fees will apply to your use of the services of such Access Device Provider. In addition, downloading, installing, or using certain services of Access Device Provider may be prohibited or restricted by your carrier. Therefore, you are solely responsible for checking with your carrier to determine if the services provided by Access Device Provider are available for your mobile device(s), what restrictions, if any, may be applicable to your use of such services, and how much they will cost you. Nevertheless, all use of Access Device Provider’s services must be in accordance with this Agreement.
2. Proprietary Rights
Morpheus’s Proprietary Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Client’s rights under this Agreement, Morpheus and its licensors retain all intellectual property and other rights in the Platform, and in and to the Services, the Morpheus Content (defined below) and any deliverables and related Morpheus technology, templates, documentation, help files, tutorials, formats, dashboards and designs (eg. design of template Spaces and Places; Artifacts), including any modifications or improvements to these items made by Morpheus, and to the Usage Data (defined below) (collectively, the “Morpheus Materials”). If Client provides Morpheus with feedback or suggestions regarding the Services or other Morpheus offerings, Morpheus may use the feedback or suggestions without restriction or obligation. Morpheus may generate technical logs, data and learnings about Client’s use of the Services (“Usage Data”) and use such information to operate, analyze, improve and support the Platform and/or the Services and for other lawful purposes. Except as required by law, Morpheus will not disclose Usage Data externally, including in benchmarks or reports except in the aggregate and on an anonymized basis. Except for User Content and Third-Party Services, the content that Morpheus provides to Users on or through the Service, including, without limitation, any text, audiovisual works (including live streams and Recordings), sound recordings, graphics, photos, software, and interactive features, Artifacts in the Toolkit, design templates (such as for a Place), documentation (such as best practices documentation), Morpheus-owned experiences (such as scavenger hunts, diversity and inclusivity training, and guided meditation), and/or any other future and unforeseen usage not listed here or know of to date, is protected by copyright or other intellectual property rights and owned by Morpheus (collectively, the “Morpheus Content”).
Client’s Proprietary Rights. Except for Morpheus’ rights under this Agreement, and subject to Section 4 hereof, you retain all intellectual property and other rights in your intellectual property.
Feedback. While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending Morpheus or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Morpheus, you agree that:
- Morpheus has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Morpheus is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Morpheus perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
3. License; Reservation of Rights
Subject to your complete and ongoing compliance with this Agreement (including without limitation payment of applicable fees), during the term of this Agreement, Morpheus hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, and worldwide right and license to access and use the Service solely for your business purposes, in strict compliance with the provisions of this Agreement. Access to the Services is limited to those of your employees and contractors who are acting for your sole benefit, and who you designate as “Authorized Users” (also referred to herein as “Users”). Morpheus provides access to the Service to each Authorized User, for use by User in conjunction with their professional employment. You are fully responsible and liable for compliance by all Users with the terms and conditions of this Agreement.
The Services may include certain open source components owned by a third party that are subject to open source licenses (“Open Source Software”). Some of the Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of such Open Source Software is licensed under the applicable license terms which accompany such Open Source Software. Nothing in this Agreement limits your rights under, nor grants you rights that supersede, the terms and conditions of any applicable license terms for the Open Source Software.
Morpheus hereby reserves all rights not expressly granted to you in this Section 3. Accordingly, nothing in this Agreement or with respect to the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service, Morpheus Content or any Morpheus Materials or Trademarks (defined below) located or displayed therein.
4. User Content
Client grants to Morpheus a worldwide, non-exclusive, transferable, royalty-free license during the term of this Agreement, to publicly perform, publicly display, copy, reproduce, modify, and otherwise Use any User Content in any media formats to the extent necessary (i) to provide Client with access to and use of the Services, (ii) to detect, prevent and investigate security incidents or unlawful uses of the Services, or as otherwise permitted hereunder.
Recordings. Morpheus may, without your written consent, record events that take place in meeting or event spaces on the Service that are Public Spaces (“Recordings”), and which may include Private User Content or Public User Content.
Public User Content. You hereby grant Morpheus an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the Metaverse to reproduce (including in timed relation to visual images), distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all User Content you Generate on, to or within Public Spaces (such content, “Public User Content”) by any means and through any media and formats now known or hereafter developed (and, for clarity and without limiting the preceding terms in this Section 4 with respect to personal Recordings, as embodied in Recordings), for the purposes of (i) advertising, marketing, and promoting Morpheus and the Service; (ii) displaying and sharing Public User Content to/with other Users or prospective users of the Service; (iii) data analytics for purposes of improving the Services; and (iv) providing the Service as authorized by this Agreement and conducting Morpheus’ business. You hereby represent and warrant that you shall not Generate any Public User Content on or through use of the Service that you consider to be confidential or proprietary and that you have the right to Use in the Public Space any User Content that you Generate in such Public Space. Any Public User Content Generated by you on or through use of the Service will be considered non-confidential and non-proprietary, and treated as such by Morpheus, and may be used by Morpheus in accordance with this Agreement without notice to you and without any liability to Morpheus. For the avoidance of doubt, and by way of example and not limitation, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting Morpheus the right to Use Public User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (for example, a record label), a musical work copyright owner (for example, a music publisher), a performing rights organization (for example, ASCAP, BMI, SESAC, etc.) (a “Performing Rights Organization” or “PRO”), a sound recording PRO (for example, SoundExchange), any unions or guilds, and engineers, producers, or other royalty participants involved in the creation of any Public User Content. Morpheus may at its discretion remove, without any liability to you, any Public User Content Generated on or through the Service by a User.
Private User Content. Morpheus may not use any User Content Generated within your Private Universe (“Private User Content”), without your prior written authorization, except (i) as necessary to provide the Services, (ii) to compile statistics relating to such content, on an aggregated and anonymized basis, for internal use and to provide you with analytics (such as engagement metrics), or (iii) as otherwise permitted hereunder. Subject to any third-party rights in or to any Private User Content or part thereof, you retain ownership of any rights you may have in your Private User Content submitted to the Service; Generating your Private User Content through use of the Services does not transfer ownership of such rights to Morpheus.
Rights to the Content You Generate. You must not Generate any User Content to or through the Service, whether on the Private Universe or Public Space if you are not the copyright owner of, or are not fully authorized to grant rights in all of the elements of, that User Content. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recording, then you must not Generate such sound recording through use of the Service until you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Morpheus under this Agreement. You represent and warrant that, with respect to the Private Universe and Public Spaces: (i) you own the User Content Generated by you on or through use of the Service or otherwise have the right to grant the license set forth in this Agreement; (ii) the Generation and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Generation of your User Content on or through use of the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Generation of your User Content on or through use of the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of the Generation of your User Content on or through use of the Service. Morpheus may require you to provide sufficient evidence of having all necessary rights, licenses, authorizations, permissions, and clearances for any of your User Content that you Generate on or through use of the Service, and if you fail to provide such evidence within a reasonable period of time (as determined by Morpheus in its sole discretion), then Morpheus may remove some or all of your User Content from the Service and/or terminate your Account (including that of each of your Users), without any liability to you. You are solely responsible for keeping copies of such evidence.
Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this Agreement to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this Agreement or have such music publisher enter into this Agreement with us. Just because you authored a musical work (for example, wrote a song) does not mean you have the right to grant us the licenses in this Agreement.
Waiver of Rights to Public User Content. To the fullest extent permitted by law, by Generating Public User Content on or through use of the Service, you hereby (i) waive all rights to prior inspection or approval of any marketing or promotional materials related to such Public User Content; (ii) waive all rights of privacy, publicity, or any other rights of a similar nature in connection with your Public User Content, or any portion thereof (including, without limitation, with respect to any avatar you may use on the Service and any applicable live streams and/or Recordings which may include your Personal Characteristics (defined below)); and (iii) release Morpheus from all claims in connection with any use of your Personal Characteristics by Morpheus. To the extent any moral rights are not transferable or assignable, you further hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any Public User Content you Generate on or through use of the Service.
No Liability. For the avoidance of doubt, Morpheus will not be liable for any unauthorized use of User Content by any User.
Objectionable Content. You are not permitted to and agree not to Generate any User Content to or through the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar; or (ii) bigotry, discrimination, hatred, racism, or inciting violence, or (iii) content that violates Morpheus’ Code of Conduct attached as Exhibit __ hereto (the “Code of Conduct”) and/or the terms of this Agreement, including for example, copyright or trademark violations or other intellectual property misappropriations, as Morpheus may determine (with respect to each of clauses (i), (ii) and (iii)) in its sole discretion (collectively, “Objectionable Content”). Generating any Objectionable Content may subject you to third-party claims and none of the rights granted to you in this Agreement may be raised as a defense against any third-party claims arising from you Generating Objectionable Content. If you encounter any Objectionable Content on the Service, then please inform us by email at email@example.com. You acknowledge and agree that Morpheus provides you the right to report Objectionable Content as a courtesy, and Morpheus has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. Morpheus may terminate, suspend, warn, or take other appropriate actions against Users for Generating Objectionable Content on or through the Service, including, but not limited to, the removal of all Objectionable Content Generated on or through the Service by a User.
Restricted Data. Client shall ensure that User Content does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or medical information governed by state healthcare privacy laws, (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm-Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords, login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the European Union’s General Data Protection Regulation (2016/679) (“GDPR”) or (ix) Personal Information of children under sixteen (16) years of age regulated by COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws. Morpheus shall have no liability with respect to such information, notwithstanding anything in the Agreement to the contrary.
5. Limitations of Use
Without limiting any other terms of this Agreement, when using the Service, you agree that neither you nor any of the Authorized Users shall (and shall not attempt to), and you shall require your Authorized Users not to (and not to attempt to):
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- sell, license (or sub-license), lease, assign, transfer, pledge or share any of its rights under this Agreement with/to any other party, entity or person;
- transfer, distribute, copy all or any part of the Service and/or any Morpheus Materials;
- decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service or any Morpheus Materials ;
- delete or alter any material Morpheus or any other person or entity Generates on the Service;
- use or exploit any Trademarks, Morpheus Content, or User Content in any manner that is not expressly authorized by this Agreement;
- access, tamper with, or use non-public areas of the Service to which you have not been authorized by Morpheus to use, Morpheus’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Morpheus’s providers;
- provide any false personal information to Morpheus;
- create a false identity or impersonate another person or entity in any way;
- create a new Account with Morpheus, without Morpheus’s express written consent, if Morpheus has previously disabled an Account of yours;
- solicit personal information (including, but not limited to, photographs) from other Users of the Service;
- restrict, discourage, or inhibit any person from using the Service, disclose personal information about any third party without the consent of that person;
- gain unauthorized access to the Service, to other Clients’ Accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
- Generate or otherwise transmit any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
- Use, encourage, promote, facilitate or instruct others to use the Platform for any illegal, harmful or offensive use or in violation of Morpheus’ Code of Conduct;
- Promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law or may reasonably be perceived to be unlawful, inflammatory, offensive or otherwise inconsistent with the spirit of Morpheus’ Services, brand or image;
- assist or permit any person in engaging in any of the activities described above.
6. Your Account
Account Security. You are responsible for the security of your Account(s), and your Users’ use of such Account(s), and are fully responsible for all activities that occur through the use of those credentials. You shall use best efforts to prevent unauthorized access to or use of the Services through your Account or otherwise. You agree to notify Morpheus immediately at Morpheus.com/support if you suspect or know of any unauthorized use of log-in credentials or any other breach of security with respect to your Account(s) or otherwise. Morpheus will not be liable for any loss or damage arising from unauthorized use of Account credentials prior to you notifying Morpheus of such unauthorized use or loss of Account credentials. In connection with the foregoing, you will provide reasonable cooperation regarding information requests from law enforcement, regulators or telecommunications providers
Accuracy of Information. When creating an Account(s), you will provide true, accurate, current, and complete information. You will update the information about yourself (and your Users) promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account(s) if activities occur on your Account(s), which, in our sole discretion, would or might constitute a violation of this Agreement, cause damage to or impair the Service, infringe or violate any third-party rights, or violate any laws or regulations. If messages sent to the e-mail address you (or your Users) provide are returned as undeliverable, then Morpheus may terminate your Account(s) immediately without notice to you and without any liability to you or any third party.
The Morpheus trademarks, service marks, and logos (collectively, the “Morpheus Trademarks”) used and displayed on the Service are Morpheus’s registered and/or unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (collectively with the Morpheus Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Morpheus or the applicable third party, Morpheus’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Morpheus’s prior express written consent. All goodwill generated from the use of any Morpheus Trademark will inure solely to Morpheus’s benefit.
8. Suspension of Service
Morpheus may suspend your access to the Services if you breach Section 5 (Limitations on Use), Section 6 (Your Account), any of your obligations in Section 5 (User Content), or Section 9 (Representations and Warranties), if your account is 30 days or more overdue or if your actions risk harm to other Morpheus customers or the security, availability or integrity of the Services. Where practicable, Morpheus will use reasonable efforts to provide you with prior notice of the suspension. Once you resolve the issue requiring suspension, Morpheus will promptly restore your access to the Service in accordance with this Agreement. Morpheus reserves the right, but is not obligated, to monitor and audit your use of the Services for any reason or no reason, without notice, to ensure your compliance with this Agreement.
9. Representations and Warranties
Client represents and warrants to Morpheus that: (i) it has, and will have at all times, all right, title and interest necessary to grant to Morpheus any and all licenses granted by Client or other third parties hereunder for the purposes contemplated by this Agreement, including without limitation, for the use of the User Content; (ii) it has all necessary rights, permits and licenses under all laws, rules and regulations to conduct its business, and promote, offer for sale, and sell all products or services offered or sold in the Place(s), including any part of the Universe or Public Space, as the case may be; (iii) any and all User Content complies, and will comply at all times during the term of this Agreement, with all applicable laws, rules and regulations, and this Agreement and does not and will not during the term of this Agreement infringe the rights of any third party, including any intellectual property rights; and (iv) Client shall, and shall ascertain that its Authorized Users, comply with all applicable laws, rules and regulations, this Agreement and Morpheus’ Code of Conduct when using the Services.
Morpheus represents and warrants to Client that: (i) it has, and will have at all times, all right, title and interest necessary to grant to Client any and all licenses granted by Morpheus hereunder for the purposes contemplated by this Agreement; (ii) it has, to its knowledge, all necessary rights, permits and licenses under all applicable laws, rules and regulations to operate the Platform in the manner in which it is meant to be operated at any applicable time; and (iii) the Platform (except with respect to User Content which shall be Client’s responsibility) shall, to Morpheus’ knowledge, not infringe on the rights, including without limitation, intellectual property rights, of any third party.
During the term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“) information about its business affairs, products/services, 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, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party or any of its officers, directors, employees, agents or representatives (collectively, “Representatives”), (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information, (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
The Receiving Party shall, and shall cause its Representatives to: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
The provisions of this Section shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years.
11. Privacy; Data Security
Morpheus shall maintain necessary, industry-standard security policies and programs effective in preventing unauthorized use of, or access to, the Platform.
YOUR ACCESS TO AND USE OF THE SERVICES OR ANY CONTENT THEREON ARE AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, THE PLATFORM, MORPHEUS CONTENT AVAILABLE THEREON, AND ANY MORPHEUS MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT ANY WARRANTIES OF ANY KIND, AND MORPHEUS HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MORPHEUS DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE, THE PLATFORM, MORPHEUS CONTENT OR ANY MORPHEUS MATERIALS, OR ANY OTHER CONTENT AVAILABLE ON THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS OR TIMELINESS THEREOF). AS A RESULT, MORPHEUS WILL NOT BE SUBJECT TO ANY LIABILITY FOR (i) THE APPROPRIATENESS, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY ELEMENT OF THE SERVICE, ANY MORPHEUS CONTENT, ANY MORPHEUS MATERIALS, ANY OTHER CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY USER ON OR THROUGH THE SERVICE; (ii) ANY ERRORS, MISTAKES, OR OMISSIONS IN SUCH MORPHEUS CONTENT, MORPHEUS MATERIALS OR OTHER CONTENT OR INFORMATION; OR (iii) ANY DELAYS OR INTERRUPTIONS TO THE SERVICE. YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SERVICE AND ANY CONTENT AVAILABLE THEREON. YOU ARE RESPONSIBLE FOR (I) EVALUATING THE SERVICE AND MAKING YOUR OWN DETERMINATION ABOUT WHETHER YOU ARE ABLE TO USE THE SERVICES OR ANY CONTENT IN COMPLIANCE WITH LAWS, AND (II) TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF OR RELIANCE UPON THE SERVICE AND ANY CONTENT AVAILABLE THEREON.
WITHOUT LIMITING THE FOREGOING, MORPHEUS DOES NOT WARRANT THAT THE SERVICE, ANY MORPHEUS MATERIALS OR ANY OTHER CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY MORPHEUS MATERIALS THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN MORPHEUS WILL NOT BE RESPONSIBLE FOR THOSE COSTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.
13. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (I) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR PARTNERS NOR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS OR EMPLOYEES, BE RESPONSIBLE OR LIABLE TO SUCH OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, AND (II) NEITHER PARTY’S LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE FEES DUE TO MORPHEUS FROM CLIENT UNDER THE AGREEMENT FOR ANY SIX (6) MONTH PERIOD PRECEDING THE DATE THE LIABILITY AROSE.
Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE, ANY MORPHEUS MATERIALS OR ANY CONTENT THEREON (INCLUDING, WITHOUT LIMITATION, AWITH NY CARRIER OR OTHER USER), IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY RELEASE MORPHEUS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Indemnification by Morpheus. Morpheus will defend Client, its officers, directors, employees and affiliates (“Client Indemnified Parties”) from and against any third party claim made against a Client Indemnified Party to the extent alleging that the Platform or the Services, when used by Client as authorized in this Agreement, infringes such third party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Client Indemnified Parties against any damages or costs awarded against Client (including reasonable attorneys’ fees) or agreed in settlement by Morpheus resulting from the claim.
Indemnification by Client. Client will defend Morpheus, its officers, directors, employees, and affiliates (“Morpheus Indemnified Parties”) from and against any third-party claim, demand, suit, or proceeding made or brought against a Morpheus Indemnified Party to the extent resulting from User Content, or Client’s breach or alleged breach of Section 4 (User Content), Section 5 (Limitations of Use), Section 6 (Your Account), Section 9 (Representations and Warranties), Section 15 (Third Party Terms; External Sites), or Client’s access to or use of the Services, Morpheus Materials, any content or any activities other than in accordance with this Agreement; and will indemnify and hold harmless Morpheus Indemnified Parties against any damages or costs awarded against Morpheus Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by Client resulting from the claim.
Procedures. The indemnifying party’s obligations in this Section 14 are subject to receiving (i) prompt written notice of the claim, (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim and (iii) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action. The indemnified party may participate in a claim with its own counsel at its own expense.
Mitigations and Exceptions. In response to an actual or potential infringement claim, if required by settlement or injunction or as Morpheus determines necessary to avoid material liability, Morpheus may at its option: (i) procure rights for Client’s continued use of the Platform or the Services, (ii) replace or modify the allegedly infringing portion of the Platform or the Services to avoid infringement without reducing the Platform’s or the Services’ overall functionality,rr or (iii) terminate the affected Order Form and refund to Client any pre-paid, unused fees for the terminated portion of the Service Term. Morpheus’ obligations in this Section 14 do not apply (1) to infringement resulting from Client’s modification of the Platform or the Services or use of the Platform in combination with items not provided by Morpheus (including third-party platforms), (2) to infringement resulting from Services other than the most recent release, (3) to unauthorized use of the Platform or the Services, or (4) if Client settles or makes any admissions about a claim without Morpheus’ prior written consent. This Section 14 sets out Client’s exclusive remedy and Morpheus’ entire liability regarding infringement of third-party intellectual property rights.
15. Third Party Terms; External Sites
You acknowledge that (i) the use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, such terms of service and fees imposed by your mobile network operator or internet service provider, including fees charged for data usage and overage, which are your sole responsibility; and (ii) at your election, the Services can be used to access certain user-facing software, services, and content provided by third parties, such as facilitated workshops, scavenger hunts or guided meditation provided by an Experience Partner, or office designs or avatars developed and licensed by a Creative Partner (collectively, (i) and (ii), “Third-Party Services”). Your use of Third-Party Services is at your own risk. Use of Third-Party Services may be subject to additional terms, conditions, fees, and policies imposed by the third party (together, Third-Party Terms”). When interacting with any Third-Party Services, you are responsible for complying with any applicable Third-Party Terms, and we recommend that you review any applicable Third-Party Terms before using Third-Party Services. To the extent permitted by applicable laws, we assume no obligations or liability with respect to any Third-Party Services and the applicable Third-Party Terms, and we make no representations or warranties with respect to them.
External Sites. The Service may contain links to or the ability to share information with other websites or other online properties that are not owned or controlled by Morpheus (collectively, “External Sites”). Morpheus does not endorse any content on such External Sites. The content of such External Sites is not developed or provided by Morpheus. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Morpheus is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.
16. Term and Termination
This Agreement commences on the Effective Date and will remain in effect for so long as Client has an applicable Order Form in effect, unless otherwise terminated in accordance with the provisions herein.
Either Morpheus or Client may terminate this Agreement and, if applicable, any Order Form, if (i) the other party is in material breach of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice, and (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
In the event of termination of this Agreement by either party, all rights granted hereunder shall immediately expire and any and all use by Client and/or its Users of the Services or the Platform, and any part thereof, shall immediately cease and expire. The following Sections shall survive termination or expiration of this Agreement: Proprietary Rights (Section 2); User Content (Section 4); Representations and Warranties (Section 9); Confidentiality (Section 10); Privacy/Data Security (Section 11); Disclaimers (Section 12); Limitation of Liability (Section 13); Indemnification (Section 14); Third Party Terms (Section 15); Term and Termination (Section 16); Fees and Payment Terms (Section 17); Notices, Governing Law and Jurisdiction (Section 18); General (Section 19).
Upon termination of this Agreement, Client shall promptly pay Morpheus any and all applicable Fees due up to and including the date of termination.
Except in the event of termination caused by an uncured, material breach by Morpheus, Fees paid are non-refundable.
Except as otherwise specified in an Order Form, each Order Form will auto-renew for one-year periods. Either party may inform the other party at least thirty (30) days prior to the then-current initial Term or renewal term of an Order Form that it does not wish to renew the Term. To provide termination notice, you must provide written notification to Morpheus at support@Morpheusxr.com. If you wish to delete any of your Public or Private User Content from the Service, then you may do so using the permitted functionalities of the Service, but the removal or deletion of such Public or Private User Content will not terminate this Agreement. Morpheus reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this Agreement or violate the rights of any third party on or through the Service. Morpheus reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
17. Fees and Payment Terms
Client shall pay Morpheus the fees specified in the Order Form (collectively, “Fees”), together with any additional fees, costs and expenses as set forth in this Agreement. Unless otherwise set forth herein or in the Order Form, all fees, costs and expenses owed by Client to Morpheus are due within thirty (30) days of Client’s receipt of Morpheus’ invoice. All payments will be made in U.S. dollars. Late payments hereunder will accrue interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. In the event of any late payment, and upon written notice, Morpheus may suspend provision of the Service until all fees, costs and expenses owed by Client are paid.
Each party shall be responsible for the payment of applicable taxes now in force or enacted in the future which are applicable to the provision or receipt of services. The amounts payable under this Agreement shall not be reduced as a result of any such taxes.
In the event you are a Morpheus client if a User entering your Place or Universe becomes a customer of Morpheus by entering into a definitive Master Services Agreement with Morpheus, you may receive a referral fee from Morpheus in accordance with the applicable referral fee structure set forth in the Order Form.
18. Notices, Governing Law and Jurisdiction
The execution, validity, interpretation and performance of and resolution of disputes under this Agreement shall be protected and governed by the laws of the State of Delaware. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will first attempt to negotiate any such differences themselves in good faith. All lawsuits and other proceedings arising out of or relating to this Agreement shall be brought exclusively in the applicable state or federal courts in the State of California, and Morpheus consents to the jurisdiction of such courts and waives any jurisdictional or venue defenses otherwise available.
Morpheus makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
Changes to Agreement. In the event of a material change in regulation or legislation, or requirements, directly or indirectly, from telecommunications providers, Morpheus may unilaterally change or add to the terms of this Agreement at any time solely to the extent necessitated by such material change in regulation or legislation, or requirements, directly or indirectly, from telecommunications providers. In event of such a change, Morpheus shall notify You via email. If Morpheus unilaterally changes a material provision of this Agreement in a manner that You can show has a negative effect on Your business or use of the Services or Platform, You will be entitled to decide to stop using the Services and Platform and terminate the Agreement by written notice to Morpheus within fourteen (14) days of Morpheus’ written notice of such change(s), and, in the event that You do so, then, upon Morpheus’s receipt of such notice of termination, Your license shall be automatically terminated with immediate effect and Morpheus will provide You a prorated refund of the fees paid in advance for the post-termination term.
Force Majeure. No failure, delay or default in performance of any obligation of a party (other than a payment obligation) shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic, pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment of power or telecommunications or data networks or services; distributed denial of service (DDoS) or other cyberattacks; or refusal of a license by a government agency. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
Subcontractors. Morpheus may use subcontractors and permit them to exercise Morpheus’ rights under this Agreement but Morpheus remains responsible for their compliance with this Agreement.
Conflict with Order Form. In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail.
Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY MORPHEUS. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
Additional Terms. Morpheus may include additional terms on the Service that apply to your participation in any special initiatives, events, or other offerings. In the event of any conflict or inconsistency between the Agreement and any such additional terms, this Agreement will control solely to the extent of the conflict or inconsistency.
Repeat Infringer Policy. Morpheus’s intellectual property policy is to (i) remove or disable access to User Content that Morpheus believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content Generated on or through the Service by “repeat infringers.” Morpheus currently considers a “repeat infringer” to be any User that has Generated User Content or Feedback on or through the Service and for whom Morpheus has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback.
Procedure for Reporting Claimed Infringement. If you wish to send a notice of intellectual property infringement, including claims of copyright infringement, please email us at firstname.lastname@example.org.
Miscellaneous. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Morpheus as a result of this Agreement or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Morpheus other than pursuant to this Agreement. You acknowledge and agree that Morpheus has the right, at any time and for any reason, to redesign or modify the Morpheus Materials and other elements of the Platform or any part thereof. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. Failure of either party to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement. No waiver will be effective against Morpheus unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Morpheus and you, this Agreement constitutes the entire agreement between you and Morpheus with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This Agreement will inure to the benefit of our successors and assigns. Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably withheld, provided that either party may assign this or transfer this Agreement, without the prior written consent of the other party, to an affiliate or in connection with a sale or merger of all or substantially all of the assigning party’s business or assets. Any unauthorized assignment will be void and of no force and effect.