MORPHED (PROPRIETARY) LIMITED [2020/707905/07]
(“Morphed”, “us”, “we”, “our”)
Terms of Service
(Version 1.2 – Effective as of 28 July 2021)
Please read these terms carefully when using or accessing our website and/or software-as-a-service offering (“the Morphed Services”) as they set out our legal relationship with you and are important.
By making use of the Morphed Services, you represent that you have read and understand and that you are agreeing to the terms and conditions of this Agreement.
This Agreement governs your access and use of the Morphed Service offered by us and our subsidiaries, updates, upgrades and features as well as any further online or mobile services, features, content, webinars, virtual events or meetings hosted by or in connection with Morphed.
The Morphed Services are made available to technology companies seeking to create their own white-labelled eCommerce services marketplace. You acknowledge and agree that your license to use the Website will automatically be revoked if you attempt to use the Website for any other purpose.
BY COMPLETING THE ELECTRONIC ACCEPTANCE AND PROCUREMENT PROCESS, CLICKING THE “BUY NOW”, “APPLY,” “SUBMIT” OR “ACCEPT” BUTTONS, UPLOADING DOCUMENTS, INSERTING PERSONAL INFORMATION, USING ANY OF THE MORPHED SERVICES, OR OTHERWISE INDICATING ACCEPTANCE OF THIS AGREEMENT, YOU AND ANY PARTY OR ENTITY THAT YOU ARE USING, REPRESENT AND WARRANT THAT:
YOU ARE AUTHORIZED TO BIND YOURSELF AND ANY OTHER PARTY ON WHOSE BEHALF YOU USE THE WEBSITE; AND
YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE, DO NOT CONTINUE TO USE THE MORPHED SERVICES.
INTRODUCTION AND DESCRIPTION
Morphed is a software development and information technology solution provider.
The Morphed Services currently consist of:
White-label eCommerce Services Marketplace
This functionality enables clients of Morphed Customers to engage and purchase services from the white-labelled eCommerce services marketplace. The clients can also request custom quotes, track communication, make payment via a third-party payment service and leave a review.
The functionality also enables partners of Morphed Customers to engage and sell services from the white-labelled eCommerce services marketplace. The partner can also submit custom quotes, track communication and receive payment via a third-party payment service.
USE OF THE MORPHED SERVICES
Information on the Morphed Services can be found at www. morphed.io.
The Provider hereby grants the Customer, including all authorized users of the Customer, a non-exclusive, non-sublicensable, non-assignable, royalty-free, worldwide license to access and use the service (the “Service”) solely for the internal business operations of the Customer in accordance with the terms of this Agreement and the Provider’s online terms of service.
Responsible Use and Authorized Access:
You agree to promptly notify Morphed of any unauthorized access or use of the Morphed Services and any loss or theft or unauthorized use of your password, online account, or user profile.
The prices payable, percentages and mechanisms for payment for the Morphed Services are set out on our website or as set out in a custom proposal and updated from time to time. Payment options and terms of payment are indicated on our pricing page at: https://morphed.io/pricing/ or in your custom proposal.
Payment terms in respect of the white-label eCommerce service marketplace, you will be charged a variable upfront set up fee and a monthly subscription fee. Subscription pricing may be revised by us at any time, in our sole discretion. You will be notified through an automated message (30) days prior to when your subscription is due for renewal and whether any price increases are applicable to the renewed subscription period.
You accept the new price(s) and/ or percentages by continuing to use the Morphed Service after any price change takes effect.
The Morphed Services are licensed to Morphed Customers, they are not sold to own.
We grant you a personal, limited, non-transferable, revocable, and non-exclusive license to use the Morphed Services to which you have access for your use, subject to your compliance with this Agreement.
You may not access, copy, modify or distribute any of the Morphed Services, unless expressly authorized by us or permitted by law. You may not reverse engineer or attempt to extract or otherwise use source code or other data from the Morphed Services, unless expressly authorized by us or permitted by law. We and/or our licensors own and reserve all other rights, including all right, title and interest in the Morphed Services and associated intellectual property rights.
RULES OF CONDUCT
When you access or use any of the Morphed Services, you agree that you will not:
license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Morphed Services or any part thereof;
reproduce, modify or make derivative works based upon the Morphed Services or the audio and visual information, documents, software, graphics, products, and services contained or made available to you in the course of using the Morphed Service;
reverse engineer or access the Morphed Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Morphed Services, or (iii) copy any ideas, features, functions or graphics of the Morphed Services;
access the Morphed Services by any means other than facilities that are provided by us;
violate any law, rule or regulation;
interfere with or disrupt any of the Morphed Services or any server or network used to support or provide the Morphed Services, including any hacking or cracking into a Morphed Services;
use any software or program that damages, interferes with or disrupts the Morphed Services or another’s computer or property, such as denial of service attacks, spamming, hacking, or uploading computer viruses, worms, trojan horses, cancelbots, spyware, corrupted files and time bombs;
publish, post, upload or distribute any content, material or information, that we (acting reasonably and objectively) determine is inappropriate, abusive, hateful, harassing, profane, defamatory, threatening, hateful, obscene, sexually explicit, infringing, privacy-invasive, vulgar, offensive, indecent or unlawful; or
post a message for any purpose other than personal communication. Prohibited messages include advertising, spam, chain letters, pyramid schemes and other types of solicitation or commercial activities.
TERM AND TERMINATION
This Agreement is binding and effective until terminated by you or us.
Term and Renewal. Your initial payment term will be specified in your proposal.
Notice of Non-Renewal. Unless otherwise specified in your proposal, to prevent renewal, you or we must give written notice of non-renewal. The deadline for sending this notice is (60) days before the renewal date.
Early Cancellation. You may choose to cancel your agreement early at your convenience provided that, we will not provide any refunds of prepaid fees or unused fees, and you will promptly pay all unpaid fees due through the end of the Agreement Term. See the ‘Notice of Non-Renewal’ section for information on how to cancel your agreement.
Fee Adjustments at Renewal. Upon renewal, we may increase your fees and will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate this agreement at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section above
We may terminate your access and use of any of the Morphed Services if we determine that you have violated these terms or that there has been otherwise unlawful, improper or fraudulent use of the Morphed Services.
If your account is terminated, you will not have access to the account. Upon termination, your license under this Agreement shall also terminate. Clause 4, 5, 8 -16 remain unaffected and survive termination.
Customer shall provide commercially reasonable information and assistance to Morphed to enable Morphed to deliver the Morphed Services. Customer acknowledges that Morphed ’s ability to deliver the Morphed Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Morphed Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Morphed exercises no control over the content of the information transmitted by Customer through the Morphed Services.
Customer shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
Customer shall be solely responsible for the acts and omissions of its Administrator Users. Morphed shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to Morphed a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the Morphed Services to Customer
Notify Morphed immediately of any unauthorized use of any password or user id or any other known or suspected breach of security,
Report to Morphed immediately and use reasonable efforts to stop any unauthorized use of the Morphed Services that is known or suspected by Customer, and
Not provide false identity information to gain access to or use the Morphed Services.
Customer is solely responsible for collecting, in putting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not
Include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or
Contain anything that is obscene, defamatory, harassing, offensive or malicious.
For the (12) month period beginning on the Effective Subscription Date and at Morphed’s expense, Morphed will provide Customer with telephone or electronic support during Provider ‘s normal business hours in order to help Customer correct problems with the Software, and internet-based support system generally available seven days a week, twenty-four hours a day.
fter the initial (12) months support period, Customer may elect to renew Morphed’s support services for additional (12) months periods, at Morphed’s current service rates.
During the Term of this Agreement, the Provider shall provide the Maintenance Services to the Customer.
The Provider shall give to the Customer at least (30) business days’ prior written notice of scheduled Maintenance Services that are likely to have a negative impact upon the Hosted Services.
The Provider shall give to the Customer at least (7) business days’ prior written notice of the application of an upgrade to the platform.
The Provider shall give to the Customer written notice of any security update to the platform and at least (7) business days’ prior written notice of the application of any non-security update to the platform.
The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least (30) days’ written notice, following the amount becoming overdue.
The provider shall endeavour to conduct upgrades, maintenance and security updates over weekends and times deemed to be down time to ensure minimal disruption.
All updates will be upgrades, maintenance and security updates will be initially done on a staging environment and thereafter to the live environment.
WARRANTIES AND DISCLAIMER
Morphed represents and warrants that it will provide Morphed Services in a professional manner consistent with general industry standards and that Morphed Services will perform substantially in accordance with the Documentation.
Morphed warrants that the Morphed Services will perform in all material respects in accordance with the Documentation. Morphed does not guarantee that the Morphed Services will be performed error-free or uninterrupted, or that Morphed will correct all Morphed Services errors. Customer acknowledges that Morphed does not control the transfer of data over communications facilities, including the internet, and that the Morphed Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. This section sets forth the sole and exclusive warranty given by Morphed (EXPRESS OR IMPLIED) with respect to the subject matter of this Agreement. Neither Morphed nor any of its licensors or other suppliers warrant or guarantee that the operation of the subscription service will be uninterrupted, virus-free or error-free, nor shall, Morphed or any of its Service Providers be liable for unauthorized alteration , theft or destruction of Customer’s or any user’s data, files, or programs.
You warrant to and in favour of us that:
you have the legal capacity to agree to and be bound by this Agreement; and
this Agreement constitutes a valid and binding contract on you and is enforceable against you.
Each of the warranties given by you will:
be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement.
continue and remain in force irrespective of whether your account is active, suspended or cancelled; and
be deemed to be material.
LIMITATION OF LIABILITY
We will not, under any circumstances, be liable to you for any costs, claims, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts which you may sustain or suffer (or with which you may be threatened) as the result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or in the course of the discharge or exercise by the parties or their employees, agents, professional advisors or delegates of their obligations or rights in terms of this Agreement or the termination of these terms for any reason, in excess of the amount recoverable under our professional indemnity insurance policy.
NO CONSEQUENTIAL LOSSES
Under no circumstances whatsoever shall either party be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of profits, and whether as a result of negligent (including grossly negligent) acts or omissions of such party or its servants, agents or contractors or other persons for whose actions such party may otherwise be liable in law.
You hereby indemnify and hold Morphed, our shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) harmless against any claim by any third party for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive or exemplary loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts arising, from accessing and using Morphed Services and or arising from any breach of any of any obligations or duties under this Agreement.
Should a party (“the defaulting party”) breach any of the terms and conditions of this Agreement, then the other party (“the aggrieved party”) shall be entitled forthwith where the defaulting party has failed to remedy such breach within a period of 14 (fourteen) days after receipt of written notice by the aggrieved party requiring it to do so, to claim specific performance or to cancel this Agreement by written notice to that effect given to the defaulting party, either of which shall be without prejudice to any other rights which the aggrieved party may have at law.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement and any dispute arising out of or in connection with this Agreement or the use of the Morphed Services (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of South Africa. Any and all actions, lawsuits, or other legal proceedings related to such Dispute will be filed only in South African courts.
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labour disputes, actions of governmental entities (including but not limited to delay caused by customs regulations or a change in customs regulations), riots, war, terrorism, fire, epidemics or other circumstances beyond its reasonable control.
The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance, provided that if such period exceeds 60 (sixty) days, then either party shall be entitled to terminate this Agreement immediately on written notice while the party’s performance continues to be prevented.