The Morphogenesis Software is wholly owned by Morphogenesis Limited. This Agreement constitutes an agreement between you (including all subscribed users of your Morphogenesis account) and Morphogenesis governing your use of the Service. This Agreement supersedes any prior agreements between you and Morphogenesis (including but not limited to any previous version of this Agreement).
Morphogenesis reserves the right to update or change this Agreement without notice. Any new features that augment or enhance the current Service, including the release of new tools or resources, shall be subject to this Agreement and the failure of Morphogenesis to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Violation of any of the terms below may result in the suspension or termination of your Account or License to use the Service. Whist Morphogenesis prohibits unauthorised conduct and content on the Service as indicated below, you may be exposed to such materials and you agree to use the Service at your own risk and Morphogenesis shall not be liable in such event. This Agreement was last updated on 25th May 2017.
1.1. “Confidential Information” has the meaning set out in clause 12.2;
1.2. “Effective Date” has the meaning set out in clause 14.1;
1.3. “Initial Period” has the meaning set out in clause 14.1;
1.4. “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and rights to apply for or register the same (present, future and contingent), and including all renewals, extensions, revivals and all accrued rights of action);
1.5. “Insolvency Event” means: in relation to a corporate entity, any of the following events:
(i) a petition is presented applying for an administration order to be made in respect of the other party or a petition is presented or notice is given or an order is made or an effective resolution is passed for the liquidation or winding up (or any similar judicial process) of the other party;
(ii) the other party seeks or enters into any composition or arrangement for the benefit of its creditors or convenes a meeting for the purpose of making such arrangement or composition or suffers or permits any distraint or distress proceedings or an encumbrancer takes possession or an administrative receiver or a receiver or manager is appointed of all or any part of its assets or undertaking or if it takes or suffers any similar action in consequence of debt or a judgment is entered and is not paid out within seven days; or
(iii) the other party ceases or threatens to cease to carry on its business or substantially the whole of its business or disposes of its undertaking or stops payment or threatens to stop payment of its debts as and when they fall due or is deemed to be unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986; 1.6. “Order Form” means the documentation whether physical or on-line confirming an order with Morphogenesis which sets out the requested Service, the Subscription Term, payment schedule and payment due dates as agreed between the parties;
1.7. “Renewal Period” has the meaning set out in clause 14.1;
1.8. “Service” means all products or services provided by Us, ordered by you either under a free trial or via an Order Form and made available by Us to you online via our Website a detailed description of which can be found on the Website.
1.9. “Software” means all human readable, machine operable and all other forms of the software which comprise the Services and incorporating all forms of any modifications made to it by Morphogenesis from time to time;
1.10. “Subscription Term” means the duration for which you subscribe to the Service comprising of the Initial Period and the Renewal Period;
1.11. “We”, “Us”, “Our” or “Morphogenesis” means Morphogenesis Limited;
1.12. “Website” means www.warewolf.co.uk or such other website on which we may make the service available;
1.13. “User” means the individuals for whom a subscription has been ordered and who are authorised by you to access and use the Service; and
1.14. “you” means you, the person using our products, Service or visiting our Website.
- Description of Service
2.1. The Service shall be provided to you as set out in the applicable Order Form. Any new features which are subsequently added to the Service during the Term shall also be, unless agreed otherwise in writing, subject to this Agreement.
2.2. Morphogenesis cannot guarantee that the Service will be continuously available as the Service may be unavailable from time to time due to either (a) scheduled downtime for Service upgrades and/or maintenance; and/or (b) any circumstances which are beyond Our control such as technical failures.
- Free trials
Morphogenesis does not offer free trials.
4.1. In order to subscribe to our Service, each account must be connected to an individual person. In the circumstance where you are an organisation, each account must be assigned to an individual employee at that organisation. We cannot accept any subscriptions where accounts are registered or run through automated methods.
4.2. You must provide your full legal name, a valid email address and any other information requested by Morphogenesis in order to complete the signup process and license.
4.3. You are responsible for maintaining the security of your account login information (username & password) Morphogenesis cannot and will not be liable for any loss or damage from failure to comply with this security obligation. You must notify Us immediately in the event of loss of your username and password.
4.4. Morphogenesis hereby grants you a limited, non-transferrable, non-exclusive licence to use and access the Service solely for your internal business purposes provided that you shall not: (a) licence, sub-licence, sell, resell, rent, lease, transfer, assign, distribute or otherwise exploit the terms of this licence or make the Service available for access or use by any person(s) other than the Users, save as for is expressly permitted by this Agreement or authorised by Morphogenesis; (b) use the Service to process any data unlawfully or for any third party; (c) allow any unauthorised access to, or use of, the Service. You must notify us immediately in the event that you become aware of any such unauthorised access to, or use of, the Service; (d) modify, adapt, decipher, decompile, reverse engineer or otherwise attempt to determine the source code of the Software which makes up the Service except as otherwise expressly permitted by law; (e) use the Service in an unlawful manner including, but not limited to, the infringement of any third party intellectual property rights or use of the Service in breach of any third party’s privacy rights; (f) use the Service in a manner that interferes or disrupts with the provision of the Service by Morphogenesis to third parties; (g) use the Service to upload, store or transmit any malicious code or other similar harmful software such as viruses, malware or trojan horses; (h) use the Service to make any transmission, display or publication of any material which is of a defamatory, offensive, abusive or menacing character to any other person; or (i) use the Service for any transmission, display or publication of any material in breach of the Data Protection Act 1998 (or any amending statute) dealing with data protection or similar legislation in any other country of any material which is confidential or is a trade secret.
4.5. You are responsible for ensuring that the Users comply with the terms of this Agreement and that Users do not access or use the Service in breach of this Agreement.
4.6. Where you have signed-up for a subscription account, you may not transfer your concurrent licence to use and access the Service to any third party;
4.7. You may not use your account for any illegal or unauthorised purpose. You must not, during your use of this Service, violate any laws in your jurisdiction (including, but not limited to copyright laws).
4.8. You agree to indemnify Morphogenesis against all and any losses, costs and expenses Morphogenesis may incur as a result of any breach by you of this clause 4.
4.9 Fair Usage Policy – Users. Morphogenesis offers Unlimited Users in the High Growth, Established and Unlimited Plans under a Fair Usage Policy. Morphogenesis calculates a range of acceptable user numbers based on the services and associated costs. Customers using fewer additional services (e.g. the number of e-commerce connectors and other additional paid-for services) will have a lower range of included users. Customers using more additional services will have a higher range of included users. Fair Usage user numbers are available on request from your Customer Success Manager or Support. Morphogenesis reserves the right to update Fair Usage Policy in line with other pricing changes.
4.10 Fair Usage Policy – Order Volumes. Morphogenesis’s pricing is based on order volumes. Customers who exceed the order volumes for the Plan on which their subscription price is based for more then 2 (two) months in the Subscription Term will be liable to an immediate increase to the correct Pricing Plan.
- Account Billing, Invoicing and Refunds
5.1. You shall be billed for the Service in advance at the Effective Date and/or Renewal Period of your subscription term. Payments received from you by Morphogenesis shall be on a non-refundable basis. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds, or refunds for months where you have not used the service. Customers on quarterly payment terms remain liable for the payment for the full Service Period.
5.2. Morphogenesis reserves the right to suspend or terminate access to the Service upon seven (7) days written notice to you in the event of late or non-payment of Morphogenesis’s invoices.
5.3. Notwithstanding the payment schedule for the Services to which you have subscribed, certain Services may incur additional charges which will be invoiced monthly to you. We shall notify you in advance of any additional charges applicable to your subscribed Services.
5.4. If you choose to add any additional Service during your Initial or Renewal Period, payment terms for any additional Service shall be agreed with Morphogenesis and will be set out in a new payment schedule.
5.5. Additional Users may be added to your account during your Subscription Term and an additional charge per user will be payable in line with your contract terms stated on the order form when added to the Service.
5.6. If you experience account activity over the limits specified in your contracted plan (number of concurrent users, number of orders, number of SKUs), Morphogenesis reserves the right to make overage charges for the period(s) of excess activity at the next plan level unless you choose to upgrade to the next plan level. Periods will be measured as complete months and part months will be charged as a full month. For the avoidance of doubt, if any overage charges are made they will not exceed the next (higher) plan level charges.
- Cancellation and Right to Monitor
6.1. Upon cancellation of an account, payment is to be made up to the end of the billing period you are in. Under no circumstances shall any refunds for non-use of the Service be given due to early termination of the Service by you without cause.
6.2. Cancelled accounts will have their data archived in a secure backup facility for up to 2 months after cancellation, upon the expiry of which it will be automatically deleted. During such 2 month period you can elect to have this data extracted and supplied to you or alternatively deleted.
6.3. Morphogenesis recognises and confirms that the information from you contained in and processed by the Service is confidential. In the normal provision of the Service Morphogenesis would not access or monitor your account. However, Morphogenesis reserves the right to utilise such access in order to support, manage and protect the integrity of the Service (including but not limited to preventing illegal activity, uploading of virus infected files or questionable material and for general customer support).
- Right of Refusal
7.1. Morphogenesis has the right to accept or decline trial and paid account requests in its sole discretion with no obligation to detail the reasoning behind such decision.
- Modifications to the Service and Prices
8.1. Morphogenesis reserves the right to increase prices at any time. Notice will be given of at least 30 days in advance of any price changes. In the event that you do not agree to any price increases of which you are notified, you may terminate this Agreement within the aforementioned 30 day notice period on written notice to Morphogenesis.
8.2. In order to fulfil its obligations in managing and upgrading the Service, Morphogenesis may at any time amend the Service and any documentation relating thereto for any reason including, but not limited to: legal, technical, or business considerations.
8.3. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Morphogenesis or any Morphogenesis product.
9.1. Optional telephone support is available between the hours displayed at www.Morphogenesis.ai/support/contact-support. Our support packages may be subject to an additional charge per user, which will be set out on the Order Form.
9.2. A support ticket may be raised by you at any time but you acknowledge that Morphogenesis will only respond during the hours detailed in section 9.1 above. Email support is available 24 hours, 7 days per week.
- Code and Data Ownership
10.1. Any data entered in your live account database or uploaded to the Service remain yours at all times and can be supplied if needed as a digital file upon request.
10.2. Morphogenesis does not pre-screen any content, but reserves the right to refuse or remove any content available via the Service although you acknowledge and accept that Morphogenesis are not obliged to monitor such content as a standard part of the Service provided.
10.3. Morphogenesis houses all Software on servers which are either owned by Us or leased from third parties. Unauthorised distribution of the Software without prior consent is strictly prohibited and includes placing our Software on any physical or virtual servers or mediums without special agreement or written consent form Morphogenesis.
10.4. The Morphogenesis code will not be accessible for any subscription accounts.
10.5. Morphogenesis shall have the right to collect and analyse data and other information in relation to your use, provision and performance of the Services and Morphogenesis will be free to (i) use such data and information (during the term of the agreement and thereafter) in an aggregated and anonymised form to create reports and improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Morphogenesis offerings, and (ii) in connection with its business disclose data and information on an aggregated and anonymised basis to third party commercial partners and investors.
- Data Loss & Backups
11.1. Morphogenesis will not accept under any circumstances the liability for any loss of customer data whether that be through general use, hacking or server failure.
11.2. Morphogenesis will operate one daily backup of the subscription account data and the server itself.
12.1. Morphogenesis will at all times be committed to ensuring the confidentiality of information. Any information submitted by the customer will only be used by Morphogenesis in accordance with the instructions of the customer or in accordance with the terms of this agreement.
12.2. Each party agrees and undertakes that during the term of this Agreement and thereafter it will keep confidential, and will not use for its own purposes, any information of a confidential nature (including without limitation trade secrets and information of commercial value) which may become known to that party from the other party (“Confidential Information”) nor without the prior written consent of the other party disclose to any third party any Confidential Information unless the Confidential Information: (a) is in the public domain at the Effective Date of this Agreement; (b) is already known to that party at the time of disclosure; (c) becomes public knowledge other than by breach of this Agreement; or (d) subsequently comes lawfully into the possession of that party from a third party who is under no obligation of confidentiality.
12.3. To the extent necessary to implement the provisions of this Agreement each party may disclose the Confidential Information to those of its employees and sub-contractors as may be reasonably necessary to perform its obligations under this Agreement, provided that before any such disclosure each party shall make those employees and sub-contractor aware of its obligations of confidentiality under this Agreement and shall at all times procure compliance by those employees and sub-contractors with this clause 12.
13.1. Morphogenesis warrants that: 13.1.1 it has the right to provide the Service and any accompanying materials as contemplated under this Agreement and that each of the foregoing, and their provision in accordance with the terms of this Agreement, does not and will not infringe the Intellectual Property Rights or other rights of any third party; 13.1.2 the Service will operate and function as described on the website; 13.1.3 the Service will be provided with all due care, skill and diligence and by means of appropriately qualified and skilled personnel.
13.2. Although Morphogenesis does not warrant that the Service supplied hereunder shall be free from all unknown viruses, Morphogenesis warrants that it has checked the Software for the most commonly known viruses.
13.3. Except as expressly set out in this Agreement and subject only to clause 15.1, no implied conditions, warranties or other terms, including any implied term relating to satisfactory quality or fitness for any purpose, will apply to the Service or to anything else supplied or provided by Morphogenesis under this Agreement.
- Term and termination
14.1. This Agreement shall commence on the date upon which you first access the Service (the “Effective Date”) and shall continue in full force and effect for the contract term which is detailed on your Order Form (the “Initial Period”) following which this Agreement shall automatically renew for successive periods of twelve (12) months (“Renewal Period”) unless terminated in accordance with the provisions of this clause 14.6. If you sign-up for a free trial period and do not wish to convert to a subscribed Service package, this Agreement shall automatically expire at the end of the free trial period.
14.2. You may terminate this Agreement without cause with thirty (30) days’ prior written notice to Morphogenesis to take effect only on the anniversary of the Effective Date.
14.3. You may terminate this Agreement immediately in writing to Morphogenesis if the Service is unavailable or inaccessible to you and your Users for either (a) more than three (3) consecutive days; or (b) more than five (5) days in any thirty (30) day period as a result of the fault or failure of Morphogenesis.
14.4. Morphogenesis may terminate this Agreement without cause with thirty (30) days’ or more prior written notice to you to take effect only on the anniversary of the Effective Date.
14.5. Without prejudice to any other rights to which it may be entitled:
14.5.1 either party may terminate this Agreement with immediate effect if the other party commits any material breach of any of the terms herein and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified under this sub-clause 14.5.1 of the breach, such notice to refer to the notifying party’s intent to terminate this Agreement unless the breach is remedied; or 14.5.2 either party may terminate this Agreement with immediate effect if the other suffers an Insolvency Event; or 14.5.3 in the case of a force majeure event as specified under the “Force Majeure” section below, either party may terminate this Agreement with immediate effect pursuant to that Clause.
14.6. Morphogenesis may, as an alternative to sub-clause 14.5.1 above, cancel your access to the Service with immediate effect if you are in material breach of any obligation in this Agreement.
14.7. Verbal, physical, written or other abuse (including threats of abuse or retribution) directed towards any Morphogenesis customer or employee will result in immediate account termination.
14.8. Morphogenesis reserves the right to terminate or suspend any or all of its customer accounts at will and if reasonably necessary. Discretion will be used, and action may be taken if needed to ensure server integrity for other customers.
15.1. Morphogenesis’s liability: (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation or any other fraudulent act or omission; (c) for breach of any obligations implied by section 2 of the Supply of Goods and Service Act 1982; (d) or for any other liability which may not lawfully be excluded or limited; is not excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
15.2. Morphogenesis shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if Morphogenesis has been advised of the possibility of such damages), whether such liability arises due to an indemnity, tort, negligence, breach of contract, misrepresentation or for any other reason.
15.3. Subject to Clauses 15.1 and 15.2, Morphogenesis’s total aggregate liability for any: (a) account subscription Service under or in relation to this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the actual amount paid by or payable you to Morphogenesis during the previous twelve (12) months of the Service; or (b) free trial period under or in relation to this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to an sum no greater than £200; whether such liability arises due to breach of contract, negligence or for any other reason. The foregoing limits on liability shall apply to each event or series of connected events.
- Restricted Content
16.1. Uploading any restricted content as listed below may result in immediate account termination. You must not upload, post, host or transmit the following items to or from the Service including but not limited to: 16.1.1 Unsolicited email, SMS’s, or “Spam” messages; 16.1.2 Worms, viruses or code of a destructive nature; or 16.1.3 Questionable or Illegal material. (Including copyrighted material).
- Data Protection
17.1. In this clause 17 and wherever else appearing in this Agreement, the terms “Personal Data”, “Data Controller”, “Data Processor” and “Processing”, “Process” and “Processed” have the meanings given in the Data Protection Act 1998 (the “Act”) as amended from time to time.
17.2. To the extent that either you or Morphogenesis is acting as a Data Controller under this Agreement, it shall comply with the Act.
17.3. To the extent that Morphogenesis is a Data Processor in respect of any Personal Data Processed by it under this Agreement, Morphogenesis shall:
17.3.1 only Process Personal Data as is necessary to perform its obligations under this Agreement and (without prejudice to clause 13.1.3) ensure that such data shall be held and Processed only in accordance with the Act;
17.3.2 Process the Personal Data only for such purposes as are instructed by you and ensure that Our Processing does not put you in breach of the Act; 17.3.3 comply with any instructions you give Us in relation to the collection of Personal Data (where We do this on your behalf) in order to ensure compliance with the Privacy and Electronic Communications (EC Directive) Regulations 2003 in respect of your marketing intentions in respect of such Personal Data; 17.3.4 put in place and at all times maintain appropriate technical and organisational measures against unauthorised, accidental or unlawful access to the Personal Data (having regard to the state of technological development and the costs of implementing any such measures) as well as reasonable security programmes and procedures for the purpose of ensuring that only authorised Morphogenesis personnel have access to the Personal Data processing equipment to be used to Process the Personal Data, and that any persons whom it authorises to have access to the Personal Data shall respect and maintain all due confidentiality;
17.3.5 promptly provide you with all information in its possession concerning any unauthorised or accidental disclosure or access made by any Morphogenesis staff or any other identified or unidentified third party to any Personal Data held by it on behalf of you.
17.3.6 promptly comply with any change of instructions from you relating to : (a) the Personal Data; and (b) Morphogenesis’s role as a Data Processor; as issued in accordance with this Agreement and/or as otherwise required by changes or amendments to applicable law or regulatory requirement;
17.3.7 not cause any Personal Data to be transferred outside the European Economic Area unless a data export contract is first entered into between you and the relevant data importer on terms substantially similar to those approved by the European Commission; and
17.3.8 procure that any permitted sub-contractor of Morphogenesis’s shall comply with the obligations under this clause
17.3 to the extent that such sub-contractor will be processing Personal Data.
- Intellectual Property Rights
18.1. The Intellectual Property Rights in the Service and any hardware or Software used in connection with the Service is and will at all times remain Morphogenesis’s property or that of Morphogenesis’s licensors.
18.2. In the event that the Service infringes any third party rights, Morphogenesis will indemnify you against any loss or damage and shall defend and/or settle any third party claim that the Service infringes provided always that you promptly notify Morphogenesis of any such claim in writing, give Morphogenesis the sole control of any such action or proceedings and give Morphogenesis such assistance as it may reasonably require to settle and/or defend such action or proceedings. Any award of costs and/or damages shall belong to Morphogenesis in such event, Morphogenesis shall, at its option:
18.3. procure for you the right to continue to use the Service;
18.4. make the Service available without infringing so far as Morphogenesis is aware any third party Intellectual Property Rights; or
18.5. terminate this Agreement forthwith on written notice to you.
18.6. The indemnity in Clause 18.2 above shall not apply to any infringement resulting from:
18.6.1. use of the Service which does not comply with the uses permitted under this Agreement;
18.6.2. any modification or change to the Service carried out by Morphogenesis on your request; or
18.6.3. the combination of the Service with any third party product and/or Service or modification undertaken by you without the prior written consent of Morphogenesis.
- Force Majeure
19.1. The obligations of each party under this Agreement shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by any cause beyond its reasonable control such as an Act of God, flood, fire, earthquake, terrorism, riots, civil disorders, strikes, lockouts or other forms of industrial action on the part of Morphogenesis staff. In the event that the cause continues for more than thirty (30) consecutive days, either party may terminate this Agreement immediately upon written notice to the other party in accordance with Clause 19.4.3 under the “Termination” section above.
20.1. Nothing in this Agreement is intended to confer on a person any right to enforce any term of this Agreement which that person would not have had but for the Contract (Rights of Third Parties) Act 1999.
20.2. You are not entitled to transfer or assign this Agreement without Morphogenesis’s prior written consent. Morphogenesis may assign, sub-contract or sub-let this Agreement or any part thereof.
20.3. All disputes between the parties arising out of or relating to this Agreement or the breach, termination or validity thereof shall be referred by either party in writing, first to each party’s representative. The representatives shall meet and attempt to resolve the dispute within a period of thirty (30) working days from the date of referral of the dispute to them.
20.4. All notices in relation to this Agreement must be in English, in writing, addressed to the other party and sent to your address set out on your Order Form or to accounts@Morphogenesis.com (as applicable) or such other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address.
20.5. Subject to clause 15.1, this Agreement and any Order Form sets out all terms agreed between the parties and supersedes and extinguishes all previous agreements, representations, misrepresentations, arrangements and understandings between the parties, whether written or oral, relating to its subject matter.
20.6. Each party acknowledges that, in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, misrepresentation, representation or warranty (whether made negligently or innocently) and whether made by either party, orally or in writing, prior to the execution of this Agreement and not expressly set out in this Agreement or any Order Form.
- Governing Law
21.1. This Agreement shall be governed by and construed in accordance with the laws of England and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts. Notwithstanding the foregoing nothing herein shall preclude either party from seeking injunctions from any court of competent jurisdiction in order to protect its intellectual property rights or confidential information.