MORPHOO APP - Terms of Service

Last Updated: January 20, 2020

1. Eligibility; Accounts.

 

MORPHOO APP IS NOT AVAILABLE TO (A) ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE MORPHOO APP OR (B) ANY PERSONS UNDER THE AGE OF 13 WHOSE REGISTRATION HAS NOT BEEN APPROVED BY A LEGAL PARENT OR GUARDIAN (OR, FOR SCHOOL ACCOUNTS, BY SCHOOL PERSONNEL AS PERMITTED UNDER THE TERMS).

1.1. By clicking the "I Agree" button or by otherwise using or registering an account for the Services, you represent that (i) you are a US resident at least 13 years of age, or (ii) you are not a US resident, and are of legal age of consent to open an account under the laws of your country of residence, or (iii) your use of the Services has been approved by your parent or legal guardian, or by your school or teacher for school use. You also represent that you have not been previously suspended or removed from the Morphoo app, and that your registration and your use of the Services is in compliance with any and all applicable laws.

1.2. Account. In order to use certain features of the Services, you must register for an account. You may be asked to provide a password in connection with your account. You are solely responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Morphoo, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), then you agree to immediately notify Morphoo at info@morphooapp.com. You may be liable for the losses incurred by Morphoo or others due to any unauthorized use of your Services account.

1.3. Child User. If you are under the age of 13 (a "Child User"), you may not create or register an account for the Services without consent and approval from your legal parent or guardian, or from your school as provided in Section 1.5 ("School Use"). If you are under the age of 18, you represent that your parent or legal guardian has reviewed and agreed to the Terms on your behalf. Except for accounts created for School Use as provided in Section 1.5, a Child User that begins the registration process for himself or herself without a Parent User (as defined below) may have the registration process restricted until a parent approves or assumes responsibility for the Child User account. A Child User may use the Services if registered through certain educational organizations or, in certain cases, by School Personnel that have entered into a relationship directly with Morphoo, so long as the education organization has obtained parent or guardian consent, or has complied with an exemption to parent consent requirements under applicable law. A Child User will only be permitted to use the Services for so long as Morphoo reasonably believes that such access has been consented to by the Child User's parent or guardian, or by School Consent (as discussed in Section 1.5, "School Use").

1.4. Parent User. If you are at least 18 years of age and you are the legal parent or guardian of a child that seeks to register as a Child User of the Services, you may register a parent account on the Services ("Parent User"). Through a Parent User account, you may create, register, manage and approve Child User accounts only for your own child(ren) or child(ren) for whom you are a legal guardian. IF YOU REGISTER, APPROVE OR CONSENT TO THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD USER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD USER'S LEGAL PARENT OR GUARDIAN AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE APP BY THE CHILD USER. You acknowledge that Morphoo may choose, but is not obligated, to make any inquiries, either directly or through third parties, that Morphoo deems necessary to validate your registration information, including without limitation engaging third parties to provide verification services. Morphoo reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT MORPHOO CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER AND MORPHOO IS NOT OBLIGATED TO VERIFY THE IDENTITY OF ANY USER, INCLUDING ANY USER'S CLAIM TO BE A PARENT USER, OR TO VERIFY THAT A PARENT IDENTIFIED BY A CHILD USER OR OTHER PARTY DURING REGISTRATION IS SUCH CHILD USER'S ACTUAL PARENT OR GUARDIAN. A Parent User account, along with all associated Child User accounts, may be terminated by Morphoo at any time and without warning for any failure to abide by these Terms.

1.5. School Use. Morphoo may make available certain features and tools that permit Users registered as teachers, school leaders, aides, or other similar school personnel ("School Personnel") to work with students and other Users through the Services in order to provide such students with tutorial, educational and other education-related services as part of the school's curriculum, and to review and evaluate educational achievement and progress of such students. If you are School Personnel accessing the Services on behalf of a school, school district, or other similar educational institution (an "Institution"), the following terms apply to you:

(a) Limitations on Use. The Services and Website are provided to you for educational purposes as part of the school curriculum. You must use the Services in compliance with all applicable laws, rules, and regulations. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purpose, any portion of the Services, or access to the Services.

(b) Responsibility for Consent and Notices. You and/or the Institution assume sole responsibility for obtaining any consents required from parents or guardians, and for providing appropriate disclosures to School Users and their parents regarding the School Users' use of the Services, our Terms, and our Privacy Policy. You agree to be bound by these Terms on behalf of the School User, for so long as the School User account is not transferred to or assumed by a valid Parent User account or personal account for a Student of eligible age. IF YOU ARE SCHOOL PERSONNEL AND YOU REGISTER AN ACCOUNT FOR A CHILD USER OR OTHER STUDENT (EITHER, A "SCHOOL USER") OR DIRECT A SCHOOL USER TO CREATE AN ACCOUNT FOR SCHOOL USE, YOU REPRESENT AND WARRANT THAT YOU HAVE EITHER RECEIVED EXPRESS CONSENT FROM SUCH SCHOOL USER'S PARENT OR LEGAL GUARDIAN OR THAT YOU (OR YOUR INSTITUTION) HAVE COMPLIED AND WILL COMPLY WITH ALL APPLICABLE REQUIREMENTS OF AN EXEMPTION FROM OR EXCEPTION TO PARENTAL CONSENT REQUIREMENTS, NECESSARY FOR YOU TO REGISTER THE SCHOOL USER FOR THE WEBSITE AND PROVIDE TO MORPHOO THE INFORMATION YOU DISCLOSE IN CONNECTION WITH THE REGISTRATION OF SUCH SCHOOL USER. Specifically you agree, individually and on behalf of the Institution, that:

(i) You are familiar with and agree to be responsible for compliance with the Family Educational Rights and Privacy Act and the US Department of Education's implementing regulations at 34 CFR Part 99 (collectively, "FERPA"), and all other laws, rules or regulations concerning the collection, use, and disclosure of personally identifiable information about Users in your Institution (collectively, "Applicable Privacy Law").

(ii) You assume sole responsibility (and hereby agree that Morphoo is not responsible for) for providing appropriate notices and disclosures to students using Morphoo for classroom use ("Students" or "Student Users") and their parents regarding Student use of the Website, our Terms, and our Privacy Policy, including any notices required by the Children's Online Privacy Protection Act ("COPPA"), FERPA, or other Applicable Privacy Law.

(iii) You assume sole responsibility (and hereby agree that Morphoo is not responsible) for obtaining any consents required from parents or guardians, to the extent required under COPPA, FERPA or other Applicable Privacy Law, in connection with the Services, and disclosure of personally identifiable information to Morphooo in connection therewith. You represent and warrant to Morphoo that, prior to creation of accounts for School Use, you have either obtained all necessary parent or guardian consents, or have complied and will comply with all applicable requirements of an exemption from or exception to parental consent requirements, including:

- under FERPA, you have complied and will comply with the "school official" exception, or the "directory information" exception thereunder; and

- under COPPA, with respect to Students under the age of 13, you are acting as the agent of the parent and consenting on their behalf to the sharing of the Student's personal information.

We refer to this a "School Consent". If a Parent User does not consent or rescinds such School Consent, School Personnel or the Institution shall immediately notify Morphoo to discontinue that Student's access to the Services and ensure that such Student's information is no longer accessible through the Services. Under no circumstances will Morphoo be liable for the School Personnel's failure to consult their school's authorities and administrators or for failing to obtain School Consent when required.

(c) Identification of School Accounts. Students and School Personnel may have personal accounts, in addition to accounts established for use in the classroom and associated with the Institution's use of the Services ("School Accounts"). If the Institution has a separate written service agreement with Morphoo that includes rostering services for your Institution, accounts provided for classroom use will be School Accounts. In other cases, in order for accounts established for use in the classroom to be designated as "School Accounts," the accounts must be (1) created by School Personnel (for example, when a teacher creates the user name, login and password to establish School Accounts), or (2) created by a School User at the direction of a School, in each case, using a School email address and associated with a School's class on the Service. User accounts created with a personal email address will not be considered School Accounts, and will be administered as personal accounts. If you have questions about how to create School Accounts that are associated with a School's class on the Service, please contact our customer support team at info@morphooapp.com.

1.6. Interational Use. Morphoo operates the cloud server of the Services in the United States. If you choose to access our Services from locations outside the United States, you consent to the collection, transmission, use, storage and processing of content and data (including your personal information) in the United States. You also agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction in which you reside or access the Services, if and to the extent local laws are applicable to use of our Services. If you are under the age of 18, you confirm that you have received parental consent, if required in your jurisdiction, to open an account for Service and enter into these Terms. Unless we have entered into a separate, mutually executed written agreement with you that says otherwise, we do not represent that our Services are appropriate or available for use in jurisdictions outside the United States. The right to access and use the Services is not granted in jurisdictions, if any, where it may be prohibited, or where your use would render Morphoo in violation of any applicable laws or regulations, including without limitation, Applicable Privacy Laws.

2. Privacy Policy.

 

Your privacy is important to Morphoo. Please read the Morphoo Privacy Policy, which is hereby incorporated into these Terms (and which are part of our contract with you), carefully for information relating to Morphoo's collection, use, and disclosure of your personal information. Among other things, our Privacy Policy explains how we treat your personal information and protect your privacy when you use our Services, and explains the procedures by which Users, Parent Users and School Personnel may view, update, correct, or delete their account and personal information.

3. Modification of the Terms.

3.1. General. Upon opening an account, you accept the Terms in the form posted on our website. Morphoo reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. Please check the Terms and any Guidelines periodically for changes that are made after you open your account. Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes. For any material changes to the Terms, Morphoo will make reasonable effort to provide notice to you through Morphoo app of such amended Terms, and such amended terms will be effective against you on the earlier of (i) your actual notice of such changes and (ii) thirty days after Morphoo makes reasonable attempt to provide you such notice. However, changes addressing new functions for a service or changes made for legal reasons will be effective immediately. If you do not agree to the modified Terms, you must discontinue your use of the Services. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.

3.2. School Accounts. If a change with respect to how personal information contained in education records is used or shared has a material adverse impact on Student Users or an Institution, and the Institution does not agree to the change, the Institution must notify Morphoo within thirty days of receiving the notice of change as described under the "Miscellaneous - Notices" below. If Morphoo is notified as required, then the School Accounts held by that Institution will remain governed by the Terms in effect immediately prior to the change until the end of the end of the then current term of the Institution's written service agreement with Morphoo, or, in the absence of such an agreement, the end of the current school term. If the Services are renewed or continued after such time, they will be renewed or continued under Morphoo's then-current Terms.

4. Proprietary Materials.

The Services are owned and operated by Meta Morphoo Studios Ltd. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, content, educational 3D animation and exercises, and all other elements of the Services (the "Services Materials") are protected by United States and international copyright, patent, and trademark laws, international conventions, and other applicable laws governing intellectual property and proprietary rights. Except for any User Content provided and owned by Users and except as otherwise set forth in this Section 4, all Services Materials, and all trademarks, service marks, and trade names, contained on or available through the Services are owned by or licensed to Morphoo, and Morphoo reserves all rights therein and thereto not expressly granted by these Terms.

5. Term and Termination.

 

5.1. Term. These Terms shall remain in full force and effect while you use the Services unless your account is terminated as provided in these Terms, in which case you no longer have the right to use the Services.

 

5.2. Termination by Morphoo. Morphoo, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate any account (or any part thereof) you may have with Morphoo or your use of the Services and remove and discard all or any part of your account, User profile, and User Content, at any time. Morphoo may also in its sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services or any account you may have, or portion thereof, may be affected without prior notice, and you agree that Morphoo will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Morphoo may have at law or in equity.

 

5.3. Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Services, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of Morphoo in operating the Services, or (v) any content or information transmitted through the Services, is to terminate the Terms and your account. You may terminate these Terms at any time (prospectively only) by deleting your login account with the Services and discontinuing use of any and all parts of the Services.

 

5.4 Termination of School Personnel, Child and Student Accounts. Certain Users (e.g., Parent Users and School Personnel) may terminate these Terms with respect their account or to a Child or Student User account that was created by them or at their direction, as provided in this Section.

(a) Termination by School Personnel. School Personnel may terminate use of the Services individually and/or with respect to School Accounts created by such School Personnel at any time by contacting us at info@morphooapp.com, provided, however, that an Institution may require satisfaction of certain requirements before School Personnel can terminate accounts created for school use. Prior to termination of School Accounts at the direction of School Personnel, Morphoo may invite Users, or parents or legal guardians of Students, to establish and maintain a personal account for purposes of retaining any content generated or provided and owned by Users under these Terms (including such User's learning activity). Any such Personal accounts will be established under Morphoo's standard account opening process, including parent consent for Users under the age of 13.

 

(b) Termination by Parents. As a Parent User, if you created a Child account on the Services and have a Parent User account associated with the Child account, you can terminate your Child's login account by contacting our customer support team at info@morphooapp.com although we may need to verify your identity prior to taking any action with respect to the account. Parents of Students who are using School Accounts created by or at the direction of your Child's teacher in school may first need to contact your child's school to request termination.

5.5 Responsibility for Pre-Termination activity. Termination of the Terms as to any User account will not limit Morphoo's rights and remedies regarding any breach of these Terms occurring prior to such termination.

6. Indemnification.

You agree, to the extent permissible under your state's laws, to indemnify, defend, and hold harmless Morphoo, and its parent, successors, affiliated companies, contractors, officers, directors, employees, agents and its third-party suppliers, licensors, and partners ("Morphoo Parties") from and against all losses, damages, liabilities, demands, judgments, settlements, costs and expenses of any kind (including legal fees and expenses), from any claim or demand made by any third-party relating to or arising out of (i) your access to, use or misuse of the Services; (ii) your breach or alleged breach of these Terms, or any violation of the Terms; (iii) any breach of the representations, warranties, and covenants made herein, whether by you or by any Child User or School User whose account you have approved as a Parent User or School Personnel; (iv) your failure to comply with Applicable Laws (including any failure to obtain or provide any necessary consent or notice); (v) the infringement by you or any third-party using your account of any intellectual property, privacy, or other right of any person or entity; or (vi) your breach or alleged breach of any interaction, agreement, or policy between you and any other Users. Morphoo reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Morphoo, and you agree to cooperate with Morphoo's defense of these claims. You agree not to settle any such matter without the prior written consent of Morphoo. Morphoo will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

7. Disclaimers; No Warranties.

7.1. No Warranties. THE MORPHOO APP, AND ALL DATA, INFORMATION, SOFTWARE, WEBSITE MATERIALS, CONTENT (WHETHER OWNED OR LICENSED), USER CONTENT, REFERENCE SITES, OR OTHER SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP (THE "MORPHOO OFFERINGS"), ARE PROVIDED ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE MORPHOO PARTIES DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, AVAILABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MORPHOO OR THROUGH THE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

7.2. Content. MORPHOO, AND THE MORPHOO PARTIES, DO NOT WARRANT THAT THE APP OR ANY DATA, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE APP WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. MORPHOO AND THE MORPHOO PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT (1) THE MORPHOO OFFERINGS WILL (A) MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE TO YOUR LIKING, OR (B) WILL BE TIMELY, SECURE, ACCURATE, FREE FROM ERRORS OR LOSS, OR UNINTERRUPTED, (2) THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR (3) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. SOME FEATURES MAY BE NEW OR EXPERIMENTAL AND MAY NOT HAVE BEEN TESTED IN ANY MANNER.

7.3. Harm to Your Mobile Device or Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING OF CONTENT OR DATA THROUGH THE APP IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR MOBILE DEVICE OR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS THEREFROM.

7.4. Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

8. Limitation of Liability and Damages.

 

8.1. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL MORPHOO OR THE MORPHOO PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) EVEN IF MORPHOO OR A MORPHOO PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR RELATING (i) TO THE TERMS; (ii) YOUR USE OF (OR INABILITY TO USE) THE APP OR THE MORPHOO OFFERINGS, OR (iii) ANY OTHER INTERACTIONS WITH KMORPHOO OR ANY THIRD-PARTY THROUGH OR IN CONNECTION WITH THE MORPHOO OFFERINGS, INCLUDING OTHER USERS,. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, MORPHOO'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

8.2. Limitation of Damages. IN NO EVENT WILL MORPHOO'S OR THE MORPHOO PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE APP OR YOUR INTERACTION WITH OTHER APP USERS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU TO MORPHOO, IF ANY, FOR ACCESSING THE APP DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.

 

8.3. Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT MORPHOO HAS OFFERED THE APP AND ENTERED INTO THE TERMS IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MORPHOO, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MORPHOO.

 

8.4 User Interactions and Release.

(a) User Disputes. Morphoo is not responsible for the actions, content, information or data of other third parties, including other Users. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Service. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person. We reserve the right, but have no obligation, to become involved in any way with these disputes.

(b) Release. If you have a dispute with one or more Users, you release us (and the Morphoo Parties) from 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, including damages for loss of profits, goodwill, use, privacy or data.

9. Miscellaneous (Including Dispute Resolution and Arbitration).

 

9.1. Notice. Morphoo may provide you with notices, including those regarding changes to the Terms, by email, through the Morphoo App, or other reasonable means. Notice will be deemed given twenty-four hours after it is sent or posted, unless Morphoo is notified that the email address is invalid. Any notices directed to Morphoo shall be sent to Morphoo via e-mail to info@morphooapp.com.

 

9.2. Waiver. The failure of Morphoo to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by Morphoo.

 

9.3. Governing Law. The Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law that would cause the application of the laws of any other jurisdiction.

 

9.4 Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.

(a) Generally. In order to expedite and control the cost of disputes, Morphoo and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Services or these Terms ("Dispute") will be resolved as follows to the fullest extent permitted by law:

(b) Notice of Dispute. In the event of a Dispute, you or Morphoo must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution (a "Notice of Dispute"). You must send any Notice of Dispute via e-mail to info@morphooapp.com. Morphoo will send any Notice of Dispute to you to your e-mail address. You and Morphoo will attempt in good faith to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or Morphoo may commence arbitration.

(c) Binding Arbitration. Any Dispute which has not been resolved by negotiation as provided herein within sixty (60) days or such time period as you and Morphoo may otherwise agree, shall be finally resolved by binding arbitration as described in this Section 9.4. You are giving up the right to litigate (or participate in as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. The place of arbitration shall be Los Angeles, California. Any court with jurisdiction over the parties may enforce the arbitrator's award.

(d) Class Action Waiver. Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor Morphoo will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

(e) Arbitration Procedures. Any arbitration will be conducted by JAMS under the JAMS Comprehensive Arbitration Rules and Procedures ("JAMS Rules") in effect at the time the Dispute is filed. You may request a telephonic or in-person hearing by following the JAMS Rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. To the extent the forum provided by JAMS is unavailable, Morphoo and you agree to select a mutually agreeable alternative dispute resolution service and that such alternative dispute resolution service shall apply the JAMS Rules. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief to you only individually, and only to the extent required to satisfy your individual claim.

(f) Arbitration Fees. Whoever files the arbitration will pay the initial filing fee. If Morphoo files, then Morphoo will pay; if you file, then you will pay unless you get a fee waiver under the applicable arbitration rules. Each party will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.

(g) Filing Period. To the extent permitted by law, any Dispute under these Terms must be filed within one (1) year in an arbitration proceeding. The one-year period begins when the events giving rise to the Dispute first occur. If a Dispute is not filed within one year, it is permanently barred.

(h) Venue. In the event that any Dispute cannot be resolved by binding arbitration in accordance with this Section 9.4, you agree that such Dispute will be filed only in the state or federal courts in and for Los Angeles, California, and each of you and Morphoo hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purpose of litigating any such action. Notwithstanding this, Morphoo shall still be allowed to apply for injunctive or other equitable relief to protect or enforce its intellectual property rights in any court of competent jurisdiction.

9.5. Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

9.6. Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Morphoo's prior written consent, but may be assigned by Morphoo without consent or any restriction. Any assignment attempted to be made in violation of the Terms shall be null and void.

9.7. Survival. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2 through 9.

9.8. Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.

9.9. Entire Agreement. The Terms, the Privacy Policy and Guidelines constitute the entire agreement between you and Morphoo relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to the Terms, Privacy Policy or Guidelines made by Morphoo as set forth in Section 3 above.

9.10. Disclosures. The Services are hosted in the United States, and the services provided hereunder are offered by Morphoo: info@morphooapp.com

 

9.11. Notice Regarding Apple. You acknowledge that these Terms are between you and Morphoo only, not with Apple, and Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the applicable mobile application to you, if any; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Services or your possession and use of the Services infringes that third party's intellectual property rights. You agree to comply with any applicable third-party terms, when using the Services. Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary of the Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

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