END USER SOFTWARE LICENSE AND SERVICES AGREEMENT (EULA)

Please read this EULA carefully, as it sets out the basis upon which Apply Mobile (the “Licensor”) licenses the Cloud Service or Customer Managed Software to you (either an individual or a legal entity that will use the product and that you represent as an employee or authorised agent) (the “Customer”).

By installing, copying, downloading or otherwise accessing the Customer Managed Software or the Cloud Service, Customer agrees to be bound by the terms of this agreement. If Customer does not agree to the terms of this Agreement, Apply Mobile is unwilling to grant any rights to use the Cloud Service or Customer Managed Software. In such event, Customer may not use the Cloud Service or Customer Managed Software, and should, as applicable, promptly cease use of the Cloud Service and must destroy all copies of Customer Managed Software and accompanying Documentation.

By agreeing to be bound by this EULA, Customer further agrees that any person the Customer authorises to use the software will comply with the provisions of this EULA.

1 Definitions

Except to the extent expressly provided otherwise, in this EULA:

“Apply Mobile” means Apply Mobile Limited (trading as idenprotect) a company incorporated in England and Wales (registration number 07518677) having its registered office at 3-4 Wharfside, The Boatyard, Worsley, Manchester M28 2WN, United Kingdom.

“Cloud Service” means any Apply Mobile Products delivered through an on-line software service operated by Apply Mobile or one of Apply Mobile’s authorised Managed Service Providers (MSP) that is accessed via the Internet by the Customer.

“Customer” means either the legal entity or a User that will either use or authorise the use of the Customer Managed Software or Cloud Service for its Users to use.

“Customer Managed Platform” means the hardware and software platforms (for example: servers, databases, certification authorities) that are necessary to operate the Customer Managed Software, as expressly set forth in the Documentation.

“Customer Managed Software” means any instances of the Apply Mobile software products and modules (including all copies made by Customer in accordance with Clause 3.3), listed in Schedule 1, and any Updates provided to Customer by Apply Mobile, in each case in its machine-readable form (unless otherwise expressly set forth on an applicable Schedule).

“Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Customer.

“EULA” means this end user software and services licence agreement, including any amendments to this end user licence agreement from time to time and including the Schedules and Appendices within this agreement.

“Effective Date” means the date upon which the Customer first installs, copies, downloads or otherwise accesses the Customer Managed Software or the Cloud Service.

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

“Licensor” means APPLY MOBILE LIMITED, who provides directly or through Resellers Products to enable the Cloud Service, the Customer Managed Software and Professional and Consulting Services to Customer under this Agreement, as the context requires.

“Maintenance Services” means the application to the Software of Updates and Upgrades.

“Product Liability Claim” means any claim, dispute and/or proceedings resulting from or arising in connection with any death, personal injury or damage to property caused in whole or part by a failure of the Products to comply with the warranties in Clause 11.

“Products” means the combination of all software products and services provided by Apply Mobile.

“Software” means the Customer Managed Software or Software components that are required to be run on Customer Managed Platforms as described in Schedule 1.

“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software.

“Subscription Fee” means the fee charged to Customer by Apply Mobile or an Apply Mobile authorised sales partner or distributor for (i) the Cloud Service (including Technical Support) and (ii) each copy of Customer Managed Software purchased (including Technical Support and Maintenance) for the Subscription Term.

“Subscription Term” means the period during which Customer is subscribed to Cloud Service and or Customer Managed Software as described in applicable customer sales order.

“Update” means a hotfix, patch or minor version update to the Software that the Licensor makes generally available in respect of the Software.

“Upgrade” means a major version upgrade of the Software that the Licensor makes generally available in respect of the Software.

“User(s)” means an authorised employee, contractor, client or customer of Customer to whom Customer provides access to the Customer Managed Software or the Cloud Service in line with Customer’s User Licence Allocation and entitlements as specified in the relevant schedules.

“User Licence” means an individual software licence that has been issued to a User in order for them to use the Customer Managed Software or Cloud Service.

“User Licence Allocation” means the agreed or purchased quantity of user licences provided to Customer by Apply Mobile for the Subscription Term and the use of which is bound by the terms of this EULA.

2 Term

This EULA shall come into force upon the Effective Date.
This EULA shall continue in force for the duration of the Subscription Term, subject to termination in accordance with Clause 18.

3 Subscription & Licence

In consideration of the Customer agreeing to the terms of this EULA, the Licensor hereby grants to the Customer for the duration of the Subscription Term a non-exclusive, non-transferable licence to:
1. install the object code version of the Software at the Customer’s sites;
2. use the object code version of the Software in accordance with the Documentation; and
3. access Products through the Cloud Service.

subject to the limitations and prohibitions set out and referred to in this Clause 3.

The Customer must not sub-license or purport to sub-license any rights granted under Clause 3.1.
Save to the extent expressly permitted by this EULA or required by applicable law, any licence granted under this Clause 3 shall be subject to the following prohibitions:

the Customer must not reproduce, copy or transmit the Software, except that the Customer may make backup copies of the Software as may be necessary for its lawful use. The Customer shall keep accurate and up to date records of the number and location of all copies of the Software and take steps to prevent unauthorised copying;
the Customer must not sell, resell, rent, lease, loan, supply, publish, distribute, redistribute, merge or transfer the Software or give access to the Cloud Service to any third party;
the Customer must not alter, edit or adapt the Software;
the Customer must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer the Software, or otherwise reduce or seek to reduce the Software to a human readable (source code) form;
the Customer must not conceal, modify, remove, or destroy in any way any proprietary markings on or in the Software including without limitation any copyright notices or confidential legends placed upon or contained within the Software.
- The Customer undertakes to keep all copies of the Software supplied to the Customer under this EULA secure and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.

4 Source Code

Nothing in this EULA shall give to the Customer or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

5 Cloud Service Free Trial License.

Customer may subscribe for or may receive from Apply Mobile or Reseller a free trial of the Cloud Service, subject to the terms of this EULA and further terms as specified by the Managed Service Provider. Apply Mobile retains the right to remove and subsequently delete a Customer’s free trial licence and all related data after twelve (12) weeks of inactivity. Apply Mobile’s free trial offers are subject to change or discontinuation without notice at any time. Notwithstanding anything to the contrary in this Agreement, Clause 12 (Warranties) and Clause 14 (Intellectual Property Rights Indemnity) shall not apply to a free trial of the Cloud Service.

6 Evaluation License

In consideration of the Customer agreeing to the terms of this EULA, Apply Mobile may provide an evaluation License to Customer to evaluate the Customer Managed Software or Cloud Service on an evaluation use basis only and the terms of this paragraph shall apply. Apply Mobile grants Customer a non-exclusive, non-transferable license, without right of sublicense, to install and use the Customer Managed Software or Cloud Service. This license to use the Customer Managed Software or Cloud Service commences on installation of the Customer Managed Software or use of the Cloud Service and, unless Customer and Apply Mobile agree to a different period, will terminate after a period of thirty (30) days (the “Evaluation Period”). Apply Mobile reserve the right to terminate the evaluation period in accordance with Clause 18 of this EULA. Notwithstanding anything to the contrary in this Agreement, Clause 12 (Warranties) and Clause 14 (Intellectual Property Rights Indemnity) shall not apply to the evaluation licence.

7 Procurement & Maintenance of System

Customer is responsible for their own procurement, installation and maintenance of the Customer Supported Platform, together with the provision of any other hardware or software that may be required for its correct operation (collectively the “System”), and for providing a suitable operating environment in accordance with vendor specifications. Apply Mobile is not responsible for the design, operation, management and installation of the System and customer shall seek advice from System vendors to ensure proper configurations are in place. Customer acknowledges that on occasion, Updates to the Customer Managed Software may require upgrades to specific components of the System, in-line with the Upgrade detailed information and specification notes (collectively “Release Notes”). Customer will be solely responsible for all aspects associated with procuring and obtaining such software and hardware upgrades.

8 Third Party Software

Save as set out in clause 3, no third-party software shall be deemed to be incorporated within the Software for the purposes of this EULA and use of any third-party software shall be subject to the third-party software vendor’s end user licence terms.
The Customer shall indemnify and hold the Licensor harmless against any liabilities, costs, damages and losses which the Licensor may suffer or incur as a result of any unauthorised use by the Customer of any third-party software or any breach by the Customer of any third-party end user licence terms howsoever arising. The Licensor may treat any such unauthorised use or breach as a breach of this EULA. The Software may include components of software code and redistributables that are licensed under third party licenses, permissions, and notices.
A complete list of third-party licenses, permissions, and notices along with components and redistributables that are included in the Software is available upon request. Such third-party components and redistributables are provided “AS IS”. The contributors give no express or implied warranty, guarantee or indemnity and they are excluded from any condition, warranty, guarantee or indemnity provided by the Licensor under this EULA. All copyright and other Intellectual Property Rights in and to such third-party components and redistributables, any accompanying printed materials and any copies thereof are owned by the respective contributor.

9 Retention of Rights

Apply Mobile reserves all rights not expressly granted to Customer in this EULA. Without limiting the generality of the foregoing, Customer acknowledges and agrees (i) that Apply Mobile and its third party licensors retain all rights, title and interest in and to the Customer Managed Software, Cloud Service and support, design and other related documentation and (ii) that it does not acquire any rights, express or implied, in or to the foregoing, except as specifically set forth in this EULA. Any new features, functionality, corrections or enhancements for the Customer Managed Software or Cloud Service suggested by Customer shall be free from any confidentiality restrictions that might otherwise be imposed upon Apply Mobile pursuant to Clause 18 (Confidentiality), and may be incorporated into the Customer Managed Software or Cloud Service by Apply Mobile. Customer acknowledges that the Customer Managed Software or Cloud Service incorporating any such new features, functionality, corrections or enhancements shall be the sole and exclusive property of Apply Mobile.

10 Assignment of Intellectual Property Rights

All Intellectual Property Rights in the Software and the Documentation belong to the Licensor or the relevant third-party owners (as the case may be). Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Customer.
The rights in the Software and the Documentation are licensed and not sold to the Customer, and the Customer has no right to in or to the Software or the Documentation other than the right to use each of them in accordance with the terms of this EULA.

11 Warranties

The Licensor warrants to the Customer that it has the legal right and authority to enter into this EULA and to perform its obligations under the EULA.
The Licensor warrants to the Customer that the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation for a period of ninety (90) days from the date of the Customer’s receipt of the Software (the “Warranty Period”).
The Customer’s exclusive remedy for the failure of the Software to comply with the warranty in clause 2 of this EULA during the Warranty Period shall be, at the Licensor’s sole option, the repair or replacement by the Licensor of the Software, subject to the Customer returning the Software to the Licensor with proof of purchase and a description of the relevant defect. This limited warranty shall not apply if failure of the Software has resulted from accident, abuse, or misuse by anyone other than the Licensor.
The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed or configured to meet the individual requirements of the Customer.
The Customer warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under the EULA.
All of the parties’ warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, all other warranties, conditions and terms, whether express or implied by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose, non-infringement or the use of reasonable skill and care, are hereby excluded from this EULA.

12 Acknowledgements and Warranty Limitations

The Customer acknowledges that complex software is never wholly free from defects, errors and bugs and, subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be free from defects, errors and bugs, or that the use of the Software will be free from interruption.
The Customer acknowledges that complex software is never entirely free from security vulnerabilities and, subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
The Customer acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Documentation; and the Licensor does not warrant or represent that the Software will be compatible with any other software. The Customer is solely responsible for ensuring that the Software operates properly with any third-party software or hardware, and the Licensor expressly disclaims any liability with respect to any failure of the Software to operate with such third-party software or hardware.
Except to the extent expressly provided otherwise in this EULA, the Licensor gives no warranty that the Software or the use of the Software by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

13 Intellectual Property Rights Indemnity

Subject to the Customer’s compliance with this EULA, Apply Mobile hereby indemnifies and undertakes to keep indemnified the Customer against any losses, damages, claims, obligations, liabilities, costs and expenses suffered or incurred by Customer (including reasonable legal costs and expenses) arising out of or in connection with any IPR Infringement Claim made against the Products.
The Customer will:
1. upon becoming aware of an actual or potential IPR Infringement Claim, promptly notify Apply Mobile;
2. provide to Apply Mobile all reasonable assistance in relation to the IPR Infringement Claim;
3. allow Apply Mobile the exclusive conduct of the IPR Infringement Claim and all related disputes, proceedings, negotiations and settlements; and
4. not admit liability in connection with any IPR Infringement Claim or settle any IPR Infringement Claim without the prior written consent of Apply Mobile.

14 Product Liability Claims

Subject to the Customer’s compliance with this EULA, Apply Mobile hereby indemnifies and undertakes to keep indemnified the Customer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any Product Liability Claim, except to the extent that the liabilities, losses, costs, damages and expenses arise as a result of the default of the Customer. Examples of default include non-compliance with Apply Mobile’s written specifications or instructions; modification of the Customer Managed Software or Cloud Service other than by Apply Mobile; use or operation of the Customer Managed Software or Cloud Service other than in accordance with the applicable documentation; the combination of the Customer Managed Software or Cloud Service with software, hardware or other items not supplied by Apply Mobile for use with the Products.
The Customer will:
1. upon becoming aware of an actual or potential Product Liability Claim, promptly notify Apply Mobile;
2. provide to Apply Mobile all reasonable assistance in relation to the Product Liability Claim;
3. allow Apply Mobile the exclusive conduct of the Product Liability Claim and all related disputes, proceedings, negotiations and settlements; and
4. not admit liability in connection with any Product Liability Claim or settle any Product Liability Claim without the prior written consent of Apply Mobile.

15 Customer Indemnity

Customer shall defend, indemnify and hold Apply Mobile harmless against any claim brought by a third party, and shall pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Apply Mobile by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Customer, to the extent such claim arises out of any of the following: (a) Customer’s use of the Customer Managed Software or Cloud Service other than as authorised under this EULA; (b) violation of any applicable law, including but not limited to data protection and privacy laws; or (c) any alleged grossly negligent or wilful acts or omissions of Customer which gave rise to such claim.

16 Limitations and Exclusions of Liability

Nothing in this EULA will:
1. limit or exclude either party’s liability for death or personal injury resulting from negligence;
2. limit or exclude either party’s liability for fraud or fraudulent misrepresentation;
3. limit any liabilities in any way that is not permitted under applicable law; or
4. exclude any liabilities that may not be excluded under applicable law.
The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this EULA:
1. are subject to Clause 1; and
2. govern all liabilities arising under the EULA or relating to the subject matter of the EULA, including liabilities arising in contract, in tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution of otherwise, except to the extent expressly provided otherwise in the EULA.
The Licensor will not be liable to the Customer in respect of any losses arising out of the occurrence of a Force Majeure Event.
The Licensor will not be liable to the Customer in respect of any loss of profits or anticipated savings.
The Licensor will not be liable to the Customer in respect of any loss of revenue or income.
The Licensor will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
The Licensor will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
The Licensor will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
The total aggregate liability of the Licensor to the Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising under or in connection with this EULA shall in no event exceed the total of the previous 12 months fees paid by the Customer to the Licensor or the Licensor’s appointed reseller for the Software in respect of which such liability arises. For the avoidance of doubt, any claim that the Customer alleges in relation to the Software shall be made pursuant to this EULA and Licensor ‘s appointed agents, distributors and resellers shall have no liability for the Software.

17 Confidentiality

The Customer acknowledges and agrees that the Software and all proprietary technology, know-how and documentation related to the Software, constitute confidential proprietary information of the Licensor. Accordingly, the Customer shall not disclose to any person or entity any information about the Software or other confidential information of the Licensor that is furnished to or otherwise becomes known to the Customer, except that the Customer may disclose such information on a need-to-know basis to its employees who are obligated to maintain the confidentiality of such information.

The Customer’s obligation to maintain the confidentiality of such information shall not apply to information which:

the Customer can show was known to the Customer before receiving such information;
is in the public domain;
is received by the Customer from a third party who was legally entitled to make an unrestricted disclosure; or
the Customer can show to the reasonable satisfaction of the Licensor that such information has been developed independently of the Licensor’s confidential information.

18 Termination

This EULA will terminate automatically at the end of the Subscription Term.
The Licensor may terminate this EULA with immediate effect by giving written notice of termination to the Customer if:
1. the Customer commits any material breach of the EULA, and:
  1. the breach is not remediable; or
  2. the breach is remediable, but the Customer fails to remedy the breach within the period of 30 days following the Licensor giving a written notice to the Customer requiring the breach to be remedied; or
2. the Customer persistently breaches the EULA (irrespective of whether such breaches collectively constitute a material breach).
The Licensor may terminate this EULA with immediate effect by giving written notice of termination to the Customer if:
1. the Customer:

is dissolved;
ceases to conduct all (or substantially all) of its business;

is or becomes unable to pay its debts as they fall due;

is or becomes insolvent or is declared insolvent; or
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
1. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the Customer’s assets; or
2. an order is made for the winding up of the Customer, or the Customer passes a resolution for its winding up; or
3. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 3 (a) to (c) (inclusive).

The Licensor may terminate this EULA with immediate effect by giving written notice to the Customer if any amount due to be paid by the Customer to the Licensor’s appointed reseller (the “Relevant Reseller”) under any agreement between the Customer and the Relevant Reseller is unpaid by the due date and remains unpaid upon the date that the Licensor gives notice of termination under this EULA.

19 Effects of Termination

Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3, 8.2, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21
The termination of this EULA shall not affect the rights of either party that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this EULA which existed at or before the date of termination.
For the avoidance of doubt, the rights granted to the Customer under this EULA shall terminate upon the termination of this EULA; and, accordingly, the Customer must immediately cease to use the Software upon the termination of this EULA.
Upon termination of this EULA, the Customer must immediately and irrevocably delete from all computer systems in its possession or control all copies of the Software.

20 General

No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
This EULA may not be varied except by a written document signed by or on behalf of each of the parties.
The Customer may not assign, subcontract or deal in any way with, any of its rights or obligations under this EULA without the Licensor’s prior written consent. Any attempted assignment not in accordance with this EULA shall be void. Subject to the foregoing, the rights and obligations of the parties under this EULA shall be binding upon and inure to the benefit of their successors and permitted assigns.
Subject to clause 4, this EULA is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
This EULA shall constitute the entire agreement between the Licensor and the Customer in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the Licensor and the Customer in respect of that subject matter. The Customer acknowledges that, in entering into this EULA, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this EULA or not) other than as expressly set out in this EULA.
This EULA and any dispute or claim arising out of it or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this EULA or its subject matter or formation (including non-contractual disputes or claims).

21 Interpretation

In this EULA, a reference to a statute or statutory provision includes a reference to:
1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
2. any subordinate legislation made under that statute or statutory provision.
References to clauses and Schedules are to the clauses of and Schedules to this EULA.
The Schedules and Appendices form part of this EULA and shall have effect as if set out in full in the body of this EULA. Any reference to this EULA includes the Schedules and Appendices.
The Clause headings do not affect the interpretation of this EULA.
In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Schedule 1 The “Software”

Software Products	Description
idenprotect MFA & SSO	idenprotect’s password-free Multi-Factor Authentication and unified Single Sign on solution. provides idenprotect’s Managed Client Identity, the next generation in strong multi-factor authentication and Unified Single Sign-on, the ability to have password-free access to enterprise systems, applications and data.
idenprotect Enterprise Identity Management	idenprotect Enterprise Identity Management provides identity management across the enterprise. The solution provides a mechanism to write to LDAP directories such as Active Directory to manage entitlements, groups and users. This includes the ability to create, amend and delete internal and external users, including features such as Windows password resets.
idenprotect for Windows	idenprotect for Windows allows a user to log into Windows devices that run the Windows operating system (laptops and desktops) without using a password and also to gain secure, password-free single sign-on to other systems and applications.
idenprotect Cloud or Managed Service	idenprotect as a Cloud or Managed Service. Requires Customer to have Internet Access