End User Licensing Agreement
- “Reseller” shall mean an individual or company purchasing IDENTIGY Software licenses in view of transferring such license directly to End User.
- “End User” shall mean the licensee agreeing to the terms and conditions herein for use of the IDENTIGY Software.
- “IDENTIGY” shall mean IDENTIGY Technology FZCO the licensor of the IDENTIGY Software.
- “Software” shall mean the proprietary, intellectual property of IDENTIGY.
- “Services” shall mean the software as a service delivery of IDENTIGY software
- “Controller” shall mean any person or organization that, alone or jointly with others, determines the purposes and means of the processing of gathered data.
- “GDPR” shall mean the European Union General Data Protection Regulation.
- “Personal Data” shall mean personally identifiable information about individuals located within and outside of the European Union and may include, but not limited to, the following: (i) categories of data subjects: customers, vendors, or employees and (ii) types of personal data: names, telephone numbers or email addresses.
- “Process(es)” or “Processing” of Personal Data means any operation or set of operations that is performed on such Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure or dissemination, and erasure or destruction.
- “Processor” means any natural or legal person, public authority, agency, or other body that Processes Personal Data on behalf of Controller.
- GRANT OF LICENSE
IDENTIGY hereby grants End User a non-transferable, non-exclusive license to operate and use IDENTIGY’s Software, delivered as a hosted service, for the sole and exclusive benefit of End User and End User agrees to pay all initial fees, and subscription or annual license fees for the term of this Agreement. Subscription and annual license fees may be subject to change annually.
In addition to other restrictions set forth in EULA, End User may not:
- Use, copy, modify or distribute the Software (electronically or otherwise) or any copy, adaptation, transcription or merged portion thereof except as expressly authorized under this EULA;
- Use the Software for the benefit of third parties in a commercial, retail, service bureau or similar enterprise, except as expressly authorized under this EULA;
- Copy, modify, transfer, rent or reverse assemble or decompile the Software or documentation, or otherwise examine the Software for purposes of reverse engineering;
- Remove the labels or any proprietary legends from the Software.
- DATA OWNERSHIP
All data uploaded by Customer into, or created using, IDENTIGY Software or Services used by Customer is owned solely by the Customer and IDENTIGY will not access such data unless for the sole purpose of delivering the Services.
- If Reseller and/or End Users discover an error in the coding or logic of the IDENTIGY Software as delivered prevents the IDENTIGY Software from performing substantially in accordance with the documentation, Reseller shall notify IDENTIGY of error, and on request by IDENTIGY, will deliver its analysis thereof accompanied by complete data listings, screen listings, and sample runs exhibiting the error. Upon receipt of such notice,
IDENTIGY shall, within ten (10) days, respond at its option in one of the following ways and deliver to Reseller, for the benefit of the End User:
- An updated version of the Software that corrects the error; or
- Detailed and effective procedures for avoiding the error until such error is corrected in a subsequent release of the IDENTIGY Software; or
- An agreed upon plan to fix the error.
This Section 4 shall not apply to Software maintenance services rendered by IDENTIGY if the rendering of such services is required due to Reseller’s or End Users’ changes to procedures, or computer environment, or due to Reseller’s or End Users’ changes to IDENTIGY Software, or due to alteration of the data used by the IDENTIGY Software through methods other than provided by the software, and any such services will be provided by IDENTIGY at additional charges.
- SOFTWARE UPDATES AND CHANGES
IDENTIGY shall periodically notify Reseller or End User of the availability of newer versions or functionality of IDENTIGY Software that have been made available for use by its End Users generally.
Changes to the Software configuration and/or Subscription terms must be made in writing and require mutual consent. Such changes may result in a change of price and/or other terms of this EULA.
End User acknowledges the proprietary rights of IDENTIGY in and to the Software, including but not limited to computer programs, user manuals, other supporting material and data, identifying symbols, passwords and user numbers, and further acknowledges that such are properly considered to be trade secrets in that they involve processes and compilation of information that are secret, confidential, and not generally known to the public, and which are the product of IDENTIGY’s own expenditure of time, effort, money, and creative skills. End User also acknowledges and agrees that use of the Software is furnished during the terms of the EULA to End User on a confidential and secret basis for the sole and exclusive use of End User and not for resale, and agrees that it will not use, publish, disclose, or otherwise divulge to any person, except necessary officers, employees, and consultants of End User, at any time, either during or after the termination of the Agreement, nor permit its officers or employees to so divulge any such information regarding the Software, without the prior written consent of an officer of IDENTIGY, except that End User is authorized hereby to reproduce information derived from the Software for its own internal use by authorized officers and employees. Notwithstanding the foregoing, the proprietary and secret information covered hereby may be disclosed by End User to a third party, person,
firm or corporation if such disclosure is unavoidable because of its or their access to or control of End User’s computer, provided that this sentence shall not be deemed to permit any use of the Software that would otherwise be prohibited by this Section 7. In the event any such information is so disclosed, End User agrees that any unauthorized use or disclosure of such information by such third party, person, firm, or corporation may be treated by IDENTIGY as an unauthorized use of disclosure by End User, and End User shall remain liable therefore. Nothing herein shall be deemed to limit any rights of IDENTIGY under copyright, patent or other law.
The preceding provisions of this Section shall not apply to any data, information, item, or other matter that is in the public domain at the time of disclosure to IDENTIGY or End User, or that is thereafter disclosed to either, as a matter of right by a third person or persons, or that thereafter passes into public domain by acts other than the unauthorized acts of IDENTIGY or End User, or that is in the possession of either party at the time of its disclosure by the other.
- INTELLECTUAL PROPERTY
End User agrees that all tangible objects provided by IDENTIGY containing or relating to the trade secrets described herein are the sole and exclusive property of IDENTIGY and on termination of the EULA for any reason, End User will forthwith return to IDENTIGY software (CD’s), the user manuals, instructions, and related material that were furnished to End User, to destroy all copies of the Software and data stored on disks, CD’s or tapes, and shall not retain any copies for its use or for any purpose.
- PRIVACY AND INFORMATION SECURITY
Authority to Process Personal Data
- End User and IDENTIGY agree that End User is the Controller and IDENTIGY is the Processor of Personal Data.
- IDENTIGY will Process Personal Data only with End User’s written instructions and solely for the following purposes, (i) on behalf of and for the benefit of End User in connection with the Agreement; and (ii) to carry out its obligations pursuant to this Addendum, the Agreement, and (iii) as required by applicable law.
- End User will have the exclusive authority to determine the purposes for and means of Processing Personal Data.
Disclosure of and Access to Personal Data
- IDENTIGY will hold all Personal Data in confidence.
- IDENTIGY will (i) provide at least the same level of privacy protection for Personal Data received from End User, as is required by the GDPR and other applicable regulations; (ii) promptly notify End User if at any time IDENTIGY determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR and other applicable regulations; and (iii) take commercially reasonable steps to remedy any failures to properly Process such Personal Data if, at any time, End User notifies IDENTIGY that End User has reasonably determined IDENTIGY is not Processing the Personal Data in compliance with the GDPR and other applicable regulations.
- IDENTIGY will not share, transfer, disclose, or otherwise provide access to any Personal Data to any third party or contract any of IDENTIGY’s rights or obligations concerning Personal Data to a third party, unless End User has authorized IDENTIGY to do so in writing, except as required by law. Where IDENTIGY, with the consent of End User, provides to a third-party, access to Personal Data or contracts such rights or obligations to a third party, IDENTIGY will, with each third party, (i) enter into a written agreement that imposes obligations on the third-party that are consistent with the GDPR, (ii) transfer such Personal Data to the third party only for the limited and specified purposes as instructed by End User, (iii) require the third party to notify IDENTIGY if the third party determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR and other applicable regulations; and (iv) upon notice, take reasonable and appropriate steps to stop and remediate unauthorized Processing.
- IDENTIGY will promptly inform End User in writing of any requests with respect to such Personal Data received from End User’s consumers, employees, or other associates. End User will be responsible for responding to any such request, but IDENTIGY will reasonably cooperate with End User to address any such request or a request by an individual about whom IDENTIGY holds such Personal Data for access, correction, restriction, objection, erasure or data portability of his or her Personal Data.
- IDENTIGY shall implement appropriate technical and organizational measures designed to protect such Personal Data from an accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access or use (each a “Security Incident”) and in accordance with IDENTIGY’s security standards.
- IDENTIGY shall notify End User within forty-eight (48) hours of a Security Incident, and shall provide such timely information as End User may reasonably require to enable End User to fulfil any data breach reporting obligations under the GDPR and other applicable regulations. IDENTIGY will take steps to immediately identify and remediate the cause of such Security Incident.
- Subject to applicable law, IDENTIGY will notify End User immediately in writing of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of such Personal Data. End User may, if it so chooses, seek a protective order, and IDENTIGY will reasonably cooperate with End User in such action, provided End User reimburses IDENTIGY for all costs, fees, and legal expenses associated with the action.
IDENTIGY will comply with applicable data protection and privacy laws, including, but not limited to, the GDPR, to the extent such laws apply to IDENTIGY in its role as a Processor.
End User certifies that it:
- Has obtained the written consent, affirmative opt-in, other written authorization (“Consent”) from applicable individuals in the European Union including the legal basis for collecting, delivering or making accessible Personal Data to IDENTIGY, and such Consent or other legitimate basis allows IDENTIGY to Process such Personal Data pursuant to the terms of this Agreement, and
- Has ensured that the collection, delivery and disclosure to IDENTIGY of such Personal Data is in compliance with the GDPR and other applicable regulations as Controller and all laws applicable to End User and otherwise complies with applicable privacy and data protection laws, including the delivery of comprehensive information notice, as needed.
IDENTIGY will assist End User in ensuring that its secure Processing obligations, as Controller, under the GDPR and other applicable regulations are met, which may include assisting End User in consultation with a supervisory authority where a data protection impact assessment indicates that the intended Processing would result in a high risk.
Upon termination of the Agreement, IDENTIGY shall either return all such Personal Data Processed on behalf of End User or delete or destroy such Personal Data, including any existing copies, at End User’s expense, if any, unless IDENTIGY has a legal obligation to maintain such Personal Data.
Without limiting anything contained in this EULA, End User agrees that it will not modify or permit anyone to modify any part of the Software. This Section 8 shall survive termination of this Agreement.
End-User agrees to defend, indemnify and hold harmless IDENTIGY, its officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to costs and attorney’s fees) arising from (i) Your use of the IDENTIGY Software; (ii) Your violation of any term of this Agreement; (iii) Your violation of any third party right, including without limitation any copyright or other property right, or privacy right, including under the GDPR and other applicable regulations; or (iv) Any claim that IDENTIGY violated provisions of the GDPR and other applicable laws based on processing data a) in accordance with instructions that You provided to IDENTIGY; or b) expressly or impliedly on your behalf to provide agreed-upon services to You. This defense and indemnification obligation will survive the termination of this Agreement and continue even if You stop using the Software.
- WARRANTIES AND REPRESENTATIONS
IDENTIGY warrants the IDENTIGY software and the materials supplied in conjunction therewith to be free from any defect in material or workmanship or programming and will perform substantially well in compliance with the applicable documentations at the time of delivery, and in the event of any such defect, remedies available to the end user will be those provided herein.
The software licensed hereunder shall substantially conform to the software documentation in accordance with this eula at the time it is delivered to the end user. IDENTIGY agrees to correct any and all defects in the software arising from the software. IDENTIGY shall not be liable for any defects in the event that the software is changed or altered in any respect by anyone other than an authorized agent of IDENTIGY after the delivery of the software to the end user. IDENTIGY shall not be liable in any respect for any damages arising from the furnishing by the end user of incorrect information submitted and used as input to the software.
The above warranty is in lieu of all other warranties expressed or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. In no event will IDENTIGY be liable for consequential damage whether or not it has notice of the possibility of any such damages. IDENTIGY in no event shall be liable for any lost profits.
IDENTIGY shall hold end user harmless, and shall defend any suit or proceeding brought against end user insofar as such suit or proceeding is based on a claim that the use of the software furnished by IDENTIGY under
This eula constitutes infringement of any copyright, patent, trade secret or other proprietary rights, provided IDENTIGY is promptly notified in writing and given authority, information, and assistance of the defense of same; and IDENTIGY shall at its own expense and at its option, procure for end user the right to continue to use said software or to modify it so that it becomes non-infringing or to replace the same with a non-infringing installation. The foregoing shall not be construed to include any agreement by IDENTIGY to accept any liability whatsoever in respect to copyrights, patents, trade secrets, or other proprietary rights for non- IDENTIGY software or inventions including more than the software furnished hereunder, or in respect to copyrights or patents, trade secrets, and other proprietary rights for methods and processes to be carried out with the aid of the software, except those that are inherent in the software as furnished. The foregoing states the entire liability of IDENTIGY with regard to the copyright, patent, trade secrets, and other proprietary rights infringement.
- LIMITATION OF LIABILTY
IDENTIGY and each of the third-party suppliers (for purposes of this section, IDENTIGY and each of the third-party suppliers shall be collectively referred to as “IDENTIGY”) shall not be liable for any incidental or consequential damages for breach of any express or implied warranty, breach of contract, negligence, strict liability or under any other legal theory related to the software, including, but not limited to, any damages arising out of loss of profits, loss of revenue, loss of data, loss of use of the software or any associated hardware, downtime and user’s time, even if any of them have been advised of the possibility of such damages. In any case, each and all of their aggregate liability under any provision of this eula shall be limited to the amount actually paid for the software or fees paid in the prior 12 months.
- FORCE MAJEURE
Should any circumstances beyond the control of IDENTIGY or End User occur that delay or render impossible the performance of its obligation hereunder, such obligation shall be postponed for such time as necessary or delayed on account thereof, or cancelled, if such performance necessarily has been rendered impossible thereby. Events of Force Majeure shall include, without limitation, accidents, acts of God, strikes or other labor disputes, acts, laws, pandemics, quarantine restrictions, transportation embargoes, acts of war, embargoes, terrorism, boycotts, nuclear incidents, or health or environmental emergencies, regulations, or rules of any government or governmental agency, and any other similar circumstances beyond the control of IDENTIGY or End User.
- GOVERNING LAW
This Agreement shall be subject to acceptance by IDENTIGY and shall be governed by the laws of UAE. In case anyone or more of the provisions contained in this EULA shall be invalid, illegal, or unenforceable in any respect under any applicable statute or rule of law, then such provisions shall be deemed inoperative to the extent that they are invalid, illegal, or unenforceable, and the remainder of this EULA shall continue in full force and effect. The parties hereto agree to replace any invalid, illegal, or unenforceable provision with a new provision that has the most nearly similar permissible economic effect.
- JURISDICTION; DISPUTE RESOLUTION
Any disputes arising out of or in connection with this Agreement, including specifications and any question regarding its existence, validity, breach, violation or termination, shall be exclusively and finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce effective January 1st 1998 in the then applicable form (“ICC Rules”) by three arbitrators (the “Arbitral Tribunal”) appointed in accordance with the said Rules. Any award granted by the Arbitral Tribunal shall be final, binding and enforceable against the Parties. The arbitration shall at all times be held in the English language. Judgment upon an award rendered by the Arbitrator shall be binding and may be entered in any court with appropriate jurisdiction, and the Parties consent to jurisdiction therein for the purpose of such enforcement. Notwithstanding anything to the contrary contained in this Agreement or elsewhere, each of the parties hereby acknowledges and expressly agrees that any breach by it of this Agreement, which does or may result in loss of confidentiality or improper use of Confidential Information, would cause irreparable harm to the other party for which money damages would not be an adequate remedy. Therefore, each of the Parties hereby agree, that in the event of any breach of this Agreement by it, the non-breaching Party will have the right to seek injunctive relief in a court of competent jurisdiction against continuing or further breach by the breaching Party, without the necessity of proof of actual damages, in addition to any other right which either Party may have under this Agreement, or otherwise in law or in equity.
The arbitration proceeding herein shall be conducted in Pennsylvania, USA, unless otherwise agreed in a signed writing. Each party shall bear one half of the arbitration fees and costs incurred, and each party is responsible for its own lawyer fees, unless the arbitrators agree that the case was without a reasonable basis in law or fact, in which case costs and attorney’s fees may be awarded to the prevailing party.
All your claims in relation to this agreement must be arbitrated on an individual complainant basis, and cannot be consolidated in any arbitration with any claim or complaint of any other party or parties, except as agreed upon in a writing signed by IDENTIGY.
- End User affirms that it, and each of its owners, directors, employees, and every other person working on its behalf, has not and will not, in connection with the transactions contemplated by this EULA, or in connection with any other business transactions involving IDENTIGY, make, offer, or promise to make any payment, or transfer anything of value, directly or indirectly, (i) to any governmental official or employee (including employees of government-owned and government-controlled corporation and public international organizations), (ii) to any political party, official of a political party or candidate, (iii) to any intermediary for payment to any of the foregoing, or (iv) to any other person or entity if such payment or transfer would violate the laws of the country in which made or the laws of the United States. It is the intent of the parties that no payments or transfers of value shall be made that have the purpose or effect of public or commercial bribery, acceptance of, or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or securing an improper advantage. This shall not, however, prohibit normal and customary business entertainment or the giving of business mementos of nominal value to the extent not prohibited by applicable law.
- End User shall, at the request of IDENTIGY, certify that it has not, and to its knowledge no other person has, violated the provisions of this EULA. In the event that End User learns of, or has reason to know of, any violation of the provisions herein, End User shall immediately advise IDENTIGY of such knowledge or suspicion.
- End User shall cooperate with IDENTIGY in fulfilling all obligations related to this EULA, compliance with all laws and regulations, and any request for information or documents that may be necessary to apply for, maintain, or meet any governmental license, obligation, or requirement. End User shall provide written certification of compliance with the representations and warranties herein upon reasonable request by IDENTIGY.
- In the event suit is brought under this EULA to enforce any provision hereof, the party in default shall pay reasonable attorney’s fees to the prevailing party.
- The minimum term of this subscription or license is one year. On expiration of such minimum term, the subscription or license shall automatically renew for successive annual terms unless terminated by End User’s written notice to Reseller and IDENTIGY at least sixty (60) days prior to the expiration of such minimum term or renewal period.
- Upon termination of this EULA, End User agrees to return all copies of IDENTIGY Software, including all
CD’s, listings, tapes, documentation, and related material within thirty (30) days termination of this EULA. End User also agrees to destroy (erase) all copies of IDENTIGY Software which have been copied onto mass storage devices (such as hard disks).
- The parties agree that, so long as this EULA is in force, End User shall continue to pay annual license fees to Reseller. Termination of any line item maintenance may only be done with a 60-day written notice prior to the start of a renewal period.
- This EULA states the entire agreement between End User and IDENTIGY concerning the subject matter hereof and supersedes all prior proposals or agreements whether oral or written. Acceptance by End User of any offer by IDENTIGY is limited to the terms and conditions herein, and IDENTIGY’s acceptance of any offer which may be presented by End User is expressly conditional on End User’s assent to all the terms and conditions set forth herein, including those terms herein which may differ from, be inconsistent with or be in addition to End
User’s offer. End User’s authorized representative may confirm End User’s agreement to the terms and conditions herein through signature below. No alteration, waiver or modification of any provision of this EULA shall be effective unless it is in writing, expressly indicates that it modifies this Agreement EULA and is signed by the duly authorized representative of both End User and IDENTIGY.