If you use any of our software, read our legally binding agreement between Sophos and all end users of Sophos software products. If you wish to view this information in other languages (English, German, Spanish, French, Italian, Japanese, Simplified Chinese or Traditional Chinese) then visit this page to download a PDF.
SOPHOS LICENSE AGREEMENT
Please read carefully the following legally binding License Agreement between Sophos and Licensee (as defined below) for the Products defined below. By selecting the accept option, breaking the seal on the software package or installing, copying or otherwise using the Products, Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms of this License Agreement. If Licensee does not agree with the terms of this License Agreement, Licensee is not authorized to install or otherwise use the Products and, if applicable, may promptly return them and the accompanying items (including ANY written materials and packaging) to Licensee’s supplier together with proof of purchase for a full refund.
If Licensee does not agree with any of the terms or conditions of this License Agreement, Licensee is not authorized to use the Products for any purpose whatsoever. Also, by installing, copying or otherwise using Updates and/or Upgrades from Sophos, Licensee agrees to be bound by any additional license terms that accompany such Updates and/or Upgrades. If Licensee does not agree to the additional license terms that accompany such Updates and/or Upgrades, Licensee may not install, copy or use such Updates and/or Upgrades.
Where a reseller, service provider, consultant, contractor or other party downloads or otherwise provides the Products for Licensee and/or installs or activates the Products on Licensee’s behalf prior to Licensee’s use of the Products, such reseller, service provider, consultant, contractor or other party will be deemed to be Licensee’s agent acting on Licensee’s behalf and Licensee will be deemed to have accepted all of the terms and conditions of this License Agreement as if Licensee had directly downloaded, installed or used the Products.
IF YOU ARE USING THE SOPHOS UTM PRODUCT FOR HOME OR PERSONAL USE THEN THE TERMS OF THIS SOPHOS LICENSE AGREEMENT DO NOT APPLY, RATHER THE TERMS OF THE SOPHOS END-USER LICENSE AGREEMENT FOR CONSUMERS SHALL APPLY. SUCH TERMS ARE VIEWABLE HERE: http://www.sophos.com/legal/consumer-eula.html
'Appliance' means the Product described in the Schedule, which consists of the Hardware together with the Licensed Product(s).
'Computer' means any computing environment, other than a Server, which benefits from the Licensed Product (for example, environments connected to an email server, an internet proxy or a gateway device, or a database). The Licensed Product does not have to be physically installed on the computer environment to provide benefit, nor is there a requirement for the computing hardware to be owned by the Licensee. The term Computer as defined herein includes, without limitation, non-persistent deployments, electronic devices that are capable of retrieving data, and virtual machines.
'Documentation' means any documentation provided to Licensee by Sophos (whether electronic or printed) which accompanies the Licensed Products.
'Expiry Date' means such date as may be set out in the Schedule.
'Fee' or 'Fees' means, collectively, the Hardware Fee (if applicable), the Licensed Products Fee and the Support Fee (if any).
'FRU' means any field replaceable units for an Appliance made available to Licensee by Sophos, if applicable, comprising: (1) disk drives in carriers, and (2) power supply modules.
'Hardware' means the Appliance hardware itself, together with any related components (including but not limited to FRU, ship kits and rack mount kits).
'Hardware Fee' means the sums payable by Licensee in consideration of the transfer to Licensee of title to the Hardware in accordance with the terms and conditions set forth herein.
'License Agreement' means this Sophos license agreement and the Schedule.
'License Term' means the license term set out in Clause 3.2 of this License Agreement.
'Licensed Products' means all or each (as the context so allows) of those software programs which are listed on the Schedule issued to Licensee for Licensee’s Internal Business Purpose, or if no such programs are listed on the Schedule all programs which are installed on the Hardware provided to Licensee for Licensee’s Internal Business Purpose, together with the Documentation and any of the Upgrades and Updates to those programs.
'Licensed Products Fee' means the sums payable by Licensee in respect of a license to use the Licensed Products for the License Term, or, with respect to certain of Sophos’s Licensed Products, in respect of a license to use the Licensed Products in perpetuity.
'Licensee' means the purchaser of the license rights granted by this License Agreement and ‘Licensee’s’ means belonging to Licensee or engaged by Licensee or otherwise pertaining to Licensee as the context so allows, whether on a temporary basis or otherwise.
'Licensee's Internal Business Purpose' has the definition set out in Clause 3.3.1.
'Maintenance' means collectively Upgrades and/or Updates (where applicable to the Product), SMS message processing (where applicable to the Licensed Product), and standard technical support or enhanced technical support if Licensee has paid a Support Fee.
'Maintenance Fee' applies solely to Sophos’s Products licensed on a perpetual basis and means the sums payable by Licensee in respect of a right to receive Maintenance for the Maintenance Term.
'Maintenance Term' means the period for which Licensee are eligible to receive Maintenance. For all Products other than Products licensed on a perpetual basis, the Maintenance Term is coterminous with the License Term. For Products licensed on a perpetual basis, the Maintenance Term means the period for which Licensee has paid the applicable Maintenance Fee.
'Media' means objects on which data can be stored including without limitation CD-ROMs, tapes and floppy disks or other media containing the Software provided to Licensee by Sophos.
‘Outsourced Provider’ has the definition set out in Clause 3.4.5.
'Product' means the Licensed Product and Media and/or Hardware, as applicable.
'RMA' means return material authorisation, in relation to the Appliance and/or Hardware, as more fully described in Clause 5.3.
'Schedule' means the schedule(s) provided to Licensee by Sophos from time to time which set out certain details in relation to Licensee’s use of the Products, including without limitation Licensee’s license credentials, and which forms part of this License Agreement.
'Server' means a Computer upon which the Licensed Product is installed AND from which other Computers receive or retrieve data. If the data is solely generated by the Licensed Product, then the Computer is not considered a Server. 'Server License' means the maximum number of Servers (if any) that are permitted under the Schedule to run the Licensed Product at any time.
'Software' means any program or data file supplied to Licensee by Sophos or its resellers, distributors or dealers, including any Upgrades, and Updates supplied to Licensee. The term Software does not include Third Party Software.
'Sophos' means Sophos Limited (a company registered in England and Wales number 02096520) and its subsidiaries, or, as the context so applies, any of them.
'Start Date' means such date as may be set out in the Schedule.
'Support Fee' means the sums payable by Licensee in consideration of the provision by Sophos of enhanced support services, if applicable.
‘Third Party Licensors’ has the definition set out in Clause 9.
‘Third Party Software’ has the definition set out in Clause 9.
'Update' means an update to the library of rules and/or identities made available to Licensee by Sophos; and/or other updates to the software filters, including but not limited to an update to the IP address reputation libraries made available to Licensee by Sophos.
'Upgrade' means any enhancement or improvement to the functionality of the Product (excluding Updates) made available to Licensee by Sophos at its sole discretion from time to time but excluding any software and/or updates marketed and licensed by Sophos as a new product or bundle where such new product or bundle is provided to Sophos’s customers generally for a separate Fee.
'User' means an employee, consultant or other individual who uses a Computer which benefits from the Product licensed to Licensee and ‘Users’ shall be construed accordingly.
'User Licenses' means the maximum number of Users, or Computers (if applicable in accordance with the license exceptions set forth in Clause 3.3), as specified in the Schedule that are permitted to benefit from the Licensed Products.
2. COPYRIGHT AND OWNERSHIP
2.1 Sophos retains title to the Hardware until such time as any evaluation period described in Clause 3.1 (if applicable) expires and Licensee pays the Hardware Fee. Unless and until Licensee has paid the Hardware Fee, Licensee agrees to keep the Hardware free and clear of all claims, liens, and encumbrances except those of Sophos, and any act by Licensee, either voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Appliance shall be void. Once Licensee has paid the Hardware Fee, title to the Hardware shall pass to Licensee. Risk of loss passes to Licensee upon shipment of the Appliance to Licensee. Insurance, if any, covering the Appliance shall be Licensee’s responsibility. Licensee owns only the Hardware (or Media, if applicable) on which the Software is installed. Licensee does not own the Software itself. The Appliance, Software and the Documentation including all know-how, concepts, logic and specifications are proprietary products of Sophos and its licensors and are protected throughout the world by copyright and other intellectual property rights. No license, right or interest in Sophos’s logos, or trademarks is granted to Licensee under this License Agreement and Licensee hereby agrees not to remove any product identification or notices of proprietary restrictions. Further, Licensee hereby acknowledges and agrees that the right, title and interest in the Software and in any modifications made by Licensee to the Software or Documentation, as provided for below in this License Agreement, is retained by Sophos. Notwithstanding the foregoing, Sophos and any third party suppliers shall retain any and all intellectual property rights in the Hardware.
2.2 With respect to Appliances, Licensee acknowledges that the Appliance is sold hereunder solely as the medium for delivery and operation of the Licensed Products and, unless otherwise agreed by the parties in writing, Sophos at its option may provide Hardware that is either new or refurbished.
3. RIGHTS AND RESTRICTIONS
3.1 Evaluation. Licensee may use the Product for evaluation purposes only in a test environment without payment of a fee for a maximum of 30 days, or such other duration as is specified by Sophos at its sole discretion, upon provision of Licensee’s evaluation credentials. The Product is provided “AS IS” during such evaluation period and Clauses 3.3 and 5 below do not apply to such evaluation. If the Licensee does not purchase the Product, this License Agreement will terminate upon expiry of the evaluation period.
3.2 License Term. This License Agreement is effective from the moment of acceptance as described in the first paragraph of this License Agreement or from the Start Date, whichever date is earlier, and shall remain in force until: (i) expiry of the evaluation period in accordance with Clause 3.1 above, or (ii) the Expiry Date specified in the Schedule or, (iii) upon renewal of Licensee’s license, the Expiry Date of Licensee’s renewed license as set out in a Schedule provided to Licensee by Sophos. If no such expiry date is specified, this Agreement shall continue in perpetuity although Licensee’s right to use the Products is dependent upon Licensee’s payment of the applicable Fees) or until terminated as provided in Clause 12 below, whichever is the sooner. If Licensee wants to renew its license, Licensee should contact Sophos or Licensee’s reseller, distributor or dealer, as applicable. Licensee’s obligations under this License Agreement in respect of the intellectual property and confidential information of Sophos shall survive any expiry or termination of this License Agreement.
3.3 Rights. In consideration of the payment of the Fee by Licensee, Sophos hereby grants to Licensee a non-exclusive right to use the Products and receive the Maintenance for the License Term subject to the terms and conditions contained within this License Agreement, and, solely with respect to Products licensed on a perpetual basis, subject to Licensee’s payment of the applicable Maintenance Fees for the Maintenance Term. Licensee is permitted to:
3.3.1 use the Products for Licensee’s internal business purpose, relating specifically to the integrity of Licensee’s systems, networks, documents, emails and other data (“Licensee’s Internal Business Purpose”). The number of Users for which Licensee may use the Products for Licensee’s Internal Business Purpose must not exceed the total number of User Licenses. Licensee is wholly responsible for the compliance by Users with this License Agreement. The Licensee may install the Licensed Product on Servers (including, where such Servers are virtualized, each virtualized Server) provided that such installations do not exceed twenty-five percent (25%) of the total number of User Licenses. Each such Server installation consumes one User License. Licensee must purchase a Server License for each Server installation over and above the noted twenty-five percent (25%) allowance (for example, a Licensee with 1,000 User License may install the Licensed Products on 250 Servers with the remaining 750 licenses used to protect Users). The foregoing Server usage right is not available to Licensees in Japan, and such Licensees must purchase Server Licenses for each such Server installation. If Licensee intends to increase its number of server or client installations or any other change that would increase the number of required User Licenses, Licensee is obliged to inform Sophos promptly and ensure the necessary User Licenses are purchased;
3.3.2 use, copy, reproduce in whole or in part, adapt and modify the Documentation for Licensee’s Internal Business Purpose only;
3.3.3 subject to the restrictions in Section 3.4, transfer the Product and Licensee’s rights under this License Agreement on a permanent basis to another person or entity, provided that Licensee transfers the Hardware or Media (as applicable), all copies of the Licensed Products and Documentation and, prior to such transfer: (i) Licensee passes full contact details for the recipient to Sophos; and (ii) Licensee procures that the recipient agrees to be bound by the terms of this License Agreement and notifies Sophos in writing of its agreement. Where the Product is an encryption Product, then Licensee shall uninstall or decommission the Product prior to such transfer. Notwithstanding the foregoing, in accordance with Clause 11 of this License Agreement, Licensee acknowledges and agrees that if Licensee chooses to exercise Licensee’s rights under this Clause 3.3.3, Licensee is solely responsible for compliance with any and all applicable export control and other regulatory requirements with respect to such transfer;
3.3.4 IN RELATION TO ANY LICENCE FOR ENCRYPTION, THE RESTRICTION ON THE NUMBER OF USERS IN CLAUSE 3.3.1 DOES NOT APPLY TO LICENSEE. Instead, the following restriction shall apply: the number of Computers on which Licensee may use the Licensed Products for Licensee’s Internal Business Purpose must not exceed the total number of User Licenses;
3.3.5 IN RELATION TO ANY LICENCE FOR SOPHOS UTM PRODUCTS, EXCEPT FOR SUITE LICENCES THAT COMBINE UTM AND OTHER SOPHOS PRODUCTS, THE RESTRICTION ON THE NUMBER OF USERS AND THE REQUIREMENT FOR SERVER LICENSES IN CLAUSE 3.3.1 DOES NOT APPLY TO LICENSEE. Instead, the following restriction shall apply: neither the total number of Users nor the total number of Computers (including without limitation workstations, clients, servers, and other devices) that are protected by or receive service from the Sophos UTM Product may exceed the total number of User Licenses;
3.3.6 IF LICENSEE IS AN EDUCATIONAL, HEALTH OR GOVERNMENT ENTITY, THE RESTRICTION ON THE NUMBER OF USERS IN CLAUSE 3.3.1 MAY NOT APPLY TO LICENSEE. For such Licensees, Products may be licensed on a per-User basis as described in Section 3.3.1 or, instead, the per-Computer licensing set forth in Section 3.3.4 may apply, as determined by Sophos; with the applicable type of license to be noted on the Schedule;
3.3.7 The following URL lists the licenses that permit home-use http://www.sophos.com/legal/home-use-eula.html. Where home-use is permitted, Licensee’s employees are allowed to use the Licensed Product at home on a single workstation provided that Licensee shall be responsible for support and the distribution of Upgrades and Updates for such home-use licenses. The number of employees of the Licensee that are permitted to use the Licensed Products at home must not exceed the number of User Licenses. Home use of the Sophos UTM Product is governed by the terms of the Sophos End-User License Agreement for Consumers: http://www.sophos.com/legal/consumer-eula.html;
3.3.8 except as provided in Clause 3.3.2 above, which relates only to the Documentation, make one copy of the Licensed Products or any part thereof for backup purposes provided that Licensee reproduces Sophos’s proprietary notices on any such backup copy of the Licensed Products. Such restriction shall not prevent Licensee from backing up or archiving Licensee’s data.
3.4 Restrictions. Licensee is not permitted to:
3.4.1 use the Products for the provision of any service for the benefit of third parties unless Licensee first acquires an application service provider license from Sophos;
3.4.2 modify or translate the Products except (i) as necessary to configure the Licensed Products using the menus, options and tools provided for such purposes and contained in the Product; (ii) as necessary to develop custom filters using the “PerlMx Application Programming Interface (API)” where contained in the Licensed Product; and, (iii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee’s Internal Business Purpose;
3.4.3 reverse engineer, disassemble (including without limitation, removing the covering plates which bar access to the Hardware ports and/or accessing internal components of the Hardware) or decompile the Products or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein except to the extent and for the express purposes authorized by applicable law;
3.4.4 with respect to Appliance Products, install and/or run on the Appliance any software applications other than the Licensed Products and Third Party Software installed by Sophos on such Appliances;
3.4.5 transmit or provide access to the Products save as provided in this License Agreement. In the event that the Licensee has outsourced the performance of its information technology functions to a third party provider (the “Outsourced Provider”), the Licensee may permit such Outsourced Provider to manage the Products on the Licensee’s behalf provided that (i) Licensee shall provide prior written notice to Sophos, (ii) the Outsourced Provider shall only use and/or operate the Products for Licensee’s Internal Business Purpose, (iii) the number of Users (including both the Licensee and the Outsourced Provider) of the Products (or Computers or Servers on which the Products are installed, as applicable in accordance with Section 3.3 of this Agreement) shall not exceed the number of User Licenses purchased by the Licensee, (iv) Licensee shall ensure that the Outsourced Provider is aware of and complies with the terms and conditions of this License Agreement at all times (including without limitation the confidentiality, intellectual property and usage restrictions); and, (v) Licensee shall be responsible for the acts and omissions of the Outsourced Provider;
3.4.6 use Sophos Software for which Licensee has not paid the applicable Fees;
3.4.7 sub-license, rent, sell, lease, distribute or otherwise transfer the Products save as provided under this License Agreement unless Licensee obtains a separate license from Sophos for such purposes (for example, Licensee may not embed the Licensed Products into another application and then distribute such to third parties unless Licensee first acquires an OEM license from Sophos);
3.4.8 sub-license, rent, sell, lease, distribute or otherwise transfer an Appliance Product to any individual who is not acting in the course of business;
3.4.9 use the Products in or in association with safety critical applications where the failure of the Products to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or loss of life. Any such use is entirely at Licensee’s own risk, and Licensee agrees to hold Sophos harmless from any and all claims or losses relating to such unauthorized use; and/or
3.4.10 use the Products for the purposes of competing with Sophos, including without limitation competitive intelligence.
3.5 Use of the Sophos UTM Network Security Product. Licensee acknowledges and agrees that the functionality of the Sophos UTM Product requires the complete erasure of the hard disk of the target Computer during installation, including without limitation the operating system resident thereon. Licensee, by installing the aforementioned Licensed Product, expressly agrees that it shall ensure that the Computer on which such Licensed Product is to be installed does not contain any valuable data, the loss of which would cause damage to Licensee, and Sophos expressly disclaims any liability for losses of any kind related to Licensee’s failure to comply with this warning.
4.1 This License Agreement entitles Licensee to receive Maintenance for the License Term, or, if Licensee has purchased a license for Products licensed on a perpetual basis, for the Maintenance Term provided that Licensee has paid the applicable Maintenance Fee.
4.2 Licensee acknowledges and agrees that the Products and Sophos may directly and remotely communicate for the purposes of, without limitation, verifying Licensee’s credentials, issuing reports and alerts such as automated support requests and alert messages, and to provide Maintenance.
4.3 Sophos reserves the right in its discretion to limit the number of Users who may contact Sophos technical support.
5. WARRANTIES AND INDEMNITY
5.1 Sophos warrants to Licensee only that:
5.1.1 For a period of ninety (90) days from the date of purchase (the “Licensed Products Warranty Period"): (i) the Licensed Products will perform substantially in accordance with the Documentation provided that they are operated in accordance with the Documentation on the designated operating system(s); and (ii) the Documentation adequately describes the operation of the Licensed Products in all material respects; and
5.1.2 For a period of three (3) years from the date of purchase or such other period as may be specifically noted in the License Schedule, as applicable, (the "Hardware Warranty Period") and provided always that Licensee has a valid, fully paid up, unexpired license for an Appliance, Sophos warrants that the Hardware shall be free of defects in materials and workmanship under normal use and service and substantially conform to the Documentation.
5.2 If Sophos is notified in writing of a breach of the warranty for the Licensed Products described in Clause 5.1.1 or the warranty for the Hardware described in Clause 5.1.2 during the applicable Warranty Period, Sophos’s entire liability and Licensee’s sole remedy shall be (at Sophos’s option) to correct, repair or replace the Hardware, Licensed Products and/or Documentation, as applicable, within a reasonable time or provide or authorize a refund of the Fee following the return of the Products accompanied by proof of purchase. Any items provided as replacement under the terms of this warranty will be warranted for the remainder of the original Warranty Period.
5.3 If Licensee has purchased an Appliance which includes an advance replacement warranty, upon discovery of any failure of the Hardware, or any component of the Hardware, to conform with the warranty described in Clause 5.1.2 during the Hardware Warranty Period, Licensee is required to contact Sophos and seek an RMA number. Sophos will promptly issue the requested RMA upon Sophos’s determination that the warranty claim is a valid claim in accordance with the terms of this License Agreement. Upon confirmation of Licensee’s eligibility for the warranty rights described herein and Sophos’s provision to Licensee of an RMA (which RMA may be provided, at Sophos’s sole discretion, in response to Sophos’s receipt of an automated notification from the Appliance), Sophos will ship Licensee replacement Hardware ("Advance Replacement Hardware"). Such Advance Replacement Hardware may, at Sophos’s sole discretion, be new or refurbished. Upon receipt of the replacement Hardware (and in any event within 15 days from the date the RMA was issued), Licensee will return the allegedly defective Hardware or component part(s) of the Hardware to the return location indicated by Sophos, securely and properly packaged in the packaging provided with the Advance Replacement Hardware (if supplied), carriage (and insurance at Licensee’s option) prepaid with the RMA number prominently displayed on the exterior of the packaging.
5.4 If Licensee has purchased an Appliance which does not include an advance replacement warranty, upon discovery of any failure of the Hardware, or any component of the Hardware, to conform with the warranty described in Clause 5.1.2 during the Hardware Warranty Period, Licensee is required to return the Appliance to the return location indicated by Sophos securely and properly packaged, carriage (and insurance at Licensee’s option) prepaid. Upon receipt of a valid warranty claim in accordance with Clause 5.2 and receipt of the Appliance at the return location indicated by Sophos, Sophos will ship Licensee a replacement Appliance. Such replacement Appliance may, at Sophos’s sole discretion, be new or refurbished and may be the returned Appliance repaired by or on behalf of Sophos.
5.5 Title to the allegedly defective Hardware or component part shall pass to Sophos upon receipt by Licensee of the Advance Replacement Hardware, if applicable, or on shipment by Licensee of the Appliance to the return location indicated by Sophos, whichever is the sooner. Should the Hardware or component part(s) of the Hardware returned by Licensee: (i) be deemed not to be defective or ‘no fault found’ (NFF); or (ii) should a returned Appliance be missing any Hardware, Sophos will invoice Licensee and Licensee agrees to pay the cost of the Hardware or component part of the Hardware, as applicable. If Licensee fails to return allegedly defective Hardware or any component part(s) of the Hardware to the return location indicated by Sophos within the referenced time limit, Licensee will be responsible for the cost of returning such item to the return location and Sophos will be entitled to enter Licensee’s premises to repossess such item(s) at Licensee’s sole cost. SOPHOS SHALL NOT BE RESPONSIBLE FOR MAINTAINING OR PROTECTING ANY CONFIGURATION SETTINGS OR DATA FOUND ON THE RETURNED APPLIANCE OR COMPONENT PART OF THE APPLIANCE. Title to the Advanced Replacement Hardware or any replacement Hardware provided to Licensee in accordance with Clauses 5.3 and 5.4 respectively shall pass to Licensee on shipping or payment of the Hardware Fee, whichever is the later. Risk of loss in relation to the Advanced Replacement Hardware or any replacement Hardware provided to Licensee in accordance with Clauses 5.3 and 5.4 respectively passes to Licensee upon shipment of such Appliance to Licensee. Licensee shall be responsible for any insurance for the replacement Hardware.
5.6 The warranties contained in this Agreement do not apply to (a) repair or replacement caused or necessitated by: (i) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; fluctuations in electrical power beyond those set out in the specifications; failure of air conditioning or humidity control; improper maintenance, or any other misuse, abuse or mishandling; (ii) force majeure including without limitation natural disasters such as fire, flood, wind, earthquake, lightning or similar disaster; (iii) governmental actions or inactions; (iv) strikes or work stoppages; (v) Licensee’s failure to follow applicable use or operations instructions or manuals; (vi) Licensee’s failure to implement, or to allow Sophos or its agents to implement, any corrections or modifications to the Appliance made available to Licensee by Sophos; or (vii) such other events outside Sophos’s reasonable control; and/or (b) Hardware forming part of the Sophos UTM Product where warranty information is available separately.
5.7 THE ABOVE HARDWARE WARRANTIES ARE NULL AND VOID IF ANY WARRANTY STICKERS ARE TAMPERED WITH OR ARE MISSING, OR, EXCLUDING THE REPLACEMENT OF FRU, IF THE APPLIANCE WAS REPAIRED OR ALTERED BY PERSONNEL OTHER THAN THOSE AUTHORISED BY SOPHOS. 5.8 Sophos shall indemnify and keep Licensee fully and effectively indemnified on demand from and against any and all losses, claims, damages, costs, charges, expenses and liabilities which arise from any claim or proceeding alleging that Licensee’s use, possession or distribution of the Product in the country where Licensee’s head office is located (provided that such country is a party to the World Intellectual Property Organization (WIPO) treaties on patents, trademarks and copyrights) in accordance with the terms of this License Agreement infringes any third party patent, trademark or copyright in the country where Licensee’s head office is located. Licensee shall not be entitled to the benefit of this indemnity if:-
5.8.1 Licensee fails to notify Sophos in writing within ten (10) days of any claim being made or proceedings being issued against Licensee; or
5.8.2 Licensee does not at the written request of Sophos forthwith cease to use or distribute the Product on any such claim being made; or
5.8.3 Licensee shall have, without the prior written consent of Sophos, acknowledged the validity of the claim or proceedings of such third party or taken any action which would or might impair the ability of Sophos to contest the claim or proceedings of the third party if it so elects and in any such case Sophos shall be entitled to terminate this License Agreement forthwith by notice to Licensee.
5.9 Sophos shall have no liability under clause 5.8 or otherwise if the alleged infringement arises due to:-
5.9.1 modification of the Product by anyone other than Sophos; or
5.9.2 use of the Product with any hardware, software or other component not provided by Sophos in circumstances where use of the Product without such other hardware, software or component would not have led to liability under Clause 5.8; or
5.9.3 use of the Product other than in accordance with the Documentation.
5.10 If any such claim referred to in Clause 5.8 is made against Licensee, then Sophos shall have:
5.10.1 the absolute discretion to decide whether to defend or settle any proceedings in relation to such third party’s claims or to initiate counter-proceedings;
5.10.2 the right to require, if it considers it necessary or desirable, Licensee to join in any such proceedings at Sophos’ cost;
5.10.3 the right to require Licensee’s full co-operation (at Sophos’ expense) with Sophos in defending the claim;
5.10.4 the right to procure a license so that Licensee’s use, possession and distribution of the Product in accordance with the terms of this License Agreement does not infringe any third party patents, trademarks or copyrights;
5.10.5 the right to modify the Product so that it no longer infringe a third party’s patents, trademarks or copyrights; and
5.10.6 the right to terminate this License Agreement forthwith by notice to Licensee if Sophos cannot obtain a license or modify the Product in the manner referred to in Clauses 5.10.4
and 5.10.5 in a manner which Sophos considers commercially feasible and refund any applicable fees paid to Sophos by Licensee;
and Licensee will in any event mitigate Licensee’s losses as far as possible.
CLAUSES 5.8, 5.9 AND 5.10 SET OUT LICENSEE’S SOLE REMEDY AND THE WHOLE LIABILITY OF SOPHOS IN THE EVENT THAT THE PRODUCTS INFRINGE THE PATENTS, TRADEMARKS OR COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
5.11 Licensee warrants that Licensee’s use of the Products is and will continue to be in accordance with all applicable laws and regulations.
5.12 Licensee shall at Licensee’s own expense hold harmless, defend and fully and effectively indemnify Sophos against any claims, proceedings, damages, costs, expenses or other liability whatsoever arising out of, resulting from or relating to Licensee’s use of the Products (including without limitation breach of Licensee’s warranty in Clause 5.6).
6. DISCLAIMER OF WARRANTIES
6.1 EXCEPT FOR THE EXPRESS WARRANTIES FOR THE LICENSED PRODUCTS AND THE HARDWARE SET FORTH IN CLAUSE 5 ABOVE, SOPHOS AND ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS AND THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE MAKE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE PRODUCT OR ANY THIRD PARTY SOFTWARE INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS.
6.2 WITHOUT LIMITATION TO THE FOREGOING, SOPHOS DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE PRODUCT (OTHER THAN HARDWARE DEFECTS WITHIN THE HARDWARE WARRANTY PERIOD) WILL BE CORRECTED. SOPHOS DOES NOT WARRANT THAT THE PRODUCTS WILL DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS. FURTHER, SOPHOS DOES NOT WARRANT OR REPRESENT THAT LICENSEE IS ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONSOR THAT LICENSEE IS ENTITLED TO ENCRYPT OR DECRYPT ANY THIRD PARTY INFORMATION.
6.3 LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT LICENSEE SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT LICENSEE SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. SOPHOS AND ITS THIRD PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST.
7. LIMITATION OF LIABILITY
7.1 LICENSEE USES THE PRODUCT AT LICENSEE’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SOPHOS OR ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS OR THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE BE LIABLE TO LICENSEE FOR OR TO THOSE CLAIMING THROUGH LICENSEE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, LOSS OF OR CORRUPTION OF DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE, (INCLUDING ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY SOFTWARE) EVEN IF SOPHOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS LICENCE AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND SOPHOS BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE LOWER OF THE LICENSED PRODUCTS FEE PAID BY LICENSEE AND SOPHOS’S LIST PRICE FOR THE PRODUCT.
7.3 IN NO EVENT SHALL SOPHOS’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS LICENCE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE AMOUNTS PAID BY LICENSEE FOR THE PRODUCT.
8. OPTIONAL DATA SHARING
8.1 If Licensee does not choose to allow: (i) sharing of data with Sophos in order to improve protection and/or application control; or (ii) remote assistance, this Clause 8 does not apply to Licensee.
8.2 If Licensee chooses to allow sharing of such supplementary data with Sophos or authorize Sophos to provide remote assistance, Licensee has agreed to implement optional functions which allow the Products to provide Sophos with various data. While Sophos does not intend that such data include proprietary, confidential or user-identifiable data, by enabling this option Licensee acknowledges that it may be possible for such data to include proprietary, confidential or user-identifiable data and Licensee represents to Sophos that Licensee has obtained all necessary permissions to share such data with Sophos.
9. THIRD PARTY SOFTWARE
The Products may operate or interface with software or other technology that is licensed to Sophos from third parties (“Third Party Licensors”), which is not proprietary to Sophos, but which Sophos has the necessary rights to license to Licensee (“Third Party Software”). Licensee agrees that (a) it will use such third party software in accordance with this Agreement, (b) no Third Party Licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party software or the Products themselves, (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee's use of such third party software, (d) such third party software may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional license rights and restrictions are described or linked to in the applicable Documentation, the relevant Sophos webpage, or within the Product itself.
10. U.S. GOVERNMENT RESTRICTED RIGHTS
If Licensee is an agency or other part of the U.S. Government, the Software and the Documentation are commercial computer software and commercial computer software documentation and their use, duplication and disclosure are subject to the terms of this License Agreement per FAR 12.212 or DFARS 227.7202-3, as amended.
11. EXPORT CONTROL AND ANTI-BRIBERY COMPLIANCE
11.1 Licensee hereby agrees that Licensee will use, disclose and/or transport the Product in accordance with any applicable export control laws and regulations and will not re-export or re-transfer the Product to any destination subject to restrictive sanctions measures or trade embargoes implemented at a national, regional or international level without the appropriate authorization and that Licensee is solely responsible for fulfilling any applicable governmental requirements in connection with Licensee’s use, disclosure and/or transport of the Product and relating to any transfer under Clause 3.3.3 above. In addition to the foregoing, Licensee acknowledges that Appliances and certain Licensed Products are classified and controlled as encryption items under the United States Export Administration Regulations ("EAR") and may also be controlled by other national regulations.
11.2 Licensee is solely responsible for fulfilling any applicable governmental regulations, including without limitation those that relate to the EC Directive on Waste Electrical and Electronic Equipment (2002/96/EC) ("WEEE") and The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations (2002/95/EC) ("RoHS") (as amended) in connection with Licensee’s use, disclosure, transport and/or disposal by Licensee of the Appliance, and relating to any transfer under Clause 3.3.3 above.
11.3 Licensee warrants and represents that in entering into this License Agreement neither the Licensee nor any of its officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on behalf of the Licensee will take any action, directly or indirectly, that would constitute an offence under:
11.3.1 the Bribery Act 2010; or
11.3.2 any other applicable anti-bribery laws or regulations anywhere in the world.
11.4 ANY BREACH OR SUSPECTED BREACH OF THIS CLAUSE 11 SHALL BE A MATERIAL BREACH INCAPABLE OF REMEDY THERBY ENTITLING SOPHOS TO TERMINATE THIS AGREEMENT FORTHWITH. In addition, Licensee agrees to indemnify and hold Sophos harmless from and against any claim, loss, liability or damage suffered or incurred by Sophos resulting from or related to Licensee’s violation of this Clause 11.
12.1 This License Agreement and Licensee’s rights under it will terminate immediately if: (i) Licensee fails to pay the Fee in accordance with the agreed payment terms; or (ii) Licensee fails to comply with any of the terms and conditions of this License Agreement; or (iii) other than for Products licensed on a perpetual basis, if Licensee takes or suffers any action on account of debt or are insolvent.
12.2 For Licensed Products, Licensee may terminate this License Agreement at any time by destroying the Licensed Product and all copies of it. Within one month after the date of termination of this License Agreement, Licensee must supply written certification to Sophos of the destruction by Licensee of the Licensed Product and all copies of all or any part of it. Where Licensee has purchased a license to use an encryption Product, then Licensee shall decrypt all encrypted drives and data prior to such uninstalling and destruction of the Product. In the event that Licensee wishes not to terminate Licensee’s license for the encryption Product, then Licensee must pay the applicable Fee.
12.3 For Appliance Products, in the event that Licensee fails to pay the Fee as set out in subsection (i) above, Licensee is required to return the Appliance to the return location indicated by Sophos, securely and properly packaged, with carriage (and insurance at Licensee’s option) prepaid. If Licensee fails to promptly return the Appliance to the location indicated by Sophos, Sophos will be entitled to enter Licensee’s premises to repossess such Appliance.
12.4 Notwithstanding any provision of this Clause 12, Licensee’s right to use, and Licensee’s access to, the Products will automatically terminate on expiry of the License Term unless and until Licensee renews Licensee’s license for the Products. Except as expressly set forth herein, all Fees paid or payable are nonrefundable to the extent permitted by law.
13.1 The Software may include confidential information that is secret and valuable to Sophos and its licensors. Licensee is not entitled to use or disclose that confidential information other than strictly in accordance with the terms of this License Agreement. Sophos reserves the right to disclose details of the License Agreement to third parties for publicity and promotional purposes and:-
13.1.1 Licensee expressly gives Sophos permission to include and publish Licensee’s name and logo on lists of Sophos’s customers for the Products; and
13.1.2 Licensee agrees that Sophos may send promotional emails to Licensee to provide information about other goods and services in which Licensee may be interested.
13.2 If Licensee does not wish to give Sophos permission under Clause 13.1.1 and/or 13.1.2, Licensee must notify Sophos, specifying which permission is not granted.
13.3 Notwithstanding the foregoing, Sophos will only process personal information in accordance with the provisions of the EU Directive 95/46 EC and the Sophos data protection policy which is available at http://www.sophos.com/en-us/legal/sophos-group-privacy-policy.aspx. Personal information may be shared within the Sophos group of companies.
14.1 Any reseller, distributor or dealer from whom Licensee may have purchased the Product is not appointed or authorised by Sophos as its servant or agent. No such person has any authority, either express or implied, to enter into any contract or provide Licensee with any representation, warranty or guarantee with or to Licensee or to translate or modify this License Agreement in any way on behalf of Sophos or otherwise to bind Sophos in any way whatsoever.
14.2 Notwithstanding Section 12, Sophos shall be free to use, for its own business purposes, any ideas, suggestions, concepts, know-how or techniques contained in information received from Licensee that directly relates to Sophos’s products or business. For example, Sophos shall be free to incorporate any suggested changes or modification to the Products into products licensed to other customers.
14.3 Licensee agrees to pay the Fee in full in accordance with an invoice from Sophos, or an authorised reseller, distributor, or dealer, if applicable. Unless otherwise stated, the Fee is exclusive of any federal, state, municipal or other governmental taxes, duties, licenses, fees, excises or tariffs. Licensee agrees to pay such taxes or, in lieu thereof, to provide an exemption certificate acceptable to Sophos and the applicable authority. Invoices may provide for interest to be paid on any sums not remitted by the due date.
14.4 (i)Self Audits. To help manage Licensee’s use of the Products and Licensee’s compliance with this Agreement, Licensee agrees to perform a self-audit upon 10 working days prior written notice from Sophos, calculating the number of Users, Computers or Servers benefiting from the Products, as applicable. If Licensee’s-self audit reveals a discrepancy that Licensee has previously or is currently using Sophos’s Products to a greater extent than Licensee has valid licenses for, Licensee shall submit a purchase order for the licensing discrepancy to Sophos or its authorized reseller. (ii) Formal Audits. If Licensee does not perform a self-audit upon request from Sophos, or if Sophos has reason to doubt the results of such self-audit, Licensee shall permit Sophos or an independent certified accountant appointed by Sophos access on written notice to Licensee’s premises and Licensee’s books of account and records at any time during normal business hours for the purpose of inspecting, auditing, verifying or monitoring the manner and performance of Licensee’s obligations under this License Agreement including without limitation the payment of all applicable license fees. Sophos shall not be able to exercise this right more than once in each calendar year. If an audit reveals that Licensee has underpaid fees to Sophos, Licensee shall be invoiced for and shall pay to Sophos within 30 days of the date of invoice an amount equal to the shortfall between the fees due and those paid by Licensee. If the amount of the underpayment exceeds 5% of the fees due or the audit reveals a violation of any license restrictions pursuant to this License Agreement then, without prejudice to Sophos’s other rights and remedies, Licensee shall also pay Sophos’s reasonable costs of conducting the audit.
14.5 Sophos may at its sole discretion assign, subcontract or otherwise transfer any of its rights or obligations hereunder to any of its group companies, resellers, distributors or dealers, as applicable.
14.6 Sophos may amend the terms and conditions of this License Agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL www.sophos.com/legal, which amended terms and conditions shall be binding upon Licensee.
14.7 Failure by Sophos to enforce any particular term of this License Agreement shall not be construed as a waiver of any of its rights under it.
14.8 The illegality, invalidity or unenforceability of any part of this License Agreement will not affect the legality, validity or enforceability of the remainder.
14.9 If Licensee and Sophos have signed a separate written software license agreement covering the use of the Product, the terms of such signed software license agreement shall take precedence over any conflicting terms of this License Agreement. Otherwise this License Agreement and the Schedule constitute the entire agreement between the parties in relation to the Product and its licensing and supersedes any other oral or written communications, agreements or representations with respect to the Product, save for any oral or written communications, agreements or representations made fraudulently. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
14.10 If there are any inconsistencies between the English language version of this License Agreement and any translated version, then the English language version shall prevail.
14.11 A person who is not a party to this License Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this License Agreement do not intend that any third party rights are created by this License Agreement.
14.12 In the event the Sophos subsidiary entity from which Licensee has purchased the licenses is located in:
THE UNITED STATES OF AMERICA, CANADA, LATIN AMERICA this License Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and the courts of the Commonwealth of Massachusetts shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this License Agreement; and
ALL OTHER COUNTRIES this License Agreement shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this License Agreement.
Any notices required to be given in writing to Sophos or any questions concerning this License Agreement should be addressed to The Company Secretary, Sophos Limited, The Pentagon, Abingdon Science Park, Abingdon, OX14 3YP, United Kingdom.