Sophos End User License Agreement
If you use any of our software, read our legally binding agreement between Sophos and all end users of Sophos software products.
SOPHOS END USER LICENSE AGREEMENT
Please read the following legally binding License Agreement between Sophos and Licensee carefully. 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 and conditions of this License Agreement, including without limitation the terms and conditions of documents and policies which are incorporated herein by reference.
If Licensee does not agree with the terms and conditions of this License Agreement, Licensee is not authorized to install or otherwise use the Products for any purpose whatsoever. If Licensee returns the unused Products and all accompanying items in their original condition and packaging within twenty-one (21) calendar days of delivery by Sophos, together with proof of purchase, Licensee may receive a full refund.
Where a reseller, service provider, consultant, contractor or other party downloads, installs or otherwise uses the Products on Licensee’s behalf, such party will be deemed to be Licensee’s agent 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.
NOW IT IS AGREED as follows:
1.1 ‘Affiliates’ means, with respect to each party, entities that control, are controlled by, or are under common control with such party. For the purposes of this definition, “control” means the beneficial ownership of more than fifty per cent (50%) of the voting power or equity in an entity.
1.2 'Computer' means any device or computing environment which benefits from the Licensed Product (for example but without limitation, workstations, personal computers, laptops, netbooks, tablets, smartphones, and 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.
1.3 'Documentation' means documentation provided to Licensee by Sophos (whether electronic or printed) which accompanies the Products.
1.4 'Fee' means the fee payable for the Product, enhanced support package (if applicable), and/or Maintenance subscription (if applicable).
1.5 'Hardware' means the hardware Product itself, together with any related components (including but not limited to power supply modules, disk drives in carriers, ship kits and rack mount kits).
1.6 'License Agreement' means this Sophos license agreement and the Schedule.
1.7 ‘License Entitlement’ has the meaning in Clause 3.2 below.
1.8 'Product Term' has the meaning set out in Clause 3.1 of this License Agreement.
1.9 'Licensed Products' means all or each (as the context so allows) of those software programs which are listed on the Schedule and/or installed on the Hardware provided to Licensee, together with the Documentation and any of the Upgrades and Updates to those programs, but excluding any third party software as described in Clause 9.
1.10 'Licensee' means the person or entity which has been granted license rights under this License Agreement and ‘Licensee’s’ means belonging to, pertaining to or engaged by Licensee, whether on a temporary basis or otherwise.
1.11 'Maintenance' means collectively Upgrades and/or Updates (where applicable to the Product), SMS message processing (where applicable to the Product), and standard technical support as further described in Clause 4.
1.12 'Outsourced Provider' means a third party to whom Licensee or Licensee’s Affiliates have outsourced their information technology functions.
1.13 ‘Partner’ means a reseller, distributor or other third party from which Licensee obtains Sophos Products.
1.14 'Product' means the Licensed Product, media and/or Hardware, as applicable.
1.15 'Schedule' means the order confirmation or license certificate issued by Sophos which details the Product(s) purchased by Licensee and corresponding Product Term, License Entitlement and license credentials, and which forms part of this License Agreement.
1.16 '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.
1.17 'Sophos' means Sophos Limited (a company registered in England and Wales number 02096520) with its registered office at The Pentagon, Abingdon Science Park, Abingdon, Oxfordshire, OX14 3YP, UK, and its Affiliates, or, as the context so applies, any of them.
1.18 'Update' means an update to the library of rules and/or identities and/or other updates to the detection data or software (excluding Upgrades) made available to Licensee by Sophos at its sole discretion from time to time, but excluding any updates marketed and licensed by Sophos for a separate Fee.
1.19 'Upgrade' means any enhancement or improvement to the functionality of the Product, Product version or Product feature made available to Licensee by Sophos at its sole discretion from time to time, but excluding any software and/or upgrades marketed and licensed by Sophos for a separate Fee.
1.20 'User' means an employee, consultant or other individual who benefits from the Product licensed to Licensee.
2. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
The Products, including without limitation all know-how, concepts, logic and specifications, are proprietary to Sophos and its licensors and are protected throughout the world by copyright and other intellectual property rights. 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 Products and in any modifications made by Licensee to the Products, as provided for below in this License Agreement, is retained by Sophos. No license, right or interest in Sophos’s logos or trademarks is granted to Licensee under this License Agreement.
3. RIGHTS AND RESTRICTIONS
3.1.1 This License Agreement is effective from the moment of acceptance as described in the first paragraph of this License Agreement and shall remain in force until the earlier of (i) expiry of the Product Term of all items purchased hereunder, or (ii) termination of this License Agreement in accordance with the terms and conditions herein.
3.1.2 Unless this License Agreement is terminated earlier (i) the Product Term for fixed term subscription-based Licensed Products, Maintenance packages and support packages shall commence on the start date and end on the expiry date noted on the Schedule, and (ii) the Product Term for Products that are billed on a rolling monthly basis shall commence on the date of purchase and continue for the duration of the monthly payments (subject to any minimum subscription term that may be noted on the Schedule), and (iii) where expressly noted in the Schedule or the Licensing Guidelines at http://www.sophos.com/en-us/legal the Product Term shall be perpetual (each the “Product Term”).
3.1.3 In consideration of the payment of the Fee by Licensee and receipt of the corresponding payment by Sophos, Sophos hereby grants to Licensee a non-exclusive right to use the Products for their respective Product Term subject to the terms and conditions contained within this License Agreement.
3.1.4 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.
3.2 License Entitlement and Usage.
The Products are licensed by User, Computer, Server or other applicable units, as specified in the Licensing Guidelines at http://www.sophos.com/en-us/legal.The Schedule specifies the number of applicable units that the Licensee has ordered for each Product (the “License Entitlement”). The Licensee’s actual usage may not exceed the License Entitlement at any time or under any circumstances. If Licensee wishes to increase its actual usage, Licensee must first purchase the corresponding additional License Entitlement.
3.3 Rights. Licensee is permitted to:
3.3.1 use the Products for the internal business purposes of Licensee and its Affiliates, relating specifically to the integrity of their systems, networks, documents, emails and other data;
3.3.2 subject to the restrictions in Clause 11, transfer the Product and Licensee’s rights and obligations under this License Agreement on a permanent basis to another person or entity, provided that Licensee transfers the Hardware or media (as applicable) and all copies of the Licensed Products and Documentation to the recipient and, prior to such transfer (i) Licensee passes full contact details for the recipient to Sophos, (ii) Licensee procures that the recipient agrees to be bound by the terms and conditions of this License Agreement, and (iii) the recipient notifies Sophos in writing of such agreement.
3.3.3 make a reasonable number of copies 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 modify or translate the Products except (i) as necessary to configure the Licensed Products using the menus, filters, options and tools provided for such purposes and contained in the Product, and (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee’s internal business purposes;
3.4.2 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 that such restriction is prohibited by applicable law;
3.4.3 use Products for which Licensee has not paid and Sophos has not received the applicable Fees;
3.4.4 sub-license, rent, sell, lease, distribute, transfer, transmit, provide access to, or otherwise use the Products for the benefit of third parties, save as expressly provided under this License Agreement unless Licensee obtains a separate license from Sophos for such purposes (for example but without limitation, Licensee may not embed the Licensed Products into another application and then distribute or use the Licensed Products to provide a service to third parties unless Licensee first acquires an OEM or Managed Service Provider license from Sophos);
3.4.5 use the Products other than in the course of business unless and to the extent that such Products have been expressly licensed for home use or consumer use in accordance with Clauses 15.5 and 15.7;
3.4.6 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
3.4.7 use the Products for the purposes of competing with Sophos, including without limitation competitive intelligence (except to the extent that this restriction is prohibited by applicable law).
3.5 Permitted Third Party Usage.
Licensee may permit its Affiliates and Outsourced Providers to use the Products provided that (i) Licensee shall provide prior written notice to Sophos, (ii) the Affiliates and Outsourced Providers shall only use and/or operate the Products for the internal business purposes of Licensee and its Affiliates, (iii) the actual usage of the Products (by Licensee, Licensee’s Affiliates and the Outsourced Providers in aggregate) shall not exceed the License Entitlement purchased by the Licensee, (iv) Licensee shall ensure that its Affiliates and the Outsourced Providers are aware of and comply with the terms and conditions of this License Agreement at all times; and, (v) Licensee shall be responsible for the acts and omissions of its Affiliates and the Outsourced Providers at all times.
3.6 Licensee acknowledges and agrees that (i) it is only entitled to use the Products listed in the Schedule, and (ii) it has not based its purchasing decision on the future availability of any new products and/or additional features, components or versions of the Products.
4. MAINTENANCE AND SUPPORT
4.1 If the Licensee has purchased a subscription term Licensed Product, Maintenance for such Licensed Product is included for the duration of the Product Term.
4.2 If the Licensee has purchased a perpetual term Licensed Product, Maintenance is not included. Except to the extent prohibited by applicable law, (i) Licensee must purchase a separate Maintenance package on a subscription term basis which is equal to the number of perpetual license units purchased, and (ii) if the Licensee’s Maintenance subscription has lapsed and Licensee wishes to renew it, Sophos reserves the right to charge Licensee a reinstatement charge in accordance with its then current price list.
4.3 Maintenance includes standard technical support. Enhanced technical support packages are available subject to payment by Licensee and receipt by Sophos of the corresponding Fee. Standard and enhanced technical support packages are described at: http://www.sophos.com/en-us/support/technical-support.aspx.
4.4 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 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.
5.2 If Sophos is notified in writing of a breach of warranty under Clause 5.1 during the Licensed Products Warranty Period, Sophos’s entire liability and Licensee’s sole remedy shall be (at Sophos’s option): (i) to correct, repair or replace the Licensed Product and/or Documentation within a reasonable time, or (ii) to authorize a refund of the Fee following return of the Licensed Products accompanied by proof of purchase. Any replacement Licensed Products shall be warranted for the remainder of the original Licensed Products Warranty Period.
5.3 The warranty in Clause 5.1 shall not apply if (i) the Licensed Product has not been used in accordance with the terms and conditions of this Agreement and the Documentation; (ii) the issue has been caused by failure of the Licensee to apply Updates, Upgrades or any other action or instruction recommended by Sophos, (iii) the issue has been caused by the act or omission of or by any materials supplied by the Licensee or any third party, or (iv) the issue results from any cause outside of Sophos’s reasonable control.
5.4 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 or possession of the Licensed Product in accordance with the terms and conditions of this License Agreement infringes any third party patent, trademark or copyright.
5.5 Licensee shall not be entitled to the benefit of the indemnity in Clause 5.4 if (i) Licensee fails to notify Sophos in writing within ten (10) days of any claim being made or proceedings being issued against Licensee, (ii) Licensee does not at the written request of Sophos forthwith cease to use or possess the Product on any such claim being made, (iii) Licensee, without the prior written consent of Sophos, acknowledges the validity of or takes any action which might impair the ability of Sophos to contest the claim or proceedings if it so elects, (iv) the infringement arises due to modification of the Product by anyone other than Sophos, use of the Product other than in accordance with the Documentation, or use of the Product with any hardware, software or other component not provided by Sophos, and the infringement would not have arisen without such use or modification, or (v) the claim is raised based on use or possession in a country that is not a party to the World Intellectual Property Organization (WIPO) treaties on patents, trademarks and copyrights.
5.6 If any such claim or proceeding referred to in Clause 5.4 is made against Licensee, then Sophos shall have the right (at its sole discretion): (i) to defend or settle any such third party claim or proceedings or to initiate counter-proceedings, (ii) to require Licensee to join and co-operate with the defense and/or settlement of any such claim or proceedings at Sophos’s reasonable cost, (iii) to procure a license so that Licensee’s use, possession and distribution of the Product in accordance with the terms and conditions of this License Agreement does not infringe any third party patents, trademarks or copyrights, (iv) to modify or replace the Product with a functionally equivalent Product so that it no longer infringes a third party’s patents, trademarks or copyrights, and (v) (if Sophos cannot achieve Clause 5.6 (iii) or (iv) above on a commercially reasonable basis) to terminate the license to use the Product forthwith by notice and provide a pro rata refund of Fees paid for such Product which (i) relates to the period after the date of termination in the case of subscription term Products, and (ii) is depreciated on a straight line five (5) year basis commencing on the date of purchase in the case of perpetual term Products.
5.7 CLAUSES 5.4, 5.5 AND 5.6 SET OUT LICENSEE’S SOLE REMEDY AND THE WHOLE LIABILITY OF SOPHOS IN THE EVENT THAT THE PRODUCTS INFRINGE THE PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. LICENSEE WILL IN ANY EVENT MITIGATE LICENSEE’S LOSSES AS FAR AS POSSIBLE.
6. DISCLAIMER OF WARRANTIES
6.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN CLAUSE 5.1 ABOVE AND CLAUSE 15.2.6 BELOW, 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 OR REPRESENT THAT (i) THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, (ii) THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED, (iii) DEFECTS IN THE PRODUCT WILL BE CORRECTED, (iv) THE PRODUCTS WILL DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS, (v) LICENSEE IS ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONS, OR (vi) 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 OR CORRUPTED.
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 WITHOUT LIMITATION 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 LICENSE 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 (i) THE FEE PAID BY LICENSEE AND (ii) 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 LICENSE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EXCEED THE LOWER OF (i) THE FEE PAID BY LICENSEE AND (ii) SOPHOS’S LIST PRICE FOR THE PRODUCT.
7.4 SOPHOS DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (ii) FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
8. PRODUCT CHANGES
Licensee acknowledges and agrees that Sophos may vary or discontinue Products, Product versions, Product features, Product support, Product Maintenance, and support for third party products (including without limitation operating systems and platforms) from time to time for reasons including but not limited to changes in demand, security and technology. Sophos will publish the date(s) of planned discontinuation at: http://www.sophos.com/en-us/support. Sophos recommends that the Licensee always uses the latest Product, Product version and/or third party product (as applicable).
9. THIRD PARTY SOFTWARE
The Products may operate or interface with software or other technology that is licensed to Sophos from third parties, which is not proprietary to Sophos, but which Sophos has the necessary rights to license to Licensee. Licensee agrees that (a) it will use such third party software in accordance with this License 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 License 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 License 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. For the avoidance of any doubt, such additional rights and/or restrictions apply to the third party software on a standalone basis; nothing in such third party licenses shall affect Licensee’s use of the Licensed Products in accordance with the terms and conditions of this License Agreement.
10. U.S. GOVERNMENT RESTRICTED RIGHTS
If Licensee is an agency or other part of the U.S. Government, the Licensed Products 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, ANTI-BRIBERY AND COMPLIANCE WITH APPLICABLE LAWS
11.1 Licensee hereby agrees that Licensee (i) will use, transfer, disclose and/or transport the Product in accordance with any applicable import and export control laws and regulations, (ii) 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 (iii) is solely responsible for fulfilling any applicable governmental requirements in connection with Licensee’s use, transfer, disclosure and/or transport of the Product. In addition to the foregoing, Licensee acknowledges that certain 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. Further details are available at http://www.sophos.com/en-us/legal/export.aspx. In particular, but without limitation, the Products may not be exported or re-exported (i) into any U.S. embargoed countries, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Product, Licensee represents and warrants that it is not located in any such country or on any such list. Licensee also agrees that it will not use the Products for any purposes prohibited by applicable export laws and regulations, including, without limitation, in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices, or missiles capable of delivering such weapons.
11.2 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 (i) the United Kingdom Bribery Act 2010, or (ii) the United States Foreign Corrupt Practices Act 1977, or (iii) any other applicable anti-bribery laws or regulations anywhere in the world.
11.3 In addition to Clauses 11.1 and 11.2 above, Licensee warrants that its use and possessions of the Products is and will continue to be in accordance with all other applicable laws and regulations.
11.4 ANY BREACH OR SUSPECTED BREACH OF THIS CLAUSE 11 SHALL BE A MATERIAL BREACH INCAPABLE OF REMEDY ENTITLING SOPHOS TO TERMINATE THIS AGREEMENT FORTHWITH. In addition, Licensee agrees to indemnify and hold Sophos harmless from and against any claim, proceeding, loss, liability, cost 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 to Sophos or the Partner (as applicable) in accordance with the agreed payment terms; or (ii) Sophos does not receive payment from the relevant Partner for the Products and packages provided to Licensee, or (iii) Licensee fails to comply with any of the terms and conditions of this License Agreement; or (iv) other than for Products licensed on a perpetual basis, if Licensee takes or suffers any action on account of debt or becomes insolvent.
12.2 Licensee may terminate the Product Term at any time by destroying the relevant Licensed Product and all copies of it.
12.3 Within one month after the date of termination of this License Agreement or the applicable Product Term, Licensee must supply written certification to Sophos of the destruction of the applicable Licensed Product and all copies of all or any part of it. In the case of encryption Products, Licensee shall decrypt all encrypted drives and data prior to such uninstalling and destruction of the Product.
12.4 Licensee’s right to use and access the Products will automatically terminate on expiry of the applicable Product Term or this License Agreement (whichever is the earlier) unless and until Licensee renews Licensee’s license for the Products. Except as expressly set forth herein, all Fees paid or payable are non-refundable to the maximum extent permitted by law.
13. CONFIDENTIALITY AND DATA PROTECTION
13.1 The Licensee may receive or have access to confidential information under or in relation to this License Agreement 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 and conditions of this License Agreement.
13.3 The information collected under Clause 13.2 may be used for the purposes of (i) providing the Products and performing this License Agreement, (ii) verifying Licensee’s compliance with the License Entitlement, (iii) evaluating and improving the performance of the Products, (iv) preparing statistical analysis on the usage of Products, (v) planning development roadmaps and product lifecycle strategies, (vi) issuing alerts and notices to Licensee about incidents and product lifecycle changes which affect the Products being used by Licensee.
13.4 Sophos may also require the Licensee’s contact details and (where applicable) payment information for the purposes of (i) providing technical support, (ii) billing, (iii) verifying Licensee’s credentials and License Entitlement, (iv) issuing license expiry and renewal notices, and (v) providing account management.
13.5 Licensee expressly gives Sophos permission to (i) include and publish Licensee’s name and logo on lists of Sophos’s customers, and (ii) send promotional emails to Licensee to provide information about other Sophos products and services in which Licensee may be interested. If Licensee does not wish to give Sophos permission for the uses described under this Clause 13.5, Licensee may notify Sophos by emailing email@example.com, specifying which permission is not granted.
14.1 Any Partner from whom Licensee may have purchased the Product is not appointed 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 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 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 (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, Servers or other applicable units benefiting from the Products. If Licensee’s self audit reveals that Licensee’s actual usage exceeds the License Entitlement, Licensee shall procure the additional licenses required from Sophos or its preferred Partner. (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 five percent (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.
14.4 Sophos may at its sole discretion assign, novate, subcontract or otherwise transfer any of its rights or obligations hereunder.
14.5 Sophos may amend the terms and conditions of this License Agreement and/or any documents and policies referenced herein at any time, including without limitation by posting revised terms and conditions on its website at http://www.sophos.com/en-us/legal and/or the location of such document or policy. Such amended terms and conditions shall be binding upon Licensee with effect from the date of such change. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the License Agreement which may have been embedded in or packaged with the Product itself.
14.6 Failure by either party to enforce any particular term or condition of this License Agreement shall not be construed as a waiver of any of its rights under it.
14.7 The illegality, invalidity or unenforceability of any part of this License Agreement will not affect the legality, validity or enforceability of the remainder.
14.8 If Licensee and Sophos have signed a separate written agreement covering the use of the Product, the terms and conditions of such signed agreement shall take precedence over any conflicting terms and conditions of this License Agreement. Otherwise this License Agreement, the Schedule and the documents and policies referenced herein constitute the entire agreement between the parties in relation to the Product and its licensing and supersede 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.
14.9 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.
14.10 A person who is not a party to this License Agreement has no right to enforce any term or condition of this License Agreement, and the parties to this License Agreement do not intend that any third party rights are created by this License Agreement.
14.11 In the event the Sophos subsidiary entity from which Licensee has purchased the licenses is located in:
THE UNITED STATES OF AMERICA, CANADA, OR LATIN AMERICA ,this License Agreement and any dispute or claim arising out of or in connection with it (including without limitation non-contractual disputes or claims) 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 exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this License Agreement; and
ANY OTHER COUNTRY, this License Agreement and any dispute or claim arising out of or in connection with it (including without limitation non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this License Agreement.
14.12 Nothing in Clause 14.11 shall limit the right of Sophos to take proceedings against the Licensee in any court of competent jurisdiction where deemed necessary by Sophos to (i) protect its intellectual property rights, (ii) protect its confidential information , and/or (iii) recover overdue payments.
14.13 Any notices required to be given to Sophos or any questions concerning this License Agreement should be addressed to The Legal Department, Sophos Limited, The Pentagon, Abingdon Science Park, Abingdon, OX14 3YP, United Kingdom with a copy to firstname.lastname@example.org.
15. ADDITIONAL TERMS AND CONDITIONS The first part of this License Agreement includes general terms and conditions applicable to all Products. The additional terms and conditions in this Clause 15 below apply only to the Products referenced in each section.
15.1 Direct Purchases from Sophos. This Clause only applies if Licensee purchases from Sophos directly, rather than through a Partner:
15.1.1 All Products are delivered ICC Incoterms 2010 Ex Works from the applicable Sophos site. Accordingly, the Licensee is responsible for delivery costs, export clearances, import clearances, and insurance costs.
15.1.2 Fees shall be paid in full, in the currency and via the payment method specified on the invoice, within thirty (30) days of the date such invoice.
15.1.3 Unless expressly stated otherwise, the Fee is exclusive of value added tax and any other federal, state, municipal or other governmental taxes, duties, licenses, fees, excises or tariffs.
15.1.4 Invoices may provide for interest to be paid on any sums not remitted by the due date.
15.2 Hardware Products. This Clause only applies to Hardware Products:
15.2.1 Sophos retains title to the Hardware until such time as any Free Trial described in Clause 15.6 below (if applicable) expires, and Licensee pays the Hardware Fee (whether to Sophos or a Partner as applicable), and Sophos receives (whether directly or indirectly from the Partner) the Hardware Fee in full. Unless and until title to the Hardware has transferred to Licensee in accordance with this Clause, Licensee agrees to keep the Hardware free and clear of all claims, liens, and encumbrances, and any act by Licensee, either voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Hardware shall be void. Licensee owns only the Hardware (or media, if applicable) on which the Licensed Product is installed. Licensee does not own the Licensed Product itself.
15.2.2 In the event that Licensee fails to pay or Sophos does not receive the Fee for the Hardware, Licensee is required to return the Hardware 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 Hardware to the location indicated by Sophos, Sophos will be entitled to enter Licensee’s premises to repossess such Hardware.
15.2.3 Risk of loss passes to Licensee upon shipment of the Hardware to Licensee. Insurance, if any, covering the Hardware shall be Licensee’s responsibility.
15.2.4 Licensee acknowledges that the Hardware 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.
15.2.5 Licensee is solely responsible for fulfilling any applicable governmental regulations on waste, health and safety, 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, transport and/or disposal of the Hardware.
15.2.6 Sophos offers a limited warranty for Hardware as set out in the Hardware Warranty Policy at: http://www.sophos.com/en-us/legal.
15.3 Sophos Cloud (Software as a Service) Products. This Clause only applies to Sophos Cloud Products:
15.3.1 Upon termination of the License Agreement, Licensee must (i) remove all Product settings from its Servers and Computers, and (ii) remove all of its custom settings, software and data from the Sophos network.
15.4 Sophos UTM Network Security Product. This Clause only applies to the Sophos UTM Products:
15.4.1 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. By installing the aforementioned Product, Licensee expressly agrees that it shall ensure that the Computer on which such 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.
15.5 Employee Home Use.
15.5.1 The following URL lists the Products for which home use is permitted: http://www.sophos.com/legal/home-use-eula.html
15.5.2 In addition to the rights granted in Clause 3 of this Agreement, where home use is permitted, Licensee may permit its employees to use such Product at home on a single workstation provided that (i) Licensee shall be responsible for the distribution of Upgrades and Updates and the provision of technical support to such home users, and (ii) the Licensee’s actual usage including such home users does not exceed the License Entitlement.
15.5.3 Licensee shall ensure that its home usersare aware of and comply with the terms and conditions of this License Agreement at all times, and Licensee shall be responsible for the acts and omissions of its home users at all times.
15.6 Free Trials, Technical Previews, Beta Testing and Free Tools
15.6.1 If Sophos permits the Licensee to conduct a free trial of a commercially available Product (the “Free Trial”), the Licensee may use the Product free of charge for evaluation purposes only for a maximum of 30 days, or such other duration as specified by Sophos in writing at its sole discretion (the “Trial Period”). If the Licensee does not purchase the Product, the rights to use the Product will terminate immediately upon expiry of the Trial Period.
15.6.2 If the Free Trial relates to Hardware, Licensee must return the Hardware to the return location indicated by Sophos, securely and properly packaged, with carriage (and insurance at Licensee’s option) prepaid upon the expiry of the Trial Period. Licensee is solely responsible for removing any and all of Licensee’s data from the Hardware prior to return. If Licensee fails to return the Hardware upon expiry of the Trial Period, Sophos may invoice and Licensee shall pay for the Hardware at list price.
15.6.3 Sophos makes certain Products available for use free of charge (“Free Tools”). Such Free Tools may only be used for the express purposes permitted by Sophos as identified in the accompanying Documentation. The License Term applicable to a Free Tool shall continue until (i) Sophos withdraws the Free Tool, or (ii) Sophos notifies the Licensee that it is no longer permitted to use the Free Tool. No Maintenance or technical support is included with Free Tools.
15.6.4 If Sophos provides Licensee with a Product for technical preview or beta testing purposes (a “Preview Product”), Licensee may use the Preview Product for evaluation purposes, in a non-production test environment only, for the period specified by Sophos (the “Test Period”). Licensee shall test the Preview Product in accordance with any conditions specified in the readme file for the software and/or any accompanying Documentation and shall gather and report test data, feedback, comments and suggestions to Sophos. The Licensee’s right to use the Preview Product shall terminate upon expiry of the Test Period. Sophos does not warrant that it will release a commercial version of the Preview Product, or that a commercial version will contain the same or similar features as the Preview Product.
15.6.5 Clause 6 shall not apply to Free Trial products, Free Tools and Preview Products. FREE TRIAL PRODUCTS, FREE TOOLS AND PREVIEW PRODUCTS ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (i) SOPHOS MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RELATION TO SUCH PRODUCTS, (ii) IN NO EVENT SHALL SOPHOS BE LIABLE TO LICENSEE OR TO THOSE CLAIMING THROUGH LICENSEE FOR ANY DIRECT, 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 INFORMATION OR DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EVEN IF SOPHOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.6.6 Clause 7 shall not apply to Free Trial products, Free Tools and Preview Products. IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN CLAUSE 15.6.4 ABOVE 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 OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED POUNDS STERLING (£100).
15.7 Consumer Products. The following Clause applies if Licensee is a consumer:
15.7.1 Licensee is only permitted to use those Products which are expressly designated by Sophos as suitable and available for consumer use.
15.7.2 Unless expressly stated otherwise on the Schedule, consumers are not entitled to receive technical support.
15.7.3 Licensee may only purchase Products if Licensee is at least eighteen years old or is acting with the consent and supervision of a parent or guardian.
15.7.4 Licensee acknowledges that the Products have not been developed to meet Licensee’s individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Products as described in the Documentation meet Licensee’s requirements.
15.7.5 This License Agreement does not exclude or limit statutory rights applicable to consumers in the jurisdiction in which Licensee is resident if and to the extent that such rights cannot be excluded or limited by applicable law. If you require information about your rights, you should contact your local advice centre.
15.7.6 Consumer Products are supplied only for domestic and private use. Licensee is not permitted to use the Products for any commercial, business or re-sale purposes, and to the maximum extent permitted by law, Sophos has no liability for any loss of profit, loss of business, business interruption, or loss of business opportunity.
15.7.7 Clauses 7.1, 7.2 and 7.3 shall not apply to consumers. Sophos is only responsible for loss or damage that Licensee suffers that is a foreseeable result of (i) breach of this License Agreement or (ii) Sophos’s negligence. In the absence of negligence or breach of this License Agreement by Sophos, Licensee’s use of the Products is at Licensee’s own risk. Sophos is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of the breach or if it was contemplated by both parties at the commencement of this License Agreement.
15.7.6 Clauses 14.11 and 14.12 shall not limit any right of the consumer to take proceedings in or to benefit from consumer protection laws that apply in the consumer’s country of residence.
15.8 Alert Services. The following Clause applies if Licensee has subscribed to ZombieAlert, PhishAlert or WebAlert services (collectively the “Alert Services”):
15.8.1 Licensee acknowledges and agrees that the Alert Services are only intended to inform the Licensee about potentially unwanted activities originating from the Licensee’s network of which Sophos becomes aware, and that Sophos has no obligation to provide an analysis of the data, to maintain records of past data, to attempt to take action against or to otherwise remedy such activities.
15.8.2 Sophos does not warrant (i) the accuracy, completeness, currency or reliability of any of the content of data provided as part of the Alert Services, or (ii) the timing or availability of the Alert Services. In particular but without limitation, Licensee acknowledges and agrees that Sophos does not monitor changes in IP address ownership.
15.8.3 If Sophos has difficulty delivering information to a particular email address, Sophos reserves the right to cease delivery of Alert Services to such address without notice.
15.9 Info Feeds. The following Clause applies if Licensee has subscribed to RSS and/or Atom info feeds (“Info Feeds”):
15.9.1 Sophos grants Licensee a non-transferable, non-exclusive license to display the information contained in the Info Feeds on Licensee’s website provided that (i) copyright notices contained in the Info Feeds are reproduced on such website, (ii) the website makes accurate references to Sophos and its Products, and (iii) the Info Feeds are not displayed in any manner that implies affiliation with, sponsorship, endorsement or license by Sophos, or any joint venture, agency or partnership.
15.9.2 Sophos reserves the right to (i) change or withdraw the Info Feeds at any time without notice, and (ii) refuse or cease to provide Info Feeds to a website at any time at Sophos’s sole discretion.