Sophos End User License Agreement for Free Tools

Please read carefully the following legally binding Licence Agreement between Sophos and Licensee (as defined below) for the Licensed Tool defined below. By selecting the accept option, breaking the seal on the software package or installing, copying or otherwise using the Licensed Tool, Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms of this Licence Agreement. If Licensee does not agree with the terms of this Licence Agreement, then Licensee may not install or otherwise use the Licensed Tool and, if applicable, must promptly return them and the accompanying items (including ANY written materials and packaging) to Licensee’s supplier.

If Licensee does not agree with any of the terms or conditions of this Licence Agreement, Licensee is not authorised to use the Licensed Tool 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 Licensed Tool for Licensee and/or installs or activates the Licensed Tool on Licensee’s behalf prior to Licensee’s use of the Licensed Tool, 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 Licence Agreement as if Licensee had directly downloaded, installed or used the Licensed Tools.

1. DEFINITIONS

'Documentation' means any documentation made available to Licensee by Sophos (whether electronic or printed) which accompanies the Licensed Tool.

'Licence Agreement' means this agreement.

'Licence Term' means the period from the Start Date until termination or expiry of the Licence Agreement in accordance with Clause 6.

'Licensed Tool’ means the Sophos tool downloaded by Licensee free of charge after acceptance of these licence terms (including without limitation the Software and Documentation).

'Software' means any program or data file supplied to Licensee by Sophos including any Upgrades or Updates supplied to Licensee. The term “Software” does not include any Third Party Software.

'Sophos' means Sophos Limited (a company registered in England and Wales number 02096520) as licensor and/or its subsidiaries, or, as the context so applies, any of them.

'Start Date' means the date the Licensed Tool is provided to Licensee.

‘Third Party Licensors’ has the definition set out in Clause 12.

‘Third Party Software’ has the definition set out in Clause 12.

'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 Licensed Tool 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 to its customers generally for a separate Fee.

'Licensee' means the Licensee 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.

2. COPYRIGHT AND OWNERSHIP

The Licensed Tool is the exclusive property of Sophos and its licensors. Further, Licensee hereby acknowledges and agrees that the right, title and interest in any modifications made by Licensee to the Licensed Tool, as provided for below in this Licence Agreement, is retained by Sophos. The Licensed Tool is a proprietary product of Sophos and its licensors and is protected throughout the world by copyright and other intellectual property rights. No licence, right or interest in Sophos's logos, or trademarks is granted to Licensee under this Licence Agreement and Licensee hereby agree not to remove any product identification or notices of proprietary restrictions.

3. GRANT OF LICENCE

For other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Sophos hereby grants to Licensee a non-exclusive right to use the Licensed Tool for the Licence Term subject to the following provisions.

3.1 Licensee is permitted to:

3.1.1 use the Licensed Tool for Licensee’s internal business purpose, relating specifically to the purposes described in the Documentation and/or the Sophos webpage ("Licensee’s Internal Business Purpose");

3.1.2 make one copy of the Licensed Tool or any part thereof for backup purposes provided that Licensee reproduce Sophos's proprietary notices on any such backup copy of the Licensed Tool;

3.1.3 use, copy, reproduce in whole or in part, adapt and modify the Documentation for Licensee’s Internal Business Purpose only.

3.2 Licensee is not permitted to:

3.2.1  use the Licensed Tool for the provision of any service for the benefit of third parties unless Licensee first acquires an application service provider licence from Sophos;

3.2.2 modify or translate the Licensed Tool except (i) as necessary to configure the Licensed Tool using the menus, options and tools provided for such purposes and contained in the Licensed Tool; and (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee’s Internal Business Purpose;

3.2.3 reverse engineer, disassemble or decompile the Licensed Tool or any portion thereof except to the extent and for the express purposes authorised by applicable law;

3.2.4 transmit or provide access to the Licensed Tool;

3.2.5 sub-license, rent, sell, lease, distribute or otherwise transfer the Licensed Tool save as provided under this Licence Agreement unless Licensee obtain a separate licence from Sophos for such purposes (for example, Licensee may not embed the Licensed Tool into another application and then distribute such to third parties unless Licensee first acquires an OEM licence from Sophos); and/or

3.2.6 use the Licensed Tool in or in association with safety critical applications where the failure of the Licensed Tool 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

3.2.7 use the Licensed Tool for the purposes of competing with Sophos, including without limitation competitive intelligence.

4. DISCLAIMER OF WARRANTIES AND INDEMNITY

4.1 THE LICENSED TOOLS IS PROVIDED FREE OF CHARGE AND ACCORDINGLY IS PROVIDED ‘AS IS’. SOPHOS MAKES NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE LICENSED TOOL 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. WITHOUT LIMITATION TO THE FOREGOING, SOPHOS DOES NOT WARRANT THAT THE LICENSED TOOL WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED TOOL WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE LICENSED TOOL WILL BE CORRECTED.

4.2   SOPHOS DOES NOT WARRANT THAT THE LICENSED TOOL WILL DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS.

4.3 SOPHOS DOES NOT REPRESENT THAT LICENSEE IS ENTITLED TO REMOVE ANY THIRD PARTY APPLICATIONS AND DISCLAIMS LIABILITY FOR ANY RECOMMENDATIONS MADE BY SOPHOS, ITS EMPLOYEES AND SUB-CONTRACTORS IN CONNECTION WITH LICENSEE’S USE OF THE LICENSED TOOL.

4.4 SOPHOS DOES NOT WARRANT THAT LICENSEE IS ENTITLED TO ENCRYPT OR DECRYPT ANY THIRD PARTY INFORMATION.

4.5 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.

4.6 LICENSEE SHALL FULLY AND EFFECTIVELY INDEMNIFY SOPHOS FOR ANY CLAIM, ACTION, PROCEEDING, LIABILITY OR EXPENSE SUFFERED BY SOPHOS AS A RESULT OF LICENSEE’S USE OF THE LICENSED TOOL.

5. LIMITATION OF LIABILITY

5.1 LICENSEE USES THE LICENSED TOOL AT LICENSEE’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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 NEGLIGENCE, EVEN IF SOPHOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.2 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 OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED BRITISH POUNDS (£100).

5.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, 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 ONE HUNDRED BRITISH POUNDS (£100).

6. TERM

This Licence Agreement is effective from the Start Date and shall remain in force indefinitely unless and until (i) Sophos gives notice that the Licensed Tool has been withdrawn and/or the licence is no longer effective by posting details on its website URL: www.sophos.com; or (ii) the Licence Agreement is terminated in accordance with Clause 10. Licensee’s obligations under this Licence Agreement in respect of the intellectual property and confidential information of Sophos shall survive any expiry or termination of this Licence Agreement.

7. DATA SHARING

7.1           Licensee acknowledges and agrees that Sophos may directly and remotely communicate with the Licensed Tool for the purposes of, without limitation, (i) verifying credentials; (ii) issuing reports and alert messages; (iii) providing support; (iv) applying policy and configuration changes; and (v) extracting usage information, service performance information, and logs.

7.2          Licensee agrees that Sophos may use any such data for its business purposes and Licensee represents to Sophos that Licensee has obtained all necessary permissions to share such data with Sophos. Licensee acknowledges that Sophos may disclose such data if required to do so by law.

8. 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 Licence Agreement per FAR 12.212 or DFARS 227.7202-3, as amended.

9. EXPORT CONTROL REQUIREMENTS

Licensee hereby agrees that Licensee will use, disclose and/or transport the Licensed Tool in accordance with any applicable export control laws and regulations and will not re-export or re-transfer the Licensed Tool 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 Licensed Tool. 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 paragraph.

10. TERMINATION

Licensee may terminate this Licence Agreement at any time by destroying the Licensed Tool and all copies of it. This Licence Agreement and Licensee’s rights under it will also terminate immediately if: (i) Licensee fails to comply with any of the terms and conditions of this Licence Agreement; or (iii) if Licensee takes or suffers any action on account of debt or becomes insolvent. On termination of this Licence Agreement, Licensee must destroy the Licensed Tool and all copies of it. Upon request, Licensee must supply written certification to Sophos of the destruction by Licensee of the Licensed Tool and all copies of all or any part of it.

11. CONFIDENTIALITY

11.1 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 Licence Agreement. Sophos reserves the right to disclose details of the Licence Agreement to third parties for publicity and promotional purposes and:-

11.1.1 Licensee expressly gives Sophos permission to include and publish Licensee’s company name and logo on lists of Sophos's customers for the Licensed Tool; and

11.1.2 Licensee agrees that Sophos may send promotional emails to Licensee to provide information about other goods and services in which Licensee may be interested.

11.1.3 If Licensee does not wish to give Sophos permission under Clause 11.1.1 and/or 11.1.2, Licensee must notify Sophos, specifying which permission is not granted.

11.2        Sophos will process any personal data in accordance with the terms of this Licence Agreement, the provisions of the EU Directive 95/46 EC, and the data protection policy at http://www.sophos.com/en-us/legal/sophos-group-privacy-policy.aspx. Personal data may be disclosed within the Sophos group of companies.

12. THIRD PARTY SOFTWARE

The Licensed Tool 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 Licence 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 Licensed Tool, (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Licence 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 Licence Agreement, and such additional license rights and restrictions are described or linked to in the applicable Documentation, the relevant Sophos webpage, or within the Licensed Tool itself.

13. GENERAL

13.1 Any reseller, distributor or dealer from whom Licensee may have purchased the Licensed Tool 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 Licence Agreement in any way on behalf of Sophos or otherwise to bind Sophos in any way whatsoever.

13.2 Licensee agrees that Sophos may use any technical information provided by Licensee for its business purposes, including without limitation for product support and development.

13.3 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 Licence Agreement. Sophos shall not be able to exercise this right more than once in each calendar year.

13.4 Sophos may amend the terms and conditions of this Licence 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.

13.5 Failure by Sophos to enforce any particular term of this Licence Agreement shall not be construed as a waiver of any of its rights under it.

13.6 The illegality, invalidity or unenforceability of any part of this Licence Agreement will not affect the legality, validity or enforceability of the remainder.

13.7 This Licence Agreement constitutes the entire agreement between the parties in relation to the Licensed Tool and its licensing and supersedes any other oral or written communications, agreements or representations with respect to the Licensed Tool.

13.8 If there are any inconsistencies between the English language version of this Licence Agreement and any translated version, then the English language version shall prevail.

13.9 A person who is not a party to this Licence Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this Licence Agreement do not intend that any third party rights are created by this Licence Agreement.

13.10 In the event that your head office is located in:

THE UNITED STATES OF AMERICA, CANADA, LATIN AMERICA this Licence 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 Licence Agreement; and

ALL OTHER COUNTRIES this Licence 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 Licence Agreement.

Any notices required to be given in writing to Sophos or any questions concerning this End-User Licence Agreement should be addressed to The Legal Department, Sophos Limited, The Pentagon, Abingdon Science Park, Abingdon, Oxfordshire, OX14 3YP, United Kingdom.

V16April2014