Sophos Appliance License Agreement
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Please read carefully the following legally binding Appliance Licence Agreement between Sophos and Licensee for the Appliance defined below. By selecting the accept option, breaking the seal on the package or installing, copying or otherwise using this Appliance Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms of this Appliance Licence Agreement. If Licensee does not agree with the terms of this Appliance Licence Agreement, do not use the Appliance and promptly return it 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 Appliance Licence Agreement, Licensee is not authorised to use the Appliance 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 licence terms that accompany such Updates and/or Upgrades. If Licensee does not agree to the additional licence 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 provides the Appliance to Licensee and/or activates the Appliance on Licensee’s behalf prior to Licensee’s use of the Appliance, 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 Appliance Licence Agreement as if Licensee had directly activated or used the Appliance.
1. DEFINITIONS
'Appliance' means the Sophos product described in the Schedule, which consists of the Hardware together with the Licensed Product(s) and included third party software.
'Appliance License Agreement' means this Sophos Appliance license agreement and the Schedule.
'Documentation' means any documentation provided to Licensee by Sophos (whether electronic or printed) which accompanies the Appliance and/or the Licensed Products.
'Expiry Date' means such date as may be set out in the Schedule.
'Fee' or 'Fees' means, collectively, the Hardware Fee, the Licensed Products Fee and the Support Fee (if any).
'FRU' means any field replaceable units made available to Licensee by Sophos, if applicable, comprising: (1) disk drives in carriers, and (2) power supply modules.
'Hardware' means the Sophos 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.
'Licence Term' means the license term set out in Clause 3.2 of this Appliance License Agreement.
'Licensed Products' means all or each (as the context so allows) of those programs which are listed on the Schedule, or if no such programs are listed on the Schedule all programs which are installed on the Hardware, together with the Documentation and any of the Upgrades and Updates to which Licensee is entitled in accordance with Clause 3.
'Licensed Products Fee' means the sums payable by Licensee in respect of a license to use the Licensed Products for the License Term in accordance with the terms and conditions set forth herein.
'Licensee' means the purchaser of the license rights granted by this End-User 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 and standard technical support (or enhanced technical support if Licensee has paid the applicable Support Fee).
'Maintenance Term' means the Maintenance term set out in Clause 4 of this Appliance License Agreement.
'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 provided to Licensee by Sophos, which sets out certain details in relation to Licensee’s use of the Licensed Products, and which forms part of this Appliance License Agreement.
'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.
'Sophos' means Sophos Limited 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.
'Suggestions' has the definition set out in Clause 6.3.
'Support Fee' means the sums payable by Licensee in consideration of the provision by Sophos of enhanced support services, if applicable.
'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 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 version or new release of the Licensed Product.
'User' means an employee, consultant or other individual who benefits from the Licensed Product licensed to Licensee and ‘Users’ shall be construed accordingly.
'User Licences' means the maximum number of Users as specified in the Schedule who 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 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 Appliance 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 Appliance 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 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 Appliance 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 discretion. Licensee may use the Software for evaluation purposes only in a test environment upon provision of Licensee’s evaluation credentials during the activation of the Appliance. The Software is provided "AS IS" during such evaluation period and Clauses 3.3 and 5 below do not apply to such evaluation.
3.2 Licence Term. This Appliance License Agreement is effective from the moment of acceptance as described in the first paragraph of this Appliance License Agreement or from the Start Date, whichever date is earlier, and shall remain in force either until the Expiry Date specified in the Schedule or, upon renewal of Licensee’s licence, the Expiry Date of Licensee’s renewed licence as set out in a Schedule provided to Licensee by Sophos (and if no such date is specified, this Appliance License Agreement shall continue in perpetuity although Licensee’s right to use the Licensed Products is dependent upon Licensee’s payment of the annual Licensed Products Fee) or until terminated as provided in Clause 11 below, whichever is the sooner. If Licensee wants to renew Licensee’s license Licensee should contact Sophos or Licensee’s reseller, distributor or dealer, as applicable. Licensee’s obligations under this Appliance License Agreement in respect of the intellectual property and confidential information of Sophos shall survive any expiry or termination of this Appliance License Agreement.
3.3 Rights. In consideration of the payment of the Licensed Products Fee by Licensee, Sophos hereby grants to Licensee a non-exclusive right to use the Licensed Products and receive Maintenance for the License Term subject to the terms and conditions contained within this Appliance License Agreement. Licensee is permitted to:
3.3.1 use the Licensed Products for Licensee’s internal business purpose, relating specifically to the integrity of Licensee’s documents, emails and other data ("Licensee’s Internal Business Purpose"). The number of Users must not exceed the number of User Licenses. Licensee is wholly responsible for the compliance by Users with this Appliance License Agreement;
3.3.2 use, copy, reproduce in whole or in part, adapt and modify the Documentation for Licensee’s Internal Business Purpose only; and/or
3.3.3 transfer the Appliance and Licensee’s rights under this Appliance License Agreement on a permanent basis to another entity, provided that Licensee transfers the Appliance (complete with the Hardware) and Documentation and prior to such transfer: (i) Licensee obtains Sophos’s written consent to such transfer; (ii) Licensee passes full contact details for the recipient to Sophos; and (iii) Licensee procures that the recipient agrees to be bound by the terms of this Appliance License Agreement and notifies Sophos in writing of its agreement. Notwithstanding the foregoing, in accordance with Clause 10 of this Appliance License Agreement, Licensee acknowledges and agrees that if Licensee choose to exercise LLicensee’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.
3.4 Restrictions. Licensee is not permitted to:
3.4.1 use the Licensed 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 Licensed Products except as set out in Clause 3.3.2;
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 Appliance 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 authorised by applicable law;
3.4.4 install and/or run on the Appliance any software applications other than the Licensed Products;
3.4.5 copy the Licensed Products for any purpose, including backup purposes. Such restriction shall not prevent Licensee from backing up or archiving Licensee’s data;
3.4.6 transmit or provide access to the Appliance save as provided in this Appliance License Agreement;
3.4.7 use Software other than the Licensed Products;
3.4.8 sub-license, rent, sell, lease, distribute or otherwise transfer the Appliance, save as provided under this Appliance License Agreement, unless Licensee obtains a separate license from Sophos for such purposes;
3.4.9 sub-license, rent, sell, lease, distribute or otherwise transfer the Appliance to any individual who is not acting in the course of business;
3.4.10 use the Appliance in or in association with safety critical applications such as, without limitation, medical systems, transport management systems, vehicle and power generation applications including but not limited to nuclear power applications; and/or
3.4.11 use the Appliance for the purposes of competing with Sophos, including without limitation competitive intelligence.
4. MAINTENANCE
4.1 This Appliance License Agreement entitles Licensee to receive Maintenance for the License Term.
4.2 Licensee acknowledges and agrees that the Appliance 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 a period of two (2) years for certain Appliances where specifically noted in the Documentation, as applicable, (the "Hardware Warranty Period") and provided always that Licensee has a valid, fully paid up, unexpired license for a Licensed Product, 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 authorise a refund of the Fee following the return of the Appliance 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 as long as Sophos determines that this is a valid warranty claim in accordance with the terms of this Appliance 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 are 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 Appliance License Agreement do not apply to 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.
5.7 THE ABOVE WARRANTIES ARE NULL AND VOID IF ANY WARRANTY STICKERS ARE TAMPERED WITH OR ARE MISSING, IF THE COVERING PLATES WHICH BAR ACCESS TO THE HARDWARE PORTS ARE REMOVED, 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 End-User Licence 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 End-User Licence 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 5.3; 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 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 or not to take or defend any proceedings in relation to such third party’s claims;
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 End-User Licence Agreement does not infringe any third party patents, trademarks or copyrights;
5.10.5 the right to modify the Product so that they no longer infringe a third party’s patents, trademarks or copyrights; and
5.10.6 the right to terminate this End-User Licence 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 warrant that Licensee’s use of the Appiance 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 Appliance (including without limitation breach of Licensee’s warranty in this Clause 5) and/or any Suggestions.
6. DISCLAIMER OF WARRANTIES
6.1 EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED 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 APPLIANCE 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 JURISDICTION.
6.2 WITHOUT LIMITATION TO THE FOREGOING, SOPHOS DOES NOT WARRANT THAT THE APPLIANCE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLIANCE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE APPLIANCE (OTHER THAN HARDWARE DEFECTS WITHIN THE WARRANTY PERIOD) WILL BE CORRECTED. SOPHOS DOES NOT WARRANT THAT THE LICENSED PRODUCTS WILL DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS.
6.3 SOPHOS DOES NOT WARRANT OR REPRESENT THAT LICENSEE IS ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONS AND EXPRESSLY DISCLAIMS LIABILITY FOR ANY SUGGESTIONS MADE BY SOPHOS (INCLUDING WITHOUT LIMITATION BY ITS EMPLOYEES, CONSULTANTS AND SUB-CONTRACTORS) IN CONNECTION WITH LICENSEE’S USE OF THE APPLIANCE ("SUGGESTIONS").
6.4 SOPHOS DOES NOT WARRANT THAT LICENSEE IS ENTITLED TO ENCRYPT OR DECRYPT ANY THIRD PARTY INFORMATION.
6.5 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
7. LIMITATION OF LIABILITY
7.1 LICENSEE USES THE APPLIANCE 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 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 OR DAMAGE ARISING FROM THE TRANSMISSION OF DATA, LOSS OF OR CORRUPTION OF DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING NEGLIGENCE, 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 APPLIANCE 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 OR OTHERWISE, WILL NOT EXCEED THE LOWER OF THE LICENSED PRODUCTS FEE TOGETHER WITH THE HARDWARE FEE PAID BY LICENSEE AND SOPHOS’S LIST PRICE FOR THE APPLIANCE.
7.3 IN NO EVENT SHALL SOPHOS’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS END-USER LICENCE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE AMOUNTS PAID BY LICENSEE FOR THE APPLIANCE.
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 authorise Sophos to provide remote assistance, Licensee has agreed to implement optional functions which allow the Appliance 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 represent to Sophos that Licensee has obtained all necessary permissions to share such data with Sophos.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
If Licensee is an agency or other part of the U.S. Government, the Appliance contains commercial computer software and commercial computer software documentation and their use, duplication and disclosure are subject to the terms of this Appliance License Agreement per FAR 12.212 or DFARS 227.7202-3 (as amended).
10. EXPORT CONTROL AND OTHER REGULATORY REQUIREMENTS
The Appliance is classified as an encryption item under the United States Export Administration Regulations ("EAR"). Export of the Appliance is controlled by the United States EAR and may also be controlled by other national regulations. Licensee hereby agrees that Licensee will use, disclose and/or transport the Appliance in accordance with any applicable export control laws and other 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 are solely responsible for fulfilling any applicable governmental regulations, including without limitation those that relate to the EC Directive on Waste Electrical and Electronic Equipment (2002/93/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. 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.
11. TERMINATION
This Appliance License Agreement and Licensee’s rights under it will terminate immediately if: (i) Licensee fails to pay the Fee (or any applicable part of it) in accordance with the agreed payment terms; or (ii) Licensee fails to comply with any of the terms and conditions of this Appliance License Agreement; or (iii) if Licensee takes or suffers any action on account of debt or are insolvent. All fees paid or payable are non-refundable to the extent allowed by applicable law. 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. Notwithstanding any provision of this Clause 11, Licensee’s right to use, and Licensee’s access to, the Licensed Products will automatically terminate on expiry of the License Term unless and until Licensee renews Licensee’s license for the Licensed Products.
12. CONFIDENTIALITY
12.1 The Appliance 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 Appliance License Agreement. Sophos reserves the right to disclose details of the Appliance License Agreement to third parties for publicity and promotional purposes and:-
12.1.1 Licensee expressly give Sophos permission to include and publish Licensee’s name and logo on lists of Sophos’s customers; and
12.1.2 Licensee agrees that Sophos may send emails to Licensee to provide information and goods and services to Licensee and to let Licensee know about other goods and services in which Licensee may be interested.
12.2 If Licensee does not wish to give Sophos permission under Clause 12.1.1 and/or 12.1.2, Licensee must notify Sophos by the date no later than seven days after the Start Date specifying which permission is not granted.
12.3 The Appliance may provide Sophos with information from time to time regarding Licensee’s use of the Appliance. It is intended that any such information provided to Sophos by the Appliance be non-user-identifiable data. However, if Licensee selects the Optional Data Sharing as set out in Clause 8 above, the Appliance will provide Sophos with various data or communications, which may contain user-identifiable data, for use by Sophos for its business purposes.
12.4 Notwithstanding the foregoing, Sophos will only process personal information in accordance with the provisions of the Data Protection Act 1998. Personal information may be disclosed within the Sophos group of companies.
13. GENERAL
13.1 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 Appliance License 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, including without limitation information provided under the terms of the Optional Data Sharing in Clause 8, for its business purposes, including without limitation for product support and development.
13.3 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.
13.4 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 Appliance 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 Appliance License Agreement then, without prejudice to Sophos’s other rights and remedies, Licensee shall also pay Sophos’s reasonable costs of conducting the audit.
13.5 Sophos may at its sole discretion subcontract any of its rights or obligations hereunder to any of its subsidiaries, resellers, distributors or dealers, as applicable.
13.6 Sophos may amend the terms and conditions of this Appliance 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.
13.7 Failure by Sophos to enforce any particular term of this Appliance License Agreement shall not be construed as a waiver of any of its rights under it.
13.8 The illegality, invalidity or unenforceability of any part of this Appliance License Agreement will not affect the legality, validity or enforceability of the remainder.
13.9 If Licensee and Sophos have signed a separate written license agreement covering the use of the Appliance, the terms of such signed license agreement shall take precedence over any conflicting terms of this Appliance License Agreement. Otherwise this Appliance License Agreement and the Schedule constitute the entire agreement between the parties in relation to the Appliance and its licensing and supersedes any other oral or written communications, agreements or representations with respect to the Appliance, save for any oral or written communications, agreements or representations made fraudulently.
13.10 If there are any inconsistencies between the English language version of this End-User Licence Agreement and any translated version, then the English language version shall prevail.
13.11 A person who is not a party to this End-User Licence Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this End-User Licence Agreement do not intend that any third party rights are created by this End-User Licence Agreement.
13.12 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 End-User 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 End-User Licence Agreement; and
ALL OTHER COUNTRIES this End-User 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 End-User Licence Agreement.
Any notices required to be given in writing to Sophos or any questions concerning this Appliance Licence Agreement should be addressed to The Company Secretary, Sophos Limited, The Pentagon, Abingdon, OX14 3YP, United Kingdom.
