Please click to view convenience translations of the terms and conditions (German, Spanish, French, Japanese, Simplified Chinese).
PARTNER AGREEMENT
ONLY AN AUTHORIZED OFFICER CAN CLICK ‘ACCEPT’ ON BEHALF OF THE PARTNER.
ACCEPTANCE:
BY CLICKING THE ‘ACCEPT’ OPTIONS IN THE REGISTRATION PROCESS THE PARTNER WARRANTS THAT IT HAS FULL CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND DO ALL THINGS NECESSARY IN THE PERFORMANCE OF THIS AGREEMENT.
For the avoidance of doubt, no purported orders shall be accepted by Sophos unless you click accept.
If you do not agree with any of the terms or conditions of this Agreement, you will not have the status of a Sophos Partner and you are not authorised to sell the Licensed Products for any purpose.
1 DEFINITIONS.
In these terms and conditions:
“Affiliate” means, with respect to each party, an entity that controls, is controlled by, or is under common control with such party. For the purposes of this definition, “control” means the beneficial ownership of more than fifty percent (50%) of the voting power or equity in an entity.
"Agreement" means these terms and conditions and the Commercial Terms.
"Applicable Law(s)" means all statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judicial, administrative, ministerial, governmental or regulatory judgments, orders, decisions, rulings or awards and restraints, or any provisions of the same, including general principles of common and civil law binding on the parties in accordance with Clause 15.
"Commercial Terms" means the commercial stipulations applicable to the Partner Program as may be provided by Sophos OR as may appear on the Partner Portal and is incorporated by reference.
"Confidential Information" means any non-public, confidential, or proprietary information of the disclosing party that is clearly marked confidential or reasonably should be assumed to be confidential given the nature of the information and the circumstances of disclosure.
“Data Protection Laws and Regulations” means all applicable laws and regulations, including where applicable laws in the EEA, the European Union, the United Kingdom, Switzerland and the United States (including, but not limited to, the CCPA) and its respective states, and equivalent data protection laws and regulations applicable to the Processing of Personal Data under the Agreement including applicable modifications to such laws and regulations.
"Discount" means the percentage off the current Sophos Price List as stated in the Commercial Terms OR such quote that Sophos may provide.
"End User" means an unaffiliated, third party customer of the Partner who is a party to a License to whom any Products are provided for use in the regular course of such person's or entity's internal business or personal use and not for resale or sublicensing by such person or entity.
"Hardware" means the Sophos appliance Product(s), components and accessories listed in the Price List.
"Intellectual Property Rights" means copyright, confidential information, know-how, trade names, Trade Marks, patents, designs, database rights and any other intellectual property rights in any country, whether registrable or not and whether registered or not.
"License" means the End User license(s) or agreement(s) applicable to the Products which are either supplied with the Product in click-wrap format or are otherwise posted at www.sophos.com/legal.
"Licensed Products" means all or each (as the context so allows) of those Products which are listed on the Schedule (as such term is defined in the License) which is provided to the End User, or if no such Products are listed on the Schedule all programs and included third party software that are installed on the Hardware provided to the End User, together with the Product Documentation and any of the Upgrades and Updates to which the End User is entitled.
“Partner Portal” means the website for the Partner Program at https://partnerportal.sophos.com (or such other URL as Sophos may advise from time to time).
"Partner Program” means the program provided by Sophos for its partners as amended by Sophos from time to time.
“Personal Data” means any information that identifies, could be used to identify or is otherwise linked or reasonably linkable with a particular individual or household, as well as any information defined as “personal data,” “personal information” or equivalent term under applicable Data Protection Laws and Regulations.
"Price List" means the then current published Sophos price list applicable to the Territory as posted on the Partner Portal and/or any subsequent amendments by Sophos.
“Process” or “Processing” means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of the data.
"Product Description" means the description of the Products describing the features and functions as supplied by Sophos to the Partner from time to time.
"Product Documentation" means literature provided by Sophos to the Partner from time to time relating to the Products for use by End Users in conjunction with the Products.
"Products" means the products and/or services to be supplied by Sophos or a Sophos Distributor to the Partner , as listed in the Price List as such may be amended by Sophos from time to time together with the Product Documentation and any of the Upgrades and Updates to which the End User is entitled in accordance with the applicable License.
"Quarter" means each successive period of three calendar months following the Start Date until the following 31 March, after which Quarter shall mean each successive period of three calendar months thereafter.
"Quarter Date" means the last day of a calendar Quarter.
“Reseller” means a third-party reseller (other than Partner) who is authorized by Sophos to resell the Products in the Territory and who has enrolled in the Sophos Partner Program.
“Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or similar measure applicable to the Products, services and/or to either party relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures, including but not limited to those administered and enforced by the European Union, the United Kingdom, and the United States, each of which shall be considered Applicable Law.
“Sophos Distribution Channel” means Sophos Distributors and Resellers.
"Sophos Distributor” means a third-party distributor who is authorized by Sophos to distribute the Products in the Territory.
“Sophos” means the Sophos corporate entity with which the Partner contracts as indicated in the Sophos Entity List posted in the Partner Portal.
"Sophos Ltd." means the parent company of the Sophos group of which Sophos is part. Sophos Ltd. is a company registered in England and Wales number 02096520 whose registered address is at The Pentagon, Abingdon Science Park, Abingdon, Oxfordshire, OX14 3YP, United Kingdom.
"Start Date" means the date on which Sophos accepts the Partner’s offer to contract under the terms and conditions contained herein.
"Target" means the Partner’s sales and other related targets as set out in the Commercial Terms (as applicable to the Partner’s status) and/or as notified by Sophos to Partner from time to time, whether quarterly, annual or other targets, as applicable.
"Territory" means the geographic area to which this Agreement and the appointment of the Partner apply. If the Partner’s registered/principal office is located in one of the EU member states, Norway, Iceland, Liechtenstein or Switzerland, the Territory will be the EU member states, Norway, Iceland, Liechtenstein and Switzerland. If the Partner’s registered/principal office is located elsewhere, the Territory will be the country in which the Partner’s registered/principal office is located unless otherwise agreed or notified by Sophos in writing.
"Trade Marks" means any trademarks and service marks for which registrations have been filed, and registrations obtained in some cases, with the appropriate official industrial property registry, trade names, logos, emblems, trade dress and other insignias of origin, and other commercial symbols which Sophos now or hereafter is authorized to use and does use or authorizes others to use to identify its Products.
"Update" 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 End Users by Sophos at its sole discretion from time to time automatically or otherwise, but excluding any updates marketed and licensed by Sophos for a separate fee.
"Upgrade" means any enhancement or improvement to the functionality of the Product, Product version or Product feature made available to the End User by Sophos at its sole discretion from time to time automatically or otherwise, but excluding any software and/or upgrades marketed and licensed by Sophos for a separate fee.
2 SCOPE AND TERM
2.1 Sophos hereby appoints the Partner as a non-exclusive reseller of the Products to End Users and other members of the Sophos Distribution Channel in the Territory only, and the Partner accepts the appointment subject to the terms and conditions herein.
2.2 This Agreement will commence on the Start Date and continue for an initial term of twelve (12) months. Thereafter this Agreement shall automatically continue unless and until either party terminates this Agreement on no less than thirty (30) days’ written notice.
2.3 Either party may terminate this Agreement immediately on written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice from the other party specifying the breach in reasonable detail and requiring the breach to be remedied or becomes insolvent or (to the extent permitted by Applicable Laws) suffers any insolvency related event.
3 SUPPLY OF PRODUCTS
3.1 Sophos will license or make available the Products in accordance with the terms of the applicable License, the current forms of which are available at www.sophos.com/legal. For the avoidance of doubt,Partner acknowledges that Sophos may (i) subject to Clause 3.5, activate the Licensed Products for immediate use by the End User and/or (ii) contact and communicate with the End User directly with respect to Sophos’s obligations and the End User’s ongoing use of the Products both during and after termination or expiration of this Agreement.
3.2 Clauses 3.3 to 3.9, all of clause 4, clause 12.1 and clause 13.2.1 only apply if the Partner has been authorised by Sophos in writing to purchase from Sophos directly. In all other cases, Partner shall purchase via a Sophos Distributor and all commercial terms shall be agreed between the Partner and such distributor.
3.3 Sophos will provide the Products to the Partner in accordance with orders placed by the Partner on these terms.This Agreement is non-exclusive, and Sophos may supply Products to and through third parties in the Territory. Sophos will provide the Products to the Partner in accordance with orders placed by the Partner solely in accordance with this Agreement’s terms.Any quotations provided to the Partner by Sophos are invitations to treat only and are not capable of acceptance. Sophos reserves the right to correct or amend quotations at any time. Sophos will not be bound by any order until Sophos has acknowledged the order or shipped the Products.
3.4 The price charged by Sophos to thePartner for the Products will be the price on the then-current Price List at the time of the order less the Discount and/or incremental discounts offered to thePartner in conjunction with the order. Unless stated otherwise in the Price List or the Partner Portal, prices are exclusive of taxes (e.g., value added taxes or similar taxes) and the cost of handling, carriage and insurance, all of which shall be borne exclusively by the Partner.
3.5 Partner acknowledges and agrees that, notwithstanding any additional discount that may be stated in a written quotation, the Discount is intended as compensation for material effort by Partner throughout the process of a sale of Products to EndUser(s).
3.6Where the Partner has placed an order and Sophos has accepted such order the Partner shall be liable for payment for such order whether or not payment has been received by the Partner from the End User.
3.7 Subject to receipt of satisfactory credit references and relevant financial information, Sophos may establish a credit account and a credit limit for the Partner. Until the Partner receives written confirmation from Sophos that a credit account has been established, all orders must be prepaid.Due to credit card fees, payments may only be made via a credit card for invoices of USD $5000 (or the equivalent in local currency) or less.For the avoidance of doubt, if Sophos agrees to establish a credit account, the payment terms for all orders are thirty (30) days from the date of invoice unless otherwise agreed in writing. Sophos may amend any discounts given to the Partner at any time and for any reason including without limitation: if the Partner fails to meet the payment terms.
3.8 If the Partner is required to pay Sophos a lower amount under this Agreement because of any withholding or tax, Partner shall pay to Sophos such grossed-up amount as would be necessary to provide Sophos the full amount of the payment due after the deduction of any such withholding or tax imposed.
3.9 If the partner fails to make full payment when due, Sophos may withhold the supply to the partner or End Users of the Products, Updates, or Upgrades, as well as limit Partner’s access to Partner Program benefits (all at Sophos’s sole discretion). If permitted by Applicable Law, any delay in making payment shall automatically entitle Sophos to charge interest at 1 percent per month from the date when payment is due until the date when payment is received.
3.10 For the avoidance of doubt Sophos will not:
3.10.1 offer refunds if an End User’s License is terminated early for any reason; or
3.10.2 offer refunds and/or credits if any End User fails to pay the Partner.
4 SUPPLY OF HARDWARE
In addition to the terms in Clause 3 above, the following terms shall apply to Partner with respect to the sale of Hardware:
4.1 Subject to availability, Sophos will prepare the Hardware for shipment to the address (within the Territory) provided by Partner at the time of order placement, typically within fourteen (14) days from receipt of such order. Notwithstanding the foregoing, Sophos may elect in its sole discretion to only ship to the Partner’s address. In any such case, Partner shall be responsible for the shipments of the Hardware into the Territory.
4.2 All shipments will be made in accordance with the shipping terms published on the Partner Portal.
4.3 Any onward shipment by Partner must comply with Sanctions and Export Control Laws as more fully described in Clause 13.3.
4.4 The Partner is not permitted to hold Hardware in stock unless agreed in writing with Sophos.
4.5 Certain Hardware may be available for a free trial for thirty (30) days, or such other duration as specified by Sophos in writing in its sole discretion (“Trial Period”), as set forth in the applicable terms of the License. IF THE PARTNER REQUESTS HARDWARE FOR a free trial FOR AN END USER, AND SUCH END USERfails to return THE HARDWARE after the triAL period has expired, Sophos shall issue an invoice to PARTNER FOR THE PURCHASE OF THE HARDWARE AT LIST PRICE (MINUS STANDARD DISCOUNT) AND THEPARTNER SHALL PAY SUCH AMOUNT TO SOPHOS.
4.6If Partner returns Hardware to Sophos, either post-trial or where there is a valid warranty claim under the Sophos hardware warranty at https://www.sophos.com/en-us/legal/hardware-warranty-policy, Partner shall use appropriate packaging, insure and ship the Hardware by its own carrier or by using the pre-paid airway bill provided by Sophos, if any.
5 PARTNER'S OBLIGATIONS
During the term of this Agreement, the partners shall at all times observe and perform the terms of this Agreement and, in particular, the partner shall:
5.1 use reasonable endeavors to renew Sophos licenses in a timely fashion, and specifically (but without limitation) the Partner shall contact End User(s) who have not renewed their Sophos licenses prior to the expiry of the End User’s license;
5.2not make any promises or representations, or give any warranties, guarantees or indemnities in respect of the Products except such as are contained in the relevant License, or as otherwise expressly authorised by Sophos in writing;
5.3 not hold itself out as having any authority whatsoever to agree to any changes of any kind to the License terms;
5.4 use Sophos's Trade Marks relating to the Products only in the registered form or style notified to the partner in writing by Sophos and shall not use such Trade Marks in connection with any other products or services or as part of the corporate or any trade name or any Internet domain name of the partner and shall not alter, obscure, remove, interfere with or add to any of the Trade Marks, markings or notices affixed to, or contained in, the Products and the Product Documentation delivered to the partner;
5.5 not duplicate or reproduce in any way any Sophos copyright material without the prior written consent of Sophos;
5.6 deal with any complaints, problems or other technical queries regarding the Products from End Users before making use of the Sophos telephone helpdesk
5.7 not make or disseminate any disparaging comments and/or statements concerning the Products, or market, distribute, license or sell any Products in a manner that is likely to cause harm to, or diminish the value of, the Sophos brand;
5.8ensure that any and all emails sent by partner with regard to the Products are sent with the clear permission of the recipient in compliance with Data Protection Laws and Regulations and Partner hereby acknowledges and agrees that sending e-mails with regard to the Products in a manner which is not in compliance with Data Protection Laws and Regulations is expressly prohibited and that breach of this clause may be considered cause for immediate termination of this Agreement;
5.9not incorporate or integrate the Products in or on any other hardware or software products without notifying its local Sophos representative and signing the appropriate MSP or OEM Agreement;
5.10 not use the Products for the purposes of competing with Sophos, including without limitation the gathering of competitive intelligence;
5.11 provide Sophos and any authorized third-party distributor with the required level of detail on all purchase orders, including without limitation complete and accurate End User identification information;
5.12 comply with any training and certification requirements that Sophos may require from time to time for the distribution of Products, and
5.13 PARTNER ACKNOWLEDGES AND AGREES THAT IF IT IS IN BREACH OF ANY OF ITS OBLIGATIONS SET OUT ABOVE IN THIS CLAUSE 5, SOPHOS MAY, AT ITS SOLE OPTION AND WITHOUT LIMITING ANY OTHER REMEDIES AVAILABLE TO IT UNDER APPLICABLE LAW, UPON NOTICE TO PARTNER: (i) TERMINATE THIS AGREEMENT; OR (ii) CEASE TO PERFORM ITS OBLIGATIONS HEREUNDER AND/OR REDUCE OR REMOVEPARTNER’S STATUS AND/OR REDUCEPARTNER’S DISCOUNT (if applicable).
6 SOPHOS’S OBLIGATIONS
Sophos will:
6.1 maintain a telephone helpdesk offering technical support services for the Products, subject to clause 5.6. Such service will be generally available 24 hours each day;
6.2 use reasonable efforts to continue to develop, upgrade and enhance the Products to maintain their marketability and competitiveness;
6.3 be responsible for tracking the License expiration date and notifying the Partner and/or the End User.
7 INTELLECTUAL PROPERTY
Sophos Ltd. and/ or the Sophos group of companies retain all right, title, and interest, including all intellectual property rights, in and to the Products, including all improvements, enhancements, modifications, derivative works, logos, and Trade Marks. Sophos reserves all rights in and to the Products that are not expressly granted under this Agreement. Except as expressly stated in this Agreement, no license or right is granted directly or by implication, inducement, estoppel, or otherwise.
8 CONFIDENTIALITY
8.1 Each party acknowledges that it and its Affiliates (“Receiving Party”) may have access to Confidential Information of the other party and its Affiliates (“Disclosing Party”) in connection with this Agreement. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party agrees to (i) not use any Confidential Information for any purpose other than to perform its obligations and exercise its rights under this Agreement, and (ii) restrict dissemination of Confidential Information only to individuals or third parties with a “need to know” such information and who are under a substantially similar duty of confidentiality. A Receiving Party may disclose the Disclosing Party’s Confidential Information in any legal proceeding or as required as a matter of applicable law or regulation (such as in response to a subpoena, warrant, court order, governmental request, or other legal process); provided, however, that to the extent permitted by applicable law, the Receiving Party will (1) promptly notify the Disclosing Party before disclosing the Disclosing Party’s Confidential Information; (2) reasonably cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, in any efforts by the Disclosing Party to contest the disclosure; and (3) disclose only that portion of the Disclosing Party’s Confidential Information that is legally required to be disclosed.
8.2 Notwithstanding the above, a Disclosing Party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure by the Disclosing Party and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
8.3 This clause 8 shall continue in force for a period of five (5) years after and despite the expiration or termination of this Agreement.
9 DATA PROTECTION AND USE OF PERSONAL INFORMATION
9.1 Partner shall collect and process Personal Information in accordance with the Data Protection Laws and Regulations.
9.2 Partner represents that Partner’s data protection policies and practices are, and will be maintained, at a minimum in accordance with standard industry practices applicable to data protection, information security, and privacy.
9.3 Partner shall provide immediate written notice of any unauthorized access, use or disclosure of Personal Information or any security breach that could affect Sophos or End Users or could impact the activities to be performed under this Agreement. In such event, Partner shall immediately take remedial action as required by the Data Protection Laws and Regulations and as requested by Sophos.
9.4 Partner warrants that it has obtained all necessary consents to provide End User Personal Information to Sophos for the purpose of performing this Agreement.
9.5 Partner shall upon reasonable request provide appropriate evidence of Partner’s compliance with this Clause 9.
10 PARTNER'S STATUS
10.1 The Partner shall be appointed as an independent contractor and this Agreement shall not constitute a joint venture or partnership between the parties and (other than expressly as provided in this Agreement) thePartner shall not hold itself out as Sophos’s agent.
10.2 Nothing in this Agreement shall preclude the Partner from acting as an agent for the End User, including (without limitation) accepting the License on the End User's behalf where the Partner downloads and/or installs the Products on the End User's behalf.
11 EFFECT OF TERMINATION
11.1 Termination of this Agreement by Sophos in accordance with its terms shall not give the partner any right compensation, damages, loss of profits or prospective profits, or consequential losses of any kind or nature whatsoever, and in no circumstances shall the Partner acquire against Sophos any goodwill in respect of its appointment as Partner or in respect of the Products or their distribution or sale, or otherwise under or in respect of this Agreement.
11.2 Upon the expiry or termination of this Agreement, the rights granted toPartner hereunder shall terminate and the Partner shall return to Sophos all promotional and commercial material, including any Products, evaluation copies, Product Documentation, Product Descriptions and all literature and other materials supplied free-of-charge or on loan or consignment to thePartner by (or for) Sophos.
11.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
12 WARRANTIES AND LIABILITY
12.1 Sophos warrants only that for a period of ninety (90) days from the date of the license (the “Warranty Period”) that if properly installed and used the Products will perform substantially in accordance with the relevant Product Documentation. If Sophos is notified in writing of a breach of this warranty during the Warranty Period, Sophos’s sole liability, and thePartner's sole remedy shall be (at Sophos’s option) to correct or replace the Products and/or the Product Documentation within a reasonable time or provide a refund of the fee paid by thePartner to Sophos for the relevant Product.
12.2 EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES GIVEN BY SOPHOS IN THIS AGREEMENT AND WITHOUT PREJUDICING SOPHOS’S LIABILITY FOR FRAUD, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, SOPHOS GIVES NO WARRANTY, UNDERTAKING, INDEMNITY OR OTHER COMFORT AND MAKES NO REPRESENTATION OF ANY KIND (WHETHER EXPRESS, IMPLIED, UNDER STATUTE, CUSTOM OR OTHERWISE) IN RELATION TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION:
12.2.1 AS TO THEIR MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR AS TO NON-INFRINGEMENT;
12.2.2 THAT THE PRODUCTS WILL DETECT, IDENTIFY OR DISABLE ALL OR ANY SPECIFIC HARMFUL PROGRAMS, VIRUSES OR HARMFUL COMPONENTS;
12.2.3 THAT THE PRODUCTS WILL NOT GIVE FALSE POSITIVE RESULTS;
12.2.4 THAT UPDATES WILL BE PROVIDED FOR ALL HARMFUL PROGRAMS, VIRUSES, OR HARMFUL COMPONENTS;
12.2.5 THAT UPDATES WILL BE PROVIDED FOR ALL FORMS OF SPAM OR SPAM CAMPAIGNS;
12.2.6 THAT THE PRODUCTS WILL MEET THE PARTNER’S OR THE END USERS’ REQUIREMENTS; OR
12.2.7 THAT THE PRODUCTS WILL BE ERROR FREE AND/OR OPERATE WITHOUT INTERRUPTION.
12.3 SUBJECT TO CLAUSE 12.5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE AGGREGATE LIABILITY OF SOPHOS TO THE PARTNER FOR ANY MATTER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IN ANY YEAR, WHETHER ARISING FROM CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000 USD), OR THIS EQUIVALENT IN LOCAL CURRENCY, OR THE AMOUNTS PAID BY THE PARTNER TO SOPHOS UNDER THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTHS.
12.4 NOTWITHSTANDING CLAUSE 12.3, BUT SUBJECT TO CLAUSE 12.5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOPHOS SHALL NOT BE LIABLE TO THE PARTNER 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, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF OR CORRUPTION OF 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 OR ANY CLAIMS MADE BY END USERS AGAINST THE PARTNER. THE LIMITATIONS IN THIS CLAUSE SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
12.5 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.
12.6 This clause 12 has continuing effect after termination of this Agreement.
13 COMPLIANCE
13.1 The Partner shall comply with:
13.1.1 all Applicable Laws governing the access, use, marketing, distribution, licensing, and sublicensing (if applicable) of Products;
13.1.2 all Applicable Laws and other rules governing fair competition;
13.1.3 all Applicable Laws concerning anti-bribery and anti-corruption, including but not limited to the United States Foreign Corrupt Practices Act 1977 and the U.K. Bribery Act 2010 with regard to all dealings, negotiations, solicitations or other contact with customers, potential customers, End Users or potential End Users (including but not limited to the employees, agents or sub-contractors of the aforesaid entities); further, the Partner hereby acknowledges and agrees (i) to the terms and conditions of the Sophos Anti-Corruption Policy and (ii) that failure to comply with applicable anti-bribery and anti-corruption legislation is expressly prohibited.
13.2 The Partner hereby:
13.2.1 agrees that it will be solely responsible for fulfilling all Applicable Laws and other requirements of regulatory authorities in the Territory, including requirements for regulatory certification, licensing, registration of certification, import permits, or other authorisation for the sale, supply, import, transfer, use, disclosure, or transport of the Products in the Territory, including but not limited to electrical safety, electromagnetic compatibility, radio frequency, and energy efficiency, as necessary per the technical features of the Hardware. Partner shall provide Sophos within a reasonable time all test reports, certificates of conformity, or similar verifications of regulatory certification obtained by Partner under this Clause.
13.2.2 agrees that it is solely responsible for fulfilling all Applicable Laws that require the disposal, recycling, or reporting of hazardous substances or electronic waste, including without limitation those that relate to the EC Directive on Waste Electrical and Electronic Equipment (“WEEE”) and The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations (“RoHS”), and similar local laws and regulators in connection with any use, transport or disposal of the Products.
13.3 The Partner hereby:
13.3.1 agrees that in connection with its resale and distribution of the Products it will comply, and will ensure that its relevant personnel comply, with all Sanctions and Export Control Laws, including but not limited to its own written policy to know its End Users;
13.3.2 represents and warrants that neither Partner nor any party that owns or controls, or is owned or controlled by, Partner is (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce's Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) otherwise the target or subject of any Sanctions and Export Control Laws;
13.3.3 represents and warrants that it will not export, re-export, transfer, or otherwise make available the Products, directly or indirectly, to any country, region, individual or entity described in Clause13.3.2 or in violation of, or for purposes prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses, and that it has adequate policies, procedures, and controls in place to comply with this Clause 13.3.3;
13.3.4 agrees that it will use its best efforts to ensure that any End User complies with the requirements of Clause 13.3.3, including, but not limited to, by requiring any End User to agree to comply with the requirements of Clause 13.3.3;
13.3.5 understands and agrees that Sophos shall have no obligation to provide any Updates, Upgrades or services related to the Products where Sophos believes the provision of such Updates, Upgrades or services could violate Sanctions and Export Control Laws;
13.3.6 agrees to notify Sophos immediately if it becomes aware that it, its End User or any of its personnel may have breached any Sanctions and Export Control Laws in connection with its resale and distribution of the Products or if it becomes aware that any Product that it sold, directly or indirectly, to an End User has been exported, re-exported, transferred, or otherwise made available in violation of Clause 13.3.3;
13.3.7 agrees to provide notice to Sophos in a commercially reasonable timeframe and manner (if not herein elsewhere stated with specificity) of any government action or communication that Partner receives or becomes aware of concerning Sanctions and Export Control Laws relating to the Products, unless prohibited by law or compulsory governmental process;
13.3.8 agrees that while information about the classification of the Products for export purposes is available at http://www.sophos.com/en-us/legal/export and Sophos will use reasonable efforts to maintain the information on such webpage, Partner shall have sole responsibility for any product classification required under this Clause and for seeking its own legal advice and ensuring its own compliance with all applicable Sanctions and Export Control Laws in assigning such product classification;
13.3.9 agrees that in the event that the sale, supply, export, re-export or transfer of all or part of the Products or any part thereof to be supplied under this Agreement is subject to Sophos obtaining or using an export license, it will provide promptly upon request all assistance or documentation required by Sophos including, as appropriate, an accurately completed End User undertaking or consignee undertaking;
13.4 Partner will maintain accurate and legible records for a period of five (5) years from the date of any transaction undertaken under this Agreement and will provide Sophos with information reasonably requested by Sophos to review compliance with the terms of this Clause. Partner further agrees to provide Sophos with a certification as to its compliance with this Clause upon Sophos’s request. Failure to provide information/ certification within thirty (30) days of Sophos’s request may be considered cause for immediate termination of this Agreement.
13.5 Partner agrees that it will indemnify and hold Sophos harmless from and against any claim, loss, liability or damage suffered or incurred by Sophos resulting from or related toPartner’s breach of this Clause 13, and that a breach of it may be considered cause for immediate termination of this Agreement.
14 GENERAL
14.1 Amendments. This Agreement represents the entire terms agreed between the parties in relation to its subject matter, and supersedes all previous contracts or arrangements (if any) between the parties relating to its subject matter. Save as provided by Clause 14.2 below, this Agreement may only be revised in writing signed by an authorised representative of each of the parties.
14.2 SOPHOS RESERVES THE RIGHT TO UNILATERALLY MODIFY THE PRODUCTS, THE PRICE LIST AND THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE COMMERCIAL TERMS) AT ANY TIME BY NOTICE. Notice includes, but is normally not limited to, posting details at https://partnerportal.sophos.com and/or email announcements sent to Partner representatives. Following receipt of such notification, the Partner may terminate the Agreement within thirty (30) calendar days if the Partner objects to the notified changes. Failure to terminate within such period shall mean that the Partner expressly and unreservedly accepts all the amendments contained in the notice, which shall take effect immediately upon expiry of said thirty (30) calendar day period.
14.3 Conflicts. In the event of any inconsistency between this Agreement and the Commercial Terms, the provisions of the Commercial Terms shall prevail.
14.4 Remedies not exclusive. The rights and remedies contained in this Agreement are not exclusive of any other rights or remedies.
14.5 No waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. No single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
14.6 Notices. If either party has to serve notice on the other, it shall do so in writing and the notice must be sent either by courier, fax or certified pre-paid post to the address given for the other party or, if sent by email, with confirmation sent by certified pre-paid post. Notices sent in this way shall be effective on delivery if sent by courier, on completion of successful transmission if sent by fax, 48 hours after posting if sent by post, or on receipt if sent by email.
14.7 Severance. All parts of this Agreement apply to the maximum extent permitted by Applicable Law. If anyprovision of this Agreement shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable then (i) Sophos will replace such provision with similar terms which are enforceable under Applicable Law and (ii) such determination shall not affect any other provision of this Agreement, all of which other provisions shall remain in full force and effect.
14.8 Further assurance. Each party shall do, execute and perform such further acts, things, deeds and documents as may from time to time be required to give full legal and practical effect to this Agreement. Each party shall use all reasonable efforts at its own cost to ensure that any necessary third parties shall do, execute and perform such further acts, things, documents as may from time to time be required to give full legal and practical effect to this Agreement.
14.9 Assignment. The Partnermay not assign the benefit of this Agreement without the prior written consent of Sophos.
14.10 Rights of Third Parties. A person who is not a party to this Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this Agreement do not intend that any third party rights are created by this Agreement.
14.11 Language. If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.
15 GOVERNING LAW & JURISDICTION
15.1 In the event the contracting entity of Sophos is located in:
AUSTRALIA this Agreement shall be governed by and construed in accordance with the laws of state of New South Wales and the courts of the state New South Wales shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
CANADAthis Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the courts of the Province of British Columbia shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
France this Agreement shall be governed by and construed in accordance with the laws of France and the courts of Paris shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
GERMANYthis Agreement shall be governed by and construed in accordance with the laws of Germany, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG), and the courts of Frankfurt shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
ITALY this Agreement shall be governed by and construed in accordance with the laws of Italy and the courts of Milan shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement. In accordance with the provisions of articles 1341 and 1342 of the Italian Civil Code, the Partner expressly acknowledges and accepts the following provisions of this Agreement:2.1, 2.2 (Scope & Term - renewal and termination), 3.9 (Supply of products – withholding supply), 4.5 (Supply of appliance – invoicing hardware costs), 5.8 and 5.13 (Partner’s obligations – right of termination and cessation of performance), 12 ( Warranties and liability – limitation of liability), 13.9 (Assignment), 15 (Governing Law and Jurisdiction);
INDIAthis Agreement shall be governed by and construed in accordance with the laws of India and the Indian courts shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
JAPANthis Agreement shall be governed by and construed in accordance with the laws of Japan and the courts of Yokohama shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
THE NETHERLANDSthis Agreement shall be governed by and construed in accordance with the laws of the Netherlands and the Dutch courts shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
SINGAPOREthis Agreement shall be governed by and construed in accordance with the laws of Singapore and the courts of Singapore shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
SPAINthis Agreement shall be governed by and construed in accordance with the laws of Spain as applicable in the City of Madrid and the courts of the City of Madrid shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
SWEDENthis Agreement shall be governed by and construed in accordance with the laws of Sweden and the courts of Stockholm shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, or in connection with this Agreement;
SWITZERLANDthis Agreement shall be governed by and construed in accordance with the laws of Switzerland and the courts of the Canton of Zurich shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
UNITED KINGDOMthis 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 Agreement;
UNITED STATESthis 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 Agreement; and
ANY COUNTRY OTHER THAN THOSE LISTED ABOVE this 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 Agreement.
15.2Nothing in this clause shall limit the right of Sophos to initiate proceedings against the Partner in any other court of competent jurisdiction, nor shall the initiation of proceedings in any one or more jurisdictions preclude the initiating proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
Partner (Reseller) Terms and Conditions (16 August 2024)