THE PURCHASE FROM, AND PERFORMANCE OF, PROFESSIONAL SERVICES OR CONSULTANCY ENGAGEMENTS FROM SOPHOS, ARE GOVERNED BY THESE TERMS AND CONDITIONS (COLLECTIVELY, “TERMS”).
THE SOPHOS ENTITY PROVIDING THE SERVICES (“SOPHOS”) AND YOU (“CUSTOMER”) AGREE AS FOLLOWS WITH RESPECT TO THE SOPHOS PROFESSIONAL SERVICES, UNLESS OTHERWISE AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SOPHOS.
NO OTHER TERMS AND CONDITIONS SPECIFIED OR PREPRINTED ON CUSTOMER’S PURCHASE ORDER OR OTHER DOCUMENT SHALL ADD TO OR MODIFY THE TERMS, nor shall such terms and conditions affect either party’s responsibility to the other party as set forth herein. RECEIPT BY SOPHOS OF A CUSTOMER PURCHASE ORDER SHALL CONSTITUTE ACCEPTANCE BY CUSTOMER OF SOPHOS’S OFFER AS SPECIFIED IN A VALID QUOTE, SUBJECT SOLELY TO THE TERMS. Sophos reserves the right to reject any order.
- Sophos agrees to provide, and Customer agrees to take and pay for the services set out in a statement of work (the “Services”) as such statements of work may be agreed between the parties from time-to-time (each an “SOW”) The cost for Services under each SOW shall be set forth in a quote from Sophos or its authorized reseller associated with such SOW.
- The Services are provided at Customer’s request and Customer accepts that it is responsible for ensuring that the Services are suitable for its own needs.
- Sophos will provide to Customer an appropriately qualified person(s) (the “Consultant who will perform the Services in a timely and professional manner, during Sophos’s normal business hours, exercising due skill and care and using reasonable efforts to meet any target dates agreed in the SOW.
- Any scripts developed by Sophos as part of the Services, or scripts that are licensed by Sophos to Customer, are incorporated into, form part of and work only in conjunction with the Sophos software for which such scripts were developed. Sophos licenses the scripts to Customer pursuant to the terms and conditions of the software license agreement under which such software was originally licensed to Customer, except that the scripts are provided “as is” and the warranty and support terms in such agreement will not apply to the scripts, unless otherwise agreed in writing by Sophos.
- All title, ownership rights and world-wide intellectual property rights (including all patents, copyright, trademarks, trade secrets and moral rights) in and to any scripts, software, documentation, materials, methodologies, knowhow, trade secrets, or other such information or materials that are used, developed or provided by Sophos in the course of delivering the Services (collectively, “Sophos Intellectual Property”), is and will remain the exclusive property of Sophos (or its affiliates and/or licensors as applicable). Customer may, however, subject to payment of all fees due under this Agreement, retain any deliverables provided to it under a SOW and may use such deliverables for its own internal purposes in accordance with terms and conditions of the software license noted above.
- In the event that the Services are completed in less time than is estimated in the applicable SOW, the unused time shall expire and shall not be used for any subsequent engagements.
- In the event that Customer has pre-purchased a block of Services time, any unused time shall expire six months from the date of purchase of such time.
- In the event that Customer cancels or requests a rescheduling of a mutually confirmed Services engagement date with less than one (1) week notice to Sophos, the following shall result:
- with respect to onsite Services (i) if cancellation by the Customer occurs within one (1) week of the scheduled date for such Services then 50% of the scheduled Services time, and the associated fees (whether pre-paid or due under a purchase order) shall be forfeited, or (ii) if cancellation by the Customer occurs within twenty-four (24) hours of the scheduled date for such Services then 100% of the scheduled Services time , and the associated fees (whether pre-paid or due under a purchase order) shall be forfeited;
- with respect to remote Services (iii) if cancellation by the Customer occurs within forty-eight (48) hours of the scheduled date for such Services then 50% of the scheduled Services time shall be forfeited, or (iv) if cancellation by the Customer occurs within one (1) hour of the scheduled time for such Services then 100% of the scheduled Services time shall be forfeited; unless otherwise agreed by Sophos at its sole discretion.
- Customer Obligations
- If the Customer purchases via a Sophos authorized reseller, the pricing and payment terms will be determined between the reseller and the Customer and are at the reseller’s discretion.
- If the Customer purchases from Sophos directly:
- Customer shall pay for the Services at the rate set out in the relevant SOW or otherwise agreed in writing with Sophos. The rates are exclusive of any value added tax that shall be payable by Customer at the rate and in the manner prescribed by law.
- Customer agrees to pay Sophos invoices within 30 days of the date of the invoice.
- In the event that the SOW does not state that expenses are included in the fee for the Services, then Customer shall reimburse Sophos for any expenses reasonably and properly incurred by the Consultant in performing the Services, upon submission of copies of receipts, or as otherwise agreed in writing. Sophos will maintain accurate records of the time spent and expenses incurred in providing the Services.
- Customer shall provide the Consultant with all information and help reasonably required by the Consultant and shall make available such of its own appropriately qualified staff as may be reasonably required to assist the Consultant with the performance of the Services, including (a) providing the Consultant with such computer facilities, and office facilities at its premises to enable the Consultant to perform the Services including suitably equipped accommodation and facilities for making telephone calls to and from the Consultant’s offices in private; (b) providing full access to those areas of Customer’s premises that are required for performance of the Services; (c) authorizing the Consultant to have access to those computer systems necessary to the performance of Services; and Customer shall take all reasonable steps to ensure the health and safety of Consultant while they are at Customer’s premises.
- Customer warrants that any computer hardware or software that the Consultant is asked to use or modify for the purpose of the Services are either the property of Customer or are legally licensed to Customer and will indemnify Sophos in respect of any claims against Sophos or its employees by third parties related to such use or modification, including all related costs, expenses or damages in the event of any actual or alleged violations of third party proprietary rights or software licences associated with such use or modification.
- Customer represents and warrants that neither Customer, nor any party that owns or controls or is owned or controlled by Customer, 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. Customer further represents and warrants that it will not, directly or indirectly, export, re-export, transfer, or otherwise make available (a) the Services, or (b) any data, information, software programs and/or materials resulting from the Services (or direct product thereof) to any country, region, or person described in this Clause or in violation of, or for purposes prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses. For purposes of this section, “Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or similar measure applicable to the 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 to the Services.
- Upon completion of the Services, Sophos will present Customer with a document requesting that customer sign to acknowledge completion of the Services and acceptance of the Services by Customer. Customer will respond to the request within ten (10) business days (the “Acceptance Period”) indicating its acceptance of the Services or will set out in detail the reasons that it believes that the Services do not conform to the requirements of the SOW. If the Services are rejected, Sophos will use reasonable efforts to address any material nonconformities in a timely manner, and will reissue its request for acceptance and sign off. Upon signature by Customer, Sophos will consider the SOW complete. If Customer fails to respond within the Acceptance Period the Services will be deemed to be accepted and Sophos will consider the SOW complete.
- Non-solicitation. During the term of SOW, and for twelve (12) months after its expiry or termination, Customer will not solicit or seek to induce to leave the employ of Sophos any person who was, during the performance of the Services, an employee of Sophos, and who worked with, or under the supervision of, Customer at any time during that period.
- Force Majeure. Sophos shall not be liable to Customer for any delay in or failure to perform the Services as a result of a Force Majeure Event. "Force Majeure Event " means any event affecting the performance by Sophos of its obligations arising from any act, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the above) government regulations, fire, flood or any disaster or an industrial dispute affecting a third party.
- Limitation of Liability
- Except as expressly stated herein, Sophos make no warranties, conditions, undertakings or representations of any kind, either express or implied, statutory or otherwise, in relation to the Services and/or any deliverables resulting from such Services, 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.
- The liability of Sophos to Customer in respect of any claim for breach of contract, negligence, breach of statutory duty or otherwise shall be limited as follows: (a) In respect of any claim for fraudulent misrepresentation, personal injury or death caused by the negligence of Sophos, its employees, agents or sub-contractors, or any other liability that cannot be limited by applicable law, no limit shall apply; (b) In respect of all other claims, Sophos’s aggregate liability shall be limited to the amount of the fees paid to Sophos under the relevant SOW(s).
- Sophos shall not be liable to Customer for any indirect, consequential, incidental or special damage or loss of any kind including, but not limited to, loss of profits, loss of contracts, business interruptions, loss of or corruption of data however caused and whether arising under contract or tort, including without limitation negligence.
- Governing Law & Jurisdiction. For Services rendered in: (a) THE UNITED STATES OF AMERICA, CANADA, LATIN AMERICA, this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. and the courts of the Commonwealth of Massachusetts, U.S.A. shall have exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement; or (b) ANY OTHER COUNTRY, 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 exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement.
SOPHOS PROFESSIONAL SERVICES TERMS AND CONDITIONS (4 August 2021)