The appliance loan agreement is completed by applicants who wish to evaluate a Sophos appliance.
THIS LOAN AGREEMENT (the “Loan Agreement”) is made and entered into by and between Sophos Limited (“Sophos”) and the entity named below (“You”).
1. Purpose. You wish to internally use and evaluate the Appliance with respect to the potential purchase of the Hardware and a license for such Appliance (the “Purpose”). You acknowledge and agree not to use the Appliance or the Evaluation Information for any purpose, including any commercial use or publication, except the Purpose stated herein. “Evaluation Information” means any information or data, in any form, concerning the operation or performance of the Appliance derived by You from Your possession and use of the Appliance hereunder.
2. Evaluation License. Sophos grants You a non-exclusive, non-transferable, royalty free, temporary right and license to use the Appliance for the Purpose and for the duration of the Evaluation Term as stated on the first page of this Loan Agreement document, in accordance with the evaluation terms and conditions set forth in the Sophos License Agreement which are included by reference herein. The Sophos License Agreement is posted on Sophos’s website: www.sophos.com/legal/eula.html.
3. Retention of Title. Sophos retains title to the Appliance until such time as the Evaluation Term as stated on the first page of this Loan Agreement document expires and You pay the Hardware Fee. Unless and until You have paid the Hardware Fee, You agree to keep the Hardware free and clear of all claims, liens, and encumbrances except those of Sophos, and any act of You, either voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Appliance shall be void. You shall keep the Hardware separate and clearly marked as proprietary to Sophos. Once You have paid the Hardware Fee, title to the Hardware shall pass to You. You own only the Hardware on which the Software is recorded, You do not own the Software itself. Your right to use the Licensed Products does not extend to any other data, images, text or other information (“Data”) that may be stored on the Appliance. Notwithstanding the foregoing, You are solely responsible for removing any Data stored by You on the Appliance that You may consider confidential. Alternatively, You may purchase at any time the Hardware on which Your Data is stored. Sophos will not have any obligations or liability with respect to any Data stored on returned Appliances and You hereby indemnify and agree to hold harmless Sophos from any loss, liability, damage or cost You may incur as a result of the storage of Data on a returned Appliance.
4. Return of Appliance. In the event that You decide not to purchase a license for the Appliance, You are required to contact Sophos and seek an return material authorization number (“RMA”) and to promptly return the Appliance in the condition You received it, free of any damage (reasonable wear and tear excepted), to Sophos at the “Return To” address set forth in Appendix 1 of this Loan Agreement document securely and properly packaged for commercial shipment in the packaging provided (if any), carriage prepaid, with the RMA number prominently displayed on the exterior of the packaging, at Your expense, to arrive on or prior to the expiration of the Evaluation Term. Should You fail to return any Appliance provided hereunder on a timely basis, Sophos shall issue an invoice to You for the purchase at list price of the Appliance Hardware. In the event that You fail to pay the applicable Fee, You are required to return the Appliance to the return location indicated by Sophos, securely and properly packaged, with carriage prepaid. If You fail to promptly return the Appliance to the location indicated by Sophos and You do not pay the applicable Fee, Sophos will be entitled to enter Your premises without notice to repossess the Appliance and shall be entitled to recover the costs of doing so from You as a debt.
a. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Sophos License Agreement.
b. You agree to take reasonable care of the Appliance during the Evaluation Term and until the Appliance is returned to Sophos. You are liable for any loss of or damage to the Appliance including but not limited to mishandling, misuse, neglect, improper testing, unauthorized repair, or alteration of the Software or processing that alters physical or electrical properties of any Appliance and/or related components. You shall fully insure the Appliance for the Evaluation Term (including during shipment to Sophos) until it is returned to Sophos.
c. The Appliance is classified as an encryption item under the United States Export Administration Regulations (“EAR”). Export of the Appliance from the United States is controlled by the United States EAR and may also be controlled by other national regulations. You hereby agree that You will use, disclose and/or transport the Appliance in accordance with any applicable export control laws and other regulatory requirements 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 You are solely responsible for fulfilling any such applicable requirements, 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 Your use, disclosure and/or transport of the Appliance. You agree 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 Your violation of this paragraph.
d. This Loan Agreement and applicable terms of the Sophos License Agreement constitute the entire agreement between the parties in relation to the Appliance and its evaluation and supersede 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. If there are any inconsistencies between the English language version of this Loan Agreement and any translated version, then the English language version shall prevail.
e. In the event the Sophos subsidiary entity from which You have purchased the licenses is located in:
THE UNITED STATES OF AMERICA, CANADA, LATIN AMERICA this License 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 License Agreement; and ALL OTHER COUNTRIES this License 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 License Agreement.