Employee Security Services
License and Services Agreement for Business Solution
This License and Services Agreement for Bitdefender Solutions (“Agreement”) is a legal agreement between Bitdefender and You, for use of the Bitdefender software and the initialization of the services and any other service provided by Bitdefender (“ Bitdefender Solutions”) and/or SmartPath Technologies, LLC.
1. DEFINITIONS.
“You or “Your” refers to an individual or entity that has executed this Agreement and ordered Bitdefender Solutions and/or services from Bitdefender or its authorized resellers or distributors.
“Agreement“ is legal agreement between Bitdefender and You, for use of the Bitdefender Solutions.
An employee or other agent, including a reseller or contractor which installs or registers Bitdefender Solution, of this entity, must be a representative of the entity and must accept this Agreement on behalf of the entity before the Bitdefender Solution may be used. Please print this Agreement and save a copy electronically.
“Affiliate” means any entity in which You, as applicable, owns or controls, directly or indirectly, and any parent company that owns or controls, and any of the companies the parent company controls. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over fifty percent (50%) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity.
“Beta Solution” means any Trial Solution and any solution marked or otherwise designated as a beta test version, irrespective of whether payment has been made
“Bitdefender Solution” means Bitdefender software and services identified in the transaction documents and the initialization of the services, and may include associated media, printed materials, and Documentation, and any software updates and technical support.
“Documentation” means explanatory materials in printed, electronic or online form that accompany the Bitdefender Solutions.
“Update” means an update to the detection data or software made available to You, at Bitdefender’s sole discretion, from time to time, but excluding any updates marketed and licensed for a separate fee.
“Upgrade” means any enhancement or improvement to the functionality of the Bitdefender Solution made available to You at Bitdefender sole discretion from time to time, but excluding any software and/or upgrades marketed and licensed for a separate fee.
“User” means an employee, independent consultant or other individual of your entity who use or have access to or benefits from the Bitdefender Solution licensed to you.
2. PRODUCT REGISTRATION.
Registration requires a valid Bitdefender Account that includes a valid email address for receiving Updates, Upgrades, other notices and a valid product license. The Bitdefender Account is mandatory for the use of the Bitdefender Solution, as stated in the Product Documentation.
For all Bitdefender Solutions excepting Bitdefender Security for AWS registration requires a valid product serial number available in the transaction documentation from the Bitdefender distributor or reseller from which You obtained the Bitdefender Solution.
This control helps ensure that the Bitdefender Solution operates only on validly licensed devices, virtual machines and mobile devices and that validly licensed users receive services. The Bitdefender Account is necessary for the activation of the online features, as stated in the Product Documentation.
The Bitdefender Security for AWS, is a subscription-based service offered by Bitdefender for Amazon EC2 customers.
If you purchase directly from Bitdefender, You must have an Amazon Payments account with a valid credit card necessary for the monthly billing. You are not provided with or required to use a license key.
The Bitdefender Solution features and terms are presented on the Bitdefender website, e-shop or the applicable transaction documentation.
The information given (name, email address, password), during initial setup, if collected, will be used as an account name under which You may elect to receive services and/or under which You may use certain features of the Bitdefender Solution. You may change and Bitdefender strongly recommends you to do so, the password at any time after installation of the Product.
3. LICENSE RIGHTS AND RESTRICTIONS.
Upon Bitdefender’s acceptance of your order and in consideration of the payment of the fee by you and receipt of the corresponding payment by Bitdefender, Bitdefender grants you the limited, non-exclusive, non-transferable right to use Bitdefender Solution that You ordered solely for your internal business operations including your Affiliates, and subject to the terms of this agreement, including the order and the product documentation. You may allow your Users to use the Bitdefender Solutions for this purpose and you are responsible for their compliance with this agreement in such use.
You may install or use the Bitdefender Solutions and initiate the services, on as many devices as necessary with the limitation imposed by the total number of licensed seats stated in the order. Depending on the purchased Product, You will be entitled to license for physical computers, virtual machines, Amazon EC2 instances and/or Exchange mailboxes, as stated in the purchasing documents.
You can use one copy of the Bitdefender Solution on a single device. If a greater number of copies and/or number of devices is specified within the order from the authorized distributor or reseller from which You obtained the Bitdefender Solution (Permitted Number), You shall have the right to copy the Bitdefender Product in accordance with such specifications; You can make one copy of the Bitdefender Solution for back-up or archival purposes; If the Bitdefender Solution supports multiple platforms or languages, if you receive the Bitdefender Solution on multiple media, if you otherwise receive multiple copies of the Bitdefender Solution, or if you receive the Bitdefender Solution bundled with other software, the total number of your devices on which all versions of the Bitdefender Solution are installed may not exceed the Permitted Number.
During the installation process, the Bitdefender Solution may uninstall or disable other security products if such products or features are incompatible with Bitdefender Solution.
The Bitdefender Solution is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Bitdefender Solutions is licensed, not sold. This agreement only gives You some rights to use the Bitdefender Solution.
License Restrictions. Under this Agreement, You may not transfer or sublicense the Bitdefender Solution to another person or entity; you shall not rent, lease, loan, auction, or resell the Bitdefender Solution nor modify, translate, or create derivative works, reverse engineer, de-compile, or disassemble the Bitdefender Solution, in whole or in part, or otherwise attempt to reconstruct or discover the source or object code or underlying ideas, algorithms, file formats, programming or interoperability interfaces (or if the law permits any such action, You agree to provide with at least 90 days’ advance written notice ); you shall not use the Bitdefender Software to provide services to third parties or allow use or access to the Bitdefender Solution by any third party other than contractors or consultants acting on Your behalf. You may not permit third parties to benefit from the use or functionality of the Bitdefender Solution and Services via a timesharing, service bureau or other arrangement. You may not remove any proprietary notices or labels on the Bitdefender Solution and You may not disclose results of any program benchmark tests without Bitdefender’s prior written consent. If Bitdefender provides the Bitdefender Solution (i) embedded, incorporated or loaded onto a physical hardware device or (ii) made available for download to a designated physical hardware device, then the license is restricted to use on that device only. Additionally, you may not, (a) modify, block, circumvent or otherwise interfere with any authentication, license key or security measures in the Bitdefender Solution.
You must obtain all necessary rights and permissions from your Users to use the Bitdefender Solution.
Please check the sales documents and Bitdefender websites for limitations of usage among the different categories of endpoints.
4. EVALUATION AND BETA LICENSE.
If the Bitdefender Solution is provided to You for evaluation purposes and You have an evaluation agreement with Bitdefender for the Bitdefender Solution, Your rights to evaluate the Bitdefender Solutionre will be pursuant to the terms of such evaluation agreement. If You do not have an evaluation agreement with Bitdefender for the Bitdefender Solution and if You are provided the Bitdefender Solution for evaluation purposes, section 3, LICENSE RIGHTS AND RESTRICTIONS, is hereby replaced with the following terms and conditions. Bitdefender grants to You a nonexclusive, temporary, royalty-free, non-assignable license to use the Bitdefender Solution solely for internal non-production evaluation. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Bitdefender Solution or (ii) thirty (30) days from the date of Your initial installation of the Bitdefender Solution, if no such evaluation period is pre-determined (“Evaluation Period”). The Bitdefender Solution may not be transferred and is provided “AS IS” without warranty of any kind. You are solely responsible to take appropriate measures to back up Your system and take other measures to prevent any loss of files or data. The Bitdefender Solution may contain an automatic disabling mechanism that prevents its use after a certain period of time. Upon expiration of the Evaluation Period, You will cease use of the Bitdefender Solution and destroy all copies of the Bitdefender Solution. All other terms and conditions of this Agreement shall otherwise apply to Your evaluation of the Bitdefender Solution.
If You are a beta user, You may use Bitdefender Solution for testing purposes in a non-production environment for a maximum of thirty (30) days from the date You download Bitdefender Solution (the "Beta Period").
During any Evaluation or Beta Period, You can receive web or email based technical support in the country where You are located and Updates, if applicable, without any guarantee or warranty of any kind.
THE PROVISIONS OF THE SECTION, APPLY IN PLACE OF SECTION 11 WITH RESPECT TO ANY EVALUATION AND BETA SOLUTIONS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BITDEFENDER SOLUTION USED FOR TRIAL PURPOSES OR BETA SOLUTIONAS ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTIES OF ANY KIND.
BETA DISCLAIMER
THE BETA SOFTWARE LICENSED HEREUNDER IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
Your right to use Bitdefender Solution ends when the Evaluation or Beta Period ends or if You violate any term of this Agreement. Upon termination of the Evaluation or Beta Period, You must delete or destroy all copies of Bitdefender Solution and Documentation and stop using the Service. Your obligations and rights under this Agreement will continue to apply after the end of the Evaluation or Beta Period.
5. TERM OF LICENSE.
For all Bitdefender Solutions, excepting Bitdefender Security for AWS, You will receive the Bitdefender Solution based on the subscription acquired and You will have certain rights to use the Bitdefender Solution during the License/Subscription Period, which shall begin on the date of Your initial installation of the Bitdefender Solution regardless of the number of copies that You are permitted to use, and shall last for the period of time set forth in the Documentation or the applicable order from the Bitdefender or its distributor or reseller from which You obtained the Bitdefender Solution. The Bitdefender Solution will automatically be deactivated at the end of the License Period, and You will not be entitled to receive any feature or content updates to the Bitdefender Solution.
For Bitdefender Security for AWS, monthly subscription, You will receive the Bitdefender Solution for as long as you pay for your subscription. If you fail to pay the monthly subscription, your account will be suspended.
Also, if you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Bitdefender Solution and you agree to uninstall or not use the Bitdefender Solution forthwith upon you not continuing to abide by the terms of this Agreement.
Bitdefender reserves the right to stop supporting its products or a version of its products, or discontinue its Products or Product features. End-of-support policies are posted on the Bitdefender website and may be consulted at the following link: https://www.bitdefender.com/support/bitdefender-end-of-life-policy-statement-982.html
For the avoidance of doubt, for Trial Licenses and Beta Solutions, Bitdefender shall have no further obligation to you beyond providing prior notice to terminate for convenience, and shall have no obligation to provide notice in the case of a termination for your breach of this Agreement.
6. UPDATES.
By accepting this Agreement, during the Subscription Period, You acknowledge and agree that a server system of your choice installed in your network may be used for receiving and serving Updates of the Bitdefender Solution. The necessary protocol will not be used for anything other than transmitting and receiving Bitdefender updates of product and signatures files. If You do not use a local Update server, Bitdefender offers you the possibility to download the updates directly from Bitdefender content delivery network. Some Updates as signature updates, bugfix or smaller updates will be automatically downloaded to Your device and major updates will require your intervention in the interface.
You must be current in the payment of fees for the Bitdefender Solution or have an active subscription, as applicable, to receive Updates or Upgrades.
7. OWNERSHIP.
All rights not expressly set forth hereunder are reserved by Bitdefender.
The Bitdefender Solution may operate or interface with software or other technology that is licensed to Bitdefender from third parties, which is not proprietary of Bitdefender, but which Bitdefender has the necessary rights to license to You. You agree: You will use such third party software in accordance with this Agreement; no third party licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to You concerning such third party software or the products themselves; no third party licensor will have any obligation or liability to You as a result of this Agreement or your use of such third party software; such third party software may be licensed under license terms which grant you additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional license rights and restrictions are described or linked to in the applicable Documentation, or within the Product itself. For the avoidance of any doubt, such additional rights and/or restrictions apply to the third party software on a standalone basis; nothing in such third party licenses shall affect your use of the Bitdefender Solutions in accordance with the terms and conditions of this Agreement. Open Source License Terms are published in About Section of each Bitdefender Solution.
In respect of the open source software, the following stipulations shall apply to the extent expressly required by the their licenses, the terms of relevant licenses (including in particular the scope of license as well as disclaimers of warranties and liabilities) shall apply to the respective any third party software in lieu of this Subscription agreement. Such third party license terms relating to respective software are located at the place as indicated in the software.
FEEDBACK. It is expressly understood, acknowledged and agreed that You shall, regardless of whether or not formally requested to do so, provide to Bitdefender reasonable suggestions, comments, testimonials and feedback regarding the Bitdefender Solution, including but not limited to usability, bug reports and test results, with respect to Bitdefender Solution testing (collectively, "Feedback"). If You provide such Feedback to Bitdefender, You shall grant Bitdefender the following worldwide, exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Bitdefender Solution, technology, service, specification or other documentation (individually and collectively, "Bitdefender Solutions"); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Bitdefender Solution; (iii) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by You that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the feedback or portion thereof incorporated into a Bitdefender Solution, technology or service. Further, You warrant that your Feedback is not subject to any license terms that would purport to require Bitdefender to comply with any additional obligations with respect to any Bitdefender Solutions that incorporate any Feedback.
Standard Support. The terms and conditions of standard technical support for Bitdefender Gravityzone Enterprise are stated here: http://www.bitdefender.com/site/view/enterprise-support-policies.html
Paid Services:
Professional Services: If You purchase these services, their performance will be according to the Service Level Agreement available at the following address: https://www.bitdefender.com/media/materials/legal/Service-Level-Agreement-for-Professional-Services.v1.1.pdf.
Premium Technical Support Services: If You purchase these services, their performance will be according to the Enterprise Support Policy available at: https://www.bitdefender.com/site/view/enterprise-support-policies.html.
MDR Service: If You purchase these services, their performance will be according to the Terms and Conditions available at the following address: https://www.bitdefender.com/site/view/eula-for-accessing-bitdefender-managed-detection-and-response-service.html
Bitdefender reserves the right to refuse, suspend or terminate any of the Technical Support in its sole discretion in case You are in breach of your obligations. The technical support policies are subject to change at Bitdefender’s discretion; however, Bitdefender will not materially reduce the level of services provided for supported programs during the period for which fees for technical support have been paid. You should review the policies published on websites prior to entering into the ordering document for the applicable services. If You intend to receive any professional services, then you need to sign with Bitdefender a separate statement of work. These terms are not applicable for Trial and Beta Solutions.
9. CONFIDENTIALITY.
Neither Party shall disclose any confidential and/or proprietary information belonging to the other party unless agreed in writing by the said party. Confidential information shall be limited to the terms and pricing under this agreement, and all information clearly identified as confidential. This obligation shall not apply to information received which: (i) is or becomes known by the recipient without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public through no act or omission on the part of the recipient; or (iii) is independently developed by the recipient without the use of confidential or proprietary information. In the event that either Party is required to disclose confidential and proprietary information pursuant to law, it shall notify the other Party of the required disclosure. Each Party agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents on a need to know bases and who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders submitted under this Agreement in any legal proceeding arising from or in connection with this Agreement.
10. WARRANTIES. DISCLAIMERS.
Bitdefender warrants that Bitdefender Solution will be provided in a professional manner consistent with industry standard. Bitdefender warrants to You that the encoding of the software program on the media on which the Bitdefender Solution is furnished will be free from defects in material and workmanship, and that the Bitdefender Solution shall substantially conform to its Documentation, for a period of ninety (90) days from the date You purchase the license key or activation code ( “Warranty Period”)
The warranty shall not apply if (i) the Product has not been used in accordance with the terms and conditions of this Agreement and the Documentation; (ii) the issue has been caused by your failure to apply Updates, Upgrades or any other action or instruction recommended by Bitdefender, (iii) the issue results from any cause outside of Bitdefender’s reasonable control.
If Bitdefender is notified in writing of a breach of warranty during the Warranty Period, Bitdefender’s entire liability and your sole remedy shall be (at Bitdefender’s option): (i) to correct, repair or replace Bitdefender Solution within a reasonable time, or (ii) to authorize a refund of the Fee following return of the Products accompanied by proof of purchase. Any replacement Products shall be warranted for the remainder of the original Warranty Period.
Bitdefender shall indemnify and keep you harmless from any claim by a third party that your use or possession of the Bitdefender Solution in accordance with the terms and conditions of this Agreement infringes any third party patent, trademark or copyright.
The foregoing obligation of Bitdefender does not apply with respect to software, services or portions or components thereof: (i) not supplied by Bitdefender; (ii) used in a manner not expressly authorized by this Agreement or the accompanying Documentation (iii) made in accordance with your specifications; (iv) modified by anyone other than Bitdefender, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where you continue the allegedly” infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
In the event the Bitdefender Solution is held by a court of competent jurisdiction to constitute an infringement Bitdefender shall, at its sole option, do one of the following: (i) procure the right to continued use; (ii) modify the Bitdefender Solution so that their use becomes non-infringing; (iii) replace the Bitdefender Solution with substantially similar products in functionality and performance; or (iv) if none of the foregoing alternatives is reasonably available to Bitdefender, Bitdefender shall refund the pro-rata unused portion of the Bitdefender Solution.
The Parties may request indemnification under this provision, provided they: (a) give notice within ten (10) days of any claim being made or proceedings being issued against; (b) give sole control of the defense and settlement to the indemnifying party (provided any settlement relieves the indemnified party of all liability in the matter); (c) provide all available information and reasonable assistance; and (d) have not previously compromised or settled such claim.
THIS SECTION STATES BITDEFENDER’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS.
BITDEFENDER and/or SMARTPATH TECHNOLOGIES DOES NOT WARRANT THAT BITDEFENDER SOLUTION WILL MEET YOUR REQUIEREMENTS. BITDEFENDER and/or SMARTPATH TECHNOLOGIES DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT BITDEFENDER and/or SMARTPATH TECHNOLOGIES WILL CORRECT ALL PROGRAM ERRORS. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THIS BITDEFENDER and/or SMARTPATH TECHNOLOGIES SOLUTION IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS BITDEFENDER SOLUTION IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BITDEFENDER and/or SMARTPATH TECHNOLOGIES DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, ENHANCEMENTS, MAINTENANCE OR SUPPORT RELATED THERETO, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR SERVICES SUPPLIED BY HIM. BITDEFENDER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, FALSE POSITIVES OR FALSE NEGATIVES, DEVICE FAILURE OR MALFUNCTION FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY OF DATA, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS BY FILTERING, DISABLING, OR REMOVING SUCH THIRD PARTY’S SOFTWARE, SPYWARE, ADWARE, COOKIES, EMAILS, DOCUMENTS, ADVERTISEMENTS OR THE LIKE, WHETHER ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR TRADE USAGE.
YOU SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT YOU SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. BITDEFENDER ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED.
Bitdefender and/or SmartPath Technologies is acting on behalf of its partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. BITDEFENDER’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE FEES YOU PAID BITDEFENDER FOR THE DEFICIENT BITDEFENDER SOLUTION OR SERVICES UNDER THIS AGREEMENT AS SPECIFIED IN YOUR ORDER. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO CASE SHALL BITDEFENDER'S LIABILITY EXCEED THE PURCHASE PRICE PAID BY YOU FOR BITDEFENDER SOLUTION.
BITDEFENDER and/or SMARTPATH TECHNOLOGIES DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE, (ii) FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
11. ELECTRONIC COMMUNICATIONS.
Bitdefender may send you legal notices and other communications about the Software and Maintenance subscription services or our use of the information you provide us ("Communications"). Bitdefender will send Communications via in-product notices or via email to the primary user's registered email address, or will post Communications on its Sites. The legal basis for sending these communications are this contract (for the transactional communications) and the legitimate interest for marketing with the current customers (for the commercial communications)
12. PRIVACY POLICY & GDPR.
All the information on how the personal data is processed during the usage of the Bitdefender Solution and services is specified in the Bitdefender Privacy Policy. By accepting this Agreement, you understand that you have been notified about how your personal data will be processed according to the Privacy Policy for Business Solutions published on: https://www.bitdefender.com/site/view/legal-privacy.html and the Personal Data Notice for Business Contacts of the Clients or Partners published on: https://www.bitdefender.com/site/view/legal-personal-data-notice-for-business-contacts-of-the-clients-or-partners.html
As regards personal data collected by Bitdefender Solution from your Users and the applicable data protection legislation governing this relationship, according to the EU applicable legislation on personal data (GDPR – General Data Protection Legislation), Bitdefender together with You are joint controllers.
Bitdefender acts as a data controller in relation with the personal data collected through its products and services sold to/through Business Clients only for the purposes of ensuring information and network security, including support activities for this purpose (only in specific cases, when support activities are included in the specific contract with Bitdefender). The Users also act as data controllers in relation to the personal data they might have access through the Bitdefender’s products and services for purposes of ensuring information and network security. For any other potential purposes that Business users may decide internally on their own, Business Clients and Service Providers (and their Clients) act as separate and independent data controllers, collecting personal data from another source, meaning Bitdefender`s products and services.
The joint controllers will be each independently and separately responsible for the respecting the GDPR provisions, including lawful processing of personal data, informing service users about the use of their personal data, the security of personal data and ensuring service users can exercise their rights, according to the Joint Controllers Arrangement available here: https://www.bitdefender.com/media/materials/legal/Joint-Controllers-Arrangement.pdf
13. TECHNOLOGIES.
Bitdefender informs you that in certain programs or products it may use data collection technology to collect technical information (including suspect files), to improve the products, to provide related services, to adapt them to the latest industry trends and to prevent the unlicensed or illegal use of the product or the damages resulting from the malware products.
You accept that Bitdefender may use such information as part of the services provided in relation to the product and to prevent and stop the malware programs running on your device.
By accepting this Agreement, You acknowledge and agree that the security technology used can scan the traffic in an impersonal mode to detect the malware and to prevent the damages resulting from the malware products.
You acknowledge and accept that Bitdefender may provide updates or additions to the program or product which automatically download to your device. By accepting this Agreement, You agree that some of the executable files considered potentially harmful, may be submitted to Bitdefender servers for the purpose of being scanned.
Bitdefender reserves the right to collect certain information from the computer on which it is installed, depending on the modules and services You have activated in your Bitdefender Solution. Such information may pertain to potential security risks as well as to URLs of websites visited that the Bitdefender Solution and Services deems potentially fraudulent. The URLs could contain personally identifiable information that a potentially fraudulent website is attempting to obtain without Your permission. As such, You agree that certain Product modules, services and components may collect pieces of data from your systems for the purpose of evaluating and improving the ability of Bitdefender’s products to detect malicious behavior, potentially fraudulent websites and other Internet security risks. Bitdefender also employs proprietary Cloud technologies to perform scanning on certain URLs, files or emails submitted from your systems.
14. AUDIT RIGHTS.
Bitdefender may audit Your use of the Bitdefender Solution to verify that Your usage complies with applicable Documentation. An audit will be done upon reasonable notice and during normal business hours, but not more often than once each year unless a material discrepancy was identified during the course of a prior review. You agree to implement internal safeguards to prevent any unauthorized copying, distribution, installation, or use of, or access to, the Bitdefender Solution. You further agree to keep records sufficient to certify Your compliance with this Agreement, and, upon request of Bitdefender, provide and certify metrics and/or reports based upon such records and accounting for both numbers of copies (by product and version) and network architectures as they may reasonably relate to Your subscription and deployment of the Bitdefender Solution.
15. FORCE MAJEURE.
Neither Party shall be in breach of the Agreement in the event it is unable to perform its obligations as a result of natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of the Internet, the inability to obtain supplies, or any other reason or condition beyond its reasonable control; provided, however, if such reasons or conditions remain in effect for a period of more than thirty (30) calendar days, either Party may terminate the Agreement affected by such force majeure following the written notice to the other Party.
16. GENERAL.
If You are located in the United States or Canada, this Agreement is governed by the laws of the State of Florida, USA, with the venue in Broward County. If you are located in UK, Australia and New Zeland, this Agreement will be governed by the laws of UK laws, with the venue in Reading. If you are located in the Netherlands, Belgium, Denmark, Finland, Iceland, Norway, and Sweden, this Agreement is governed by the Dutch Laws with the venue in the Hague. If you are located in Germany and Austria, this Agreement is governed by the German Laws with the venue in München. If You are located in rest of Europe, Africa, Middle East and Asia, this Agreement will be governed by the laws of Romanian with the venue in the courts of Bucharest.
Nothing in this License Agreement will diminish any rights You may have under existing consumer protection legislation or other applicable laws in Your jurisdiction that may not be waived by contract.
In the event of invalidity of any provision of this Agreement, the invalidity shall not affect the validity of the remaining portions of this Agreement.
This Agreement describes certain legal rights. You may have other rights under the laws of Your state or country. You may also have rights with respect to the party from whom You acquired the Bitdefender Solution. This Agreement does not change Your rights or obligations under the laws of Your state or country if the laws of Your state or country do not permit it to do so.
Bitdefender and/or SmartPath Technologies, LLC reserves the right to cooperate with any legal process and any law enforcement or other government inquiry related to your use of this Bitdefender Solution and Services. This means that Bitdefender may provide documents and information relevant to a court subpoena or to a law enforcement or other government investigation.
Bitdefender and Bitdefender logos are trademarks of BITDEFENDER. All other trademarks used in the product or in associated materials are the property of their respective owners.
Bitdefender retains the right to assign this Agreement in its sole discretion. You may not assign this Agreement without the prior written permission of Bitdefender.
BITDEFENDER and/or SMARTPATH TECHNOLOGIES may revise these Terms at any time and the revised terms shall automatically apply to the corresponding versions of the Bitdefender Solution distributed with the revised terms. If any part of the Agreement is found void and unenforceable, it will not affect the validity of rest of the Terms, which shall remain valid and enforceable. In case of controversy or inconsistency between translations of the Agreement to other languages, the English version issued by BITDEFENDER and/or SMARTPATH TECHNOLOGIES shall prevail.
Physical Site Security
Sophos and/or SmartPath Technologies End-User License Agreement (EULA)
IMPORTANT NOTICE: IF YOU ARE A CONSUMER, CLAUSE 14.12 OF THE SOPHOS AND/OR SMARTPATH TECHNOLOGIES END USER LICENSE AGREEMENT DOES NOT APPLY TO YOU AND YOU ARE NOTIFIED THAT THIS END USER LICENSE AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHT AS DETAILED IN THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER POLICY IN CLAUSE 15.9.7 OF THIS LICENSE AGREEMENT. YOU ALSO HAVE ADDITIONAL CONSUMER RIGHTS AS DESCRIBED IN CLAUSES 15.8 AND 15.9.
SOPHOS AND/OR SMARTPATH TECHNOLOGIES END USER LICENSE AGREEMENT
Capitalized terms have the meanings set forth below. Please read this legally binding License Agreement between Sophos and/or SmartPath Technologies and Licensee carefully. By selecting the accept option, breaking the seal on the software package, or installing, copying or otherwise using the Products, Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms and conditions of this License Agreement, including without limitation the terms and conditions of documents and policies that are incorporated herein by reference.
If Licensee does not agree with the terms and conditions of this License Agreement, Licensee is not authorized to install or otherwise use the Products for any purpose whatsoever. If Licensee returns the unused Products and all accompanying items in their original condition and packaging within twenty-one (21) calendar days of delivery by Sophos and/or SmartPath Technologies, together with proof of purchase, Licensee may receive a full refund.
Where a reseller, service provider, consultant, contractor or other party downloads, installs, manages or otherwise uses the Products on Licensee’s behalf, such party will be deemed to be Licensee’s agent and (i) Licensee will be deemed to have accepted all of the terms and conditions of this License Agreement, and (ii) to the extent permitted by applicable law, Licensee, not Sophos and/or SmartPath Technologies, shall be responsible for the acts or omissions of such party in relation to its management or use of the Products on Licensee’s behalf.
NOW IT IS AGREED as follows:
1. DEFINITIONS
1.1 ‘Affiliates’ means, with respect to each party, entities that control, are controlled by, or are 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.
1.2 'Computer' means any device or computing environment that benefits from the Licensed Product (including without limitation, workstations, personal computers, laptops, netbooks, tablets, smartphones, and environments connected to an email server, an internet proxy or a gateway device, or a database). The Licensed Product does not have to be physically installed on the computer environment to provide benefit, nor is there a requirement for the computing hardware to be owned by the Licensee. The term ‘Computer’ as defined herein includes, without limitation, non-persistent deployments, electronic devices that are capable of retrieving data, and virtual machines.
1.3 'Consumer' means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.
1.4 'Documentation' means the formal Product documentation (whether electronic or printed) published by Sophos and/or SmartPath Technologies for each Product.
1.5 'Fee' means the fee payable for the Product, enhanced support package, Maintenance subscription, and/or extended Maintenance subscription.
1.6 'Hardware' means a hardware Product, together with any related components provided by Sophos and/or SmartPath Technologies (including but not limited to power supply modules, disk drives in carriers, ship kits and rack mount kits).
1.7 'License Agreement' means this Agreement and the Schedule.
1.8 ‘License Entitlement’ has the meaning in Clause 3.2 below.
1.9 'Licensed Products' means all or each (as the context so allows) of those software program(s) accompanying or provided for use under the terms of this License Agreement, listed on the Schedule and/or that are installed on the Hardware provided to Licensee, together with the Documentation and any of the Upgrades and Updates to those programs, but excluding any third party software as described in Clause 9.
1.10 'Licensee' means the person or entity that has been granted license rights under this License Agreement, and ‘Licensee’s’ means belonging to, pertaining to or engaged by Licensee, whether on a temporary basis or otherwise.
1.11 'Maintenance' means collectively Upgrades and/or Updates (where applicable to the Product), SMS message processing (where applicable to the Product), and standard technical support as further described in Clause 4.
1.12 'Outsourced Provider' means a third party to whom Licensee or Licensee’s Affiliates have outsourced their information technology functions.
1.13 ‘Partner’ means a reseller, distributor or other independent third party from which Licensee validly obtains Sophos and/or SmartPath Technologies Products.
1.14 'Product' means the Licensed Product, media and/or Hardware, as applicable.
1.15 'Product Term' has the meaning set out in Clause 3.1 of this License Agreement.
1.16 ‘Sanctions and Export Control Laws’ means any law, regulation, statute, prohibition, or similar measure applicable to the Products 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 Products.
1.17 'Schedule' means the order confirmation or license certificate issued by Sophos and/or SmartPath Technologies that details the Product(s) licensed by Licensee and corresponding Product Term, License Entitlement and license credentials, and which forms part of this License Agreement.
1.18 'Server' means a Computer upon which the Licensed Product is installed and from which other Computers receive or retrieve data. If the data is solely generated by the Licensed Product, then the Computer is not considered a Server.
1.19 'Sophos and/or SmartPath Technologies' means Sophos and/or SmartPath Technologies Limited (a company registered in England and Wales number 02096520) with its registered office at The Pentagon, Abingdon Science Park, Abingdon, Oxfordshire, OX14 3YP, UK
1.20 'Update' means 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 Licensee by Sophos and/or SmartPath Technologies at its sole discretion from time to time automatically or otherwise, but excluding any updates marketed and licensed by Sophos and/or SmartPath Technologies for a separate Fee.
1.21 'Upgrade' means any enhancement or improvement to the functionality of the Product, Product version or Product feature made available to Licensee by Sophos and/or SmartPath Technologies at its sole discretion from time to time automatically or otherwise, but excluding any software and/or upgrades marketed and licensed by Sophos and/or SmartPath Technologies for a separate Fee.
1.22 'User' means an employee, consultant or other individual who benefits from the Product licensed to Licensee.
2. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
The Products, including without limitation all know-how, concepts, logic and specifications, are proprietary to Sophos and/or SmartPath Technologies and its licensors and are protected throughout the world by copyright and other intellectual property rights. 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 Products and in any modifications made by Licensee to the Products, as provided for below in this License Agreement, are the property of, and are retained by, Sophos and/or SmartPath Technologies and its licensors. No license, right or interest in Sophos and/or SmartPath Technologies’s logos or trademarks is granted to Licensee under this License Agreement. Licensed Products are licensed, not sold or given. Except as expressly stated in this License Agreement, no license or right is granted directly or by implication, inducement, estoppel, or otherwise.
3. RIGHTS AND RESTRICTIONS
3.1 Term.
3.1.1 This License Agreement is effective from the moment of acceptance as described in the first paragraph of this License Agreement and shall remain in force until the earlier of (i) expiry of the Product Term of all items licensed hereunder, or (ii) termination of this License Agreement in accordance with the terms and conditions herein.
3.1.2 Unless this License Agreement is terminated earlier, (i) the Product Term for fixed term subscription-based Licensed Products, Maintenance packages and support packages shall commence on the start date and end on the expiry date noted on the Schedule (license keys for any unactivated licenses of a License Entitlement shall be deactivated on such expiry date), and (ii) the Product Term for Products that are billed on an auto-renewing basis shall commence on the date of purchase and continue for the duration of the authorized payments (subject to any minimum subscription term that may be noted on the Schedule), and (iii) where expressly noted in the Schedule or the Licensing Guidelines at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal the Product Term shall be perpetual (each the “Product Term”).
3.1.3 In consideration of the payment of the Fee by Licensee and receipt of the corresponding payment by Sophos and/or SmartPath Technologies, Sophos and/or SmartPath Technologies hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable (except as otherwise provided in this License Agreement) right to use the Products for their respective Product Term subject to the terms and conditions contained within this License Agreement.
3.2 License Entitlement and Usage.
The Products are licensed by User, Computer, Server or other applicable units, as specified in the Licensing Guidelines at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal. The Schedule specifies the number of applicable units that the Licensee has licensed for each Product (the “License Entitlement”). The Licensee’s actual usage and/or installations, including without limitation any usage or installations for failover purposes, may not exceed the License Entitlement at any time or under any circumstances. If Licensee wishes to increase its actual usage, Licensee must first purchase the corresponding additional License Entitlement.
3.3 Rights. Licensee is permitted to:
3.3.1 use the Products solely for Licensee’s and its Affiliates’ own internal information security purposes. This Clause does not apply to Consumers who are instead granted rights to use the Products as set out in Clauses 15.5, 15.7, 15.8 and 15.9;
3.3.2 make a reasonable number of copies of the Licensed Products or any part thereof for backup or disaster recovery purposes provided that Licensee reproduces Sophos and/or SmartPath Technologies’s proprietary notices on any such backup copy of the Licensed Products. Such restriction shall not prevent Licensee from backing up or archiving Licensee’s data.
3.4 Restrictions. Licensee is not permitted to:
3.4.1 modify or translate the Products (i) except as necessary to configure the Licensed Products using the menus, filters, options and tools provided for such purposes and contained in the Product, and (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee’s internal business purposes;
3.4.2 reverse engineer, disassemble (including without limitation, removing the covering plates that bar access to the Hardware ports and/or accessing internal components of the Hardware) or decompile the Products or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein, or create derivative works based on the Products, or authorize any third party to do any of the foregoing, except to the extent that such restriction is prohibited by applicable law;
3.4.3 except to the extent expressly stated otherwise in this License Agreement, use Products for which Licensee has not paid and Sophos and/or SmartPath Technologies has not received the applicable Fees;
3.4.4 sub-license, rent, sell, lease, distribute, transfer, transmit, embed, provide access to, or otherwise use the Products for the benefit of third parties as part of a service bureau or managed-service arrangement, cloud services offering, bundled product or otherwise, except as expressly provided under this License Agreement and/or unless Licensee enters into a separate agreement with Sophos and/or SmartPath Technologies for such purposes;
3.4.5 use the Products other than in the course of business and for Licensee’s own internal information security purposes unless and to the extent that such Products have been expressly licensed for employee personal use or Consumer use in accordance with Clauses 15.5, 15.7, 15.8 and 15.9;
3.4.6 transfer Licensed Products to any third party without the prior written consent of Sophos and/or SmartPath Technologies, except where Licensee has purchased a perpetual term Licensed Product and desires to transfer the Licensed Product to another person or entity. Such transfer of a perpetual term Licensed Product must ensure that (i) the entire License Entitlement is transferred to a single recipient and is not sub-divided, (ii) the Licensed Product is deleted by the Licensee at the time of transfer, (iii) the Licensee passes full details of the recipient to Sophos and/or SmartPath Technologies, and (iv) the recipient agrees to be bound by the terms and conditions of this License Agreement, including without limitation Clause 11; and/or
3.4.7 use the Products in or in association with safety critical applications where the failure of the Products to perform can reasonably be expected to result in a physical injury, or in loss of property, or loss of life. Any such use is entirely at Licensee’s own risk, and Licensee agrees to hold Sophos and/or SmartPath Technologies harmless from and hereby releases Sophos and/or SmartPath Technologies from any and all claims or losses relating to such unauthorized use.
3.5 Permitted Third Party Usage. Licensee may permit its Affiliates and Outsourced Providers to use the Products provided that: (i) Licensee shall provide prior written notice to Sophos and/or SmartPath Technologies, (ii) the Affiliates and Outsourced Providers shall only use and/or operate the Products, in accordance with the license rights granted herein, on behalf of Licensee and its Affiliates, (iii) the actual usage of the Products by Licensee, Licensee’s Affiliates and Outsourced Providers in aggregate shall not exceed the License Entitlement purchased by the Licensee, (iv) Licensee shall ensure that its Affiliates and the Outsourced Providers are aware of and comply with the terms and conditions of this License Agreement; and, (v) Licensee shall be responsible for, and hold Sophos and/or SmartPath Technologies harmless from, the acts and omissions of its Affiliates and Outsourced Providers relating to use of the Products.
3.6 Licensee acknowledges and agrees that it has not based its purchasing decision on the future availability of any new products and/or additional features, components or versions of the Products, nor on any oral or written comments made by Sophos and/or SmartPath Technologies regarding future functionality or features.
3.7 Licensee is solely responsible for its compliance with the applicable terms and conditions of any third-party agreements, including without limitation payment of any third party fees, for hardware, software, connectivity and any other third party products and services.
4. MAINTENANCE AND SUPPORT
4.1 If the Licensee has purchased a Sophos and/or SmartPath Technologies Firewall, Sophos and/or SmartPath Technologies Firewall Manager, Sophos and/or SmartPath Technologies iView or Sophos and/or SmartPath Technologies UTM Licensed Product, Maintenance is included for the first ninety (90) days from the date of purchase. Separate Maintenance packages are available for purchase. For all other subscription term Licensed Products, Maintenance is included for the duration of the Product Term.
4.2 If the Licensee has purchased a perpetual term Licensed Product, Maintenance is not included. Except to the extent prohibited by applicable law, (i) Licensee must purchase a separate Maintenance package on a subscription term basis that is equal to the number of perpetual license units purchased, and (ii) if the Licensee’s Maintenance subscription has lapsed and Licensee wishes to renew it, Sophos and/or SmartPath Technologies reserves the right to charge Licensee a reinstatement charge in accordance with its then current price list.
4.3 Maintenance includes standard/base level technical support. Enhanced technical support packages are available subject to payment by Licensee and receipt by Sophos and/or SmartPath Technologies of the corresponding Fee. Standard and enhanced technical support packages are described at: https://www.Sophos and/or SmartPath Technologies.com/en-us/support/technical-support.aspx. Unless otherwise authorized by Sophos and/or SmartPath Technologies in writing, technical support is provided for the latest version of the relevant Product. Sophos and/or SmartPath Technologies may, but is not obliged to, continue supporting old or discontinued Product versions.
4.4 If Maintenance is discontinued in accordance with Clause 8 below, Sophos and/or SmartPath Technologies may (at its sole discretion) offer extended Maintenance packages beyond the published discontinuation date in consideration for an extended Maintenance subscription Fee.
4.5 Sophos and/or SmartPath Technologies reserves the right in its discretion to limit the number of Users who may contact Sophos and/or SmartPath Technologies technical support.
4.6 Any custom or sample code, files or scripts (“Fixes”) provided by Sophos and/or SmartPath Technologies as part of the provision of technical support that do not form part of its standard commercial offering may only be used (i) in conjunction with the Product for which such Fixes were developed, and (ii) during the relevant Product Term, subject to the provisions of Clause 15.6.
5. WARRANTIES FOR LICENSED PRODUCTS; INDEMNITY
5.1 Without limiting Clauses 15.8 or 15.9 that apply to Consumers and subject to Clause 15.6.5, Sophos and/or SmartPath Technologies warrants to Licensee only that 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 will adequately describe the operation of the Licensed Products in all material respects.
5.2 If Licensee notifies Sophos and/or SmartPath Technologies in writing of a breach of warranty under Clause 5.1 during the Licensed Products Warranty Period, Sophos and/or SmartPath Technologies’s entire liability and Licensee’s sole remedy shall be at Sophos and/or SmartPath Technologies’s option: (i) to correct, repair or replace the Licensed Product and/or Documentation within a reasonable time, or (ii) to terminate the License Agreement as to the affected Licensed Product, and the corresponding License Entitlement, and authorize a pro rata refund of the Fee following return of the relevant Licensed Product (and all copies thereof) accompanied by proof of purchase. Any replacement Licensed Products shall be warranted for the remainder of the original Licensed Products Warranty Period.
5.3 The warranty in Clause 5.1 shall not apply if (i) the Licensed Product has not been used in accordance with the terms and conditions of this License Agreement and the Documentation, (ii) the issue has been caused by failure of the Licensee to apply Updates, Upgrades or any other action or instruction recommended by Sophos and/or SmartPath Technologies, (iii) the issue has been caused by the act or omission of, or by any materials supplied by, the Licensee or any third party, or (iv) the issue results from any cause outside of Sophos and/or SmartPath Technologies’s reasonable control.
5.4 Subject to Clauses 5.5 through 5.7 and Clause 15.6.5, Sophos and/or SmartPath Technologies shall (a) defend, indemnify, and hold Licensee harmless from any third party claim, action, suit or proceeding alleging that Licensee’s use or possession of the Product in accordance with the terms and conditions of this License Agreement infringes such third party’s patent, trademark or copyright (“Claim”); and (b) reimburse Licensee’s reasonable attorney’s fees and costs actually incurred and any damages finally awarded or agreed to by Sophos and/or SmartPath Technologies in a monetary settlement. Sophos and/or SmartPath Technologies shall have sole control of the defense of the Claim and all associated settlement negotiations. Sophos and/or SmartPath Technologies may require Licensee to join and co-operate with the defense and/or settlement of the Claim at Sophos and/or SmartPath Technologies’s cost.
5.5 If a Claim is made or appears likely to be made, Sophos and/or SmartPath Technologies, in its sole discretion, may: (i) procure a license so that Licensee’s use and possession of the Licensed Product in accordance with the terms and conditions of this License Agreement does not infringe any third party patents, trademarks or copyrights; (ii) modify or replace the Product with a functionally equivalent Product so that it no longer infringes the third party’s patents, trademarks or copyrights; or (iii) terminate the license to use the Product upon notice to Licensee and provide a pro rata refund of Fees paid for such Product that (a) relates to the period after the date of termination in the case of subscription term Products, and (b) is depreciated on a straight line five (5) year basis commencing on the date of purchase in the case of perpetual term Products.
5.6 Exclusions. Sophos and/or SmartPath Technologies shall have no liability or responsibility to indemnify, defend, and hold Licensee harmless under Clause 5.4 if: (i) Licensee fails to notify Sophos and/or SmartPath Technologies in writing within ten (10) days of Licensee being notified of any such Claim, (ii) Licensee does not, at the written request of Sophos and/or SmartPath Technologies, promptly cease to use or possess the Product that is the subject of the Claim, (iii) Licensee, without Sophos and/or SmartPath Technologies’s prior written consent, acknowledges the validity of the Claim or takes any action that might impair the ability of Sophos and/or SmartPath Technologies to contest the Claim, (iv) the infringement arises due to modification of the Product by anyone other than Sophos and/or SmartPath Technologies, use of the Product other than in accordance with the Documentation, or use of the Product with any hardware, software or other component not provided by Sophos and/or SmartPath Technologies, and the infringement would not have arisen without such use or modification, or (v) the Claim is raised based on use or possession in a country that is not a party to the World Intellectual Property Organization (WIPO) treaties on patents, trademarks and copyrights.
5.7 EXCEPT IN RELATION TO CONSUMER USE OF THE PRODUCTS UNDER CLAUSE 15.8 (IN WHICH CASE CLAUSE 15.8 SHALL ALSO APPLY) AND SUBJECT TO CLAUSE 15.6.5, CLAUSES 5.4, 5.5 AND 5.6 SET OUT LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND SOPHOS AND/OR SMARTPATH TECHNOLOGIES’S SOLE OBLIGATION AND LIABILITY IN THE EVENT THAT THE PRODUCTS INFRINGE OR ARE ALLEGED TO INFRINGE THE PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. LICENSEE WILL IN ANY EVENT MITIGATE LICENSEE’S LOSSES AS FAR AS POSSIBLE.
6. DISCLAIMER OF WARRANTIES
6.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN CLAUSE 5.1 ABOVE AND CLAUSES 15.2.6 AND 15.9.1 BELOW, SOPHOS AND/OR SMARTPATH TECHNOLOGIES AND 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 PRODUCT OR ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, UNINTERRUPTED USE, 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, BUT SUBJECT TO CLAUSE 15.9.1, SOPHOS AND/OR SMARTPATH TECHNOLOGIES DOES NOT WARRANT OR REPRESENT THAT (i) THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, (ii) THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED, (iii) DEFECTS IN THE PRODUCT WILL BE CORRECTED, (iv) THE PRODUCTS WILL DETECT, CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS, (v) LICENSEE IS ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONS, OR (vi) THAT LICENSEE IS ENTITLED TO ENCRYPT OR DECRYPT ANY THIRD PARTY INFORMATION.
6.3 LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT LICENSEE SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL OF ITS DATA AND THAT LICENSEE SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. SUBJECT TO CLAUSE 15.9.1, SOPHOS AND/OR SMARTPATH TECHNOLOGIES AND ITS THIRD-PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED.
7. LIMITATION OF LIABILITY
7.1 LICENSEE USES THE PRODUCT AT LICENSEE’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SOPHOS AND/OR SMARTPATH TECHNOLOGIES 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, 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), AND INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY SOFTWARE EVEN IF SOPHOS AND/OR SMARTPATH TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS CLAUSE SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
7.2 IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS LICENSE AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND SOPHOS AND/OR SMARTPATH TECHNOLOGIES BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE LESSER OF (i) THE FEE PAID BY LICENSEE AND (ii) SOPHOS AND/OR SMARTPATH TECHNOLOGIES’S LIST PRICE FOR THE PRODUCT.
7.3 SUBJECT TO CLAUSE 15.6.6, IN NO EVENT SHALL SOPHOS AND/OR SMARTPATH TECHNOLOGIES’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EXCEED THE LESSER OF (i) THE FEE PAID BY LICENSEE AND (ii) SOPHOS AND/OR SMARTPATH TECHNOLOGIES’S LIST PRICE FOR THE PRODUCT.
7.4 SOPHOS AND/OR SMARTPATH TECHNOLOGIES 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
8. PRODUCT CHANGES
Subject to Clause 4 and Clause 11, Licensee is entitled to receive software Updates, and may be required to install or allow installation of software Updates as a condition of continued use of Licensed Products. Licensee acknowledges and agrees that Sophos and/or SmartPath Technologies may vary, Update or discontinue Products, Product versions, Product features, Product support, Product Maintenance, and support for third party products (including without limitation operating systems and platforms) from time to time for reasons including but not limited to changes in demand or enhancing security and technology. Licensee consents to receive Updates or Upgrades to the Licensed Products automatically through the Internet without obtaining further consent each time. Sophos and/or SmartPath Technologies is not responsible if an Update or Upgrade affects how a Licensed Product works if this is caused by Licensee’s own equipment or device not supporting the Update or Upgrade. Licensee can withdraw consent at any time under certain conditions by contacting Sophos and/or SmartPath Technologies.
Sophos and/or SmartPath Technologies will provide a reasonable amount of advance notice of any planned Product discontinuation of a core Product feature, Licensee’s license to a Product, Product Maintenance, or Product support, or support for third party products (a “Discontinuation”) to Licensee, including without limitation by emailing or publishing the date(s) of each planned Discontinuation at: https://www.Sophos and/or SmartPath Technologies.com/en-us/support.
Licensee acknowledges and agrees that it is Licensee’s sole responsibility to review the applicable Sophos and/or SmartPath Technologies retirement calendars published at https://www.Sophos and/or SmartPath Technologies.com/en-us/support prior to purchasing a Licensed Product. Unless otherwise required by applicable law, Sophos and/or SmartPath Technologies will not provide a refund of Fees paid for a Product or service that is subject to a Discontinuation. Sophos and/or SmartPath Technologies may, at its sole discretion, substitute a Product, service, or management platform subject to a Discontinuation with a Product, service, or management platform with substantially equivalent functionality. Sophos and/or SmartPath Technologies recommends Licensees always use the latest version of a Product and/or third-party product, as the case may be.
9. THIRD PARTY SOFTWARE
The Products may operate or interface with software or other technology that is licensed to Sophos and/or SmartPath Technologies from third parties. Licensee agrees that (a) it will use such third party software in accordance with this License Agreement, (b) no third party licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party software or the Products themselves, (c) no third party licensor will have any obligation or liability to Licensee as a result of this License Agreement or Licensee's use of such third party software, (d) the third party licensor is a beneficiary of this License Agreement and accordingly may enforce the terms and conditions herein to the extent necessary to protect its rights in relation to the third party software, and (e) such third party software may be licensed under license terms that grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this License Agreement, and such additional license rights and restrictions are described or linked to in the applicable Documentation, the relevant Sophos and/or SmartPath Technologies webpage, or within the Product itself. For the avoidance of any doubt, such additional rights and/or restrictions apply to the third-party software on a standalone basis; nothing in such third party licenses shall affect Licensee’s use of the Licensed Products in accordance with the terms and conditions of this License Agreement.
If the Documentation indicates that the Licensed Product includes Java software (“Java”) from Oracle Corporation (“Oracle”), the following additional required terms from Oracle apply to use of Java as part of the Licensed Product: Use of the Commercial Features for any commercial or production purpose requires a separate license from Oracle. “Commercial Features” means those features identified in Table 1-1 (Commercial Features In Java SE Product Editions) of the Java SE documentation accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html.
If the Licensed Product is Sophos and/or SmartPath Technologies Central Wireless, the Google Maps / Google Earth Additional Terms of Service (including the Google Privacy Policy) apply to use of the Licensed Product.
10. GOVERNMENT RIGHTS; NON-WAIVER OF GOVERNMENT IMMUNITY
10.1 If Licensee is an agency or other part of the U.S. Government, the Licensed Products and the Documentation are commercial computer software and commercial computer software documentation and their use, duplication and disclosure are subject to the terms of this License Agreement per FAR 12.212 or DFARS 227.7202-3, as amended, or equivalent provisions of agencies that are exempt from the FAR or that are U.S. state or local government agencies. Other terms or modifications to this License Agreement may apply to government agencies and Users and are addressed in the relevant EULA Addendum for Government Licensees or Users available at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal/addendum-for-government-licensees-or-users.aspx.
10.2 If Licensee is a federal, state, or other governmental instrumentality, organization, agency, institution, or subdivision, the limitations of liability and Licensee’s indemnity obligations herein shall apply only in the manner and to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any.
11. EXPORT CONTROL, ANTI-BRIBERY AND COMPLIANCE WITH APPLICABLE LAWS
11.1 Licensee is solely responsible for ensuring that the Products are used, accessed, disclosed and/or transported only in accordance with Sanctions and Export Control Laws.
11.2 Licensee certifies that Licensee or Users, or any party that owns or controls or is owned or controlled by Licensee or Users, are not (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. Licensee further certifies that it will not, directly or indirectly, export, re-export, transfer, or otherwise make available (a) the Products, or (b) any data, information, software programs and/or materials resulting from the Products (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.
11.3 Licensee agrees that Sophos and/or SmartPath Technologies shall have no obligation to provide any Updates, Upgrades or services related to the Products where Sophos and/or SmartPath Technologies believes the provision of such Updates, Upgrades or services could violate Sanctions and Export Control Laws.
11.4 Further details are available at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal/export.aspx.
11.5 Each party warrants that in entering into this License Agreement neither the party nor any of its officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on its behalf has taken or will take any action, directly or indirectly, that contravenes (i) the United Kingdom Bribery Act 2010, or (ii) the United States Foreign Corrupt Practices Act 1977, or (iii) any other applicable anti-bribery laws or regulations anywhere in the world.
11.6 Licensee warrants that its use and possession of the Products is and will continue to be in accordance with all other applicable laws and regulations. In particular but without limitation, Licensee acknowledges and agrees that it may be necessary under applicable law for Licensee to inform and/or obtain consent from individuals before it intercepts, accesses, monitors, logs, stores, transfers, exports, blocks access to, and/or deletes their communications. Licensee is solely responsible for compliance with such laws.
11.7 ANY BREACH OR SUSPECTED BREACH OF CLAUSE 11 BY LICENSEE SHALL BE A MATERIAL BREACH INCAPABLE OF REMEDY AND ENTITLES SOPHOS AND/OR SMARTPATH TECHNOLOGIES TO TERMINATE THIS LICENSE AGREEMENT IMMEDIATELY WITH OR WITHOUT NOTICE TO LICENSEE. In addition, Licensee agrees (to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any) to indemnify and hold Sophos and/or SmartPath Technologies harmless from and against any claim, proceeding, loss, liability, cost or damage suffered or incurred by Sophos and/or SmartPath Technologies resulting from or related to Licensee’s violation of Clause 11.
12. TERMINATION
12.1 Subject to Clause 15.9.3, this License Agreement and Licensee’s rights under it will terminate immediately if: (i) Licensee fails to pay the Fee to Sophos and/or SmartPath Technologies or the Partner (as applicable) in accordance with the agreed payment terms; or (ii) Sophos and/or SmartPath Technologies does not receive payment from the relevant Partner for the Products and packages provided to Licensee, or (iii) Licensee breaches any of the terms and conditions of this License Agreement; or (iv) other than for Products licensed on a perpetual basis for which payment has already been received in full, if Licensee becomes insolvent.
12.2 Subject to Clause 12.5, Licensee may terminate the license for the applicable Licensed Product(s) at any time by uninstalling and destroying the relevant Licensed Product and Documentation and all copies thereof.
12.3 Within one (1) month after the date of termination of this License Agreement or the applicable Product Term, upon Sophos and/or SmartPath Technologies’ request, Licensee will supply Sophos and/or SmartPath Technologies with written certification of the destruction of all partial and complete copies of the applicable Licensed Product and Documentation. In the case of encryption Products, Licensee shall decrypt all encrypted drives and data prior to uninstalling and destroying the Product.
12.4 Licensee’s right to use and access the Products will automatically terminate on expiry of the applicable Product Term or this License Agreement (whichever is the earlier) unless and until Licensee renews Licensee’s license for the Products.
12.5 Except as expressly set forth herein, all Fees paid or payable are non-refundable to the maximum extent permitted by law.
13. CONFIDENTIALITY AND DATA PROTECTION
13.1 Sophos and/or SmartPath Technologies and the Licensee may receive or have access to confidential information under or in relation to this License Agreement that is secret and valuable to the other party and its licensors. A recipient is not entitled to use, communicate or disclose the other party’s confidential information to a third party without the disclosing party’s prior, written consent. The recipient 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).
13.2 The Licensed Products (including any Updates or Upgrades) may: (i) cause Licensee’s device to automatically communicate with Sophos and/or SmartPath Technologies’s servers to deliver the functionality described in the product description or through new features as they are introduced, and to record usage metrics; (ii) affect preferences or data stored on Licensee’s device; and (iii) collect personal information as set out in our Privacy Notice. Licensee acknowledges and agrees that Sophos and/or SmartPath Technologies may directly and remotely communicate with the Products in order to provide Maintenance and technical support, and to collect the following types of information: (i) Products, Product versions, Product features and operating systems being used by Licensee, (ii) processing times taken by the Product, (iii) Licensee’s customer identification code and company name, and (iv) IP address and/or ID of the machine that returns the above listed information. Certain Products may require the collection of additional information as detailed in the Sophos and/or SmartPath Technologies Privacy Notice at: https://www.Sophos and/or SmartPath Technologies.com/en-us/legal/Sophos and/or SmartPath Technologies-group-privacy-notice.aspx (the “Privacy Notice”).
13.3 The information collected under Clause 13.2 may be used for the purposes of (i) providing the Products and performing this License Agreement, (ii) verifying Licensee’s compliance with the License Entitlement, (iii) evaluating and improving the performance of the Products, (iv) preparing statistical analysis (such as malware infection rates and the usage of Products), (v) planning development roadmaps and product lifecycle strategies, (vi) issuing alerts and notices to Licensee about incidents and product lifecycle changes that affect the Products being used by Licensee.
13.4 Sophos and/or SmartPath Technologies may also require identification information for the Licensee, including, but not limited to, Licensee’s contact details and (where applicable) payment information for the purposes of (i) providing technical support, (ii) billing, (iii) verifying Licensee’s credentials and License Entitlement, (iv) issuing license expiry and renewal notices, (v) carrying out compliance checks for export and sanction control purposes, and (vi) providing account management. Licensee agrees to provide complete and accurate identification information to Sophos and/or SmartPath Technologies promptly upon Sophos and/or SmartPath Technologies’s request.
13.5 If the Licensee elects to send malware samples or any other materials to Sophos and/or SmartPath Technologies for review, the Licensee shall remove any regulated personally identifiable information, health information, and payment card data prior to submission.
13.6 Licensee expressly gives Sophos and/or SmartPath Technologies permission to (i) include and publish Licensee’s name and logo on lists of Sophos and/or SmartPath Technologies’s customers, where Licensee is not a Consumer as described in Clause 15.8, and (ii) send promotional emails to Licensee to provide information about other Sophos and/or SmartPath Technologies products and services. If Licensee does not wish to give Sophos and/or SmartPath Technologies permission for the uses described under this Clause, Licensee shall notify Sophos and/or SmartPath Technologies by emailing unsubscribe@Sophos and/or SmartPath Technologies.com and specify which permission is not granted.
13.7 Licensee may receive certain transactional or informational messages from Sophos and/or SmartPath Technologies. Licensee understands and agrees that these communications are part of Licensee’s use of the Products, and that Licensee may not opt out of receiving these communications.
14. GENERAL.
14.1 Any Partner from whom Licensee may have purchased the Product is not appointed by Sophos and/or SmartPath Technologies as its servant or agent. No such person has any authority, either express or implied, to enter into any contract or provide any representation, warranty or guarantee to Licensee or any third party or to translate or modify this License Agreement in any way on behalf of Sophos and/or SmartPath Technologies or otherwise to bind Sophos and/or SmartPath Technologies in any way whatsoever.
14.2 Licensee has no obligation to provide Sophos and/or SmartPath Technologies with ideas, suggestions, concepts, or proposals relating to Sophos and/or SmartPath Technologies’s products or business (“Feedback”). However, if Licensee provides Feedback to Sophos and/or SmartPath Technologies, Licensee grants Sophos and/or SmartPath Technologies a non-exclusive, perpetual, irrevocable, worldwide, sub-licensable, transferable, royalty-free right and license to store, make, use, sell, market, have made, offer to sell, import, reproduce, publicly display, transmit, distribute, modify, publicly perform, and otherwise exploit such Feedback, in whole or in part, for any purpose, including combining the Feedback with other materials and/or products and making derivative works of or alterations to the Feedback in any manner or format whatsoever, without any reference, obligation, or remuneration to Licensee. All Feedback shall be deemed non-confidential to Licensee. Licensee shall not provide to Sophos and/or SmartPath Technologies any Feedback it has reason to believe is or may be subject to the intellectual property claims or rights of a third party.
14.3 (i) Self-Audits. To help manage Licensee’s use of the Products and Licensee’s compliance with this License Agreement, Licensee agrees to perform a self-audit upon ten (10) working days’ prior written notice from Sophos and/or SmartPath Technologies, calculating the number of Users, Computers, Servers or other applicable units benefiting from the Products. If Licensee’s self-audit reveals that Licensee’s actual usage exceeds the License Entitlement, Licensee shall procure the additional licenses required from Sophos and/or SmartPath Technologies or its preferred Partner. (ii) Formal Audits. If Licensee does not perform a self-audit upon request from Sophos and/or SmartPath Technologies, or if Sophos and/or SmartPath Technologies has reason to doubt the results of such self-audit, upon prior written notice to Licensee, Licensee shall permit Sophos and/or SmartPath Technologies or an independent certified accountant appointed by Sophos and/or SmartPath Technologies to access Licensee’s premises and inspect 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 License Agreement, including without limitation the payment of all applicable license fees. Any such audit shall minimize the disruption to Licensee’s business operations. Sophos and/or SmartPath Technologies 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 and/or SmartPath Technologies, Licensee shall be invoiced for and shall pay to Sophos and/or SmartPath Technologies or the Partner (as applicable) within thirty (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 five percent (5%) of the fees due or the audit reveals a violation of any license restrictions pursuant to this License Agreement then, without prejudice to Sophos and/or SmartPath Technologies’s other rights and remedies, Licensee shall also pay Sophos and/or SmartPath Technologies’s reasonable costs of conducting the audit.
14.4 Sophos and/or SmartPath Technologies may in its sole discretion assign, novate, subcontract or otherwise transfer any of its rights or obligations hereunder.
14.5 Sophos and/or SmartPath Technologies may amend the terms and conditions of this License Agreement and/or any documents and policies referenced herein at any time by notice to Licensee, including without limitation by posting revised terms and conditions on its website at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal and/or the location of such document or policy. Such amended terms and conditions shall be binding upon Licensee with effect from the date of such change. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the License Agreement that may have been embedded in or packaged with the Product itself.
14.6 Failure by either party to enforce any particular term or condition of this License Agreement shall not be construed as a waiver of any of its rights under it.
14.7 The illegality, invalidity or unenforceability of any part of this License Agreement will not affect the legality, validity or enforceability of the remainder.
14.8 If Licensee and Sophos and/or SmartPath Technologies have signed a separate written agreement covering the licensing and use of the Products, the terms and conditions of such signed agreement shall take precedence over any conflicting terms and conditions of this License Agreement. Otherwise this License Agreement, the Schedule and the documents and policies referenced herein constitute the entire agreement between the parties relating to the licensing and use of the Products and supersede any other oral or written communications, agreements or representations with respect to the Products, except for any oral or written communications, agreements or representations made fraudulently.
14.9 If there are any inconsistencies between the English language version of this License Agreement and any translated version, the English language version shall prevail.
14.10 Subject to Clause 9(d), a person who is not a party to this License Agreement has no right to enforce any term or condition of this License Agreement, and the parties to this License Agreement do not intend that any third party rights are created by this License Agreement.
14.11 Governing Law. In the event the Sophos and/or SmartPath Technologies subsidiary entity from which Licensee has purchased the licenses is located in:
The United States of America, Canada, or Latin America, this License Agreement, the relationship between Licensee and Sophos and/or SmartPath Technologies, and any dispute or claim arising out of or in connection with it, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts notwithstanding its conflicts of law principles. The parties waive any right to a jury trial in any litigation arising out of or in connection with this License Agreement; and
ANY OTHER COUNTRY, this License Agreement and any dispute or claim arising out of or in connection with it, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of laws principles.
Nothing in this License Agreement shall limit any right of the Consumer to take proceedings in or to benefit from consumer protection laws that apply in the Consumer’s country of residence.
The parties agree that the UN Convention on Contracts for the International Sale of Goods (CISG, Vienna, 1980) shall not apply to this License Agreement or to any dispute or transaction arising out of this License Agreement.
14.12 Jurisdiction. In the event the Sophos and/or SmartPath Technologies subsidiary entity from which Licensee has purchased the licenses is located in:
The United States of America, Canada, or Latin America, the federal and state courts of the Commonwealth of Massachusetts, U.S.A. shall have exclusive jurisdiction to determine any dispute or claim that may arise out of, under, or in connection with this License Agreement; and
ANY OTHER COUNTRY, the courts of England and Wales shall have exclusive jurisdiction to determine any dispute or claim that may arise out of, under, or in connection with this License Agreement.
14.13 Nothing in Clause 14.11 shall limit the right of Sophos and/or SmartPath Technologies to initiate proceedings against Licensee in any court of competent jurisdiction where deemed necessary by Sophos and/or SmartPath Technologies to (i) protect its intellectual property rights, (ii) protect its confidential information, and/or (iii) recover overdue payments.
14.14 Any notices required to be given to Sophos and/or SmartPath Technologies or any questions concerning this License Agreement should be addressed to The Legal Department, Sophos and/or SmartPath Technologies Limited, The Pentagon, Abingdon Science Park, Abingdon, OX14 3YP, United Kingdom with a copy to legalnotices@Sophos and/or SmartPath Technologies.com.
14.15 The following Clauses shall survive any termination or expiration of this License Agreement: 2, 6, 7, 11, 12.3, 13.1, 14, 15.2.5, 15.6.5, and 15.6.6.
14.16 Force Majeure. The failure of Sophos and/or SmartPath Technologies to comply with any provision of this License Agreement due to an act of God, hurricane, war, fire, riot, earthquake, terrorism, and act of public enemy, actions of governmental authorities (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of this License Agreement.
15. ADDITIONAL TERMS AND CONDITIONS.
The first part of this License Agreement includes general terms and conditions applicable to all Products. The additional terms and conditions in this Clause 15 below apply only to the Products referenced in each section.
15.1 Direct Purchases from Sophos and/or SmartPath Technologies. This Clause only applies if Licensee purchases Products from Sophos and/or SmartPath Technologies directly, rather than through a Partner:
15.1.1 All Products are delivered ICC Incoterms 2010 Ex Works from the applicable Sophos and/or SmartPath Technologies site. Accordingly, the Licensee is responsible for delivery costs, export clearances, import clearances, and insurance costs.
15.1.2 Fees shall be paid in full, in the currency and via the payment method specified on the invoice, within thirty (30) days of the date of such invoice.
15.1.3 Unless expressly stated otherwise, the Fee is exclusive of value added tax and any other federal, state, municipal or other governmental taxes, duties, licenses, fees, excises or tariffs.
15.1.4 Invoices may provide for interest to be paid on any sums not remitted by the due date.
15.2 Hardware Products. This Clause only applies to Hardware Products:
15.2.1 Sophos and/or SmartPath Technologies retains title to the Hardware until such time as any Free Trial described in Clause 15.6 below (if applicable) expires, and Licensee pays the Hardware Fee to Sophos and/or SmartPath Technologies or a Partner, as applicable, and Sophos and/or SmartPath Technologies receives the Hardware Fee in full. Unless and until title to the Hardware has transferred to Licensee in accordance with this Clause, Licensee agrees to keep the Hardware free and clear of all claims, liens, and encumbrances, and any act by Licensee, either voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Hardware shall be void. Licensee owns only the Hardware or media, if applicable, on which the Licensed Product is installed. Licensee does not own the Licensed Product itself.
15.2.2 In the event that Licensee fails to pay or Sophos and/or SmartPath Technologies does not receive the Fee for the Hardware, Licensee shall return the Hardware to the return location indicated by Sophos and/or SmartPath Technologies, securely and properly packaged, with carriage (and insurance at Licensee’s option) prepaid. If Licensee fails to return the Hardware to the indicated location promptly, upon written notice Sophos and/or SmartPath Technologies will be entitled to enter Licensee’s premises during normal business hours to repossess such Hardware.
15.2.3 Risk of loss passes to Licensee upon shipment of the Hardware to Licensee. Insurance, if any, covering the Hardware shall be Licensee’s sole responsibility.
15.2.4 Licensee acknowledges that the Hardware 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 and/or SmartPath Technologies at its option may provide Hardware that is either new or refurbished.
15.2.5 Licensee is solely responsible for complying with any applicable governmental regulations relating to waste, health and safety, including without limitation those that relate to the EC Directive on Waste Electrical and Electronic Equipment (2002/96/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, transport and/or disposal of the Hardware.
15.2.6 Sophos and/or SmartPath Technologies offers a limited warranty for Hardware as set out in the Hardware Warranty Policy at: https://www.Sophos and/or SmartPath Technologies.com/en-us/legal.
15.3 Sophos and/or SmartPath Technologies Central and other Cloud Products (collectively “Cloud Products”). This Clause only applies to Sophos and/or SmartPath Technologies Cloud Products:
15.3.1 The Licensee shall not store or transmit any content through the Sophos and/or SmartPath Technologies Cloud Products that (i) is unlawful, pornographic, obscene, indecent, harassing, racially or ethnically offensive, harmful, threatening, discriminatory or defamatory, (ii) facilitates or promotes illegal activity, (iii) infringes any third party intellectual property rights, or (iv) is otherwise inappropriate (“Prohibited Content”).
15.3.2 The Licensee acknowledges that Sophos and/or SmartPath Technologies has no control over any content stored or transmitted by Licensee, does not monitor such content and accordingly acts as a mere conduit. Sophos and/or SmartPath Technologies reserves the right to remove content from the Sophos and/or SmartPath Technologies Cloud Products immediately without prior notice where it reasonably suspects that such content is Prohibited Content. The Licensee shall (to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any) indemnify and hold Sophos and/or SmartPath Technologies harmless from and against all damages, losses and expenses arising as a result of any third party action or claim relating to Licensee’s content.
15.3.3 The Sophos and/or SmartPath Technologies Cloud Products are not designed for the storage of regulated health or payment card data and Licensee may only store or transmit such information through Sophos and/or SmartPath Technologies Cloud Products if it has entered a separate written agreement with Sophos and/or SmartPath Technologies expressly permitting such purpose.
15.3.4 Prior to termination or expiry of the Product Term, Licensee must (i) remove all Product settings from its Servers and Computers, and (ii) remove all of its custom settings, software and data from the Sophos and/or SmartPath Technologies network. For certain Products, Sophos and/or SmartPath Technologies may download and return the data upon request and for a reasonable fee to be agreed in writing in advance. Subject to applicable laws, Sophos and/or SmartPath Technologies reserves the right to delete data that has not been removed after such termination or expiry date.
15.4 Sophos and/or SmartPath Technologies Network Security Products. This Clause only applies to the Sophos and/or SmartPath Technologies Firewall, Sophos and/or SmartPath Technologies Firewall Manager, Sophos and/or SmartPath Technologies iView and Sophos and/or SmartPath Technologies UTM Products:
15.4.1 LICENSEE ACKNOWLEDGES AND AGREES THAT THE PRODUCT MAY REQUIRE THE COMPLETE ERASURE OF THE HARD DISK OF THE TARGET COMPUTER DURING INSTALLATION, INCLUDING WITHOUT LIMITATION THE OPERATING SYSTEM RESIDENT THEREON. BY INSTALLING THE AFOREMENTIONED PRODUCT, LICENSEE EXPRESSLY AGREES THAT IT SHALL ENSURE THAT THE COMPUTER ON WHICH SUCH PRODUCT IS TO BE INSTALLED DOES NOT CONTAIN ANY VALUABLE DATA, THE LOSS OF WHICH WOULD CAUSE DAMAGE TO LICENSEE, AND, SUBJECT TO CLAUSE 15.8, SOPHOS AND/OR SMARTPATH TECHNOLOGIES EXPRESSLY DISCLAIMS ANY LIABILITY FOR LOSSES OF ANY KIND RELATED TO LICENSEE’S FAILURE TO DO SO.
15.5 Employee Personal Use.
15.5.1 Employee personal use of Products is not permitted without the prior express written consent of Sophos and/or SmartPath Technologies. If Sophos and/or SmartPath Technologies agrees to permit personal use of any Product, such use is subject to the terms of this License Agreement, and must not cause Licensee’s total usage, including such personal use does not exceed the License Entitlement.
15.5.2 Sophos and/or SmartPath Technologies may, in Sophos and/or SmartPath Technologies’s sole discretion, make Sophos and/or SmartPath Technologies Home, Sophos and/or SmartPath Technologies Hitman, or Sophos and/or SmartPath Technologies Hitman Pro (each a “Personal Use Product”) available to Licensee for personal use by employees of Licensee at no additional cost to Licensee. Such use shall be subject to the terms and conditions accompanying the Personal Use Product.
15.5.3 Licensee shall ensure that its employees are aware of and comply with the terms and conditions of this License Agreement, and, to the extent permitted by applicable law, Licensee shall be responsible for the acts and omissions of its employees relating to use of the Products.
15.6 Free Trials, Fixes, Home Use, Technical Previews, Beta Testing, Early Access Programs and Free Tools.
15.6.1 If Sophos and/or SmartPath Technologies permits the Licensee to conduct a free trial of a commercially available Product (the “Free Trial”), the Licensee may use the Product free of charge for evaluation solely for Licensee’s own internal information security purposes for a maximum of thirty (30) days, or such other duration as specified by Sophos and/or SmartPath Technologies in writing at its sole discretion (the “Trial Period”). If the Licensee does not purchase the Product, the rights to use the Product will terminate immediately upon expiry of the Trial Period.
15.6.2 If the Free Trial relates to Hardware, Licensee must return the Hardware to the return location indicated by Sophos and/or SmartPath Technologies, securely and properly packaged, with carriage (and insurance at Licensee’s option) prepaid upon the expiry of the Trial Period. Licensee is solely responsible for removing any and all of Licensee’s data from the Hardware prior to return. If Licensee fails to return the Hardware upon expiry of the Trial Period, Sophos and/or SmartPath Technologies may invoice, and Licensee shall pay for, the Hardware at list price.
15.6.3 Sophos and/or SmartPath Technologies may, in Sophos and/or SmartPath Technologies’s sole discretion, make certain Products available for personal use (“Home Use license”). Customer may only use Products made available under Home Use licenses for their own non-commercial personal use and not for any other purposes.
15.6.4 Sophos and/or SmartPath Technologies makes certain tools available for use in connection with other Products free of charge (“Free Tools”). Such Free Tools may only be used for the express purposes permitted by Sophos and/or SmartPath Technologies as identified in the associated documentation. The Product Term applicable to a Free Tool shall continue for the period indicated by Sophos and/or SmartPath Technologies or until (i) Sophos and/or SmartPath Technologies withdraws the Free Tool, or (ii) Sophos and/or SmartPath Technologies notifies the Licensee that it is no longer permitted to use the Free Tool. No Maintenance or technical support is included with, or provided for, Free Tools.
15.6.5 If Sophos and/or SmartPath Technologies provides Licensee with a Product for technical preview or beta testing purposes as part of an early access program (a “Preview Product”), Licensee may use the Preview Product for evaluation purposes only for the period specified by Sophos and/or SmartPath Technologies (the “Test Period”). Licensee shall test the Preview Product in accordance with any conditions specified in the readme file for the software and/or any associated documentation and shall gather and report test data, and other Feedback to Sophos and/or SmartPath Technologies as set forth in Clause 14.2. Except for Consumer Preview Products, the Preview Product must only be used in a non-production test environment unless expressly approved otherwise by Sophos and/or SmartPath Technologies. Licensee’s right to use the Preview Product shall terminate upon expiry of the Test Period. Sophos and/or SmartPath Technologies does not warrant that it will release a commercial version of the Preview Product, or that a commercial version will contain the same or similar features as the Preview Product. Any Preview Product and accompanying documentation shall be considered Sophos and/or SmartPath Technologies’s confidential information as set forth in Clause 13.1.
15.6.6 Clause 5 (“Warranties for Licensed Products; Indemnity”) shall not apply to Free Trial products, Fixes, Home Use, Free Tools and Preview Products. FREE TRIAL PRODUCTS, FIXES, HOME USE, FREE TOOLS AND PREVIEW PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REMEDY OF ANY KIND.
15.6.7 Clauses 7.2 and 7.3 shall not apply to Free Trial products, Fixes, Free Tools and Preview Products. IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS LICENSE AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND SOPHOS AND/OR SMARTPATH TECHNOLOGIES BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE RELATING TO A FREE TRIAL, FIX, FREE TOOL, OR PREVIEW PRODUCT THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED POUNDS STERLING (£100) OR ITS LOCAL CURRENCY EQUIVALENT.
15.7 Support Services Exceptions for Certain Products- Certain Products may be eligible for extended support in certain circumstances, upon payment of any applicable Fee by Licensee. A list of the eligible Products and details regarding the availability of extended support can be found at https://community.Sophos and/or SmartPath Technologies.com/kb/en-us/134968 .
15.8 Consumers. The following Clauses 15.8 and 15.9 apply if Licensee is a Consumer:
PLEASE REVIEW THIS SECTION CAREFULLY. IT CONTAINS INFORMATION ABOUT CERTAIN IMPORTANT TERMS IN RELATION TO THE USE OF THE CONSUMER PRODUCTS PROVIDED BY SOPHOS AND/OR SMARTPATH TECHNOLOGIES. IT ALSO DETAILS YOUR LEGAL RIGHTS IN RELATION TO THESE PRODUCTS.
15.8.1 Licensee is only permitted to use those Products that are expressly designated by Sophos and/or SmartPath Technologies as suitable and available for Consumer use.
15.8.2 Licensee may only purchase Sophos and/or SmartPath Technologies Consumer Products if Licensee is at least the age of majority or are acting with the consent and supervision of a parent or guardian.
15.8.3 Licensee acknowledges that the Products have not been developed to meet Licensee’s individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Products as described in the Documentation meet Licensee’s requirements.
15.8.4 If Licensee experiences any problems with any Products:
(i) If Licensee has any questions or complaints about any Product, please contact Sophos and/or SmartPath Technologies by emailing our customer service team at support@Sophos and/or SmartPath Technologies-home.zendesk.com. Note that technical support for Sophos and/or SmartPath Technologies Consumer Products is provided separately from Sophos and/or SmartPath Technologies’s standard technical support offerings. Please refer to the Product Documentation for the technical support options available to Licensee for each Consumer Product.
(ii) If Licensee is a Consumer in the EU, Sophos and/or SmartPath Technologies is under a legal duty to supply Products that are in conformity with the contract set out in this License Agreement. Nothing in these License Agreement terms will affect Licensee’s consumer legal rights made available in the country in which Licensee lives if applicable. If Licensee requires information about Licensee’s rights, Licensee should contact Licensee’s local legal counsel or local consumer support organizations.
15.8.5 Consumer Products are supplied only for domestic and private use. Licensee is not permitted to use the Products for any commercial, business or re-sale purposes, and to the maximum extent permitted by law, Sophos and/or SmartPath Technologies has no liability for any loss of profit, loss of business, business interruption, or loss of business opportunity.
15.8.6 If Licensee is a Consumer in the EU, Clauses 7.1, 7.2 and 7.3 (which detail certain limitations on Sophos and/or SmartPath Technologies's potential liability) shall not apply to Licensee. Subject to additional rights Licensee may have as a Consumer as are further described in Clause 15.8, Sophos and/or SmartPath Technologies is only responsible for loss or damage that Licensee suffers that is a foreseeable result of (i) breach of this License Agreement or (ii) Sophos and/or SmartPath Technologies’s negligence. In the absence of such breaches of this License Agreement by Sophos and/or SmartPath Technologies, Licensee’s use of the Products is at Licensee’s own risk. Sophos and/or SmartPath Technologies is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of the breach or if it was contemplated by both parties at the commencement of this License Agreement.
Sophos and/or SmartPath Technologies does not exclude or limit in any way its liability to Licensee where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of Sophos and/or SmartPath Technologies's employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of Licensee’s legal rights in relation to the Products as summarized at Clause 15.8.5 above.
15.8.7 Clauses 14.11 and 14.12 shall not limit Licensee’s right to take proceedings in or to benefit from consumer protection laws that apply in the country in which Licensee lives, including without limitation any right to alternative dispute resolution if Licensee is a Consumer in the EU.
15.9 Consumer Products.
15.9.1 Where Licensee has:
(a) paid for a Product; or
(b) received a Product for free as part of a bundle with other paid goods, services or other digital content, and this Product is not generally available to Consumers unless they have paid a price for it or for the other goods, services or other digital content, Sophos and/or SmartPath Technologies warrants that such Products will be (i) of satisfactory quality, (ii) reasonably fit for purpose, and (iii) as described in the Documentation.
15.9.2 Where Sophos and/or SmartPath Technologies is in breach of Clause 15.9.1, Sophos and/or SmartPath Technologies will (i) at its own cost, repair or replace the Product within a reasonable time and without significant inconvenience to the Consumer, or (ii) grant the Consumer a reasonable Fee reduction for the Product where the Product cannot be repaired or replaced within a reasonable time and without significant inconvenience to the Consumer.
Licenses for the “Sophos and/or SmartPath Technologies Home Premium” Product may be returned to the Partner from which Licensee purchased the Product for a refund of the Fees paid, for any reason, within thirty (30) days of the date of purchase.
15.9.3 Where the Product Term is perpetual or of an indefinite duration and the Licensee is a Consumer, if Sophos and/or SmartPath Technologies has a right to terminate this License Agreement, Sophos and/or SmartPath Technologies will provide reasonable notice before exercising this right except where there are serious grounds for terminating immediately.
15.9.4 If Licensee is a Consumer in the EU, where a Product supplied to Licensee causes damage to a device or to other digital content which, in either case, is owned by a Consumer (even where such Product is provided for free), Sophos and/or SmartPath Technologies will, in its sole discretion, either (i) at its own cost, repair the damage within a reasonable time and without significant inconvenience to the Consumer, or (ii) compensate the Consumer for the damage with an appropriate payment.
15.9.5 This Clause 15.9 shall take precedence (or in other words, be read so that they replace other terms) to the extent that there are any conflicting terms and conditions elsewhere in this License Agreement.
15.9.6 Other important terms
(i) Sophos and/or SmartPath Technologies may transfer its rights and obligations under this License Agreement to another organization, and Sophos and/or SmartPath Technologies will always notify Licensee in writing if this happens, but this will not affect Licensee’s rights or Sophos and/or SmartPath Technologies's obligations under this License Agreement.
(ii) Licensee may only transfer Licensee’s rights and obligations under this License Agreement to another person if Sophos and/or SmartPath Technologies agrees in writing.
(iii) The contract formed by this License Agreement is between Licensee and Sophos and/or SmartPath Technologies. No other person shall have any rights to enforce any of its terms.
(iv) Each of the paragraphs of this License Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
(v) If Sophos and/or SmartPath Technologies fails to insist that Licensee perform any of Licensee’s obligations under this License Agreement, or if Sophos and/or SmartPath Technologies does not enforce its rights against Licensee, or if Sophos and/or SmartPath Technologies delays in doing so, that will not mean that Sophos and/or SmartPath Technologies has waived its rights against Licensee and will not mean that Licensee does not have to comply with those obligations. If Sophos and/or SmartPath Technologies does waive a default by Licensee, Sophos and/or SmartPath Technologies will only do so in writing, and that will not mean that Sophos and/or SmartPath Technologies will automatically waive any later default by Licensee.
(vi) Sophos and/or SmartPath Technologies may amend the terms and conditions of this License Agreement and/or any documents and policies referenced herein at any time by notice to Licensee. Sophos and/or SmartPath Technologies will use reasonable efforts to bring any such changes Licensee’s attention, including without limitation via in-Product informational notices. Such amended terms and conditions shall be binding upon Licensee within fifteen (15) calendar days, unless Licensee objects to such amended terms and conditions by terminating Licensee’s license in accordance with Clause 12.2 or by notifying Sophos and/or SmartPath Technologies at legalnotices@Sophos and/or SmartPath Technologies.com and entering into a subsequent written agreement between Sophos and/or SmartPath Technologies and Licensee. Failure to terminate Licensee’s license within such period shall mean that Licensee expressly and unreservedly accepts all the amendments contained in the notice, which shall take effect immediately upon expiry of said fifteen (15) calendar day period. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the License Agreement that may have been embedded in or packaged with the Product itself.
15.9.7 ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
This section 15.9.7 applies to Sophos and/or SmartPath Technologies, residents of the United States, and those who attempt to commence litigation within the United States.
(i) Federal Arbitration Act. Licensee and Sophos and/or SmartPath Technologies agree that this License Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Clause 15.9.7 is intended to be interpreted broadly and governs any and all disputes between Licensee and Sophos and/or SmartPath Technologies including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this License Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this License Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
(ii) Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. Licensee and Sophos and/or SmartPath Technologies agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. To commence this procedure, Licensee agrees to contact Sophos and/or SmartPath Technologies’ support department via our support portal at https://secure2.Sophos and/or SmartPath Technologies.com/en-us/support/contact-support.aspx or The Legal Department, Sophos and/or SmartPath Technologies Limited, The Pentagon, Abingdon Science Park, Abingdon, OX14 3YP, United Kingdom with a copy to legalnotices@Sophos and/or SmartPath Technologies.com, and provide a brief, written description of the dispute and Licensee’s contact information (including information that could be used to identify Licensee’s registered account if Licensee’s dispute relates to an account). Alternatively, Sophos and/or SmartPath Technologies may contact Licensee using the last available information it has for Licensee.
(iii) Binding Arbitration. If the Licensee and Sophos and/or SmartPath Technologies do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either You or Sophos and/or SmartPath Technologies may initiate binding arbitration as the sole means to resolve claims (except as provided in (v) below) subject to the terms set forth below. Specifically, all claims arising out of or relating to this License Agreement (including, but not limited to, its formation, performance, and breach), the parties’ relationship with each other, and/or Licensee’s download of, access to, or use of the Licensed Products shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this License Agreement, including, but not limited to any claim that all or any part of this License Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
To start an arbitration, Licensee must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover. Licensee may find a copy of a Demand for Arbitration at www.jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, One Beacon Street Suite 2210 Boston, MA 02108-3106 USA; and (C) Send one copy of the Demand for Arbitration to us at The Legal Department, Sophos and/or SmartPath Technologies Limited, The Pentagon, Abingdon Science Park, Abingdon, OX14 3YP, United Kingdom with a copy to legalnotices@Sophos and/or SmartPath Technologies.com.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Sophos and/or SmartPath Technologies will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Sophos and/or SmartPath Technologies will pay all of the actual filing and arbitrator fees for the arbitration. Licensee is responsible for Licensee’s own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If Licensee is a resident of the United States or commences litigation within the United States, arbitration may take place at any reasonable location within the United States convenient for you. Residents of the United States, those who commence litigation within the United States, and Sophos and/or SmartPath Technologies further agree to submit to the personal jurisdiction of any federal or state court in the Commonwealth of Massachusetts, U.S.A., in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
(iv) Class Action Waiver. The parties further agree that the resolution of any disputes between the parties shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND SOPHOS AND/OR SMARTPATH TECHNOLOGIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(v) Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through initial dispute resolution or binding arbitration, either party may bring an action in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction. For such disputes, Licensee and Sophos and/or SmartPath Technologies agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the Commonwealth of Massachusetts, U.S.A. Licensee further agrees to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
(vi) 30-Day Right to Opt Out. Licensee has the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to legalnotices@Sophos and/or SmartPath Technologies.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first download of, access to, or use of the Product, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Sophos and/or SmartPath Technologies also will not be bound by them.
(vii) Changes to this Section. Sophos and/or SmartPath Technologies will provide sixty (60) days' notice of any changes to this section. Changes will become effective on the sixtieth (60th) day, and will apply prospectively only to any claims arising after the sixtieth (60th) day. If a court or arbitrator decides that this subsection on “Changes to this Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver (or similarly named) section in existence after Licensee first downloaded, accessed, or used the Products.
SOPHOS AND/OR SMARTPATH TECHNOLOGIES END USER LICENSE AGREEMENT (09 February 2021)
Hardware Warranty Policy
Sophos and/or SmartPath Technologies Hardware Warranty Policy
This document forms part of the Sophos and/or SmartPath Technologies End User License Agreement which is available at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal.aspx and all terms used below shall have the meanings given to them therein.
1. For a period of one (1) year for SG UTM and XG Firewall Hardware (including directly attached Sophos and/or SmartPath Technologies accessories), RED and AP series Hardware; five (5) years for SD-RED and APX series Hardware; and three (3) years for Sophos and/or SmartPath Technologies Web and Mail Gateway Hardware, from the date of original purchase from Sophos and/or SmartPath Technologies or such other period as may be specifically noted in the Schedule, as applicable, (the "Hardware Warranty Period") and provided always that Licensee has a valid, fully paid up, unexpired license and Maintenance subscription for such Product, Sophos and/or SmartPath Technologies warrants to the original purchaser only that the Hardware shall be free of defects in materials and workmanship under normal use and service and substantially conform to the Documentation. For certain Products, the Licensee may be able to purchase an extended Hardware Warranty Period, provided always that the Hardware Warranty Period shall not exceed the planned discontinuance date and shall be subject to the retirement policy for such Hardware as published at https://community.Sophos and/or SmartPath Technologies.com/kb/en-us/121502#Software%20Milestones.
2. If Sophos and/or SmartPath Technologies is notified in writing of a breach of the warranty in Clause 1 above during the Hardware Warranty Period, Sophos and/or SmartPath Technologies’ entire liability and Licensee’s sole remedy shall be (at Sophos and/or SmartPath Technologies’ option) to correct, repair or replace the Hardware and/or Documentation as applicable within a reasonable time, or provide or authorize a refund of the Fee paid for such Hardware following the return of the Hardware accompanied by proof of purchase. Any items provided as replacement under the terms of this Hardware Warranty Policy will be warranted for the remainder of the original Hardware Warranty Period.
3. If Licensee has purchased Hardware which includes an advance replacement warranty, upon discovery of any failure of the Hardware, or any component thereof, to conform with the warranty in Clause 1 above during the Hardware Warranty Period, Licensee is required to contact Sophos and/or SmartPath Technologies and seek a Return Merchandise Authorization (“RMA”) number. Sophos and/or SmartPath Technologies will promptly issue the requested RMA upon Sophos and/or SmartPath Technologies’ determination that the warranty claim is valid in accordance with the terms and conditions of this Hardware Warranty Policy. Upon confirmation of Licensee’s eligibility for the warranty rights described herein and Sophos and/or SmartPath Technologies’ provision to Licensee of an RMA (which RMA may be provided, at Sophos and/or SmartPath Technologies’ sole discretion, in response to Sophos and/or SmartPath Technologies’ receipt of an automated notification from the Hardware), Sophos and/or SmartPath Technologies will ship Licensee replacement Hardware ("Advance Replacement Hardware"). Such Advance Replacement Hardware may, at Sophos and/or SmartPath Technologies’ sole discretion, be new or refurbished, and be the same or a higher revision model. Within fifteen (15) days of receipt of the Advance Replacement Hardware, Licensee will return the allegedly defective Hardware or component part(s) of the Hardware to the return location indicated by Sophos and/or SmartPath Technologies, securely and properly packaged in the packaging provided with the Advance Replacement Hardware (if supplied), using the carriage designated and paid by Sophos and/or SmartPath Technologies, with the RMA number prominently displayed on the exterior of the packaging.
4. If Licensee has purchased Hardware which does not include an advance replacement warranty, upon discovery of any failure of the Hardware, or any component thereof, to conform with the warranty in Clause 1 above during the Hardware Warranty Period, Licensee is required to contact Sophos and/or SmartPath Technologies and seek an RMA number. Sophos and/or SmartPath Technologies will promptly issue the requested RMA upon Sophos and/or SmartPath Technologies’ determination that the warranty claim is valid in accordance with the terms and conditions of this Hardware Warranty Policy. Licensee will return the allegedly defective Hardware or component part(s) of the Hardware to the return location indicated by Sophos and/or SmartPath Technologies, securely and properly packaged, carriage (and insurance at Licensee’s option) prepaid by Licensee, with the RMA number prominently displayed on the exterior of the packaging. Upon receipt of a valid warranty claim and receipt of the Hardware at the return location indicated by Sophos and/or SmartPath Technologies, Sophos and/or SmartPath Technologies will (at its cost) ship Licensee replacement Hardware. Such replacement Hardware may, at Sophos and/or SmartPath Technologies’ sole discretion, be new or refurbished, be the same or a higher revision model, and may be the returned Hardware repaired by or on behalf of Sophos and/or SmartPath Technologies.
5. Title to the allegedly defective Hardware or component part shall pass to Sophos and/or SmartPath Technologies upon receipt by Licensee of the Advance Replacement Hardware, if applicable, or on shipment by Licensee of the Hardware to the return location indicated by Sophos and/or SmartPath Technologies, 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’, or (ii) be missing any Hardware, Sophos and/or SmartPath Technologies 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 and/or SmartPath Technologies within the referenced time limit, Licensee will be responsible for the cost of returning such item to the return location and Sophos and/or SmartPath Technologies will be entitled to enter Licensee’s premises to repossess such item(s) at Licensee’s sole cost.
6. SOPHOS AND/OR SMARTPATH TECHNOLOGIES SHALL NOT BE RESPONSIBLE FOR MAINTAINING OR PROTECTING ANY CONFIGURATION SETTINGS OR DATA FOUND ON THE RETURNED HARDWARE OR COMPONENT PART THEREOF.
7. Title to the Advance Replacement Hardware or any replacement Hardware provided to Licensee in accordance with Clauses 3 and 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 Advance Replacement Hardware or any replacement Hardware provided to Licensee in accordance with Clauses 3 and 4 respectively passes to Licensee upon shipment of such Hardware to Licensee. Licensee shall be responsible for any associated insurance.
8. The warranties contained in this Hardware Warranty Policy do not apply to (a) 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 and/or SmartPath Technologies or its agents to implement, any corrections or modifications to the Hardware made available to Licensee by Sophos and/or SmartPath Technologies; or (vii) such other events outside Sophos and/or SmartPath Technologies’ reasonable control; and/or (b) repair or replacement that would be contrary to Sanctions and Export Control Laws.
9. THE ABOVE HARDWARE WARRANTIES ARE NULL AND VOID IF ANY WARRANTY STICKERS ARE TAMPERED WITH OR ARE MISSING, OR IF THE HARDWARE WAS REPAIRED OR ALTERED BY PERSONNEL OTHER THAN THOSE AUTHORISED BY SOPHOS AND/OR SMARTPATH TECHNOLOGIES.
10. Consumers.
Sophos and/or SmartPath Technologies Hardware Products are not designed for Consumer use. Where Licensee is a Consumer using a Hardware Product, Clauses 1 and 2 above shall not apply; instead the following Clauses shall apply to the Consumer Licensee:
10.1 Where Sophos and/or SmartPath Technologies (or an authorized Partner of Sophos and/or SmartPath Technologies acting on Sophos and/or SmartPath Technologies's behalf) has provided a Hardware Product to a Consumer in return for a Fee from the Consumer or for some other value to Sophos and/or SmartPath Technologies which is derived from the Consumer, Sophos and/or SmartPath Technologies warrants that the Sophos and/or SmartPath Technologies Hardware Product will: (i) be of satisfactory quality, (ii) be reasonably fit for purpose, (iii) be as described in the Documentation, and (iv) if applicable, match any applicable models or samples of such Hardware Products.
10.2 Where Sophos and/or SmartPath Technologies is in breach of Clause 10.1, the Consumer may: (i) reject the Hardware Products within 30 days of the later of the delivery or the transfer of ownership or possession of such Products, or (ii) require Sophos and/or SmartPath Technologies, at Sophos and/or SmartPath Technologies's own cost, to repair or replace the Hardware Product within a reasonable time and without significant inconvenience to the Consumer, unless such remedies are impossible or if it is disproportionate to require Sophos and/or SmartPath Technologies to repair (as opposed to replace) the Hardware Product (or vice-versa).
10.3 Where the Consumer is entitled to the warranty under Clause 10.1 and Sophos and/or SmartPath Technologies has attempted to repair or replace the Hardware Product but:
(i) the Hardware Product is still in breach of Clause 10.1 (whether for the same or a different reason);
(ii) the repair or replacement was not completed within a reasonable time or without significant inconvenience to the Consumer; or
(iii) the remedies under Clause 10.2(ii) above are impossible or disproportionate;
the Consumer may elect to either keep the Hardware Product and Sophos and/or SmartPath Technologies will grant the Consumer a reasonable Fee reduction for such Hardware Product, or reject the Hardware Product and receive a refund (reduced by a deduction for use, taking into account any reasonable use by the Consumer of the Hardware Product in the period since it was delivered).
10.4 Where the Consumer is entitled to the warranty under Clause 10.1 and any alleged failure of the Hardware (or any component thereof) is discovered, Sophos and/or SmartPath Technologies shall pay for the reasonable carriage of such Hardware to Sophos and/or SmartPath Technologies, provided that if (i) the Hardware is deemed not to be defective or ‘no fault found’, or (ii) the shipment is missing any Hardware, the invoice issued by Sophos and/or SmartPath Technologies under Clause 5 will also include the costs paid by Sophos and/or SmartPath Technologies for delivery of the same.
11. Changes
Except where Licensee is a Consumer (in which case the Hardware Warranty Policy applicable at the time the Consumer entered into its contract with Sophos and/or SmartPath Technologies will apply), changes to this Hardware Warranty Policy shall be effective thirty (30) days from the date Licensee is advised of changes to this Hardware Warranty Policy, which notice may include posting of the revised Hardware Warranty Policy to this website.
Sophos and/or SmartPath Technologies Services Agreement
THIS SOPHOS AND/OR SMARTPATH TECHNOLOGIES SERVICES AGREEMENT (“AGREEMENT”) BETWEEN CUSTOMER AND SOPHOS AND/OR SMARTPATH TECHNOLOGIES LIMITED (“SOPHOS AND/OR SMARTPATH TECHNOLOGIES”) GOVERNS CUSTOMER’S ACCESS AND USE OF THE SERVICE AND IS A LEGALLY BINDING AND ENFORCEABLE CONTRACT.
BY CLICKING A BOX INDICATING ACCEPTANCE OR AGREEMENT, OR BY ACCESSING OR USING THE SERVICE, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT S/HE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
If you wish to view the Sophos and/or SmartPath Technologies Services Agreement in another language, visit any of the following pages: Spanish, French, Italian, German.
1. DEFINITIONS
1.1 “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.
1.2 “Beta Service” means any Service (or portion of a Service) or Service Software that Sophos and/or SmartPath Technologies identifies as beta, pre-release, early access, or preview, and that is made available to Customer during the Subscription Term but not made generally available for use.
1.3 “Cloud Service” means Sophos and/or SmartPath Technologies Cloud Optix services.
1.4 “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.
1.5 “Customer” means the company or legal entity identified in the applicable Schedule, or in the event there is no applicable Schedule, “Customer” means: (a) the company or legal entity on whose behalf a User accesses or uses the Service, or (b) an individual who accesses or uses the Service on such individual’s own behalf.
1.6 "Customer Content" means all software, data (including Personal Data), non-Sophos and/or SmartPath Technologies or third-party applications, and any other content, communications or material, in any format; and any system, network, or infrastructure provided or made accessible by Customer or User to Sophos and/or SmartPath Technologies in connection with Customer’s access and use of the Service.
1.7 “Documentation” means any online help content, user manuals, or similar materials pertaining to the implementation, operation, access, and use of the Service that are made available by Sophos and/or SmartPath Technologies, as may be revised by Sophos and/or SmartPath Technologies from time to time.
1.8 “Partner” means a reseller, distributor, or other independent third party from which Customer purchases a subscription to the Service.
1.9 “Personal Data” means any information relating to an identified or identifiable individual or that is otherwise defined as “personal data”, “personal information”, or “personally identifiable information” under applicable data protection laws.
1.10 “Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or similar measure applicable to the Service 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, which shall be considered applicable to the Service.
1.11 “Schedule” means the order confirmation issued by Sophos and/or SmartPath Technologies, or other equivalent documentation, that details Customer’s purchase of a Service and the Service Entitlement, and may include other access and use details for the Service.
1.12 “Security Service” means Sophos and/or SmartPath Technologies Managed Threat Response, Sophos and/or SmartPath Technologies Managed Threat Response Essentials, Sophos and/or SmartPath Technologies Rapid Response or other associated security services as described in the applicable Service Description.
1.13 “Service” means a Security Service, Cloud Service, Beta Service, or Trial Service that Customer is authorized to access and use under the terms of this Agreement, including any applicable support and maintenance services, and associated Service Software and Documentation.
1.14 “Service Description” means Sophos and/or SmartPath Technologies’s description of a Security Service’s features, including any additional Service-specific terms and requirements, available at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal.aspx.
1.15 “Service Entitlement” means the quantity of units of the Service that Customer has purchased and the associated Subscription Term, each as set forth on the applicable Schedule.
1.16 “Service Software” means any software agent, application, or tool made available by Sophos and/or SmartPath Technologies for Customer’s use in connection with a Service, including any updates and upgrades.
1.17 “Sophos and/or SmartPath Technologies Materials” means (i) all Sophos and/or SmartPath Technologies proprietary materials, any written or printed summaries, analyses or reports generated in connection with a Service, including written reports that are created for Customer in the course of providing a Service, and (ii) data generated by Sophos and/or SmartPath Technologies in the course of providing a Service to Customer, including but not limited to, detections, threat data, indicators of compromise and any contextual data (but excluding Customer Content).
1.18 “Subscription Term” means the term of Customer’s authorized access and use of the Service, as set forth in the applicable Schedule.
1.19 “Third Party Services” has the meaning set forth in Section 3.3 below.
1.20 “Trial Service” has the meaning set forth in Section 2.4 below.
1.21 “Trial Service Term” has the meaning set forth in Section 2.4 below.
1.22 “Usage Data” means any diagnostic and usage-related information from the use, performance and operation of the Service, including, but not limited to, type of browser, Service features, and systems that are used and/or accessed, and system and Service performance-related data.
1.23 “Use Level” has the meaning set forth in Section 2.2 below.
1.24 “User” means Customer’s and its permitted Affiliates’ employees, contractors, and similar personnel authorized by Customer or its Affiliates to access and use the Service on such entity’s behalf.
2. SERVICE USE AND RESTRICTIONS
2.1 Right to Access and Use. Subject to Customer’s compliance with the terms of this Agreement, Sophos and/or SmartPath Technologies grants Customer a non-exclusive, non-transferable, worldwide right to access and use the Service listed in the Schedule during the applicable Subscription Term solely for Customer’s internal information security purposes. Customer may permit its Affiliates and Users to use the Service in accordance with this Agreement, provided that Customer remains fully responsible and liable for their use of the Service and compliance with the terms and conditions of this Agreement.
2.2 Use Level. The Service Entitlement together with the defined Service unit(s) or meter(s) specified in the Licensing Guidelines at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal.aspx form the applicable Customer use level (“Use Level”). Customer may access and use the Service in accordance with the applicable Use Level, and may not exceed the Use Level at any time. If Customer wishes to increase its Service Entitlement, it must first purchase the corresponding additional Service Entitlement. If Customer exceeds its Service Entitlement, Customer will pay any invoice for such excess use issued by Sophos and/or SmartPath Technologies or a Partner in accordance with Section 6.1.
2.3 Restrictions. Except as specifically permitted in this Agreement, Customer will not (and will not allow an Affiliate, User, or third party to), directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights to, or usage of, all or any portion of the Service, or provide the Service on a timesharing, service bureau, or other similar basis; (b) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Service; (c) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (d) attempt to gain unauthorized access to the Service; (e) attempt to disrupt, degrade, impair, or violate the integrity, security, or performance of the Service, including, without limitation, by executing any form of network monitoring; (f) use the Service to store, transmit, or propagate any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (g) take any action that imposes or may impose an unreasonable or disproportionately large load on Sophos and/or SmartPath Technologies’s infrastructure, as determined by Sophos and/or SmartPath Technologies in its sole discretion; (h) disable or circumvent any monitoring or billing mechanism related to the Service; or (i) access or use the Service in a manner that violates applicable law or regulation, infringes third party rights, or violates the terms and conditions of this Agreement.
2.4 Trial Services and Beta Services.
(a) If Sophos and/or SmartPath Technologies permits Customer to conduct a free trial or evaluation of a Service (“Trial Service”), Customer may access and use the Trial Service for thirty (30) days or such other duration specified by Sophos and/or SmartPath Technologies in writing (“Trial Service Term”).
(b) From time to time, Sophos and/or SmartPath Technologies may invite Customer to try a Beta Service, for a period specified by Sophos and/or SmartPath Technologies and at no charge, which Customer may accept or decline in Customer’s sole discretion. Customer will comply with testing guidelines that Sophos and/or SmartPath Technologies provides in connection with Customer’s use of a Beta Service and will make reasonable efforts to provide Feedback in accordance with Section 5.3. Sophos and/or SmartPath Technologies may discontinue a Beta Service at any time in its sole discretion and may not make it generally available.
(c) Trial Services and Beta Services are provided for internal testing and evaluation solely for Customer’s own internal information security purposes.
(d) TRIAL SERVICES AND BETA SERVICES ARE PROVIDED “AS IS” WITHOUT ANY SUPPORT, INDEMNITY, LIABILITY OR REMEDY OF ANY KIND. TO THE EXTENT ALLOWED BY APPLICABLE LAW, SOPHOS AND/OR SMARTPATH TECHNOLOGIES EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION, OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF TRIAL SERVICES OR BETA SERVICES.
(e) The terms of this Section 2.4 apply, and prevail over any conflicting terms in this Agreement, with respect to all access and use of Trial Services or Beta Services.
2.5 Modifications to Service and Agreement.
2.5.1 Service. Sophos and/or SmartPath Technologies may modify or update the Service from time to time without materially reducing or degrading its overall functionality.
2.5.2 Agreement.
(a) Sophos and/or SmartPath Technologies may modify the terms of this Agreement from time to time by posting a modified version on https://www.Sophos and/or SmartPath Technologies.com/legal.aspx or an alternate site Sophos and/or SmartPath Technologies identifies. Unless otherwise noted by Sophos and/or SmartPath Technologies, all modifications will become effective upon commencement of Customer’s next Subscription Term. If Sophos and/or SmartPath Technologies makes any material change to the Agreement that will become effective upon an earlier date (“Immediate Modification”), Sophos and/or SmartPath Technologies will notify Customers (i) in accordance with Section 11.2 (Notice) or (ii) by posting a notice in the Service console. Sophos and/or SmartPath Technologies may add new Services from time to time, and Customer’s purchase and use of a new Service will constitute Customer’s acceptance of this Agreement.
(b) In the event of an Immediate Modification, except where required by law, regulation, court order, or guidance issued by a government regulator, Customer will have the right to terminate the Agreement within thirty (30) days of the date of Sophos and/or SmartPath Technologies’s Immediate Modification notice if Customer objects to such Immediate Modification, and the termination will be effective at the end of the thirty- (30-) day period. Customer’s or a User’s continued access and use of the Service following thirty (30) days after the date of the Immediate Modification notice will constitute Customer’s acceptance of the Immediate Modification and updated Agreement. If Customer terminates the Agreement as provided in this paragraph, Sophos and/or SmartPath Technologies will provide or authorize a pro rata refund of the fees paid by Customer to Sophos and/or SmartPath Technologies or the Partner, respectively, for the remainder of the applicable Subscription Term. Customer will be responsible for all fees incurred prior to the effective date of termination.
2.6 Service Software. If Sophos and/or SmartPath Technologies provides Service Software, Customer may use it only: (a) during the Subscription Term, or applicable Trial Service Term or Beta Service term; and (b) in compliance with the Sophos and/or SmartPath Technologies End User License Agreement located at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal.aspx and in conjunction with the Service.
2.7 Support. Sophos and/or SmartPath Technologies will provide the technical support specified in the applicable Schedule or Documentation during the Subscription Term. Additional technical support packages may be available for an additional fee. Technical support packages are described at: https://www.Sophos and/or SmartPath Technologies.com/en-us/support/technical-support.aspx. From time to time, Sophos and/or SmartPath Technologies performs scheduled maintenance to update the servers, software, and other technology that are used to provide the Service and will use commercially reasonable efforts to provide prior notice of such scheduled maintenance. Customer acknowledges that, in certain situations, Sophos and/or SmartPath Technologies may need to perform emergency maintenance of the Service without providing prior notice.
3. CUSTOMER OBLIGATIONS
3.1 Access and Use. Customer is solely responsible for: (a) accessing and using the Service in accordance with the Documentation; (b) determining the suitability of the Service for Customer’s internal information security purposes; (c) configuring the Service appropriately; (d) complying with any regulations and laws (including, without limitation, export, data protection, and privacy laws) applicable to Customer Content and Customer’s use of the Service; (e) Customer’s and Users’ access and use of the Service; (f) all activity occurring under Customer’s Service and support accounts, including the rights and privileges Customer grants to Users and any activity undertaken or decision made by Users regarding Service delivery; (g) providing all reasonable information and assistance required for Sophos and/or SmartPath Technologies to deliver the Service or enable Customer’s or Users’ access and use of the Service; (h) using reasonable means to protect the account information and access credentials (including passwords and devices or information used for multi-factor authentication purposes) used by Customer and Users to access the Service; and (i) promptly notifying Sophos and/or SmartPath Technologies of any unauthorized account use or other suspected security breach, or unauthorized use, copying, or distribution of the Service or Customer Content.
3.2 Accuracy of Information. Customer agrees to provide complete and accurate Customer and User identification information in connection with access and use of the Service, including but not limited to providing reasonable Customer and User contact details and information upon Sophos and/or SmartPath Technologies's or Partner’s request.
3.3 Third Party Services. The Service may enable or require Customer to associate its Service account with, link to, or otherwise access, third parties’ websites, platforms, content, products, services, or information (“Third Party Services”). Third Party Services are not part of the Service, and Sophos and/or SmartPath Technologies does not control and is not responsible for the Third Party Services. Customer is solely responsible for: (a) obtaining and complying with any terms of access and use of the Third Party Services, including any separate fees or charges imposed by the provider of the Third Party Services; and (b) configuring the Third Party Services appropriately. Sophos and/or SmartPath Technologies disclaims all responsibility and liability arising from or related to Customer’s access or use of the Third Party Services, including any impact on Service capabilities as a result of Customer’s use of, or reliance upon, the Third Party Services.
4. CUSTOMER CONTENT; PRIVACY & SECURITY; CONFIDENTIALITY
4.1 Customer Content. Customer is solely responsible for all Customer Content, including but not limited to its accuracy, quality, and legality. Customer represents and warrants that it: (a) has the legal rights to provide Customer Content to Sophos and/or SmartPath Technologies; (b) has provided any required notices and has obtained any consents and/or authorizations (including any required from Users) related to its access and use of the Service and the processing of and access to Customer Content by Sophos and/or SmartPath Technologies; and (c) will comply with all applicable laws and regulations for collecting and processing Customer Content, and transferring Customer Content to Sophos and/or SmartPath Technologies. Customer is responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of Customer Content, including but not limited to: (i) controlling access that Customer provides to Users; and (ii) backing up Customer Content.
4.2 Use of Customer Content by Sophos and/or SmartPath Technologies. Customer grants Sophos and/or SmartPath Technologies a non-exclusive, worldwide, royalty-free license to access and use the Customer Content to perform its obligations (including to provide the Service) and exercise its rights under this Agreement.
4.3 Protection of Customer Content by Sophos and/or SmartPath Technologies. Sophos and/or SmartPath Technologies will maintain appropriate administrative, physical, and technical measures designed to protect the security, confidentiality, and integrity of Customer Content processed by Sophos and/or SmartPath Technologies. The Data Processing Addendum (“DPA”) located at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal/data-processing-addendum.aspx is incorporated by reference into this Agreement if the provision of Service constitutes any "processing" by Sophos and/or SmartPath Technologies of any "personal data" within the Customer Content, but only to the extent such processing falls within the scope of "Applicable Data Protection Laws" (each term as defined in the DPA). In the event of any conflict between the terms of the DPA and this Agreement, the terms of the DPA will take precedence.
4.4 Content Restrictions. If Customer’s access and use of the Service requires Customer to comply with industry-specific data security or data protection obligations, Customer will be solely responsible for such compliance. Customer may not use the Service in a way that would subject Sophos and/or SmartPath Technologies to those industry-specific regulations without obtaining Sophos and/or SmartPath Technologies’ prior written agreement.
4.5 Confidentiality.
(a) Each party acknowledges that it and its Affiliates (“Disclosing Party”) may have access to Confidential Information of the other party and its Affiliates (“Receiving 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.
(b) 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.
4.6 Usage Data and Threat Intelligence Data. In the course of providing the Service, Sophos and/or SmartPath Technologies may collect, access, use, process, transmit, or store Usage Data for: (a) product improvement; (b) research and development purposes; and (c) deriving statistical data using information that is aggregated, anonymized, de-identified, or otherwise rendered not reasonably associated or linked to an identifiable individual or to Customer or Users (“Statistical Data”). Sophos and/or SmartPath Technologies retains all intellectual property rights in such Statistical Data. Sophos and/or SmartPath Technologies may share threat intelligence data (including from Customer Content, if it is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to an identifiable individual or Users) with selected reputable members of the IT industry for the purposes of promoting awareness of security risks, and anti-spam and security threat research.
5. OWNERSHIP RIGHTS
5.1 Customer Ownership. Except as expressly provided otherwise in this Agreement, as between Sophos and/or SmartPath Technologies and Customer, Customer retains all right, title, and interest in and to Customer Content.
5.2 Sophos and/or SmartPath Technologies Ownership. As between Sophos and/or SmartPath Technologies and Customer, Sophos and/or SmartPath Technologies retains all right, title, and interest, including all intellectual property rights, in and to the Service and Sophos and/or SmartPath Technologies Materials, including all improvements, enhancements, modifications, derivative works, logos, and trademarks. Sophos and/or SmartPath Technologies reserves all rights in and to the Service that are not expressly granted under this Agreement. During the Agreement term, Sophos and/or SmartPath Technologies grants to Customer a limited, non-exclusive license to use such Sophos and/or SmartPath Technologies Materials solely for Customer to receive the Service and for Customer’s own internal information security purposes only.
5.3 Feedback. Customer or Users may provide suggestions, enhancement or feature requests, or other feedback to Sophos and/or SmartPath Technologies with respect to the Service (“Feedback”). If Customer provides Feedback, Sophos and/or SmartPath Technologies may use the Feedback without restriction and without paying any compensation to Customer, and Customer hereby irrevocably assigns to Sophos and/or SmartPath Technologies all intellectual property rights in and to such Feedback.
6. PAYMENT; TAXES; MONITORING
6.1 Fees, Taxes, and Payment. If Customer is purchasing a subscription to access and use the Service from a Partner, all provisions related to fees, taxes, and payment terms will be exclusively between the Partner and Customer. Otherwise, Customer will pay Sophos and/or SmartPath Technologies the fees for access and use of the Service within thirty (30) days of the invoice date (in the currency and via the payment method specified on the invoice), unless otherwise noted in the Schedule. All fees are exclusive of value added tax and any other federal, state, municipal, or other governmental taxes, duties, licenses, fees, excises, or tariffs, and Customer is responsible for paying any taxes assessed based on Customer’s purchases under the Agreement.
6.2 Service Monitoring. Customer acknowledges that Sophos and/or SmartPath Technologies continuously monitors the Service to: (a) track usage and Service Entitlement, (b) provide support, (c) monitor the performance, integrity, and stability of the Service’s infrastructure, (d) prevent or remediate technical issues, and (e) detect and address illegal acts or violations of Section 2.3 (Restrictions).
7. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY
7.1 Warranties. Each party warrants to the other party that it has the requisite authority to enter into this Agreement. Sophos and/or SmartPath Technologies warrants that, during the Subscription Term, (a) it will provide the Service using commercially reasonable skill and care, and (b) the Service will materially conform to the corresponding Documentation. Customer’s sole and exclusive remedy for Sophos and/or SmartPath Technologies’s breach of the foregoing warranty is, at Sophos and/or SmartPath Technologies’s option, either (i) repair or replacement of the Service, or (ii) a pro rata refund of the fees paid to Sophos and/or SmartPath Technologies or a Partner for the period in which Sophos and/or SmartPath Technologies was in breach of the foregoing warranty. This warranty is conditioned upon Customer providing Sophos and/or SmartPath Technologies prompt written notice of the Service’s non-conformity and using the Service in compliance with this Agreement.
7.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 7.1, TO THE EXTENT ALLOWED BY APPLICABLE LAW, SOPHOS AND/OR SMARTPATH TECHNOLOGIES EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION, OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE SERVICE. SOPHOS AND/OR SMARTPATH TECHNOLOGIES MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICE: (A) WILL BE UNINTERRUPTED, COMPLETELY SECURE, ERROR-FREE, FAILSAFE, OR FREE OF VIRUSES; (B) WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR OPERATE WITH CUSTOMER’S CURRENT SYSTEMS; OR (C) WILL IDENTIFY OR REMEDIATE ALL THREATS OR INDICATORS OF COMPROMISE. SOPHOS AND/OR SMARTPATH TECHNOLOGIES IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER CONTENT, THIRD PARTY SERVICES, OR ANY OTHER SERVICES PROVIDED BY THIRD PARTIES. SOPHOS AND/OR SMARTPATH TECHNOLOGIES DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET, NETWORKS, OR SYSTEMS OUTSIDE SOPHOS AND/OR SMARTPATH TECHNOLOGIES’S CONTROL.
7.3 Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUES, BUSINESS, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR DATA IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, EVEN IF THE DAMAGES WERE FORESEEABLE OR A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF SOPHOS AND/OR SMARTPATH TECHNOLOGIES OR ITS AFFILIATES FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO SOPHOS AND/OR SMARTPATH TECHNOLOGIES OR THE PARTNER, AS APPLICABLE, UNDER THIS AGREEMENT DURING THE APPLICABLE SUBSCRIPTION TERM.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 7.3 APPLY (A) WHETHER SUCH CLAIMS ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, STATUTE, OR OTHERWISE, AND (B) NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
8. INDEMNIFICATION
8.1 Indemnification by Sophos and/or SmartPath Technologies.
(a) Sophos and/or SmartPath Technologies will (i) indemnify, defend, and hold Customer harmless from any third party claim, action, suit, or proceeding alleging that Customer’s access and use of the Service in accordance with this Agreement infringes such third party’s patent, trademark, or copyright; and (ii) reimburse Customers’ reasonable attorney’s fees and costs actually incurred and any damages finally awarded against Customer by a court of competent jurisdiction or agreed to by Sophos and/or SmartPath Technologies in a settlement. If a third-party claim is made or appears likely to be made, Sophos and/or SmartPath Technologies, in its sole discretion, may: (1) procure the right for Customer to continue accessing or using the Service under the terms of this Agreement; or (2) modify or replace the Service to be non-infringing without material decrease in functionality. If Sophos and/or SmartPath Technologies, in its sole discretion, determines that neither of the foregoing options is reasonably feasible, Sophos and/or SmartPath Technologies may terminate the Service upon written notice to Customer, and provide or authorize a pro rata refund of the fees paid by Customer to Sophos and/or SmartPath Technologies or the Partner, respectively, for the remainder of the applicable Subscription Term. The foregoing shall be Sophos and/or SmartPath Technologies’s entire obligation and Customer’s exclusive remedy regarding any third-party claim against Customer.
(b) Sophos and/or SmartPath Technologies will have no indemnity obligation for any claim to the extent such claim, in whole or in part, is based on: (i) a modification of the Service by Customer or a third party; (ii) access or use of the Service in a manner that violates the terms and conditions of this Agreement; (iii) technology, designs, instructions, or requirements provided by Customer or a third party on Customer’s behalf; (iv) combination, operation, or use of the Service with non-Sophos and/or SmartPath Technologies products, software, services, or business processes, if a claim would not have occurred but for such combination, operation, or use; or (v) Customer Content or Third Party Services.
8.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Sophos and/or SmartPath Technologies, its Affiliates, and their officers, directors, employees, contractors, and agents against any claims, liabilities, and expenses (including court costs and reasonable attorneys' fees) that are incurred as a result of or in connection with: (a) Customer Content, including without limitation Customer’s failure to follow applicable laws, obtain all necessary consents related to Customer Content, or comply with Section 4.4 (Content Restrictions); (b) Customer's access or use of the Service in a manner not expressly permitted by this Agreement; (c) Customer’s violation of any third party rights; (d) Customer’s violation of applicable laws or regulations; or (e) any work product created in reliance on the Service and use of such work product by Customer or a third party.
8.3 Indemnification Procedures. The indemnified party (“Indemnitee”) will: (a) promptly notify the indemnifying party (“Indemnitor”) in writing of any indemnifiable claim; (b) give Indemnitor all reasonable assistance, at Indemnitor’s expense; and (c) give Indemnitor sole control of the defense and settlement of the claim. Any settlement of a claim will not include a specific performance obligation other than the obligation to cease using the Service, or an admission of liability by the Indemnitee, without the Indemnitee’s consent. The Indemnitee may join in the defense of an indemnifiable claim with counsel of its choice at its own expense.
9. TERM AND TERMINATION
9.1 Term. This Agreement will remain in effect until the expiration of the applicable Subscription Term or Trial Service Term.
9.2 Termination or Suspension of Service. Either party may terminate this Agreement and any then-current applicable Schedule if the other party materially breaches its obligations hereunder and does not cure the breach within thirty (30) days after receipt of written notice of the breach. Sophos and/or SmartPath Technologies may immediately suspend Customer’s or User’s access and use of the Service, or portions of the Service, if: (a) Sophos and/or SmartPath Technologies believes there is a significant threat to the functionality, security, integrity, or availability of the Service to Customer or to other customers; (b) Customer accesses or uses the Service in violation of Section 2.3 (Restrictions); (c) Customer fails to pay the fee for access and use of the Service to Sophos and/or SmartPath Technologies or the Partner (as applicable) in accordance with the agreed payment terms; or (d) Sophos and/or SmartPath Technologies reasonably believes that Customer is violating or has violated Sanctions and Export Control Laws and/or the provisions of Section 10.1 (Export Compliance) in connection with access and use of the Service. When reasonably practicable and lawfully permitted, Sophos and/or SmartPath Technologies will provide Customer with advance notice of any such Service suspension. Sophos and/or SmartPath Technologies will use reasonable efforts to re-establish the Service promptly after it determines that the issue causing the suspension has been resolved. Any Service suspension under this Section shall not excuse Customer’s payment obligations under this Agreement.
9.3 Effect of Termination. Upon termination or expiration of this Agreement: (a) all Customer rights under this Agreement relating to the Service will immediately terminate; (b) Customer is no longer authorized to access the Service or Customer’s account; and (c) Customer must destroy any copies of Service Software within Customer’s control. Upon any termination by Customer for Sophos and/or SmartPath Technologies’s uncured material breach of the Agreement, Sophos and/or SmartPath Technologies will provide or authorize a pro rata refund of the fees paid by Customer to Sophos and/or SmartPath Technologies or the Partner, respectively, for the remainder of the applicable Subscription Term. Upon any termination by Sophos and/or SmartPath Technologies for Customer’s uncured material breach of the Agreement, Customer will pay any unpaid fees covering the remainder of the then-current Subscription Term.
9.4 Customer Content upon Termination. After termination or expiration of this Agreement, Customer agrees that Sophos and/or SmartPath Technologies has no obligation to Customer to retain Customer Content, which may thereafter be permanently deleted by Sophos and/or SmartPath Technologies. Sophos and/or SmartPath Technologies will protect the confidentiality of Customer Content residing in the Service for as long as such information resides in the Service.
10. EXPORT CONTROL; COMPLIANCE WITH LAWS
10.1 Export Compliance. Customer is solely responsible for ensuring that the Service is used, accessed, and disclosed in compliance with Sanctions and Export Control Laws. Customer certifies that Customer or Users, or any party that owns or controls Customer or Users, are not (a) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (b) 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 (c) the target or subject of any Sanctions and Export Laws. Customer further certifies that it and Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available (i) the Service, or (ii) any data, information, software programs, and/or materials resulting from the Service (or direct product thereof) to any person described in (a) through (c) or in violation of, or for any purpose prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses. Customer agrees that Sophos and/or SmartPath Technologies has no obligation to provide the Service where Sophos and/or SmartPath Technologies believes the provision of the Service could violate Sanctions and Export Control Laws. Further details are available at https://www.Sophos and/or SmartPath Technologies.com/en-us/legal/export.aspx.
10.2 Compliance with Laws. Each party agrees to comply with all laws applicable to the actions and obligations contemplated by this Agreement. Each party warrants that, during the term of this Agreement, neither party nor any of its officers, employees, agents, representatives, contractors, intermediaries, or any other person or entity acting on its behalf has taken or will take any action, directly or indirectly, that contravenes (a) the United Kingdom Bribery Act 2010, (b) the United States Foreign Corrupt Practices Act 1977, or (c) any other applicable anti-bribery laws or regulations anywhere in the world.
11. GENERAL
11.1 Assignment. Customer may not sublicense, assign, or transfer its rights or obligations under this Agreement without Sophos and/or SmartPath Technologies’s prior written consent. Sophos and/or SmartPath Technologies may in its sole discretion assign, novate, subcontract, or otherwise transfer any of its rights or obligations hereunder.
11.2 Notice. Sophos and/or SmartPath Technologies may provide Customer with notice (a) if applicable to the Service, by means of a general notice on the Service portal, on the Sophos and/or SmartPath Technologies.com website, or any other website used as part of the Service, and (b) if specific to the Customer, by electronic mail to the e-mail address in Sophos and/or SmartPath Technologies’s records. All notices to Sophos and/or SmartPath Technologies concerning this Agreement should be addressed to The Legal Department, Sophos and/or SmartPath Technologies Limited, The Pentagon, Abingdon Science Park, Abingdon, OX14 3YP, United Kingdom with a copy to legalnotices@Sophos and/or SmartPath Technologies.com.
11.3 Waiver. Failure by either party to enforce any term or condition of this Agreement will not be construed as a waiver of any of its rights under it.
11.4 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the fullest extent permitted by law.
11.5 Force Majeure. Neither party will be liable to the other for any delay or failure to perform hereunder, except for Customer’s payment obligations, due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or other industrial disturbances, systemic electrical, telecommunications, or other utility failures.
11.6 Community Forum. Customer and other Sophos and/or SmartPath Technologies customers may exchange ideas and technical insight related to Sophos and/or SmartPath Technologies offerings in the Sophos and/or SmartPath Technologies Community site at https://community.Sophos and/or SmartPath Technologies.com/. Sophos and/or SmartPath Technologies does not endorse, warrant, or guarantee any information posted on that site, and Customer alone assumes the risk of using any such information.
11.7 United States Government Users; Non-Waiver of Government Immunity.
(a) The Service and Documentation are considered “commercial computer software” and “commercial computer software documentation” for the purposes of FAR 12.212 and DFARS 227.7202, as amended, or equivalent provisions of agencies that are exempt from the FAR or that are U.S. state or local government agencies. Any use, modification, reproduction, release, performance, display, or disclosure of the Service by the U.S. Government and U.S. state and local government agencies will be governed solely by this Agreement, and except as otherwise explicitly stated in this Agreement, all provisions of this Agreement shall apply to the U.S. Government and U.S. state and local government agencies.
(b) If Customer is a federal, state, or other governmental instrumentality, organization, agency, institution, or subdivision, the limitations of liability and Customer’s indemnity obligations herein shall apply only in the manner and to the extent permitted by applicable law, and without waiver of Customer’s constitutional, statutory, or other immunities, if any.
11.8 Governing Law and Jurisdiction. If the Sophos and/or SmartPath Technologies Affiliate from which Customer has purchased access and use of the Service is located in United States of America, Canada, or Latin America, this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A notwithstanding its conflicts of law principles, and all claims arising out of or relating to this Agreement or the Service shall be brought exclusively in the federal or state courts located in the Commonwealth of Massachusetts, U.S.A. The parties waive any right to a jury trial in any litigation arising out of or relating to this Agreement or the Service. For any other country, this Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of laws principles, and all claims arising out of or relating to this Agreement or the Service shall be brought exclusively in the courts of England and Wales. The parties agree that the UN Convention on Contracts for the International Sale of Goods (CISG, Vienna, 1980) shall not apply to this Agreement.
11.9 Survival. The following sections, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination or expiration of this Agreement: 1 (Definitions), 4.5 (Confidentiality) for five (5) years, 4.6 (Usage Data and Threat Intelligence Data), 5 (Ownership Rights), 6 (Payment; Taxes; Monitoring), 7 (Warranties; Disclaimers; Limitation of Liability), 8 (Indemnification), 9.3 (Effect of Termination), 9.4 (Customer Content upon Termination), and 11 (General).
11.10 Independent Parties. Sophos and/or SmartPath Technologies and Customer are independent contractors, and nothing in this Agreement will create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
11.11 Entire Agreement. If Sophos and/or SmartPath Technologies and Customer have signed a separate written agreement covering access and use of the Service, the terms of such signed agreement will take precedence over any conflicting terms of this Agreement. Otherwise, this Agreement, the Service Description (where applicable), the Schedule, the Licensing Guidelines, and the documents and policies referenced herein constitute the entire agreement between the parties with respect to the Service and supersede all prior or contemporaneous oral or written communications, agreements or representations with respect to the Service. The Service Description is incorporated by reference into this Agreement if Customer’s purchase and use of the Service is described in the Service Description. If there are any inconsistencies between the English language version of this Agreement and any translated version, the English language version shall prevail.
Revision Date: 2 February 2021
