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General Terms Applicable to all Products
Schedule 1: Software Use and Restrictions
Schedule 2: Limited Warranty
Schedule 3: Hosted Services
Schedule 4: Additional Terms for Phishline
Schedule 5: Support Services Terms
Schedule 6: Professional Services Terms
Schedule 7: Data Privacy
Schedule 8: Migration and Upgrade Credit Program Terms
The General Terms and Conditions (“General Terms”),
together with all applicable Schedules (collectively, the “Agreement”) are a legal agreement between you, a legal
entity (“Customer”), and Barracuda Networks, Inc. (“Barracuda”). If you are not legally able to be bound by
the Agreement or do not want to consent to the terms of the Agreement, your
use of the Products is strictly prohibited. Your use of the Products is
subject at all times to this Agreement, as amended from time to time. If
you do not unconditionally agree to the foregoing, discontinue the
installation or use of the Products. If you proceed with use, you are (i)
representing and warranting that you are authorized to bind the Customer;
and (ii) agreeing to the Terms.
Order of Precedence
. The General Terms are applicable to all Barracuda Products and set forth
the terms under which the Customer may use Barracuda Products. Certain
Products are subject to additional terms and conditions, which are set
forth in the applicable “Schedule.” In the event of a conflict or
inconsistency between any of the General Terms and a Schedule, the Schedule
GENERAL TERMS AND CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING A BARRACUDA PRODUCT.
BY USING A BARRACUDA PRODUCT, CUSTOMER AGREES TO BE BOUND BY THE TERMS
OF THIS AGREEMENT.
IF CUSTOMER LIVES IN THE UNITED STATES, THIS AGREEMENT CONTAINS A
BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS
CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE WITH BARRACUDA.
PLEASE READ IT CAREFULLY.
1.1. “Barracuda Materials” means all Barracuda proprietary
materials, including, but not limited to, Deliverables, Products and
intellectual property related to Products and Documentation.
1.2. “Deliverables” means any written reports and
materials that are created specifically for Customer as a result of
Professional Services provided hereunder, as set forth in Schedule 6
(“Professional Services Terms”).
1.3. “Delivery” with respect to Hardware means the date of
shipment, and with respect to Software and Hosted Services means when the
Software or Hosted Service is made available by Barracuda.
1.4. “Documentation” means manuals or other materials
provided by Barracuda related to the Products in electronic or other form,
as amended from time to time by Barracuda.
1.5. “Effective Date” shall mean the date of Delivery of
1.6. “Hardware” means a physical appliance provided by
1.7. “Hosted Service” means the right to use a cloud
system or platform hosted by Barracuda, which provides the services and
functionality set forth in the applicable Specification.
1.8. “Hosted Service Term” means the length of time for
which a Hosted Service is purchased.
1.9. “Intellectual Property Rights” means copyrights
(including, without limitation, the exclusive right to use, reproduce,
modify, distribute, publicly display and publicly perform the copyrighted
work), trademark rights (including, without limitation, trade names,
trademarks, service marks and trade dress), patent rights (including,
without limitation, the exclusive right to make, use and sell), trade
secrets, moral rights, right of publicity, authors’ rights, contract and
licensing rights, goodwill and all other intellectual property rights as
may exist now and/or hereafter come into existence and all renewals and
extensions thereof, regardless of whether such rights arise under the law
of the United States or any other state, country or jurisdiction.
1.10. “Product” means, collectively, any Hardware,
Software, Subscriptions, Hosted Service, Services and any combination
1.11. “Order” means a written purchase order or similar
ordering document, signed or submitted to Barracuda under which the
Products are provided for Customer’s use.
1.12. “Professional Services” means consulting services
provided by Barracuda under a Statement of Work and/or set forth on an
1.13. “Software” means software embedded in Hardware, used
to provide a Hosted Service or any software licensed to Customer as a
Subscription, including any Updates thereto.
1.14. “Service” or “Services” means
Professional Services and Support Services.
1.15. “Specification” means the functionality for the
Product as documented in the Product data sheet.
1.16. “Statement of Work” or “SOW” means
a document between Barracuda and Customer, describing Professional
Services, rates and timelines for those Professional Services.
1.17. “Subscription” means a license provided by Barracuda
for a Subscription Term under which Barracuda provides access to certain
features and functionality, as described in the Specification, which is
provided subject to the applicable Schedule, if any, and these General
1.18. “Subscription Term” means the length of time for
which a Subscription is purchased.
1.19. “Support Term” means the length of time for which
the Support Service is purchased.
1.20. “Support Services” means the maintenance and
technical support services provided by Barracuda with respect to each
Product, as described in Schedule 5
(“Support Services Terms”).
1.21. “Update” means minor enhancements, error corrections
and bug fixes to the Software.
Barracuda reserves the right to modify the Agreement at any time, in its
sole discretion, without liability to Customer. The Agreement, as amended,
will be effective upon use of the Products for all existing users
immediately after any amended terms are posted online. If Customer has signed up for email updates, Barracuda will provide email
notice to Customer of the update. Customer’s continued use of the Products
shall be deemed acceptance of the modified terms.
Orders and Statements of Work.
3.1. Orders. Products will only be provided to Customer after
Barracuda has received and accepted an Order for such Product. Orders are
not binding upon Barracuda until accepted in writing by Barracuda. All
Orders will be governed by this Agreement and are noncancelable and
nonrefundable after Delivery, except as set forth in Section 5.2
3.2. Statements of Work. Each Statement of Work is governed by this
Agreement. Barracuda will not be obligated to perform any Professional
Services until a Statement of Work describing those Professional Services
has been agreed upon by both parties or an Order listing those Professional
Services has been accepted by Barracuda in writing.
4.1. Fees and Expenses. If Customer purchases directly from
Barracuda, Customer will pay Barracuda the fees specified on the invoice
associated with each Order or Statement of Work (“Fees”).
If Customer purchases through a Barracuda authorized reseller, all fees and
other procurement and delivery terms shall be agreed upon between Customer
and the applicable reseller. Fees for usage in excess of amounts purchased
will be billed by Barracuda in the next billing cycle and Customer
acknowledges that such additional fees must be paid in accordance with the
4.2. Payment. If Customer purchases directly from Barracuda, payment
is due within thirty (30) days of the date of each invoice. Payment will be
made by credit card, wire transfer or another prearranged payment method
unless Barracuda has extended credit terms to Customer. All Fees described
in an Order or Statement of Work will be fully invoiced in advance, unless
otherwise agreed to in writing by Barracuda. If any payment is past due,
Barracuda may, without limiting any remedies available to Barracuda,
suspend performance until payment is made current. Customer will pay
interest on all delinquent amounts at the lesser of one and one half
percent (1.5%) per month or the maximum rate permitted by applicable law.
4.3. Increases. Barracuda reserves the right to increase prices for
Products at any time, provided however that any price increase for
Subscriptions, Hosted Services and Support Services will not go into effect
until the end of the then-current term, as applicable.
4.4. Taxes. All Fees are exclusive of all sales, use, excise, value
added, goods and services, withholding and other taxes, and all customs,
duties and tariffs now or hereafter claimed or imposed by any governmental
authority upon the sale or use of the Products, which shall be invoiced to
and paid by the Customer. If Customer is required by law to make any
deduction or withholding on any payments due to Barracuda, Customer will
notify Barracuda and will pay Barracuda any additional amounts necessary to
ensure that the net amount Barracuda receives, after any deduction or
withholding, equals the amount Barracuda would have received if no
deduction or withholding had been required. Additionally, Customer will
provide Barracuda with evidence, to the reasonable satisfaction of
Barracuda, showing that the withheld or deducted amounts have been paid to
the relevant governmental authority. For purposes of calculating sales and
similar taxes, Barracuda will use the address set forth on the Order or
Statement of Work, as applicable, for the jurisdiction to which Products
and shipments are delivered unless Customer has otherwise notified
Barracuda. Customer will provide tax exemption certificates or direct-pay
letters to Barracuda as applicable.
4.5. Payment Disputes. Customer must notify Barracuda of any billing
problems or discrepancies within sixty (60) days of the applicable
Barracuda invoice date. Customer must send such notification to Barracuda
as indicated in Section 21 (“Notices”). If Customer does not bring such
problems or discrepancies to Barracuda’s attention within such sixty (60)
day period, Customer agrees that it waives the right to dispute such
problems or discrepancies.
4.6. Offsets. Customer shall pay all amounts due and payable to
Barracuda under this Agreement to Barracuda in full without any setoff,
recoupment, counterclaim, deduction, debit or withholding for any reason
(other than any deduction or withholding of tax as may be required by
applicable law and in compliance with Section 4.4 (“Taxes”).
4.7. Import/Export Fees. Customer is responsible for any import or
export fees or duties associated with its purchase or use of the Products.
Title and Returns.
5.1. Title; Ownership.
5.1.1. Hardware. All Hardware is shipped from Barracuda’s designated
manufacturing facility or point of origin (Exworks origin) (Incoterms
2010). Title to such Hardware and the risk of loss of or damage to Hardware
shall pass to Customer at the time of shipment from Barracuda’s facility.
Barracuda is authorized to designate a carrier pursuant to Barracuda’s
standard shipping practices unless otherwise specified in writing by
Customer. Customer must provide written notice to Barracuda within ten (10)
days of Delivery of the Products of any non-conformity with the Order
(e.g., Delivery of the wrong Product or incorrect quantities). Partial
shipment is expressly permitted hereunder, and separate charges for
shipping and handling will be charged on Barracuda’s invoice.
5.1.2. Software. Barracuda retains right, title and ownership to all
Software, and Customer’s license and usage rights to Software as set forth
(“Software Use and Restrictions”).
5.1.3. Customer Data. “Customer Data” means all
data, including text, sound, video, or image files and software, that
Customer provides to Barracuda, or that is provided on Customer’s behalf.
Customer retains ownership of Customer Data at all times. Barracuda will
5.2. Returns. Customer may cancel all Orders for new Products (excluding renewals, upgrades and migrations) within thirty (30) days of the Effective Date of any Term or renewal term (“Cancellation Period”). After
the Cancellation Period, all Orders are non-cancellable and the Fees paid
to Barracuda are nonrefundable. Fees for installation or training provided
by Barracuda are non-cancellable and nonrefundable once performance
Third Party Products and Services.
Third party products or services may contain features designed to
interoperate with the Products. To use such features, Customer must obtain
access to such third-party apps from their respective providers. If
Customer chooses to utilize such third-party apps, the following terms
(i) All governing terms and conditions, including data processing terms,
shall be entered into between Customer and the applicable third-party app
(ii) Customer may be required to grant Barracuda access to Customer’s
account on such third-party apps;
(iii) Customer instructs Barracuda to allow the third-party app provider to
access Customer Data as required for interoperation with the Products; and
(iv) In the event the operation of a third party app requires the
processing of personal data to which the General Data Protection Regulation
(“GDPR”) applies in a country that does
not provide adequate data protection safeguards, then Customer and the
third party app provider must put in place an adequate data transfer
mechanism as set forth in Arts. 46 or 47 of the GDPR, including executing
appropriate Standard Contractual Clauses, as needed. Barracuda shall not be
responsible for any disclosure, modification or deletion of Customer Data
resulting from access by such third-party app providers. Third party app
providers do not operate as subprocessors to Barracuda. Barracuda is not
liable for, and does not warrant or support, any such third-party apps.
Barracuda cannot guarantee the continued availability of such third party
apps, and may cease providing them without entitling Customer to any
refund, credit or other compensation, if, for example, the provider of the
third-party app ceases to make its product or service available in a manner
acceptable to Barracuda.
If applicable, Professional Services will be provided in accordance with
these General Terms and
(“Professional Services Terms”).
Support Services and Product Upgrades.
8.1. Support Services.
8.1.1. Support Services Purchase. Support Services may be purchased
separately, or for Hosted Services, may be bundled into the price. Customer
is not entitled to Support Services until Barracuda receives payment in
full for such Support Services.
8.1.2. Support Services Entitlement. For Customers with active
Support Services, the following shall apply:
184.108.40.206. Support Services will only be available for the specific Product
for which the Support Services is purchased. Applying Updates or receiving
Support Services on systems where no valid entitlement has been purchased
is strictly forbidden and in violation of this Agreement.
220.127.116.11. For Hardware, Customer is entitled to receive replacement of
defective hardware as set forth in Schedule 5
(“Support Services Terms”).
18.104.22.168. For Software, Customer is entitled to Updates to Software.
Barracuda shall provide Customer with all Updates, without additional
charge, in accordance with Schedule 5
(“Support Services Terms”). Upon Delivery to Customer, each Update will
constitute Software and will thereafter be subject to and governed by this
Agreement, including without limitation the license and warranty terms.
22.214.171.124. Support Services for Software are required at all times for
continued access to the full functionality and proper operation of the
Product. Customer acknowledges that failure to pay for ongoing Support
Services will limit or degrade the functionality of the Products.
8.2. Upgrades. Upgrades are not included in Support Services, and
may be purchased separately from Barracuda.
9.1. Ownership of Barracuda Materials; Restrictions. All
Intellectual Property Rights in Barracuda Materials belong exclusively to
Barracuda and its licensors. Customer will not (and will not allow any
third party to): (i) disassemble, decompile, reverse compile, reverse
engineer or attempt to discover any source code or underlying ideas or
algorithms in any Barracuda Materials (except to the limited extent that
applicable law prohibits reverse engineering restrictions); (ii) sell,
resell, distribute, sublicense or otherwise transfer the Barracuda
Materials, or make the functionality of the Barracuda Materials available
to any other party through any means (unless Barracuda has provided prior
written consent); (iii) without the express prior written consent of
Barracuda, conduct any benchmarking or comparative study or analysis
involving the Barracuda Materials (“Benchmarking”) for any
reason or purpose except, to the limited extent absolutely necessary, to
determine the suitability of Products to interoperate with Customer’s
internal computer systems; (iv) disclose or publish to any third party any
Benchmarking or any other information related thereto; (v) use the
Barracuda Materials or any Benchmarking in connection with the development
of products, services or subscriptions that compete with the Barracuda
Materials; (vi) use any Barracuda trademarks for any purpose not expressly
granted by Barracuda in advance and in writing; or (vii) reproduce, alter,
modify or create derivatives of the Barracuda Materials.
9.2. Feedback. Customer hereby grants Barracuda a perpetual,
irrevocable, worldwide license to use any Feedback (as defined below) that
Customer communicates to Barracuda, without compensation, without any
obligation to report on such use, and without any other restriction.
Barracuda’s rights granted in the previous sentence include, without
limitation, the right to exploit Feedback in any and every way, as well as
the right to grant sublicenses. Notwithstanding the provisions of Section
12 (“Confidential Information”), Feedback will not be considered Customer’s
Confidential Information. “Feedback” refers to any
suggestion or idea for modifying any Products, including, without
limitation, all Intellectual Property Rights in and to any such suggestion
Waiver of Consequential Damages and Limitation of Liability.
10.1. WAIVER OF CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE
AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE PRODUCTS,
WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE (EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES).
10.2. LIMITATION OF LIABILITY. THE TOTAL AGGREGATE LIABILITY OF
BARRACUDA AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE
AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO
THE TOTAL AMOUNTS OWED OR PAID BY CUSTOMER FOR THE RELEVANT PRODUCTS DURING
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF
THE EVENTS GIVING RISE TO SUCH LIABILITY.
10.3. APPLICABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL
APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE;
(C) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES
IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (D) WHETHER THE
DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCTS, FROM
INABILITY TO USE THE PRODUCTS OR FROM THE INTERRUPTION, SUSPENSION, OR
TERMINATION OF THE PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY THIRD
PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED
THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE
MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN
PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE
UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE
Export and Compliance with Laws.
11.1.1. The Products, including technical data, are subject to U.S. export
control laws, including, but not limited to, the U.S. Export Administration
Act and its associated regulations, and may be subject to export or import
regulations in other countries. Customer agrees to strictly comply with all
such regulations and acknowledges that it has the responsibility to obtain
licenses to export, re-export or import Products. Barracuda provides
multiple versions of Products targeted for specific geographic regions.
11.1.2. Customer shall not: (a) permit any third party to access or use the
Products in violation of any U.S. law or regulation; (b) export the
Products or otherwise relocate them unless such export and/or relocation is
in full compliance with all applicable local and U.S. laws and regulations.
Without limiting the foregoing, Customer shall not permit any third party
to access or use the Products in, or export it to, a country subject to a
United States embargo (currently, Cuba, Iran, North Korea, Sudan, the
Crimea Region in the Ukraine and Syria); or (c) authorize the relocation of
the Products to a prohibited entity, territory or country, or take any
action otherwise in violation of any applicable restrictions or
11.2. Compliance with Laws. Customer agrees to comply with all
applicable laws related to its performance of the obligations set forth in
this Agreement, including, but not limited to, any applicable privacy laws.
11.2.1 If Customer is a United States Government agency, the Products and
Documentation qualify as “commercial items”, as that term is defined at
Federal Acquisition Regulation (“FAR”) (48 C.F.R. 2.101), consisting of
“commercial computer software” and “commercial computer software
documentation” as such terms are used in FAR 12.212. Consistent with FAR
12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding
any other FAR or other contractual clause to the contrary in any agreement
into which this Agreement may be incorporated, Government end user will
acquire the Products and Documentation with only those rights set forth in
this Agreement. Use of either the Products or Documentation or both
constitutes an agreement by the Government that the Products and
Documentation are “commercial computer software” and “commercial computer
software documentation”, and constitutes acceptance of the rights and
11.2.2. The Products are provided with Restricted Rights. Use, duplication
or disclosure for or by the government of the United States, including
without limitation any of its agencies or instrumentalities, is subject to
restrictions set forth, as applicable: (i) in subparagraphs (a) through (d)
of the Commercial Computer Software-Restricted Rights clause at FAR
52.227-19; or (ii) in similar clauses in other federal regulations,
including the NASA FAR supplement. The contractor or manufacturer is
Barracuda. Customer shall not remove or deface any restricted rights notice
or other legal notice appearing on the Products or on any packaging or
other media associated with the Products.
12.1. Definition. “Confidential Information” refers
to the following information disclosed by one party (“ Discloser”) to the other (“Recipient”):
(a) any document Discloser marks as “Confidential” or “Proprietary”; (b)
any information Discloser orally designates as being “Confidential” at the
time of disclosure, or which given the circumstances of the disclosure and
the nature of the information would reasonably be considered confidential;
(c) the non-public features and functions of the Products, Barracuda’s
price lists, technology, trade secrets, marketing strategies, customer
lists, mail lists and information concerning the design or methods of
manufacture of the Products, for which Barracuda is Discloser; (d) this
Agreement; and (e) any other nonpublic, sensitive information disclosed by
Discloser. Notwithstanding the foregoing, Confidential Information does not
include information that: (i) is in Recipient’s possession at the time of
disclosure and not in violation of any confidentiality obligations; (ii)
becomes known publicly, before or after disclosure, other than as a result
of Recipient’s improper action or inaction; or (iii) is approved for
release in writing by Discloser.
12.2. Maintenance of Confidentiality. Each party agrees that it
shall: (i) take reasonable measures to protect the Confidential Information
by using the same degree of care, but no less than a reasonable degree of
care, to prevent the unauthorized use, dissemination or publication of the
Confidential Information as the Recipient uses to protect its own
confidential information of a similar nature; (ii) limit disclosure to
those persons within Recipient’s organization who have a clear and
well-defined “need to know” and who have previously agreed in writing to
obligations at least as stringent as the provisions hereof, either prior to
receipt of Confidential Information as a condition of their employment or
in order to obtain the Confidential Information; (iii) not copy, reverse
engineer, disassemble, create any works from, or decompile any prototypes,
Products or other tangible objects which embody the other party’s
Confidential Information and/or which are provided to the party hereunder;
and (iv) comply with, and obtain all required authorizations arising from,
all U.S. and other applicable export control laws or regulations.
Confidential Information shall not be used or reproduced in any form except
as required to accomplish the purposes and intent of an Order or Statement
of Work. Any reproduction of Confidential Information shall be the property
of Discloser and shall contain all notices of confidentiality contained on
the original Confidential Information.
12.3. Exceptions. The parties agree that the foregoing shall not
apply to any information that Recipient can prove, through written
evidence: (i) is or becomes publicly known and made generally available
through no improper action or inaction of Recipient; (ii) was already in
its possession or known by it prior to disclosure by Discloser to
Recipient; (iii) is independently developed by Recipient without use of, or
reference to, any of Discloser’s Confidential Information; or (iv) was
rightfully disclosed to it by, or obtained from, a third party without an
obligation of confidentiality. Recipient may make disclosures required by
law or court order provided that Recipient: (a) uses diligent efforts to
limit disclosure and to obtain, if possible, confidential treatment or a
protective order; (b) has, to the extent legally permissible, given prompt
advance notice to Discloser of such required disclosure.
12.4. Injunction. Recipient agrees that breach of this Section 12
would cause Discloser irreparable injury, for which monetary damages would
not provide adequate compensation, and that in addition to any other
remedy, Discloser will be entitled to seek injunctive relief against such
breach or threatened breach, without proving actual damage or posting a
bond or other security.
12.5. Return of Confidential Information. With respect to each item
of Confidential Information, the obligations of Section 12.2 (“Maintenance
of Confidentiality”) will terminate five (5) years after the date of
disclosure. Upon termination of this Agreement, Recipient shall return all
copies of Confidential Information to Discloser or certify, in writing, the
destruction thereof. Where permissible by law, Recipient may retain one
copy of all written materials returned to provide an archive record of the
disclosure, which remains subject to the confidentiality terms of this
12.6. Retention of Rights. This Agreement does not transfer
ownership of Confidential Information or grant a license thereto. Discloser
will retain all right, title and interest in and to all of its Confidential
12.7. Collection of Customer Data. Customer agrees
to allow Barracuda to collect Customer Data from its Products in order to
enhance its security products and to optimize and monitor the performance
of the Product. Customer Data will be collected electronically and
automatically. Customer Data will be kept private and will only be reported
by Barracuda in the aggregate.
Term, Termination, and Survival.
13.1. Term. This Agreement will become effective on the Effective
Date and will continue in effect for such time as Customer maintains use or
possession of Products.
13.2. Termination for Cause. Either party may terminate this
Agreement upon written notice of a material breach by the other party
subject to a thirty (30) day cure period (“Cure Period”).
If the breaching party has failed to cure the breach within the Cure Period
after receipt by the breaching party of written notice of such breach, the
non‑breaching party may terminate this Agreement. This Agreement may be
automatically terminated by Barracuda in the event Customer has breached
any license restriction and, in Barracuda’s determination, that breach
cannot be adequately cured within the Cure Period.
13.3. Support Services. Support Services will begin on the date of
Delivery of the Products, and will continue in effect for the duration of
the Support Term. Support Services will automatically renew at the end of
any Support Term, at the then-current price, for an additional period equal
to the length of the prior Support Term. Either party may provide
notification of its intention to not renew at least sixty (60) days prior
to the expiration of the then-current Support Term. Customer may terminate
Support at any time, for its convenience, on thirty (30) days’ prior
written notice to Barracuda; provided, however, that no refund shall be
owed and Customer is obligated to pay any remaining Fees owing for the
remainder of the then-current Support Term within thirty (30) days of the
effective date of the termination.
13.4. Subscriptions. The term of each Subscription will begin on the
date of Delivery of the Products, and will continue in effect for the
duration of the Subscription Term. Subscriptions will automatically renew
at the end of any Subscription Term, at the then-current price, for an
additional period equal to the length of the prior Subscription Term.
Either party may provide notification of its intention to not renew at
least sixty (60) days prior to the expiration of the then-current
Subscription Term. Customer may terminate a Subscription at any time, for
its convenience, on thirty (30) days’ prior written notice to Barracuda;
provided, however, that no refund shall be owed and Customer is obligated
to pay any remaining Fees owing for the remainder of the then-current
Subscription Term within thirty (30) days of the effective date of the
13.5. Hosted Services. The term of each Hosted Service will begin on
the date of Delivery, and will continue in effect for the duration of the
Hosted Service Term. Hosted Services will automatically renew at the end of
any Hosted Service Term, at the then-current price, for an additional
period equal to the length of the prior Hosted Service Term. Either party
may provide notification of its intention to not renew at least sixty (60)
days prior to the expiration of the then-current Hosted Service Term.
Customer may terminate a Hosted Service at any time, for its convenience,
on thirty (30) days’ prior written notice to Barracuda; provided, however,
that no refund shall be owed and Customer is obligated to pay any remaining
Fees owing for the remainder of the then-current Hosted Service Term within
thirty (30) days of the effective date of the termination.
13.6. Professional Services; Statements of Work. The term of each
SOW will be as set forth in the applicable SOW. If no term is expressed in
a SOW, then the term of that SOW will begin upon commencement of the
Professional Services and will continue until the Professional Services
described in that SOW are complete or the SOW is earlier terminated as set
forth herein. Unless otherwise stated in a SOW, Customer may terminate a
SOW at any time for its convenience by providing at least thirty (30) days’
prior written notice to Barracuda; provided, however, that no refund will
be owed and Customer is obligated to pay any amounts owing for Professional
Services and Deliverables provided or performed under that SOW up to and
including the date of termination.
13.7. Effect of Termination. Except for termination of this
Agreement by Barracuda for Customer’s breach, no termination of this
Agreement shall impact any active Subscription, Hosted Service, Support
Services or SOW that extends beyond such termination, and this Agreement
shall continue to govern and be effective until expiration or termination
of such Subscription, Hosted Service, Support Services or SOW. The
provisions of Section 4 (“Payment Terms”), Section 10 (“Waiver of
Consequential Damages and Limitation of Liability”), Section 11 (“Export
and Compliance with Laws”), Section 12 (“Confidential Information”),
Section 14 (“Governing Law, Venue and Dispute Resolution”), and Schedule 2
(“Limited Warranty”) and any other terms which by their nature should
survive termination shall survive termination of this Agreement.
Governing Law, Venue and Dispute Resolution.
14.1. GOVERNING LAW AND VENUE. THESE TERMS AND THE USE AND PROVISION
OF PRODUCTS WILL BE GOVERNED SOLELY BY THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REFERENCE TO: (A) ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD APPLY
THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION TO THE PARTIES’ RIGHTS OR
OBLIGATIONS; (B) THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS; OR (C) OTHER INTERNATIONAL LAWS. THE PARTIES
CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE
COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
14.2. DISPUTE RESOLUTION
. IF CUSTOMER LIVES IN THE UNITED STATES, THIS SECTION CONTAINS A
BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS
CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE CUSTOMER MAY
HAVE WITH BARRACUDA. PLEASE READ IT CAREFULLY.
The parties will attempt to resolve any claim, dispute or controversy
(whether in contract, tort or otherwise) against Barracuda, its agents,
employees, successors, assigns or affiliates (collectively for purposes of
this paragraph, “Barracuda”) arising out of or relating to this Agreement,
the Barracuda Materials, Barracuda advertising, or any related purchase (a
“Dispute”) through face to face negotiation with persons
fully authorized to resolve the Dispute or through mediation utilizing a
mutually agreeable mediator, rather than through litigation. If the parties
are unable to resolve the Dispute through negotiation or mediation within a
reasonable time after written notice from one party to the other that a
Dispute exists, the Dispute will be settled by binding arbitration in
accordance with the then current CPR Rules for Non-Administered
Arbitration. The Arbitration will be conducted before one (1) independent
and impartial arbitrator. The arbitration hearing shall take place in
Cupertino, California and will be governed by the United States Federal
Arbitration Act to the exclusion of any inconsistent state laws. The
arbitrator shall base his or her award on the terms of this Agreement and
will follow the law and judicial precedents that a United States District
Court Judge sitting in the county of Santa Clara, California would apply to
the Dispute. The arbitrator shall render his or her award in writing and
will include the findings of fact and conclusion of law upon which his or
her award is based. Judgment upon the arbitration award may be entered by
any court of competent jurisdiction. The existence, content and results of
any negotiation, mediation or arbitration will be treated as confidential.
Notwithstanding the foregoing, either party will have the right to obtain
from a court of competent jurisdiction a temporary restraining order,
preliminary injunction or other equitable relief to preserve the status quo
or prevent irreparable harm, although the merits of the underlying Dispute
will be resolved in accordance with this paragraph.
THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS
AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A
PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION
PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE
PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A
REPRESENTATIVE OR CLASS PROCEEDING.
Permission to Use Logo.
Customer grants Barracuda permission to use Customer’s name and/or logo on
the Barracuda website, or any other marketing material when referring to
Customer. Customer will retain all title and rights in its name and logos.
Changes to Products.
Barracuda reserves the right at any time to modify, suspend or discontinue
providing the Products or any part thereof and to alter prices, features,
Specifications, capabilities, functions, licensing terms, release dates,
general availability or other characteristics of any future releases in its
sole discretion, without prior notice.
Relationship of the Parties.
The parties intend that the relationship created between them by virtue of
this Agreement shall be that of an independent contractor, and nothing
herein shall be construed to create an agency, joint venture, partnership
or other form of business association between them. Barracuda and its
agents, employees and servants shall not be deemed to be an employee, agent
or servant of Customer or its affiliated entities, if any. Barracuda is not
to be considered an agent or employee of Customer for any purpose, and none
of the benefits provided by Customer or its employees are available to
Barracuda or Barracuda’s employees, agents or servants. Barracuda shall be
solely and entirely responsible for Barracuda’s acts and for the acts of
Barracuda’s agents, employees, servants and subcontractors during the
performance of this Agreement.
The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and this Agreement
will not be construed in favor of or against either party by reason of
authorship. The headings herein are for convenience only, do not constitute
a part of this Agreement and shall not be deemed to limit or affect any of
the provisions hereof.
Except with respect to payment of Fees, neither party shall be liable for
any failure to timely perform any of its obligations under this Agreement
if such failure is caused by the occurrence of any event beyond the
reasonable control of such party, including, without limitation, fire,
flood, strikes, hurricanes, and other industrial disputes, failure of raw
material, failure of transport, accidents, wars, riots, insurrections, acts
of God or orders of any government department or agency.
In the event that a provision of this Agreement is held to be invalid or
otherwise unenforceable, such provision will be interpreted to fulfill its
intended purpose to the maximum extent permitted by applicable law, and the
remaining provisions of this Agreement will continue in full force and
Barracuda may send notices pursuant to this Agreement to Customer’s email
contact points provided by Customer, and such notices will be deemed
received 24 hours after they are sent. Customer may send notices pursuant
to this Agreement to Barracuda at 3175 South Winchester Blvd., Campbell, CA
95008, Attn: Legal Department, and such notices will be deemed received 72
hours after they are sent.
Entire Agreement, Waiver and Assignment.
22.1. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes and replaces all prior or contemporaneous understandings or
agreements, written or oral. If any term or condition in this Agreement
conflicts with any term or condition in any Order, invoice or similar
supplementary document submitted by Customer, the term or condition set out
in this Agreement shall prevail. Unless otherwise expressly and mutually
agreed in writing by the parties, under no circumstances shall any Order,
invoice or similar supplementary document issued by Customer in connection
with the Products supersede the terms of this Agreement. Any such
documentation shall be solely for Customer’s internal business purposes,
and in no event shall any terms and conditions, or other charges of any
such document modify or become a part of this Agreement or become binding
on Barracuda, even if signed by Barracuda.
22.2. Waiver. Neither party will be deemed to have waived any of its
rights under this Agreement by lapse of time or by any statement or
representation other than by an authorized representative in an explicit
written waiver. No waiver of a breach of this Agreement will constitute a
waiver of any other breach of this Agreement.
22.3. Assignment. Customer may not assign or transfer any of its
rights or obligations under this Agreement without Barracuda’s prior
written consent. Barracuda may freely assign its rights and obligations
under this Agreement. Any attempted assignment or transfer in violation of
the foregoing will be void. Except to the extent forbidden in this section,
this Agreement will be binding upon and inure to the benefit of the
parties’ respective successors and assigns.
Revised: September 22, 2020