IF YOU LIVE IN THE UNITED STATES, THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE WITH BARRACUDA. PLEASE READ IT CAREFULLY.
Terms and Conditions
These Terms and Conditions (the “Terms” or “Agreement”) for Barracuda products (“Product” or Products”) and services (“Services”) are a legal agreement between you, either as an individual or a legal entity (“Customer”), and Barracuda Networks, Inc. (“Barracuda”). This Agreement only applies to the extent Customer does not have a master agreement in place with Barracuda. Where a master agreement is in place between Customer and Barracuda, such agreement governs and controls Customer’s purchase and use of the applicable Products and Services.
These Terms, along with any other policies and documents referenced herein, govern Customer’s purchase and use of the Products and Services. Customer’s use of the Products or Services constitutes its binding legal agreement to these Terms, which are subject to change at any time by Barracuda.
If Customer is not legally able to be bound by these Terms or does not want to consent to these Terms, Customer’s use of the Products and Services is strictly prohibited.
Barracuda reserves the right at any time to modify these Terms in its sole discretion, without liability to Customer. This Agreement, as amended, will be effective upon use of the Products or Services for all existing users immediately after any amended terms are posted online at https://www.barracuda.com. Customer agrees to be bound by this Agreement, as modified. If Customer does not agree to any changes to the Terms, it must stop using the Products or Services and terminate its account immediately. It is incumbent upon Customer to check for any amendments to these Terms and review the most current version of this Agreement from time to time so that it will be apprised of any changes.
Relationship to Other Agreements.
If the cloud version of a Product is purchased, Customer must comply with the Barracuda Cloud Usage Terms, located at https://www.barracuda.com/legal/cloud-service-terms.
Software is provided in accordance with the then-current terms of the applicable Barracuda Software License Agreement, located at https://www.barracuda.com/legal/software-license-agreement.The terms for the applicable Software License (“License”) will be those designated for the Product or Service set forth on the order. Customer agrees that it is bound by the terms of the applicable License.
Use of Barracuda Products and Services. The Products and Services are made available to Customer only for internal business use and not for resale, unless Customer is a legal and authorized reseller of Barracuda Products and Services, pursuant to a contract executed by both parties stating Customer is an authorized reseller. Customer agrees and understands that the license for the software included in the Products is non-transferable and may not be sold or transferred in any way. Such use must also comply with all applicable Barracuda policies and all laws, rules and regulations, and must not infringe or violate the rights of third parties. Customer may not sell, license, provide services or distribute the Products or Services, or any part thereof, to any third party.
Scope of Services. Subject to Customer’s payment of Fees and Customer’s compliance with these Terms, Barracuda agrees to provide Customer with the Products or Services as set forth in the PhishLine Order Form document (“Order Form”) in accordance with this Agreement. If an Order Form includes managed services, Barracuda shall conduct Security Campaigns on Customer’s behalf for the number of Recipients set forth in the applicable Order Form. “Security Campaign” shall mean a set of electronic messages that may involve sending training, surveys, announcements or phishing-style messages to Customer designated recipients. All recipients shall be Customer employees.
Returns. Customer may cancel all purchase orders for Product and Services (excluding renewals) within thirty (30) days of delivery of software from Barracuda (“Cancellation Period”). After the Cancellation Period, all Order Forms are non-cancellable, and the fees paid to Barracuda for Products or Services are nonrefundable. Fees for installation or training provided by Barracuda are non-cancellable and nonrefundable once performance commences.
Customer shall pay the total purchase price as specified in the invoice.
Customer acknowledges that the reoccurring amount billed each period may vary for reasons that include differing amounts due to promotional offers, differing amounts due to changes in Customer’s account or changes in the amount of applicable sales tax. Customer authorizes Barracuda to bill for such varying amounts. All reoccurring fees and charges are non-cancelable and nonrefundable, and no credits will be given for partially used periods.
Payment Terms, Disputes and Offsets.
Payment will be made by credit card, wire transfer or another prearranged payment method unless Barracuda has agreed to credit terms.
When credit is provided, payments are due Net 30 days from the date of the invoice. Orders are not binding upon Barracuda until accepted in writing by Barracuda.
Any payment not received from Customer by the due date shall accrue (except with respect to charges then under a reasonable and good faith dispute) at the lower of one and a half percent (1.5%) of the outstanding balance per month (being 18% per annum) or the maximum allowed by law, from the date such payment is due until the date paid. Customer also agrees to pay all sums expended (including reasonable legal fees) incurred by Barracuda in collecting overdue payments. If Customer continues to not make payment for thirty (30) days following written notice thereof, Barracuda may: (i) disable Customer’s use of the Product or Service; (ii) withhold, suspend or revoke its grant of any software license; and/or (iii) terminate this Agreement.
Customer must notify Barracuda of any billing problems or discrepancies within sixty (60) days after they first appear on Customer’s statement from its bank, credit card company or other billing company. Customer must send such notification to Barracuda in accordance with Section 24 (“Notices”). If Customer does not bring such problems or discrepancies to Barracuda’s attention within the sixty (60) day period, Customer agrees that it waives the right to dispute such problems or discrepancies.
Customer shall pay all amounts 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.
Taxes and Duties.
Customer shall be responsible for all sales, use, withholding, value added and any other taxes imposed by any federal, state, provincial or local governmental entity or any other governmental entity on the purchase of Products and/or Services, excluding taxes based on Barracuda’s net income.
Customer is responsible for any import or export fees or duties associated with its use of the Products or Services.
Support and Renewals.
Barracuda will provide support to Customer in accordance with the then-current Barracuda support policies and conditions in effect. Barracuda will attempt to handle any problem involving Products or Services over the telephone or email. However, Barracuda’s support personnel and providers may not be able to understand or resolve any given problem.
Barracuda may, at its discretion, revise its support programs and the terms and conditions that govern them. The support programs and their terms and conditions in place at the time of purchase will apply to Customer’s purchase through the end of the then-current term.
Barracuda has no obligation to provide support until Barracuda has received full payment for the Products and Services that Customer purchased.
The support period start date will be the earlier of (i) use by Customer; or (ii) thirty (30) days after the Product or Service has been made available to Customer.
Customer agrees that Barracuda shall have the right to, automatically and without notice, renew and invoice any subscription upon expiration of the subscription. The subscription start date will begin upon expiration of the prior subscription term, and Customer will be responsible for all renewal subscription fees from the previous subscription expiration date.
Intellectual Property Ownership.
Customer acknowledges that Barracuda or its licensors own all right, title and interest in and to the Products (including software) and Services and content provided through or in conjunction with the Products and Services, including, without limitation, all intellectual property rights. Except for the license granted in these Terms, all rights in and to the Products and Services are reserved and Barracuda grants no implied licenses.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS THIS SECTION, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, FREEDOM FROM ERRORS, VIRUSES, BUGS, OR OTHER HARMFUL COMPONENTS, ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF BARRACUDA’S PRODUCTS OR SERVICES OR ANY INFORMATION OBTAINED FROM OR PROVIDED BY BARRACUDA OR THAT BARRACUDA’S PRODUCTS OR SERVICES WILL BE ERROR FREE. BARRAUCDA DOES NOT GUARANTEE THE QUALITY OR CONDITION OF THE PRODUCTS AND SERVICES AND DOES NOT GUARANTEE THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE ONE HUNDRED PERCENT (100%) OF THE TIME.
THIS WARRANTY WILL BE EFFECTIVE, AND BARRACUDA WILL BE OBLIGATED TO HONOR THE WARRANTY, ONLY UPON BARRACUDA’S RECEIPT OF PAYMENT IN FULL FOR THE ITEM TO BE WARRANTED.
Term, Termination and Survival
Term. This Agreement is effective upon purchase or use of the Product or Service, and, unless earlier terminated, remains in effect until Customer no longer utilizes the Product or Service.
Termination. Barracuda may terminate this Agreement for Customer’s breach, which Customer fails to cure within thirty (30) days of written notice by Barracuda. Barracuda may terminate this Agreement immediately for Customer’s breach of Section 15 (“Confidential Information”).
Customer agrees that, upon termination, Customer will immediately discontinue all use of the Products and Services and that it is not entitled to any refund of prepaid fees.
Survival. The terms of this Agreement that by their nature extend beyond termination, including Payment, Warranty, Limitation of Liability, Indemnification, Governing Law, Dispute Resolution and Venue, shall survive termination of this Agreement.
Collection of Customer Data. Customer agrees to allow Barracuda to collect information (“Statistics”) from their Products or Services in order to fight spam, viruses and other threats as well as to optimize and monitor the Products and Services. Statistics will be collected electronically and automatically. Statistics include, but are not limited to, the number of messages processed, the number of messages that are categorized as spam, the number of virus and types, IP addresses of the largest spam senders, the number of emails classified for Bayesian analysis, the number and types of attacks seen and blocked, bandwidth used, CPU and RAM usage, network interface utilization, and IP addresses of attackers and other statistics. Statistics will be kept private and will only be reported by Barracuda in the aggregate.
Export and Compliance with Laws.
Export. The Products, Services and software, 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 comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Products, Services or software. Barracuda provides multiple versions of Products and Services targeted for specific geographic regions.
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.
Confidential Information. Each party may, from time to time, divulge confidential information and proprietary trade and/or manufacturing secrets to the other party. The receiving party shall preserve in strict confidence any confidential or proprietary information obtained concerning the business or affairs of the disclosing party and its affiliated entities, including, but not limited to, this Agreement, trade secrets, technology, Barracuda’s price list(s), marketing strategies, customer lists, mail lists and information concerning the design or methods of manufacture of the Products and Services (“Confidential Information”), and shall refrain from disclosing, during the term of this Agreement or at any time thereafter, any such information to any person or persons, natural or corporate, except as expressly provided herein. The receiving party agrees, with respect to Confidential Information disclosed hereunder, to use the same degree of care that it uses to prevent the disclosure of its own similar information, but in no event less than reasonable care. The receiving party may only use Confidential Information for the purpose of fulfilling its obligations hereunder and shall disclose the Confidential Information only to its own employees and to its attorneys, accountants and other professional advisors, in each case who have a need to know and who have agreed in writing to terms at least as stringent as the confidentiality terms in this Agreement to maintain such Confidential Information in confidence. The receiving party shall be liable for a breach of this section by any person or entity to whom it discloses Confidential Information. The receiving party shall not have any obligation to protect Confidential Information which (i) was in the receiving party’s possession prior to receipt from the disclosing party; (ii) is, or becomes, a matter of public knowledge through no act, omission or fault of the receiving party; or (iii) is disclosed by the receiving party with the written permission of the disclosing party.
Waiver of Consequential Damages and Limitation of Liability.
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 OR SERVICES, 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).
LIMITATION OF LIABILITY.
LIMITATION OF LIABILITY. WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF BARRACUDA AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED (i) U.S. $25.00 IF NO AMOUNT HAS BEEN PAID BY CUSTOMER TO BARRACUDA; OR (ii) THE AMOUNT PAID BY CUSTOMER IN THE THREE-MONTH PERIOD IMMEDIATELY PRIOR TO THE CLAIM.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCTS OR SERVICES, FROM INABILITY TO USE THE PRODUCTS OR SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCT OR SERVICES (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 BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DEATH OR BODILY INJURY OR THE LIMITATIONS ABOVE AND IN THOSE JURISDICTIONS, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
Indemnification. Customer agrees to defend, indemnify, release and hold Barracuda harmless as well as its shareholders, officers, directors, agents, representatives, employees and third-party licensors from any and all claims, liabilities, losses, expenses or demands, including reasonable legal fees, based on, arising from, or otherwise related to (a) Customer’s breach or violation of these Terms; (b) Customer’s access or use of the Web Site, or any of the information, materials, Products or Services made available on or through the Web Site, in violation of the these Terms; (c) any infringement or misappropriation by Customer of any intellectual property or other rights of Barracuda or any third party; or (d) any negligence or willful misconduct by Customer.
Governing Law, Venue and Dispute Resolution.
GOVERNING LAW AND VENUE. THESE TERMS AND THE USE OF THE PRODUCT AND SOFTWARE WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
DISPUTE RESOLUTION. IF YOU LIVE IN THE UNITED STATES, THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE WITH BARRACUDA. PLEASE READ IT CAREFULLY.
Permission to Use Logo. Customer grants permission to Barracuda to use Customer’s logo on the Barracuda website, or any other marketing material when referring to Customer. Customer will retain all title and rights to such logos.
Changes to Products and Services. Barracuda reserves the right at any time to modify, suspend, or discontinue providing the Products or Services, or any part thereof, in its sole discretion, without prior notice. Any discontinuation of service will be coterminous with the end of any prepaid term.
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.
Force Majeure. Except for payment obligations, neither party hereto shall be liable for any failure to timely perform 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, 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.
Severability. If any term or condition of this Agreement is held void or unenforceable, it shall be severed, and every other provision shall be enforced as if the void or unenforceable term or condition had never been a part hereof.
Notices. 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 and Assignment.
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, regarding the Products and Services. Barracuda’s failure to enforce a provision is not a waiver of its right to do so later. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Barracuda.
Assignment. Customer may not assign or transfer any of its rights or obligations under this Agreement. Barracuda may freely assign its rights and obligations under this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void.
IF CUSTOMER HAS PURCHASED A LICENSE TO TRAINING, THE FOLLOWING ADDITIONAL TERMS ALSO APPLY:
Definition of Barracuda Materials. “Barracuda Materials” shall mean the training materials, videos, presentations, reports or other content developed and owned by Barracuda and licensed to Customer as set forth in an Order Form; any modifications, updates, enhancements or derivative works based on or incorporating such content created by Barracuda or Customer in accordance with the Agreement; or any portion of the preceding.
License Grants and Restrictions.
Use of Barracuda Materials. Subject to the restrictions and limitations contained in this Agreement, the Product license granted by Barracuda to Customer in the Agreement shall include a license to use the Barracuda Materials for Customer’s own internal business training purposes during the Initial Term, and any subsequent Renewal Terms, as defined in the Order Form.
Modifications and Derivative Works. Customer shall not have the right to utilize the Barracuda Materials to modify or create its own custom training materials including, but not limited to, combining Barracuda Materials with content developed by Customer or another third party.
Restrictions. Customer expressly acknowledges and agrees that its license for the use of the Barracuda Materials is intended for Customer’s own internal training and business purposes. This use includes all Customer affiliated companies. Customer shall not use the Barracuda Materials to provide consulting services to any third party, operate as an independent contractor or service bureau to any third party, certify any third party, or otherwise sell, license, sublicense, disseminate, disclose or otherwise make public the Barracuda Materials to any third party.
No Circumvention. Customer acknowledges and agrees that the intent of the license granted in the Agreement is to enable Customer to train its own employees and contract personnel. Accordingly, Customer agrees that it will not use, or knowingly allow others to use, the Barracuda Materials for the purpose of creating similar training materials or programs, and Customer shall not furnish any information, data or copies of Barracuda Materials to any third party to assist in the creation or design of training materials or programs.
Trademark and Copyright Notices and Disclaimers. In using the Barracuda Materials, Customer will ensure that it identifies Barracuda as the owner of the Barracuda Materials and Customer shall not remove, cover up or alter any trademark, trademark notice, copyright notice or other similar disclaimer; and that Customer is using the Barracuda Materials under license from Barracuda. All rights not expressly granted herein are reserved by Barracuda.
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 relation to this Agreement, the Products or Services, 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 or 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 CLAIM(S), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
IF CUSTOMER HAS LICENSED THE PHISHLINE OUTLOOK PLUGIN, THE FOLLOWING ADDITIONAL TERMS ALSO APPLY:
License Grant. Barracuda grants to the Customer a non-exclusive, perpetual, limited license to “Use” the PhishLine Plugin. “Use” means storing, copying, loading, installing, executing, modifying or displaying the PhishLine Plugin on an unlimited number of computers solely for Customer’s own internal business purposes. Customer acknowledges and agrees that Barracuda shall not have any duty or obligation to provide Customer with any updates, modifications, bug fixes or support with respect to the PhishLine Plugin.
Restrictions. Customer may not disable any licensing or control features of the PhishLine Plugin. Customer shall only access the source code for the PhishLine Plugin for the limited purpose of testing and inspecting the operation of the Plugin. Except for open source code used in connection with the installation kit for the PhishLine Plugin, Customer acknowledges that the source code for the PhishLine Plugin, and any modifications made to the PhishLine Plugin source code by Customer, shall be and remain proprietary and confidential to Barracuda. Customer shall not transfer, disclose or otherwise provide any third party with copies of the PhishLine Plugin or any modifications to the PhishLine Plugin source code.
Ownership. Apart from open source code used in connection with the installation kit, the PhishLine Plugin is owned and copyrighted by Barracuda. The license set forth in this Agreement does not grant Customer any rights, title or ownership in or to the PhishLine Plugin. This Agreement shall not constitute a sale of any rights in the PhishLine Plugin.
IF CUSTOMER HAS LICENSED SIMPLE MESSAGE SERVICES (SMS), THE FOLLOWING ADDITIONAL TERMS ALSO APPLY:
If Customer contracts with Barracuda to provide Products or Services that utilize SMS/texting, automated or manual telephone calls, or similar telecommunications technology, Customer shall be solely responsible for obtaining prior approval from the owner of any device that may receive such messages from Barracuda in strict compliance with the Telephone Consumer Protection Act of 1991 (TCPA) or any similar law or regulation in any country; and Customer shall be solely responsible for, and shall indemnify Barracuda from, any charges or fees charged by any carrier to Customer or the device owner.