IF YOU LIVE IN THE UNITED STATES, THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH BARRACUDA. PLEASE READ IT CAREFULLY.
Professional Services Terms and Conditions
These Terms and Conditions (the “Terms” or “Agreement”) for Barracuda Professional Services (“Professional Services”) are a legal agreement between you, either as an individual or a legal entity (“Customer”), and Barracuda Networks, Inc. (“Barracuda”).
- Rates and Payment. Barracuda will provide to Customer product consulting, installation or configuration services, as defined herein (the “Professional Services”). The Professional Services will be billed on a time and materials basis at the rate set forth in the applicable Statement of Work (“SOW”). If an hourly rate is specified, Customer will pay for each hour of Professional Services or portion thereof. If a flat rate is specified, Customer will pay at the rate specified in the applicable SOW. In addition to labor fees, Customer is responsible for all travel and out-of-pocket expenses related to the Professional Services. Travel expenses include: lodging, train fare, airfare, parking, tolls and mileage. Shipping expenses, if any, are the sole responsibility of Customer. Shipping expenses include: freight charges from Barracuda to the staging area, freight charges from the staging area to the Customer site, overnight courier charges for replacement components, cables, etc. Professional Services may be provided in a number of ways including on-site, telephone, and/or remote support. The Professional Services may include work performed on Barracuda equipment or third party equipment. Barracuda will submit invoices for Professional Services fees upon completion of the Professional Services. Payment on each invoice is due within thirty (30) days of the date of such invoice. Barracuda will have the right to use subcontractors to perform all or part of the Professional Services, as it deems appropriate.
- Change Orders. In order to add or change any terms or conditions of this Agreement, a written change order signed by both parties (“Change Order”) is required. Barracuda will prepare all Change Orders. The parties must mutually agree to all Change Orders. Pending such agreement, Barracuda will continue to perform and be paid as if such Change Order had not been requested or recommended.
- Deliverables and Acceptance. For purposes of this Agreement, the term “Deliverables” means the tangible results of the Professional Services. Upon completion of the Professional Services, Customer shall have five (5) days to verify that the Professional Services and Deliverables provided substantially conform to these Terms. Customer must notify Barracuda of its non-acceptance within such five (5) day period. Any notification of non-acceptance will include a reasonably detailed description of the reasons for such non-acceptance. Barracuda shall have thirty (30) days from the date of such notification to rectify the problem, following which Customer shall have another five (5) day period to review the applicable Professional Services or Deliverables. In the event that Customer either (a) does not notify Barracuda of any non-acceptance during the relevant five (5) day period, or (b) confirms its acceptance of the applicable Professional Services or Deliverables, in writing within the relevant five (5) day period, the applicable Professional Services or Deliverables shall be deemed accepted. Notwithstanding the foregoing, the acceptance criteria or procedures for Deliverables set forth in any SOW will only apply to the Professional Services provided.
- License and Ownership. Upon Customer’s acceptance of a Deliverable and receipt by Barracuda of payment in full, Barracuda grants Customer a non-exclusive, perpetual, non-transferable license to use such Deliverable solely for its own internal purposes. Customer’s license confers no title or ownership in the Deliverable and will not be construed as a sale of any rights in the Deliverable or the media on which it is recorded or printed. All copyrights and other intellectual property rights existing prior to the date of performance of Professional Services shall belong to the party that owned such rights immediately prior to the date of performance of Professional Services. Neither party shall gain, by virtue of this Agreement, any rights of ownership, patents, trade secrets, trademarks or any other intellectual property rights owned by the other. Barracuda shall own all copyright, patents, trade secrets, trademarks and other intellectual property rights, title and interest in or pertaining to any techniques, know-how, software, inventions, processes, data, design, diagrams, documentation and all other information and materials created by Barracuda in performing the Professional Services hereunder.
- Confidentiality. Each party shall hold in confidence all materials or information disclosed to it hereunder that are marked as confidential or proprietary, or if disclosed verbally, would ordinarily be regarded as confidential in the course of business on account of the nature of the information or the circumstances of its disclosure (“Confidential Information”). Each party agrees to take precautions to prevent any unauthorized disclosure or use of Confidential Information consistent with precautions used to protect such party’s own confidential or proprietary information, but in no event less than reasonable care. The obligations of the parties hereunder shall not apply to any Confidential Information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (ii) is known by the receiving party at the time of receiving such information; or (iii) is independently developed by the receiving party without use of any of the other party’s Confidential Information. Notwithstanding the foregoing, disclosure of Confidential Information shall not be precluded if such disclosure is in response to a valid order of a court or other governmental body or otherwise required by law; provided, however, that the responding party shall first have given notice to the other party hereto to enable such other party to seek a protective order or otherwise prevent such disclosure.
- Limited Warranty. Barracuda will use reasonable commercial efforts to provide the Professional Services in a professional and workmanlike manner. BARRACUDA MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS. Barracuda will not be responsible in any way for any losses or other consequences arising from its failure to meet any schedule due to any delay, inability or failure by Customer or third party to deliver or provide access to any information or materials required for performance of the Professional Services.
- 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 PROFESSIONAL SERVICES OR THE DELIVERABLES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, AGREEMENT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
- 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 THE AMOUNT PAID BY CUSTOMER IN THE TWELVE 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 PROFESSIONAL SERVICES OR DELIVERABLES, FROM INABILITY TO USE THE PROFESSIONAL SERVICES OR THEDELIVERABLES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF ANY PROFESSIONAL SERVICE OR DELIVERABLE (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.
- Governing Law, Venue and Dispute Resolution.
- GOVERNING LAW AND VENUE. This Agreement will be governed by the laws of the state of California, excluding its conflicts of law 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 ABOUT HOW TO RESOLVE ANY DISPUTE 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 or a related SOW including, without limitation, the Professional Services and any Deliverables, 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 CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
- Termination. Either party shall have the right to terminate this Agreement upon the material breach of the other party; provided the breaching party has failed to cure such breach within thirty (30) days after receipt of written notice of such breach. A provision of this Agreement will survive expiration or termination of this Agreement if the context of the provision indicates that it is intended to survive. If this Agreement is terminated, Customer will promptly pay Barracuda for Professional Services performed prior to the termination date, plus any expenses incurred. Customer acknowledges that it is not entitled to any refund of prepaid fees.
- 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.
- Force Majeure. Neither party hereto 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, 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.
- 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.
- 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 Professional 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.