End User Subscription Agreement
Latest Updated: January 15, 2017
This End User Subscription Agreement (the “Agreement”) governs the purchase, access, and use of Products by the Customer listed on an Order with Barracuda (hereinafter “Customer” or “You” or “Your”).
In order to use or receive the benefits of any Product, You must purchase the applicable Product through an Order with Barracuda. If any new Products are introduced in the future, such Products will be governed by this Agreement, depending on their Product category.
IF YOU HAVE ARRIVED AT THIS PAGE DURING THE PROCESS OF INSTALLING, DOWNLOADING, ACCESSING, OR DEPLOYING A PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT BY PROCEEDING WITH THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE OF THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE FOREGOING, DISCONTINUE THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE. IF YOU PROCEED WITH INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER.
This Agreement may be periodically updated and the current version will be posted at www.zscaler.com/legal/barracuda. Your continued use of the Products after a revised Agreement has been posted constitutes your acceptance of its terms.
1.1 “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
1.2 “Aggregated Data” means Customer Data (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner from which Customer’s or Customer Users’ identity may not be derived.
1.3 “Barracuda” means Barracuda Networks, Inc.
1.4 “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.
1.5 “Customer Data” means all data or information submitted by or on behalf of Customer to the Products.
1.6 “Customer Users” means employees, agents, and other third parties authorized by Customer to download, deploy, access, install, or use the Products.
1.7 “Product Sheet” means the Materials attached hereto as Exhibit A that provide Product descriptions and terms applicable to specific Products.
1.8 “Documentation” means the user manuals generally provided in writing by Barracuda to end users of the Products in electronic format, as amended from time to time.
1.9 “Fees” means any fees paid for Products under an Order.
1.10 “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Barracuda's possession or reasonable control, and denial of service attacks.
1.11 “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.
1.12 "Materials" means all proprietary materials, Intellectual Property Rights for all Products and Documentation, processes and methods, and/or materials distributed by Barracuda during any presentations, proof of concepts, or demonstrations of Products. Materials do not include Third Party Materials.
1.13 “Order” means a written order form, purchase order, or similar ordering document for Products submitted to Barracuda, and approved by Barracuda.
1.14 “Products” means all SaaS and Software.
1.15 “SaaS” means the subscription cloud-based service provided by Barracuda’s supplier for the Subscription Term set forth in the Order, as further described in the Product Sheet.
1.16 “Seat” means a subscription for a specific individual user that accesses the Internet in connection with the SaaS.
1.17 “Software” means any software, utility, tool or other computer or program code, in object (binary) or source-code form provided, directly or indirectly to Customer as well as to any copies (whether complete or partial) made by or on Customer’s behalf, as further described in the Product Sheet. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to Customer.
1.18 “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms together.
1.19 “Third Party Materials” means software or other components that are licensed by third parties for use in a Product, including but not limited to open source software.
2. ORDERS. Customer may order Products through an Order. All Orders shall be governed by the terms and conditions in this Agreement. For clarity, Barracuda will not be obligated to provide any Products to Customer until Barracuda receives a valid Order for such Products. Customer agrees that its purchase of any Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Barracuda with respect to any future functionality or features.
3. PAYMENT. Fees and payment terms shall be agreed and documented between Customer and Barracuda. Customer agrees and understands that if Customer does not pay Barracuda the Fees due for the Services within the agreed time period, Barracuda reserves the right to suspend Customer’s access and use of the Services until such Fees are paid.
4. INTELLECTUAL PROPERTY; RESTRICTIONS; GUIDELINES AND THIRD PARTY MATERIALS
4.1 Ownership and Intellectual Property Rights
4.1.1 All rights and title in and to the Products, Materials, and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Barracuda’s supplier. No rights are granted to Customer other than as expressly set forth in this Agreement.
4.1.2 All rights and title in and to the Customer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Customer. No rights are granted to Barracuda or its suppliers other than as expressly set forth in this Agreement.
4.2.1 Customer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Products or Materials; (ii) reverse engineer the Products; (iii) access the Products in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Products; (iv) use the Products to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Products to send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Products to access blocked services in violation of applicable laws; (vii) upload to the Products or use the Products to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Products to run automated queries to web sites (as the web site may blacklist Barracuda IPs for all of its customers); (ix) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (x) attempt to gain unauthorized access to the Products or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; or (xii) without the express prior written consent of Barracuda, conduct any benchmarking or comparative study or analysis involving the Products (“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 systems.
4.2.2 In addition to the restrictions in Section 4.2.1, Customer agrees that it shall: (i) use the Products solely for its internal business purposes; (ii) only permit access to the Products by Customer Users; and (iii) not access or use the Products from an embargoed nation, including without limitation, Cuba, Iran, North Korea, Syria, Sudan, Crimea Region of Ukraine, or any other country/region that becomes an embargoed nation.
4.3. Customer Guidelines and Responsibilities. Customer agrees and understands that (i) it is responsible for all activity of Customer Users and for Customer Users’ compliance with this Agreement; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Products, and notify Barracuda promptly of any such unauthorized access or use; and (c) comply with all applicable laws in using the Products; (iii) the Products shall not include Customer’s connection to the Internet or any equipment or third party licenses necessary for Customer to use the Products, which shall be Customer’s sole responsibility; (iv) in order for Barracuda to provide the SaaS, Customer is responsible for forwarding its web traffic via valid forwarding mechanisms that allow for automatic fail over (i.e. PAC, IPSEC, GRE tunnels, and/or Barracuda App); (v) it is responsible for supplying Barracuda with any technical data and other information Barracuda may reasonably request to allow Barracuda to provide the Products to Customer; and (vi) Barracuda or its suppliers shall have the right to (a) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Products; (b) utilize the malware, spam, botnets, or other information related to the SaaS for the purposes of (1) maintaining, improving and/or analyzing the SaaS, (2) complying with all legal or contractual requirements, and/or (3) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the SaaS; and (c) develop and commercialize benchmarks and measures based on Aggregated Data.
4.4 Barracuda Guidelines and Responsibilities.
4.4.1 Barracuda shall not use, access, or modify the Customer Data except as set forth in this Agreement;
4.4.2 Barracuda shall use commercially reasonable measures to maintain the security and integrity of the Products and the Customer Data and to provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Customer Data;
4.4.3 Barracuda reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Barracuda’s obligations regarding the Customer Data; and
4.4.4 Barracuda reserves the right to suspend Customer’s access to or download of Products in the event Customer’s use of the Products represents an imminent threat to Barracuda’s or its supplier’s network, or if so directed by a court or competent authority. In such cases, Barracuda will (i) suspend such Products only to the extent reasonably necessary to prevent any harm to Barracuda’s network (for example, blocking offending source IP addresses); (ii) use its best efforts to promptly contact Customer and give Customer the opportunity to promptly change the configuration of its server(s) accordingly and/or work with Customer to promptly resolve the issues causing the suspension of such Products; and (iii) reinstate any suspended Products immediately after any issue is abated.
4.5 Third Party Materials. Customer acknowledges that the Products may include Third Party Materials. Barracuda represents that these Third Party Materials will not diminish the license rights provided herein or limit Customer’s ability to use the Products in accordance with the applicable Documentation, and the use or inclusion of Third Party Materials in any Products will not create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license. To the extent certain portions of the Products are distributed under and subject to open source licenses obligating Barracuda to make the source code for such portions publicly available, Barracuda will make such source code portions (including modifications, as appropriate) available to Customer upon request.
5.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
5.2 SaaS and Software Warranty. Barracuda warrants that commencing from the date of the Order, and continuing for a period of one (1) year: (a) the SaaS (excluding Software) will be free of material defects in materials and workmanship under normal use; and (b) the Software will substantially conform to the published specifications in effect as of the date of the Order. If Customer believes the warranty stated in this Section has been breached, Customer must notify Barracuda of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and if Barracuda determines that a defect exists, Barracuda will promptly correct the non-conformity at its own expense. Except for any Service Level Credits described in an applicable Service Level Agreement for SaaS, the remedy stated herein is the sole remedy, and Barracuda’s sole obligation, with respect to Products that fail to comply with the foregoing warranty.
5.3 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. BARRACUDA EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. BARRACUDA ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT PRODUCTS WILL BE ERROR-FREE.
6. CONFIDENTIAL INFORMATION
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Products, the Materials, security information and reports, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to the same confidentiality obligations.
6.3 Protection. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
7. TERM AND TERMINATION
7.1 Agreement Term. This Agreement shall continue in effect for as long as Customer subscribes to the SaaS.
7.2 Order Term. For each specific Product, the applicable Order term will be as follows:
7.2.1 SaaS. The term of Customer’s subscription to the SaaS will begin on the subscription start date set forth in an Order and will continue for the period of time stated in the Order (“Initial Subscription Term”). Prior to the end of the Initial Subscription Term, the parties will work together to agree on the length and pricing for a renewal term (“Renewal Subscription Term”); otherwise, Customer’s subscription will terminate at the end of the Initial Subscription Term.
7.2.2 Software. Software will be licensed for length of time set forth in the Order, or if not stated in the Order, for the same length of time as the Subscription Term. Customer’s license to the Software will automatically terminate upon the termination or expiration of the Subscription Term.
7.3 Termination for Material Breach. Either party may terminate this Agreement and any Order (i) if the other party breaches any terms and conditions of this Agreement or the applicable Order and does not cure such breach within thirty (30) days of receiving notice of such breach (the “Cure Period”); or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, this Agreement and any Order shall terminate automatically in the event Customer has breached any license restriction set forth in Section 4.2 and, in Barracuda’s determination, that breach cannot be adequately cured within the Cure Period.
7.4 Effect of Termination. The following provisions shall survive the termination of this Agreement and all Orders: Section 3 (Payment), Section 4 (Intellectual Property; Restrictions; Guidelines and Third Party Materials), Section 5.3 (Disclaimer of Warranties), Section 6 (Confidential Information), Section 7.4 (Effect of Termination), Section 8 (Indemnity), Section 9 (Limitation of Liability), Section 10 (Export Control and U.S. Government Restricted Rights), and Section 11 (General Provisions).
Customer will indemnify and hold Barracuda and its suppliers harmless against any claim brought by a third party against Barracuda or its suppliers arising from or related to Customer’s violation of Section 4.2 of this Agreement.
9. LIMITATION OF LIABILITY
9.1 Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.2 Limitation of Monetary Damages. Except for damages caused by a party’s gross negligence, fraud, or willful misconduct or Customer’s violation of Section 4.2, BARRACUDA’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER, SHALL BE LIMITED TO THE TOTAL AMOUNTS RECEIVED BY BARRACUDA FOR THE RELEVANT ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
9.3 Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL ALSO APPLY TO BARRACUDA’S SUPPLIERS AND SHALL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW. NOTHING HEREIN PURPORTS TO LIMIT A PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
10. EXPORT COMPLIANCE AND U.S. GOVERNMENT RESTRICTED RIGHTS
10.1 Export Compliance. The Products and other software or components of the Products which Barracuda may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls. Customer agrees to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls. Customer agrees to indemnify Barracuda and its suppliers for any breach of this provision.
10.2 U.S. Government Restricted Rights. The Products and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR section 227.7202 and FAR section 12.212, as applicable. All Products and Materials are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display or disclosure of the Products, Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as listed in the Order, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.
11.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
11.5 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Barracuda (not to be unreasonably withheld Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.
11.7 Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.
11.8 Entire Agreement. This Agreement, including all Product Sheets and Orders, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No terms or conditions set forth on any purchase order, preprinted form or other document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.
PRODUCT SHEET - Software-as-a-Service (SaaS) and Software
1. Definitions. For purposes of any Product Sheets, the following definitions shall apply:
1.1 “Data Packet” means a unit of data made into a single Internet Protocol (IP) package that travels along a given network path.
1.2 “Excluded Transactions and Sessions” means Transactions and Sessions that are not processed due to (a) failure by Customer’s network to forward traffic; (b) failure by an intermediate ISP (other than Barracuda’s supplier’s direct ISP(s)) to deliver traffic; and/or (c) a Customer-implemented policy change that causes Transactions and Sessions to drop.
1.3 “Known Virus” means a virus for which, at the time of receipt of content: (i) a signature has already been made publicly available for a minimum of one (1) hour for configuration by a third party commercial scanner; and (ii) is included in the Wild List located at http://www.wildlist.org and identified as being “In the Wild” by a minimum of three (3) Wild List participants.
1.4 “Premium Data Centers” means those data centers located in Australia, Mainland China, the Middle East, South America and South Africa.
1.5 “Qualified Transactions and Data Packets” means the following: (i) less than 1 MB HTTP GET request and response; (ii) not SSL-intercepted; (iii) not related to streaming applications; (iv) not subject to bandwidth management rules (QoS enforcement); and (v) a reasonable number of Transactions and Data Packets per Seat (based on Barracuda’s supplier’s cloudwide average).
1.6 “Session” means any non-HTTP or HTTP request sent to or from Customer through its use of the SaaS.
1.7 “Transaction” means an HTTP or HTTPS request sent to or from Customer through its use of the SaaS.
2. Subscription Rights. Subject to the terms and conditions set forth in this Agreement, Barracuda grants Customer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to access and use the SaaS during the Subscription Term for the number of purchased authenticated Seats. A Seat may only be transferred from one individual to another if the original user is no longer permitted to access, and does not access, the Internet in connection with the SaaS.
3. License Grant for Software. Subject to the terms and conditions set forth in this Agreement, Barracuda grants Customer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to download and use the Software on a single compatible laptop, desktop, or personal mobile device, in order to connect to the SaaS.
4. Non-Authenticated Users. In an environment where no user authentication is present, and only where Barracuda cannot reasonably determine the number of Seats being used by Customer, then every 2,000 Transactions per day flowing through the SaaS shall be considered a “Seat” (i.e. the number of Seats used would be calculated by dividing the total number of Transactions flowing through the SaaS per day by 2,000).
5. Customer Transaction Logs. Barracuda will not access, read or copy any Customer Data other than for the purposes of providing services to Customer under this Agreement and the Order. In order to provide the SaaS under this Agreement, Customer agrees that Barracuda shall have the right to use, reproduce, store, modify, and display the information from Customer’s transaction logs (i.e. the metadata of all network traffic sent to or received from Customer through its use of the Services) (hereinafter the “Customer Transaction Logs”). Customer Transaction Logs shall be retained by Barracuda for rolling six (6) month periods during the Subscription Term. Upon expiration of the Subscription Term, all Customer Transaction Logs shall be deleted pursuant to the six (6) month retention cycle or as earlier requested in writing by Customer.
7. Excessive Bandwidth Consumption. While Barracuda does not separately charge Customers for bandwidth, Barracuda incurs significant bandwidth costs in providing the SaaS to Customers. Accordingly, a dramatic and unexpected increase in Customer’s bandwidth consumption will significantly affect and disrupt Barracuda’s business. As a result, if Customer’s average per-Seat bandwidth consumption increases above Customer’s Bandwidth Baseline by more than one-hundred percent (100%) for a sustained ninety (90) day period, Barracuda will notify Customer and Customer agrees to work with Barracuda in good faith on a bandwidth reduction plan, or to work with Barracuda in good faith to renegotiate pricing for the remainder of the Subscription Term. If the parties are unable to reach a mutually agreeable solution within thirty (30) days, then Barracuda may, upon thirty (30) days’ written notice, terminate the remaining portion of the Subscription Term and refund to Customer any pre-paid Fees pro-rated for the unused portion of the Subscription Term. For purposes of this Agreement, “Customer’s Bandwidth Baseline” means the average per-Seat bandwidth consumption determined by Barracuda over the 90-day period following the start of Customer’s subscription to the SaaS.
8. Additional Seats. For any additional Seats needed during the Subscription Term, Customer agrees to place an additional Order with Barracuda for such additional Seats. If Barracuda determines that Customer is using more Seats than it has purchased, Customer agrees that Barracuda may invoice Customer for the additional Seats.
9. Data Centers. All standard data centers are included in the Fees for the SaaS. However, use of Premium Data Centers shall require additional Fees for permanent users (i.e. not roaming users) based in such Premium Data Center locations. Additionally, use of data centers location in the Middle East may require separate approvals.
10. Service Level Agreements. Barracuda grants Customer the Service Level Agreements set forth in Attachment 1 below for the SaaS (“Service Level Agreements”), subject to the terms and conditions set forth herein.
11. General Provisions for Service Level Agreements.
11.1 In order for any of the Service Level Agreements to apply, (i) Customer must subscribe to the SaaS that provides the applicable Service Level Agreement, and (ii) Customer’s network must be properly configured on a 24 X 7 X 365 basis in a manner that allows Customer to take advantage of the redundant global infrastructure.
11.2 The SaaS will scan as much of the traffic downloaded as technically possible; however, it may not be possible to scan items that (i) are encrypted, encapsulated, tunneled, compressed, modified from their original form for distribution, (ii) have product license protection, or (iii) are protected by the sender in ways that cannot be inspected (e.g. password protected). Items (i) through (iii) are excluded from the Service Level Agreements.
11.3 The Service Credits set forth in the Service Level Agreements shall be Customer’s sole and exclusive remedy for failing to meet the applicable Service Level Agreement. In order to be eligible for a Service Credit, (i) Customer cannot be past due on any payments owed, and (ii) Customer must request a Service Credit via a support ticket within five (5) business days from the date of the incident giving rise to a Service Credit. Barracuda will research the incident(s) to determine if a Service Level Agreement was not met, and provide a response to the Customer no later than ten (10) days after the end of the month in which the incident occurred. For example, if the incident occurred on November 15th, and a support ticket was raised by Customer on or before November 20th, Barracuda would respond to Customer with the Service Level Agreement calculation by December 10th. Failure to comply with (i) and/or (ii) will forfeit Customer’s right to receive a Service Credit.
11.4 The dollar value of the Service Credit to be applied to the next invoice will be calculated by converting the Service Credit (i.e. the number of days) into the appropriate dollar number. For purposes of example, for a 12-month contract term with a total annual Fee of $500,000, and the Service Credit is determined to be “3 days,” then Barracuda would provide a credit to Customer equaling $4,109.59 (3 days / 365 days X $500,000) on Customer’s next invoice.
11.5 The aggregate maximum Service Credit that Barracuda will issue for failing to meet any Service Level Agreements in a single calendar month will not exceed thirty (30) calendar days’ worth of SaaS.
Service Level Agreements
1. Service Availability Agreement
The SaaS will be available to accept Customer’s Transactions and Sessions 100% of the total hours during every month Customer uses the SaaS (the “Service Availability Agreement”). Service Availability is computed as a ratio of the number of Transactions and Sessions processed in any affected calendar month on behalf of Customer, to the number of Transactions and Sessions that should have been processed. Excluded Transactions and Sessions would not be factored into this Service Availability computation.
Failure to meet this Service Availability Agreement results in a Service Credit as follows:
Percentage of Transactions and Sessions Processed During a Month
< 99.999% but >= 99.99
< 99.99% but >= 99.00%
< 99.00% but >= 98.00%
2. Latency Agreement
Customer’s Transactions and Data Packets will be processed with an average latency over a calendar month of 100 milliseconds or less for the 95th percentile of traffic (the “Latency Agreement”). The Latency Agreement is only applicable to Qualified Transactions and Data Packets. The processing of Transactions and Data Packets is measured from when the proxy receives the Transactions and Data Packets to the point when the proxy attempts to transmit the Transactions and Data Packets.
Failure to meet this Latency Agreement results in a Service Credit as follows:
Percentage of Qualified Transactions and Data Packets With Average Latency of 100 Milliseconds or Less
< 95.00% but >= 94.00%
< 94.00% but >= 90.00%
3. Virus Capture Rate Agreement
100% of all Known Viruses transmitted through the Transactions will be captured (the “Virus Capture Rate Agreement”). Virus Capture Rate is calculated by dividing the Transactions with Known Viruses blocked by the total Transactions with Known Viruses received on behalf of the Customer.
For the Virus Capture Rate Agreement to apply, Customer must utilize the SaaS in accordance with the recommended anti-virus settings on Customer’s user interface. Customer’s systems are deemed to be infected if a Known Virus contained in a Transaction received through the SaaS has been activated within Customer’s systems, either automatically or with manual intervention. In the event that a Known Virus is detected by not stopped, Customer agrees to cooperate with Barracuda or its supplier in order to identify and delete the item.
Failure to meet the Virus Capture Rate Agreement results in a Service Credit as follows:
Virus Capture Rate
< 99.00% but >= 98.00%