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Barracuda Networks, Inc. A2017-170oi Chzio 7/1/6 June 13, 2019 Barracuda Networks Attn: Dino Campanella 3175 Winchester Boulevard Campbell, CA 95008 RE: Extension of Termination Date for Agreement A2017-170 Barracuda Networks Span and Web Filter Maintenance Dear Mr. Campanella: 14000 City Center Drive Chino Hills, CA 91709 (909) 364-2600 www. / ' In 2017, the City Manager of the City of Chino Hills authorized execution of Agreement No. A2017-170 with Barracuda Networks for Barracuda Networks Span and Web Filter Maintenance. This letter serves as notification that the termination date has been extended until June 30, 2020. All other provisions of the agreement remain in effect. Should you have any questions regarding this notification, please contact Megan Dearing at (909) 364-2633. Sincerely, 1/44444 Benjamin Montgomery City Manager BM:wg cc: City Clerk's Office Finance Department IT Department CJJ 3'ici, Art Bennett • Brian Johsz • Ray Marquez • Cynthia Moran • Peter J. Rogers C4 01 Ciazo /14 July 5, 2018 Barracuda Networks Attn: Dino Campanella 3175 Winchester Boulevard Campbell, CA 95008 RE: Extension of Termination Date for Agreement A2017-170 Barracuda Networks Spam and Web Filter Maintenance Dear Mr. Campanella: 14000 City Center Drive Chino Hills, CA 91709 (909) 364-2600 www. In 2017, the City Manager of the City of Chino Hills authorized execution of Agreement No. A2017-170 with Barracuda Networks for Barracuda Networks Spam and Web Filter Maintenance. This letter serves as notification that the termination date has been extended until June 30, 2019. All other provisions of the agreement remain in effect. Should you have any questions regarding this notification, please contact Michelle Smith at (909) 364-2633. Sincerely, Konradt Bartlam City Manager KB:wg cc: City Clerk's Office Finance Department IT Department CCe' Art Bennett • Brian Johsz • Ray Marquez • Cynthia Moran • Peter J. Rogers A2017-170 Barracuda Policy SOFTWARE LICENSE AGREEMENT L DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement. 1.1. "Authorized User" means an employee or a contractor of Licensee who is authorized to use the Licensor Software provided hereunder. 1.2. "Documentation" means the Software's standard user manual and any and all manuals, instructions and other documents and materials that Barracuda provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof. 1.3. "Effective Date" This Agreement shall be effective upon the earlier of installation or first use of the Software. 1.4. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. 1.5. "Licensee Hardware" means hardware whether purchased or provided to Licensee by Licensor on which the Software is used. 1.6. "Permitted Use" means use of the Software by an Authorized User for the benefit of Licensee in the ordinary course of its internal business operations. 1.7. "Software" means the software licensed in object code format, together with any Updates provided to Licensee pursuant to this Agreement. 1.8. "Specifications" means Barracuda's standard specifications for the Software set forth in its Documentation on the Effective Date. 1.9. "Subscription Term" means the length of time for which the maintenance subscription is purchased. The Subscription Term is listed on Barracuda's price list, or quote. 1.10. "Term" is defined in Section 10.1 below. 1.11. "Update" means minor enhancements and bug fixes to the Software. 2. LICENSES & DELIVERY. 2.1. License. Barracuda hereby grants Licensee a nonexclusive license to use the Software solely for Licensee's internal business purposes, provided Licensee complies with the restrictions set forth herein. Barracuda reserves all rights not expressly granted to Licensee. The rights granted are limited to the Software and do not include any other patent or Intellectual Property Rights. Barracuda retains ownership of the Software. If the Software has been licensed for evaluation use only, Licensee may not use the Software in a production environment, or beyond the term of the demo license. 2.2. Permitted Uses. This Agreement allows Licensee to use the Software only on the single Barracuda labeled hardware device on which the Software was delivered or on other Licensee Hardware which meets the requirements set forth in the Software specification. In addition, use of the Software shall also be limited, as applicable and as set forth in Barracuda's price list, quote, user documentation, or web site, to a maximum number of (a) seats (i.e. users with access to install Software); (b) concurrent users, sessions, ports, and/or issued and outstanding IP addresses; and/or (c) central processing unit cycles or instructions per second. A limited license allows Licensee to use the Software only for the licensed number of instances and licensed sizes. 2.3. Restrictions on Software Rights. Licensee shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software's source code; (d) make copies of the Software, other than one backup copy; (e) transfer, rent, lease, lend, or sublicense the Software or allow a third party to do so. Licensee may not otherwise transfer the Software or any of its rights and/or obligations under this Agreement; (f) utilize or run the Software on more computers than the number of licenses that were purchased; or (g) operate the Software in a fashion that exceeds the capacity or capabilities that were purchased. 2.4. Documentation. Licensee may reproduce the Documentation as reasonably necessary to support internal use of the Software. 2.5. Delivery. Barracuda shall provide the Software and Documentation to Licensee, through a reasonable system of electronic download or via other media, in its discretion. Delivery occurs when the Software is made available to Licensee. 3. MAINTENANCE. 3.1. Subscriptions. Software maintenance subscriptions may be purchased separately or bundled into the price of the license. Licensee is not entitled to maintenance subscriptions if they have not paid for them in full. "Subscription Term" refers to the length of time for which the maintenance subscription is purchased. The Subscription Term is listed on Barracuda's price list. Software updates and subscription information provided by Barracuda through Energize Updates or other software maintenance services are necessary to continue access to the functionality of the Software and for continued proper operation of the Software. Licensee acknowledges that failure to pay for ongoing subscriptions will limit the functionality of Software and Licensee Hardware. Obtaining Software updates on systems where no valid subscription has been purchased or obtaining functionality where subscription has not been purchased is strictly forbidden and in violation of this Agreement. All initial subscriptions commence at the time of activation and all renewals commence at the expiration of the previous valid subscription. Unless otherwise expressly provided in the documentation, Licensee shall use the Energize Updates and other subscriptions solely as embedded in, for execution on, or where the applicable documentation permits installation on non -Barracuda equipment for communication with Barracuda equipment owned or leased by Licensee. All subscriptions are non-transferrable. Barracuda makes no warranty that Software will continue un -interrupted. Subscriptions may be suspended or terminated without notice by Barracuda for lack of full payment. 3.2. Subscription Term. The Subscription Term shall renew automatically for a period of the same duration unless Licensee gives written notice of its intent not to renew 15 days before the end of the current Subscription Term. Barracuda will automatically bill Licensee unless notified 15 days before the renewal date. 3.3. Updates. During each Subscription Term, Barracuda shall provide Licensee with copies of all Updates, without additional charge, in accordance with the then -current service and subscription terms. Upon delivery to Licensee, each Update will constitute an element of the Software and will thereafter be subject to this Agreement's terms regarding Software, including without limitation license and warranty terms. 3.4. Support. Telephone, email and other forms of support will be provided to Licensee as part of the subscription. The hours of support vary based on country and the type of support subscription purchased. Barracuda's Energize Updates typically include Basic support. 4. FEES & REIMBURSEMENT. 4.1. Fees. Licensee shall pay Barracuda the fees set forth on the then current price list or Barracuda quote. 4.2. Invoices. Payment against all invoices will be due within 30 days thereof. 4.3. Fees for Renewal Terms. Barracuda may increase the License Fee and/or Subscription Fee for each renewed Term or Subscription Term, provided Barracuda gives Licensee notice of such increase before the end of the applicable current Term or Subscription Term. 4.4. Billing Disputes. Licensee must notify Barracuda of any billing problems or discrepancies within sixty (60) days of the date of Barracuda's invoice. Licensee agrees that failure to do so will waive its right to dispute such problems or discrepancies. 5. IP & FEEDBACK. 5.1. IP Rights in the Software. Barracuda retains all right, title, and interest in and to the Documentation and Software, including without limitation Updates, except to the extent of the limited licenses specifically set forth in Sections 2.1 (License), and 2.3 (Documentation). Licensee recognizes that the Software and its components are protected by copyright and other laws. 5.2. Trademarks. Certain portions of the product and names used in this Agreement, the Software and the Documentation may constitute trademarks of Barracuda. Licensee is not authorized to use any such trademarks for any purpose. 5.3. Feedback. Licensee hereby grants Barracuda a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Licensee communicates to Barracuda during the Term, 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 Article 6 (Confidential Information) below, Feedback will not be considered Licensee's Confidential Information. ("Feedback"refers to any suggestion or idea for modifying any of Barracuda's products or services, including without limitation all Intellectual Property Rights in any such suggestion or idea). 6. CONFIDENTIAL INFORMATION. 6.1. Definition. "Confidential Information" refers to the following information disclosed by one party ("Discloser") to the other ("Recipient"): (a) any document Discloser marks "Confidential"; (b) any information Discloser orally designates as "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 Software, for which Barracuda is Discloser; and (d) 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; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is approved for release in writing by Discloser. 6.2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the "Purpose"). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any other third party without Discloser's prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense. 6.3. Injunction. Recipient agrees that breach of this Article 6 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. 6.4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 6.2 above (Nondisclosure) will terminate 3 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. 6.5. 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 Confidential Information. 7. SOFTWARE AUDIT. During the Term of this Agreement and at any time during the five (5) years thereafter, Barracuda may audit Licensee's use of Software on 30 days' advance written notice. Licensee shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of Software. Such audit shall not unreasonably interfere with Licensee's business activities. If Barracuda discovers unauthorized use, reproduction, distribution, or other exploitation of the restrictions for the Software, and such unauthorized use exceeds 5%, then Licensee shall reimburse Barracuda for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Barracuda may have. Barracuda may not conduct an audit more than once per year. 8. REPRESENTATIONS & WARRANTIES. 8.1. From Barracuda. Barracuda represents and warrants that, during the 30 day period following Delivery, the Software will perform materially as described in its Specifications. Barracuda represents that, to its knowledge, at the time of Delivery, the Software is free of what are commonly defined as viruses, worms, spyware, malware and other malicious code that may potentially hamper performance of the Software. 8.2. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement without further consent of any third party. 8.3. Warranty Disclaimers. Except for the express warranties in Sections 8.1 and 8.2 above, BARRACUDA MAKES NO WARRANTIES, EITHER EXPRESS IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, AND OF NON -INFRINGEMENT OF THIRD PARTY RIGHTS. Barracuda does not warrant that the Software will perform without error or that it will run without interruption. Barracuda provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Barracuda, unless Barracuda approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE IS AT ITS OWN RISK AND THAT THE ENTIRE RISK AS TO SATISFACTION, QUALITY, PERFORMANCE, AND ACCURACY IS WITH LICENSEE. BARRACUDA DOES NOT WARRANT THE CONTINUED OPERATION OF THE SOFTWARE, THAT THE PERFORMANCE WILL MEET LICENSEE'S EXPECTATIONS, THAT THE FUNCTIONS WILL MEET LICENSEE REQUIREMENTS, THAT THE OPERATION WILL BE ERROR FREE OR CONTINUOUS, THAT CURRENT OR FUTURE VERSIONS OF ANY OPERATING SYSTEM WILL BE SUPPORTED, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION GIVEN BY BARRACUDA OR ANY AUTHORIZED BARRACUDA REPRESENTATIVE SHALL CREATE A WARRANTY. BARRACUDA HAS NO LIABIILTY FOR LOSS OF DATA, OR FOR ERRORS, FAILURES OR DAMAGE WHICH WERE CAUSED BY IMPROPER OPERATION, USE OF UNSUITABLE RESOURCES OR ABNORMAL OPERATING CONDITIONS (IN PARTICULAR DEVIATIONS FROM THE INSTALLATION CONDITIONS). Barracuda does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack. The Software is not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, nuclear facilities, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, or any other uses in which failure could lead to death, personal injury, or environmental damage, and Licensor makes no warranty and shall have no liability arising from any use of the Licensor Software in any high risk or strict liability activities. 9. LIMITATION OF LIABILITY. 9.1. Limit. BARRACUDA'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED the amount paid to Barracuda for the Software IN THE PREVIOUS TWELVE MONTHS. 9.2. Exclusion of Consequential Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO LICENSEE FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. 9.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 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 BARRACUDA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF LICENSEE'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Barracuda's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Barracuda's liability limits and other rights set forth in this Article 9 apply likewise to Barracuda's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives. 10. TERM & TERMINATION. 10.1. Term. This Agreement shall be effective upon the Effective Date and will end (a) upon the expiration of its stated term; (b) upon Licensee's non -renewal of the licenses; (c) upon Licensee's cancellation of the license; or (d) when Licensor cancels or terminates the license, pursuant to section 10.2, whichever occurs first. Any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination. If the Software is a time -based license, Licensee expressly acknowledges that the Software will stop functioning at the time the license expires unless renewed or extended as set forth in this Agreement. 10.2. Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice, effective in 30 days unless the other party first cures such breach. 10.3. Effects of Termination. Upon termination of this Agreement, Licensee shall cease all use of the Software and delete, destroy, or return all copies of the Software and Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Licensee to pay fees incurred before termination; (b) Articles and Sections 2.3 (Restrictions on Software Rights) 5 (IP & Feedback), 6 (Confidential Information), 7 (Software Audit), 8.3 (Warranty Disclaimers), 9 (Limitation of Liability), 10 (Term and Termination), and 11 ("Collection of Data"); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. 11. COLLECTION OF DATA. Licensee agrees to allow Barracuda to collect information ("Statistics") from the Software in order to fight spam, virus, and other threats as well as optimize and monitor the Software. Information 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, capacity and usage, websites not categorized, fingerprints of emails, and other statistics. Licensee data will be kept private and will only be reported in the aggregate by Barracuda. Barracuda may transfer personal information and data outside of the European Union for purposes of providing software and subscription maintenance services, and Licensee consents to such use and transfer of personal information and data. 12. MISCELLANEOUS. 12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. 12.2. Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For Barracuda: attn.: Legal Department, Barracuda Networks, 3175 S. Winchester Blvd, Campbell, CA 95008. 12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control. 12.4. Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without Barracuda's express written consent. 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. 12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. 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 effect. 12.6. No 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. 12.7. Government Restricted Rights. The Software is 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. Licensee shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software. 12.8. Choice of Law & Jurisdiction: This Agreement will be governed solely by the laws of the State of California without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (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 of Santa Clara, California. 12.9. 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. The parties will attempt to resolve any claim, or 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, 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 AAA Rules and the parties agree to share the arbitration costs equally. The Arbitration will be conducted before three (3) independent and impartial arbitrators. Barracuda will appoint one (1) arbitrator and the other party or parties will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding 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 arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the county of Santa Clara would apply to the Dispute. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their 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. 12.10. Construction. This Agreement will not be construed in favor of or against either party by reason of authorship. 12.11. Changes. Barracuda reserves the right at any time not to release, or to discontinue release of, any Software or subscription and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Software or subscriptions. 12.12. Technology Export. Licensee shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except with the prior written consent of Barracuda and in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Licensee shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria); or (c) transfer or authorize the transfer of the Software to a prohibited territory or country or otherwise in violation of any applicable restrictions or regulations. If Licensee is a United States Government agency, the Software 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 Software and documentation with only those rights set forth in this Agreement. Use of either the Software or documentation or both constitutes an agreement by the Government that the Software and documentation are "commercial computer software" and "commercial computer software documentation", and constitutes acceptance of the rights and restrictions herein. 12.13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. 12.14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. 12.15. Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party. 12.16. Open Source Licensing. Barracuda products may include programs that are covered by the GNU General Public License (GPL), The Lesser General Public License (LGPL), or other Open Source license agreements, in particular the Linux operating system. The Software does not constitute an edited version or further development of the operating system. These programs are copyrighted by their authors or other parties, and the authors and copyright holders disclaim any warranty for such programs. Barracuda owns the copyright in other programs. In addition, some Software which supports Bare Metal Disaster Recovery of Microsoft Windows Vista and Microsoft Windows 2008 Operating Systems (DR6) contains and uses components of the Microsoft Windows Pre -Installation Environment (WINPE) with the following restrictions: (i) the WINPE components in the DR6 product are licensed and not sold and may only be used with the DR6 product; (ii) DR6 is provided "as is"; (iii) Barracuda and its suppliers reserve all rights not expressly granted; (iv) license to use DR6 and the WINPE components is limited to use of the product as a recovery utility program only and not for use as a general purpose operating system; (v) Reverse engineering, decompiling or disassembly of the WINPE components, except to the extent expressly permitted by applicable law, is prohibited; (vi) DR6 contains a security feature from Microsoft that will automatically reboot the system without warning after 24 hours of continuous use; (vii) Barracuda alone will provide support for customer issues involving DR6 and Microsoft, and its Affiliates are released of all liability related to its use and operation; and, (viii) DR6 is subject to U.S. export jurisdiction. October 2016 Barracuda Policy Terms and Conditions These Terms and Conditions (the "Terms" or "Agreement") for Barracuda products and services ("Product" or Products") are a legal agreement between you, either as an individual or a legal entity ("Customer"), and Barracuda Networks, Inc. ("Barracuda"). These Terms, along with any other policies or documents referenced herein, govern Customer's purchase and use of the Products. Customer's use of the Products 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 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 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 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. 1. Relationship to Other Agreements. a. 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 . b. 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 set forth on the order. Customer agrees that it is bound by the terms of the applicable License. 2. Use of Barracuda Products. The Products 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 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 except by an authorized reseller or distributor. Such use must also comply with all applicable Barracuda policies and all laws, rules and regulations, and must not infringe or violate third party rights. Customer may not sell, license, provide services, or distribute the Products or any part thereof to any third party. 3. Shipping, Title and Returns. a. Shipping. Separate charges for shipping and handling will be charged on Barracuda's invoice. b. Title. Title to hardware passes from Barracuda to Customer on shipment from Barracuda's facility (Exworks origin) (lncoterms 2010). Loss or damage that occurs during shipping by a carrier selected by Barracuda is Barracuda's responsibility. Loss or damage that occurs during shipping by a carrier selected by Customer is Customer's responsibility. Partial shipment is acceptable. c. Returns. Customer may cancel all purchase orders for Product and support services (excluding renewals) within thirty (30) days of shipment of hardware or delivery of software from Barracuda ("Cancellation Period"). After the Cancellation Period, all purchase orders are non -cancellable and the fees paid to Barracuda for Product or support services are nonrefundable. Fees for installation or training provided by Barracuda are non -cancellable and nonrefundable once performance commences. 4. Payment Obligations. a. Customer shall pay the total purchase as specified in the invoice. b. 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. 5. Payment Terms, Disputes and Offsets. a. Payment Terms. i. Payment will be made by credit card, wire transfer, or another prearranged payment method unless Barracuda has agreed to credit terms. ii. When credit is provided, payments are due net 30 days, measured from the date of the invoice. Orders are not binding upon Barracuda until accepted in writing by Barracuda. iii. 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) 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; (ii) withhold, suspend or revoke its grant of any software license; and/or (iii) terminate this Agreement. b. Payment Disputes. 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 at the Barracuda contact information indicated in Section 21 ("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. c. Offsets. 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). 6. Taxes and Duties. a. 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 Product, excluding taxes based on Barracuda's net income. b. Customer is responsible for any import or export fees or duties associated with its use of the Product. 7. Support Subscriptions, Renewals, and Upgrades. a. Support Subscriptions. i. Provided Customer has purchased and paid for support, Barracuda will provide support subscriptions to Customer in accordance with the then -current support policies and conditions in effect. Barracuda will attempt to handle any problem involving Products over the telephone or email. However, Barracuda's support personnel/providers may not be able to understand or resolve any given problem. ii. Support offerings may vary by Product and geography. Barracuda may, at its discretion, revise its support programs and the terms and conditions that govern them. The services and support programs and their terms and conditions in place at the time of purchase will apply to Customer's purchase. iii. 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. iv. Barracuda has no obligation to provide support until Barracuda has received full payment for the Products that Customer purchased. v. The support period start date will be the earlier of (i) the date the Product is activated by Customer, or (ii) thirty (30) days after the Product has been shipped or made available to Customer for download. For new Product purchases, support subscriptions (including instant replacement and energize updates) will commence on the date of activation. Barracuda will automatically activate Products six (6) months after the date of sale, if not activated earlier by Customer. vi. In some regions, Barracuda requires Customer to purchase an Instant Replacement subscription with the purchase of certain Products. b. Renewals. 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. c. Upgrades. Customers may upgrade the Product model and associated support subscription service within sixty (60) days of purchase and receive a full credit for the original purchase, provided any hardware unit is returned to Barracuda in working order within thirty (30) days of the upgrade and the initial product is disabled. 8. Intellectual Property Ownership a. Intellectual Property Ownership. Customer acknowledges that Barracuda or its licensors own all right, title and interest in and to the Product (including software) and content provided through or in conjunction with the Product, including, without limitation, all intellectual property rights. Except for the license granted in these Terms, all rights in and to the Products are reserved and Barracuda grants no implied licenses. 9. Warranty a. Barracuda warrants the Products in accordance with the warranty located at https://www.barracuda.com/legal/warranty b. THE 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. c. EXCEPT AS PROVIDED IN THE WARRANTY FOR THE PRODUCT, THE PRODUCTS AND ANY THIRD PARTY SOFTWARE AND SERVICES ARE PROVIDED "AS IS". 10. Term, Termination and Survival. a. Term. This Agreement is effective upon purchase or use of the Product, and, unless earlier terminated, remains in effect until Customer no longer utilizes the Product. b. Termination. i. Barracuda may terminate this Agreement for Customer's breach, which Customer fails to cure within thirty (30) days of written notice by Barracuda. ii. Customer agrees that, upon termination, Customer will immediately discontinue all use of the Products and that it is not entitled to any refund of prepaid fees. c. Survival. The terms of this Agreement that by their nature extend beyond termination, including Payment, Warranty, Limitation of Liability, Governing Law, Dispute Resolution, and Venue, shall survive termination of this Agreement. 11. Privacy Policy and Collection of Customer Data. a. Privacy Policy. Please refer to Barracuda's Privacy Policy located online at https://www.barracuda.com/legal/privacy for information about how Barracuda uses, transfers and shares information collected by or provided to it. b. Collection of Customer Data. Customer agrees to allow Barracuda to collect information ("Statistics") from their Products in order to fight spam, viruses, and other threats as well as to optimize and monitor the Product. 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. 12. Export and Compliance with Laws. a. Export. The Products 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 or software. Barracuda provides multiple versions of Products targeted for specific geographic regions. b. 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. 13. 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 ("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 under 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 of its representatives to whom it discloses Confidential Information. The receiving party shall not have any obligation to protect Confidential Information which (a) was in the receiving party's possession prior to receipt from the disclosing party; (b) is, or becomes, a matter of public knowledge through no act, omission or fault of the receiving party; or (c) is disclosed by the receiving party with the written permission of the disclosing party. 14. Waiver of Consequential Damages and Limitation of Liability. a. 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 PRODUCT, 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). b. LIMITATION OF LIABILITY. i. 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. ii. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCT, FROM INABILITY TO USE THE PRODUCT, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCT (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. iii. 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. 15. Governing Law, Venue and Dispute Resolution. a. 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. b. 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, or 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 Product, 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. 16. 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. 17. Changes to Products. Barracuda reserves the right at any time to modify, suspend, or discontinue providing the Product or any part thereof in its sole discretion, with prior notice. Any discontinuation of service will be coterminous with the end of any prepaid term. 18. 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. 19. 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, 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. 20. 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. 21. Notices. Vendor 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 3175 South Winchester Blvd, Campbell, CA 95008, Attn: Legal Department, and such notices will be deemed received 72 hours after they are sent. 22. Entire Agreement and Assignment. a. 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. 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. b. 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. Revised: October 2016 Barracuda Networks Limited Hardware Warranty 1. Barracuda Networks, Inc., or the Barracuda Networks, Inc. subsidiary or authorized Distributor selling the Barracuda Networks product, if sale is not directly by Barracuda Networks, Inc., ("Barracuda Networks" or "Barracuda") warrants that commencing from the date of delivery to Customer (but in case of resale by a Barracuda Networks reseller, commencing not more than sixty (60) days after original shipment by Barracuda Networks, Inc.), and continuing for a period of one (1) year: (a) its products (excluding any software) will be free from material defects in materials and workmanship under normal use; and (b) the software provided in connection with its products, including any software contained or embedded in such products will substantially conform to Barracuda Networks published specifications in effect as of the date of manufacture. Except for the foregoing, the software is provided as is. In no event does Barracuda Networks warrant that the software is error free or that Customer will be able to operate the software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Barracuda Networks does not warrant that the software or any equipment, system or network on which the software is used will be free of vulnerability to intrusion or attack. The limited warranty extends only to you the original buyer of the Barracuda Networks product and is non -transferable. 2. Exclusive Remedy. Your sole and exclusive remedy and the entire liability of Barracuda Networks under this limited warranty shall be, at Barracuda Networks or its service centers option and expense, the repair, replacement or refund of the purchase price of any products sold which do not comply with this warranty. Hardware replaced under the terms of this limited warranty may be refurbished or new equipment substituted at Barracuda Networks' option. Barracuda Networks obligations hereunder are conditioned upon the return of affected articles in accordance with Barracuda Networks then -current Return Material Authorization ("RMA") procedures. All parts will be new or refurbished, at Barracuda Networks' discretion, and shall be furnished on an exchange basis. All parts removed for replacement will become the property of Barracuda Networks. In connection with warranty services hereunder, Barracuda Networks may at its discretion modify the hardware of the product at no cost to you to improve its reliability or performance. The warranty period is not extended if Barracuda Networks repairs or replaces a warranted product or any parts. Barracuda Networks may change the availability of limited warranties, at its discretion, but any changes will not be retroactive. IN NO EVENT SHALL BARRACUDA NETWORKS LIABILITY EXCEED THE PRICE PAID FOR THE PRODUCT FROM DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE PRODUCT, ITS ACCOMPANYING SOFTWARE, OR ITS DOCUMENTATION. 3. Exclusions and Restrictions. This limited warranty does not apply to Barracuda Networks products that are or have been (a) marked or identified as "sample" or "beta," (b) loaned or provided to you at no cost, (c) sold "as is," (d) repaired, altered or modified except by Barracuda Networks, (e) not installed, operated or maintained in accordance with instructions supplied by Barracuda Networks, or (f) subjected to abnormal physical or electrical stress, misuse, negligence or to an accident. EXCEPT FOR THE ABOVE WARRANTY, BARRACUDA NETWORKS MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO BARRACUDA NETWORKS PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. EXCEPT FOR THE ABOVE WARRANTY, BARRACUDA NETWORKS' PRODUCTS AND THE SOFTWARE ARE PROVIDED "AS-IS" AND BARRACUDA NETWORKS DOES NOT WARRANT THAT ITS PRODUCTS WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR FREE, OR THAT ANY ERRORS IN ITS PRODUCTS OR THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, BARRACUDA NETWORKS DOES NOT WARRANT THAT BARRACUDA NETWORKS PRODUCTS, THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH BARRACUDA NETWORKS PRODUCTS WILL BE USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. Exhibit A Scope of Work Vendor will provide the following services: 1. Instant Hardware Replacement a. Enhanced Support — provides phone and email support 24x7 b. Next business day shipping of replacement hardware c. Hardware refresh through the Barracuda Hardware Refresh Program - covered if old hardware is more than 4 years old and under an active Instant Replacement subscription 2. Energize Updates a. Basic Support — includes email support 24x7 and phone support between the hours of 9am and 5pm Monday through Friday (Pacific time) b. Firmware Maintenance — includes new firmware updates with feature enhancements and bug fixes c. Security Updates — Patch or repair any security vulnerabilities