This Agreement contains the terms and conditions that apply to MSP’s purchase of Barracuda Networks, Inc. (“Barracuda”) products and/or services and support listed on the MSP Order Form. By accepting delivery of the Barracuda products and/or services and support described on the MSP Order Form, MSP agrees to be bound by and accepts these terms and conditions.
“Documentation” means Barracuda user manuals or technical manuals published at the time of shipment of the Products in printed, electronic or other form, which describes the installation, operation or technical specifications of the Products.
“End User” means a user of the Products for their internal business use and not for purposes of further distribution or resale.
“Intellectual Property Rights” mean any and all current and future (a) rights associated with works of authorship; including but not limited to copyrights, moral rights, and mask-work rights; (b) patent rights, rights of priority, and design rights; (c) trade secret rights; (d) trademark rights (including service mark rights) and trade dress rights; (e) all other intellectual and industrial property rights of every kind and nature which may exist anywhere in the world, whether registered or unregistered and (f) any and all applications and registrations, renewals, extensions, provisionals, continuations, continuations-in-part, divisions, reissues or re-examinations of any of the foregoing.
“MSP” means an authorised purchaser of Products and support services from Barracuda for resale or to provide services directly to End Users.
“Products” means any of the following Barracuda goods and services: (a) hardware products, which may include embedded Software; (b) Software; and (c) Backup service plans and optional subscription services related to a backup service plan, if any, supplied by Barracuda to MSP in a commercial package (“Subscription”). Barracuda may change its service as long as such change does not materially degrade the services during any committed term.
“Software” means Barracuda software products in object code form that are either sold separately or embedded into hardware products. Software is licensed to the End User under the then- current software license terms for the Software in effect at the time of fulfilment by Barracuda.
“Territory” means the territory set forth in the MSP Order Schedule.
2. APPOINTMENT AND LICENSE; RESTRICTIONS.
2.1 Appointment and License. Subject to the terms and conditions of this Agreement, (a) Barracuda hereby appoints MSP as an independent, non-exclusive authorised MSP in the Territory for the Products, and MSP hereby accepts such appointment; and (b) Barracuda grants to MSP a non- exclusive, non-transferable right and license to market and distribute the Products only to End Users in the Territory for so long as this Agreement remains in effect.
2.2 Non-Exclusive. Barracuda may appoint other value added MSPs or representatives and distributors in the same Territory and for the same or similar Products and support services. MSP is not a distributor of Barracuda’ Products and shall not appoint or engage any third party to act on MSP’s behalf as its agent, representative, or distributor to either purchase or sell Barracuda’ Products under the terms of this Agreement.
2.3 Prohibitions. MSP certifies that it is acquiring the Products and support services solely for resale to End Users in the Territory, in accordance with this Agreement. With respect to the Products and support services, MSP agrees not to solicit orders, engage salespersons, or actively resell outside of the Territory. MSP agrees not to distribute the Products or support services (a) in bulk for redistribution; (b) to other MSPs; or (c) to any entity whom MSP knows or should reasonably conclude will use the Products primarily for purposes of benchmark or similar testing.
2.4 Restrictions. MSP will not (a) copy, adapt, alter, merge, reverse engineer, disassemble, decompile or otherwise attempt to derive the source code for any Products; (b) sublicense, lease, rent, loan, or otherwise transfer any intellectual property rights in any Products; (c) modify Products in any way other than permitted rebrand in accordance with Barracuda’ guidelines; or (d) create derivative works of the Software. MSP may not use the Product to develop competing products.
3. MSP RIGHTS AND OBLIGATIONS.
3.1 Resources. MSP will maintain, at its expense, adequate facilities and personnel to perform its obligations under this Agreement.
3.2 Publicity. MSP agrees not to participate in any product reviews, issue press releases, or make other public announcements that identify MSP as an authorised or registered MSP for Barracuda without the express written consent and cooperation of Barracuda. In addition, MSP shall not (nor cause any third party to), at any time, take any action, publish or otherwise communicate anything that is or may be detrimental to the goodwill and reputation of Barracuda. Barracuda agrees not to issue any press releases that identify MSP as an authorised or registered MSP for Barracuda without the prior written consent of MSP.
3.3 Government Rights. As defined in 48 C.F.R. 2.101, DFAR 252.227-7014(a)(1) and DFAR 252.227-7014(a)(5) or otherwise, all Products and Documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Accordingly, if the End User is the U.S. Government or any contractor therefor, the End User shall receive only those rights with respect to the Products and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. 227.7201 through 48 C.F.R. 227.7204, with respect to the Department of Defence and their contractors; or (b) 48 C.F.R. 12.212, with respect to all other U.S. Government licensees and their contractors.
3.4 License to Trademarks and Compliance. Barracuda hereby grants MSP a restricted, revocable, non-exclusive, non-transferable, limited license to use Barracuda trademarks, service marks, logos, trade names and proprietary words or symbols (collectively the “Trademarks”) solely for the purpose of the marketing, resale and support of the Products in accordance with this Agreement, including, without limitation, in all activities pursuant to Section 3.2. MSP agrees to use the Trademarks, and other Barracuda materials, in compliance with the Barracuda usage guidelines as Barracuda may from time to time update and provide to MSP. Barracuda must approve all advertising, promotion or other material containing any of the Trademarks in writing prior to distribution of such material. The use of e-mail shall constitute written notice in this process. MSP agrees to discontinue any Trademark usage at Barracuda request. MSP shall identify the Products as proprietary to Barracuda and shall comply with all legends that appear on or in the Products. MSP shall not remove or destroy any patent, copyright, logo, trademark, trade name, proprietary marking, or confidentiality legend placed upon, associated with or contained within Products, containers or Documentation supplied by Barracuda. In its use of the Trademarks, MSP shall clearly indicate that it is an authorised MSP of Barracuda Products so as to avoid confusion with the Trademarks.
MSP expressly acknowledges and agrees that (a) it will not adopt, use or register as a trademark, service mark, trade name, business name, corporate name or domain name or any part thereof, any word or symbol or combination thereof that is similar to any Trademark, including but not limited to adopting the look and feel of the Barracuda website or advertising campaigns of Barracuda; and (b) any prior registration of a Trademark or URL or domain name incorporating a Trademark is hereby assigned to Barracuda. Upon request, MSP agrees to execute any documents, at no cost to Barracuda, to transfer any such prior registrations in its name or the name of another party it controls to Barracuda.
To protect and preserve the goodwill and reputation in the Trademarks, MSP acknowledges that (y) all goodwill and any other rights, titles and interests arising from its use of the Trademarks are owned by and inure solely to Barracuda benefit and MSP will execute any documents reasonably required by Barracuda to vest all right, title and interest in all such goodwill and other rights, titles and interests in Barracuda; and (z) MSP’s only rights in respect of the Trademarks are those rights of use expressly given under this Section and MSP does not have any proprietary right, title or interest to the Trademarks or the goodwill in them.
3.5 End-user Licenses. MSP agrees to transfer to each End User to which MSP provides Products all end-user license terms and end-user Documentation provided by Barracuda. MSP is liable to Barracuda if it accepts any such online End User terms on behalf of the End User. MSP agrees to defend, indemnify and hold Barracuda harmless from and against any claims, liability, costs or expenses resulting from any breach of MSP’s obligations in this Section.
3.6 Records and Audit. MSP agrees to maintain complete, clear and accurate records relating to its activities under this Agreement (the “Records”), and to retain such Records for such time period as may be required by law and commercially reasonable prudent practices, but not less than five (5) years. Such Records will be maintained in accordance with standard business practices and Generally Accepted Accounting Principles. MSP will permit Barracuda, or persons designated by Barracuda, at Barracuda’ cost, to audit the Records, up to once per year, to ensure compliance by MSP with its payment and licensing obligations under this Agreement. Any such audit shall be conducted during regular business hours and in such a manner as to not unduly interfere with the normal business activities of MSP. If the audit reveals an underpayment of amounts owed to Barracuda, MSP will promptly pay any such shortfall, and if such underpayment is more than 5% for the audited period, MSP will further pay, or reimburse Barracuda, for the cost of the audit, including professional fees.
4.1 Price. The price for each Product ordered by MSP shall be the price in effect at the time Barracuda accepts a purchase order (as set forth below). MSP must pay for any subscriptions that it selects to purchase or activate from within the Products or in an order, in the manner specified for that optional subscription (if not is specified, then within 30 days of receipt of an invoice).
4.2 Taxes. All fees do not include, and MSP will pay or reimburse Barracuda for, and indemnify, and hold Barracuda harmless from, any and all (a) taxes and any other expenses incurred for any licenses required for clearance at the ports of entry and destination; or (b) applicable sales, customs, duty, use, property, withholding, import or export, value-added, general services, gross receipts, excise and any other taxes or duties imposed under the authority of any foreign, federal, state or local taxing jurisdiction, together with all penalties, interest and collection costs associated with any of the foregoing, except any income taxes assessed upon Barracuda net income ((a) and (b) collectively, “Taxes”). MSP shall not reduce any fees or charges owed to Barracuda as a result of any such Taxes.
4.3 Tax Exemption. If MSP claims exemption from any Taxes, MSP shall furnish Barracuda with a valid exemption certificate with respect to such Taxes, which shall be issued by the appropriate taxation authority or entity in each tax jurisdiction where such certificate is required as a condition for the avoidance of applicable sales or use taxes covering any Product to be resold or licensed under this Agreement, or otherwise, together with any other appropriate exemption certificates and such other documents as Barracuda reasonably requires. Notwithstanding any other term herein, MSP shall reimburse Barracuda for any fines, penalties, taxes or levies, together with reasonable fees and expenses, incurred as a consequence of MSP’s submission of an invalid or inaccurate certificate or information.
5. ORDERING, SHIPMENT, AND PAYMENT.
The terms and conditions of this Section 5 only apply to MSPs authorised by Barracuda to purchase Products and directly from Barracuda.
5.1 Purchase Orders. No terms and conditions contained in any purchase order shall be binding on Barracuda; any such terms and conditions shall be deemed to be without force and effect and the terms and conditions of this Agreement shall govern. All purchase orders are subject to written acceptance by Barracuda and Barracuda reserves the right to reject any purchase order. No purchase order shall be binding on Barracuda until acceptance and shipment of Product. Except as otherwise approved in writing by Barracuda, purchase orders must state detailed information including, but not limited to, a valid purchase order number for invoicing, the quantity of Products ordered, the part numbers and descriptions, correct pricing and discounts, requested delivery schedule (except as otherwise agreed upon by the parties in writing, such delivery schedule shall not exceed sixty (60) days from the date of the purchase order), exact “Bill To” and “Ship To” addresses, the name of the End User, the End User contact name, the End User physical street address (a P.O. box number without a physical address is not valid), phone number, and email address.
5.2 Delivery. All scheduled or quoted delivery dates are approximate. Barracuda will use commercially reasonable efforts to make deliveries in a timely manner, but Barracuda will not be liable for any damages to MSP or to any other party for failure to fill any purchase orders or for any delay in delivery or error in filling any purchase orders for any reason whatsoever. If requested quantities of Products in a purchase order exceed Barracuda’ available inventory, Barracuda will allocate its available inventory as it deems equitable.
5.3 Shipment. Barracuda will select the carrier unless MSP identifies on the purchase order for the Products that it will use its preferred carrier and pays the additional third party carrier fees set forth on the Price List. All shipments from Barracuda will be DAP Barracuda’ shipping location (the Delivery Point) (Incoterms 2010). Title and risk of loss or damage to Products in transit shall pass to MSP at the Delivery Point. MSP will pay all costs, and will at its expense, make and negotiate any claims against any carrier, insurer, customs broker, and freight forwarder or customs collector. Transportation expenses and insurance charges may be paid by Barracuda and added to the invoice by Barracuda, prepaid by MSP, or charged to MSP’s account with the carrier. All Products will be deemed accepted by MSP upon shipment at the Delivery Point. Barracuda may prohibit MSP’s use of third party carriers if MSP does not have a U.S. Employee Identification Number (EIN) to export the Product.
5.4 Importer and Exporter of Record. Barracuda shall not be the Importer of Record or the Exporter of Record for shipment, and MSP or its designated agent will be responsible for import and export including payment or any fees or duties in connection with the export or import.
(a) MSP may, prior to shipment of hardware, terminate any portion or the total quantity of
any purchase order for Product placed under this Agreement, unless the purchase order states that it is non-cancellable and non-refundable.
from Barracuda (“Cancellation Period”). After the Cancellation Period, all purchase orders are non-cancellable, and the fees paid to Barracuda for hardware are non-refundable. Fees for installation or training provided by Barracuda are non-cancellable once performance commences.
5.6 Payment Terms. Terms of payment are immediately if payment is by credit card or net thirty (30) days from the date of invoice from Barracuda if payment is by check, subject to initial and continuing credit approval by Barracuda’ credit department. Fees for the entire term of support services are due in advance of the commencement of the applicable service. All payments shall be made to an account or address specified by Barracuda on the invoice in the applicable currency specified on the invoice. MSP will promptly provide Barracuda with credit information as requested. Barracuda reserves the right at any time, at its sole discretion, to change credit terms to MSP, including requiring C.O.D., advance payment or letter of credit terms. If Barracuda engages a third party to prepare a credit report on MSP, after notice to MSP of its intention to incur third party charges, Barracuda may thereafter invoice MSP for its actual third-party costs and MSP agrees to pay such invoiced amount. Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law. Notwithstanding any other term herein, MSP shall pay all costs and expenses incurred by Barracuda in collecting and receiving payment, including wire transfer or bank fees associated with the payment, and reasonable attorneys’ fees expended or incurred by Barracuda in connection with the collection of any delinquent amounts hereunder. MSP must notify Barracuda of any disputed amounts on an invoice within ninety (90) days of the date of the invoice. MSP’s failure to make a claim within ninety (90) days will forfeit any dispute.
(a) Authorisation to Charge Credit Card. The credit card holder authorises Barracuda to charge all fees and amounts owing as they become due and to charge all unpaid fees upon termination to the credit card on file.
(b) Update Credit Card. The credit card holder must update the credit card authorisation within fifteen (15) days after an unsuccessful attempt by Barracuda to charge the primary or the secondary card for unpaid fees. A $50 fee will be charged by Barracuda if all credit cards are expired, declined or late in making payments.
6. SUBSCRIPTION SERVICES.
6.1 Orders. Each order of subscription support services is only valid for a single unit or units of the Product for which support service is purchased and paid for. Each purchase order for subscription support services must be acknowledged and accepted by Barracuda in writing prior to Barracuda incurring any obligation under such purchase order. Barracuda reserves the right to reject any order for support services.
6.2 Subscription Term. The subscription support services start date shall be determined as follows:
(a) for the initial purchase of support services, the support services start date shall be the later of the (i) activation or (ii) shipment date of the covered Product from Barracuda and (b) for support services renewals, the support services start date shall be the date on which the prior support services period ended. The support services end date will be 12 months from the support services start date, unless otherwise specified in writing by Barracuda. Unless either party provides notice at least thirty (30) days prior to the end of the support services term of its intent not to renew the support services, the support services will automatically renew as set forth on the Order Form, subject to payment being received by Barracuda for such support services.
6.3 Reinstatement. If subscription support services are not ordered concurrently with any Product or are not promptly renewed each year, support services will commence only upon payment of the applicable support fee and a reinstatement fee
7. 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 affiliated entities, including but not limited to this Agreement, trade secrets, technology 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 these terms, to maintain such Confidential Information in confidence. The receiving party shall be liable for a breach of this Section 7 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.
8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS.
MSP acknowledges that the Products are proprietary to Barracuda and its suppliers, and that Barracuda and its suppliers retain exclusive ownership of all Intellectual Property Rights in and to the Products, including in and to any Software and Trademarks. MSP will take all reasonable measures to protect Barracuda’ Intellectual Property Rights in any Product. Except as expressly provided herein, MSP is not granted any right to any Intellectual Property Rights with respect to any Product.
9. EXPORT; COMPLIANCE WITH LAWS.
9.1 Export. All Products, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. MSP acknowledges that it must comply with all applicable laws and regulations of the United States that may restrict the export, re-export, or transhipment of certain commodities and technical information, including the Products, the support services and technical information relating thereto, in any medium. MSP will obtain and maintain all approvals and licenses, including export licenses, permits and authorisations, from the appropriate governmental authorities as may be required to enable MSP to fulfil its obligations under this Agreement and shall comply with all applicable laws, rules, policies and procedures of the United States government. MSP acknowledges that, unless prior written authorisation is obtained from the relevant authorities in the United States, it will not export, re-export, or tranship, directly or indirectly, any Products, support services or technical information relating thereto, in any medium that would be in contravention to any applicable laws and regulations of the United States then in effect. MSP acknowledges that U.S. export laws require certain records to be maintained with regard to resale of Barracuda Products under this Agreement. Upon ten (10) business days’ notice, or as soon as practicable if required sooner by a government or regulatory official request, MSP shall provide Barracuda with electronic copies (unless in a format as otherwise agreed by the parties) of all relevant records required to be retained by MSP pursuant to US laws and regulations. MSP shall indemnify and hold harmless Barracuda for any violation or alleged violation by MSP of such laws or regulations. MSP’s obligations pursuant to this Section shall survive and continue after any termination of rights under this Agreement.
MSP agrees to comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, the OECD Convention on Anti-Bribery and any other anti-corruption or anti-bribery statute in effect in the country or countries in which it does business, and MSP agrees to refrain from engaging in any illegal, unfair or deceptive trade practices, or unethical business practices. MSP will not use any payment or other benefit derived from Barracuda to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement, while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to (a) an employee, officer or other person acting in an official capacity for any government or its instrumentalities; or (b) any political party, party official or candidate for political office; or (c) any other person, under circumstances in which MSP, its directors, employees or agents know, or have reason to know, that all or any portion of such money or thing of value will be offered or given, directly or indirectly, to any person named in items (a) or (b) above to influence a decision or gain any improper advantage for Barracuda in connection with any transaction related to this Agreement.
9.3 MSP Breach and Indemnification. In the event that Barracuda has reason to believe that a breach of this Section 9 has occurred or will occur, Barracuda may, without penalty, (a) withhold further delivery of Products, performance of support services until such time as it has received confirmation to its satisfaction that no breach has occurred or will occur; or (b) immediately terminate this Agreement. Barracuda may request that MSP and its agents, directors and employees certify in writing that it has not and will not breach its obligations under this Section 9 and MSP shall promptly provide such certifications. Notwithstanding any other clause herein, MSP agrees to defend, indemnify, and hold harmless Barracuda from and against any claims, liabilities, costs or expenses resulting from MSP’s violation of such laws or regulations or any breach of this Section 9 by MSP or any of its agents, officers, directors, or employees.
10. WARRANTY DISCLAIMER.
EXCEPT AS PROVIDED BY EXPRESS WRITTEN WARRANTIES OFFERED BY BARRACUDA, BARRACUDA DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ON PRODUCTS OR SERVICES FURNISHED HEREUNDER INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF DESIGN, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
MSP shall promptly return any defective Product under warranty or under support services as follows:
MSP must first obtain a Return Material Authorisation (“RMA”) number from Barracuda. MSP must return the entire contents of the defective Product marked with the RMA number, to a receiving point designated by Barracuda within thirty (30) days of MSP’s receipt of the RMA number. Barracuda will pay the transportation charges (excluding taxes, duties and customs) for shipment of the replacement Product to End User. End User will pay the transportation charges (excluding taxes, duties and customs) for the return of the defective Product to Barracuda. Products returned to Barracuda may be repaired or replaced by Barracuda at Barracuda’ sole discretion in accordance with Barracuda’ warranty to the End User. Replacement products may be new or refurbished in Barracuda’ sole discretion.
12. LIMITATION AND DISCLAIMER OF BARRACUDA’ LIABILITY.
12.1 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, EXCEPT IN CASE OF BODILY INJURY OR DEATH WHERE, AND THEN ONLY TO THE EXTENT THAT, APPLICABLE LAW REQUIRES SUCH LIABILITY, THE MAXIMUM LIABILITY OF BARRACUDA TO MSP, OR TO ANY PARTY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY SALE, USE, OR OTHER APPLICATION OF ANY PRODUCT OR SERVICE DELIVERED TO MSP HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED UPON CONTRACT, WARRANTY, TORT, OR OTHERWISE, SHALL NOT UNDER ANY CIRCUMSTANCE EXCEED THE ACTUAL AMOUNT OWED OR PAID BY MSP FOR THE PRODUCT OR SERVICE GIVING RISE TO SUCH LIABILITY.
12.2 DISCLAIMER OF LIABILITY. EXCEPT IN CASE OF BODILY INJURY OR DEATH WHERE, AND THEN ONLY TO THE EXTENT THAT, APPLICABLE LAW REQUIRES SUCH LIABILITY, BARRACUDA SHALL NOT BE LIABLE FOR ANY OF MSP’S OR END USERS’ LOSS OF PROFITS (EVEN IF THEY ARISE AS A DIRECT OR IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES), LOSS OF BUSINESS, LOSS OF USE OR LOSS OF DATA, INTERRUPTION OF BUSINESS, NOR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF BARRACUDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO CASE WILL BARRACUDA BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE BY MSP, OR ANY AGENT OF MSP.
13. MSP INDEMNITY.
13.1 MSP Indemnity. MSP agrees to defend, indemnify and hold harmless Barracuda from and against any and all damages, liabilities, costs, expenses (including reasonable attorneys’ fees, expert fees and other legal expenses) and settlement amounts incurred in connection with any suit, claim, or action by any third party against Barracuda as a result of the actual or alleged (a) negligence, misrepresentation, act, error or omission by MSP or its representatives relating to or concerning the Products or support services; (b) failure by MSP to distribute the Products to End Users in the form shipped by Barracuda; or (c) infringement of a patent, copyright, trade secret or other intellectual property right of a third party by a product or service of MSP. MSP agrees not to act in any manner or make any representations that would lead any third party to consider that Barracuda is in any way responsible for the acts or omissions of MSP or that MSP is an agent of Barracuda. MSP agrees to limit its warranty and liability to its End Users so as not to increase Barracuda liability beyond that set forth herein and indemnifies and holds harmless Barracuda from any claim or liability by End Users caused by MSP breach of this requirement.
13.2 Barracuda Indemnity. Barracuda will indemnify, hold harmless, defend or, at its option, settle, any claim, action or proceeding brought against MSP by a third party to the extent it relates to, or is based upon, a claim or allegation that a Product infringes a United States patent of a third party, and Barracuda will pay any damages required to be, and actually paid by, MSP in any such action or proceeding that are attributable to any such claim or incurred by MSP through settlement thereof, but Barracuda will not be responsible for any compromise made or expense incurred without its consent. Barracuda will have no obligation or liability to MSP or to any other party with respect to any claim of infringement that is based upon (i) a modification of a Product by anyone other than Barracuda or an authorised subcontractor of Barracuda; (ii) a combination of a Product with any third party software or hardware where such combination is the cause of such infringement; (iii) the use of a version of a Product other than the then-current version if infringement would have been avoided by the use of the then-current version; or (iv) a claim against any Open Source Software. “Open Source Software” means a program in which the source code is freely available to the general public for use and/or modification from its original design, the license of which contains no obligations of warranty or indemnification. Upon notice of an alleged infringement, or if in Barracuda’s opinion such a claim is likely, Barracuda will have the right, at its sole option and expense, to (x) obtain for MSP the right to continue to distribute the applicable Products; (y) modify the applicable Products so that they become non-infringing or substitute other non-infringing hardware or software with similar operating capabilities; or (z) if Barracuda determines that neither (x) nor (y) described above are commercially reasonable, Barracuda may terminate all of MSP’s rights in connection with the applicable Products and, upon return of such all affected Products by MSP to Barracuda, Barracuda will refund the fees paid by MSP for the infringing copies of the Products, less depreciation on a five (5) year straight line basis. THIS SECTION SETS FORTH BARRACUDA’S SOLE AND EXCLUSIVE LIABILITY AND MSP’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT BY THE PRODUCTS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
13.3 Indemnification protocol. Indemnifying party’s obligation to indemnify, defend and pay hereunder is subject to the condition that indemnified party (a) gives indemnifying party prompt written notice of any such claim; (b) permits indemnifying party to have sole control over the defence (including selection of counsel), investigation and all negotiations for the settlement and compromise of any such claim, including any appeals; (c) provides indemnifying party with reasonable cooperation in the investigation, defence or settlement of any such claim, and provides all available information, assistance and authority, at indemnifying party’s expense, to enable indemnifying party to investigate, defend, compromise or settle such claim; and (d) does not enter into any settlement or compromise of any such claim without indemnifying party’s prior written approval.
(a) Either party may terminate this Agreement immediately by giving notice to the other
(b) In addition, a party may terminate this Agreement immediately upon written notice if (i) the other party is insolvent or makes any arrangement with its creditors generally, or has a receiver appointed for all or a substantial part of its business or properties, or an insolvency, bankruptcy or similar proceeding is brought by or against the other party involving the other party as debtor, and, if brought against the other party, is not dismissed within sixty (60) days from its institution, or if the other party goes into liquidation or otherwise ceases to function as a going concern; (ii) there is any infringement by the other party of any of the terminating party’s intellectual property rights; (iii) the other party is in breach or suspected breach of its confidentiality obligations; (iv) the terminating party reasonably considers that its name, reputation, services or personnel are being or have been brought into disrepute through association with the other party. Barracuda may terminate this agreement immediately upon written notice if (i) in Barracuda’ reasonable opinion, any information that MSP provided as part of its application to become a MSP prior to execution of this Agreement was misleading; or (vi) MSP fails to provide requested credit information within ten (10) business days (or such other agreed period) of Barracuda’ request.
(c) Written notice of termination of the Agreement shall be sent in accordance with the notices provision below to the other party at its address stated above or at such other address as may be designated from time to time.
14.2 Effect of Termination. Upon termination of this Agreement by either party, MSP shall discontinue all further promotion, marketing, and, except as set forth in Section 14.3 below, support of the Products and support services. Without limiting the generality of the foregoing, MSP shall cease all display, advertising, and use of the Trademarks and will not thereafter use, advertise, or display any Trademarks. Immediately after termination, for any reason, or expiration of this Agreement (or the expiration of the additional period of support services, if applicable), MSP will immediately return to Barracuda all copies of Confidential Information and all proprietary materials of Barracuda, including Documentation, catalogues and literature in its possession, custody or control. If Barracuda terminates the Agreement without cause, Barracuda will honour quotations under this Agreement made by MSP prior to MSP’s receipt of notice of termination provided that orders based on such quotations are received by Barracuda within fifteen (15) days after the date of the notice of termination.
If this Agreement is terminated for any other reason, Barracuda will be entitled to (a) reject all or part of any purchase orders received from MSP after notice but prior to the effective date of termination; and/or (b) require MSP’s performance of any outstanding purchase orders notwithstanding the fact that delivery dates for such purchase orders may extend beyond the effective date of termination. Furthermore, Barracuda may cancel the shipment of any Products ordered by MSP that have not yet been shipped. Any termination of this Agreement shall not release MSP from any obligation to pay any amount that may then or in the future be owing to Barracuda. Notwithstanding any credit terms extended to MSP prior to that time, any Products shipped during a notice period for termination will be paid for in full by certified or cashier’s check prior to shipment and the payment date of all monies payable by MSP will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been provided previously.
14.3 Survival. Licenses granted in accordance with this Agreement will survive termination and remain in effect in accordance with their terms. Any support services or subscriptions purchased through MSP will survive termination and remain in effect through their then current term, unless such termination is due to MSP’s failure to pay for any such support services or subscriptions. The terms of this Agreement related to payment by MSP, the protection of the Confidential Information, limitations of liability, intellectual property rights, indemnification obligations, dispute resolution, audit rights, export compliance and proprietary rights belonging to Barracuda or its suppliers, shall survive expiration or termination of this Agreement.
15.1 Notices. Notices will be sent to the address set forth above, attention Legal Department, unless a party notifies the other party in writing of an alternative contact and address for notices. Any notices permitted or required under this Agreement will be in writing and will be deemed given when delivered in person, by overnight courier upon written verification of receipt, by confirmed facsimile, or by certified or registered mail, return receipt requested, five (5) days after deposit in the mail.
15.2 Assignment. This Agreement may not be assigned by MSP by operation of law or otherwise without the prior written approval of Barracuda. Barracuda’ rights and obligations, in whole or in part, under this Agreement may be assigned or delegated by Barracuda to any Barracuda affiliate or subsidiary or in connection with a merger, reorganisation, consolidation or sale of all or substantially all of Barracuda’ assets. This Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns.
15.3 Waiver; Severability. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
15.4 Injunctive Relief. It is expressly agreed that a violation of Sections 2 (“Appointment and License; Restrictions”), 3.4 (“License to Trademarks and Compliance”), 7 (“Confidential Information”) or 8 (“Ownership of Intellectual Property Rights”) of this Agreement would cause irreparable harm to Barracuda and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Barracuda will be entitled to temporary, preliminary and permanent injunctive relief or other equitable remedies in the event of any threatened or actual violation of any or all of the provisions hereof, without the requirement of posting a bond or proving actual damages.
15.5 Controlling Law; Venue. This Agreement shall be governed in all respects exclusively by the laws of the State of California and the United States of America without regard to conflicts of law principles. The United Nations Convention on the International Sale of Goods is hereby expressly excluded from application to this Agreement. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in Santa Clara County or the Federal District Court of San Jose, as permitted by law and MSP consents to the exclusive jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens. Notwithstanding the foregoing, Barracuda may enforce any judgment against MSP in its local country or other venue with proper jurisdiction.
15.6 Timing of Disputes. Except as set forth in Section 5.6 (“Payment Terms”), all disagreements or controversies of any kind whether claimed in tort, contract or otherwise concerning this Agreement shall be brought within one (1) year after the occurrence of the event giving rise to the disagreement or controversy.
15.7 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
15.8 Force Majeure. Neither party will have the right to claim damages if this Agreement is terminated as a result of the other party’s failure or delay in performance due to circumstances beyond its reasonable control (except for obligations relating to fees payable under this Agreement), including, but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain labour, energy, components, raw materials or supplies, war, riot, insurrection, epidemic, natural disasters, governmental action or terrorism.
15.9 Counterparts; Facsimile Signatures. This Agreement may be signed in multiple counterparts that together shall form a single agreement as if the parties had executed the same document. The parties agree that execution of this Agreement evidenced by facsimile signature constitutes due execution and delivery thereof and that a photocopy or facsimile copy of the executed Agreement will be binding on and admissible by the parties to the same extent as an executed original.
15.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes, and its terms govern, all prior and all contemporaneous proposals, negotiations, commitments, understandings, agreements or other communications between the parties, oral or written, regarding such subject matter, including any prior reseller or MSP agreements between the parties. Any prior agreements between Barracuda and MSP covering the subject matter of this Agreement are hereby terminated.
15.11 Amendment. This Agreement may not be modified except by a subsequently dated written amendment signed on behalf of Barracuda and MSP by their duly authorised representatives.