Energize Update Software License
PLEASE READ THIS ENERGIZE UPDATE SOFTWARE LICENSE CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING BARRACUDA NETWORKS OR BARRACUDA NETWORKS-SUPPLIED ENERGIZE UPDATE SOFTWARE.
BY DOWNLOADING OR INSTALLING THE ENERGIZE UPDATE SOFTWARE, OR USING THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN (A) DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, OR, IF THE SOFTWARE IS SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM BARRACUDA NETWORKS OR AN AUTHORIZED BARRACUDA NETWORKS RESELLER, AND APPLIES ONLY IF YOU ARE THE ORIGINAL PURCHASER.
The following terms govern your use of the Energize Update Software except to the extent a particular program (a) is the subject of a separate written agreement with Barracuda Networks or (b) includes a separate "click-on" license agreement as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the written agreement, (2) the click-on agreement, and (3) this Energize Update Software License.
License. Subject to the terms and conditions of and except as otherwise provided in this Agreement, Barracuda Networks, Inc., or a Barracuda Networks, Inc. subsidiary (collectively "Barracuda Networks"), grants to the end-user ("Customer") a nonexclusive and nontransferable license to use the Barracuda Networks Energize Update program modules and data files for which Customer has paid the required license fees (the "Energize Update Software"). In addition, the foregoing license shall also be subject to the following limitations, as applicable:
Unless otherwise expressly provided in the documentation, Customer shall use the Energize Update Software solely as embedded in, for execution on, or (where the applicable documentation permits installation on non-Barracuda Networks equipment) for communication with Barracuda Networks equipment owned or leased by Customer; Customer's use of the Energize Update Software shall be limited to use on a single hardware chassis, on a single central processing unit, as applicable, or use on such greater number of chassis or central processing units as Customer may have paid Barracuda Networks the required license fee; and Customer's use of the Energize Update Software shall also be limited, as applicable and set forth in Customer's purchase order or in Barracuda Networks' product catalog, user documentation, or web site, to a maximum number of (a) seats (i.e. users with access to the installed Energize Update Software), (b) concurrent users, sessions, ports, and/or issued and outstanding IP addresses, and/or (c) central processing unit cycles or instructions per second. Customer's use of the Energize Update Software shall also be limited by any other restrictions set forth in Customer's purchase order or in Barracuda Networks' product catalog, user documentation or web site for the Energize Update Software.
General Limitations. Except as otherwise expressly provided under this Agreement, Customer shall have no right, and Customer specifically agrees not to:
(i) transfer, assign or sublicense its license rights to any other person, or use the Energize Update Software on unauthorized or secondhand Barracuda Networks equipment, and any such attempted transfer, assignment or sublicense shall be void;
(ii) make error corrections to or otherwise modify or adapt the Energize Update Software or create derivative works based upon the Energize Update Software, or to permit third parties to do the same; or
(iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Energize Update Software to human-readable form to gain access to trade secrets or confidential information in the Energize Update Software.
Upgrades and Additional Copies. For purposes of this Agreement, "Energize Update Software" shall include (and the terms and conditions of this Agreement shall apply to) any Energize Update upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or backup copies of the Energize Update Software licensed or provided to Customer by Barracuda Networks or an authorized distributor/reseller for which Customer has paid the applicable license fees. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL ENERGIZE UPDATE SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE; (2) USE OF UPGRADES IS LIMITED TO BARRACUDA NETWORKS EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE ENERGIZE UPDATE SOFTWARE WHICH IS BEING UPGRADED; AND (3) USE OF ADDITIONAL COPIES IS LIMITED TO BACKUP PURPOSES ONLY.
Energize Update Changes. Barracuda Networks reserves the right at any time not to release or to discontinue release of any Energize Update Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Energize Update Software.
Proprietary Notices. Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Energize Update Software in the same form and manner that such copyright and other proprietary notices are included on the Energize Update Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Energize Update Software without the prior written permission of Barracuda Networks. Customer may make such backup copies of the Energize Update Software as may be necessary for Customer's lawful use, provided Customer affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original.
Protection of Information. Customer agrees that aspects of the Energize Update Software and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Barracuda Networks. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Barracuda Networks. Customer shall implement reasonable security measures to protect and maintain the confidentiality of such trade secrets and copyrighted material. Title to Energize Update Software and documentation shall remain solely with Barracuda Networks.
Indemnity. Customer agrees to indemnify, hold harmless and defend Barracuda Networks and its affiliates, subsidiaries, officers, directors, employees and agents at Customers expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys fees and other dispute resolution expenses) incurred by Barracuda Networks arising out of or relating to Customers (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the Barracuda Networks Energize Update Software.
Term and Termination. This License is effective upon date of delivery to Customer of the initial Energize Update Software (but in case of resale by a Barracuda Networks distributor or reseller, commencing not more than sixty (60) days after original Energize Update Software purchase from Barracuda Networks) and continues for the period for which Customer has paid the required license fees. Customer may terminate this License at any time by notifying Barracuda Networks and ceasing all use of the Energize Update Software. By terminating this License, Customer forfeits any refund of license fees paid and is responsible for paying any and all outstanding invoices. Customer's rights under this License will terminate immediately without notice from Barracuda Networks if Customer fails to comply with any provision of this License. Upon termination, Customer must cease use of all copies of Energize Update Software in its possession or control.
Export. Software, including technical data, may be subject to U.S. export control laws, including 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 Energize Update Software.
Restricted Rights. Barracuda Networks' commercial software and commercial computer software documentation is provided to United States Government agencies in accordance with the terms of this Agreement, and per subparagraph "(c)" of the "Commercial Computer Software - Restricted Rights" clause at FAR 52.227-19 (June 1987). For DOD agencies, the restrictions set forth in the "Technical Data-Commercial Items" clause at DFARS 252.227-7015 (Nov 1995) shall also apply.
No Warranty. The Energize Update Software is provided AS IS. Customer's sole and exclusive remedy and the entire liability of Barracuda Networks under this Energize Update Software License Agreement will be, at Barracuda Networks option, repair, replacement, or refund of the Energize Update Software.
In no event does Barracuda Networks warrant that the Energize Update Software is error free or that Customer will be able to operate the Energize Update 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 Energize Update Software or any equipment, system or network on which the Energize Update Software is used will be free of vulnerability to intrusion or attack.
Renewal. At the end of the Energize Update Service Period, Customer may have the option to renew the Energize Update Service at the current list price, provided such Energize Update Service is available. All initial subscriptions commence at the time of sale of the unit and all renewals commence at the expiration of the previous valid subscription.
DISCLAIMER OF WARRANTY. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
General Terms Applicable to the Energize Update Software License
Disclaimer of Liabilities. IN NO EVENT WILL BARRACUDA NETWORKS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE ENERGIZE UPDATE SOFTWARE EVEN IF BARRACUDA NETWORKS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Barracuda Networks' liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This Energize Update Software License shall be governed by and construed in accordance with the laws of the State of California, without reference to principles of conflict of laws, provided that for Customers located in a member state of the European Union, Norway or Switzerland, English law shall apply. The United Nations Convention on the International Sale of Goods shall not apply. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Energize Update Software License shall remain in full force and effect. Except as expressly provided herein, the Energize Update Software License constitutes the entire agreement between the parties with respect to the license of the Energize Update Software and supersedes any conflicting or additional terms contained in the purchase order.