END USER SUBSCRIPTION AGREEMENT

Last Updated: September 15, 2016

This End User Subscription Agreement (the “Agreement”) governs the purchase, access, and use of Products by the Customer listed on an Order with Zscaler (hereinafter “Customer” or “You” or “Your”).

In order to use or receive the benefits of any Product, You must purchase the applicable Product through an Order with Zscaler. If Zscaler introduces new Products in the future, such Products will be governed by this Agreement, depending on their Product category (i.e. SaaS, Software, Hardware, etc.)

IF YOU HAVE ARRIVED AT THIS PAGE DURING THE PROCESS OF INSTALLING, DOWNLOADING, ACCESSING, OR DEPLOYING A PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT BY PROCEEDING WITH THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE OF THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE FOREGOING, DISCONTINUE THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE. IF YOU PROCEED WITH INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER.

This Agreement may be periodically updated and the current version will be posted at www.zscaler.com/legal. Your continued use of the Products after a revised Agreement has been posted constitutes your acceptance of its terms.


1.        DEFINITIONS

1.1    “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party. 

1.2    “Aggregated Data” means Customer Data (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner from which Customer’s or Customer Users’ identity may not be derived. 

1.3    “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.

1.4    “Customer Data” means all data or information submitted by or on behalf of Customer to the Products. 

1.5   “Customer Users” means employees, agents, guests (for Guest Wi-Fi Security only) and other third parties authorized by Customer to download, deploy, access, install, or use the Products.

1.6    “DAS” means the deployment advisory services provided by Zscaler to Customer, as further described in the Product Sheets.

1.7   “Product Sheets” means the Zscaler Materials available at www.zscaler.com/productsheets that provide Product descriptions and terms applicable to specific Products.

1.8   “Documentation” means the user manuals generally provided in writing by Zscaler to end users of the Products in electronic format, as amended from time to time by Zscaler.

1.8     “Fees” means any fees paid for Products under an Order.

1.9   “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Zscaler's possession or reasonable control, and denial of service attacks.

1.10   “Hardware” means the hardware used to connect to the SaaS, as further described in the Product Sheets. 

1.11     “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

1.12   “Location” means a subscription for a specific access point to the Internet in connection with the SaaS. 

1.13  “Order” means a written order form, purchase order, or similar ordering document for Products submitted to Zscaler, and approved by Zscaler.

1.14   “Partner” means the Zscaler-approved partner authorized by Zscaler to resell or otherwise provide Products to end user customers. 

1.15    “Products” means, collectively, all Zscaler SaaS, Software, Hardware, DAS, Professional Services, Training, and Support Services. 

1.16   “Professional Services” means the professional services provided by Zscaler to Customer as set forth in a Statement of Work. 

1.17    “SaaS” means the subscription cloud-based service provided by Zscaler for the Subscription Term set forth in the Order, as further described in the Product Sheets.

1.18   “Seat” means a subscription for a specific individual user that accesses the Internet in connection with the SaaS.

1.19  “Software” means any Zscaler software, utility, tool or other computer or program code, in object (binary) or source-code form provided, directly or indirectly to Customer as well as to any copies (whether complete or partial) made by or on Customer’s behalf, as further described in the Product Sheets. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to Customer.

1.20   “Statement of Work” or “SOW” means a separate statement of work executed by the parties covering Professional Services being provided to Customer by Zscaler. All SOWs will be governed by the terms and conditions in this Agreement, except as otherwise stated in the SOW. 

1.21     “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms together.

1.22    “Support Services” means the support services provided by Zscaler with respect to each applicable Product, including Support Services provided through a Technical Account Manager (TAM), as further described in the Product Sheets.

1.23    “Third Party Materials” means software or other components that are licensed to Zscaler by third parties for use in a Product, including but not limited to open source software.

1.24     “Training” means the Product-related training provided by Zscaler, as further described in the Product Sheets. 

1.25     “Zscaler” means Zscaler, Inc., a Delaware corporation with its principal place of business at 110 Rose Orchard Way, San Jose, CA 95134 USA.

1.26    "Zscaler Materials" means all Zscaler proprietary materials, Intellectual Property Rights for all Products and Documentation, Zscaler’s processes and methods, and/or materials distributed by Zscaler during any presentations, proof of concepts, or demonstrations of Zscaler Products.  Zscaler Materials does not include Third Party Materials.

2.    ORDERS.   Customer may order Products through an Order. All Orders shall be governed by the terms and conditions in this Agreement. For clarity, Zscaler will not be obligated to provide any Products to Customer until Zscaler receives a valid Order for such Products. Customer agrees that its purchase of any Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Zscaler with respect to any future functionality or features. 

3.    PAYMENT.   Unless otherwise agreed to in writing by the parties, Fees and payment terms shall be agreed and documented between Customer and the Partner.  Customer agrees and understands that if Partner does not pay Zscaler the Fees due for the Services within the agreed time period, Zscaler reserves the right to suspend Customer’s access and use of the Services until such Fees are paid.

4.   INTELLECTUAL PROPERTY; RESTRICTIONS; GUIDELINES AND THIRD PARTY MATERIALS

4.1  Ownership and Intellectual Property Rights

4.1.1   Zscaler.  All rights and title in and to the Products, Zscaler Materials, and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Zscaler and its licensors. No rights are granted to Customer other than as expressly set forth in this Agreement.

4.1.2  Customer.  All rights and title in and to the Customer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Customer. No rights are granted to Zscaler other than as expressly set forth in this Agreement.

4.2   Restrictions.

4.2.1   Customer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Products or Zscaler Materials; (ii) reverse engineer the Products; (iii) access the Products in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Products; (iv) use the Products to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Products to send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Products to access blocked services in violation of applicable laws; (vii) upload to the Products or use the Products to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Products to run automated queries to web sites (as the web site may blacklist Zscaler IPs for all of its customers); (ix) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (x) attempt to gain unauthorized access to the Products or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; or (xii) without the express prior written consent of Zscaler, conduct any benchmarking or comparative study or analysis involving the Products (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Products to interoperate with Customer’s internal systems.

4.2.2   In addition to the restrictions in Section 4.2.1, Customer agrees that it shall: (i) use the Products solely for its internal business purposes; (ii) only permit access to the Products by Customer Users; and (iii) not access or use the Products from an embargoed nation, including without limitation, Cuba, Iran, North Korea, Syria, Sudan, Crimea Region of Ukraine, or any other country/region that becomes an embargoed nation.  

4.3. Customer Guidelines and Responsibilities.  Customer agrees and understands that (i) it is responsible for all activity of Customer Users and for Customer Users’ compliance with this Agreement; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Products, and notify Zscaler promptly of any such unauthorized access or use; and (c) comply with all applicable laws in using the Products; (iii) the Products shall not include Customer’s connection to the Internet or any equipment or third party licenses necessary for Customer to use the Products, which shall be Customer’s sole responsibility; (iv) in order for Zscaler to provide the SaaS, Customer is responsible for forwarding its web traffic to Zscaler via valid forwarding mechanisms that allow for automatic fail over (i.e. PAC, IPSEC, GRE tunnels, and/or Zscaler App); (v) it is responsible for supplying Zscaler with any technical data and other information Zscaler may reasonably request to allow Zscaler to provide the Products to Customer; and (vi) Zscaler shall have the right to (a) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Products; (b) utilize the malware, spam, botnets, or other information related to the SaaS for the purposes of (1) maintaining, improving and/or analyzing the SaaS, (2) complying with all legal or contractual requirements, and/or (3) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the SaaS; and (c) develop and commercialize benchmarks and measures based on Aggregated Data. The foregoing shall in no way limit Zscaler’s confidentiality obligations set forth in this Agreement.     

4.4  Zscaler Guidelines and Responsibilities.

4.4.1   Zscaler shall not use, access, or modify the Customer Data except as set forth in this Agreement;

4.4.2   Zscaler shall use commercially reasonable measures to maintain the security and integrity of the Products and the Customer Data and to provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Customer Data;

4.4.3   Zscaler reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Zscaler’s obligations regarding the Customer Data; and

4.4.4   Zscaler reserves the right to suspend Customer’s access to or download of Products in the event Customer’s use of the Products represents an imminent threat to Zscaler’s network, or if so directed by a court or competent authority. In such cases, Zscaler will (i) suspend such Products only to the extent reasonably necessary to prevent any harm to Zscaler’s network (for example, blocking offending source IP addresses); (ii) use its best efforts to promptly contact Customer and give Customer the opportunity to promptly change the configuration of its server(s) accordingly and/or work with Customer to promptly resolve the issues causing the suspension of such Products; and (iii) reinstate any suspended Products immediately after any issue is abated.

4.5   Third Party Materials.  Customer acknowledges that the Products may include Third Party Materials.  Zscaler represents that these Third Party Materials will not diminish the license rights provided herein or limit Customer’s ability to use the Products in accordance with the applicable Documentation, and the use or inclusion of Third Party Materials in any Products will not create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license. To the extent certain portions of the Products are distributed under and subject to open source licenses obligating Zscaler to make the source code for such portions publicly available, Zscaler will make such source code portions (including Zscaler modifications, as appropriate) available to Customer upon request.

5.     WARRANTIES

5.1     Mutual Warranty.   Each party represents and warrants that it has the legal power and authority to enter into this Agreement. 

5.2     SaaS and Software Warranty.  Zscaler warrants that the SaaS and/or Software will be free of defects under normal use and substantially conforms to the Documentation.  If Customer believes the warranty stated in this Section has been breached, Customer must notify Zscaler of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and if Zscaler determines that a defect exists, Zscaler will promptly correct the non-conformity at its own expense.

5.3     Hardware Warranty.  Zscaler warrants that the Hardware will perform substantially in accordance with the applicable Documentation. The warranty stated in this Section shall not apply if the Hardware has: (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by Zscaler; (ii) been repaired or altered by persons other than Zscaler; (iii) not been installed, operated, repaired and maintained in accordance with the Documentation; or (iv) been used with any third party software or hardware which has not been previously approved in writing by Zscaler.  If during this warranty period: (a) Zscaler is notified promptly in writing upon discovery of any error in a Hardware, including a detailed description of such alleged error; (b) such Hardware is returned to Zscaler, transportation charges prepaid by Zscaler; and (c) Zscaler’s inspections and tests determine that the Hardware contains errors and has not been subjected to any of the conditions set forth in (i) through (iv) above, then Zscaler shall, at Zscaler’s option, repair or replace the Hardware, at Zscaler’s expense. 

5.4     DAS, Professional Services, and Training Warranty.  Zscaler warrants that any DAS, Professional Services, and/or Training will be performed in a professional manner in accordance with industry standards for like services.  If Customer believes the warranty stated in this Section has been breached, Customer must notify Zscaler of the breach no later than thirty (30) days following the date the DAS were performed. If Zscaler determines that a breach of this warranty occurred, Zscaler will promptly correct or re-perform the DAS, Professional Services, and/or Training at its own expense.

5.5     Support Services and TAM Warranty.  Zscaler warrants that the Support Services, including Support Services provided by a TAM, will be performed in a professional manner in accordance with industry standards for like services, but does not guarantee that every question or problem will be resolved.  Zscaler’s obligation to provide Support Services, through a TAM or otherwise, does not include services requested as a result of causes or errors which are not attributable to Zscaler or its authorized agents. If, upon investigating the cause of the incident, Zscaler determines that there is a defect in the Product, Zscaler will provide a remedy in the form of a workaround, or another version of the Product that includes a bug fix for the defect. Customer agrees to provide reasonable support information necessary to understand and resolve the incident, which may include log files, configuration files and/or error messages. 

5.6     Sole Remedies.  Except for any Service Level Credits described in an applicable Service Level Agreement for SaaS, the remedies stated in Sections 5.2 through 5.5 above are the sole remedies, and Zscaler’s sole obligation, with respect to Products that fail to comply with the foregoing warranties.   

5.7     Disclaimer of Warranties.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER.  ZSCALER EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.  ZSCALER ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT PRODUCTS WILL BE ERROR-FREE.

6.       CONFIDENTIAL INFORMATION

6.1   Definition of Confidential Information.  As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Products, the Zscaler Materials, Zscaler’s security information and reports, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

6.2   Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to the same confidentiality obligations.   

6.3   Protection. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.  

6.4   Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

6.5   Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.

7.       TERM AND TERMINATION

7.1    Agreement Term.  This Agreement shall continue in effect for as long as Customer subscribes to the SaaS. 

7.2.   Order Term.  For each specific Product, the applicable Order term will be as follows:

7.2.1   SaaS.  The term of Customer’s subscription to the SaaS will begin on the subscription start date set forth in an Order and will continue for the period of time stated in the Order (“Initial Subscription Term”).  Prior to the end of the Initial Subscription Term, the parties will work together to agree on the length and pricing for a renewal term (“Renewal Subscription Term”); otherwise, Customer’s subscription will terminate at the end of the Initial Subscription Term. 

7.2.2   Software and Hardware.  Software and Hardware will be licensed for length of time set forth in the Order, or if not stated in the Order, for the same length of time as the Subscription Term. Customer’s license to the Software and/or use of the Hardware will automatically terminate upon the termination or expiration of the Subscription Term. 

7.2.3   DAS.  DAS will be provided to Customer based on a mutually agreed-upon timeline, and will continue until complete. Any DAS hours not used within sixty (60) days of the Order date will expire. 

7.2.4   Professional Services.  Professional Services will be provided to Customer on a time and materials basis (pursuant to a mutually agreed upon timeline set forth in the SOW) and will continue until complete. Any Professional Services not completed within six (6) months of the Order date will expire, unless otherwise stated in the SOW. 

7.2.5   Training.  Training will be provided to Customer based on a mutually agreed-upon timeline, and will continue until complete. Any Training not completed within twelve (12) months of the Order date will expire.

7.2.6   Support Services and TAM.  Standard Support Services will continue for the same length of time as the Subscription Term. Support Services (including a TAM) will continue for the length of time set forth in the Order, or if not stated in the Order, for the same length of time as the Subscription Term. Support Services (including a TAM) will automatically terminate upon the termination or expiration of the Subscription Term.

7.3   Termination for Material Breach.  Either party may terminate this Agreement and any Order (i) if the other party breaches any terms and conditions of this Agreement or the applicable Order and does not cure such breach within thirty (30) days of receiving notice of such breach (the “Cure Period”); or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, this Agreement and any Order shall terminate automatically in the event Customer has breached any license restriction set forth in Section 4.2 and, in Zscaler’s determination, that breach cannot be adequately cured within the Cure Period. 

7.4    Effect of Termination.  The following provisions shall survive the termination of this Agreement and all Orders:  Section 3 (Payment), Section 4 (Intellectual Property; Restrictions; Guidelines and Third Party Materials), Section 5.7 (Disclaimer of Warranties), Section 6 (Confidential Information), Section 7.4 (Effect of Termination), Section 8 (Indemnity), Section 9 (Limitation of Liability), Section 10 (Export Control and U.S. Government Restricted Rights), and Section 11 (General Provisions).

8.        INDEMNITY

8.1    Zscaler will indemnify and hold Customer harmless, from and against any claim against Customer by reason of Customer’s use of the Products as permitted hereunder, brought by a third party alleging that the Products or Zscaler Materials infringe or misappropriate a third party’s valid United States patent, copyright, trademark or trade secret.  Zscaler shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Zscaler for such defense.  If the Products, or parts thereof, become, or in Zscaler’s opinion may become, the subject of an infringement claim, Zscaler may, at its option: (a) procure for Customer the right to continue using the Products as set forth herein; (b) replace or modify the Products to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Zscaler, terminate this Agreement and the applicable Order and refund Customer, on a pro-rated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term. THIS SECTION 8.1 STATES ZSCALER’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR ZSCALER MATERIALS.

8.2     Zscaler will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Products by anyone other than Zscaler; or (iii) the combination, operation, or use of the Products with other hardware or software not provided by Zscaler where the Products would not by itself be infringing.

8.3   Customer will indemnify and hold Zscaler harmless against any claim brought by a third party against Zscaler arising from or related to Customer’s violation of Section 4.2 of this Agreement.

8.4   The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.

9.       LIMITATION OF LIABILITY

9.1     Waiver of Consequential Damages.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9.2     Limitation of Monetary Damages.  EXCEPT FOR DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OR CUSTOMER’S VIOLATION OF SECTION 4.2, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER, SHALL BE LIMITED TO THE TOTAL AMOUNTS RECEIVED BY ZSCALER FOR THE RELEVANT ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.

9.3     Applicability.  THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.

10.      EXPORT COMPLIANCE AND U.S. GOVERNMENT RESTRICTED RIGHTS

10.1    Export Compliance.  The Products and other software or components of the Products which Zscaler may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls. Customer agrees to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls. Customer agrees to indemnify Zscaler for any breach of this provision.

10.2    U.S. Government Restricted Rights.  The Products and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR section 227.7202 and FAR section 12.212, as applicable.  All Products and Zscaler Materials are and were developed solely at private expense.  Any use, modification, reproduction, release, performance, display or disclosure of the Products, Zscaler Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement. 

11.       GENERAL PROVISIONS

11.1   Relationship of the Parties.  The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

11.2   Notices.  All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as listed in the Order, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.

11.3   Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.4  Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. 

11.5  Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 

11.6  Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. 

11.7  Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.

11.8  Entire Agreement.  This Agreement, including all Product Sheets and Orders, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No terms or conditions set forth on any purchase order, preprinted form or other document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.