SINGLE SALE AGREEMENT
Last Updated: June 1, 2020
You (“You”, “Your,” or related terms) are in the business of marketing, reselling, and distributing security-related products and/or services;
Zscaler provides cloud security services and products (the “Products”) and You have qualified a lead for the purchase of the Products and wish to resell the Products to such end user company (hereinafter “Customer”);
Information regarding the Customer and the Products will be detailed in a Zscaler-approved sales proposal/quote between You and Zscaler (hereinafter the “Order”);
This Single Sale Agreement (“Agreement”) may be periodically updated and the current version will be posted at https://www.zscaler.com/legal;
Now therefore, in consideration for the mutual covenants and obligations set forth herein, the parties hereby agree as follows:
1. Right to Resell
1.1 Qualified Lead. You represent and warrant to Zscaler that the Customer named in Your Order with Zscaler is an entity that is in the market to purchase the Products.
1.2 Appointment. Zscaler hereby appoints You and You hereby accept a non-exclusive, non-transferable, and non-assignable appointment to resell the Products to Customer. Notwithstanding the foregoing, nothing in this Agreement shall be construed as limiting Zscaler’s marketing or distribution activities or its appointment of other resellers, licensees, or agents of any kind.
1.3 Discount and Pricing. You shall receive a discount off of Zscaler’s Retail Price List, as determined by Zscaler, for reselling the Products to the Customer. You are free to determine Your own resale prices that You charge Customer for the Products.
1.4 EUSA. You acknowledge and agree that each Customer must agree to a “click-through” end user subscription agreement (“EUSA”) with Zscaler which is built into the Products and Customer’s access and use of the Products is conditioned on Customer’s acceptance of the EUSA. You understand and agree that You cannot provide Customer with any terms regarding the Products that are not set forth in the EUSA. You further agree to promptly inform Zscaler of all known breaches by Customer of the EUSA.
1.5 Expenses. Each party will bear all of its costs and expenses incurred in connection with entering into this Agreement and performing its obligations hereunder.
1.6 Taxes. You are responsible for payment of any applicable taxes that are levied or imposed by any governmental authority on the use, subscription, transfer, possession, or delivery of the Products, including any sales, use, VAT, excise, export or other tax, duty or other charge of any kind or nature (excluding any tax that is based on Zscaler's net income). If Zscaler is required to pay or collect any such taxes, then You agree to immediately reimburse Zscaler.
1.7 Resale Certificate. If You are based in the United States, You agree to provide Zscaler with Your Resale Certificate within thirty (30) days of the date of the Order
1.8 Export Compliance and Use. 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. You agree to comply with applicable laws in connection with Your obligations hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls. You may not resell the Products to a Customer in 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. You agree to indemnify Zscaler for any breach of this provision.
1.9 Anti-Bribery Compliance. Neither You nor any party acting on Your behalf (including Your subsidiaries, agents, directors or employees (collectively, “Affiliates”)) have taken or will take any action that might cause Zscaler to violate the U.S. Foreign Corrupt Practices Act (“FCPA”), the OECD Convention on Anti-Bribery, the United Kingdom Bribery Act of 2010 (“Bribery Act”), or any other applicable anti-bribery laws or international anti-bribery standards. Specifically, You and Your Affiliates will not (directly or indirectly) authorize, offer, give, or agree to offer or give any payment, loan, gift or anything of value to influence:
- a person to act in breach of an expectation of good faith, impartiality or trust in order to gain any advantage for Zscaler in connection with any transaction related to this Agreement; or
- any Government Official to make a decision or take an action to gain any advantage for Zscaler in connection with any transaction related to this Agreement.
No payment shall be made to anyone for any reason on behalf of or for the benefit of Zscaler which is not properly and accurately recorded in Your books and records.
In the event Zscaler has reason to believe that a breach of this Section has occurred or will occur, Zscaler may (a) retain an independent third party which will have the right and Your full cooperation to conduct an audit of Your records to determine if a breach has occurred; (b) without penalty, withhold further delivery of the Products and other performance under this Agreement until such time as it has received confirmation to its satisfaction that no breach has or will occur; and/or (c) without penalty terminate this Agreement immediately under Section. You will indemnify and hold Zscaler harmless against any and all expenses, claims, losses or damages arising from or related to any breach of this Section or the cancellation of the Agreement for breach of this Section.
Upon Zscaler's request, You and Your Affiliates will complete and return a certification of compliance, in a form acceptable to Zscaler in its sole discretion, that You and Your Affiliates have complied with this Section and have read, understand, and agreed to comply with Zscaler’s anti-corruption policies. You will notify Your Affiliates of the requirements of this Section and provide anticorruption training to Your Affiliates.
No Affiliate is, or will become, a Government Official during the term of this Agreement without notice to Zscaler. For purposes of this Section, the term “Government Official” means (i) both paid and unpaid government employees and officials of any government, or agency or instrumentality thereof; (ii) the employees and officials of any state-owned businesses (whether wholly or partially owned) or quasi-governmental instrumentalities; and (iii) any political party or official thereof or any candidate for political office.
2. Confidential Information
2.1 Definition of Confidential Information. The term “Confidential Information” means (a) information provided in writing by one party to the other party, marked “Confidential” or “Proprietary” or with words of similar meaning; and (b) whether or not marked “Confidential,” this Agreement (including without limitation pricing information), the Products and all code, inventions, algorithms, know-how and ideas relating thereto (whether patentable or not), the operation of the Products, and all associated documentation; (c) whether or not marked “Confidential,” the records provided by You, all customer lists and potential customer lists, marketing and financial information, business plans and technical information, whether written or verbal, of either party disclosed under this Agreement; (d) any other information that by its nature or content is reasonably distinguishable as confidential or proprietary to the party receiving the Confidential Information. However, Confidential Information shall not include information which is (i) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality hereunder), (ii) independently developed by the receiving party without reference to or reliance on any Confidential Information of the disclosing party, as demonstrated by written records of the receiving party, or (iii) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information, and without breach of any obligation of confidentiality.
2.2 Non-Use and Nondisclosure. Neither party to this Agreement shall disclose any Confidential Information to any third party for any reason, and shall only disclose Confidential Information to its employees who have a need to know such information and are under a legally binding obligation of confidentiality. Each party shall keep and have its employees keep all Confidential Information of the other party confidential and shall not copy or disclose the same, or authorize its employees to copy or disclose the same, except as specifically authorized by this Agreement, without the prior written consent of the disclosing party. Each party may use Confidential Information only for the purpose of exercising its rights and performing its obligations pursuant to this Agreement. Each party shall use no less than a reasonable degree of care to ensure the protection of the Confidential Information disclosed by the other party. These obligations of confidentiality and nondisclosure shall be in effect for the term of this Agreement and for a period of three (3) years thereafter. This Agreement does not affect any nondisclosure agreement existing between the parties as of the date of this Agreement.
2.3 Return of Confidential Information. Upon the disclosing party’s written request, or upon expiration or termination of this Agreement, the receiving party shall return to the disclosing party all originals and all reproductions and copies of all Confidential Information, whether printed or otherwise, and delete all Confidential Information from its electronic records and shall certify to the disclosing party that it has done so, in a writing signed by an officer of the receiving party; notwithstanding the forgoing, the receiving party may retain a copy of those records necessary to establish rights of payment, or which must be retained to satisfy reporting or legal obligations, provided that such archival copy is kept confidential until destroyed.
3. Intellectual Property
3.1 Definition of Intellectual Property. The term “Intellectual Property Rights” means all 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.
3.2 Ownership of Intellectual Property. All rights and title in and to the Products including all Intellectual Property Rights inherent therein, belong exclusively to Zscaler and/or its licensors. No rights are granted to You other than as expressly set forth in this Agreement.
4. Indemnification and Limitation of Liability
You agree to defend and indemnify Zscaler against any and all claims, expenses, losses, damages and liabilities (including without limitation reasonable attorneys’ fees) that Zscaler may incur as a result of (i) any breach by You or Your employees or agents of this Agreement; and (ii) any unauthorized representations, statements, or warranties You make to the Customer regarding the Products. TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW, ZSCALER’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.
5. No Prior Agreements
You hereby represent and warrant to Zscaler that Your execution of this Agreement and the performance of the Products contemplated hereunder will not violate or breach any agreement with any third party, including other clients, customers or partners.
6. Relationship of the Parties
The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party nor its employees has the authority to bind or commit the other party in any way or to incur any obligation on its behalf. Both parties agree that any and all terms, commitments and obligations with respect to the Products will solely be made by Zscaler.
7. Governing Law
This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of law provisions.
8. Entire Agreement and Construction
This Agreement and any Order(s) constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or any other order documentation that You submit to Zscaler shall be incorporated into or form any part of this Agreement, and all such terms or conditions are expressly rejected by Zscaler.