End User Subscription Agreement for U.S. Government Customers

Introduction

This End User Subscription Agreement for U.S. Government Customers (the “Agreement”) governs the purchase, access, and use of Products by the U.S. Government Customer listed on an Order (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. This Agreement applies to all current and future use and access of Zscaler products and services by Customer unless expressly agreed otherwise by Customer and Zscaler.

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/overview. Your continued use of the Products after a revised Agreement has been posted constitutes your acceptance of its terms.

1. Definitions

“Affiliate” means any entity controlled, directly or indirectly, by, under common control with, or controlling, a party, and specifically includes without limitation, subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control. For the purposes of this definition, “control” means the power to direct, or cause the direction of, the management and policies of such entity whether by contract, law, or ownership of the majority of the voting shares or assets of another entity.

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

“Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install the Products.

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

“Deployment Services” means the deployment and related services for the Products provided by Zscaler to Customer as described in the Order.

“Documentation” means the documentation and usage guidelines for the Products, as updated from time to time by Zscaler.

“Fees” means any fees paid or to be paid for Products under an Order.

“Force Majeure Event” means any circumstances which are unforeseeable, and beyond the reasonable control of the party affected, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider or hosting facility failures or delays, hardware, software or power systems not provided by Zscaler, or acts undertaken by third parties, including without limitation denial of service attacks.

“Hardware” means the Zscaler-provided hardware used to connect to the SaaS.

“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, in any state, country, or jurisdiction.

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

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

“Products” means, collectively, the Zscaler SaaS, Software, Hardware, Deployment Services, and Support Services, including all Upgrades.

“Public Sector Customers” are Customers authorized to use Products pursuant to an Order under the Agreement and are a United States Federal agency or department (as well as any eligible ordering activity purchasing through a Federal Supply Schedule Contract, as defined in GSA Order OGP 4800.2I or its successor) but only to the extent the Products are being used in an Authorized User’s official capacity as a U.S. Federal Government official, employee or agent for the Customer’s and its Affiliates’ internal use (“Official Use”). Customers who are not bona fide Public Sector Customers are not eligible to use Products according to the terms of this End User Subscription Agreement (Government Cloud) but, instead, will be subject to terms included in Zscaler’s standard End User Subscription Agreement, which is available at: https://www.zscaler.com/legal/end-user-subscription-agreement.

“SaaS” means the subscription cloud-based service provided by Zscaler for the Subscription Term set forth in the Order.

“SLAs” means the Service Level Agreements provided by Zscaler for each applicable Product, described at https://www.zscaler.com/legal/sla-support.

“Software” means any Zscaler software, utility, tool, or other computer or program code provided directly or indirectly to Customer in object (binary) code only, as well as any copies (whether complete or partial) made by or on Customer’s behalf. 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.

“Subscription Term” means the Initial Subscription Term and any and all Renewal Subscription Terms (as defined in Section 7.2) collectively.

“Support Services” means the support services provided by Zscaler with respect to each applicable Product described at  https://www.zscaler.com/legal/sla-support.

“Upgrades” means all cloud wide modifications, enhancements, and corrections to the Products made by Zscaler, including (i) corrections of failures to conform to or to operate in accordance with the Documentation; (ii) temporary and permanent error corrections delivered as part of the Support Services; and (iii) all additions, updates, new versions and releases, new features, and changes made by Zscaler in response to legal, technological, or other developments. For clarity, “Upgrades” does not include any additional features or enhancements made available to customers by Zscaler for an additional cost.

“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 the Products.

2. Orders

2.1 Governing Terms. Customer and its Affiliates may purchase Products through an Order.  All Orders and Customer’s access and use of the Products will be governed by the terms and conditions in this Agreement and the Documentation.  Where a Customer Affiliate is named in an Order, that Order will create a separate agreement between that Affiliate and Zscaler, incorporating the terms of this Agreement with the Affiliate deemed "Customer." For clarity, Zscaler will not be obligated to provide any Products to Customer or its Affiliate(s) until Zscaler receives a valid Order for such Products. 

2.2 Non-Reliance.  Customer and its Affiliates agree 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 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/or its Affiliate(s) and the Partner. 

4. Subscription Rights; Intellectual Property Rights; and Restrictions

4.1 Subscription Rights

Subject to the terms and conditions in this Agreement, Zscaler grants Customer and its Affiliates a limited, non-transferable, non-assignable (except as set forth in this Agreement), non-exclusive right to access and use, and to permit their Authorized Users to access and use the Products for the internal business purposes of Customer and its Affiliates during the Subscription Term for the quantity of purchased Products set forth in the Order. 

4.2 Access and Use of Products

Customer agrees to only access and use the Products in accordance with this Agreement and the applicable Documentation, including any relevant Product usage guidelines. Customer and Zscaler agree to work together in good faith to promptly resolve any unauthorized access or use of the Products by Customer.

4.3 Ownership and Intellectual Property Rights

4.3.1 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.

4.3.2 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.

4.4 Restrictions

Customer shall not and shall not allow or permit 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 or use the Products to build a competitive product or service, or copy any ideas, features, functions or graphics of the Products; (iv) use the Products in any way prohibited by applicable law or that would cause either party to violate applicable law including but not limited to: (1) sending spam or other duplicative or unsolicited messages; (2) using the Products to send infringing, obscene, threatening, libelous, or other unlawful material; (3) using the Products to access blocked services; or (4) uploading to the Products or using the Products to send or store viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) use the Products to run automated queries to external websites (because such websites may include Zscaler IP addresses in their respective IP block lists); (vi) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (vii) attempt to gain unauthorized access to the Products or its related systems or networks; (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; (ix) perform penetration or load testing on the Products or Zscaler’s cloud without the prior written consent of Zscaler and agreeing to certain conditions and requirements for such penetration or load testing; (x) without the express prior written consent of Zscaler, conduct any public benchmarking or comparative study or analysis involving the Products; and (xi) access or use the Products from a prohibited location in violation of U.S. trade and economic sanctions, including without limitation, Cuba; Iran; North Korea; Syria; the so-called Donetsk People’s Republic, the Luhansk People’s Republic, or Crimea Regions of Ukraine; or any other country/region that becomes prohibited.

4.5 Customer Responsibilities

Customer agrees and understands that:

(a) it is responsible for all activity of Authorized Users and for Authorized Users’ compliance with this Agreement; and it shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Products, and notify Zscaler promptly of any such unauthorized access or use; and (iii) comply with all applicable laws and/or regulations in using the Products;

(b) Customer is solely responsible for its connection to the Internet or any equipment or third party licenses necessary for Customer to use the Products;

(c) in order for Zscaler to provide the SaaS, Customer is responsible for forwarding its web traffic or internal traffic to Zscaler via valid forwarding mechanisms that allow for automatic fail over (i.e. PAC, IPSEC, GRE tunnels, and/or Zscaler App); and

(d) it is responsible for supplying Zscaler with any technical data and other information and authorizations that Zscaler may reasonably request to allow Zscaler to provide the Products to Customer.

4.6 Use of Information

Without limiting Zscaler’s confidentiality and security obligations set forth in this Agreement, 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 without restriction and without obligation to Customer (collectively “Feedback”). Zscaler acknowledges that all Feedback is provided “as-is” without warranty of any type; 

(b) use information collected regarding Customer’s use of the Products for the purposes of providing, maintaining, improving, and/or analyzing the Products and complying with all legal or contractual requirements;

(c) make malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the Products; and

(d) develop and commercialize benchmarks and measures based on Aggregated Data.

4.7 Zscaler Rights

(a) 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 under this Agreement;

(b) Zscaler maintains reasonable and appropriate physical, organizational, administrative, and technical safeguards designed to protect Customer Data from loss, misuse, unauthorized access, disclosure, alteration, and destruction as set out at https://www.zscaler.com/legal/security-measures (“Security Measures”). Zscaler is certified under ISO 27001 and System and Organization Controls (SOC) 2, Type II standards and is audited annually by an independent third party to ensure its ongoing compliance with these certifications. Zscaler regularly tests, assesses, and evaluates the effectiveness of the Security Measures. Upon written request, Zscaler agrees to provide Customer with a copy of its most recent ISO 27001 certificate and/or SOC 2, Type II report. Zscaler will not materially decrease the Security Measures during the Subscription Term. Zscaler will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and subcontractors/sub-processors to the extent applicable to their scope of performance; and

(c) 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 unless Zscaler is prohibited from doing so by applicable law or regulation (e.g., FAR 52.233-1 as prescribed by FAR 33.215 or other agency supplemental terms or State law as applicable to Customer), or if 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 reasonable 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;

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 (i) substantially conform to the Documentation; and (ii) be provided in accordance with the SLAs. 

5.3 Hardware Warranty

Zscaler warrants that the Hardware will perform substantially in accordance with the applicable Documentation. 

5.4 Deployment Services Warranty

Zscaler shall provide the Deployment Services and warrants that the Deployment Services will be performed in a professional manner in accordance with industry standards for like services. 

5.5 Support Services Warranty

Zscaler shall provide the Support Services and warrants that the Support Services 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 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 Warranty Remedies

If Customer believes the warranty in Section 5.2 or 5.3 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 Zscaler shall promptly correct the non-conformity at its own expense if a breach of the relevant warranty occurred. If Customer believes the warranty in Section 5.4 has been breached, Customer must notify Zscaler of the breach no later than thirty (30) days following the date the Deployment Services were provided, and Zscaler shall promptly correct or re-perform the Deployment Services if a breach of the warranty occurred. Without limiting any Service Credits incurred in the event Zscaler does not meet the SLAs, the remedies stated in this Section 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. Zscaler expressly disclaims, to the maximum extent permissible under applicable law, all warranties, conditions, and other terms express, implied by common law, statute or otherwise, including without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, noninfringement, or that the 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, to the extent permitted by applicable law, 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.

6.2 Exceptions

The obligations in this Section 6 shall not apply to any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) 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; (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (d) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

6.3 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 on a need-to-know basis to (a) its personnel, auditors and Affiliates who are subject to the same confidentiality obligations, and (b) its attorneys and accountants who are either subject to professional obligations of confidentiality or have agreed to be bound by confidentiality obligations at least as protective as those set out herein.

6.4 Protection

The Receiving Party will use at least the same level of care to prevent unauthorized use of the Disclosing Party’s Confidential Information as it uses for its own Confidential Information, but in no event less than a reasonable standard of care.

6.5 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.

6.6 Remedies

If the Receiving Party discloses or uses (or threatens to disclose or use) or the Disclosing Party reasonably believes that the Receiving Party may disclose or use any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, or if the Receiving Party is compelled to disclose (or is likely to become compelled to disclose) any Confidential Information of the Disclosing Party pursuant to Section 6.5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.

6.7 FOIA

Zscaler acknowledges that federal agencies are required to disclose information requested under the Freedom of Information Act, 5 U.S.C. 552 (“FOIA”) unless an exemption applies.  The Documentation, Products, and Zscaler Materials are Zscaler Confidential Information and are exempt from disclosure under FOIA. Customer must notify Zscaler in writing prior to releasing any Documentation, Products, and/or Zscaler Materials in response to a FOIA request and will provide Zscaler the opportunity to review and object to the proposed disclosure.

7. Term and Termination

7.1 Agreement Term

This Agreement shall continue in effect for the Subscription Term.

7.2 Order Term

The initial term of Customer’s subscription to the Products will begin on the 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 length and pricing for a renewal term may be agreed to (“Renewal Subscription Term”); otherwise, Customer’s subscription will terminate at the end of the Initial Subscription Term (or the then-applicable Renewal Subscription Term).

7.3 Termination for Material Breach

Except as prohibited by applicable law or regulation, either party may terminate this Agreement and any Order: (i) if the other party is in material breach of any of the terms and conditions of this Agreement and does not cure such material breach within thirty (30) days of receiving notice; 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. If the Customer is an “executive agency” of the United States Government (as defined by 41 USC 7101-8), then all Claims (as defined in FAR 52.233-1-c) by Zscaler against the United States for any alleged breach of this Agreement must be brought as a dispute as set forth in the Contract Disputes Act (41 USC 7101).

7.4 Effect of Termination

The following provisions shall survive the termination of this Agreement and all Orders:  Section 3 (Payment), Section 4 (Subscription Rights; Intellectual Property Rights; and Restrictions;) other than Section 4.1, 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 (Data Protection and Privacy), Section 11 (Export Control, Anti-Corruption, and Commercial Item Software), and Section 12 (General Provisions).

8. Indemnity

8.1 Zscaler Indemnity

Zscaler shall defend Customer against any third party claim alleging Customer’s use of the Products as permitted hereunder infringes or misappropriates that third party’s valid United States, European Union, or United Kingdom patent, copyright, trademark or trade secret, and Zscaler shall, subject to Section 9, at its expense, indemnify Customer for any damages finally awarded against Customer (including reasonable legal fees) or any amounts agreed in settlement by Zscaler in connection with such claim.

8.2 Response to Claims

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, provided that such replacement or modification does not compromise Zscaler’s obligations under this Agreement; 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 prorated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term.

8.3 Indemnity Exclusions

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) Customer’s use of a Product not in accordance with the Documentation; (ii) modification of a Product by anyone other than Zscaler; (iii) the combination, operation, or use of any Product with any third party hardware or software where the Product would not by itself be infringing absent such combination, operation, or use; or (iv) Customer’s continued use of an infringing version of the Products after Zscaler has provided a non-infringing version and notified Customer of its availability. 

8.4 Indemnity Procedure

Except as prohibited by applicable law, the indemnification obligations in this Section shall be subject to the Customer:  (a) promptly notifying Zscaler in writing upon receiving notice of any threat or claim of such action; (b) giving Zscaler exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases Customer of all liability) or a meaningful opportunity to participate in the defense or settlement in the event that applicable law expressly prohibits an indemnifying party from possessing sole and exclusive control and authority over the defense and/or settlement of such claim; and (c) providing reasonable assistance requested by Zscaler, at Zscaler’s expense.

8.5 THIS SECTION 8 STATES ZSCALER’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS. 

9. Limitation of Liability

9.1 Waiver of Consequential Damages

In no event will either party be liable for any lost profits, revenue or savings; lost business opportunities or data; substitute goods or services, or indirect, special, incidental, consequential, punitive or exemplary damages of any kind (including damage to business reputation or goodwill).

9.2 Limitation of Monetary Damages

Each party’s aggregate liability for all claims arising out of this Agreement and all Orders shall be limited to the total fees paid and/or payable to Zscaler for the applicable Product giving rise to the liability during the twelve (12) months immediately preceding the first incident giving rise to the first claim.

9.3 Form of Action

The exclusions and limitations in this Section 9 apply (i) to the maximum extent permitted by applicable law and (ii) whatever the form of action, whether for breach of contract, misrepresentations, negligence, strict liability, other torts or otherwise, even if the other party has been told in advance of the possibility of such damages or losses or such damages or losses were reasonably foreseeable.

10. Data Protection and Privacy

The parties shall comply with the privacy and security terms of the Data Processing Agreement located at https://www.zscaler.com/legal/data-processing-agreement which is incorporated into this Agreement by reference.

11. Export Compliance, Anti-Corruption, and Commercial Item Software

11.1 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.  The parties represent that they are in compliance with applicable United States and foreign export controls, economic sanctions, and other trade controls.

11.2 Anti-Corruption

In performing this Agreement, the parties agree to comply at all times with the applicable laws related to money-laundering, bribery, and anti-corruption, including the Foreign Corrupt Practices Act of 1977, the UK Anti-bribery Act of 2010, and any other applicable anti-corruption legislations (“Anti-corruption Laws”). Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

11.3 Commercial Item Software

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 may only be performed as expressly permitted by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

12. General Provisions

12.1 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.

12.2 Notices

Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices regarding a legal claim. Notices shall be sent to the parties at the address set forth in this Agreement (or as subsequently updated in writing) or Customer’s current business contact if known, with a cc to [email protected] for Zscaler and/or Customer’s legal department.

12.3 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.

12.4 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.

12.5 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), except that either party may assign this Agreement in its entirety, 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.  Customer may assign to a successor agency as part of formal reorganization provided that Customer is authorized to do so by FAR 42.1204 or other applicable agency supplement or applicable law or regulation.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 12.5 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.

12.6 Governing Law and Jurisdiction

This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the federal laws of the United States, without giving effect to its conflicts of laws rules, and will be subject to the exclusive jurisdiction of the federal courts located in Santa Clara County, California. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its Intellectual Property Rights or other proprietary rights. The United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.

12.7 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) for the time that 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.

12.8 Evaluation Products

From time to time, Zscaler may make available certain Zscaler products for proof of concept, beta testing, interactive demo, or other similar evaluative purposes (the “Evaluation Products”).  Customer shall only access and use the Evaluation Products for internal evaluation purposes for a mutually agreed period (the “Evaluation Period”).  At the end of the Evaluation Period, Customer Data will be deleted pursuant to Zscaler’s standard retention and deletion periods, unless otherwise agreed to by the parties.  For any Evaluation Products, only Sections 4, 5.7, 6, 9, 10, 11, 12, and the applicable definitions in Section 1 of this Agreement shall apply, with the Evaluation Products being deemed as “Products” in those sections.

12.9 Entire Agreement

This Agreement 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. 

12.10 Variations

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 Customer 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.