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HomeMy WebLinkAboutZSCALER INC; 2010-11-10;ZSCALER. INC. MASTER SUBSCRIPTION AGREEMENT This Master Subscription Agreement ("Agreement") is entered into and effective as of _ AyOV-_ /_ViJ?«. ("Effective Date") by and between Zscaler, Inc., a Delaware corporation, having its principal place of business at 392 Potrero~Ave., Sunnyvale, California 94085 ("Zscaler") and City of Carlsbad, a municipal corporation, having its principal place of business at 1200 Carlsbad Village Drive, Carlsbad, California 92008("City"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Definitions. As used in this Agreement: "AUP" shall mean Zscaler's "Acceptable Use Policy" for the Zscaler Network as published by Zscaler from time to time and generally made available (e.g. posted on Zscaler's website). The AUP lists illegal, illicit, damaging and offensive practices that comprise prohibited uses of the Zscaler Network, Zscaler's systems, products and services. Zscaler may expand, amend and update AUP as it deems necessary in its sole discretion to prevent illegal, illicit, damaging and offensive activities. "Billing Start Date" shall be defined as the date Customer receives a service provision notification email from Zscaler or Zscaler Partner, or the first day immediately following an uncancelled opt-out period offered to Customer as applicable. "Downtime" is defined as any unscheduled time during which the Zscaler Services are unavailable, measured from the time of actual interruption of the Services, until the time such Services are restored. "Order Form" means collectively the contract and mutually agreed upon order documents representing the initial purchase of the Service (and any subsequent purchases agreed to between the parties in writing from time to time). "Zscaler Network" shall mean the network of data centers, data connections and equipment that Zscaler maintains to process and deliver web requests. "Seat" shall be defined as an Internet user (an individual who has access to the Internet) on behalf of whom Services are being provided. "Services" shall be defined as those services subscribed to by Customer and as more particularly described in the Order Form. "Term" shall be defined as the minimum term for the provision of services as referenced in the Order Form. 2. Service. 2.1 Initial Service. Zscaler shall initially make the Service available to Customer on the terms set forth in this Agreement and the Order Form. 2.2 Additional Seats. Seats cannot be shared or used by more than one individual. During the Term of the Agreement, Customer must notify Zscaler within 10 days if the number of Customer's seats increases by more than 5% of the then declared number of seats. If Customer wishes to add additional Seats, Customer shall submit an order either by way of a written Order Form or an electronic Order Form. Upon Zscaler's written approval of the terms of any such additional Order Form, Zscaler shall make the Service available to the additional Seats on the terms and conditions set forth in this Agreement and each approved additional Order Form. Unless otherwise specified in the relevant Order Form additional Seat licenses shall be coterminous with expiration of the License Term. 3. Use of the Service. 3.1 Zscaler's Responsibilities. Zscaler shall take commercially reasonable security measures to protect the confidentiality of Customer's web traffic. Zscaler reserves the right to suspend rev. 07.08 Services to Customer in the event Customer's use of Services represents an imminent threat to Zscaler Network integrity, or if so directed by a court or competent authority. In such a case, Zscaler will use its best efforts to promptly contact Customer and give Customer the opportunity to promptly change the configuration of its server(s) accordingly. 3.2 Customer Responsibilities, (a) It is understood that the Services shall not include Customer's access connection to the Internet or any equipment necessary for Customer to make such connection, which shall be Customer's sole responsibility, (b) Customer's use of the Services is subject to all applicable local, state, national and foreign laws and regulations. Customer agrees to comply with such laws and regulations, with Zscaler's most current AUP and to conform to the protocols and standards published on the Internet from time to time and adopted by the majority of Internet users, (c) Customer is solely responsible for its activities in using the Services including the activities of its employees and its contractors and all parties that Customer allows to have access to the Services provided by Zscaler. (d) Customer must maintain a valid fixed IP address to enable Zscaler to provide the Services to Customer. Zscaler shall not be responsible for the inability to provide such service to Customer if Customer's IP address is not valid and fixed, (e) Customer will supply Zscaler with all technical data and all other information Zscaler may reasonably request from time to time to allow it to supply the Service to Customer. All information supplied will be complete and given in good faith, (f) Customer agrees that average monthly bandwidth usage per seat (measured in Mbps) will not exceed 120% of the first full months of Customer's bandwidth usage per Seat ("Acceptable Bandwidth Usage"), (g) Reservation of Rights. Customer acknowledges and accepts that, as between the parties, all right, title and interest in and to the Services and all Intellectual Property Rights associated with and in the Services shall at all times remain vested in Zscaler and its licensors, and Customer shall acquire no rights, express or implied, in the Services, other than the right to use granted in this Agreement. Zscaler and Customer each agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors. 3.3 Service Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not use the Service to: (i) send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Customer's clients and prospective clients as contemplated by the Service; (ii) knowingly transmit through or post on the Service unlawful, immoral, libelous, tortious, infringing, or defamatory material; (iii) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (iv) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service; or (vi) harass or interfere with another user's use and enjoyment of the Service. 3.4 Publicity. Customer agrees that during the first 90 days of this Agreement Zscaler may issue a mutually agreed upon press release announcing it is a customer. Zscaler shall not use any of the Page 1 of 7 ZSCALER. INC. MASTER SUBSCRIPTION AGREEMENT Customer's logos or other branding or identifying information without the express written consent of Customer. 4. Fees & Payment. 4.1 User Fees. Customer shall pay the fees specified in the mutually agreed upon Order Form and in any signed and approved additional Order Forms. All fees are quoted in United States Dollars and fees under each Order are due and payable in advance at the beginning of the term for all of the seats covered by such Order for the full license term. Fees are non-refundable (i.e., the number of Seat licenses contracted for cannot be decreased during the License Term or in the middle of any renewal term) and are based on the number of Seats specified in the relevant Order Form, not the extent of actual usage. Fees for additional Seats added in the middle of a monthly period shall be charged for that billing period in full and going forward based on the number of months remaining in the License Term. 4.2 Log File Storage; Acceptable Bandwidth Usage. The log files are saved for a period of 6 months without any additional charges. As set forth in Section 3.2, Customer is not liable for bandwidth usage below the Acceptable Bandwidth Usage. 4.3 Invoicing & Payment. Zscaler shall invoice Customer for fees for the Service in advance and otherwise in accordance with the terms of the relevant Order Form. Charges due shall be payable thirty (30) days from the date of receipt of invoice. All payments made under this Agreement shall be in United States dollars. 4.4 Overdue Payments. Any payment not received from Customer by the due date may accrue, at Zscaler's discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. 4.5 Suspension of Service. If Customer's account is 30 days or more overdue, in addition to any of its other rights or remedies, Zscaler reserves the right to suspend the Service provided to Customer, without liability to Zscaler, until such amounts are paid in full. 4.6 Taxes. Zscaler's fees are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature ("Taxes"), and Customer is responsible for payment of all Taxes, excluding only United States taxes based on Zscaler's income. If Zscaler has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Zscaler with a valid tax exemption certificate authorized by the appropriate taxing authority. 4.7 Billing and Contact Information. Customer shall use reasonable efforts to ensure that Customer maintains complete, accurate and up-to-date Customer billing and contact information via the online Customer account section of the Service at all times. 5. Proprietary Rights. 5.1 Reservation of Rights. Customer acknowledges that in providing the Service, Zscaler utilizes (i) the product names associated with the Service and other trademarks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively "Zscaler Technology") and that the Zscaler Technology is covered by intellectual property rights owned or licensed by Zscaler ("Zscaler IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in the Zscaler IP Rights are granted to the Customer, and all such rights are hereby expressly reserved. 5.2 License Grants. Zscaler grants Customer and its Seat users a non-exclusive, non-transferable, non-sublicenseable right to access and use the Service for the purpose for which it is made available to Customer and otherwise in accordance with the terms of this Agreement. Customer grants to Zscaler a non-exclusive, non- sublicenseable license to use, copy, store, modify and display the Customer Data solely to the extent necessary to provide the Service. 5.3 Restrictions. Customer shall not (i) modify, copy or make derivative works based on the Zscaler Technology; (ii) disassemble, reverse engineer, or decompile any of the Zscaler Technology; or (iii) create Internet "links" to or from the Service, or "frame" or "mirror" any of Zscaler's content which forms part of the Service (other than on Customers' own internal intranets). 5.4 Network Traffic. Zscaler acknowledges that the content of all network traffic sent to or received from Customer (the "Customer Data") through use of the Service is confidential. In the normal provision of the Service, Zscaler will not access, read or copy content other than by electronic methods and for the purposes of providing the Services. However, Zscaler may utilize the malware, spam, botnets or other information related to the Service for the purpose of: (i) maintaining and improving the Services, (ii) complying with all legal or contractual requirements, (iii) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the Services, and (iv) anonymously aggregating and statistically analyzing the content and (v) other uses related to analysis of the Services. 5.5 Suggestions, Ideas and Feedback. Zscaler shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service to the extent it does not constitute Confidential Information of Customer. 6. Confidentiality. 6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all information of a party ("Disclosing Party") which the Disclosing Party designates in writing as being confidential when it discloses such information to the other party ("Receiving Party"), including without limitation the terms and conditions of this Agreement, the Zscaler Technology, the Page 2 of7 ZSCALER. INC. MASTER SUBSCRIPTION AGREEMENT Service, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. 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 or as required by law. 6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. 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 and reasonable assistance (at Disclosing Party's cost) if the Disclosing Party wishes to contest the disclosure. If Receiving Party receives a request to disclose any Confidential Information under any Public Information Act, Open Records Act or similar law ("Request"), Receiving Party shall immediately notify Disclosing Party and prior to disclosure give Disclosing Party an opportunity to take any protective action it deems appropriate. If Disclosing Party has not responded timely to the Request, as defined by the applicable law for which the Request is made pursuant to, the Receiving Party may, in its sole discretion and without being in breach of this Agreement, respond to the Request as the Receiving Party deems appropriate. In the event that Disclosing Party directs the Receiving Party not to disclose the Confidential Information materials sought pursuant to the Request, Disclosing Party will indemnify Receiving Party against any losses, including reasonable attorney fees and costs, sustained arising from the non-disclosure of the Confidential Information material requested in the Request. Receiving Party, in its sole discretion may tender the Request to Disclosing Party for response, including, any and all subsequent legal actions or challenges related to the non-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 this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. 7. Warranties & Disclaimers. 7.1 Warranties. Zscaler warrants that the Zscaler Network will process and deliver web requests 99.99% of the total hours during every month Customer uses the Services ("Zscaler Availability Warranty"). The Zscaler Availability Warranty applies only to Downtime due in whole or in part to inability to provide service to Customer which are not attributable to events of Force Majeure as described herein, or to acts or omissions by the Customer or its staff/ officers/ agents/ contractors which are in contravention of this Agreement, or to the acts or omissions of any third parties. If Customer believes that Zscaler has failed to meet its warranty commitments under the above warranty, Customer must contact Zscaler in writing within 15 business days of the end of the month in which Customer believes the warranty obligations were not maintained. In the event it is clearly shown that Zscaler did not meet its warranty commitments, Zscaler's sole obligation to Customer will be to provide an extension of the current term at no charge to Customer in an amount equal to 10% of an additional month of Services for each 0.5% or part thereof of Downtime in the calendar month in question, subject to a maximum of 100% of a full month of additional Services for any calendar month. The remedies set out above shall be Customer's sole and exclusive remedies in contract, tort or otherwise in this respect. Neither Zscaler nor Customer shall be liable for any delay, failure in performance, loss or damage due to: fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of God, acts or omissions of internet traffic carriers (or other problems inherent in the use of the internet or electronic communications), acts or omissions of regulatory or governmental agencies, or other such causes beyond either party's reasonable control (each a "Force Majeure"). 7.2 Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED HEREUNDER, THE SERVICES PROVIDED BY ZSCALER ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND TO CUSTOMER OR ANY THIRD PARTY INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON- INFRINGEMENT; AND 7) QUIET ENJOYMENT. CUSTOMER AGREES THAT ANY EFFORT BY ZSCALER TO MODIFY ITS SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY ZSCALER WARRANTIES AND REMEDIES ARE EXCLUSIVE, SATISFACTORY AND SUFFICIENT. 8. Mutual Indemnification. 8.1 Indemnification by Zscaler. Subject to this Agreement, Zscaler shall defend, indemnify and hold Customer harmless against any loss or damage incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the Customer's use of the Service infringes any registered United States patents or registered United States copyrights; provided, that Customer (a) promptly gives written notice of the Claim to Zscaler; (b) gives Zscaler sole control of the defense and settlement of the Claim (provided that Zscaler may not Page 3 of7 ZSCALER. INC. MASTER SUBSCRIPTION AGREEMENT settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Zscaler, at Zscaler's cost, all reasonable assistance. Zscaler shall have no obligations to Customer under this Section 8.1 to the extent such Claims arise from Customer's or its Seat user's breach of this Agreement or from the combination of the Service with any of Customer's products, services, hardware or business processes. 8.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Zscaler harmless against any loss or damage (including without limitation reasonable attorneys' fees) incurred in connection with Claims made or brought against Zscaler by a third party alleging that the Customer data, or the use thereof by either party, infringes the intellectual property rights of a third party; provided, that Zscaler (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Zscaler of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance. Customer shall have no obligations to Zscaler under this Section 8.2 to the extent such Claims arise from Zscaler's breach of this Agreement. 9. Limitation of Liability. 9.1 Limitation of Liability. Except as provided in section 6.4 above, IN NO EVENT SHALL ZSCALER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SERVICE CHARGES PAID BY SUCH CUSTOMER OVER THE PREVIOUS 12 MONTHS. 9.2 Exclusion of Consequential and Related Damages. Except as provided in section 6.4 above, IN NO EVENT SHALL ZSCALER HAVE ANY LIABILITY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT ZSCALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 9.3 Limitation of Action. Except for actions for non-payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued. 10. Term & Termination. 10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Seats granted in accordance with this Agreement have expired or been terminated. 10.2 Term of User Licenses. Seat licenses commence on the start date specified in the relevant Order Form and continue for the License Term specified therein. Seat licenses shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless Customer gives Zscaler notice of termination at least 30 days prior to the end of the License Term or relevant renewal term (as the case may be). Under no circumstances shall this Agreement exceed five (5) years in duration. 10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice 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. 10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Zscaler prior to the effective date of termination. 10.5 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5 (excluding Sections 5.2 and 5.4), 6, 7, 8, 9, 10 and 11. 11. General Provisions. 11.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. 11.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons. 11.3 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to Zscaler shall be addressed to the attention of its CFO, with a copy to its General Counsel. 11.4 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. 11.5 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator 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 effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party. Page 4 of7 ZSCALER. INC. MASTER SUBSCRIPTION AGREEMENT 11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets which does not involve 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 11.6 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. 11.7 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 laws provisions. 11.8 Export Control Laws. Zscaler provides services and uses software and technology that may be subject to the United States export control administered by the U.S. Department of Commerce, the United States Department of Treasury office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the U.S., Switzerland and/or the European Union maintains an embargo (collectively "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply with all U.S,, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Admin. Regulations 15 D.F.R. parts 730-774 and Council Regulation (EC) No. 1334/2000. Zscaler makes no representations that the Service is appropriate or available for use in other location. If Customer uses the Service from outside the U.S., Switzerland and/or the European Union, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. 11.9 Entire Agreement and Construction. This Agreement, the Exhibits, the Order Forms, any approved additional Order Forms 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. Except as contemplated to the contrary herein with respect to Order Forms, 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. In the event of any conflict between the provisions in this Master Subscription Agreement and any Exhibit or Order Form, the terms of this Agreement shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement. 11.10 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Remainder of Page Intentionally Left Blank Page 5 of7 ZSCALER. INC. MASTER SUBSCRIPTION AGREEMENT Acknowledged an$ Agreed ZSCALER, IN By: Print Name: Date: CITY OF CARLSBAD By: Print Name: Title: Date: APPROVED AS TO FORM Page 6 of 7 ACCUVANT For ordering: please fax/email purchase order directly to Account Manager listed below. For payment: please send payment to:Accuvant Inc PO Box 677530 Dallas, TX 75267-7530 City of Carlsbad Accounts Payable 1635 Faraday Avenue Carlsbad CA 92008 City of Carlsbad Information Technology Gordon Peterson 1635 Faraday Ave Carlsbad CA 92008760-602-2454 gordon.peterson@ci.carlsbad.ca.us Quote Date Quote # Expires Terms Account Manager Acct Mgr Phone Acct Mgr Fax Acct Mgr Email 10/18/2010 QT-75014 10/29/2010 Net 30 Bryan Cline (760) 444-4359 (760) 683-3282 bcline@accuvant.com ZSUITE-WEBPREM-3 YR ZSC-LOG-EXT-6MO-3 YR 1000 Zscaler TeraCloud Platform - Use of Zscaler Cloud Infrastructure - Distributed gateways - Logging - Reporting - Traffic Forwarding - Authentication - Policy Config & management - Managing administrators Comprehensive Security (AntiVirus, AntiSpyware, Advanced) - In-line AntiVirus - In-line AntiSpyware - SSL Scanning - Advanced Threat Protection (XSS, Phishing, Botnets) - Browser Version and Patch Control Internet Access Management - URL Filtering - Dynamic Content Classification - Safe Search - Web 2.0 Control Bandwidth Controls Data Leakage Prevention 110 Extend Transaction Log Storage By 6 Months 74.26 74,260.00 7.20 792.00 - This quote is confidential and for the sole use of the intended recipient(s). Any unauthorized review, use, disclosure or distribution is prohibited. - Accuvant invoices for product sales upon receipt of an approved purchase order or signed agreement. All invoices are due net 30 days from date of invoice (unless terms above state different). Any invoice over 30 days will be subject to a 1.5% late chargeper month.- Unless specifically referenced by line items above, this quote does not include tax, shipping charges, or travel & expenses associated with consulting services. All shipping will be FOB destination. - All sales are final. Manufacturer's warranty applies. Accuvant shall have no liability or responsibility for any loss or damage connected with the sale or use of the product. Total $75,052.00 DATASHEET The Leader in Cloud Security ZSCALER SERVICE LEVEL AGREEMENTS (Web, Email & Support) I. OVERVIEW Zscaler & Zscaler Labs are committed to protecting your company from internet threats such as spam, viruses, spyware, botnets, worms, trojans and other internet based malware. Our SLAs reinforce this commitment and give you the confidence that we will provide your users with world class levels of protection in an increasingly hostile online world. II. WEB AVAILABILITY SLA Zscaler warrants that the Zscaler Network will be available to accept the customer's outbound web requests 100% of the total hours during every month that the customer's use our services. Failure to meet the Zscaler Availability SLA results in: Web Requests Processed & Delivered During a Month by Zscaler Network < 99.99% but >= 99% < 99% but >= 98% < 98% Additional Month of Zscaler Service Provided at No Charge 25% 50% 100% III. WEB LATENCY SLA • Over a calendar month Zscaler will process and deliver content of customer's transactions with an average latency of 0.1 milliseconds or less. • Warranty is only applicable to objects of 1MB or less. • The processing and delivering of content is measured from when the Zscaler proxy receives the content to the point when the Zscaler proxy attempts to transmit the content. • Failure to meet the Zscaler Web Latency SLA results in: Average % of Web Content Scanned Within 0.1 Milliseconds < 100% but >= 99% < 99% but >= 98% <98% Additional Month of Zscaler Service Provided at No Charge 25% 50% 100% ©® IV. WEB VIRUS CAPTURE RATE SLA • Zscaler warrants it will capture 100% of all known viruses transmitted through web transactions. • Virus capture rate is calculated by dividing the virus infected web transactions blocked or quarantined, by the total virus infected web transactions received by Zscaler on behalf of the customer. • Known virus means a virus for which at the time of receipt of content by Zscaler: (i) a signature has already been made publicly available for a minimum of one hour for configuration by Zscaler's scanner; and (ii) is included in the "Wild List" held at http://www.wildlist.org and identified as being "In the wild" by a minimum of two Wild List participants. Failure to meet the Zscaler Virus Capture Rate SLA results in: Virus Capture Rate Additional Month of Zscaler Service Provided at No Charge < 100% but >= 99% ' 25% <99%but>=98% 50% <98% 100% V. LOG AGGREGATION RESPONSE TIME SLA • Zscaler warrants that any transaction log from any user anywhere in the world is available on your reporting console within an average time of 10 seconds. Failure to meet the Zscaler Log Aggregation Response Time SLA results in: Average % of Total Web Transaction Logs ' Additional Month of Zscaler Service Made Available Within 10 Seconds Provided at No Charge < 99% but >= 98% ' 25% ! <98%but>=97% 50% <97% 100% VI. EMAIL AVAILABILITY SLA • Zscaler warrants that the Zscaler Email Service will be available to accept the customer's inbound and outbound email requests 100% of the total hours during every month. Failure to meet the Zscaler Email Availability SLA results in: % of Time Zscaler Email Service is Available Additional Month of Zscaler Service to Process & Deliver Emails During a Month Provided at No Charge < 99.99% but >= 99% 25% < 99% but >= 98% : 50% < 98% 100% ® VII. EMAIL SPAM CAPTURE RATE SLA • Zscaler warrants the SPAM capture rate will be >= 99%. Email spam capture rate is calculated by dividing the SPAM messages blocked or quarantined by total SPAM messages received by Zscaler on behalf of customer. Failure to meet the Email Spam Capture Rate SLA results in: SPAM Capture Rate < 99% but >= 98% < 98% but >= 97% 797% Additional Month of Zscaler Service Provided at No Charge 25%" ~ 50% 100% VIII. EMAIL VIRUS CAPTURE RATE SLA • Zscaler warrants it will capture 100% of all Known Viruses transmitted through its email service. Email virus capture rate is calculated by dividing the virus infected messages blocked or quarantined by Zscaler through its email service divided by total virus infected messages received by Zscaler on behalf of customer. Failure to meet the Email Virus Capture Rate SLA results in: Virus Capture Rate < 100% but >= 99% < 99% but >= 98% < 98% Additional Month of Zscaler Service Provided at No Charge 25% 50% 100% IX. GENERAL SLA REQUIREMENTS • In order for a particular warranty above to apply, customer must subscribe to the service that provides such warranty (e.g. email warranties only apply to customers that subscribe to email services). • For any of the virus and/or spam warranties above to apply, customer must utilize Zscaler Services in accordance with the recommended anti-spam and anti-virus settings. • For any of the availability warranties to apply, customer's network must be properly configured on a 24x7x365 basis which will allow customer to take advantage of Zscaler's redundant global infrastructure which is made available as part of the services. • The remedies set out above shall be customer's sole and exclusive remedies in contract, tort or otherwise in this respect. • The maximum cumulative liability of Zscaler in any calendar month shall be no more than 100% of the monthly charge paid by customer of the affected services. • All of the warranties above only apply if a breach of the warranty is not due in whole or in part to inability to provide service to customer which are not attributable to events of Force Majeure as ® described herein, or to acts or omissions by customer or its staff/ officers/ agents/ contractors which are in contravention of this Agreement (e.g. deliberate self infliction, including deliberate downloading of viruses, or to the acts or omissions of any third parties). For any of the capture rate warranties to apply, the customer's systems are deemed to be infected if a Known Virus contained in a web / email transaction received through Zscaler's service has been activated within the customer's systems either automatically or with manual intervention. In the event that Zscaler detects but does not stop a Known Virus as part of a web / email transaction through Zscaler's service, Zscaler will promptly notify the customer, providing sufficient information to enable the customer to identify and delete the item. If such notification results in a prevention of infection the remedy set out above for the capture rate warranties shall not apply. Failure of the customer to promptly act on such information will invalidate the capture rate service levels set forth above. The Zscaler's service will scan as much of the traffic downloaded as technically possible. It may not be possible to scan items that are encrypted, encapsulated, tunneled, compressed, modified from their original form for distribution, has product license protection, or under the direct control of the sender (e.g. password protected and/or encrypted items). Such items and/or attachments are excluded from the capture rate service levels set forth above. X. CUSTOMER SUPPORT RESPONSE TARGET • Support services are available through Zscaler's global support centers, which are operational 24x7x365. • Upon reporting the incident (via phone, email or web), the incident will be assigned a unique Support ID number; such number should be used in future correspondence until the item is resolved. • If Zscaler's Support is not able to immediately help, the request for service will be logged and Zscaler will endeavor to respond to the customer as defined by the severities below: LEVEL DESCRIPTION 1 (Critical) An issue that prevents operation of critical documented functions with high frequency or duration 2 (Major) An issue that consistently prevents operation of non-critical documented functions or occasionally impacts documented functions or a critical issue for which a temporary workaround has been provided 3 (Minor) An issue that has some impact on administration, non-critical operation or other secondary functions or a major issue for which I a temporary workaround has been provided 4 (Request) The service is unaffected. Customer request ; for product related technical advice. 5 (Question) ; The service is unaffected. General information and feature questions related to the Services. RESPONSES Within 1 hour Within 2 hours Within 12 hours Within 1 business day Within 2 business days SCALGR October 18, 2010 Gordon Peterson City of Carlsbad, CA Dear Gordon, Accuvant is one of Zscaler's top partners and as such they have earned a position in the top tier (Premier Partner) of the Zscaler Channel Partner Program, which entitles them to the highest discounts available for our services. Specific to the City of Carlsbad opportunity we have exclusively extended Accuvant a "deal registration", pursuant to the structure of our partner program, which allows for an additional 15% discount. Zscaler partner deal registration is always tied to a singular partner. We have also approved an additional discount request by Accuvant in order to reach the discount level represented on the quote to the City of Carlsbad. The depth of discount extended to Accuvant in this situation is entirely unique. No other partner in our worldwide program, as per the structure of their agreements with Zscaler, is able to deliver pricing comparable to Accuvant's. Please feel free to contact Zscaler directly if you have any questions about the structure of our channel programs or the discounting practices of these programs. Thank you in advance. Sincerely, John Spencer Regional Sales Manager Zscaler, Inc. jspencer@zscaler.com