These ZAIDYN® by ZS Subscription Terms and Conditions, together with any Order Form(s), (collectively, the “Agreement”) govern Customer’s access to and use of the ZAIDYN Services specified in an Order Form, unless the Order Form specifies that a separate agreement between Customer and ZS will govern such access and use.

This Agreement may be accepted by (i) clicking the “I Accept” button; (ii) executing an Order Form that references this Agreement; or (iii) using the ZAIDYN Services. By accepting this Agreement, Customer agrees to comply with the terms hereof. The individual accepting this Agreement on behalf of Customer represents that they have the authority to bind Customer to the terms of this Agreement.

1. Definitions.

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct and indirect ownership or control of more than 50% of the voting interest of the subject entity.

1.2. “Confidential Information” means any and all information that: (i) is proprietary and/or confidential in nature or would, by its nature, reasonably be considered to be confidential; and/or (ii) non-public information about a party and its Affiliates’ business operations, including, but not limited to, their products, finances and taxes, methodologies, pricing, and any materials or information to the extent it relates to or incorporates such non-public information and whether or not marked, designated, or otherwise identified as “confidential.” For avoidance of doubt, ZS’ Confidential Information includes, without limitation, the ZAIDYN Services and any materials related thereto, Usage Data, and the Agreement. Confidential Information shall not include information that (i) is or has become (through no improper action or inaction by the receiving party or any Affiliate, contractor or employee) generally available to the public; (ii) was in the receiving party's proper and lawful possession or known by it, without restriction, prior to receipt from the disclosing party; (iii) was rightfully disclosed to the receiving party by a third party without restriction; (iv) was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (v) was authorized to be disclosed in writing by the disclosing party.

1.3. “Customer” means the individual accepting this Agreement or, in the case of an individual entering into this Agreement on behalf of a legal entity, the legal entity or entities for which such individual has authority to accept this Agreement. Customer is a party to this Agreement.

1.4. “Customer Data” means any data, information or material provided or uploaded by Customer or on behalf of Customer to ZS in the course of using the ZAIDYN Services, excluding Customer Feedback. Customer Data is Customer’s Confidential Information.

1.5. “Customer Feedback” means suggestions, comments, enhancement requests, recommendations, corrections, or other feedback about the ZAIDYN Services.

1.6. “Customer Provided Services” means a product or services, including but not limited to code, algorithms, applications, generative AI through Customer procured API keys, or platforms, provided by Customer or a third party on behalf of Customer, which interacts with the ZAIDYN Services.

1.7. “Documentation” means ZS’s user manuals, handbooks, end user documentation and agreements, and installation guides relating to the ZAIDYN Services made available to the Customer, including at https://www.zs.com/zaidyn-platform/agreements or in the Order Form, and any updates or revisions thereto.

1.8. “Effective Date” means the date on which Customer first demonstrates acceptance of this Agreement by (whichever is earlier): (i) clicking the “I Accept” button indicated acceptance; (ii) executing an Order Form that references this Agreement; or (iii) using the ZAIDYN Services.

1.9. “Intellectual Property Rights” or “Intellectual Property” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, domain names, rights in databases, moral rights, know-how or other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, logos, instruction manuals, lists and procedures, and all similar or equivalent rights or forms of protection, in any part of the world.

1.10. “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the ZAIDYN Services, including any updated Documentation, that ZS may provide to Customer from time to time during the Subscription Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the ZAIDYN Services, but does not include any New Version.

1.11. "New Version" means any new version of the ZAIDYN Services that ZS may from time to time introduce and market generally as a distinct licensed product (as may be indicated by ZS’s designation of a new version number), and which ZS may make available to Customer at an additional cost under a separate written agreement.

1.12. “Open Source Components” means any software component that is subject to any copyleft open source license agreement that is approved by the Open Source Initiative.

1.13. “Order Form” means an ordering form or statement of work (“SOW”), or such other documentation agreed to by the parties, that specifies the ZAIDYN Services to be provided to Customer and refers to this Agreement.

1.14. “Professional Services” means consulting, design, training, technical support, implementation, configuration, or other professional services that ZS provides to Customer related to the ZAIDYN Services.

1.15. “Subscription Fees” means the fees for access to and use of the ZAIDYN Services during the Subscription Term, as specified in the Order Form.

1.16. “Subscription Term” begins on the start date specified in the Order Form or from the date that the Customer has access to ZAIDYN Services (whichever is earlier) and will continue for the term specified therein.

1.17. “Usage Limitations” means the key metrics used by ZS to determine the Subscription Fees, as set forth in the Order Form.

1.18. “Usage Data” means technical logs, Customer Feedback, learnings, data and other information generated, collected, observed or derived from or in connection with the Customer’s and Users’ use of the ZAIDYN Services and related technologies but excluding Customer Data.

1.19. “User” means an individual authorized by Customer to use the ZAIDYN Services, who may include (i) employees, Affiliates and, with ZS prior written permission, contractors, provided that ZS competitors may not be Users, and/or (ii) others identified in this Agreement or the applicable Order Form.

1.20. “ZAIDYN Services” means all proprietary software applications, algorithms, and/or products, any Maintenance Releases and other Intellectual Property hosted or installed, whether in executable, object code or source code form, by ZS or its agents and made available by ZS to Customer, including any ZS-Provided GenAI (as defined in Section 11), and any related services and Documentation provided by ZS, but excluding any Outputs (as defined in Section 11) and Customer Data.

1.21. “ZS” means ZS Associates, Inc. and its Affiliates. ZS is a party to this Agreement.

2. Use of ZAIDYN Services.

2.1. ZS hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the ZAIDYN Services during the Subscription Term through infrastructure systems identified in the applicable Order Form, for Customer’s internal business purposes or other purposes as described in the Order Form, pursuant to the terms of this Agreement and the applicable Order Form. All other rights to the ZAIDYN Services and Documentation, and any improvements, derivative works or updates thereto, and all intellectual property contained therein, are expressly reserved to ZS.

2.2. The Customer shall, and will ensure that its Users shall, comply with the Documentation when using the ZAIDYN Services.

2.3. The Customer represents and warrants that it and its Users’ use of the ZAIDYN Services will comply with all applicable laws and regulations.

2.4. Except as expressly authorized by this Agreement, Customer will not (and will not allow any third party to): (i) sell, sublicense, distribute (in whole or part), or otherwise permit any third party to access and use the ZAIDYN Services; (ii) decompile, disassemble, or reverse engineer the ZAIDYN Services, including any third party materials contained therein; (iii) use the ZAIDYN Services to develop a competing product or service; (iv) provide or use the ZAIDYN Services for the benefit of any third party; (v) engage in any conduct that would cause a virus or other computer code, file or program to interrupt, destroy or limit the functionality of the ZAIDYN Services and/or related hardware or telecommunications equipment; (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the ZAIDYN Services; or (v) if applicable, use the ZAIDYN Services in a manner that would result in the system being categorized as “high risk” (whether under the European Artificial Intelligence Act (Regulation (EU) 2024/1689) or otherwise) or having similar legal effect under applicable laws without the express prior written consent of ZS.

2.5. Not more than once per calendar year, upon reasonable notice by ZS, Customer agrees to submit to a reasonable audit of its compliance with this Agreement.

2.6. If access and use of the ZAIDYN Services includes access and use of any third-party software, open source software (“OSS”), data or information procured by ZS (“third party materials”), Customer agrees to be bound by any additional licensing terms and conditions applicable to such third-party software, data or information, posted at https://www.zs.com/zaidyn-platform/agreements or specified in the Order Form.

2.7. ZS owns all right, title and interest in and to the ZAIDYN Services, and Customer does not receive any rights to the ZAIDYN Services and Documentation, including all Intellectual Property Rights relating thereto, except as otherwise set forth herein.

2.8. Notwithstanding any other provision of this Agreement, ZS owns all right, title and interest in and to the Usage Data. The Customer acknowledges that ZS may collect, use and analyze the Usage Data for any purpose, including to: (i) enhance and improve the ZAIDYN Services and develop new products, services, features, and functionalities; and (ii) create aggregated and anonymized data sets, provided that such data sets do not identify the Customer, its Users, or any individuals.

2.9. Customer hereby unconditionally and irrevocably assigns to ZS all right, title, and interest that Customer may have or acquire in the ZAIDYN Services, or any of ZS’s Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto.

2.10. Customer acknowledges and agrees that the ZAIDYN Services may include Open Source Components and any use of the Open Source Components by Customer or a User is governed by, and subject to, the terms and conditions of the applicable Open Source License(s).

3. Users.

3.1. Customer shall be responsible for the acts and omissions of its Users and shall ensure that access and use of the ZAIDYN Services is limited to Users that agree to the relevant agreements and policies made available to Customer and listed at https://www.zs.com/zaidyn-platform/agreements. Any breach of the terms of this Agreement by any third party that obtains access or use of the ZAIDYN Services from the Customer (whether authorized or otherwise) shall constitute a breach by Customer.

3.2. If the applicable Order Form limits the number of Users and Customer exceeds the purchased number of Users, ZS shall invoice, and Customer shall pay for any Users that surpass the purchased amount.

3.3. Customer shall ensure that each User keeps its credentials (e.g. usernames and passwords) confidential and not disclose such credentials to any third party. Customer shall notify ZS immediately upon: (i) discovery of the disclosure of any such credentials; and (ii) any termination of the engagement of any Users so that such credentials can be changed.

3.4. Customer may re-assign seats to new Users that replace former Users who no longer use or need access to the ZAIDYN Services.

4. Professional Services.

4.1. ZS will perform Professional Services as described in the applicable Order Form. Customer will give ZS timely access to any materials reasonably needed for Professional Services, and ZS will use such materials only for purposes of providing Professional Services. Customer may use any deliverables that ZS furnishes as part of the Professional Services only in connection with Customer’s authorized use of the ZAIDYN Services under this Agreement and the applicable Order Form.

5. ZAIDYN Services Subscription Fees.

5.1. The ZAIDYN Services may not be decreased during a Subscription Term. Prior to commencement of a renewal term, ZS will provide Customer with the Subscription Fees for the next Subscription Term. Unless otherwise set forth in the applicable Order Form, ZS shall invoice Customer for the Subscription Fees upon execution of the Order Form, and thereafter every three (3) months during the Subscription Term. Invoices shall be paid by Customer within thirty (30) days of the date of the invoice. Unless otherwise set forth herein or in the applicable Order Form, payment obligations are non-cancelable and non-refundable and are not based upon actual usage of the ZAIDYN Services.

5.2. If Customer does not pay the Subscription Fees by the applicable due date, the amounts past due will be subject to a late payment fee of 1.5% of the outstanding balance per month. If the amounts past due are the subject of a valid and good faith dispute by Customer, the late payment fee shall not apply to the disputed amount until thirty (30) days after the resolution of such dispute. If an invoice remains unpaid sixty (60) or more days from the invoice date (and is not the subject of a valid and good faith dispute), ZS may, in its discretion, terminate the applicable Order Form and/or suspend access to the ZAIDYN Services.

5.3. Customer shall pay all sales, use and excise taxes, and any other assessments in the nature of taxes however designated, on the fees for the ZAIDYN Services or on any amount payable or any services furnished under this Agreement, exclusive of taxes based on ZS net income, unless Customer furnishes ZS with a certificate of exemption from payment of such taxes which is in a form reasonably acceptable to ZS.

5.4. If Customer’s use of the ZAIDYN Services exceeds any applicable Usage Limitations set forth in the Order Form, ZS reserves the right to invoice Customer for such excess usage, with prior notice to Customer.

6. Confidentiality.

6.1. ZS shall not disclose Customer’s Confidential Information to any third party, except to its employees, Affiliates and contractors involved in the performance of the ZAIDYN Services; nor use Customer’s Confidential Information for any purpose other than facilitating Customer’s use of the ZAIDYN Services.

6.2. Customer shall not disclose ZS’ Confidential Information to any third party, except to the extent the third party is a User or specifically permitted hereunder or by the applicable Order Form, nor shall Customer or any such Users use ZS’ Confidential Information for any purpose other than for the benefit of Customer and as contemplated under this Agreement.

6.3. Each party shall promptly notify the other in writing if any unauthorized access, use or disclosure of the other's Confidential Information has taken place or is reasonably likely to take place and take such steps as the other party may reasonably require in relation to the same.

6.4. Each party acknowledges that unauthorized use and/or disclosure of the other's Confidential Information may cause substantial harm and/or irreparable loss or damage to the other party for which monetary damages alone would not be a sufficient remedy and, therefore, that upon any use or disclosure of Confidential Information in breach of this Section 6 (Confidentiality) the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or pursuant to the Agreement.

7. Data and Information.

7.1. As between the parties, the Customer owns all right, title and interest in the Customer Data. Customer grants ZS a worldwide, royalty-free, non-exclusive, license to use the Customer Data to perform its obligations under this Agreement.

7.2. Customer warrants that it has all rights and consents (including under the applicable privacy laws) necessary to provide the Customer Data to ZS and to grant the foregoing right to ZS. Customer shall indemnify and hold harmless ZS and its officers, directors and employees against any all liabilities, costs, expenses (including reasonable legal fees), losses and damages incurred by ZS as a result of third party claim that the Customer Data or its use by ZS or any of its subcontractors infringes any third party rights (including Intellectual Property Rights).

7.2.1. Any Customer Data that is personal data, as defined by applicable privacy laws, will be processed in accordance with the ZS Privacy Policy and Data Processing Addendum posted at https://www.zs.com/zaidyn-platform/agreements/data-processing. By using the ZAIDYN Services or submitting or uploading Customer Data using the ZAIDYN Services, Customer expressly consents to such processing and to ZS engaging subprocessors to process the Customer personal data on its behalf.

7.2.2. Notwithstanding anything to the contrary contained herein, ZS has the right to aggregate, process and/or analyze the Customer Data so that it can no longer be linked, directly or indirectly, to a specifically named company, organization, or individual person, as well as any other rights to process the Customer Data that may be set forth in the applicable Order Form. Such aggregated, processed or analyzed data shall be considered ZS’s Confidential Information, and ZS shall have the right to modify, copy, distribute, disclose, display, and otherwise use it for any purpose permitted under applicable law.

7.3. If code is created by or for Customer using the ZAIDYN Services, Customer grants ZS a worldwide, limited license to host, copy, use, transmit, and display the code to provide and ensure proper operation of the ZAIDYN Services in accordance with this Agreement.

7.4. ZS will not be prohibited or restricted at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing the ZAIDYN Services or related services hereunder, which are not uniquely applicable to Customer or solely derived from Customer’s Confidential Information.

8. Customer Provided Services.

8.1. Customer grants ZS a worldwide, royalty-free, non-exclusive license to host, copy, use, transmit, and display any Customer Provided Services, and to use any Customer Intellectual Property, to perform its obligations under the Agreement.

8.2. Customer is solely responsible for the fees and performance of the Customer Provided Services, and to the extent applicable, the interoperation of any Customer Provided Services with the ZAIDYN Services. Customer represents and warrants that the use of any Customer Provided Services with the ZAIDYN Services shall not infringe the Intellectual Property Rights or privacy rights of ZS or a third party, or violate applicable law. Customer shall use reasonable efforts to facilitate the removal of any Customer Provided Services that are the subject of any claims of infringement or violation of privacy rights or applicable law. ZS reserves the right to suspend or discontinue Customer’s or its User’s access to the ZAIDYN Services used with any Customer Provided Services for which ZS suspects may infringe Intellectual Property Rights or privacy rights or violate applicable law, or receives actual notice of any such claims.

8.3. ZS does not make any warranties or representations regarding Customer Provided Services. If Customer Provided Services interfere with the operation of the ZAIDYN Services, ZS shall not be responsible for the availability or functionality of the affected ZAIDYN Services. ZS is not responsible for the Customer Provided Services’ handling of Customer Data.

9. Service Levels.

ZS will use best efforts to provide the ZAIDYN Services in accordance with the service levels set forth in https://www.zs.com/products/software-support.

10. Suspension of Access to ZAIDYN Services.

ZS may, in its sole discretion: (i) suspend Customer’s or its User’s access to the ZAIDYN Services; or (ii) require Customer to remove the ZAIDYN Services from Customer’s environment (if applicable) for any of the following reasons: (a) to prevent damages to, or degradation of, the ZAIDYN Services or ZS’ systems; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect ZS from potential legal liability; (d) in the event of an unpaid and overdue invoice; or (e) for any other reason that ZS considers necessary to protect its (or other ZS customers’) reputation, safety and security. ZS shall use reasonable efforts to provide Customer with notice prior to or following any suspension of access. ZS may restore access to the ZAIDYN Services as soon as the event giving rise to suspension has been resolved.

11. Generative AI.

11.1. Definitions.

11.1.1. "AI Bias" means Outputs that negatively profile individuals based on race, class, ethnicity, sexual preference, religion, national origin, disability, gender, marital status or age and that: (i) have a negative effect on the health and safety of persons; (ii) have a negative impact on a person’s fundamental rights under the European Union’s Charter of Fundamental Rights (if applicable); or (iii) are prohibited under applicable anti-discrimination laws.

11.1.2. “Input” means a prompt, input, query, command, or other user instruction entered or uploaded by Customer or Users to the ZAIDYN Services.

11.1.3. “Output” means any data, text, content, sound, videos, software code, image, material, information, communication, and other output, outcome, action or result solely based on Input and generated from use of the ZAIDYN Services and made available to the Customer in accordance with this Agreement, excluding any such output that includes or is based on ZS Confidential Information or ZS Intellectual Property.

11.1.4. “ZS-Provided GenAI” means the generative AI components, tools or functionality that are procured or developed by ZS and provided to the Customer or User under the applicable Order Form, but excluding any Customer Provided Services.

11.2. ZAIDYN Services may incorporate ZS-Provided GenAI or Customer Provided Services, as specified in the Order Form.

11.3. Outputs. As between ZS and Customer, and to the extent permitted by Applicable Law, Customer owns all Outputs, including all Intellectual Property Rights therein and grants ZS a non-exclusive, transferrable, worldwide rights to use such Outputs for purposes of providing services to Customer. The Customer acknowledges and agrees that Outputs may not be unique and other users of generative AI may generate the same or similar Output, and that Outputs might not be protectable Intellectual Property. ZS makes no warranty or representation that the Output will be free from any inaccuracies, defects, errors, AI Biases, or hallucinations. Customer is responsible for evaluating whether Outputs are appropriate for Customer’s use case, including where human oversight and review is appropriate, before using or sharing Outputs and bears sole responsibility for any use of such Outputs (or decisions made based on the information in such Outputs). Customer acknowledges, and must notify its Users, that factual assertions in Outputs should not be relied upon without independently checking their accuracy, as they may be false, incomplete, or misleading.

11.4. Provision of information. Upon Customer’s reasonable request, ZS will provide information to Customer, as Customer may reasonably require relating to ZS-Provided GenAI in order for Customer to comply with applicable laws.

11.5. Compliance with AI Laws. During the Subscription Term, ZS will ensure that ZS-Provided GenAI complies with all applicable laws provided the ZS-Provided GenAI: (i) is properly used by Customer or its Users in the manner contemplated by the applicable Documentation; (ii) is accessed and used in accordance with applicable law; and (iii) is in the condition provided by ZS to Customer (i.e. without any unapproved modifications) and for the purposes set out in the applicable Order Form.

11.6. ZS will ensure that ZS-Provided GenAI is designed, maintained and/or tested in line with Section 11.7 below such that during the Subscription Term, when used in accordance with the Documentation and for the purposes set forth in the applicable Order Form the ZS-Provided GenAI: (i) can be used in accordance with ethical standards and (ii) is capable of human oversight to the extent required by applicable laws.

11.7. Ongoing Testing and Safety. ZS shall:

11.7.1. provide the ZS-Provided GenAI to meet Customer’s requirements specified by the Customer in the Order Form;

11.7.2. upon Customer’s reasonable request, conduct training, testing and validation of the ZS-Provided GenAI in conjunction with Customer;

11.7.3. maintain and retain accurate records of the operating processes of the ZS-Provided GenAI, including such training, testing and validation, and shall provide copies of such records to Customer on its reasonable request;

11.7.4. upon Customer’s reasonable request, provide suitable Documentation and training on use and operation of the ZAIDYN Services to a reasonable number of Users of the ZAIDYN Services (at rates to be agreed between the parties).

11.8. AI Bias. ZS will use reasonable efforts to ensure that ZS-Provided GenAI is designed to reduce any AI Bias and, to the extent that ZS becomes aware of such AI Bias it shall use reasonable measures to remedy or replace the ZS-Provided GenAI with an appropriate solution that does not materially derogate the ZS-Provided GenAI. Customer shall promptly report to ZS any AI Bias of which Customer suspects or becomes aware of when using the ZS-Provided GenAI.

12. Warranties.

12.1. ZS warrants to Customer that the ZAIDYN Services shall operate in substantial conformity with its Documentation under normal use and circumstances. ZS’ sole and exclusive liability for a breach of the foregoing warranty shall be to use commercially reasonable efforts to resolve the nonconformity in a timely manner, to replace the ZAIDYN Services if necessary, or provide a credit for the pre-paid portion of the Subscription Fee for the affected ZAIDYN Services, as determined in ZS’ sole discretion.

12.2. EXCEPT AS PROVIDED IN THIS SECTION 12 (WARRANTIES), THE ZAIDYN SERVICES AND ANY THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES WITH RESPECT TO THE USE OF GENERATIVE AI, THE INPUTS OR THE OUTPUTS. ZS AND ITS SUBCONTRACTORS AND SUBPROCESSORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE AND NON-INFRINGEMENT. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF ZAIDYN SERVICES IS AT CUSTOMER’S SOLE RISK. CUSTOMER ASSUMES ALL RESPONSIBILITY WITH RESPECT TO ANY DECISIONS OR ADVICE MADE OR GIVEN AS A RESULT OF THE USE OF THE ZAIDYN SERVICES. THE ZAIDYN SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION, INCLUDING CONFIDENTIAL INFORMATION, OVER THE INTERNET.

13. Indemnification.

13.1. ZS agrees that it will defend any suit or proceeding brought against Customer by a third party, and will indemnify Customer for all damages and costs finally awarded in such suit or proceeding insofar as such suit or proceeding is based on a claim that the ZAIDYN Services in accordance with the specifications infringe any United States patent or copyright, provided ZS is notified promptly in writing of any such claim and at its expense is given full and complete authority (including settlement authority), information and assistance by Customer for such defense.

13.1.1. In the event that the ZAIDYN Services are held in such suit or proceeding to infringe a United States patent or copyright and its use is enjoined, or if in the opinion of ZS the ZAIDYN Services are likely to become the subject of a claim of infringement of a United States patent or copyright, ZS, at its own election and expense, shall: (i) procure for Customer the right to continue using the ZAIDYN Services; (ii) modify the ZAIDYN Services to become non-infringing while giving substantially equivalent performance; (iii) replace the ZAIDYN Services with non-infringing ZAIDYN Services which give substantially equivalent performance; or if (i), (ii) and (iii) are not reasonably feasible, then terminate Customer’s access to the ZAIDYN Services; and refund to Customer any prepaid Subscription Fees for the then current Subscription Term.

13.1.2. ZS shall not indemnify Customer under any provision of this Section to the extent any infringement or claim thereof is based upon (i) a modification of the ZAIDYN Services by any party other than ZS or a third party acting on ZS’s behalf; (ii) the combination, operation or use of the ZAIDYN Services with any Customer Provided Services, hardware, firmware, system, or network; or (iii) use of the ZAIDYN Services that is outside the purpose, scope, or manner of use authorized by this Agreement, in any manner contrary to ZS’s instructions, or for any purpose other than for which the ZAIDYN Services were provided.

13.2. Customer agrees that it will defend any suit or proceeding brought against ZS by a third party, and will indemnify ZS for all damages and costs finally awarded in such suit or proceeding insofar as such suit or proceeding is based on a claim arising from (i) Customer’s breach or alleged breach of Section 2, or (ii) the Customer Data or any Customer Provided Services infringe any United States patent or copyright, provided that for both (i) and/or (ii) Customer is notified promptly in writing of any such claim and at its expense is given full and complete authority (including settlement authority), information and assistance by ZS for such defense.

14. Waiver of Consequential Damages and Limitation of Liability.

14.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS; OR ANY PENALTIES OR MULTIPLIERS, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIMS AGAINST THE OTHER PARTY REGARDING SUCH DAMAGES.

14.2. ZS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE HEREUNDER UNLESS SUCH LOSS OR DAMAGE IS DUE TO ZS’S FAILURE TO USE REASONABLE CARE. IF ZS IS FOUND LIABLE, THE AMOUNT OF ZS’S MAXIMUM LIABILITY FOR ANY AND ALL LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL SUBSCRIPTION FEES PAID TO ZS BY CUSTOMER UNDER THE APPLICABLE ORDER FORM RELATING TO SUCH LIABILITY.

15. Term and Termination.

15.1. This Agreement begins on the Effective Date and will remain valid during the Subscription Term set forth in the Order Form.

15.2. Either party may terminate this Agreement if the other party is in material breach of this Agreement and fails to cure such breach within thirty (30) days notice thereof. If ZS is the party in material breach, ZS shall refund to Customer any prepaid Subscription Fees for the remainder of the Subscription Term, and Customer will have no further payment obligations beyond any amounts unpaid for ZAIDYN Services provided up until the date of termination. If Customer is the party in material breach, Customer shall not be relieved of its payment obligations for the entirety of the Subscription Term set forth in the Order Form.

15.3. If the applicable Order Form indicates the infrastructure of ZAIDYN Services is hosted by ZS, then upon written request by Customer made within thirty (30) days after the termination of the Order Form, ZS will make available to Customer, for download, a file of any applicable Customer Data in a standard format commonly used in the industry. After such 30-day period, ZS will have no obligation to maintain or provide any such Customer Data and may thereafter, unless legally prohibited, delete all of such Customer Data from ZS’ systems.

15.4. Upon the expiration or termination of any license granted under this Agreement, Customer shall immediately cease use of the ZAIDYN Services. If applicable, within one (1) month after the date of termination of any license granted under this Agreement, Customer will destroy all copies of the ZAIDYN Services installed in Customer’s environment and certify to ZS that through Customer’s best efforts, and to the best of Customer’s knowledge, the original and all copies of the ZAIDYN Services (excluding documentation and materials) received from ZS or made in connection with such license have been returned or destroyed. Customer may retain one (1) copy of such ZAIDYN Services for archive purposes only.

15.5. The following provisions shall survive any termination or expiration of this Agreement: Sections 2, 3, 5, 6, 7, 13, 14, 15, 16, 17, 18, 19 and 20.

16. Export Control. Customer agrees that it will not in any form export, re-export, resell, ship, or divert or permit to be exported, re-exported, resold, shipped or diverted, directly or indirectly, the ZAIDYN Services in violation of the laws, regulations, rules or orders or any jurisdiction, including applicable import and export laws. Customer shall indemnify, defend, and hold harmless ZS from any claim, demand, action, proceeding, judgment, or liability arising out of Customer’s or its Users’ breach of this Section 16.

17. Publicity. Unless otherwise set forth in the Order Form, ZS shall be permitted to publicly refer to Customer as a subscriber to the ZAIDYN Services using Customer’s name and logo. In addition, ZS may use Customer as a case study and/or reference to demonstrate the value of the ZAIDYN Services to others, provided that ZS may only identify Customer in the case study with Customer’s prior written consent.

18. General. This Agreement shall be governed by and construed in accordance with the laws (excluding the law of conflict of laws) of the State of Illinois. UCITA shall not apply. No change to this Agreement shall be binding unless it is in writing and signed by both parties. ZS reserves the right to update these Terms and Conditions at any time. Except for Customer’s obligation to pay ZS, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. No waiver by a party of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision of this Agreement. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal and enforceable provision that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, or, if based on nonpayment, more than two (2) years from the date of the last payment.

19. Notices. All formal notices, consent and other communication required or permitted under this Agreement shall be in writing and shall be sent by registered or certified mail, postage prepaid and return receipt requested, to the addresses indicated in this Agreement or the applicable Order Form. Either party may change its address by written notice to the other party.

If to ZS, with copy to:

ZS Associates, Inc.

222 Merchandise Mart Plaza, Suite 230

Chicago, IL 60654

Attention: Director – Legal

Facsimile: 847.492.3606

20. Order of Precedence. Conflicts between these terms and conditions and an Order Form will be resolved in favor of the Order Form, provided, however, in the event an Order Form referencing these terms and conditions references another governing agreement, any conflicts will be resolved in favor of this Agreement unless the Order Form specifically states otherwise.