Max.AI made by ZS Subscription Terms and Conditions

These Max.AI made by ZS Subscription Terms and Conditions, together with any Order Form(s), (collectively, the “Agreement”) govern the Customer’s access to and use of the Max.AI Services specified in an Order Form, unless the Order Form specifies that a separate agreement between the 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 Max.AI Services. By accepting this Agreement, the Customer agrees to comply with the terms hereof. The individual accepting this Agreement on behalf of the 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. "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.

1.3. “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’s Confidential Information includes, without limitation, the Max.AI 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.

1.4. “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. The Customer is a party to this Agreement.

1.5. “Customer Customized AI” means Max.AI Nova Agent, any customized or build-your-own AI agent developed or configured by the Customer using Max.AI Services, tools or functionalities or as otherwise indicated as such in the applicable Order Form. 

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

1.7. “Customer Feedback” means suggestions, comments, enhancement requests, recommendations, corrections or other feedback about the Max.AI Services.

1.8. “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 the Customer, which interacts with the Max.AI Services.

1.9. “Documentation” means ZS’s user manuals, handbooks, end user documentation and installation guides relating to the Max.AI Services made available to the Customer, including at or in the Order Form, and any updates or revisions thereto.

1.10. “Effective Date” means the date on which the 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 Max.AI Services. 

1.11. “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 that 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.

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

1.13. “Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Max.AI Services, including any updated Documentation, that ZS may provide to the 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 Max.AI Services, but does not include any New Version.

1.14. “Max.AI 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 the Customer, including any ZS-Provided GenAI and Customer Customized AI, and any related services and Documentation provided by ZS, but excluding any Outputs and Customer Data. 

1.15. "New Version" means any new version of the Max.AI 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 the Customer at an additional cost under a separate written agreement.

1.16. “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.

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

1.18. “Output” means any data, text, content, sound, videos, software code, image, material, information, communication and other output, outcome, action or result generated solely from use of the Max.AI Services and made available to the Customer in accordance with this Agreement.

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

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

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

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

1.23. “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 Max.AI Services and related technologies but excluding Customer Data.

1.24. “User” means an individual authorized by the Customer to use the Max.AI 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.

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

1.26. “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 Customized AI. 
 

2. Use of Max.AI Services.
2.1. ZS hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the Max.AI Services during the Subscription Term through systems identified in the applicable Order Form, for the Customer’s internal business purposes or other purposes as described in the Order Form (including deployment of Customer created models, agents or other products) pursuant to the terms of this Agreement and the applicable Order Form. All other rights to the Max.AI 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 Max.AI Services.

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

2.4. Except as expressly authorized by this Agreement, the 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 Max.AI Services; (ii) decompile, disassemble or reverse engineer the Max.AI Services, including any third party materials contained therein; (iii) use the Max.AI Services to develop a competing product or service; (iv) provide or use the Max.AI 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 Max.AI 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 a Max.AI Services; or (v) use the Max.AI 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, the Customer agrees to submit to a reasonable audit of its compliance with this Agreement.

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

2.7. ZS owns all right, title and interest in and to the Max.AI Services, and the Customer does not receive any rights to the Max.AI 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 Max.AI Services and develop new products, services, features and functionalities; and (ii) create aggregated and anonymized datasets, provided that such data sets do not identify the Customer, its Users or any individuals.

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

2.10. The Customer acknowledges and agrees that the Max.AI Services may include Open Source Components and any use of the Open Source Components by a 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. The Customer shall be responsible for the acts and omissions of its Users and shall ensure that access to and use of the Max.AI Services is limited to Users that agree to the Max.AI End User License Agreement. Any breach of the terms of this Agreement by any third party that obtains access or use of the Max.AI Services from the Customer (whether authorized or otherwise) shall constitute a breach by the Customer.

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

3.3. The Customer shall ensure that each User keeps their credentials (e.g., usernames and passwords) confidential and not disclose such credentials to any third party. The 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. The Customer may reassign seats to new Users that replace former Users who no longer use or need access to the Max.AI Services.

4. Professional Services.
4.1. ZS will perform Professional Services as described in the applicable Order Form. The 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. The Customer may use any deliverables that ZS furnishes as part of the Professional Services only in connection with the Customer’s authorized use of the Max.AI Services under this Agreement and the applicable Order Form.

5. Max.AI Services Subscription Fees. 
5.1. The Max.AI Services may not be decreased during a Subscription Term. Prior to commencement of a renewal term, ZS will provide the Customer with the Subscription Fees for the next Subscription Term. Unless otherwise set forth in the applicable Order Form, ZS shall invoice the 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 the 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 Max.AI Services.

5.2. If the 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 the 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 Max.AI Services.

5.3. The 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 Max.AI Services or on any amount payable or any services furnished under this Agreement, exclusive of taxes based on ZS net income, unless the Customer furnishes ZS with a certificate of exemption from payment of such taxes that is in a form reasonably acceptable to ZS.

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

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

6.2. The Customer shall not disclose ZS’s 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 the Customer or any such Users use ZS’s Confidential Information for any purpose other than for the benefit of the 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. The Customer grants ZS a worldwide, royalty-free, non-exclusive license to use the Customer Data to perform its obligations under this Agreement.

7.2. The 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. The 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 a 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).

7.3. 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 www.zs.com/solutions/artificial-intelligence-and-analytics/max-ai/agreements/data-processing. By using the Max.AI Services or submitting or uploading Customer Data using the Max.AI Services, the Customer expressly consents to such processing and to ZS engaging subprocessors to process the Customer personal data on its behalf.

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

7.5. 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 Max.AI Services or related services hereunder, which are not uniquely applicable to the Customer or solely derived from the Customer’s Confidential Information.

8. Customer Provided Services. 
8.1. The 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. The 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 Max.AI Services. The Customer represents and warrants that the use of any Customer Provided Services with the Max.AI Services shall not infringe the Intellectual Property Rights or privacy rights of ZS or a third party, or violate applicable law. The 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 the Customer’s or its Users’ access to the Max.AI Services used with any Customer Provided Services for which ZS suspects may infringe IPR 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 or Customer Customized AI. If Customer Provided Services or Customer Customized AI interfere with the operation of the Max.AI Services, ZS shall not be responsible for the availability or functionality of the affected Max.AI Services. ZS is not responsible for the Customer Provided Services’ or Customer Customized AI handling of Customer Data.

9. Suspension of Access to Max.AI Services. ZS may, in its sole discretion: (i) suspend the Customer’s or its Users’ access to the Max.AI Services; or (ii) require the Customer to remove the Max.AI Services from the Customer’s environment (if applicable) for any of the following reasons: (a) to prevent damages to, or degradation of, the Max.AI Services or ZS’s 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 the Customer with notice prior to or following any suspension of access. ZS may restore access to the Max.AI Services as soon as the event giving rise to the suspension has been resolved.

10. Generative AI.
10.1. Max.AI Services may incorporate ZS-Provided GenAI or Customer Provided Services, as specified in the Order Form.

10.2. Outputs. As between ZS and the Customer, and to the extent permitted by Applicable Law, the Customer owns all Outputs, including all Intellectual Property Rights therein and grants ZS non-exclusive, transferrable, worldwide rights to use such Outputs for purposes of providing services to the 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. The Customer is responsible for evaluating whether Outputs are appropriate for the Customer’s use case, including where human oversight and review are 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). The 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.

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

10.4. 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 the 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 the Customer (i.e., without any unapproved modifications) and for the purposes set out in the applicable Order Form.

10.5. ZS will ensure that ZS-Provided GenAI is designed, maintained and/or tested in line with clause 10.6 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.

10.6. Ongoing Testing and Safety. ZS shall:

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

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

10.6.3. 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 the Customer on its reasonable request;

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

10.7 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. The Customer shall promptly report to ZS any AI Bias that the Customer suspects or becomes aware of when using the ZS-Provided GenAI.

11. Warranties.
11.1. ZS warrants to the Customer that the Max.AI Services shall operate in substantial conformity with its Documentation under normal use and circumstances. ZS’s 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 Max.AI Services if necessary, or provide a credit for the pre-paid portion of the Subscription Fee for the affected Max.AI Services, as determined in ZS’s sole discretion.

11.2 EXCEPT AS PROVIDED IN THIS SECTION 11 (WARRANTIES), THE MAX.AI 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. THE CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF MAX.AI SERVICES IS AT THE CUSTOMER’S SOLE RISK. THE CUSTOMER ASSUMES ALL RESPONSIBILITY WITH RESPECT TO ANY DECISIONS OR ADVICE MADE OR GIVEN AS A RESULT OF THE USE OF THE MAX.AI SERVICES. THE MAX.AI SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION, INCLUDING CONFIDENTIAL INFORMATION, OVER THE INTERNET.

12. Indemnification.
12.1. ZS agrees that it will defend any suit or proceeding brought against the Customer by a third party, and will indemnify the 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 Max.AI Services in accordance with the specifications infringe any United States patent or copyright, provided that 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 the Customer for such defense.

12.1.1. In the event that the Max.AI 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 Max.AI 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 the Customer the right to continue using the Max.AI Services; (ii) modify the Max.AI Services to become non-infringing while giving substantially equivalent performance; (iii) replace the Max.AI Services with non-infringing Max.AI Services that give substantially equivalent performance; or if (i), (ii) and (iii) are not reasonably feasible, then terminate the Customer’s access to the Max.AI Services; and refund to the Customer any prepaid Subscription Fees for the then current Subscription Term.

12.1.2. ZS shall not indemnify the Customer under any provision of this Section to the extent any infringement or claim thereof is based upon (i) a modification of the Max.AI Services by any party other than ZS or a third party acting on ZS’s behalf; (ii) the combination, operation or use of the Max.AI Services with any Customer Customized AI, Customer Provided Services, hardware, firmware, system or network; or (iii) use of the Max.AI 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 Max.AI Services were provided.

12.2. The 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) the Customer’s breach or alleged breach of Section 2, or (ii) the Customer Data, Customer Customized AI or any Customer Provided Services infringe any United States patent or copyright, provided that for both (i) and/or (ii) the 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. 

13. Waiver of Consequential Damages and Limitation of Liability.
13.1. 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.

13.2. 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.

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

14.2. 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 the Customer any prepaid Subscription Fees for the remainder of the Subscription Term, and the Customer will have no further payment obligations beyond any amounts unpaid for Max.AI Services provided up until the date of termination. If the Customer is the party in the material breach, the Customer shall not be relieved of its payment obligations for the entirety of the Subscription Term set forth in the Order Form.

14.3. If the applicable Order Form indicates the infrastructure of Max.AI Services is hosted by ZS, then upon written request by the Customer made within thirty (30) days after the termination of the Order Form, ZS will make available to the 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’s systems.

14.4. If applicable, within one (1) month after the date of termination of any license granted under this Agreement, the Customer will destroy all copies of the Max.AI Services installed in the Customer’s environment and certify to ZS that through the Customer’s best efforts, and to the best of the Customer’s knowledge, the original and all copies of the Max.AI 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 Max.AI Services for archive purposes only.

14.5. The following provisions shall survive any termination or expiration of this Agreement: Sections 2, 3, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18 and 19.

15. Export Control. The 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 Max.AI 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 15.

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

17. 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 the 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.

18. 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

19. 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.