Terms of Use

Last updated: October 14, 2021

These Terms of Use (“Terms”) are entered into by and between you and Zimuth, Inc. (“we,” “us,” or “Scout”). Scout provides a suite of production-grade application performance monitoring services intended for use by development teams (“Services”), and the Services are made available through the Scout website located at scoutapm.com (“Website”). The following are the terms and conditions, together with the Privacy Policy, are applicable to and govern your access and use of the Services and the Website (any reference to “Services” includes your access and use of the Website). Please read these Terms carefully before using the Services.

These Terms are a legal agreement entered into between you and Scout. You” and similar terms means you as an individual, as well as the business or entity on whose behalf you are using the Services, and you represent and warrant that you are authorized to enter into this agreement on behalf of yourself and such business or entity.

BY USING THE SERVICE, YOU (the terms "you" or "yours" includes the person or entity that is registered with the Service as well as any third parties accessing the Service on your behalf) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("Agreement"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.

These Terms are in addition to any other agreements between you and Scout, including any End User License Agreements or other terms related to your installation and use of certain components of the Services. In the event of a conflict between these Terms and those other agreements, the terms of those other agreements will control.

Scout reserves the right to make changes to these Terms at any time. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. If you are dissatisfied with the Services or these Terms, you agree that your sole and exclusive remedy is to discontinue using the Services.

Eligibility Requirements

The Services are offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are 18 years of age or older and otherwise meet all of the eligibility requirements contained herein. If you do not meet all of these requirements, you must not access or use the Services.

Account

In order to access or use certain features of the Services, you may be required to register and create an account (“Account”). You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. You agree that all information you provide to register with the Services is governed by our Privacy Policy , and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential. You are responsible for maintaining the security of your account and password. Scout cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.

Your login may only be used by one person – a single login shared by multiple users is not permitted. However, you may be able to create additional authorized user accounts and assign certain permissions to such additional accounts. Depending on the level of permissions assigned to your user account, you may not have access to or be able to view or use all of the functions or features of the Services. You are responsible and fully liable for any and all actions or omissions by any third parties who access or use the Services through an account created or managed by you. All such persons authorized to access and use the Services on your behalf shall be directed by you to these Terms.

From time to time, Scout may find it necessary to access your account. For instance, Scout may access your account for support, maintenance or security-related reasons. In such event, Scout will, if possible, provide you notice of its intent to do so. Regardless of whether such notice is provided, you acknowledge and consent to such access. We also have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms.

One person or legal entity may not maintain more than one free account.

License

Subject to your compliance with these Terms, we hereby grant you a non-exclusive, non-transferable right to access and use the Services, solely for internal business purposes and in accordance with these Terms. You understand and agree that the Services are provided under license to you, not being sold to you, and you do not gain any ownership interest of any kind in the Services under these Terms.

We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users. Scout does not make any representations or guarantees regarding uptime or availability of the Services.

    You are responsible for:

  • Making all arrangements necessary for you to have access to the Services.
  • Ensuring that all persons who access the Services through your internet connection are aware of these Terms and comply with them.

We may block, limit or terminate your access to the Services for any reason, including if: (i) you violate these Terms; (ii) you violate any applicable law or regulation relating to your use of the Services; (iii) you engage in any conduct which we, in our sole discretion, believe is offensive, harmful, defamatory or otherwise harmful to us or others; or (iv) you breach any other agreement with us.

You represent and warrant that you own or control all rights in and to the Client Data (defined below) and any other information, data, systems, hardware, software, or technology that you allow the Services to access, and that you have the right to grant all licenses herein. You also represent and warrant that you have the full right and authority to enter into these Terms and that your entering into these Terms does not conflict with or violate any agreement with any third party.

Appropriate Use and Limitations

The Services are controlled and operated by Scout from its offices within the United States. The Services are not intended to subject Scout to any non-U.S. jurisdiction or law. Scout makes no representation that the information or materials on or linked through the Services are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws, rules and regulations in their respective location in doing so.

You shall not use the Services for any purposes beyond the scope of the access granted by these Terms. You shall not at any time, directly or indirectly, and shall not permit any users to: (i) reproduce, modify, adapt, translate, create derivative works of or otherwise exploit any portion of the Services; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, including any laws in your home country.

In connection with the Services, you must not: (i) transmit or otherwise make available through or in connection with the Services, any virus, work, Trojan horse, time bomb, or other computer code, file or program that is potentially harmful or malicious; (ii) use any device, software or routine that interferes with the Services; (iii) use the Services in an unlawful or fraudulent manner; (iv) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services; (v) use any automatic device, process or means to access the Services for any purpose, including monitoring or copying content on the Services; and (vi) otherwise attempt to interfere with the proper working of the Services.

We reserve the right to terminate access to the Services at any time, for any reason. We may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.

Payment, Refund, Upgrading and Downgrading

The Services are offered on a monthly subscription basis for the term as specified in the registration. The Service is billed in advance on a monthly basis (unless otherwise specified during your registration process) and is non-refundable. Your agreement for purchasing a subscription becomes binding upon you beginning your free trial. After each subscription term, the Services term will automatically renew for the agreed upon term (e.g. 1 month). The full amount for each renewal term will be charged on the first day of the renewal.

If you initially sign up for free trial, you must provide Scout a valid payment method (such as a credit card) to continue using the Services at the end of the trial period. If you do provide a payment method at the end of your trial subscription, you will be billed monthly starting on the 14th day after your account was initially created. If you cancel in accordance with these Terms prior to the processing of your first invoice on the 14th day, you will not be charged. If you do not provide Scout a payment method in connection with your free trial subscription, your subscription to the Services will be terminated at the end of the free trial period and your Account will be closed.

If you exceed your plan's usage limit, additional services may be added automatically and will be billed on your next billing date.

For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.

There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. You are not entitled to expect any exception will be made for you.

Downgrading your Service may cause the loss of Client Data, content, features, or capacity of your account. Scout is not liable or responsible for such loss.

Scout has the right to cancel subscriptions at any time for any reason.

Cancellation

Cancelling your subscription must be done via a cancellation request email sent to support@scoutapm.com.

Cancellation of your subscription will result in the termination of your access to the Services, as well as the closing of your Account. All of your Client Data and content may be immediately deleted from the Services upon cancellation. This information may not be recovered once your Account is cancelled.

Scout, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Services, or any other Scout service, for any reason at any time. Such termination of the Services will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. Scout reserves the right to refuse service to anyone for any reason at any time.

Regardless of when you choose to cancel your subscription, you shall not be entitled to a refund (pro rata or otherwise) of any pre-paid fees.

Modifications to the Service and Prices

Scout reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. We may from time to time in our sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Prices of all Services, including but not limited to monthly subscription plan fees to the Services, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by posting the changes to the Website or the Services itself, or by notifying you using the contact information you have provided in connection with your Account.

The pricing and availability of the Services is subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your credit card or other payment mechanism charged. Scout shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

Payment Processing

In order to purchase a subscription to the Services you may be asked to supply certain relevant information, including your credit or payment card number and expiration date or similar payment information, your billing address, and shipping information. You represent and warrant that you have the right to use any credit or payment card or other payment mechanism that you submit in connection with the purchase of a subscription and that you have all authority necessary to purchase a subscription using the credit card or payment mechanism that you submit. By submitting such information, you grant Scout the right to provide such information to third parties for the purposes of facilitating your purchase. You acknowledge and agree that Scout is not responsible for how any third-party credit card or other payment method processor transmits, stores, uses or shares your information.

Intellectual Property Ownership

You acknowledge that, as between you and Scout, Scout owns all right, title, and interest, including all intellectual property rights, in and to the Services and, with respect to third-party products, the applicable third party owns all right, title, and interest, including all intellectual property rights, in and to the third-party products.

Scout names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Scout. All rights are reserved. You are not authorized to use any Scout name or mark in any advertisement, publicity or in any other commercial manner without prior written consent of Scout. All other trademarks appearing in connection with the Services are the property of their respective owners.

The entire contents and design of the Services are protected by U.S. and international copyright law. All rights regarding the Services and materials contained on the Services are either owned by Scout, are licensed to it, or are used with permission. Scout and its licensors, vendors or other service providers retain and reserve all proprietary rights to the contents of the Services.

Information Rights

You have the right to use all data derived by your use of the Services, including reports, and graphs, for any purpose related to your organization and you shall retain ownership of all confidential information and statistics relating to your servers and applications, such as raw data and log files generated by the Services (collectively, "Client Data"). You grant Scout a non-exclusive, fully-paid up, royalty-free right and license to reproduce, distribute, disclose, store, de-identify, collect, transmit, and otherwise modify and use Client Data as required for Scout to perform its obligations under this Agreement, including to provide the Services, and test and enhance the Services.

Scout will not use, disclose, or retain any Personal Information for any purpose other than as is necessary to provide the Services. If you provide, upload, or submit the Services, or allow the Services to access, transmit, store, or process Personal Information, you represent and warrant that you have all necessary consents, authorizations, rights, and permissions to disclose, transfer, and transmit Personal Information to the Services as contemplated by these Terms and that your provision of Personal Information to the Services is compliant with all applicable laws, rules, and regulations. For the purposes of these Terms, “Personal Information” shall mean information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Scout shall not be liable for your violation of any laws, rules, and regulations applicable to you, your business conduct, or your information collection, sharing, disclosure, and usage practices.

Notwithstanding the foregoing, in connection with the provision of the Services, Scout: (i) may collect certain non-Personal Information about users of your website and may use this information for any lawful purpose, and (ii) may aggregate and de-identify data derived from your use of the Services to compile aggregate statistics, metrics and general trend data about the Services, to enhance or improve the Services, or for marketing and promotional purposes. For the avoidance of doubt, any data collected, compiled, generated or used in the foregoing manner by Scout shall not constitute "Client Data” and Scout shall be the sole and exclusive owner of such data.

You have no obligation to provide Scout with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to Scout, then you grant Scout a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, or publicly perform the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.

Indemnification

You agree to indemnify, hold harmless and defend Scout, at your expense, against any and all third party claims, actions, proceedings, and suits brought against Scout or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, attorneys' fees) incurred by Scout or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach these Terms or any applicable law, or (ii) your use of the Services. In such a case, Scout will provide you with written notice of such claim, suit or action. You shall fully cooperate in the defense of any claim. Scout reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

Warranty Disclaimer

Your use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis.

SCOUT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SCOUT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

Scout makes no warranty of any kind that (i) the Services will be error-free or accessible at all times, (ii) defects will be corrected, (iii) the Services or the server that makes it available, are free of viruses or other harmful component, or (iv) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. You specifically agree that Scout shall not be responsible for unauthorized access to or alteration of your data. Scout makes no warranty of any kind that the Services will meet yours or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, or free of harmful code.

Transmission of information via the internet is not completely secure. We cannot guarantee the security of your personal information transmitted via the Services, our Website or any mobile applications. Any transmission of personal information is at your own risk. You acknowledge and agree that we are not responsible for circumvention of any privacy settings or security measures contained in the Services, our Website or any mobile applications.

Limitation on Liability

IN NO EVENT WILL SCOUT BE LIABLE IN CONNECTION WITH THESE TERMS OF USE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR COST OF REPLACEMENT GOODS OR SERVICES, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, OR REVENUES, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SCOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL SCOUT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SCOUT UNDER THESE TERMS IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Governing Law

These Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Third-Party Sites

The Services may contain links or other connections to gain access to websites and social networks that are not under the control of or operated by Scout, but rather are exclusively controlled and operated by third parties (collectively, “Third-Party Sites”). You may be transferred to a Third-Party Site even though it appears that you are still in the Services. These Third-Party Sites are subject to different terms and conditions and privacy policies. You agree that your use of Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions. Scout is not liable for your use of any Third-Party Site.

Miscellaneous

Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.

If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.

The failure of Scout to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. The Terms of Use constitutes the entire agreement between you and Scout and govern your use of the Services, superseding any prior agreements between you and Scout (including, but not limited to, any prior versions of the Terms of Use), except for in the case of any EULA or other agreement related to your download and installation of any component of the Services, as described above.

We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. You may not assign rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without our prior written consent.

Contact Information

Questions about the Terms of Use should be sent to support@scoutapm.com.