These Terms of Use (“Terms”) are entered into by and between you and Zimuth, Inc. (“we,” “us,” or “Scout APM”). Scout APM provides a suite of production-grade application observability services intended for use by development teams (“Services”), and the Services are made available through the Scout APM 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).

These Terms are a legal agreement entered into between you and Scout APM. You” and similar terms means you as an individual, as well as the business or entity on whose behalf you are using the Services. You represent and warrant that you are at least 18 years of age and authorized to enter into this agreement on behalf of yourself or the business or entity for which the Services will be used. If you do not want to agree to these Terms, you must not register for an account or access or use the Services.

BY USING OR ACCESSING THE SERVICES, OR BY CLICKING ON THE “I AGREE” CHECKBOX WHEN OFFERED, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS. 

These Terms are in addition to any other agreements between you and Scout APM. In the event of a conflict between these Terms and those other agreements, the terms of those other agreements will control. 

Scout APM 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 or cancel your Account.

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. All information you provide is governed by 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 APM cannot and will not be liable for any loss or damage from your failure to comply with this obligation. You should notify us immediately of any unauthorized access to your Account or any other breach of security.

Logins may only be used by one person. You may be able to create additional authorized user accounts and assign certain permissions. 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. You are responsible to ensure that all users authorized to access and use the Services on your behalf comply with these Terms. 

From time to time, Scout APM may find it necessary to access your account. For instance, Scout APM may access your account for support, maintenance or security-related reasons. In such event, Scout APM will, if possible, provide you notice of its intent to do so. We also have the right to disable any Account or user logins at any time if, in our opinion, you have violated these Terms.

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. You do not gain any ownership interest 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. Occasionally we may restrict access to some parts or all of the Services. Scout APM does not make any representations or guarantees regarding uptime or availability of the Services.

Appropriate Use and Limitations

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.

You will not: 

• use the Services for any purposes beyond the scope of the access granted by these Terms;
• directly or indirectly (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.
• Transmit, inject, or otherwise make available through the Services, any virus, Trojan horse, time bomb, or other computer code, file or program that is potentially harmful or malicious; 
• use any device, software or routine that interferes with the Services or attempt to gain unauthorized access to interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected thereto;
• use the Services in an unlawful or fraudulent manner;
• engage in any conduct which we, in our sole discretion, believe is offensive, harmful, defamatory or otherwise harmful to us or others; 
• violate these terms or 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 to us herein. You also represent and warrant that your entering into these Terms does not conflict with or violate any agreement with any third party. 

The Services are controlled and operated by Scout APM from its offices within the United States. Scout APM makes no representation that the information or materials on or linked through the Services are appropriate or available for use in other jurisdictions. If you choose to access the Services from outside the U.S., you do so at your own risk and are responsible for compliance with all applicable laws, rules and regulations of that jurisdiction.

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 plus usage fees basis for the term as specified when you register your Account.  The Service subscription is billed in advance on a monthly basis, and usage fees accrue over the course of each monthly period and are billed at the end of each monthly period. Your agreement for purchasing a subscription becomes binding upon clicking “I Accept.”   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 unless you cancel your subscription. All fees are non-refundable unless otherwise agreed by Scout APM. 

If you initially sign up for free trial, you must provide Scout APM a valid payment method (such as a credit card) to continue using the Services at the end of the trial period. In the first month, you will not be billed until you have exceeded one or both of your free trial allocations (whether the predefined length of the trial period, or the usage limits identified when you sign up). Subscription charges will occur at the start of each new billing cycle, along with any non-subscription overages from the previous month charged in arrears. If you cancel prior to exceeding the trial use, you will not be charged. 

Based on your selected plan, if you exceed your plan’s usage limit, we reserve the right to stop recording data or additional services may be applied automatically at the rates identified in your account registration or on our Website.

For any upgrade or downgrade in plan level, your payment method will automatically be charged the new rate on your next billing cycle. Downgrading your Service may cause the loss of Client Data, content, features, or capacity of your account. Scout APM is not liable or responsible for such loss.

Cancellation

Cancelling your subscription must be done via a cancellation request email sent to support@scoutapm.com or through the “Cancel” button within the application.

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. When you cancel, it is your responsibility to ensure you cease sending data to Scout APM. Failure to do so may incur additional usage fees after the effective date of your cancelation.  You are liable for all data charges until you have completely ceased sending data to Scout APM. Outstanding usage fees will be billed on the final day of your last billing cycle.

Scout APM, in its sole discretion, has the right to cancel, suspend, or terminate your account and refuse any and all current or future use of the Services, or any other Scout APM service, for any reason at any time. When you choose to cancel your subscription, you shall not be entitled to a refund (pro rata or otherwise) of any pre-paid fees, and all usage fees shall be charged to your designated payment method.

Modifications to the Service and Prices

Scout APM 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 or overages, 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.

Pricing or payment 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 payment mechanism was charged.  Scout APM 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 credit or payment card number and expiration date or similar payment information, your billing address, and shipping information to our third-party payment processor. 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 payment mechanism that you submit. You acknowledge and agree that Scout APM 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 APM, Scout APM or its licensors owns all right, title, and interest, including all intellectual property rights, in and to the Services. Scout APM names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Scout APM. You are not authorized to use any Scout APM name or mark in any advertisement, publicity or in any other commercial manner without our prior written consent. 

Scout APM and its licensors, vendors or other service providers retain and reserve all proprietary rights to the contents of the Services. 

The Services may include or require you to use software, content, data, or other materials, including related documentation, that are owned by persons other than Scout APM, such as the Open Telemetry project (https://opentelemetry.io/).  If any such third-party items are provided to you by Scout APM, those may be subject to terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). You agree to be bound by and comply with all Third-Party Licenses.

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 will not use the Services to process or access any sensitive or personally identifiable information about Your customers as a part of Client Data. You grant Scout APM 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 APM to perform its obligations under this Agreement, including to provide the Services, and test and enhance the Services. 

Scout APM 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 APM 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 APM: (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 APM shall not constitute “Client Data” and Scout APM shall be the sole and exclusive owner of such data.

You have no obligation to provide Scout APM with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to Scout APM, then you grant Scout APM 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 APM, at your expense, against any and all third party claims, actions, proceedings, and suits brought against Scout APM 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 APM 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 APM will provide you with written notice of such claim, suit or action. You shall fully cooperate in the defense of any claim. Scout APM 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 APM 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 APM shall not be responsible for unauthorized access to or alteration of your data.

Scout APM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Scout APM 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.  

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. 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 APM 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 APM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  IN NO EVENT WILL Scout APM’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 APM UNDER THESE TERMS IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

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 APM, 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 APM 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 APM 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 APM and govern your use of the Services, superseding any prior agreements between you and Scout APM (including, but not limited to, any prior versions of the Terms of Use). 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. 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 Delaware. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Contact Information

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

Las Vegas, NV 89118-2507