Effective Date: December 30, 2024
Note: zymtrace is currently in beta release. Please refer to Section 15 (Beta Software Terms) for important information regarding the current beta status.
These Terms and Conditions (the "Terms") constitute a legally binding agreement between you (either an individual or a legal entity) ("Customer," "you," or "your") and zystem, Inc., a Delaware corporation ("zystem," "we," "our," or "us"), located at 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808, United States.
By downloading, installing, accessing, or using zymtrace or any associated software, documentation, updates, or services (collectively, the "Software"), you acknowledge that you have read, understood, and agree to be bound by these Terms. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms. If you do not have such authority or if you do not agree with these Terms, you must not accept these Terms and may not use the Software.
In these Terms, the following definitions apply:
"Agreement" means these Terms and any Order Forms or other written agreements between Customer and zystem regarding the Software.
"Authorized User" means an individual employee, contractor, or agent of Customer who has been assigned unique login credentials to access and use the Software in accordance with the Agreement.
"Customer Data" means any data, information, code, applications, configurations, or other materials that Customer or its Authorized Users process, store, generate, or analyze using the Software within Customer's environment.
"Documentation" means the user manuals, specifications, and other written materials that describe the installation, operation, use, or technical specifications of the Software.
"Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
"Order Form" means zystem's order form, purchase order, or other written documentation specifying the commercial terms for Customer's use of the Software, including but not limited to fees, payment terms, and usage limitations.
"Software" means the beta version of zymtrace, including any associated components, tools, updates, modifications, configurations, documentation, and related materials provided by zystem.
"Telemetry Data" means technical data about the performance, security, operation, and use of the Software, including but not limited to configuration settings, log data, security events, performance metrics, feature usage statistics, and error reports.
Subject to your compliance with these Terms, zystem grants you a limited, non-exclusive, non-transferable, non-sublicensable license to:
a) Install and deploy the Software within your environment in accordance with the Documentation;
b) Use the Software for your business operations, including in production environments;
c) Make a reasonable number of copies of the Software for backup and archival purposes; and
d) Allow your Authorized Users to use the Software in accordance with these Terms.
Except as expressly permitted in these Terms, you shall not:
a) Modify, translate, adapt, or create derivative works based upon the Software;
b) Decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Software;
c) Remove, alter, or obscure any proprietary notices on the Software;
d) Rent, lease, loan, sell, sublicense, distribute, or otherwise transfer the Software;
e) Use the Software to provide services to third parties or operate it as a service bureau;
f) Allow unauthorized access to or use of the Software;
g) Use the Software to develop competing products or services;
h) Benchmark or disclose performance information about the Software without our prior written consent; or
i) Use the Software in violation of applicable laws or these Terms.
Customer shall:
a) Use the Software in accordance with these Terms and applicable laws;
b) Be responsible for the accuracy and legality of Customer Data;
c) Maintain the security and confidentiality of access credentials;
d) Prevent unauthorized access to or use of the Software;
e) Promptly notify zystem of any unauthorized use or security breaches;
f) Provide reasonable cooperation and assistance with testing and feedback;
g) Comply with all Documentation and technical requirements;
h) Maintain adequate backups of Customer Data; and
i) Ensure Authorized Users comply with these Terms.
Customer is solely responsible for:
a) Providing and maintaining all hardware, software, and network infrastructure required to use the Software;
b) Installing and configuring the Software in accordance with Documentation;
c) Implementing appropriate security controls within Customer's environment;
d) Meeting minimum system requirements as specified by zystem; and
e) Maintaining compatibility with updates to the Software.
Customer retains all rights, title, and interest in and to Customer Data. The Software operates entirely within Customer's environment, and zystem does not access, collect, store, or process Customer Data except as expressly authorized by Customer.
Customer is solely responsible for:
a) The collection, accuracy, quality, and legality of Customer Data;
b) The means by which Customer acquires and uses Customer Data;
c) Compliance with all applicable privacy and data protection laws;
d) Implementing appropriate security controls to protect Customer Data;
e) Maintaining backup copies of Customer Data; and
f) All activities involving Customer Data within Customer's environment.
The Software collects and transmits Telemetry Data to zystem to help improve the Software and Customer's experience. By using the Software, you agree that zystem may collect and use Telemetry Data as described in our Privacy Policy. Customer may configure or disable telemetry collection.
zystem shall:
a) Use Telemetry Data only for legitimate business purposes;
b) Protect the security and confidentiality of Telemetry Data;
c) Not sell, rent, or lease Telemetry Data to third parties; and
d) Comply with applicable privacy and data protection laws.
zystem and its licensors own and retain all right, title, and interest in and to:
a) The Software and all modifications, improvements, and derivative works;
b) All Intellectual Property Rights in the Software;
c) All Telemetry Data collected by the Software;
d) All feedback, suggestions, and recommendations provided by Customer; and
e) All zystem confidential information and trade secrets.
Nothing in these Terms transfers any rights to Customer except the limited license expressly granted herein.
Customer owns and retains all right, title, and interest in and to:
a) Customer Data and all Intellectual Property Rights therein;
b) Customer's confidential information and trade secrets; and
c) Customer's systems, networks, and environments.
If Customer provides any feedback, suggestions, or recommendations regarding the Software, Customer hereby grants zystem a perpetual, irrevocable, worldwide, royalty-free license to use such feedback for any purpose without restriction.
"Confidential Information" means any non-public information disclosed by either party to the other party in connection with these Terms, whether in written, oral, electronic, or other form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Each party shall:
a) Protect the other party's Confidential Information using the same degree of care it uses to protect its own confidential information of similar nature and importance, but in no event less than reasonable care;
b) Not use any Confidential Information for any purpose outside the scope of these Terms;
c) Limit access to Confidential Information to those employees, contractors, and agents who need such access and who are bound by confidentiality obligations at least as restrictive as those in these Terms; and
d) Not disclose Confidential Information to any third party without prior written consent.
Confidential Information does not include information that:
a) Is or becomes generally known to the public through no fault of the receiving party;
b) Was known to the receiving party prior to disclosure;
c) Is rightfully received from a third party without restriction; or
d) Is independently developed without use of Confidential Information.
THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. ZYSTEM SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
ZYSTEM DOES NOT WARRANT THAT:
a) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;
b) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
c) THE RESULTS FROM USING THE SOFTWARE WILL BE ACCURATE OR RELIABLE;
d) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; OR
e) THE SOFTWARE WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE, SOFTWARE, SYSTEM, OR NETWORK.
YOU ACKNOWLEDGE THAT:
a) ANY USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND DISCRETION;
b) YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA; AND
c) ZYSTEM SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY NETWORK, SYSTEMS, HARDWARE, OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
a) IN NO EVENT SHALL ZYSTEM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THESE TERMS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF ZYSTEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) ZYSTEM'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SOFTWARE OR THESE TERMS SHALL NOT EXCEED THE GREATER OF:
c) THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY TO ALL CAUSES OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
These Terms commence upon your acceptance and continue until terminated in accordance with this section.
Either party may terminate these Terms:
a) Immediately upon written notice if the other party materially breaches any provision and fails to cure such breach within thirty (30) days after receiving written notice;
b) Immediately if the other party becomes insolvent, makes a general assignment for creditors, files for bankruptcy, or similar proceedings; or
c) At any time upon thirty (30) days written notice.
Additionally, zystem may terminate these Terms:
a) Immediately if you violate any restriction in Section 3.2;
b) Upon conclusion of the beta program;
c) If the Software becomes generally available for commercial release; or
d) For any reason or no reason upon notice to you.
Upon termination:
a) All licenses granted herein shall immediately terminate;
b) You must cease all use of the Software;
c) You must destroy all copies of the Software and Documentation;
d) You must pay any outstanding fees; and
e) Each party shall return or destroy all Confidential Information of the other party.
You agree to indemnify, defend, and hold harmless zystem and its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising from:
a) Your use of the Software;
b) Your violation of these Terms;
c) Your violation of any third-party rights;
d) Your Customer Data; or
e) Your negligence or willful misconduct.
The Software may be subject to U.S. export control laws and regulations. You agree to:
a) Comply with all applicable export control laws and regulations;
b) Not export, re-export, or transfer the Software to prohibited countries, entities, or individuals;
c) Obtain any necessary export licenses or permits; and
d) Be solely responsible for compliance with import laws in your jurisdiction.
If you are a U.S. government entity or using the Software on behalf of a U.S. government entity, the Software is provided with "RESTRICTED RIGHTS" as set forth in FAR 52.227-19 and DFARS 252.227-7013 et seq.
You may not assign or transfer these Terms or any rights hereunder without zystem's prior written consent. zystem may assign these Terms in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets.
If any provision of these Terms is held invalid or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall remain in full force and effect.
No waiver of any term or condition shall constitute a further or continuing waiver of such term or condition. Failure to assert rights or remedies shall not constitute a waiver.
Neither party shall be liable for delays or failures in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, pandemic, natural disasters, or governmental actions.
All notices must be in writing and shall be deemed effective upon:
a) Personal delivery; b) The second business day after mailing; or c) The day of sending by confirmed email.
Notices to zystem:
zystem, Inc.
251 Little Falls Drive Wilmington, New Castle County, Delaware 19808, United States
Email: legal[at]zystem.io
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions. Any legal action arising out of these Terms shall be litigated exclusively in the federal or state courts located in Delaware, and the parties consent to personal jurisdiction in those courts.
zystem may modify these Terms at any time by posting the modified version on its website or providing notice through the Software. Your continued use of the Software following such modification constitutes acceptance of the modified Terms.
zymtrace, or certain features within zymtrace may be marked as "Beta" or "Preview." These features are provided for evaluation purposes and may:
For features marked as Beta:
All other aspects of zymtrace, including generally available features, remain subject to the standard terms and conditions outlined in this agreement.
These Terms constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior and contemporaneous agreements. Modifications require written agreement by both parties.
