SAAS TERMS OF SERVICE

Last Updated 11.01.24

SAAS TERMS OF SERVICE

ZYSTON, LLC (“ZYSTON”) IS WILLING TO GRANT ACCESS TO THE CYBERCAST^TM CYBERSECURITY SOFTWARE- AS-A-SERVICE PLATFORM TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE PLATFORM (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. CUSTOMER AND PROVIDER MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE CYBERCAST PLATFORM. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND ZYSTON. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE CYBERCAST PLATFORM, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE CYBERCAST PLATFORM.

1. Definitions.
   • “Aggregated Statistics” means data and information related to Customer’s use of the Software that is used by Zyston in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Software.
   • “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder.
   • “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
   • “Documentation” means Zyston’s user manuals, handbooks, and guides relating to the Support Services provided by Zyston to Customer either electronically or in hard copy form and end user documentation relating to the Software available at Zyston’s website.
   • “Professional Services Agreement” means a professional services agreement between Customer and Zyston, if applicable, for the provision of Support Services by Zyston to Customer in connection with the Software.
   • “Software” means Zyston’s CyberCAST software-as-a-service offering platform.
   • “Support Services” means managed security services, human capital services, offensive security services and advisory services offered by Zyston to Customers.
   • “Third-Party Products” means any third-party products provided with or incorporated into the Software, as may be adjusted from time to time for the purpose of optimizing the intended functionality of the Software.
   • “Third-Party Service Provider” means any third-party provider of Support Services used in connection with the Software.
   • “Zyston IP” means the Software, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Zyston IP includes Aggregated Statistics and any information, data, or other content derived from Zyston’s monitoring of Customer’s access to or use of the Software, but does not include Customer Data.
2. Access and Use.
   • Provision of Access. Subject to and conditioned on Customer’s payment of Fees (as defined in Section 5 hereof) and compliance with the terms and conditions of this Agreement, Zyston hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Software during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Zyston shall provide to Customer the necessary network links or connections to allow Customer to access the Software. The total number of Authorized Users will not exceed the number set forth in Exhibit A or as set forth in any applicable Professional Services Agreement, including any related statement of work, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
   • Documentation License. Subject to the terms and conditions contained in this Agreement, Zyston hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Software.
   • Use Restrictions. Customer shall not use the Software for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; or (v) use the Software or Documentation 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.
   • Reservation of Rights. Zyston reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Zyston IP.
   • Suspension. Notwithstanding anything to the contrary in this Agreement, Zyston may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Software if: (i) Zyston determines in Zyston’s sole discretion that (A) there is a threat or attack on any of the Zyston IP; (B) Customer’s or any Authorized User’s use of the Zyston IP disrupts or poses a security risk to the Zyston IP or to any other customer or vendor of Zyston; (C) Customer, or any Authorized User, is using the Zyston IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Zyston’s provision of the Software to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Zyston has suspended or terminated Zyston’s access to or use of any third-party services or products required to enable Customer to access the Software; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Zyston shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software following any Service Suspension. Zyston shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Zyston will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
   • Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Zyston may monitor Customer’s use of the Software and collect and compile Aggregated Statistics. As between Zyston and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Zyston. Customer acknowledges that Zyston may compile Aggregated Statistics based on Customer Data input into the Software. Customer agrees that Zyston may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, including for Zyston’s own business purposes; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Customer Responsibilities.
   • General. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer or using passwords or credentials of Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
   • Customer Resources. Customer acknowledges that the Software is designed to be a tool for the Customer to use as part of its cybersecurity activities, and the effective use of the Software requires that Customer commit the resources and personnel reasonably necessary to implement its functionality.  Customer agrees to use commercially reasonable efforts to provide the necessary resources and personnel to meet the requirements of the Software’s use.
   • Third-Party Products. For purposes of this Agreement, any Third-Party Products used in connection with the Software are subject to their own terms and conditions. By entering into this Agreement, Customer agrees to the applicable terms of use for any such Third-Party Products.
4. Support Services.
   • Support. This Agreement does not entitle Customer to any Support Services related to the Software or deemed necessary after use of the Software. Any such Support Services shall be provided pursuant to (i) a Professional Services Agreement between Customer and Zyston, or (ii) a third-party service agreement between Customer and a Third-Party Service Provider.
   • Third-Party Service Providers. Customer may desire to have a Third-Party Service Provider provide support services to Customer’s use of the Software.  Zyston makes no representations and warranties regarding the delivery or performance of support services when provided by a Third-Party Service Provider.
5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, that is marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors and/or agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder, provided such employees, contractors and/or agents shall be informed of the confidential nature of such Confidential Information and shall agree to be bound by the receiving Party’s obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
   • Zyston IP. Customer acknowledges that, as between Customer and Zyston, Zyston owns all right, title, and interest, including all intellectual property rights, in and to the Zyston IP 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.
   • Customer Data. Zyston acknowledges that, as between Zyston and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Zyston a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Zyston to provide the Software to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Zyston and Customer agree that Customer Data will not contain any information that identifies, relates to, or could reasonably be linked with any individual or household.  Zyston agrees to use Customer Data solely in accordance with the terms of this Agreement, and in no event shall Zyston use Customer Data beyond the scope of providing the Software and any related Support Services.
   • Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Zyston by mail, email, telephone, or otherwise, suggesting or recommending changes to the Zyston IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Zyston is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Zyston on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Zyston is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Zyston is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer.
   • Zyston warrants only that the Software will conform in all material respects to any functional specifications set forth in the applicable Documentation, provided the Software has not, without the prior written consent of Zyston, been modified by or on behalf of Customer or modified by a Third-Party Service Provider in a manner not authorized by Zyston. Zyston does not make any representations or guarantees regarding uptime or availability of the Software or any results or output from the Software. THE FOREGOING WARRANTY DOES NOT APPLY, AND ZYSTON STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS AND SERVICES, MODIFICATION TO THE SOFTWARE MADE BY CUSTOMER WITHOUT THE PRIOR WRITTEN CONSENT OF ZYSTON, OR MODIFICATIONS MADE BY A THIRD-PARTY SERVICE PROVIDER THAT HAVE NOT BEEN APPROVED BY ZYSTON.
   • EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE ZYSTON IP IS PROVIDED “AS IS” AND ZYSTON HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ZYSTON 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), ZYSTON MAKES NO WARRANTY OF ANY KIND THAT THE ZYSTON IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S 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, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification.
   • Zyston Indemnification.
     • Zyston shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software, or any use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Zyston in writing of such Third-Party Claim, cooperates with Zyston, and allows Zyston sole authority to control the defense and settlement of such Third-Party Claim.
     • If a Third Party-Claim is made or appears possible, Customer agrees to permit Zyston, at Zyston’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Zyston determines that neither alternative is reasonably available, Zyston may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
     • This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Zyston or authorized by Zyston in writing; (B) modifications to the Software (I) not made by Zyston or (II) made by a Third-Party Service Provider and not approved by Zyston; or (C) Customer Data; or (D) Third-Party Products.
   • Customer Indemnification. Customer shall indemnify, hold harmless, and, at Zyston’s option, defend Zyston from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, violates any applicable law or infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Software in a manner not authorized by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Zyston or authorized by Zyston in writing; or (iv) modifications to the Software not made by Zyston, provided that Customer may not settle any Third-Party Claim against Zyston unless Zyston consents to such settlement, and further provided that Zyston will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
   • Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ZYSTON’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL ZYSTON’S LIABILITY UNDER THIS SECTION 9 EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO ZYSTON UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. .
9. Limitations of Liability. IN NO EVENT WILL ZYSTON BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ZYSTON WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ZYSTON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO ZYSTON UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
    • Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period set forth on Exhibit A (the “Initial Term” together with any “Renewal Term” as defined in Exhibit A, the “Term”).
    • Termination. In addition to any other express termination right set forth in this Agreement:
      • Zyston may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Zyston’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;
      • either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement (other than Customer’s nonpayment of amounts due hereunder), and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      • Zyston may terminate this Agreement, effective immediately upon written notice to Customer, if Customer: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Zyston IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Zyston IP and certify in writing to the Zyston that the Zyston IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
    • Survival. This Section 11(d) and Sections 1, Error! Reference source not found., 5, 6, 7(b), 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
    • Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, including any applicable Professional Services Agreement and any statements of work issued thereunder, and all related Exhibits to this Agreement constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, the Professional Services Agreement, if applicable, and any statements of work issued thereunder, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Professional Services Agreement, , (ii) second, this Agreement, excluding its Exhibits; (iii) third, the Exhibits to this Agreement as of the Effective Date; and (iv) fourth, any other documents incorporated herein by reference.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon actual receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    • Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, fire, earthquake, flood or other casualty, war, riot, acts of terrorism, mob violence, sabotage, vandalism, strikes, lockouts, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, extended government office closures or moratoriums, failure of power, public health emergencies (including, without limitation, pandemics, epidemics, or other viral outbreaks), restrictive governmental laws or other restrictive governmental, quasi-governmental, or regulatory agency rules or regulations (including, without limitation, quarantine restrictions, work-from-home orders, shelter-in-place orders, stay-at-home orders, mandatory isolation orders, and other restrictive guidance and/or recommendations), or other reason of a similar or dissimilar nature beyond the reasonable control of the Party delayed other than lack of or inability to procure monies to fulfill its commitments and obligations under this Agreement (a “Force Majeure Event”).
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas located in Dallas, Texas in either event, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Zyston, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. Zyston may assign this Agreement to (i) any wholly-owned subsidiary or to an affiliate under common ownership with Zyston,  (ii)  any successor by way of merger, acquisition or sale of all or substantially all of the assets of Zyston, or (iii) to a third party that agrees to assume all of Zyston’s obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software or any Customer Data outside the US.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.