Terms of Service

Orders; Subscriptions; Delivery; Infrastructure.

1. Orders. During the term of these Terms and subject to Your compliance with these Terms, including the payment of the applicable fees, You may purchase subscriptions to the Cloud Service in Orders (defined below) that reference these Terms. Additional terms and conditions applicable to the Cloud Service are set forth in the exhibits to these Terms and will apply based on whether You subscribe to the Serverless Service or the Dedicated Service.“Order” means any written order or quote for the Cloud Service that You accept online or You mutually execute with OpenReplay or an authorized reseller.
2. Subscriptions. The Cloud Service is licensed pursuant to subscriptions. Subscriptions will be ongoing until cancelled unless the parties agree to a different subscription term in an applicable Order.
3. Delivery. Unless otherwise agreed to, the Cloud Service licensed to You pursuant to these Terms will be deemed delivered to You when OpenReplay gives You Internet access to that Cloud Service. Delivery of the Cloud Service is without regard to when You actually first use the Cloud Service.
4. Infrastructure.You will have sole responsibility for the computers and networks you use to access the Cloud Service.

License Grant; Restrictions

1. License Grant to Cloud Service; Authorized Users. Subject to the Terms, OpenReplay hereby grants to You a non-exclusive, non-sublicensable (except as expressly permitted under these Terms), non-transferable (except as expressly permitted under these Terms) revocable license, during the applicable subscription period to the Cloud Service, to:(a) access and use the Cloud Service internally; and (b) use the OpenReplay Materials (defined below) provided by OpenReplay internally to facilitate use of the Cloud Service.You may permit the number of Authorized Users authorized under Your Order to exercise these rights, provided that:(a) any Authorized Users who are subcontractors will only exercise those rights in the course of performing services for You; and (b) You must ensure that all Authorized Users comply with these Terms, and You will be liable for any breach of these Terms caused by any Authorized Users. “Authorized User” means any individual (including Your employees and agents, and the employees and agents of Your Affiliates (defined below), subcontractors and customers) that You have authorized to access the Cloud Service or OpenReplay Materialsand to whom You have assigned a unique username-password combination for that purpose.
2. Restrictions. Except as expressly authorized in these Terms, You will not, and will not permit any Authorized User or other third party to: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Cloud Service, any documentation, training materials or other materials supplied by OpenReplay (“OpenReplay Materials”) or any part thereof; (b) work around any technical limitations in the Cloud Service, or use any tool to enable features or functionality that are otherwise disabled in the Cloud Service; (c) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Service, or prevent access to or use of the Cloud Service by OpenReplay’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests); (d) access or attempt to access any accounts or data on the Cloud Service, other than those explicitly belonging to You or provided by OpenReplay for Your Use; (e) make the Cloud Service or OpenReplay Materials available to, or use the Cloud Service or OpenReplay Materials for the benefit of, anyone other than You or Your customers; (f) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Cloud Service or OpenReplay Materials, or use the Cloud Service or OpenReplay Materials in a service bureau or outsourcing offering; (g) copy the Cloud Service or OpenReplay Materials or any part, feature, function or user interface thereof; (h) access or use the Cloud Service or OpenReplay Materials to build a competitive product or service; (i) use the Cloud Service in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); (j) permit direct or indirect access to or use of the Cloud Service or OpenReplay Materials in a way that circumvents any contractual usage limit; (h) use web scraping, web harvesting, or web data extraction methods to extract data from OpenReplay’s software, models or systems; (k) use the Cloud Service or OpenReplay Materials other than in accordance with these Terms and the Order and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning export, intellectual property, consumer and child protection, obscenity or defamation); or (l) upload to the Cloud Service, or use the Cloud Service or OpenReplay Materials in connection with, any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device.

Support and Certain of Your Responsibilities

1. Support, Service Levels and Updates. Subject to these Terms, including but not limited to Section OpenReplay will provide reasonable support to You for the Cloud Service as set forth on OpenReplay’s website (www.openreplay.com), for the support plan selected and paid for by You. OpenReplay will use reasonable commercial efforts to respond (by email or electronic messaging system) to support promptly and as stated in the pricing and features pages of the support plan You select and purchase.OpenReplay will also meet the service levels set forth in Exhibit A, based on the type of Cloud Service subscription You purchase.At OpenReplay’s sole discretion, OpenReplay will make Updates (defined below) available to You when generally available and at no additional charge.For the avoidance of doubt, OpenReplay reserves the right to offer certain enhancements and optional services for the Cloud Service for an additional charge, in OpenReplay’s sole discretion.“Updates” means any upgrades, updates, revisions, corrections, modifications improvements, bug fixes, patches, maintenance releases, versions, and enhancements to the Cloud Service that OpenReplay makes generally available to its customers at no additional charge during the term of the applicable subscription period, excluding any beta versions of the foregoing.
2. Cooperation with OpenReplay.You agree to cooperate with OpenReplay in connection with the performance of these Terms by making available any personnel and information as may be reasonably required, and taking any other actions as OpenReplay may reasonably request. In the event that You do not reasonably comply with written specifications or instructions from OpenReplay’s service engineers regarding any support issue or request (each, a “Support Issue”), OpenReplay may terminate its support obligations to You with respect to the relevant Support Issue upon fifteen (15) days’ written notice if You do not cure the noncompliance within the notice period.
3. Account Security. You will be responsible for maintaining the security of Your account, passwords (including but not limited to administrative and Authorized User passwords) and files, and for all uses of Your account with or without Your knowledge or consent, to the extent that use was not due to an action or inaction of OpenReplay. You further agree to cooperate with OpenReplay in establishing a password or other procedures for verifying that only Authorized Users have access to any administrative functions of the Cloud Service. You will require Authorized Users to maintain proper password security, and to maintain the confidentiality of Your account.You are responsible for the actions of Authorized Users and anyone accessing the Cloud Service using the credentials of any Authorized User.
4. Audits. You will maintain during the term of these Terms and through the end of the third year after the date on which the final payment is made under these Terms, books, records, contracts and accounts relating to the payments due OpenReplay under these Terms (collectively, the “Customer Records”). OpenReplay has the right, at its sole expense, upon 30 days’ prior written notice to You and during Your normal business hours and subject to the confidentiality obligations set forth in Section 4, to hire an independent third party auditor to audit the Customer Records only to verify the amounts payable under these Terms. If an audit reveals underpayment, then You must promptly pay the deficiency to OpenReplay plus late fees. OpenReplay will bear the cost of an audit unless the audit reveals underpayment by more than 5% for the audited period, in which case You must promptly reimburse OpenReplay for the reasonable costs of the audit.

Confidentiality

1. Definitions. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Cloud Service and OpenReplay Materials are OpenReplay’s Proprietary Information, and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information will be deemed to be that party’s Proprietary Information.
2. Obligations. The Receiving Party agrees: (a) not to divulge to any third person any Proprietary Information; (b) to give access to Proprietary Information solely to those employees and subcontractors with a need to have access to it for purposes of these Terms and who are subject to restrictions at least as protective as those set forth in this Section 4.2; (c) not to use Proprietary Information for any purpose other than exercising the Receiving Party’s rights or performing the Receiving Party’s obligations under these Terms; and (d) to take the same security precautions to protect against disclosure or unauthorized use of Proprietary Information that the Receiving Party takes with its own proprietary information, but in no event will the Receiving Party use less than reasonable precautions to protect the Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; (ii) was rightfully in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party that is not subject to a disclosure restriction; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in these Terms will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of the disclosure to contest the order and the Receiving Party only discloses that portion of the Proprietary Information that it is legally required to disclose based on advice of counsel. In any event, OpenReplay may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Cloud Service or OpenReplay Materials performance and Your usage of the Cloud Service or OpenReplay Materials (collectively, “Aggregate Data”). For the avoidance of doubt, OpenReplay’s use of a third party to host Your Data (defined below), Aggregate Data or any other data collected will not be deemed a disclosure of Your Proprietary Information.
3. Injunctive Relief. Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Sections 2.2 or 4.2 of these Terms and that the other party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of breach of those terms.
4. Disclosure of These Terms. Both parties will have the right to disclose the existence of the relationship between the parties, but not the commercial terms and conditions of these Terms, unless a disclosure of these Terms is approved in writing by both Parties prior to the disclosure, or is included in a filing required to be made by a party with a governmental authority (provided that party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to attorneys, accountants or other professional advisors, or to potential investors or acquirers.

Intellectual Property Rights; Your Data; Indemnity

1. OpenReplay Property. Except to the extent of licenses expressly granted under these Terms, as between the parties, OpenReplay (and its licensors, where applicable) owns and retains all right, title and interest, including any related intellectual property rights, in and to the Cloud Service, OpenReplay Materials and Aggregate Data, any work product that OpenReplay creates in the course of performing its obligations under these Terms, and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by You or Your Affiliates relating to the Cloud Service or OpenReplay Materials, and You hereby assign to OpenReplay any rights You may have in the Cloud Service, OpenReplay Materials and Aggregate Data. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to OpenReplay’s website are owned by OpenReplay and its licensors, as between the parties, and are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution or publication by You of any portion of the website, Cloud Service or OpenReplay Materials, except as expressly authorized by these Terms, is prohibited. These Terms are not a sale and do not convey to You any rights of ownership or any other intellectual property rights in or related to the Cloud Service or OpenReplay Materials.“Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party to these Terms, where “control” means the ownership of more than 50% of the voting securities in the entity.
2. Your Data. Except to the extent of licenses expressly granted under these Terms, as between the parties, You retain all right, title and interest in and to (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (i) Your products and services; and (ii) all software, information, content and data provided by You or on Your behalf, and data stored by You or at Your direction on or through the Cloud Service (collectively “Your Data”).You are solely responsible for all of Your Data, including for the accuracy, quality, reliability, appropriateness, use, legality and integrity of that content, and You must obtain in advance all consents, approvals, licenses, and permissions necessary to upload Your Data to the Cloud Service.
3. Proprietary Notices. You will not remove, alter or obscure any of OpenReplay’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of OpenReplay’s (or its licensors’) ownership or contribution from the Cloud Service and OpenReplay Materials. Additionally, You agree to reproduce and include OpenReplay’s (and its licensors’) proprietary and copyright notices on any copies of the Cloud Service and OpenReplay Materials, or on any portion thereof, that You are permitted to make under these Terms,. 
4. Representation Regarding Your Data. You represent and warrant that You own all of Your Data, and that You have all rights that are necessary to grant OpenReplay the licensed rights in Your Data under these Terms. You further represent and warrant that:(a) Your Data is not defamatory and does not contain hate speech or material that is violent, obscene, pornographic, abusive, defamatory or offensive; and (b) neither Your Data, nor the use of Your Data, will violate applicable law or will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5. License to Use Your Data. You hereby grant to OpenReplay a non-exclusive, transferable and sublicensable (solely as set forth in these Terms), worldwide, royalty-free license to record, store, use, copy, modify, transmit, display and perform Your Data:(a) solely as reasonably required to operate and provide the Cloud Service and related services; and (b) to create the Aggregate Data.OpenReplay will have the right to permit its subcontractors to exercise the foregoing rights, provided that OpenReplay will be responsible for any breach of these Terms caused by any subcontractors.

Payment of Fees

1. Accrual of Payment Obligations; Payments Non-Cancelable. OpenReplay’s right to payment for the Cloud Service licensed by You will accrue on the date the Cloud Service is delivered to You pursuant to Section 1.3. Except in the case of material breach of these Terms by OpenReplay, all payments accrued or made under these Terms are non-cancelable and nonrefundable.
2. Payments. You will pay OpenReplay all fees described in the Order for the Cloud Service and OpenReplay Materials in accordance with these Terms and any additional terms the Order (the “Fees”). If Your use of the Cloud Service or OpenReplay Materials exceeds the Service Capacity set forth on the Order or otherwise requires the payment of additional fees (per these Terms or the terms of the Order), You will be billed for that usage and You agree to pay the additional fees in the manner provided in these Terms and in the Order. OpenReplay reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to You (which may be sent by email). If You believe that OpenReplay has billed You incorrectly, You must contact OpenReplay no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to OpenReplay’s customer support department (support@openreplay.com).You will pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).OpenReplay may, at its option, apply money You owe to OpenReplay against any money OpenReplay owes to You. “Service Capacity” means the quantity of services that You have selected and paid for, as set forth on an Order.
3. Invoices. OpenReplay may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by OpenReplay within thirty (30) days after the date of the invoice. Invoiced amounts not received by the due date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection, and may result in immediate suspension of Your right to access and use the Cloud Service and suspension of any related services. 
4. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, GST, use or withholding taxes, assessable by any jurisdiction whatsoever in relation to Your purchases under these Terms (collectively, the “Taxes”). You are solely responsible for paying all Taxes associated with Your purchases hereunder, other than taxes based on OpenReplay’s net income. If OpenReplay has a legal obligation to pay or collect Taxes for which You are responsible for under these Terms, OpenReplay will invoice You and You agree to pay that amount to OpenReplay unless You provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. OpenReplay will calculate applicable Taxes based on Your billing address as detailed on the relevant Order (it is Your duty to inform OpenReplay if Taxes should be assessed on a different address). You must promptly notify OpenReplay of any changes to any of Your addresses specified in an Order. You are not permitted to deduct Taxes from, or set-off Taxes against, the Fees in the applicable Order.
5. Credit Card Payments. OpenReplay accepts payment by credit card. If You choose to pay by credit card, You must provide a valid credit card number, the expiration date of the credit card, the security code for the credit card and the billing address. You represent and warrant that: (a) You have the legal right to use any credit card(s) You provide to OpenReplay; and (b) the credit card information You supply is true, correct and complete. OpenReplay may process credit card payments using third party payment processor services, and You consent to use of third party payment processors by OpenReplay. If You credit card payment cannot be processed, OpenReplay may issue an electronic invoice to You with other payment options. In the alternative, OpenReplay has cancel any order if it reasonably suspects You have submitted incorrect or unauthorized credit card information. If You accepta subscription in an Order that is subject to Fees, or which may become subject to Fees, then You must submit Your credit card and You agree to an initial and recurring charge for that subscription. These charges will be made in advance, either monthly or annually, and You accept responsibility for all recurring charges until You cancel Your subscription. By subscribing for any paid subscription and providing us with Your credit card information, You authorize us to charge Your credit card for all Fees set forth in the Order, including for any renewal term, until such time as You cancel Your subscription.
6. Resellers. If You purchase a subscription to the Cloud Service through an authorized reseller:(a) all of these Terms will apply to You except for Sections 6.2, 6.3, 6.4 and 6.5; and (b) the reseller’s terms and conditions regarding fees, invoices, taxes and payment will apply to your purchase.

Term and Termination

1. Term. These Terms begin on the date You agree to them pursuant to the first paragraph of these Terms (“Effective Date”) and continue until terminated as set forth below. Any subscription to the Cloud Service will commence on the date of the Order and continue until cancelled.
2. Cancellation of Subscription. You have the right to cancel Your subscription to the Cloud Service at any time via functionality in the Cloud Service or upon written notice to OpenReplay.These Terms will automatically terminate upon Your cancellation of Your subscription.
3. Termination for Cause. These Terms may be terminated by either party immediately upon written notice if the other party breaches any material term or condition of these Terms and fails to remedy the breach within thirty (30) days after being given notice of the breach. In addition, OpenReplay will have the right to terminate these Terms immediately upon written notice to You in the event that:(a) You breach any restriction set forth in Section 2.2; (b) an applicable law or an applicable government or court order prohibits OpenReplay’s performance of any part of these Terms; or (c) OpenReplay determines that Your use of the Cloud Service poses a threat to the secure or reliable provision of the Cloud Service to other customers, or to the Cloud Service infrastructure, or to the data contained in the Cloud Service.
4. Effect of Termination. Your rights to access and use the Cloud Service and OpenReplay Materials, and any licenses granted hereunder, will terminate upon any termination of these Terms, and You must immediately cease all access to and use of the Cloud Service and OpenReplay Materials. You must, within thirty (30) days after termination of these Terms, pay to OpenReplay all outstanding accrued and payable amounts owed by You to OpenReplay under any Order.Except in the event that OpenReplay terminates these Terms for Your uncured material breach of these Terms pursuant to Section 7.3, OpenReplay will refund to You the Fees that You pre-paid for any period after the effective date of termination. Upon any termination of these Terms:(a) each party will promptly return or destroy the Proprietary Information of the other party; and (b) Sections 2.2, 3.4, 4, 5, 7.4, 9-12, 15-20, all associated definitions, and all accrued rights to payment will survive.Neither party will be liable for exercising any termination right in accordance with these Terms.Except as expressly provided, termination of these Terms will not release either party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination will not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, that a party may have hereunder at law, in equity or otherwise or that may arise out of or in connection with that expiration or termination.

Malicious Code

OpenReplay will use commercially reasonable efforts to ensure that the Cloud Service provided to You under these Terms do not include any unauthorized computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, OpenReplay fails to comply with the obligations in this Section, You may promptly notify OpenReplay in writing of that noncompliance. OpenReplay will, within thirty (30) days of receipt of that written notification, either correct the noncompliance or provide You with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during that period, You may terminate these Terms as Your sole and exclusive remedy for the noncompliance.

Warranty Disclaimer

EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE CLOUD SERVICE AND OPENREPLAY MATERIALS AND ANYTHING PROVIDED BY OPENREPLAY IN CONNECTION WITH THESE TERMS ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. OPENREPLAY AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, OPENREPLAY DOES NOT REPRESENT OR WARRANT THAT THE CLOUD SERVICE OR OPENREPLAY MATERIALS WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE CLOUD SERVICE WILL BE ACCURATE, COMPLETE OR RELIABLE, THAT USE OF THE CLOUD SERVICE OR OPENREPLAY MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE CLOUD SERVICE OR OPENREPLAY MATERIALS WILL BE CORRECTED.

Indemnification

1. Your Indemnification Obligations.You will defend, indemnify and hold harmless OpenReplay, its Affiliates and its and their respective directors, officers, employees, subcontractors and agents (each an “OpenReplay Indemnitee”) from and against any claims, demands, suits, causes of action, regulatory actions or investigations (“Claims”), including any associated losses, liabilities, damages, judgments, fines, penalties, costs or expenses (including court costs and reasonable attorneys' fees), brought by a third party against any OpenReplay Indemnitee to the extent based on or arising out of:(a) Your Data, including without limitation:(i) any allegation that Your Data violates applicable law (including any applicable privacy law or regulation) or violates, infringes or misappropriates the intellectual property rights or other proprietary rights of any third party; or (ii) any loss, misuse, or disclosure of Your Data not the result of OpenReplay’s willful misconduct or gross negligence; (b) any breach of Your obligations, representations or warranties under these Terms; or (c) Your fraud, gross negligence or willful misconduct, or the fraud, gross negligence or willful misconduct of Your subcontractors or customers.
2. Indemnification Procedures.OpenReplay must provide You with prompt notice of, and reasonable cooperation and sole control over the defense and/or settlement of, the applicable Claim; provided, however, that You will not settle any Claim without the prior written consent of OpenReplay. Subject to the foregoing, OpenReplay may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.

Limitation of Liability

EXCEPT WITH RESPECT TO YOUR INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS, A PARTY’S BREACH(ES) OF SECTION 2, OR A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT:(a) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES; (b) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER SUCH DAMAGES ARE DETERMINED TO BE DIRECT, INDIRECT OR OTHER; AND (c) THE TOTAL LIABILITY OF EACH PARTY, ITS AFFILIATES AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID OR PAYABLE TO OPENREPLAY HEREUNDER IN THE ONE-YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

YOU ACKNOWLEDGE THAT THE NATURE OF INTERNET-BASED SERVICE DELIVERY IS SUCH THAT CONFIDENTIALITY AND PERFORMANCE CANNOT BE COMPLETELY ASSURED. OPENREPLAY WILL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS, USE, CORRUPTION OR LOSS OF ANY OF YOUR DATA, EXCEPT TO THE EXTENT THAT THE UNAUTHORIZED ACCESS, USE, CORRUPTION, OR LOSS IS DUE SOLELY TO OPENREPLAY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Without limiting the preceding disclaimer, OpenReplay will have no liability to You for any unauthorized access to, or use, corruption or loss of (i) any personally identifiable information (“PII”) which may be contained in the Your Data, except to the extent that the unauthorized access, use, corruption, or loss is judicially determined to be due to OpenReplay’s gross negligence, willful misconduct or breach of the terms of these Terms or any data processing addendum entered into between OpenReplay and You, or (ii) any personal health information (“PHI”) that may be contained in the Your Data.Despite any other provision of the Agreement, in the case of loss or PHI or PII due to actions or inactions of OpenReplay, Your sole remedy will be for OpenReplay to restore the PHI and/or PII from the latest available backup.

Miscellaneous

If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable or sublicensable by You without OpenReplay’s prior written consent. These Terms will be binding on, and will inure to the benefit of, the authorized successors and assigns of the parties.Any attempt to assign in violation of this section will be null and void.These Terms do not, and are not intended to, confer any benefit on, or create any right exercisable or enforceable by, any third party.Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral discussions, negotiations, agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers must be in a writing signed or otherwise agreed to by each party, except as otherwise provided in these Terms. The waiver by either party of a breach or default of any of the provisions of these Terms by the other party will not be construed as a waiver of any succeeding breach of the same or other provisions nor will any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party. Each party is an independent contractor, no agency, partnership, joint venture, or employment is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect whatsoever. OpenReplay will not be liable to You for any default or delay in the performance of any of its obligations under these Terms if the default or delay is caused, directly or indirectly, by any cause beyond OpenReplay’s reasonable control.In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by facsimile or e-mail; and upon receipt, if sent by overnight courier or certified or registered mail (return receipt requested), postage prepaid; provided, however, that any notice of breach or termination of these Terms or any Order, or notice of non-renewal of any subscription term, sent by e-mail must also be sent by one of the other methods described above. OpenReplay will not be liable for any loss resulting from a cause over which it does not have direct control. These Terms will be governed by French laws, without regard to its conflict of laws provisions. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded.The federal and state courts sitting in Paris, France will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of these Terms. 

Data Privacy; Data Security

1. Data Privacy. The parties must each comply with all Applicable Data Protection Laws relating to the protection of personal data.You will not transfer or otherwise make available to OpenReplay any personal data or personally identifiable information (as such terms are defined in the GDPR or any other Applicable Data Protection Laws) unless You have obtained a valid consent from the relevant data subject in accordance with the terms of the GDPR or any other Applicable Data Protection Laws permitting that transfer and the use by OpenReplay and its subcontractors of that personal data or personally identifiable information as required for the performance of these Terms.You hereby consent to OpenReplay’s use of any Business Card Data that You provide to OpenReplay:(a) for the purpose of performing OpenReplay’s obligations under these Terms; and (b) in any additional manner described in OpenReplay’s privacy policy governing the Cloud Service.“Applicable Data Protection Laws” means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to personal data including without limitation (i) the California Consumer Privacy Act; (ii) the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4); (iii) the Health Information Portability and Accountability Act of 1996 and the rules promulgated thereunder (“HIPAA”); (iv) GDPR and any EU Member State laws implementing the GDPR; and (v) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of that data, and repealing Directive 95/46/EC (General Data Protection Regulation).“Business Card Data” means any business contact information of Authorized Users, Your employees or Your subcontractors (i.e., name, title, company/organization, business email, business phone number, and business address).
2. Data Security. OpenReplay is SOC2 Type II compliant and will maintain a data security program for the Cloud Service that includes administrative, physical, and technical safeguards for the security, confidentiality and integrity of Your Data at a level described in OpenReplay’s SOC2 Type II audit report, which You can request by email sent to security@openreplay.com; provided that the contents of that audit report are OpenReplay’s Confidential Information subject to Section 4 of these Terms. For the avoidance of doubt, You (not OpenReplay) bear sole responsibility for adequate security, protection and backup of Your Data when in Your possession or control or in the possession or control your representatives or agents.You and Your Authorized Users have and will retain sole responsibility for Your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by You or through the use of third-party services.OpenReplay will have the right to suspend Your access to the Cloud Service and related services on an emergency basis:(a) in the event that OpenReplay detects any actual or apparent theft, unauthorized access or use of the Cloud Service, or other malicious activity by You or any third party; and (b) to maintain data integrity within the Cloud Service.
3. HIPAA Compliance. You acknowledge that OpenReplay is not a Business Associate or subcontractor (as those terms are defined in HIPAA), and accordingly You are solely responsible for complying with any obligations under HIPAA. Accordingly, You must use features offered in the Cloud Service to avoid transmitting to OpenReplay or the Cloud Service any “protected health information” as defined in 45 CFR §160.103.

No Use By Minors

The Cloud Service is intended only for access and use by individuals at least eighteen (18) years old. By accessing or using the Cloud Service, You warrant and represent that You are at least eighteen (18) years of age and with the full authority, right, and capacity to enter into these Terms and abide by all of the terms and conditions. If You are not at least eighteen (18) years old, You are prohibited from both the access and usage of the Cloud Service.

Communications

By creating a customer account, You agree to subscribe to newsletters, marketing or promotional materials and other information that OpenReplay may send. However, You may opt out of receiving any, or all, of these communications from OpenReplay by following the unsubscribe link or by emailing at privacy@openreplay.com.

Changes to the Cloud Service or Related Services

OpenReplay reserves the right to withdraw or amend the Cloud Service or related services, in its sole discretion without notice. OpenReplay will not be liable if for any reason all or any part of the Cloud Service or related services is unavailable at any time or for any period.

Amendments To Terms

OpenReplay may amend these Terms at any time by posting the amended Terms on this site. It is Your responsibility to review these Terms periodically. Your continued use of the Cloud Service following the posting of revised Terms means that You accept and agree to the changes. You are expected to check this page frequently so You are aware of any changes, as they are binding on You. If You do not agree to the new terms, You are no longer authorized to use the Cloud Service and must immediately cease all use. You may amend these Terms only through a writing signed by You and OpenReplay.

Export Compliance

You acknowledge that the Cloud Service and OpenReplay Materials are subject to regulation by government agencies, which may prohibit the export, reexport, retransfer or diversion of the Cloud Service and OpenReplay Materials to certain countries, certain persons, and for certain end uses (collectively, “Export Control Laws”). You agree to strictly comply with all Export Control Laws as currently in effect and promulgated from time to time after the Effective Date.

Government End Users

If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are accessing the Cloud Service or OpenReplay Materials for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge that the Cloud Service and/or OpenReplay Materials and all associated software and technology of OpenReplay qualify as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. These Terms are fully applicable to the Government’s use of the Services and associated software and documentation, and will supersede any conflicting clause, provision or regulation that addresses Government rights in computer software or technical data, unless otherwise prohibited by federal law or regulation.

Publicity

If You subscribe to the Cloud Service (or use the Open-Source edition of OpenReplay’s software pursuant to the AGPLv3 license), You grant to OpenReplay the right to use Your company name and logo as a reference for marketing or promotional purposes on OpenReplay’s website and in other public or private communications with OpenReplay’s existing or potential customers or investors, subject to Your standard trademark usage guidelines to the extent You provide them to OpenReplay from time-to-time. OpenReplay does not want to list licensees who do not want to be listed, so you may send OpenReplay an email to logo@openreplay.com stating that You do not wish to be used as a reference.