Terms of Service

Effective date: 31 October 2022

 

IMPORTANT - READ CAREFULLY. UNLESS YOU SEPARATELY ENTER IN AN AGREEMENT WITH OPENREPLAY WITH RESPECT TO LICENSE TO THE SOFTWARE (AS DEFINED BELOW), THESE TERMS AND CONDITIONS (“TERMS”) SET FORTH THE LEGAL AGREEMENT BETWEEN YOU (THE PERSON OR ENTITY DOWNLOADING OR ACCESSING THE SOFTWARE AND EXERCISING THE RIGHTS GRANTED BY THESE TERMS) AND ASAYER SAS, DOING BUSINESS AS OPENREPLAY (“OPENREPLAY”) APPLICABLE TO BOTH (I) OPENREPLAY’S CLOUD EDITION SOFTWARE AND (II) OPENREPLAY’S ENTERPRISE EDITION SOFTWARE (INDIVIDUALLY AND COLLECTIVELY, THE “SOFTWARE”). IF YOU DO NOT ACCEPT THESE TERMS (OR IF YOU ARE NOT AUTHORIZED TO ACCEPT AND AGREE TO THESE TERMS FOR YOURSELF AND FOR ANY ENTITY YOU REPRESENT), THEN YOU SHOULD NOT DOWNLOAD, ACCESS OR USE THE SOFTWARE. IF YOU DOWNLOAD, ACCESS OR USE THE SOFTWARE, OR SIGN UP FOR AN OPENREPLAY CLOUD OR ENTERPRISE LICENSE, YOU WILL BE GRANTED ACCESS TO THE SOFTWARE, AND THESE TERMS WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).

Despite the foregoing, or any other provision of these Terms to the contrary, (A) OpenReplay’s Community Edition is licensed under the Elastic v2 license (see our GitHub repository for more details) and not under these Terms, and (B) the licensed rights in any program included in the Software which is copyrighted by any third party is licensed under the third-party software license applicable to such program.

 

1. License Grant; Restrictions

 

1.1   Subject to the terms and conditions of these Terms, OpenReplay hereby grants to You and Your Affiliates (as defined in this Section 1.1) a limited, non-exclusive, non-transferable, non-sublicensable license to internally (a) use and display the code of Software for the number of User seats and profiles selected and paid for by You as set forth on an Order Form Quote (the “Service Capacity”), solely for Your internal use in connection with the development of Your and/or Your Affiliates’ own software,; and (b) use the documentation, training materials or other materials supplied by OpenReplay (the “Other OpenReplay Materials”). “Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity. “User” means any individual (including Your employees, agents, and contractors, in each case to the extent that Your Service Capacity includes, and You pays for, such individual) who is authorized to access the Software or Other OpenReplay Materials and exercise the rights licensed by You.

1.2   Except as expressly authorized in Section 1.1 or Section 1.3, You will not, and will not permit any third party to: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Software or Other OpenReplay Materials or any part thereof; (b) make the Software or Other OpenReplay Materials available to, or use the Software or Other OpenReplay Materials for the benefit of, anyone other than You or Your customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Software or Other OpenReplay Materials; (d) copy the Software or Other OpenReplay Materials or any part, feature, function or user interface thereof; (e) access or use the Software or Other OpenReplay Materials in order to build a competitive product or service; (f) use the Software 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); (g) permit direct or indirect access to or use of the Software or Other 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; (i) use the Software or Other OpenReplay Materials other than in accordance with these Terms and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or (j) use the Software or Other 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.

1.3   Despite the foregoing, You may (A) modify or create derivative works (including patches) of the Software solely for Your internal use, and solely pursuant to the terms of the Enterprise Terms, this Enterprise License, and Your valid OpenReplay Enterprise order form for the correct Service Capacity, and (B) copy and modify the Software for development and testing purposes. You may not otherwise distribute, license, sublicense, publish or sell any such modifications or derivative works, but may (at Your option) contribute such modifications or derivative works to OpenReplay under the terms of OpenReplay’s Contributor License Agreement.

 

2. Support and Certain of Your Responsibilities

 

2.1   Subject to these Terms, including but not limited to Section 2.2, OpenReplay will provide reasonable support to You for the Software as set forth on the “Landing” and “Features” pages of 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 questions. For support related to the Enterprise Edition. OpenReplay will use reasonable efforts to respond within 2 business days.

2.2   You agree to cooperate with OpenReplay in connection with the performance of these Terms by making available such personnel and information as may be reasonably required, and taking such 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 (including without limitation, failure to make backups of Your Software or Other OpenReplay Materials) (each, a “Support Issue”), OpenReplay may terminate its support obligations to You with respect to such Support Issue upon fifteen (15) days’ written notice if You does not cure such noncompliance within the notice period.

2.3   You will be responsible for maintaining the security of Your account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Your account with or without Your knowledge or consent, to the extent that such other 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 Your designated employees have access to any administrative functions of the Software. 

2.4   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 may, at its sole expense, upon 30 days’ prior written notice to You and during Your normal business hours and subject to industry-standard confidentiality obligations, 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 shall promptly pay the deficiency to OpenReplay plus late fees. OpenReplay shall bear the cost of an audit unless the audit reveals underpayment by more than 5% for the audited period, in which case You shall promptly pay OpenReplay for the reasonable costs of the audit.

 

3. Confidentiality

 

3.1   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 (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Software and Other OpenReplay Materials are OpenReplay Proprietary Information.

3.2   The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of these Terms, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, 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 such disclosure to contest such order. In any event, OpenReplay may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Software or Other OpenReplay Materials performance and Your usage of the Software or Other OpenReplay Materials; provided that OpenReplay will not identify You as the source of any such data without Your prior written consent. For the avoidance of doubt, use of a third party to host the data collected shall not be deemed a disclosure.

3.3   Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Sections 1.2 or 3.2 of these Terms and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4   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 such disclosure of these Terms is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

 

4. Intellectual property rights; Your Data; Indemnity

 

4.1   Except as expressly set forth herein, OpenReplay alone (and its licensors, where applicable) retain all intellectual property rights relating to the Software and Other OpenReplay Materials, and to any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by You or Your Affiliates relating to the Software or Other OpenReplay Materials, which are hereby assigned to OpenReplay. 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 protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by You of any such parts of the website, Software and Other 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 Software or Other OpenReplay Materials.

4.2   Except to the extent licenses are expressly granted hereunder, You retain all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (i) Your products and services; and (ii) Your Data.

4.3   You shall 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 Software and Other OpenReplay Materials. Additionally, You agree to reproduce and include OpenReplay’s (and its licensors’) proprietary and copyright notices on any copies of the Software and Other OpenReplay Materials, or on any portion thereof, including reproduction of the copyright notice. 

4.4   You represent and warrant that You own all software, information, content and data provided by or on behalf of You, and data stored by You or at Your direction on or through the Software (collectively “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 neither Your Data, nor the use thereof, 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.

4.5   You grant to OpenReplay a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty-free license to use, copy, modify and perform Your Data solely as reasonably required to operate and provide the Software and related services.

4.6   You will defend and indemnify OpenReplay from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) incurred in any claim, demand, litigation, suit, proceeding, judgment or other legal or regulatory action arising out of or relating to the intellectual property rights or privacy rights in any of Your Data (each a “Claim”). The immediately foregoing indemnity obligations are expressly conditioned on OpenReplay providing You with prompt notice of, and reasonable cooperation and sole control over the defense and/or settlement of the applicable Claim. 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.

 

5. Payment of fees

 

5.1   OpenReplay’s right to payment for the Software licensed by You shall accrue on the date the Software and/or Other OpenReplay Materials are Delivered to You. 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. “Delivery” means the availability of the Software and/or Other OpenReplay Materials by OpenReplay to You via electronic or other means, without regard to when You actually install or use such Software and/or Other OpenReplay Materials.

5.2   You will pay OpenReplay the then applicable fees described in the Order Form or Quote for the Software and Other OpenReplay Materials in accordance with the terms therein (the “Fees”). If Your use of the Software or Other OpenReplay Materials exceeds the Service Capacity set forth on the Order Form or Quote or otherwise requires the payment of additional fees (per the terms of these Terms), You shall be billed for such usage and You agree to pay the additional fees in the manner provided herein. OpenReplay reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then the current renewal term, 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 the OpenReplay’s customer support department (support@openreplay.com).

5.3   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 according to the payment terms specified in the invoice. Unpaid amounts 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 termination of Your licensed rights. 

5.4   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, we will invoice you and you agree to pay that amount to us unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. We will calculate applicable Taxes based on your billing address as detailed on the relevant Order Form or Quote (it is your duty to inform us if Taxes should be assessed on a different address). You shall promptly notify us of any changes to any of your addresses specified in an Order Form or Quote. Taxes shall not be deducted from or set-off against the fees in the applicable Order Form or Quote.

5.5   OpenReplay accepts payment by credit card. If You choose to pay by credit card then You must provide a valid credit card number, the expiration date of 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 that (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 then OpenReplay may issue an electronic invoice to You with other payment options. In the alternative, OpenReplay may cancel any order if it reasonably suspects You have submitted incorrect or unauthorized credit card information. If You subscribe for a subscription which is paid, or which may become paid, then You must submit your credit card and you agree to an initial and recurring subscription fee. Such 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 Software licensed by you, including for any renewal term, until such time as you cancel your subscription.

 

6. Term and Termination

 

6.1   These Terms begin on the Effective Date and continue until terminated as set forth below. Any Order placed under these Terms shall be for the Initial Service Term as specified in the Order Form or Quote, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination with at least thirty (30) days’ prior written notice before the end of a then-current term.

6.2   These Terms and any Order may be terminated by either party upon notice if the other party (i) breaches any material term or condition of these Terms and fails to remedy the breach within thirty (30) days after being given notice thereof. In addition, either party may terminate these Terms upon 30 days’ prior written notice to the other party in the event that You have no then-current Order outstanding with respect to the Software.

6.3   Your rights to the Software and Other OpenReplay Materials, and any licenses granted hereunder, shall terminate upon any termination of these Terms. In the event that You terminate these Terms pursuant to OpenReplay’s uncured material breach of these Terms, OpenReplay will refund to You a pro-rated portion of pre-paid Fees for any period after the effective date of such termination. Sections 1.2, 2.3, 2.4, 3-5, 6.3, 8-10, 13, 15, and 16, all associated definitions, and all accrued rights to payment shall survive any expiration or termination of these Terms.

 

7. Customer Software Security

 

OpenReplay represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include in the Software provided to You under these Terms, any 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 warranty in this Section, You may promptly notify OpenReplay in writing of any such noncompliance. OpenReplay will, within thirty (30) days of receipt of such 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 such period, You may terminate these Terms as Your sole and exclusive remedy for such noncompliance.

 

8. Warranty Disclaimer

 

EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE SOFTWARE AND OTHER 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.

 

9. Limitation of liability

 

EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1 AND 4, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOFTWARE OR OTHER OPENREPLAY MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS, ANY DELAY OR INABILITY TO USE THE SOFTWARE AND OTHER OPENREPLAY MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS, OR OTHERWISE ARISING FROM THESE TERMS, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1 AND 4, THE TOTAL LIABILITY OF EACH PARTY 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 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.

 

10. 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. 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 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 herein. The waiver by either party of a breach or default of any of the provisions of these Terms by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall 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. 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. 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 receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. 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. 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.

 

11. Data Privacy

 

If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR (as defined here) for the transfer of any of Your Data outside of the European Union. “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) GDPR and any EU Member State laws implementing the GDPR; and (ii) 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 such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

 

12. No Use By Minors

 

The Software is intended only for access and use by individuals at least eighteen (18) years old. By accessing or using the Software, 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 software.

 

13. Communications

 

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

 

14. Changes to the Software or Related Services

 

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

 

15. Amendments To Terms

 

We 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 Software 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 Software.

 

16. Export Compliance

 

You acknowledge that the Software and Other OpenReplay Materials are subject to regulation by government agencies, which may prohibit the export, reexport, retransfer or diversion of the Software and Other 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 hereafter.