Terms of Service: Zoom

Last Updated: March 26, 2026

ACCEPTANCE: BY INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE OR DOWNLOADING, ACCESSING OR USING ANY OPENEXCHANGE PRODUCTS OR SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE THE OPENEXCHANGE PRODUCTS OR SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THE AGREEMENT IS LEGALLY BINDING UPON IT.

These Terms of Service (“Terms of Service”) are entered into by and between OpenExchange, Inc., a Delaware corporation (“OpenExchange”), and the entity placing an order for and/or using the OpenExchange Subscription Services and/or One-time Services (“Customer” or “you”). If you are ordering and/or using OpenExchange Subscription Services and/or One-time Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. Company and Customer are sometimes collectively referred to herein as the “Parties” and individually as a “Party”. All defined terms used herein shall have the meanings accorded to such terms herein, including as set forth on Exhibit A (Definitions) attached hereto and incorporated by reference herein. 

Agreement; Effective Date: These Terms of Service together with all exhibits and addenda hereto and documents referenced and linked to herein and all Order Forms and Statements of Work entered into by the Parties hereunder (collectively, the “Agreement”) permit Customer to order OpenExchange Subscription Services and/or One-time Services from OpenExchange and sets forth the terms and conditions between the Parties with respect thereto, and governs the provision and use of Subscription Services and/or One-time Services ordered by Customer. In the event of any conflict between the provisions in these Terms of Service and any Order Form or SOW, the terms of such Order Form or SOW, as applicable, shall prevail. In the event of any conflict between the provisions in these Terms of Service and any exhibits and addenda hereto or any documents referenced and linked to herein, the terms of such exhibits and addenda hereto or any documents referenced and linked to herein, as applicable, shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer provided business forms or order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.  The “Effective Date” of the Agreement is the date which is the earlier of (a) Customer’s initial access to any Subscription Services and/or One-time Services or (b) the effective date of the first Order Form or SOW that references these Terms of Service and is entered into between Customer and OpenExchange.  

Modifications to Terms of Service: From time to time, OpenExchange may modify these Terms of Service; provided, that any modifications which are adverse to Customer will not become effective until renewal of Customer’s then-current Subscription Term or entry into a new Order Form or SOW. OpenExchange will use reasonable efforts to notify Customer of any adverse changes through communications via Customer’s account, email, posting on the OpenExchange website or through the OpenExchange Platform, or other means. Customer may be required to click to accept or otherwise agree to the modified Terms of Service before renewing a Subscription Term or entering into a new Order Form, and, in any event, Customer’s continued use of the OpenExchange Products and/or Services after the updated version of these Terms of Service go into effect shall constitute Customer’s acceptance of such updated version.  

Orders by Affiliates: The Parties agree that an Affiliate of Customer may place orders for Subscription Services and/or One-time Services by executing a separate Order Form and/or SOW with OpenExchange in which the Customer Affiliate agrees to be bound by all terms and conditions of this Agreement, in which case all references to “Customer” in the Agreement shall mean the Customer Affiliate which executes the Order Form and/or SOW; provided, however, that Customer shall remain responsible for the compliance of its Affiliates with the terms of the Agreement and the Order Forms and Statements of Work, including without limitation payment of all fees due thereunder

1.1. Event Management Services; One-Time Services; Subscription Services. OpenExchange will make available to Customer those Event Management Services, Subscription Services and One-Time Services subscribed to by Customer pursuant to Order Forms and Statements of Work executed by the Parties from time to time. Event Management Services may be provided as Subscription Services or One-Time Services as specified in an Order Form or SOW, and may be delivered either (a) through the OpenExchange Platform as a hosted software-as-a-service solution, or (b) through Customer’s own third-party video conferencing platform (such as Zoom) licensed directly by Customer (“Customer-Licensed Platform”), as specified in the applicable Order Form or SOW. Customer shall have the right to use any work product delivered as part of One-Time Services (“Deliverables”) in support of Customer’s authorized use of the Event Management Services and/or OpenExchange Platform or Customer-Licensed Platform, as applicable, subject to the terms and conditions of the Agreement including without limitation the licenses, rights and restrictions set forth in Section 1.2 below and in any applicable Solutions Schedule and SOW. The Parties acknowledge that OpenExchange does not perform custom development work as part of the Professional Services and that the Deliverables provided by OpenExchange in the performance of the Professional Services may include, among other things, configuration and implementation of the OpenExchange Offering, coordination and configuration support for Customer-Licensed Platforms (provided that OpenExchange claims no ownership rights in Customer’s Customer-Licensed Platform accounts or configurations thereof), addition of Customer’s name, logo and other branding to web interfaces, modifications to the OpenExchange Offering, training materials and Documentation. Accordingly, unless otherwise expressly agreed in an SOW, OpenExchange retains all right, title and interest in and to any such Deliverables (excluding any configurations of or within Customer-Licensed Platforms), including without limitation all Intellectual Property Rights therein and thereto, excluding any Customer Content and Customer trademarks included therein. 

1.2. OpenExchange Offering and Customer-Licensed Platforms. 

1.2.1. Service Delivery Models. Event Management Services may be delivered through either or both of the following models as specified in the applicable Order Form or SOW: 

(a) OpenExchange Platform Delivery: Services are delivered through the OpenExchange Platform as a hosted SaaS solution. In this model, Customer and its Users access the OpenExchange Offering, and Customer Content is uploaded to, stored on, and processed through the OpenExchange Platform in accordance with this Agreement. 

(b) Customer-Licensed Platform Delivery: Services are delivered through Customer’s own third-party video conferencing platform (such as Zoom) licensed directly by Customer from the third-party provider. In this model, Customer Content remains within the Customer-Licensed Platform and is not uploaded to, stored on, or processed by the OpenExchange Platform, except (i) as minimally necessary for OpenExchange personnel to coordinate and deliver the Event Management Services (such as receiving event agendas, speaker information, or accessing the Customer-Licensed Platform during events), or (ii) to the extent Customer separately elects to upload specific content to the OpenExchange Platform. When Services are delivered solely through a Customer-Licensed Platform, Customer’s use of such platform is governed by Customer’s agreement with the third-party platform provider, and OpenExchange has no responsibility for the security, availability, functionality, or data handling practices of the Customer-Licensed Platform. 

When Event Management Services are delivered through the OpenExchange Platform, OpenExchange will use the OpenExchange Offering to provide the Event Management Services to Customer. When Event Management Services are delivered through a Customer-Licensed Platform, OpenExchange will provide Event Management Services using Customer’s own third-party video conferencing platform as specified in the applicable Order Form or SOW. Customer may elect to purchase Subscription Services consisting of a subscription to the OpenExchange Offering, or components of the OpenExchange Offering, pursuant to an Order Form or SOW or Customer and its Users may otherwise access and use the OpenExchange Offering in connection with receiving the Event Management Services or participating in an Event. The terms of Sections 1.2.2 through 1.2.5 apply only when Customer has subscribed to and is using the OpenExchange Offering; when Event Management Services are delivered solely through a Customer-Licensed Platform, Customer’s use of such platform shall be governed by Customer’s agreement with the third-party platform provider. 

1.2.2.  Access Grant. This Section 1.2.2 applies only when Customer has subscribed to the OpenExchange Offering. Subject to Customer’s compliance with the terms and conditions of the Agreement and the Documentation, and timely payment of all fees for accepted Order Forms or SOWs, OpenExchange grants Customer the right to access and use, and permit its Users to access and use, during the Subscription Term, those components of the OpenExchange Offering subscribed to pursuant to an Order Form or SOW (or to which Customer is granted access in connection with the Event Management Services) on a software as a service basis through a compatible online interface as hosted by OpenExchange or its third-party hosting and/or service providers. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement (including Section 1.2.3 below), Customer may permit its Event Attendees to view and participant in Events hosted through the OpenExchange Offering. Customer’s entitlements and usage rights and limitations with respect to the OpenExchange Offering shall be as set forth in each Order Form and/or SOW. Customer may access and use the OpenExchange Offering solely for Customer’s and its Affiliates’ Events.  Customer may not access or use the OpenExchange Offering for the benefit of any third party or to provide Events for the benefit of any third party. When Event Management Services are delivered through a Customer-Licensed Platform, Customer’s use of such platform shall be subject to the terms and conditions of Customer’s agreement with the third-party platform provider, and Customer is solely responsible for ensuring it has appropriate licenses and rights to use such Customer-Licensed Platform for the Events. Customer is responsible for and shall ensure the compliance of its Affiliates and Users with the Agreement and all obligations of Customer hereunder with respect to any use of the OpenExchange Offering by such Affiliates and Users. OpenExchange reserves the right to place limits on access to OpenExchange APIs (e.g., limits on numbers of calls or requests) if OpenExchange believes that Customer’s usage is in breach of the Agreement or may adversely affect the availability, integrity or security of the OpenExchange Offering otherwise harm OpenExchange, its other customers or the OpenExchange Offering (or otherwise impose liability on OpenExchange).  The method and means of providing the OpenExchange Offering and the Event Management Services shall be under the exclusive control, management, and supervision of OpenExchange.  OpenExchange is responsible for providing the infrastructure required to provide the OpenExchange Platform over the Internet and OpenExchange may engage third party service providers to host the OpenExchange Platform and provide certain functionality of the OpenExchange Platform on OpenExchange’s behalf. OpenExchange will be responsible for the compliance of such third-party service providers with OpenExchange’s obligations to provide the OpenExchange Platform pursuant to this Agreement.  The rights set forth in this Section 1.2 may be exercised by Customer’s Contractors and Affiliates for the sole benefit of Customer and its Affiliates; provided, that (i) Customer requires such third parties to execute a written agreement with Customer that is at least as protective of the OpenExchange Offering and OpenExchange’s Confidential Information as the Agreement and which does not grant any greater rights than those granted to Customer in Section 1.2 and includes all restrictions set forth in this Agreement and the applicable Order Form and any SOW and (ii) Customer shall be responsible for any breach of the Agreement by any such third party. 

1.2.3  Restrictions. This Section 1.2.3 applies only when Customer has subscribed to and is using the OpenExchange Offering. Customer will not (and will not permit its Affiliates, Users or any other third party to): (a) rent, lease, provide access to, sublicense, transfer or otherwise make available the OpenExchange Offering to a third party or use the OpenExchange Offering to operate of a service bureau or timesharing service, or otherwise for the benefit of a third party; (b) use the OpenExchange Offering to provide, or incorporate the OpenExchange Offering into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs of the OpenExchange Offering, except to the extent expressly permitted by applicable law (and then only upon advance written notice to OpenExchange); (d) adapt, alter, modify, improve, translate or create derivative works of  the OpenExchange Offering; (e) copy or modify the OpenExchange Offering or any Documentation, or create any derivative work based on any of the foregoing; (f) create Internet “links” to or from the OpenExchange Offering or “frame” or “mirror” any content forming part of the OpenExchange Offering, other than on Customer’s own intranets or otherwise for its own internal business purposes; (g) remove or obscure any copyright, proprietary or other notices contained in the OpenExchange Offering; (h) use or access the OpenExchange Offering to build or support, and/or assist a third party in building or supporting, products or solutions competitive to the OpenExchange Offering; (i) infringe on the copyright or any other proprietary right of any person or entity; (k) publicly disseminate information regarding the performance of the OpenExchange Offering or (l) perform any otherwise inappropriate or unlawful activity. Customer shall not (i) use the OpenExchange Offering in any manner that could damage, disable, overburden, impair or otherwise interfere with OpenExchange’s provision of the OpenExchange Offering; (ii) analyze, record, remove, circumvent, disable or otherwise interfere with security-related features of the OpenExchange Offering, or features that enforce limitations on use of the OpenExchange Offering; (iii) insert or introduce, or knowingly permit or facilitate the insertion or introduction of, any harmful, malicious or disabling code into the OpenExchange Offering; (iv) use the OpenExchange Offering to store, display or transmit infringing, libelous, defamatory, deceptive, fraudulent, obscene, abusive, or otherwise unlawful or tortious material, or to collect, store or transmit material in violation of third-party privacy rights; (v) interfere with or disrupt the integrity or performance of the OpenExchange Offering, or use the OpenExchange Offering in a way that damages, disables, overburdens or otherwise impacts the normal operation, privacy, integrity or security of the OpenExchange Offering (including its data, websites, networks, facilities, equipment, information, or business operations); or (vi) attempt to gain, or knowingly facilitate any third party’s ability to gain, unauthorized access to the OpenExchange Offering. Customer shall notify OpenExchange without undue delay in writing upon reasonable suspicion or actual knowledge of any occurrence of the foregoing. Customer shall be liable for all acts and omissions of its Affiliates, Users and others authorized by Customer to access and use the OpenExchange Offering. 

1.2.4  Modifications. OpenExchange reserves the right to modify the OpenExchange Offering from time to time, including without limitation implementing Updates, and OpenExchange will update the applicable Documentation accordingly. If any such modification materially and adversely reduces the functionality of the OpenExchange Offering, Customer’s sole and exclusive remedy shall be for Customer to terminate its subscription to the OpenExchange Offering. OpenExchange may condition the implementation of new features, functionality or other modifications on Customer’s payment of additional fees provided that OpenExchange generally charges other customers for such modifications. 

1.2.5 Beta Versions. OpenExchange may, from time to time in its sole discretion, make available Beta Versions. Use of Beta Versions is optional and is at Customer’s sole risk. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of OpenExchange hereunder shall not apply to Beta Versions, all of which are provided “as is” and “as available”. 

1.3. Service Level Agreement. When Subscription Services are delivered through the OpenExchange Platform, OpenExchange will provide such Subscription Services in compliance with the Service Level Agreement set forth at https://www.openexc.com/docs as the same may be updated from time to time (the “Service Level Agreement”); provided, that any updates that materially reduce OpenExchange’s service level commitments set forth in the Service Level Agreement will not take effect until the first renewal of the Subscription Services following the effective date of such updates. The Service Level Agreement does not apply to Event Management Services delivered solely through a Customer-Licensed Platform, as the availability and performance of such platforms is governed by Customer’s agreement with the third-party platform provider. 

2.1.  Customer Cooperation. Customer acknowledges that successful provision of the Subscription Services and One-Time Services requires Customer’s reasonable and timely cooperation, including compliance with the obligations set forth in the applicable Order Form and/or SOW and including without limitation: 

(a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable OpenExchange to perform its obligations under each SOW or Order Form; 

(b) timely delivering any materials and other obligations required under each SOW or Order Form; 

(c) timely responding to OpenExchange’s inquiries related to the provision of the Subscription Services and One-Time Services; 

(d) assigning an internal project manager for each SOW or Order Form to serve as a primary point of contact for OpenExchange; 

(e) actively participating in scheduled project meetings 

(f) utilizing adequate and compatible hardware, software, and other technical resources as described in Section 2.2 and the Documentation; and 

(g) providing complete, accurate and timely information, data and feedback all as reasonably required. 

If provision of the Subscription Services and One-Time Services is delayed or adversely affected by a failure of Customer, Customer shall waive any claims, injuries and damages arising as a result thereof. Customer shall transmit to OpenExchange all necessary Event information and details and other requested information OpenExchange deems necessary or useful for the provision of the Subscription Services and/or One-Time Services in a mutually agreed upon electronic or written format and time frame that enables OpenExchange to meet its obligations to Customer, as further specified in the applicable Order Forms and SOWs.  If Customer provides less than the minimum notice required in an Order Form or SOW, OpenExchange reserves the right, in its sole discretion, to (i) decline to provide the Subscription Services and One-Time Services for the proposed Event based on lack of capacity and availability of staffing; and/or (ii) charge Customer an additional fee.  

2.2 Customer Infrastructure. Other than equipment listed in an Order Form or SOW as provided by OpenExchange, Customer and its Users are responsible for providing and maintaining the hardware, software, infrastructure, telecommunications services and Internet services required to access and use the Services in accordance with the Documentation and any Order Form or SOW, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. When accessing or using the OpenExchange Platform, Customer and its Users must provide the infrastructure necessary to access the OpenExchange Offering over the Internet in accordance with the Documentation. When Event Management Services are delivered through a Customer-Licensed Platform, Customer is solely responsible for procuring, maintaining, and ensuring adequate licenses, infrastructure, bandwidth, security, and technical capabilities for such Customer-Licensed Platform, and for compliance with all technical requirements and terms of service of the third-party platform provider. OpenExchange assumes no obligation or liability with respect to Customer’s or its Users’ hardware, software, infrastructure telecommunications services or Internet services, or use thereof, or Customer’s or its Users’ inability to access or use the OpenExchange Platform or Customer-Licensed Platforms directly or indirectly caused by such hardware, software, security, infrastructure, telecommunications services or Internet services. 

2.3.  Video Application and Platform Access. When accessing the OpenExchange Platform, User calls must terminate at an end point such as a video conferencing console, or a compatible electronic device with access to a compatible video application. If not already available on a User’s device, a User may be required to license and download a compatible third party video application or compatible internet browser. Any terms and conditions applicable to such application shall be between the User and the application provider. If requested by Customer, OpenExchange engineers will evaluate Customer’s existing environment to determine compatibility and may recommend a third-party video application. In such event, Customer will be required to accept and comply with the terms of an accompanying third-party end user license agreement with the third party vendor. Customer acknowledges and agrees that OpenExchange has no responsibility or liability for any third party video applications or any Customer Content exported to third party video applications. For purposes of this Agreement, any such video applications are deemed to be Third Party Platforms as defined herein. When Event Management Services are delivered through a Customer-Licensed Platform, Customer is solely responsible for ensuring that its Users have appropriate access to such Customer-Licensed Platform, that all necessary licenses are in place, and that Customer and its Users comply with all terms and conditions of the Customer-Licensed Platform provider. OpenExchange personnel may require access to the Customer-Licensed Platform to deliver Event Management Services, and Customer is responsible for providing such access in accordance with the Customer-Licensed Platform provider’s terms of service. 

2.4.  Access Credentials. Customer shall safeguard, and ensure that all Users safeguard their Access Credentials. Customer shall be responsible for all acts and omissions of Users. User identifications are granted to individual, named persons and may not be shared. Customer agrees that it shall require its Users to keep their Access Credentials secure and confidential and not share their Access Credentials with anyone else. Customer shall notify OpenExchange without undue delay if it learns of or has reason to suspect any unauthorized use of any Access Credentials or any other known or suspected breach of security with respect to the OpenExchange Platform or Access Credentials. Customer shall be solely responsible for ensuring that its Users comply with the terms of this Agreement and the Acceptable Use Policy. Customer will notify OpenExchange without undue delay of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with OpenExchange with respect to: (i) investigation by OpenExchange of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement.  OpenExchange reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action OpenExchange deems necessary or reasonable designed to ensure the security of the OpenExchange Platform and Customer’s Access Credentials and account, including without limitation terminating Customer’s access or the access of any of Customers’ Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account. 

2.5.  Third-Party Platforms. The OpenExchange Platform may support connections with certain Third-Party Platforms (as defined in Exhibit A), including without limitation through use of the OpenExchange APIs and Tools. In order for the OpenExchange Platform to communicate with such Third-Party Platforms, Customer may be required to input credentials to authorize the OpenExchange Platform to connect to Customer’s account in order to transmit and receive information and data, and to receive services, from such Third-Party Platforms as directed or enabled by Customer. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that OpenExchange has no responsibility or liability for any Third-Party Platforms or any Customer Content exported to Third-Party Platforms or for verifying any Customer Content that Customer imports from Third-Party Platforms. Use of Third-Party Platforms is subject to the terms of service and privacy policies of the Third-Party Platforms. For the avoidance of doubt, “Third-Party Platforms” as used in this Section 2.5 refers to platforms that integrate or connect with the OpenExchange Platform, and does not refer to Customer-Licensed Platforms used for delivery of Event Management Services in lieu of the OpenExchange Platform. Customer-Licensed Platforms are governed by Section 1.2.1(b) and Customer’s direct agreement with the Customer-Licensed Platform provider. 

3.1. Term.  This Agreement is legally binding as of the Effective Date and shall continue until the earlier of the date all Order Forms and SOWs have terminated or the date this Agreement is earlier terminated as provided herein (the “Term”). Upon any termination of this Agreement, all Order Forms and SOWs shall immediately terminate without further action of the Parties.  Each Order Form shall be for the Subscription Term set forth therein and, unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either Party gives the other Party written notice of termination at least sixty 60) days prior to expiration of the then-current Subscription Term.  Each SOW shall be for the specified term set forth therein and will automatically renew for additional twelve (12)-month periods unless either Party gives the other Party written notice of termination at sixty (60) days prior to expiration of the then-current Subscription Term.   

3.2. Termination for Cause.  Either Party may terminate this Agreement (including all related Order Forms and SOWs) if the other Party (a) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after receipt of written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party (and not dismissed within sixty (60) days thereafter). 

3.3. Payments upon Termination.  Upon the expiration or termination of this Agreement, or any Order Form or SOW, Customer shall immediately pay to OpenExchange all amounts then due and payable to OpenExchange, if any. If OpenExchange terminates this Agreement or any Order Form or SOW pursuant to Section 3.2, all amounts payable by Customer for the full term of the terminated Order Forms and Statements of Work shall become immediately due and payable as if such Order Forms and SOWs had not been terminated.   

3.4. Return of Customer Content. Upon the expiration or termination of this Agreement and payment of any amounts due under Section 3.3 above, OpenExchange shall, to the extent OpenExchange has possession or control of Customer Content, within thirty (30) days following the termination of this Agreement, return the Customer Content to Customer in OpenExchange’s standard format, and thereafter shall destroy any Customer Content within the possession or control of OpenExchange. When Event Management Services have been delivered solely through a Customer-Licensed Platform, Customer acknowledges that OpenExchange may have minimal or no Customer Content in its possession or control to return, as such Customer Content resides within the Customer-Licensed Platform under Customer’s control. 

3.5 Effect of Termination. Following any expiration or termination of this Agreement, (i) OpenExchange will cease provision of the Services, (ii) Customer will immediately cease any and all use of and access to the OpenExchange Offering (including any and all related OpenExchange Property) and will irretrievably delete (or, at OpenExchange’s request, return) any and all Documentation and Access Credentials and (iii) each Party shall irretrievably delete (or, at the other Party’s request, return) the other Party’s Confidential Information in its custody or control and all copies, summaries and extracts thereof except that each party shall entitled to retain one copy of the Confidential Information for purposes of proving its compliance with this Agreement and as may otherwise be required by applicable law, rule, regulation or legal process and shall not be required to destroy its electronic backup records so long as such backups are destroyed in the ordinary course of business. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from the OpenExchange Platform prior to termination. Customer acknowledges that following expiration or termination it will have no further access to any Customer Content processed by OpenExchange through the OpenExchange Platform. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. OpenExchange shall have no liability to Customer or any third party for any termination or expiration of this Agreement. 

3.6 Suspension of Service. If Customer’s account is sixty (60) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), OpenExchange reserves the right to suspend Customer’s and its Users’ access to the OpenExchange Platform and any Services without liability to Customer until such amounts are paid in full. OpenExchange also reserves the right to suspend Customer’s access to the OpenExchange Platform and any related Services without liability to Customer if (i) Customer’s use of the OpenExchange Platform is in violation of the license or other rights granted under Section 1, is in violation of the AUP or results in or is likely to result in degradation to or disruption of the OpenExchange Platform or harm to OpenExchange or a third party or (ii) a threat to the security or integrity of the OpenExchange Platform exists as determined by OpenExchange in its sole and absolute discretion. 

3.7 Survival. The following Sections will survive any expiration or termination of this Agreement: Sections 3.4, 3.5, 4, 5.3, 6.1, 6.4, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. 

Fees; Payment. Customer shall be responsible for and shall pay to OpenExchange all fees and expenses set forth in each Order Form and SOW. All fees and expenses are nonrefundable, except as expressly otherwise set forth in this Agreement. All fees and expenses will be paid in U.S. dollars or if another currency is mutually agreed in the Order Form or SOW, the currency set forth in the Order Form or SOW. Unless otherwise specified in any Order Form or SOW, all invoices issued by OpenExchange will be due and payable within thirty (30) days of the date of the invoice. The prices and fees in each Order Form and SOW are subject to increase up to once per year upon ninety (90) days prior written notice from OpenExchange or as otherwise set forth in the applicable Order Form or SOW. Any estimates provided by OpenExchange in an Order Form or SOW for Services shall be made in good faith but shall in no event be construed as a fixed price agreement between the Parties and shall be subject to adjustment based on Services actually performed or as otherwise provided in an Order Form or SOW. 

4.2.    Late Payment; Disputes. If Customer shall fail to pay the Subscription Fees or Service Fees when due and such failure continues for a period of thirty (30) days after the due date, then (a) the arrearage(s) shall bear interest from the due date through and including the actual date of payment at the lesser of (i) the rate of one and one-half percent (1.5%) per month (18% per annum), or (ii) the maximum rate allowed by law, and (b) OpenExchange may exercise its right terminate the affected Order Forms and SOWs as specified in Section 3.2 (Termination for Cause) or suspend provision of the Services pursuant to Section 3.6. In the event of any dispute of an invoice, Customer shall pay the undisputed portion of the invoice and shall notify OpenExchange in writing within thirty (30) days of receipt of the invoice of the disputed amount and the reason for the dispute. The parties agree to negotiate promptly and in good faith the disputed amount. Amounts not disputed by Customer within such thirty (30) day period are deemed valid and may not later be disputed by Customer. 

4.3. Taxes.  In addition to any other amounts payable by Customer hereunder, Customer shall be responsible for and shall pay any and all applicable Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form or SOW. If Customer is required by applicable Law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, OpenExchange receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made.

5.1.   Mutual Warranties. Each of Customer and OpenExchange represent and warrant that: (i) it is a business duly incorporated or formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (ii) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement has been duly authorized by it; and (iv) this Agreement constitutes the legal, valid, and binding agreement of it.

5.2.   Limited Warranty. OpenExchange represents and warrants, for Customer’s benefit only (i) that the OpenExchange Platform will include the functionality set forth in the applicable Documentation and Order Form or SOW, and (ii) the Services will be provided in a professional manner using skilled and experienced personnel and in all material respects in accordance with the requirements of any applicable Order Form or SOW. OpenExchange’s sole liability (and Customer’s sole and exclusive remedy) for any breach of the foregoing warranties will be, at no charge to Customer, for OpenExchange to use commercially reasonable efforts to correct the reported non-conformity in the OpenExchange Offering or reperform the nonconforming Services, as applicable. If OpenExchange determines such remedy to be impracticable, either Party may terminate the affected Order Form or SOW and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for the terminated portion of the term of the applicable Order Form or SOW. The limited warranty set forth in this Section will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the nonconformity was caused by misuse or unauthorized modifications of the OpenExchange Offering or Services, Customer’s or its Users’ acts or omissions, any Customer Content or Customer infrastructure, Third-Party Platforms, or non-OpenExchange hardware, software or services or their unavailability or failure to operate or interoperate, or (iii) to Beta Versions.

5.3.   Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.2, THE SERVICES AND THE OPENEXCHANGE OFFERING ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER OPENEXCHANGE NOR ITS LICENSORS OR SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. OPENEXCHANGE DOES NOT WARRANT THAT CUSTOMER’S OR ITS USERS’ USE OF THE SERVICES OR THE OPENEXCHANGE OFFERING WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, NOR DOES OPENEXCHANGE WARRANT THAT THE RESULTS FROM USE OF THE SERVICES OR THE OPENEXCHANGE OFFERING WILL BE ACCURATE OR RELIABLE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENEXCHANGE’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE OPENEXCHANGE OFFERING AGAIN. THE SERVICES AND OPENEXCHANGE OFFERING ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. CUSTOMER SHALL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.

6.1. Ownership. As between the Parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Content submitted to the OpenExchange Platform, transmitted via Third-Party Platforms (including Zoom or other video conferencing services), or otherwise provided to OpenExchange for the performance of Services or any other obligations under this Agreement, applicable Order Form, or SOW. Subject to the terms of this Agreement, Customer hereby grants to OpenExchange a non-exclusive, worldwide, royalty-free, fully paid up, irrevocable (except on termination of this Agreement) license with right of sublicense to use, execute, host, copy, store, process, transmit, distribute, modify, create derivative works of, broadcast, perform and display the Customer Content solely to the extent necessary to provide the Services and the OpenExchange Offering to Customer and its Users and to allow OpenExchange’s third party contractors and service providers to exercise the licenses granted to OpenExchange in this Section to perform services for or on behalf of OpenExchange to the extent necessary to provide the Services and the OpenExchange Offering to Customer and its Users. When Event Management Services are delivered through a Customer-Licensed Platform, OpenExchange will only receive, access, or process Customer Content to the extent minimally necessary to coordinate and deliver the Event Management Services (such as receiving event agendas, speaker bios, or accessing the Customer-Licensed Platform during events), and the majority of Customer Content will remain solely within the Customer-Licensed Platform and not be provided to or accessible by OpenExchange. 

6.2. Customer Obligations 

6.2.1 In General. Customer is solely responsible for the accuracy, content and legality of all Customer Content submitted to OpenExchange, the OpenExchange Platform, or transmitted via any Third-Party Platform (including Zoom or other video conferencing services) in connection with the Services. Customer represents and warrants to OpenExchange that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting OpenExchange the rights in Section 6.1 above and that no Customer Content will violate or infringe (i) any third party Intellectual Property Rights or any publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer’s accounts with any Third-Party Platforms. Customer will be fully responsible for any Customer Content submitted to OpenExchange by any User as if it was submitted by Customer. Customer will comply with all applicable Laws in its use of the OpenExchange Offering and any Third-Party Platforms used in connection with the Services. Where Services are delivered via Third-Party Platforms using Customer’s own license, Customer is solely responsible for compliance with all terms of service, privacy policies, security requirements, and other obligations applicable to such Third-Party Platform accounts and licenses.  

6.2.2 No Sensitive Personal Information. Customer acknowledges and agrees that Sensitive Personal Information is not required to be provided to OpenExchange to provide the OpenExchange Offering to Customer or its Users.  Customer represents and warrants that it will not, and specifically agrees not to, collect, store, process or transmit any Sensitive Personal Information using the OpenExchange Offering or via any Third-Party Platform in connection with the Services, and it will inform Users not to submit, and shall take all reasonably necessary action to prevent Users from submitting, Sensitive Personal Information to the OpenExchange Platform or via any Third-Party Platform used in connection with the Services.  OpenExchange shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein. 

6.2.3 Compliance.  The Services and OpenExchange Offering may include functionality that permits Customer to record (or OpenExchange on behalf of Customer) audio, video and data shared during Events and to collect and utilize identifying information about Event Attendees. Customer is solely responsible for the collection and use of Event Attendee information and shall do so in compliance with all applicable privacy laws, rules and regulations.  

6.3. Backup and Recovery of Customer Content. To the extent Customer Content is stored on the OpenExchange Platform as part of the Services, OpenExchange shall maintain a backup of such Customer Content for an orderly and timely recovery of such data in the event that the Services may be interrupted; provided, however, that Customer acknowledges and agrees that OpenExchange does not provide an archiving or data backup service for Customer Content and OpenExchange agrees only that it will not intentionally delete any Customer Content from the OpenExchange Platform prior to termination of Customer’s applicable Subscription Term. OpenExchange expressly disclaims all other obligations and liability, and Customer renounces any claim, injury, or interest, with respect to storage and data backup. Accordingly, Customer shall maintain adequate backups of any Customer Content uploaded by Customer to the OpenExchange Platform. When Event Management Services are delivered through a Customer-Licensed Platform, Customer acknowledges that Customer Content resides within the Customer-Licensed Platform and that any backup and recovery of such Customer Content is governed by Customer’s agreement with the Customer-Licensed Platform provider. OpenExchange has no obligation or liability for backup or recovery of Customer Content stored solely within Customer-Licensed Platforms. 

6.4. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that OpenExchange may use Aggregated Anonymous Data to analyze, improve, support and operate the OpenExchange Offering and otherwise for any business purpose during and after the term of the Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other OpenExchange customers. For clarity, Aggregated Anonymous Data is data that has been anonymized and aggregated with other OpenExchange customer data and does not give OpenExchange the right to identify Customer as the source of any Aggregated Anonymous Data. 

6.5. Security and Safeguards; Data Processing Addendum. OpenExchange will maintain appropriate technical and organizational measures which are designed to prevent unauthorized access, use, alteration or disclosure of Customer Content in the possession or under the control of OpenExchange or to which OpenExchange has access. When Event Management Services are delivered through a Customer-Licensed Platform, Customer acknowledges that the majority of Customer Content remains within the Customer-Licensed Platform and that the security of such Customer Content is governed by the security practices of the Customer-Licensed Platform provider and Customer’s configuration and use of such platform. OpenExchange is responsible only for securing any limited Customer Content actually provided to OpenExchange for coordination of Event Management Services and for maintaining appropriate security practices when OpenExchange personnel access Customer-Licensed Platforms to deliver services. Each Party shall without undue delay notify the other Party of any unauthorized access to Customer Content of which it becomes aware and shall cooperate to mitigate the effects of the incident. To the extent applicable to Customer’s use of the OpenExchange Platform and Customer Content stored thereon, the parties will separately execute OpenExchange’s standard form of Data Processing Addendum. The Data Processing Addendum does not apply to Customer Content that remains solely within Customer-Licensed Platforms and is not provided to or accessible by OpenExchange. 

6.6 Privacy Policy. OpenExchange’s Privacy Policy set forth at https://www.openexc.com/privacy-policy/ governs OpenExchange’s collection, use and sharing of personal information and Customer hereby acknowledges and agrees to same.  

7.1 Confidential Information.  For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a Party that:  (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such Party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing Party and marked “confidential” or with words of similar meaning; or, (c) should reasonably be recognized as confidential information of the disclosing Party by the nature of the information or  the manner in which it was disclosed.  The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving Party without an obligation of confidentiality; (b) developed independently by the receiving Party, as demonstrated by the receiving Party, without violating the disclosing Party’s proprietary rights; (c) obtained from a source other than the disclosing Party without an obligation of confidentiality; or (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, or on behalf of, the receiving Party).  In addition, the Receiving Party will be allowed to disclose Confidential Information of the disclosing Party to the extent that such disclosure is (i) approved in writing by the disclosing Party, (ii) necessary for the receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by Laws or by the order of a court or similar judicial or administrative body, provided that the receiving Party notifies the disclosing Party of such required disclosure promptly and in writing and, if permitted by applicable Law, cooperates with the disclosing Party, at the disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Any Confidential Information required to be disclosed shall otherwise remain subject to the terms and conditions of this Agreement. 

7.2 Obligation of Confidentiality; Specific Performance.  The Parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a Party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement and who are bound by written confidentiality and agreements containing terms at least as protective of the Confidential Information as this Section 7.  The Parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.  Each Party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other Party, which damage may be inadequately compensable in the form of monetary damages.  Accordingly, a Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available to such Party.  Notwithstanding the termination or expiration of this Agreement, the obligations of the receiving Party, with respect to the Confidential Information of disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement. 

8.1.   OpenExchange Property. Customer acknowledges that it is obtaining only a limited right to use the OpenExchange Offering to the extent expressly granted herein. Irrespective of any use of the word’s “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that OpenExchange and its licensors and suppliers own and retain all right, title and interest in and to all OpenExchange Offering, and OpenExchange Technology and OpenExchange Intellectual Property Rights. This includes without limitation any and all related and underlying technology and documentation and all modifications, enhancements, improvements, new versions, new releases, corrections and derivative works, and all Intellectual Property Rights in and to all of the foregoing, including as may incorporate Feedback and Improvements (“OpenExchange Property”). OpenExchange expressly reserves all rights not expressly granted herein. Further, Customer acknowledges that the OpenExchange Platform as provided by OpenExchange is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the object code or source code of the OpenExchange Platform. Except as expressly otherwise set forth herein, no license, right, title or other interest is granted with respect to OpenExchange’s Intellectual Property Rights.

8.2.   Feedback. Customer, from time to time, may submit Feedback to OpenExchange. Customer grants to OpenExchange a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, Intellectual Property Rights or otherwise. Customer’s license to Feedback shall allow OpenExchange to incorporate Feedback into service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.

9.1. By OpenExchange. OpenExchange will defend Customer and its Affiliates and their respective employees, officers, and directors from and against any claim by a third party brought against a Customer indemnitee contending that the OpenExchange Platform when used as authorized under this Agreement and in accordance with the applicable Order Forms, SOWs and Documentation infringes the U.S. patent rights, copyright or trade secret rights of a third party and will indemnify and hold harmless Customer indemnitees from and against any damages and costs finally awarded against a Customer indemnitee or agreed in settlement by OpenExchange (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the OpenExchange Platform is (or in OpenExchange’s opinion is likely to be) enjoined, if required by settlement or if OpenExchange determines such actions are reasonably necessary to avoid material liability, OpenExchange may, in its sole discretion require Customer to cease all use of the OpenExchange Platform and either: (a) substitute substantially functionally similar software or services; (b) procure for Customer the right to continue using the affected OpenExchange Platform, as applicable; or if (a) and (b) are not commercially feasible within a commercially reasonable period of time, (c) terminate this Agreement. The obligations of OpenExchange under this Section 9.1 will not apply: (1) if the OpenExchange Platform is modified by anyone other than OpenExchange or its authorized contractors, but solely to the extent the alleged infringement is caused by such modification; (2) if the OpenExchange Platform is combined with software, hardware, equipment, devices, services, content, data or other materials not developed by OpenExchange, but solely to the extent the alleged infringement is caused by such combination; (3) to any use of the OpenExchange Platform in violation of this Agreement or not in accordance with the Documentation; (4) to any action arising as a result of acts or omissions of Customer or its Users or any Customer Content, Beta Versions, or Third-Party Platforms; (5) to OpenExchange’s compliance with Customer’s specifications, instructions or designs; (6) if Customer does not use an Update provided by OpenExchange without charge to avoid an infringement; (7) an allegation that does not state with specificity that the OpenExchange Platform is the basis of the claim; (8) to the extent the alleged infringement is not caused by the particular technology or implementation of the OpenExchange Platform but instead by features common to any similar product or service; (9) if Customer settles or makes any admissions with respect to a claim without OpenExchange prior written consent; (10) if Customer or a Customer indemnitee fails to provide OpenExchange with timely notice of any such third party claim or otherwise fails to cooperate with OpenExchange’s defense of the claim; or (11) an allegation made against Customer prior to Customer entering into this Agreement or any allegation based upon any action by Customer prior to entering into this Agreement. THIS SECTION 9.1 SETS FORTH OPENEXCHANGE’S AND ITS LICENSORS’. AND SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. 

9.2.  By Customer. Customer will defend OpenExchange and its Affiliates and their respective employees, officers, and directors from and against any claim by a third party brought against an OpenExchange indemnitee, and will indemnify and hold harmless OpenExchange indemnitees from and against any damages and costs finally awarded against an OpenExchange indemnitee or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim, which claims arise out of or relate to (i) Customer’s or any User’s use of the OpenExchange Offering or Services not in accordance with the terms of this Agreement, the Order Forms, SOWs or the Documentation; (ii) the Customer Content, including without limitation any claim that any of the foregoing, in whole or in part, infringe, violate or misappropriate the Intellectual Property Rights of, or has otherwise harmed, a third party; (iii) Customer’s or is Users’ misuse of the Services including without limitation any use of the Services in a manner that harasses, defames, libels or defrauds a third party or violates any applicable Law; (iv) Customer’s use of Event Attendee information in violation of applicable privacy laws, rules or regulations including any failure to obtain any and all necessary consents of participants and providing any and all appropriate notices to participants; (v) any loss of or damage to real or tangible property or financial assets, caused by the act or omission of Customer or any of its agents, subcontractors, or employees; or (vi) claims by Customer’s Event Attendees, investors or personnel. 

9.3.  Indemnification Process. The foregoing obligations are conditioned on the indemnified Party: (a) notifying the indemnifying Party promptly in writing of such action, provided, that any failure to promptly notify the indemnifying Party shall not relive the indemnifying Party of its obligations except to the extent it was unduly prejudiced; (b) giving the indemnifying Party sole control of the defense thereof and any related settlement negotiations, provided that any settlement shall fully release the indemnified Party from liability and shall not impose any obligations or restrictions on the indemnified Party without the indemnified Party’s consent; and (c) cooperating and, at the indemnifying Party’s written request and expense, assisting in such defense. The indemnifying Party will not reimburse the indemnified Party for any expenses incurred by the indemnified Party without the prior written approval of the indemnifying Party. The indemnified Party will have the right to participate in the defense and settlement of a claim at the indemnified Party’s expense. If the indemnifying Party fails to promptly assume the defense of a claim, the indemnified Party may do so at the indemnifying Party’s expense with written notice to the indemnifying Party. 

10.1. Disclaimer of Consequential Damages. SUBJECT TO SECTION 10.3 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; INCLUDING WITHOUT LIMITATION LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL,  LOSS OF DAMAGE TO, OR CORRUPTION OF, DATA, FAILURE OF SECURITY MECHANISMS, LOSS OF USE,  OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.  

10.2.  Limitation on Direct Damages. SUBJECT TO SECTION 10.3 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABL LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS UNDER THIS AGREEMENT, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO OPENEXCHANGE UNDER THE ORDER FORM OR SOW UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.  

10.3. Exclusions.  THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION SET FORTH IN SECTION 9; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (C) CUSTOMER’S OBLIGATION TO MAKE PAYMENT OF UNDISPUTED FEES; (D) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (D) CUSTOMER’S BREACH OF THE ACCESS RIGHTS OR RESTRICTIONS APPLICABLE TO THE OPENEXCHANGE OFFERING. 

10.4.  Nature of Claims and Failure of Essential Purpose. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither Party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third party, to the extent that such loss, damage or inconvenience is caused by the failure of the other Party to comply with its obligations under this Agreement. The Parties agree that the waivers and limitations specified in this apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose. Each Party acknowledges that the fees payable by Customer to OpenExchange reflect the allocation of risk between the Parties and that the other Party would not enter into this Agreement without the limitations on its liability set forth in this Section 10. 

10.5. Limitation of Action.  To the maximum extent permitted by applicable law and except for actions by OpenExchange against Customer for non-payment of undisputed amounts due, for Customer’s breach of the rights granted herein or the restrictions applicable hereto or Customer’s misappropriation or violation of OpenExchange’s Intellectual Property Rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than one (1) year after the date the cause of action accrued

11.1. Relationship between Parties.  Each Party represents and warrants that it is an independent contractor with no authority to contract for the other Party or in any way to bind or to commit the other Party to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other Party.  Under no circumstances shall either Party, or any of its employees, consultants and agents, hold itself out as or be considered an agent employee, joint venturer, or partner of the other Party.   

11.2. Governing Law; Jurisdiction; Jury Trial Waiver.  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard for principles of conflicts of laws.  The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods does and the Uniform Computer Information Transactions Act.  Each Party hereby irrevocably consents and submits to the exclusive jurisdiction and forum of the state and federal courts in the Commonwealth of Massachusetts in all questions and controversies arising out of this Agreement. The Parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation. 

11.3. Force Majeure.  Except for the obligation to make payments, neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of the Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the Parties; provided, that the Party whose performance is affected by the event of force majeure uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as commercially practicable.  Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of government, acts of war, terrorism, earthquakes, fires, floods, earthquakes, natural disasters, epidemics, pandemics, fire, explosions, act of government, failure of internet service providers, failure of utility or telecommunications providers, failure denial of service attacks, failure of suppliers or service providers or any other event beyond the reasonable control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially practicable. 

11.4. Publicity.  OpenExchange shall have the right to (i) list Customer’s logo as a OpenExchange customer on OpenExchange’s website, social media and in OpenExchange’s other marketing materials, and (ii) issue a press release and other promotional material announcing that Customer has become a customer of OpenExchange; provided, however, that the wording of any such press release or announcement or use shall be approved in advance by Customer, which approval shall not be unreasonably withheld.  Except as specifically set forth in this Agreement, nothing in this Agreement shall authorize either Party to use the other Party’s trademarks, copyrights or other intellectual property in connection with any other marketing or for any other purposes. 

11.5. Waiver; Severability; No Third-Party Beneficiaries.  The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party.  Only the Parties to the Agreement may enforce it. 

11.6. Notices.  Any notice or communication required or permitted under this Agreement will be in writing to the Parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either Party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, Customer acknowledges and agrees that OpenExchange may provide notices to Customer via email to Customer’s email account on file with OpenExchange or through the OpenExchange Platform and such notices will be deemed given when sent. 

11.7. Assignment.  Neither Party will assign this Agreement, in whole or in part, or delegate its obligations or assign its rights hereunder, without obtaining the prior written consent of the other Party, and any attempted assignment in violation of the foregoing shall be null and void.  For the avoidance of doubt, a change of control, merger or other consolidation, acquisition or reorganization of Customer shall be deemed an assignment hereunder and is not permitted without OpenExchange’s prior written consent, which may be withheld or conditioned in OpenExchange’s sole and absolute discretion. Notwithstanding the foregoing without Customer’s prior consent, OpenExchange may assign this Agreement in connection with a merger, acquisition, reorganization or change of control of OpenExchange, including without limitation a sale of all or substantially all of its assets, voting securities or business to which this Agreement relates.  Subject to the foregoing, the terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns. 

11.9. Entire Agreement; Amendment; Remedies.  These Terms of Service and any attachments hereto together with all linked documents incorporated herein and all Order Forms and Statements of Work entered into between the Parties constitute the entire agreement between the Parties and supersede any and all previous and contemporaneous representations, understandings, proposals, representations and agreements between Customer and OpenExchange, whether written or oral, as to the subject matter hereof.  No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to entering into the Agreement, except as expressly stated in these Terms of Service.  Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into the Agreement (unless such untrue statement was made fraudulently) and that Party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in these Terms of Service.  Customer acknowledges and agrees that its agreement is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by OpenExchange with respect to future functionality or features for the OpenExchange Offering or Services. This Agreement may only be supplemented, modified or amended by an instrument in writing signed by the Parties.  This Agreement shall be construed without regard to the Party that drafted it.  Any ambiguity shall not be interpreted against either Party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts. Each Order Form and SOW, and any written amendment to this Agreement, may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.  The Parties agree that a facsimile signature or electronic transmission of a portable document format or other image file may substitute for and have the same legal effect as the original signature. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 

11.10.  Subcontractors. OpenExchange may use the services of its Affiliates and third party subcontractors and service providers and shall have the right to permit these third parties to exercise the rights granted to OpenExchange hereunder in order to perform OpenExchange’s obligations and exercise OpenExchange’s  rights under this Agreement, provided that OpenExchange remains responsible for (i) compliance of any such third parties with the terms of this Agreement and (ii) for the overall performance of this Agreement. 

11.11. Export Control; Anti-Corruption. In its use of the OpenExchange Offering or Services (including Services delivered via Third-Party Platforms), Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its Users to) access or use the OpenExchange Offering, Services, or any Third-Party Platforms used in connection with the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to OpenExchange or the OpenExchange Platform any information that is controlled under the U.S. International Traffic in Arms Regulations. Both Parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) and/or the Organization for Economic Cooperation and Development (“OECD”) prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, each Party represents and warrants that it has not and shall not at any time during the Term pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of: (i) any government official, political party, or candidate for political office; or (ii) any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with this Agreement. 

11.12. Section Headings; Construction.  The Section headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement.  Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time.

“Access Credentials” mean login information, API keys, passwords, security protocols, and policies through which Users access and use the OpenExchange Platform or through which OpenExchange accesses Third-Party Platforms on Customer’s behalf in connection with the Services. When Event Management Services are delivered through a Customer-Licensed Platform using Customer’s own license, Customer is responsible for managing and securing its own access credentials for such Customer-Licensed Platform and for providing OpenExchange personnel with appropriate access as needed to deliver Event Management Services in accordance with the Customer-Licensed Platform provider’s terms of service. 

“Admin User” means Customer’s employees and contractors that Customer authorizes to access and use the OpenExchange Offering or to receive Services delivered via Third-Party Platforms. 

“Affiliate” means all companies and subsidiaries that directly or indirectly control or are controlled by a Party to this Agreement or are under common control with such Party. As used in this Agreement, control means equity ownership of fifty percent (50%) or greater interest in the voting shares held by an entity. 

“Aggregated Anonymous Data” means any information, metadata, machine learning, or other data derived from Customer Content and/or Customer’s and its Users’ use of the OpenExchange Offering or receipt of Services that is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person. Aggregated Anonymous Data excludes any data, information, or analytics that remain solely within Customer-Licensed Platforms and are not provided to or accessible by OpenExchange. When Event Management Services are delivered solely through a Customer-Licensed Platform, OpenExchange’s ability to generate Aggregated Anonymous Data is limited to information Customer affirmatively provides to OpenExchange for coordination of Event Management Services. 

“Beta Versions” means versions of new functionality for the OpenExchange Offering that are not generally commercially available and which OpenExchange may pre-release to all or some of its customers for which customers are expected to report any bugs they encounter or any changes such customers would like to see before the general release. 

“Customer Content” means any and all data, content, text, powerpoint slides, videos, photographs, music, trademarks, and any other works of authorship submitted by Customer or its Users to OpenExchange (or the OpenExchange Platform or in connection with Services delivered via Third-Party Platforms) and/or created by or on behalf of Customer or its Users using the OpenExchange Platform or in connection with Services delivered via Third-Party Platforms, including without limitation personal data and any data imported from Third-Party Platforms. For clarity, Customer Content does not include any content that remains solely within a Third-Party Platform and is not provided to or accessible by OpenExchange. 

“Deliverables” means any and all technology, work product, software code and other deliverables delivered pursuant to an SOW, including without limitation any and all derivatives, enhancements and modifications thereof. 

“Data Processing Addendum” means OpenExchange’s Data Processing Addendum set forth at https://www.openexc.com/docs. 

“Documentation” means the technical user documentation for the OpenExchange Offering, whether in print or electronic form, provided by OpenExchange, as the same may be updated by OpenExchange from time to time to reflect Updates. 

“Event” means a virtual, physical or hybrid conference, meeting, event or other collaboration hosted by Customer using the OpenExchange Platform or facilitated by OpenExchange via Third-Party Platforms (including Customer’s own licenses for such platforms), including through any use of OpenExchange’s Event Management Services. Events may be live-streamed or pre-recorded. 

“Event Attendees” means registered participants and attendees of Events hosted by or on behalf of Customer using the OpenExchange Platform. 

“Event Management Services” means the services for a Customer Event, including without limitation any virtual or on-site services and/or any equipment rental services, provided by OpenExchange to Customer pursuant to Order Forms and/or Statements of Work.  Event Management Services may be provided as Subscription Services or as One-Time Services as specified in an Order Form and/or SOW. 

“Feedback” means ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, methodologies, comments, feedback or other input provided by Customer or its Users relating to OpenExchange products and services, including in response to any product plans or roadmaps shared by OpenExchange with Customer. 

“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world. 

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. 

“One-Time Services” means the professional services provided by OpenExchange to Customer on a one-time basis.  One-Time Services may be provided on one occasion only or on multiple occasions but are not provided on a subscription basis. For example, One-Time Services may be provided for a single Event or multiple Events during a Subscription Term. 

“OpenExchange Offering” means the OpenExchange Platform and OpenExchange APIs and Tools. 

“OpenExchange Platform” means OpenExchange’s proprietary video conferencing platform and all applications, features and functionality thereof subscribed to by Customer pursuant to an Order Form or to which Customer is otherwise granted access by OpenExchange, including any Updates.  

“OpenExchange Technology” means the computer software, computer code, scripts, application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the OpenExchange Platform and to provide any Services, including any OpenExchange APIs and Tools; including, without limitation, all Intellectual Property Rights in and to all of the foregoing.  

“OpenExchange APIs and Tools” means OpenExchange’s proprietary application programming interfaces that enable the connection of Third-Party Platforms with the OpenExchange Platform (“APIs”) and any other code, scripts and tools provided by OpenExchange to Customer in connection with the OpenExchange Offering, including without limitation Knovio embed code and any Updates.  

“Order Form” means OpenExchange’s standard Order Form referencing this Agreement, whether in electronic or printed form, entered into by an authorized representative of each Party which sets forth the Subscription Services and One-Time Services ordered by Customer, and which sets forth and defines Customer’s usage entitlements and limitations, add-ons, and any applicable pricing metrics and fees.  

“Sensitive Personal Information” means any of the following: (i) financial account information or credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA“); (iii) social security numbers, passport numbers or other government issued id numbers, date of birth and/or gender;  (iv) any other personal data of an EU or UK citizen deemed to be in a “special category” (as identified in the EU General Data Protection Regulation (“EU GDPR”) or UK General Data Protection Regulation (“UK GPDR”) or any successor directive or regulation to EU GDPR or UK GDPR); (v) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure; (vi) reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, sex orientation or activities, or genetic or biometric data; or (vii) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, IP address, email address, and phone number). 

“Services” means those Subscription Services and One-Time Services provided by OpenExchange to Customer pursuant to Order Forms and/or Statements of Work, including without limitation any Event Management Services. 

“SOW” means OpenExchange’s standard Statement of Work referencing this Agreement, whether in electronic or printed form, entered into by an authorized representative of each Party which supplements an Order Form or is entered into in place of an Order Form and which sets forth the Subscription Services and One-Time Services to be provided by OpenExchange to Customer, the time frames for performance of the Services and the applicable fees for the Services and any add-ons. 

“Subscription Services” means those subscription-based services subscribed to by Customer pursuant to an Order Form or SOW, including without limitation any subscription to the OpenExchange Platform or Event Management Services. 

“Subscription Term” means the period of time set forth in an Order Form or SOW during which OpenExchange will provide Services.  

“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes, customs, and any customs duties, charges, fees or levies, whether domestic or foreign, excluding taxes based on the income, employees or property of OpenExchange. 

“Third-Party Platform” means any software, software-as-a-service platforms, telecommunications platforms, data sources or other products or services not provided by OpenExchange that are able to be connected to or integrated with the OpenExchange Platform using the OpenExchange APIs and Tools in accordance with the Documentation. For clarity, “Third-Party Platforms” as defined herein refers to platforms that integrate or connect with the OpenExchange Platform, and is distinct from “Customer-Licensed Platforms” which are third-party platforms (such as Zoom) that Customer licenses directly from a third-party provider and through which OpenExchange delivers Event Management Services in lieu of the OpenExchange Platform, as described in Section 1.2.1(b). 

“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications, of the OpenExchange Offering made generally commercially available by OpenExchange to its customers during the applicable Subscription Term. 

“User(s)” means all Admin User(s) and Event Attendee(s).