FullStory Partner Program
This Reseller Addendum (this “Addendum”) contains terms and conditions that govern your participation in FullStory’s Reseller Partner Program (the “Program”) and is a contract between FullStory, Inc., a Delaware (USA) corporation (“FullStory”), and you or the entity or organization that you represent. This Addendum is subject to FullStory’s standard Master Partner Program Agreement, currently available through the Partner Portal and on FullStory’s website at https://www.fullstory.com/legal/partner-terms-and-conditions/, unless otherwise agreed by the Parties in writing (“MPPA”). Capitalized terms not otherwise defined in this Addendum will have the respective meanings assigned to them in the MPPA or Section 16 of this Addendum below.
This Addendum, the MPPA, and the applicable Program Authorization (collectively, the “Agreement”), replaces and supersedes all previous agreements and other communications (oral or written) between Partner and FullStory relating to the Program, including any agreements governing Partner’s participation in past reseller partner-type programs offered by FullStory.
This Addendum becomes binding and effective on Partner upon signature of a Program Authorization granting Partner the right to participate in the Program, unless otherwise agreed by the Parties in writing.
1. Background. Partner desires to resell Internal Use Subscriptions to the Services to its own third-party customers. FullStory desires to provide the right to Partner to resell such Internal Use Subscriptions to prospective End-Customers in the Territories provided in the applicable Program Authorization, solely in accordance with this Addendum.
2. Reseller Partner Orders. Subject to the Agreement, FullStory hereby authorizes Partner to resell Internal Use Subscriptions to Customers in connection with one or more Reseller Partner Orders. The authorization under this Section 2 is limited, nonexclusive and, except as otherwise provided in the Agreement, non-transferable. Any Resale Prospect is free to enter into orders for Services directly with FullStory or with another FullStory partner. Partner is not itself granted any rights under any Reseller Partner Order or this Addendum to access or use the Services, whether for its own benefit or the benefit of its third-party customers; any such rights would be subject to a separate agreement between the Parties or as expressly provided in the MPPA.
3. Qualifying Resale Prospects. FullStory may reach out to Partner from time-to-time requesting that Partner sell Internal Use Subscriptions to a Resale Prospect via email or other means of communication, including via the Partner Portal. Alternatively, Partner may, through its own efforts conducted in accordance with the MPPA, identify Resale Prospects. Partner will provide FullStory written notice before selling Internal Use Subscriptions to any Resale Prospect (each, a “Prospect Notice”). Prospect Notices shall be submitted as instructed by FullStory from time to time (e.g., through a Lead Registration and/or through the Partner Portal) and must include all information requested by FullStory, such as the identity of the Resale Prospect, the likely scope of purchase, and the expected close date. Following receipt of a Prospect Notice, FullStory will notify Partner whether the corresponding Resale Prospect is acceptable to FullStory. FullStory may accept or reject any Resale Prospect for any reason, including taking into account whether the Resale Prospect is a current or former FullStory customer and whether, at the time of the Prospect Notice, the Resale Prospect is engaged in ongoing discussions with FullStory or another FullStory partner for Services. Partner acknowledges and agrees that it is not entitled to any compensation in the event FullStory rejects any Resale Prospect following receipt of a Prospect Notice.
4. Converting Resale Prospects. FullStory will provide Partner with quotes and draft Reseller Partner Orders for Internal Use Subscriptions in connection with an accepted Resale Prospect upon Partner’s reasonable request from time to time during the Resale Period. Except as otherwise provided in the Program Authorization, all such quotes and draft Reseller Partner Orders will be prepared using the then-current prices for Services as provided by FullStory. If the Parties do not enter into a final Reseller Partner Order on behalf of an accepted Resale Prospect prior to the end of the Resale Period: (a) the Resale Prospect will cease to be deemed “accepted” under this Addendum; (b) Partner may at its option submit a new Prospect Notice for the Resale Prospect; and (c) FullStory will reevaluate the Resale Prospect and Prospect Notice pursuant to Section 3 of this Addendum. Even where FullStory has accepted a Resale Prospect, FullStory reserves the right to refuse to enter into any Reseller Partner Order in its sole discretion, including without limitation where the Resale Prospect desires to modify the Pass-Through Terms.
5. Customer Orders and Pass-Through Terms. Partner shall not resell any Internal Use Subscription except pursuant to: (a) a completed Reseller Partner Order between FullStory and Partner and (b) a completed order or other agreement for Services between Partner and the applicable Customer that is consistent with this Addendum, is on a non-exclusive basis, identifies Customer and their legal address for notices, and incorporates the Pass-Through Terms (each, a “Customer Order”). For purposes of this Addendum, any renewal of Internal Use Subscriptions for an existing Customer shall be deemed a new Customer Order. Partner agrees that FullStory shall be a third-party beneficiary with respect to each Customer Order as it relates to the Pass-Through Terms. For clarity, however, no Resale Prospect, Customer or Customer user shall be deemed a third-party beneficiary of this Addendum or the Agreement.
6. Partner Responsibilities and Restrictions.
6.1. Partner will be responsible for marketing and reselling Internal Use Subscriptions in accordance with the Agreement, including all Applicable Laws.
6.2. No provision of the Agreement includes the right to, and Partner shall not, directly or indirectly: (a) market or resell Internal Use Subscriptions except to Resale Prospects; (b) market or resell Internal Use Subscriptions to any Resale Prospect not purchasing for use within the Territory, or to any Government Entity or Government Official, without FullStory’s prior written consent; (c) except as otherwise provided in this Addendum, resell, distribute or otherwise make available the Service to any third-party; (d) represent itself as FullStory or as an exclusive agent, vendor or provider of the Services; or (e) without limiting the foregoing or the MPPA, market any Service in any manner that does not clearly identify FullStory as the ultimate provider of the Services.
6.3. FullStory reserves the right to investigate potential violations of this Section 6. In the event FullStory reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 18.2 of the MPPA and 11.2 of this Addendum), FullStory will have the right to: (a) require Partner to promptly provide to FullStory a signed certification verifying that Partner is in compliance with the terms of the Agreement and/or (b) audit, at FullStory’s expense, Partner’s compliance with the Agreement.
7. Pricing and Fees.
7.1. In addition to any fees specified in the Program Authorization, Partner agrees to pay all fees charged by FullStory for a Customer’s use of Services in accordance with the applicable Reseller Partner Order(s) (collectively, “Fees”). Except as otherwise provided in the Program Authorization or a Reseller Partner Order: (a) prices for Services are as communicated to Partner by FullStory; (b) Fees must be paid in U.S. dollars and, subject to Section 7.2 below, within 30 days of invoice; and (d) Fees for Services include Support for Customers at no additional charge.
7.2. Except in the event of a good faith dispute under this Section 7.2, if Partner fails to make payment when due, without limiting FullStory’s other rights and remedies: (a) FullStory may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under Applicable Law; (b) Partner shall reimburse FullStory for all reasonable costs incurred by FullStory in collecting any late payments or interest, including attorneys’ fees; and (c) if such failure continues for 10 days or more, FullStory may suspend each applicable Customer’s and its users’ access to the Services until such amounts are paid in full. Partner must assert any dispute with regard to Fees in writing within 10 days of receipt of the invoice giving rise to the dispute. FullStory will not exercise its suspension or termination rights or apply interest on late Fees if Partner disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
7.3. Partner must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid. If Partner notifies FullStory to stop using a previously designated payment method and fails to designate an alternative, FullStory may immediately suspend use and access to the Services for applicable Customer. Any notice from Partner changing its billing account will not affect charges FullStory submits to Partner’s billing account before FullStory reasonably can act on Partner’s request.
7.4. Partner shall be responsible for providing, at its own cost, sales, sales support, account management, billing and collection services. Partner may unilaterally establish its own sale prices and (subject to complying Section 5 of this Addendum) terms for its resale of Internal Use Subscriptions. Partner is solely responsible for all credit risk regarding, and for collecting payments from, Customers. Partner’s inability to collect amounts due from a Customer does not affect Partner’s payment obligations to FullStory under the Agreement.
8. Taxes. All Fees are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). Partner shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Partner under Reseller Partner Orders and the Agreement (other than any Taxes on FullStory’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Partner is required to deduct or withhold any Taxes under Applicable Laws, Partner shall remit such Taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that FullStory receives an amount equal to the sum it would have received had no withholding or deduction been made.
9. Ownership. As between the Parties, FullStory owns all right, title and interest in and to the Services, User Guide and any feedback Partner or a Customer may provide regarding the Services, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Addendum or the MPPA, all rights are reserved by the granting Party.
10. Disclaimers. WITHOUT LIMITING THE DISCLAIMERS IN THE MPPA, FULLSTORY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET ANY RESALE PROSPECT’S, CUSTOMER’S OR OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH COMPONENTS OF CUSTOMER’S DIGITAL ENVIRONMENT.
11. Term and Termination.
11.1. Notwithstanding any contrary provision in the MPPA, the term of this Addendum will continue through the expiration or earlier termination of the last Reseller Partner Order to be in effect.
11.2. In addition to the termination rights of the Parties expressly provided in the MPPA, if: (i) Customer does not pay FullStory for the Internal Use Subscription associated with Partner’s Reseller Partner Order(s) in a timely manner; or (ii) FullStory receives Customer complaints concerning Partner that risk damaging FullStory’s reputation or customer relationships, FullStory may terminate the applicable Reseller Partner Order(s) and/or this Addendum upon written notice to Partner. Additionally, either Party may terminate a Reseller Partner Order(s) for convenience, upon written notice to Partner. For clarity, any breach of the Pass-Through Terms by a Customer or Customer user that is not cured pursuant to the provisions thereof (or is incapable of cure) shall be deemed an incurable breach by Partner of the applicable Reseller Partner Order.
11.3. Upon termination or expiration of a Reseller Partner Order, subject to Section 11.5 below, FullStory may terminate the associated Customer’s access to the Services as of the effective date of termination and Partner will, subject to Section 11.5 below, pay to FullStory any Fees payable for the associated Customer’s use of Services through the effective date of the termination, together with all other amounts in accordance with the Reseller Partner Order and the Agreement. In the event of termination of this Addendum, Partner shall immediately cease to represent itself as an authorized reseller of the Services and all of Partner’s Resale Prospects shall be deemed rejected by FullStory.
11.4. If a Reseller Partner Order is terminated early by Partner pursuant to its rights to terminate for FullStory’s material breach of the Agreement in accordance with the MPPA, or by FullStory pursuant to Section 12.2 of this Addendum: (a) Partner shall not be obligated to pay any additional amounts specified in the Reseller Partner Order following the effective date of termination and (b) FullStory will refund to Partner upon request a pro rata share of any unused amounts prepaid by Partner under the applicable Reseller Partner Order for the Services on the basis of the remaining portion of the current Internal Use Subscription term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer(s) use the Services at the levels reflected in Reseller Partner Orders or otherwise, Partner will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.
11.5. If a Reseller Partner Order is terminated early by either Party pursuant to Section 11.2 of this Addendum, but not by FullStory pursuant to Section 12.2 of this Addendum, any active Internal Use Subscription under the Reseller Partner Order shall remain governed by the Pass-Through Terms in effect until the end of its subscription term; provided, however, that FullStory reserves the right to terminate the Customer’s access to the Services and the Pass-Through Terms: (a) if Customer materially breaches the Pass-Through Terms, and such breach (if capable of cure) remains uncured 30 days after FullStory provides notice of such breach; (b) if Partner requests payment of the Pro-Rated Refund or any Fees due under the Reseller Partner Order, or Fees are not paid in a timely manner by Partner in accordance with the Reseller Partner Order and this Addendum; or (c) pursuant to Section 12.2 of this Addendum.
11.6. The provisions set forth in the following Sections of this Addendum, and any other right or obligation of the Parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: 11 through 18.
11.7. Subject to Section 11.6 above, the Party terminating the Agreement pursuant to Section 11.2 above, or in the case of expiration of the Agreement, each Party, shall not otherwise be liable to the other Party for any direct or indirect damage of any kind incurred by the other Party by reason of the expiration or earlier termination of the Agreement. Partner acknowledges that FullStory may notify Customers of any termination of Partner’s participation in the Program and remove references to Partner from all Program directories.
12. Indemnification. In addition to the obligations of the Parties in the MPPA, and subject to the indemnification procedures described in the MPPA, the Parties agree as follows:
12.1 Subject to Sections 12.2 and 12.4 of this Addendum, FullStory agrees to defend, indemnify and hold harmless Partner and its employees, contractors, agents, officers and directors (collectively, “Partner Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party (other than a Customer or its Affiliate) alleging Partner’s Customers’ use of the Services as permitted under the Pass-Through Terms infringes such third party’s patent or copyright, or misappropriates such third party’s trade secrets (each, a “Partner Infringement Claim''). FullStory will have no obligation to indemnify Partner for a Partner Infringement Claim to the extent it arises from Customer’s failure to comply with the Pass-Through Terms or Customer Data (as defined in the Pass-Through Terms).
12.2. If the Services become, or in FullStory’s opinion are likely to become, the subject of a Partner Infringement Claim, FullStory may in its discretion and at its own expense: (a) obtain for Customers the right to continue using the Services; (b) modify the Services so that they no longer infringe or misappropriate; or (c) terminate the Program Authorization, all Reseller Partner Orders and all Customers’ access to the Services and issue a Pro-Rated Refund to Partner. SECTIONS 12.1 AND 12.2 OF THIS ADDENDUM STATE FULLSTORY’S ENTIRE LIABILITY AND PARTNER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION ARISING FROM A CUSTOMER’S USE OF THE SERVICES.
12.3. Subject to Section 12.4 of this Addendum, Partner agrees to defend, indemnify and hold harmless FullStory, its Affiliates and their employees, contractors, agents, officers and directors (collectively, “FullStory Indemnitees”), from and against any and all Losses arising out of or related to any Action by Customer or other third party arising out of or relating to a Customer’s order for the Services (subject to FullStory’s obligations under the Pass-Through Terms) or Partner’s gross negligence, willful misconduct or violation of Applicable Law.
12.4. A Partner Indemnitee or FullStory Indemnitee seeking indemnification shall adhere to the indemnification procedures of the MPPA in exercising the indemnification rights of this Section 12. For clarity, no Customer, its Affiliates or their employees, contractors, agents, officer or directors shall be deemed Partner Indemnitees for purposes of this Addendum. Any indemnification obligations FullStory may have to Customers and such other parties are as specified in the Pass-Through Terms.
13. Limitations of Liability.
13.1. SOLELY WITH RESPECT TO THE PARTIES OBLIGATIONS UNDER THIS ADDENDUM, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 13, IN NO EVENT SHALL: (a) FULLSTORY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS HAVE ANY LIABILITY TO PARTNER FOR ANY LOSSES ARISING OUT OF OR RELATING TO ANY CUSTOMER ORDER, CUSTOMERS’ OR THEIR USERS’ ACCESS OR USE OF THE SERVICES, OR PARTNER’S PROCESSING OF PROSPECT INFORMATION; (b) EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS ADDENDUM; OR (c) EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS ADDENDUM EXCEED THE FEES PAID TO FULLSTORY BY PARTNER UNDER APPLICABLE RESELLER PARTNER ORDER(S), INCLUDING PRIOR RESELLER PARTNER ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY (THE “GENERAL LIABILITY CAP”).
13.2. NOTWITHSTANDING THE ABOVE, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY WILL NOT, IN THE AGGREGATE AND TOGETHER WITH SUCH OTHER PARTY’S LIABILITIES ARISING OUT OF OR RELATED TO THIS ADDENDUM, EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE GENERAL LIABILITY CAP (THE “SUPER CAP”) FOR DAMAGES ARISING AS A RESULT OF: (a) FULLSTORY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 OF THIS ADDENDUM; or (b) PARTNER’S BREACH OF SECTION 5 OR 6.2 OF THIS ADDENDUM. NOTWITHSTANDING THE FOREGOING, THE GENERAL LIABILITY CAP AND THE SUPER CAP SHALL NOT APPLY TO (i) PARTNER’S PAYMENT OBLIGATIONS TO FULLSTORY UNDER THIS ADDENDUM; (ii) DAMAGES ARISING FROM EITHER PARTY’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION; OR (iiI) PARTNER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 OF THIS ADDENDUM. THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS UNDER THIS ADDENDUM BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS ADDENDUM AND THE PRICING FOR INTERNAL USE SUBSCRIPTIONS.
13.3. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
14. Applicability of MPPA. This Addendum is subject to the terms and conditions of the MPPA. Without limiting the foregoing, and for clarity of the Parties: (i) Partner’s obligations under the MPPA with respect to its conduct and its compliance with Applicable Laws, including those relating to Personal Data, anti-bribery and anti-corruption, and export controls and trade sanctions, extend to this Addendum; (ii) except as otherwise expressly provided in this Addendum, Partner’s remedies with respect to its participation in the Program, and use of the Services, shall be solely as provided in the MPPA; and (iii) the terms of the MPPA relevant to Partner’s use of FullStory’s Marks and Content, Confidentiality, Prospect Information, Assignment, Relationship, Third-Party Beneficiaries, Force Majeure, Notices, Governing Law and Venue, and any language provided in a “Miscellaneous” provision, shall, in addition to the remainder of the MPPA, apply to this Addendum.
15. Miscellaneous. Partner agrees to provide any information and assistance reasonably requested by FullStory with respect to Customers. The Agreement, together with any Reseller Partner Orders, is the complete and exclusive statement of the agreement between the Parties with respect to Partner’s activities as a Reseller for FullStory. Any terms and conditions of any other instrument issued by Partner or any Customer in connection with the Agreement which are in addition to, inconsistent with or different from the terms and conditions of the Agreement shall be of no force or effect. Except as otherwise provided in Section 18 of this Addendum, this Addendum may be modified only by a written instrument duly executed by authorized representatives of the Parties.
16. Definitions. Capitalized terms not otherwise defined in this Addendum shall have the respective meanings assigned to them in the MPPA or this Section 16.
“Customer” means a Resale Prospect that has purchased an Internal Use Subscription to Services through Partner and entered into a Customer Order.
“Internal Use Subscription” means a subscription to specified Services that permits a Customer to access and use the subscribed Services solely for the Customer’s own internal business operations.
“Resale Period” means the period commencing on the date of the Prospect Notice and continuing through the earlier of 90 days or the date the Parties enter into a mutually agreeable Reseller Partner Order with respect to the associated Resale Prospect.
“Resale Prospect” means a third-party entity or organization that is a prospective Customer for the Services, whether identified by Partner or by FullStory and communicated to Partner.
“Reseller Partner Order” means a separate order for Services pursuant to this Addendum specifying that it is for the resale of Internal Use Subscriptions to a Customer that is: (a) submitted by Partner through the Partner Portal or the FullStory website and accepted by FullStory or (b) executed by FullStory and Partner. If FullStory determines to accept a Reseller Partner Order outside of an existing Program Authorization, then the Reseller Partner Order will itself be deemed the Program Authorization for purposes of the Agreement, but solely with respect to that Reseller Partner Order. A Reseller Partner Order will specify: (i) the identity of the Customer for which the Services are to be provided; (ii) the subscription start date; (iii) the subscription end date; (iv) any limitations in, or other specifics relevant to, use of the Services (i.e., session limits, seats, data retention), as applicable; (v) a reference to the Agreement which shall govern the performance of the Reseller Partner Order; and (vi) any additional terms and conditions that may be agreed to between FullStory and Customer relevant to Customer’s use of the Services.
“Support” means FullStory’s standard customer support for the Services, currently described at https://help.fullstory.com/hc/en-us/articles/360020828193-FullStory-Support-Hours-Response-Times. For clarity, Partner will not be entitled to receive any Support under Reseller Partner Orders; FullStory will provide Support directly to Customers according to the Pass-Through Terms.
17. Counterparts. Any written Reseller Partner Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of an executed counterpart of a signature page to a Reseller Partner Order by fax or by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant Reseller Partner Order.
18. Changes to the Agreement. FullStory may modify this Addendum at any time by posting a revised version on the Partner Site or in the Partner Portal, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if a Reseller Partner Order specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewal of the Reseller Partner Order, if any. In any case, if Partner objects to the updated Addendum, as its sole and exclusive remedy, Partner may choose not to renew, including canceling any terms set to auto-renew. For the avoidance of doubt, each Program Authorization and Reseller Partner Order is subject to the version of this Addendum in effect at the time of the Program Authorization or Reseller Partner Order, as applicable.