Pass-Through Terms and Conditions
These Pass-Through Terms and Conditions (“Agreement”), effective as of the Effective Date, contain terms and conditions that govern: (i) Customer’s access to and use of the Services obtained through a Reseller or Managed Service Provider and Customer’s provision of Customer Data to FullStory; and (ii) FullStory’s provision of the Services to Customer and its access to and use of the Customer Data in connection with the provision of access to the Services, and is a contract by and between FullStory, Inc., a Delaware corporation, having its principal place of business at 1745 Peachtree ST NE, STE N, Atlanta, GA 30309 (“FullStory”) and Customer. Each of FullStory and Customer, a “Party” and together, the “Parties.”
If you are entering into this Agreement on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when Customer accesses or uses the Services obtained through a Reseller or Managed Service Provider, or (2) when Customer enters into a Customer Order with a Reseller or Managed Service Provider.
Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section 21. FullStory may modify this Agreement from time to time, subject to the terms in Section 23 below.
1. Customer Orders. This Agreement governs Customer’s access and use of the Services in connection with a Customer Order between Customer and a Reseller or Managed Service Provider. Customer acknowledges the agreement between FullStory and Reseller or Managed Service Provider authorizing the Reseller or Managed Service Provider to resell access to, or provide access to, as applicable the Services (the “Partner Contract”) requires Reseller or the Managed Service Provider to incorporate this Agreement into all Customer Orders, and Customer expressly agrees that FullStory shall have the benefit of and right to enforce this Agreement against Customer. In the event any provision of this Agreement is deemed to conflict with a provision of a Customer Order or other agreement between Customer and Reseller or the Managed Service Provider with respect to the Services or other subject matter of this Agreement, the applicable provision of this Agreement shall control as between Customer and FullStory, unless FullStory and Customer agree otherwise in writing.
2. Access Grant. Subject to the terms and conditions of this Agreement, including the Customer Order, and solely during the Customer Order Term, FullStory grants to Customer and its Affiliates a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as set out in Section 19 below), limited right to access and use the Services (as such Services may be modified, revised, and updated in accordance with this Agreement) for collecting and analyzing web data on Customer’s site(s) and/or native applications, solely for Customer’s own internal business purposes. Customer’s Affiliates may purchase and use the Services subject to the terms of this Agreement by executing Customer Orders hereunder that incorporate by reference the terms of this Agreement, and in each such case, all references in this Agreement to Customer will be deemed to refer to such Affiliate for purposes of such Customer Order. Each such Affiliate agrees to be bound by this Agreement.
3. Support. FullStory will provide Support to Customer through the Services and by email.
4. Customer Data.
4.1. Customer is solely responsible for Customer Data and, to the extent within its control, Customer will ensure that Customer Data complies with all Applicable Laws. Customer agrees that it will not provide any Sensitive Data to FullStory or configure the Services such that FullStory collects Sensitive Data on Customer’s behalf. Customer acknowledges that FullStory has provided them with tools that will enable Customer to comply with this Section 4.1. If Customer discovers that Customer Data does include Sensitive Data, Customer will promptly notify FullStory and provide sufficient information to FullStory to locate such Sensitive Data, and upon such notification, FullStory’s sole obligation will be to delete the Sensitive Data in its control or possession.
4.2. FullStory will, at a minimum, comply with the FullStory Security Overview.
4.3. As between Customer and FullStory, Customer owns all Customer Data. During the Customer Order Term, Customer grants to FullStory a non-exclusive, non-transferable, non-assignable (except as set forth in Section 19 below), worldwide, royalty-free, fully-paid license to access and use Customer Data to provide the Services to Customer and as necessary to monitor and improve the Services provided to Customer. FullStory reserves the right to monitor Customer’s use of the Services and the data collected therein, which may include reviewing Customer Data collected by or stored in the Services as necessary to ensure compliance with Applicable Law and with the terms of this Agreement. FullStory will not: (a) disclose Customer Data except as compelled by law (subject to Section 5.3 below) or as expressly permitted in writing by Customer, or (b) access Customer Data except to provide the Services to Customer, to prevent or address service or technical problems, to take measures to comply, or to assist Customer in complying, with Applicable Law, or at Customer’s request in connection with its provision of Support.
4.5. The Data Protection Addendum available at https://www.fullstory.com/legal/form-of-standard-dpa/ (the “DPA”) will apply to the subject matter of this Agreement unless the Parties have agreed to a separate data protection agreement, and each Party agrees to comply with such terms. For purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer’s signing of or entering into this Agreement, and an applicable Affiliate’s signing of or entering into a Customer Order, will be treated as signing of the Standard Contractual Clauses and their Appendices. FullStory may update or modify the DPA from time to time upon written notice to Customer. The Parties further agree that the DPA will be amended from time to time to comply with changes in Applicable Law. Any such updates or modifications will become effective fifteen (15) days after such notice is provided to Customer unless Customer opts out of such updates or modifications in a written notice to FullStory, in which case (a) the then-current version of the DPA will remain in effect; and (b) FullStory may terminate this Agreement.
5.1. Each Party (the “Recipient”) acknowledges that the other Party (the “Discloser”) has business, technical, or financial information relating to Discloser’s business which it has disclosed or may disclose in connection with this Agreement that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”), which includes the terms and conditions of this Agreement. FullStory’s Confidential Information includes non-public information regarding features, functionality, pricing, and performance of the Services, as well as all non-public user-visible aspects of the Services. Customer’s Confidential Information includes all and any kind of information provided by Customer to FullStory to enable the provision of the Services, as well as all Customer Data.
5.2. Recipient will take at least those measures that it takes to protect its own confidential information, but never less than a standard of reasonable care. Recipient agrees: (i) not to use any Confidential Information of Discloser for any purpose except to perform its obligations or to exercise its rights under this Agreement; and (ii) not to disclose any Confidential Information of Recipient to third parties, except to Recipient’s own employees, officers, agents, contractors, or other representatives (“Personnel”) who have a legitimate need to know such Confidential Information in order to perform work in connection with this Agreement and who are subject to written confidentiality obligations as least as protective as those of this Agreement.
5.3. Discloser agrees that these confidentiality obligations and restrictions on use will not apply to any information that Recipient can document: (a) is or becomes generally available to the public through no action or inaction of the Recipient; (b) was in its possession or known by it prior to receipt from Discloser; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of or reference to any Confidential Information of Discloser. Nothing in this Section 5 precludes either Party from disclosing the other Party’s Confidential Information as required by law or a legal process, provided that Recipient (a) gives Discloser prior written notice sufficient to permit Discloser to contest the disclosure or seek a protective order (or other confidential treatment); and (b) reasonably cooperates with Discloser (at Discloser’s expense) in limiting the disclosure. In addition, a Party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to potential acquirers, merger partners, investors, and their personnel, attorneys, auditors, and investment bankers (solely in connection with the due diligence review of such Party and provided that the recipients of the disclosures are subject to confidentiality obligations as least as protective as those in this Agreement).
5.4. Promptly following the earlier of (i) the expiration or termination of this Agreement or (ii) the request of Discloser, Recipient will return to Discloser, or, at Discloser’s option, destroy all Confidential Information of Discloser that are in written, electronic, or other tangible form, including, without limitation, all copies, extracts, and derivatives of such Confidential Information. In addition, upon the request of Discloser, Recipient will certify to Discloser in writing Recipient’s and its Personnel’s compliance with its obligations pursuant to this Section 5.4.
5.5. Notwithstanding the foregoing, Recipient may retain Confidential Information (a) contained in electronic archives and backups made in the ordinary course of business, (b) that such Party is required by law to maintain; or (c) that such Party reasonably determines necessary to demonstrate to the other Party or any regulatory authority Recipient’s compliance with this Agreement or any Applicable Law; provided that all such Confidential Information retained will remain subject to the protections set forth herein for so long as it remains in Recipient’s possession or control. At such time as a Party’s basis for retaining such information ceases to exist, such Party shall return or destroy such information as set forth above.
5.6. The Parties acknowledge that disclosure or use of the other Party’s Confidential Information in violation of the Agreement may cause irreparable harm to the Discloser for which monetary damages may be an inadequate remedy and difficult to ascertain. Each Party agrees that the Discloser will have the right to seek injunctive or other equitable relief for any violation of this Section 5 by the Recipient (without the need to pay any bond), in addition to any other rights and remedies that the Discloser may have at law.
6. Customer Obligations. Customer agrees to comply with all Applicable Laws, including Applicable Data Protection Laws. Except as permitted under this Agreement or as required by Applicable Law, Customer will not, and will not permit or encourage anyone else, to: (i) license, sublicense, sell, resell, transfer, assign, distribute, use as a service bureau or timeshare, or otherwise commercially exploit or make the Services available to any third party in any way; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to derive source code or other trade secrets from the Services, or modify, make derivative works based upon, copy, or otherwise use any ideas, features, functions, or graphics of the Services in order to (a) build a competitive product or service or (b) build a product using similar features, functions, or graphics of the Services; (iii) modify, remove, or obstruct any proprietary rights statement or notice contained in the Services; (iv) “crawl,” “scrape,” or “spider” any data or portion of the Services (through use of manual or automated means); (v) send or store (a) infringing, dangerous, harmful, deceptive, obscene, threatening, libelous, or otherwise objectionable, unlawful, or tortious material, including material harmful to children or which violates third-party privacy rights; or (b) material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (vi) attempt to gain unauthorized access to the Services or its related systems or networks; (vii) access the Services if Customer is a direct competitor of FullStory, unless FullStory has agreed in writing before Customer accesses the Services; (viii) use the Services in violation of FullStory’s Acceptable Use Policy; (ix) impersonate a User, share passwords, or provide false identity information to access or use the Services; or (x) use the Services on, or capture any sessions or other information from, any website or apps unless Customer (a) owns such website or app or (b) has express consent from the owner to run the Services on such website or app; or (xi) use the Services in excess of the usage limitations set forth in an applicable Customer Order. Customer is responsible for any breach of this Agreement by its Users. Customer agrees that it will promptly notify FullStory of any violation of this section.
7. Beta Features. From time to time, FullStory may provide Customer with the option to use Beta Features, by indicating such features as Beta in writing (including via the user interface of the Services or other communications to Customer, as “Beta”, “Alpha”, “Experimental”, “Pre-Release”, or other similar identification). Any use of a Beta Feature will be solely at Customer’s own risk and may be subject to additional requirements as specified by FullStory, and all Beta Features are provided as-is and without warranty of any kind, express or implied. FullStory will have no liability under this Agreement (including any indemnification obligations) arising out of related to Customer’s use of any Beta Feature. “Beta Feature” means any feature of the Services that is identified by FullStory, including via the user interface of the Services or other communications to Customer, as “Beta”, “Alpha”, “Experimental”, “Pre-Release”, or other similar identification. FullStory may, in its sole discretion, (i) cease providing or modify Beta Features at any time, or (ii) cease providing Beta Features free of charge and require Customer to purchase such features for continued use as part of the Services.
8. Intellectual Property Ownership.
8.1. Except for the limited right to access and use the Services under this Agreement and the applicable Customer Order, Customer acknowledges and agrees that, as between the Parties, FullStory (or its licensors) have and will retain any and all right, title, and interest in and to the Services, any software utilized to perform the Services, and the User Guides (collectively, the “FullStory Products”), as well as all derivative works made by any person or entity based upon the FullStory Products, including all Intellectual Property Rights associated with the foregoing. Customer will not assert or cause any other Party (including, without limitation, any User) to assert any right, title, or interest in or to the FullStory Products or other portion of FullStory’s Intellectual Property Rights. If Customer provides FullStory with any feedback or suggestions about the Services, the FullStory Products, or FullStory’s business operations (“Feedback”), FullStory may use the Feedback without obligation to Customer, and Customer irrevocably assigns to FullStory all right, title, and interest in and to the Feedback. This Agreement is not a sale and does not give Customer any rights of ownership in, or related to, the Services, the FullStory Products, or FullStory’s Intellectual Property Rights.
8.2. Except as set forth herein, this Agreement does not give FullStory any rights of ownership in, or related to, any Intellectual Property Rights owned by Customer.
9. Pricing, Payment, Taxes and Fees. Pricing and payment of fees and associated taxes for the Services are solely between Customer and Reseller or the Managed Service Provider.
10. Term and Termination.
10.1. This Agreement will commence on the Effective Date and will remain in effect until the later of (i) the date this Agreement is terminated as set forth herein or (ii) six months after the end date of the last Customer Order governed by this Agreement.
10.2. Either Party may terminate this Agreement or any Customer Order at any time by giving written notice to the other Party in the event that the other Party is in material breach of any of its obligations under this Agreement and fails to remedy such material breach within thirty (30) days after receiving written notice from the other Party. In the event of termination by Customer pursuant to this Section 10.2, FullStory will refund to Reseller or the Managed Service Provider a pro-rata portion of any pre-paid and unused fees for the Services paid by the Reseller or the Managed Service Provider to FullStory on Customer’s behalf (“Pro-Rated Refund”). Additionally, FullStory may terminate Customer’s access to the Services and this Agreement if Reseller or the Managed Service Provider fails to pay any amount due under its Partner Contract and such failure remains uncured following the cure period specified in the Partner Contract.
10.3. Either Party may terminate this Agreement and all Customer Orders as of a date specified in a termination notice if: (i) a Party files a petition under any chapter of the United States Bankruptcy Code (11 U.S.C. §101 et. seq., as amended from time to time), or under any similar law or statute (each, an “Insolvency Statute”); (ii) a petition is filed under any such Insolvency Statute (provided that such petition is not dismissed within thirty (30) days of filing) or such Party notifies the other Party that such a petition will be filed under an Insolvency Statute; (iii) a Party becomes or is declared insolvent or is unable to pay its debts as they become due; (iv) a Party is the subject of any proceedings related to dissolution, liquidation, insolvency, or the appointment of a receiver, trustee, or similar officer for all or a substantial part of such Party's assets; or (v) a Party makes an assignment for the benefit of all or substantially all of its creditors.
10.4. Upon expiration or termination of this Agreement for any reason, FullStory will promptly terminate the Services and, to the extent reflected in the Customer Order, will make any Customer Data available for Customer to access for a period of thirty (30) days after expiration or termination. After such 30-day period, FullStory will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Upon termination of the Agreement, Customer will immediately cease all use of and access to the Services. If Customer or FullStory initiates termination of this Agreement, Customer will be obligated to pay any fees then due. The provisions set forth in the following Sections and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 1, 4.3, 5, 8, 9, 10.4, 13, 14, and 16 through 19, and the provisions of Section 4 regarding ownership of Customer Data and the protection and restriction of Customer Data in FullStory’s possession or under its control; all other rights and obligations will be of no further force or effect. Termination will not relieve either Party from any liability arising from any breach of this Agreement. Neither Party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Termination of this Agreement by a Party will be without prejudice to any other right or remedy of a Party under this Agreement or Applicable Law.
12. Disclaimers. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FULLSTORY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
13.1. FullStory will defend, indemnify, and hold harmless Customer and its respective directors, officers, employees, representatives, and agents (collectively, the “Customer Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, or settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a third-party claim (collectively, “Third-Party Claims”) alleging a claim that the FullStory Products or Customer’s use thereof infringes or violates any patent, copyright, or trademark right of a third party or misappropriates any trade secret of any third party. FullStory will pay all Losses incurred by and damages against the Customer Indemnified Parties but will not be responsible for any compromise or settlement made without its express prior written consent. Such indemnity, however, is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from Customer’s (a) unauthorized alteration of the Services; (b) use of the Services in combination with apparatus, hardware, software, or services not provided or authorized by FullStory; (c) any use of the Services by Customer that violates any Applicable Law; or (d) use of the Services in a manner that violates Section 6 of this Agreement. In order to resolve any such Third-Party Claim relating to subsection (ii) above, FullStory may, but is not obligated to, (i) modify or replace the Services to make them non-infringing; (ii) procure any rights from a third party necessary to provide the Services; or (iii) replace the Services with work product that is materially equal in capabilities, capacity, performance, and ease of use but is non-infringing. If none of the foregoing remedies is available to FullStory on commercially reasonable terms, FullStory may terminate this Agreement and FullStory will issue a Pro-Rated Refund to Reseller, or the Managed Service Provider, as applicable. THIS SECTION 12.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND FULLSTORY’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
13.2. Customer will defend, indemnify, and hold harmless FullStory and its respective directors, officers, employees, representatives, and agents (the “FullStory Indemnified Parties”) from and against any and all Third-Party Claims which may arise from or relate to this Agreement or the Customer Data.
13.3. As a condition to a Party’s obligations under Sections 13.1 or 13.2, the Party being indemnified (the “Indemnified Party”) will provide the Party providing the indemnification (the “Indemnifying Party”) with: (i) prompt written notice of the Third-Party Claim (provided that the failure to provide such notice will not relieve a Party of its obligations unless such failure prejudices its ability to defend the Claim); (ii) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (iii) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Third-Party Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
13.4. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER (ON ITS OWN BEHALF AND ON BEHALF OF ANY PERSON OR ENTITY AUTHORIZED TO USE THE SERVICES BY CUSTOMER) COVENANTS NOT TO SUE OR MAKE OR ASSERT AGAINST FULLSTORY ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
14. Limitations of Liability.
14.1. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NO MATTER HOW CAUSED OR THE THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE, THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, OR OTHER INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, OR ACCURACY OF RESULTS, OR (B) ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions and limitations set forth above may not apply to Customer or FullStory.
14.2. EACH PARTY AGREES THAT A PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY RESELLER OR THE MANAGED SERVICE PROVIDER TO FULLSTORY ON BEHALF OF CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT) (THE “GENERAL LIABILITY CAP”).
14.3. NOTWITHSTANDING THE ABOVE, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY PURSUANT TO THIS SECTION 14 WILL NOT, IN THE AGGREGATE AND TOGETHER WITH SUCH PARTY’S OTHER LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE GENERAL LIABILITY CAP FOR DAMAGES ARISING AS A RESULT OF: (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; (B) LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY; (C) FRAUDULENT MISREPRESENTATION BY A PARTY; (D) BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; AND/OR (E) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.
15. Insurance. During the Order Term, FullStory will maintain the insurance coverage of the types and amounts appropriate to the nature of its Service offering. All insurance policies required under this Section shall be issued by insurance companies with a Best’s Rating of no less than A-VII. Upon Customer’s written request, FullStory will provide Customer with copies of certificates of insurance for all insurance coverage required by this Section.
16. Special Terms for Government Customers. If Customer is a U.S. government entity, Customer agrees that the FullStory Products and any documentation provided by FullStory are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the FullStory Products or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
17. Dispute Resolution. The Parties will attempt in good faith to resolve any issues relating to this Agreement, the Services, or the activities under this Agreement. If the Parties are unable to resolve the dispute within a reasonable period (but in no event more than thirty (30) days from the date of receipt of written request), then the dispute will be escalated to representatives of each Party at least one (1) level higher in their respective organizations than those involved in the previous round of negotiations. Except for matters arising under Section 5.5 above, no formal proceedings relating to such dispute may be commenced until the escalated representatives conclude in good faith that amicable resolution through continued negotiation of the matter in issue does not appear likely.
18. Notices. Except as specifically set forth in this Agreement or a Customer Order, all notices, demands, or consents required or permitted under this Agreement will be in writing. Notice will be considered delivered and effective when (a) personally delivered; (b) one (1) day after posting when sent by reputable private overnight carrier; (c) five (5) days after posting when sent by certified mail, or (d) one (1) day after sending via email; provided that any notice sent via email must be followed by a written notice in accordance with one of the other methods of notification. All notices must be sent to: in the case of FullStory, 1745 Peachtree Street, NE, Suite N, Atlanta, Georgia, USA 30309; and in the case of Customer to the address provided for legal notices in the Customer Order.
19. Assignment. Each Party agrees that it will not assign this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld or delayed, provided that either Party may assign this Agreement without prior written consent to: (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of the stock or assets of such Party, or (iii) a successor by merger. Any attempted assignment or transfer in violation of this Section 19 will be void.
20.1. The Parties intend that there will be no third-party beneficiaries under this Agreement.
20.2. Each Party agrees that it will comply with all Applicable Laws relating to the control of imports and exports of commodities and technical data, use or remote use of software and related property, or registration of this Agreement that may apply in the United States or in any other jurisdiction in which the Services will be located or from which the Services will be accessed under this Agreement, including, but not limited to, the Export Administration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of State, and the Enhanced Proliferation Control Initiative. Customer will not, without prior written consent of the office of Export Administration of the U.S. Department of Commerce (if required), or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any part of the Services or Confidential Information to any country (“Restricted Nation”), person, or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group, or organization on the U.S. Department of Treasury's Office of Foreign Assets Control's list of Specially Designated Nationals or the U.S. Department of Commerce's Bureau of Export Administration's List of Denied Persons, as each may be amended from time to time.
20.3. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents, and neither Party has the authority to bind the other Party in any respect whatsoever.
20.4. Nothing in this Agreement restricts a Party's right to contract with any third party to provide products and/or services similar to or identical to the Services provided under this Agreement.
20.5. This Agreement, and any attachments and schedules attached hereto constitute the Parties’ entire agreement with respect to their subject matter and supersede any prior or contemporaneous agreements, written or oral, relating thereto. To the extent there is any conflict among the terms of this Agreement and the applicable Customer Order, such conflict will be governed in the following order: (1) the terms of the Customer Order, solely to the extent also signed by FullStory; (2) the DPA; and then (3) this Agreement and any applicable addenda, the terms of which are incorporated into the Customer Order by reference.
20.6. No modification of this Agreement will be effective unless made in accordance with Section 23 below.
20.7. Neither Party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third-party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a Party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event will extend the Customer Order Term for reasonable periods of time as determined by the parties in good faith.
20.8. If any provision of this Agreement is deemed to be illegal, invalid, or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
20.9. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement. This Agreement is the result of negotiations between sophisticated commercial entities; accordingly, the parties waive any rule of construction dictating that ambiguities in this Agreement be construed against the drafter.
20.10. This Agreement may be executed in counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument. Electronic execution and delivery of this Agreement is legal, valid, and binding execution and delivery for all purposes.
20.11. This Agreement, and all matters arising directly or indirectly from this Agreement, will be governed by and construed in accordance with the laws of Delaware. Each Party hereby submits to the exclusive jurisdiction of the courts of Delaware over any dispute arising out of or in connection with this Agreement. Each Party irrevocably waives any objection which it may have now or later to proceedings being brought in the courts of Delaware and any claim that proceedings have been brought in an inconvenient forum. Each Party further irrevocably agrees that a judgment in any proceedings brought in the courts of Delaware shall be conclusive and binding on each Party and may be enforced in the courts of any other jurisdiction.
21. Definitions. Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 21.
“Acceptable Use Policy” means FulLStory’s standard acceptable use policy available at https://www.fullstory.com/legal/acceptable-use/, as updated from time to time.
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
“Applicable Law” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under the Agreement.
“Applicable Data Protection Laws” means all Applicable Laws relating to the processing of Personal Data, security and privacy.
“Customer” means an entity that has purchased an Internal Use Subscription to Services through Reseller or a Managed Service Provider and entered into a Customer Order.
“Customer Data” means any content, data, information, or material that is collected by, submitted to, or stored by the Services or otherwise provided to FullStory by or on behalf of Customer, including, but not limited to, Personal Data.
“Customer Order” means a completed agreement for Services between Reseller or a Managed Service Provider and Customer that references this Agreement.
“Customer Order Term” means, with respect to each Customer Order, the subscription term for the Services specified in the applicable Customer Order.
“Effective Date” means the subscription start date noted on the Customer Order.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Internal Use Subscription” means a subscription to the Services that permits Customer to access and use the subscribed Services solely for Customer’s own internal business operations.
“Managed Service Provider” means a partner of FullStory that provides software, products, services and support to its own third-party customers, including the access, use, management and support of the Services on behalf of a Customer, as applicable.
“Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, first and last name, home address, billing address, or other physical address, email address, telephone number, and Sensitive Data, if any.
“Reseller” means a party that is authorized by FullStory to resell subscriptions to the Services to Customer pursuant to a Partner Contract.
“Security Overview” means FullStory’s standard security policy, available at https://help.fullstory.com/hc/en-us/articles/360020624254-Security-Overview, as updated from time to time.
“Sensitive Data” means any Personal Data or end-user data that requires a heightened degree of protection by applicable law. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information, or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted requiring heightened standards for data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act, the Gramm-Leach-Bliley Act, and special categories of data as defined in the General Data Protection Regulation.
“Services” means the software applications and APIs provided by FullStory via http://fullstory.com and/or other designated websites as described in the User Guide, as described in a Customer Order.
“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.
“User Guide” means the online user guide for the Services available at help.fullstory.com, as updated from time to time.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to the Services have been purchased via a Customer Order, and who have been supplied user identifications and passwords by Customer (or by FullStory, at Customer’s request). Users may include Customer’s employees, consultants, contractors, agents, or third parties with whom Customer transacts business.
22. Changes to the Agreement. FullStory may modify this Agreement at any time by posting a revised version at https://www.fullstory.com/legal/reseller-pass-through-terms/, which modifications will become effective upon the renewal of a Customer Order, if any. In any case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew.