FullStory Terms and Conditions
Master Services Agreement
Last Updated: December 18, 2023 (click here to view the prior version, last updated June 4, 2020)
This Master Services Agreement, including any exhibits, policies, or addenda attached hereto or referenced herein (the “Agreement”) is entered into between the Parties and contains the terms and conditions that govern access to the Services, and is a contract between FullStory, Inc., a Delaware (USA) corporation (“FullStory”), and you or the entity or organization that you represent (“Customer”), and, unless otherwise agreed by the Parties in writing, becomes binding and effective on Customer upon the earlier of: (i) Customer’s signature of an Order Form; (ii) Customer’s or its User’s access and use of the Services; or (iii) Customer’s or its User’s clicking of an “I Accept,” “Sign Up” or similar button or checkbox referencing this Agreement (“Effective Date”). Capitalized terms not otherwise defined in this Agreement have the respective meanings assigned to them in Section 1.
If you are using the Services on behalf of an entity or organization: (a) all references to “Customer ” are to that entity or organization, (b) you represent that you are at least eighteen (18) years of age, or have otherwise reached the age of majority where you reside, and (c) you represent that you have the right, power, and authority to enter into this Agreement on behalf of Customer.
1 Definitions. In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
1.1 “Acceptable Use Policy” means FullStory’s Acceptable Use Policy, currently available at https://www.fullstory.com/legal/acceptable-use.
1.2. “Affiliate” 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.
1.3. “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.
1.4. “Applications” means Customer’s website(s), native applications, and/or any other digital properties, channels, or systems where Customer uses the Services.
1.5. “Customer Data” means End-User Data and/or Account Data that Customer provides to FullStory as part of the Services.
1.5.1. “Account Data” means information about Customer that Customer provides to FullStory to provision access for its Users, such as first and last name, user name, and email address. Customer will ensure that all Account Data is current and accurate at all times during the applicable Subscription Term.
1.5.2. “End-User Data” means all content, data, information, and/or material that are obtained through the Customer’s use of the Services. Customer has sole control to determine the types and amounts of such content, data, information, and/or materials that will be processed through the Services, including any Personal Data that may be included.
1.6. “Data Processing Addendum” or “DPA” means the Data Protection Addendum, currently available at https://www.fullstory.com/legal/form-of-standard-dpa/, or such other data protection agreement that the Parties have otherwise agreed to in writing.
1.7. "Intellectual Property Rights” means patents, trademarks, copyrights, trade secrets, mask works, and other intellectual property or proprietary rights.
1.8. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
1.9. “Order Form” means an applicable order form describing the Services to be provided to Customer which is: (a) executed by FullStory and Customer (or, subject to Section 2.1, an Affiliate), or (b) if Customer elects to use a PO, in compliance with Section 10.3.
1.10. “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, sent to FullStory via the Services.
1.11. “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.
1.12 “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 an Order Form and as updated from time to time, as well as any implementation, consulting, training, or such other ancillary service that may be specified in an Order Form or mutually executed statement of work.
1.13 “Subscription Term” means the length of time for which Customer will have access to the Services, as set forth in an applicable Order Form and including any Subscription Renewal Term.
1.14 “User Guide” means the online user guide for the Services available at help.fullstory.com, as updated from time to time.
1.15. “Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to the Services have been purchased via an Order Form, 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.
2. Access to the Services.
2.1 Services Access Grant. Subject to the terms and conditions of this Agreement, including the Order Form, and solely during the Subscription Term set forth in the applicable Order Form, FullStory grants to Customer and its Affiliates a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as set out in Section 18 below), limited right to access and use the Services (as such Services may be modified, revised, and updated in accordance with this Agreement) to collect and analyze data on Applications, solely for Customer’s own internal business purposes. Subject to FullStory’s acceptance, Customer’s Affiliates may purchase and use the Services subject to the terms of this Agreement by executing Order Forms 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 Order Form(s); provided, however, that Customer will remain liable to FullStory for the acts and/or omissions of its Affiliates hereunder. Each such Affiliate agrees to be bound by this Agreement. Where an Affiliate of Customer has not entered into an Order Form or other separate agreement directly with FullStory, Customer may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Services under an existing Order Form(s) between Customer and FullStory. In such cases, references to “Customer” in the applicable Order Form and this Agreement will be deemed references to both Customer and the Participating Affiliate. Customer and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Form(s) hereunder. As between FullStory and Customer, Customer accepts full liability for the acts and omissions of its Participating Affiliates.
2.2 Agency Usage. If Customer is accessing the Services on behalf of Customer’s own customers (each an “Agency End Customer”), (i) Customer is responsible for each Agency End Customer’s acts and omissions, including compliance with the terms of this Agreement; (ii) Customer will not misrepresent or make any inaccurate or fraudulent representations about FullStory or the Services to Agency End Customer(s); (iii) Customer will ensure that each Agency End Customer is bound to the terms and conditions located at https://www.fullstory.com/legal/reseller-pass-through-terms/ and the DPA located at https://www.fullstory.com/legal/form-of-standard-dpa/; and (iv) Customer will notify FullStory of each new Agency End Customer by providing their full legal entity name and contact information via email to firstname.lastname@example.org. For purposes of clarification, FullStory will provide support services directly to Customer, and Customer is responsible for coordinating with any Agency End Customer(s) around issues requiring support. FullStory may request changes to this Section 2.2 from time to time, and Customer agrees to negotiate such provisions in good faith. If Customer and FullStory are unable to reach agreement on such changes, FullStory may terminate this Agreement and/or any related Order Forms upon notice to Customer, provided that in the event of such termination, FullStory will provide a pro rata refund to Customer of any pre-paid and unused Fees.
2.3 Professional Services.
2.3.1 FullStory may provide configuration, implementation support, integration assistance, or other professional services (“Professional Services”) to Customer during the Term. FullStory may use third-party suppliers and subcontractors (collectively, the “ProServ Subcontractors”) for performance of the Professional Services, provided that FullStory will remain responsible for compliance by any such ProServ Subcontractors with the terms of this Agreement and for the acts or omissions of any such ProServ Subcontractors to the same extent as FullStory would be liable for its own acts or omissions under this Agreement. Customer hereby authorizes FullStory to provide access to the ProServ Subcontractors in order to enable the provision of the Professional Services.
2.3.2 To the extent that FullStory and/or the ProServ Subcontractors create reports or other works in the course of providing the Professional Services (the “FS Materials), Customer may use the FS Materials in connection with the Services, solely for Customer’s own internal business purposes. As between the parties, FullStory owns and will retain ownership in and to the FS Materials, together with all associated Intellectual Property Rights and modifications or derivative works thereof (excluding any of Customer’s Confidential Information or Customer Materials (as defined below) incorporated into the FS Materials).
2.3.3. Customer agrees to provide FullStory and/or the ProServ Subcontractors with reasonable information and assistance to facilitate performance of the Professional Services and acknowledges that performance of the Professional Services will be excused until such information and assistance are provided. Customer hereby grants to FullStory and/or the ProServ Subcontractors a limited right to use any material (excluding Customer Data) provided to FullStory and/or the ProServ Subcontractors in connection with the Professional Services (the “Customer Materials”) solely for the purpose of performing the Professional Services, or as set forth in this Agreement. As between the parties, Customer owns and will retain ownership in and to the Customer Materials, together with all associated Intellectual Property Rights and modifications or derivative works thereof (excluding any of FullStory’s Confidential Information or FS Materials incorporated into the Customer Materials).
3.1 Customer Data. By submitting Customer Data to the Services, Customer hereby grants to FullStory and its Affiliates a non-exclusive, non-transferable, royalty-free, fully-paid license to process and use Customer Data during the Subscription Term solely in order to provide the Services and/or Professional Services to Customer and to monitor, develop, and improve the Services and/or Professional Services provided to Customer. Customer, not FullStory, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use all Customer Data.
3.2 Privacy Configuration. As between Customer and FullStory, Customer is solely responsible for how the Services are configured on Customer Applications, including for any Customer Data collected as a result of that configuration. Customer will ensure that its collection, provision, and use of Customer Data complies with all Applicable Laws, rules, and regulations. Customer must configure the Services to prevent the collection, transmission, or processing of any Sensitive Data and must use reasonable efforts to limit the inclusion of other Personal Data in Customer Data to the amount that is directly relevant and necessary to Customer’s use of the Services. If Customer discovers that any 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.
3.3. Usage Data. Customer agrees that FullStory may collect and analyze Usage Data, and FullStory may (during and after the Subscription Term) use such information and data solely in order to improve, train, modify, support, and operate the Services and for other development, benchmarking, analysis, analytics, research, marketing, machine learning, diagnostic, and corrective purposes in connection with the Services. "Usage Data" means compiled statistical information and data regarding Customer’s use of the Services that is not identifiable to any person or entity, and insights generated or derived therefrom, including for example, compiled data relevant to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). FullStory will not disclose or sell to any third party any Usage Data that reveals or discloses Customer’s Confidential Information.
3.4 Data Processing Agreement. Unless the Parties agree otherwise, FullStory’s standard DPA, available at https://www.fullstory.com/legal/form-of-standard-dpa/, will apply to Customer’s use of the Services. Each Party agrees to comply with the terms of the DPA, which will be incorporated into this Agreement by reference. Execution of this Agreement and/or any Order Form will be deemed execution of the DPA and the SCCs (as defined in the DPA) incorporated by reference thereto. 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. To the extent that there is any conflict between the terms of this Agreement and the DPA, the terms of this Agreement will govern.
3.5 Security. Each Party has obligations with respect to the security of the Services and End-User Data. Taking into account the nature and types of Customer Data, FullStory will maintain appropriate administrative, physical, and technical safeguards in accordance with industry standard practice to protect and secure the Services and the confidentiality and integrity of Customer Data, including those safeguards outlined in FullStory’s current Security Policy, available at https://www.fullstory.com/resources/security-policy/ (“the Security Policy”). FullStory may update or modify the Security Policy from time to time, provided that such updates or modifications do not result in the material degradation of the overall security of the Services during the Term.
3.6 Legal Holds. If Customer requests that FullStory retain any specific or general categories of Customer Data for a defined or undefined period of a time as a result of any anticipated or active claims by or against Customer, then Customer will pay any additional costs for such retention beyond the retention periods agreed to in an applicable Order Form.
4.1. Confidential Information. 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 and/or Professional Services, as well as all non-public user-visible aspects of the Services. Customer’s Confidential Information includes information provided by Customer to FullStory to enable the provision of the Services, as well as all End-User Data.
4.2. Non-Use. 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 Discloser 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 Form to perform work in connection with this Agreement and who are subject to written confidentiality obligations at least as protective as those in this Agreement.
4.3 Exceptions. 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 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 4 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).
4.4. Return of Confidential Information. 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 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 4.4.
4.5. Redundancy. 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 is necessary to demonstrate to the other party or any regulatory authority Recipient’s compliance with this Agreement or any Applicable Law or regulation; 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 will return or destroy such information as set forth above.
4.6. Equitable Remedies. The parties acknowledge that disclosure or use of the other party’s Confidential Information in violation of the Agreement may cause irreparable harm to Discloser for which monetary damages may be an inadequate remedy and difficult to ascertain. Each party agrees that Discloser will have the right to seek injunctive or other equitable relief for any violation of this Section 4 by Recipient (without the need to pay any bond), in addition to any other rights and remedies that Discloser may have at law.
5. Customer Obligations. Customer is responsible for obtaining, maintaining, and managing any equipment and ancillary services needed to connect to, access, or otherwise use the Services and/or the Professional Services, including, without limitation, computer networks, modems, hardware, servers, software, operating systems, networking, web servers, and the like, and is solely responsible for maintaining the security thereof. Except as permitted under this Agreement or as required by law, Customer will not, and will not permit or encourage anyone else, including its Users, to:
(i). license, sublicense, sell, resell, transfer, assign (other than as provided in Section 18 below), distribute, use a service bureau or timeshare, or otherwise commercially exploit or make the Services available to any third party in any way, including as a part of an unauthorized managed services offering;
(ii). disassemble, decompile, reverse engineer, or otherwise attempt to access or 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 or Professional Services in order to (a) build a similar or 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) Malicious Code;
(vi). attempt to gain unauthorized access to the Services or its related systems or networks;
(vii). access the Services or Professional Services if Customer is a direct competitor of FullStory, unless FullStory has agreed in writing;
(viii). use the Services or Professional 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 Professional Services; or
(x). collect, capture, or use the Services or Professional Services on an Application that is not under Customer’s direct ownership (including via browser extension) without (a) consent from the owner of the Application or (b) consent from the data subject whose data is collected or captured by the Services;
(xi). harass or intentionally interfere with another FullStory customer’s use or enjoyment of the Services or interfere in any manner with the operation of the Services or the network used to operate the Services;
(xii). use the Services to send spam or otherwise duplicative or unsolicited messages in violation of Applicable Law; or
(xiii). use the Services or Professional Services in violation of applicable local, state, national, and foreign laws, treaties, rules, and regulations, including those related to data privacy.
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. Any use of the Services by Customer in violation of the Agreement that, in FullStory’s reasonable judgment, threatens the security, integrity, or availability of FullStory’s services or that of its other customers, may result in FullStory immediately suspending the Services; however, FullStory will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
6. Beta Features. From time to time, FullStory may provide Customer with the option to use Beta Features. 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 or 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.
7. Support. Subject to the terms and conditions of this Agreement, FullStory will maintain and support the Services in accordance with the terms and conditions set forth in FullStory’s standard maintenance and support policy located at https://help.fullstory.com/hc/en-us/articles/19483159822359-FullStory-Support-Policy-and-Service-Level-Agreements (“Support Policy”) during the term of the applicable Order Form, at no additional charge to Customer. This Support Policy is subject to change at FullStory’s discretion; however, such policy changes will not result in a material reduction in the level of support services provided during the period for which fees for the applicable Services have been paid. FullStory will provide Customer, at no additional charge, with all periodic modifications, revisions, and updates for the elements of the Services ordered by Customer which FullStory incorporates into the Services and makes available to its general customer base; provided that such updates will not materially degrade the functionality of the Services. Customer may also subscribe to additional, separately priced modules as and when released by FullStory. FullStory may modify or discontinue any features of the Services at any time, in its sole discretion. Customer will provide FullStory with sufficient data and assistance with respect to any reported issue and will reasonably cooperate with FullStory in any support request.
8. Intellectual Property Ownership.
8.1. FullStory IP. Except for the limited right to access and use the Services under this Agreement and the applicable Order Form, Customer acknowledges and agrees that, as between the parties, FullStory (or its licensors) has and will retain any and all right, title, and interest in and to the Services, any software utilized to perform the Services or the Professional 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 any Usage Data and all Intellectual Property Rights associated with any of 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. 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. Customer IP. 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.
8.3. Feedback. If Customer provides FullStory with any feedback or suggestions about the Services or Professional Services, the FullStory Products, or FullStory’s business operations (the “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.
9. Payment of Fees.
9.1. Order Forms. This Agreement sets forth the terms pursuant to which Customer may access and use the Services in connection with one or more Order Forms on a subscription basis. The Subscription Term will commence on the Subscription Start Date reflected on the Order Form(s) and will continue for the Subscription Length reflected on the Order Form(s). Unless otherwise provided in an Order Form, (i) each Order Form will automatically renew for one-year periods (each a “Renewal Subscription Term”) unless either Party gives written notice to the other to terminate the Order Form not less than ninety (90) days before the end of the Initial Subscription Term or any Renewal Subscription Term thereof (as applicable), in which case such Order Form will terminate at the end of the then-current Initial Subscription Term or Renewal Subscription Term (as applicable); and (ii) Fees (as defined in this Section) may be increased effective as of the start date of each Renewal Subscription Term, such increase not to exceed 7%; provided, however, that the features and quantities of the Services Customer elects for such renewal period are the same as those reflected in the applicable Order Form (for purposes of clarification, any additional features or quantities will be subject to FullStory's then-current pricing). Termination of any Order Form will not affect any other Order Forms.
9.2. Fees. Customer will pay FullStory the fees set forth in an applicable Order Form (“Fees”). All Fee changes will be made prospectively and any Services that have been pre-purchased will not be affected by the change in Fees. FullStory will invoice Customer as set forth in the applicable Order Form. Except as otherwise stated on an Order Form: (i) all Fees will be paid in advance on an annual basis; (ii) all Fees will be paid in United States Dollars (USD); (iii) Fees for Services include standard Support at no additional charge; (iv) FullStory will not bear the cost of Customer’s transaction fees related to this Agreement; and (v) the Fees will not increase during the Initial Subscription Term (provided that quantities and features elected by Customer remain the same).
9.3. Invoices and Purchase Orders. Each invoice will be due thirty (30) days from the date of the invoice, except for any amounts subject to a good faith dispute by Customer. Customer agrees to notify FullStory within fifteen (15) days after receipt of an invoice if there are any disputed amounts. The Parties will endeavor in good faith to resolve any dispute within fifteen (15) days of the date of notice of such dispute. All undisputed amounts past due in excess of fifteen (15) days, without limiting FullStory’s other rights and remedies: (i) FullStory will be permitted to charge a fee of 2% of the outstanding balance per month or the highest amount allowed by law, whichever is lower; (ii) Customer will be responsible for any reasonable costs FullStory incurs to collect the debt owed; and (iii) if such failure continues for thirty (30) days or more, FullStory may suspend any and all Services and/or Professional Services until all Fees owed are paid in full. Upon request, FullStory will reference Customer’s purchase order (“PO”) number on its invoices and Customer acknowledges that it is Customer’s responsibility to provide accurate PO information to FullStory upon the execution of the relevant Order Form. Customer’s failure to provide FullStory with the corresponding PO will not relieve Customer of its obligations to pay the Fees to FullStory pursuant to Section 9.2 above. The provisions of this Agreement will prevail over the terms and conditions of any Customer-issued PO or other ordering documents, which will have no force and effect, even if FullStory references such PO on its Order Form, accepts, or does not otherwise reject such PO or other ordering document.
9.4. Taxes. Unless otherwise required by Applicable Laws, Customer will make all payments under this Agreement free and clear of, and without any, tax deduction (such as withholding tax). The Fees provided on the Order Form do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, excise, sales, use, or withholding taxes, export fees, import fees, customs duties, and similar charges, if applicable, assessable by any jurisdiction whatsoever, except for employment taxes and other taxes based on FullStory’s net income and property (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form. If FullStory has the legal obligation to pay or collect Taxes for which Customer is responsible, FullStory will invoice Customer for taxes owed and Customer will pay that amount in addition to the Fees owed, unless Customer provides FullStory with a valid tax exemption certificate authorized by the appropriate taxing authority. FullStory is solely responsible for taxes assessable against FullStory based on its income, property, and employees.
10. Term and Termination.
10.1. Term. The term of this Agreement will commence on the Effective Date and continue for as long as any Order Form referencing or incorporating this Agreement remains valid and in effect, or until terminated pursuant to the terms of this Agreement (the “Term”).
10.2. Termination for Material Breach. Either party may terminate this Agreement or any Order Form 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 or any Order Form 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 Customer a pro rata portion of any pre-paid and unused Fees.
10.3. Termination for Insolvency. Either party may terminate this Agreement and all Order Forms 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. Post-Termination Obligations. Upon expiration or termination of this Agreement for any reason, FullStory will promptly terminate the Services and will make any Customer Data available to Customer subject to any applicable retention periods provided in an applicable Order Form. After such period, FullStory will have no obligation to maintain or provide any End-User Data and may thereafter, unless legally prohibited, delete all End-User 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. 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.
10.5. Survival. Sections 1, 3.3, 4, 8, 9, 10.4, 10.5, 12, 13, and 16 through 20, and the provisions of Section 3 regarding ownership of Customer Data and the protection and restriction of Customer Data in FullStory’s possession or under its control, will survive any termination or expiration of this Agreement; all other rights and obligations will be of no further force or effect.
11. Representations & Warranties and Disclaimers.
11.1. Mutual Representations and Warranties. Each party represents and warrants that: (i) it has full right, power, and authority to enter into this Agreement; (ii) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (iii) this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
11.2. FullStory Representations and Warranties. FullStory warrants that (a) it will provide the Services and any Professional Services in a manner consistent with general industry standards reasonably applicable to the provision of such Services or Professional Services and that the Services will perform substantially in accordance with the User Guide under normal use and circumstances; and (b) it uses industry standard anti-malware technology to prevent the introduction of Malicious Code into Customer's systems via the Services. Customer’s sole and exclusive remedy and FullStory’s sole obligation for a breach of the warranties in subsection 11.2(a) will be the correction or re-performance of the nonconforming Service by FullStory. If, after reasonable efforts, neither remedy is commercially available, FullStory may cancel this Agreement and refund to Customer a pro-rata portion of the Fees (i.e., all Fees that have been paid but not used by Customer from the date of notice by Customer of such breach).
11.4. Disclaimer. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FULLSTORY DOES NOT WARRANT THAT THE SERVICES OR THE PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND 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.
12.1. FullStory Indemnification of Customer. FullStory will defend, indemnify, and hold harmless Customer, its Affiliates, and their 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 (i) FullStory’s gross negligence or willful misconduct; and (ii) a claim that the FullStory Products or Customer’s use thereof infringes or violates any U.S. 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 pursuant to (ii), 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 law or regulation of any governmental authority or self-regulatory agency or authority applicable to Customer; or (d) the nature, origin, or content of End-User Data that violates Applicable Law or the terms 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 refund to Customer a prorated portion of any prepaid fees allocable to the period after such termination. 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.
12.2. Customer Indemnification of FullStory. Customer will defend, indemnify, and hold harmless FullStory, its Affiliates, and their respective directors, officers, employees, representatives, and agents (the “FullStory Indemnified Parties”) from and against any and all Third-Party Claims arising out of or relate to: (i) Customer’s gross negligence or willful misconduct, and/or, (ii) the nature, origin, or content of End-User Data.
12.3. Procedure for Handling Indemnification Claims. As a condition to a party’s obligations under Sections 12.1 or 12.2, 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. Limitation of Liability.
13.1. 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.
13.2. EXCEPT FOR (i) A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, (ii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, (iii) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 5, (iv) DAMAGES RESULTING FROM DEATH, BODILY INJURY, OR PHYSICAL DAMAGE TO TANGIBLE REAL OR PERSONAL PROPERTY CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE, AND (v) CUSTOMER’S PAYMENT OBLIGATIONS. 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 GREATER OF I) THE TOTAL FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, OR II) $1,000 (THE “GENERAL LIABILITY CAP”).
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. Insurance. FullStory agrees to maintain, throughout the Subscription Term, industry standard insurance coverage in amounts appropriate to the nature of its business. All insurance policies required under this Section will 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 its most recent certificates of insurance. Nothing in this Section is intended to waive, restrict, or limit the liability of either Party under this Agreement.
15. 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.
16. Dispute Resolution.
16.1. Dispute Resolution. The parties will attempt in good faith to resolve any issues relating to this Agreement, the Services, the Professional 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 4.6 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. Trial by jury is hereby waived. In any action or proceeding to enforce rights or obligations under this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, court costs, and disbursements.
16.2. International Dispute Resolution. If Customer is located outside of the United States, then any dispute, claim, or any non-payment (any of which will be treated as a dispute) whether present or future, whatsoever between the parties under, arising out of, relating to, or in connection with this Agreement will be settled by binding and mandatory arbitration in accordance with the London Centre for International Arbitration’s arbitration rules by a sole arbitrator mutually appointed by the parties and both parties consent to such mandatory arbitration. Either party may serve the other party with a notice in writing specifying the existence and nature of the dispute and the intention to refer the dispute to arbitration. If the parties are unable to agree on a sole arbitrator within 30 days of such notice, each Party will appoint an arbitrator, and the arbitrators so appointed will jointly appoint the third arbitrator. The award determined through arbitration will be final and binding. The venue of such arbitration will be in London, England. The proceedings will be conducted in English.
17. Notices. Except as specifically set forth in this Agreement or an Order Form, 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 United States mail; or (d) (iii) one (1) business day after being sent by email to the email address provided in the signature block (provided that any notice of indemnification pursuant to Section 12 must be delivered to the physical address of the other Party after any email notice is provided). All notices must be sent to the respective addresses set forth on the signature page to this Agreement or to such other address as may be provided by either party to the other party from time to time in writing.
18. 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 18 will be void. This Agreement will inure to the benefit of and be binding upon any successor or permitted assigns of either Party.
19.1. Disclaimer. The Services are designed to integrate with optional services and tools made available by third party service providers (“Integrations”), but Customer acknowledges that FullStory (i) may not have control over how the Services integrate with such Integrations, and (ii) does not control the operation of those Integrations. Any acquisition by Customer of any Integration is solely between Customer and the applicable Integration provider and FullStory does not warrant, support, or assume any liability or other obligation with respect to such Integrations. Accordingly, if applicable, Customer acknowledges and agrees that (a) FullStory is not responsible for the performance of such Integrations, including, without limitation, their use or treatment of Customer Data therein; (b) FullStory is not responsible or liable for any content or other materials generated by such Integrations; (c) FullStory is not responsible for any technical inability to access Customer Data in such Integrations; and (d) FullStory will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Integrations.
19.2. Rights Grant. If Customer chooses to integrate or interoperate Integrations with the Services in a manner that requires FullStory to exchange Customer Data with such Integration or Integrations provider, Customer: (i) grants FullStory permission to allow the Integration and/or Integration provider to access Customer Data and information about Customer’s usage of the Integrations as appropriate and necessary to enable the interoperation of that Integration with the Services; (ii) acknowledges that any exchange of data between Customer and any Integration is solely between Customer and the Integration provider and is subject to the Integration provider’s terms and conditions governing the use and provision of such Integration (the presentation and manner of acceptance of which is controlled solely by the Integration provider); and (iii) agrees that FullStory is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access to such data by Integrations or Integration providers. Customer acknowledges sole responsibility for and assumes all risk arising from Customer’s use of any third-party websites or resources, including the Integrations.
20.1. No Third-Party Beneficiaries. The parties intend that there will be no third-party beneficiaries under this Agreement.
20.2. Export Laws. Each party agrees that it will comply with all laws, administrative regulations, and executive orders 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 or Professional Services will be located or from which the Services or Professional 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. If Customer is named on any official sanctions list maintained by a government agency or other official authority, or if FullStory is otherwise prohibited from providing the Services or Professional Services (in part or in whole) to Customer, FullStory may immediately terminate any Order Form and will not be obligated to continue to provide the Services or Professional Services to Customer.
20.3. Anti-Bribery and Anti-Corruption. Each Party will comply with Applicable Law concerning bribery and corruption. As of the Effective Date and the date of each Order Form, each Party represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employee, agent, or representative of the other Party or its Affiliates in connection with this Agreement. Each Party agrees to promptly notify the other Party if it learns of any violation of the foregoing. This representation is not intended to include reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.
20.4. Relationship. 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.
20.5. No Exclusivity. 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 and/or Professional Servies provided under this Agreement.
20.6. Entire Agreement. This Agreement, the applicable Order Form, and any attachments and schedules attached thereto 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 Order Form, such conflict will be governed in the following order: 1) the terms of the Order Form; and then 2) this Agreement and any applicable addenda, the terms of which are incorporated into the Order Form by reference. No different or additional terms or conditions contained in or linked from any purchase order or other instrument issued by Customer and purporting to govern Customer’s use of the Services or Professional Services will be binding on the parties, even if signed and returned, unless the parties expressly agree in a writing, separate from such purchase order, to be bound by such terms and conditions.
20.7. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement and no course of dealing between the parties will be construed as a waiver of any subsequent breach of this Agreement.
20.8. Force Majeure. Neither party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations) if prevented from doing so by a cause or causes beyond its reasonable control. 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, Internet slow-downs or failures, computer hackers, pandemics, all worldwide lawyers spontaneously quitting at the same time, 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 due dates or time schedules for reasonable periods of time as determined by the parties in good faith.
20.9. Severability. 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.
20.10. Headings. 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.
20.11. Counterparts. 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.
20.12. Governing Law. 20.12.1. Governing Law (US Customers). This subsection only applies if Customer is located in the United States. This Agreement, and all matters arising directly or indirectly from this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of Delaware, and without regard to the U.N. Convention on the International Sale of Goods, and will be litigated exclusively in the federal or state courts of Wilmington, Delaware; the parties consent to personal jurisdiction and venue in those courts. 20.12.2. Governing Law (International Customers). This subsection only applies if Customer is not located in the United States. This Agreement, and all matters arising directly or indirectly from this Agreement, will be governed by and construed in accordance with the laws of England and Wales, without giving effect to its choice of law rules, and without regard to the U.N. Convention on the International Sale of Goods, and will be litigated exclusively in the courts located in London, England; the parties consent to personal jurisdiction and venue in those courts.
20.13. Changes to this Agreement. FullStory may modify this Agreement from time to time in its sole discretion. Unless FullStory indicates otherwise, modifications will be effective as of the date of renewal of an Order Form referencing this Agreement.