If you're looking for the general Partner Terms and Conditions that govern your participation in the FullStory Partner Program, please see below.
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Partner Terms and Conditions
PLEASE READ THESE FULLSTORY PARTNER PROGRAM TERMS, THE FULLSTORY PARTNER PROGRAMCONTRACT, AND THE PARTNER PROGRAM GUIDE (collectively, the “Agreement”) CAREFULLY. This Agreement governs your participation in the FullStory Partner Program (as defined below) and is an agreement between FullStory, Inc., a Delaware corporation (“FullStory”) and you or the entity you represent (“you”, or“Partner”). By submitting an application to participate in the FullStory Partner Program, you accept this Agreement and agree to be bound by the terms set forth herein. This Agreement will become effective on the date when you are accepted into the FullStory Partner Program via email confirmation from FullStory (the “Effective Date”). FullStory and Partner are sometimes referred to individually as a “Party” and collectively as the “Parties.”
1.1. “Actively Participate” means Partner’s active engagement in the introduction, ongoing sales development and/or closing of a Lead in the sales process, as determined by FullStory in its good faith discretion.
1.2. “Commissionable Opportunity” means a Lead accepted by FullStory pursuant to Section 3 below.
1.3. “Customer” means a FullStory customer that has subscribed to the FullStory Services.
1.4. “Expansion” means instances where an existing FullStory Customer expands their usage (e.g. expansion of yearly order size or volume) by switching to a higher-level plan, expanding its yearly commitment by adding new users, or subscribing to additional FullStory Services.
1.5. “FullStory Materials” means any collateral materials describing the FullStory Services provided to Partner by FullStory for use in connection with this Agreement.
1.6. “FullStory Partner Program” means FullStory’s partner program, as described in this Agreement.
1.7. “FullStory Partner Program Contract” means any ordering document between FullStory and Partner setting forth additional terms (such as Referral Fees) to this Agreement.
1.8. “FullStory Services” means FullStory’s software platform, products, and services, provided through FullStory’s website, www.fullstory.com or as described in the user guide available at help.fullstory.com. FullStory’s services include hosted “software as a service”, applications, application programming interfaces, or other services provided by FullStory for use by a FullStory Customer, as listed in one or more Order Forms.
1.9. “Leads” means (i) a potential or prospective Customer identified by Partner, or (ii) a potential opportunity to complete an Expansion involving the provision of additional FullStory Services to an existing Customer, as applicable.
1.10. “Net Revenue” means the software licensing fees and usage-based fees for FullStory’s Services received by FullStory for eligible FullStory Services set forth in the Order Form(s) associated with a successfully closed Commissionable Opportunity, (i) net of any discounts, taxes payable, and subsequent refunds not due to FullStory’s invoicing error or breach, and (ii) not including fees for support, implementation, customization, training, consulting or other professional services, or third-party products or services.
1.11.“Order Form” means the ordering document (including a web-based form) entered into between FullStory and a Commissionable Opportunity for the Commissionable Opportunity’s subscription to FullStory Product(s) that sets forth the fees owed to FullStory and the term of the subscription.
1.12. “Partner Portal” means FullStory’s web-based application, if any, where Partner may access and obtain FullStory Materials and other marketing resources for the FullStory Services, submit new Leads, review a Lead’s status, and receive other technical details and support related to the FullStory Services and participation in the FullStory Partner Program.
1.13. “Partner Program Guide” means the documentation available in the Partner Portal or as otherwise provided by FullStory, and as updated from time to time, which sets forth the operational details and business policies of the FullStory Partner Program. The “Tiers and Benefits” and “Partner Requirements” sections are hereby expressly integrated into this Agreement. The remaining sections of the Partner Program Guide are for information only and are non-binding on FullStory.
1.14. “Partner Services” means, collectively, the onboarding, implementation, delivery, and ongoing managed services provided by Partner to a Customer in support of the FullStory Product.
1.15. “Referral Fees” are the fees payable to Partner as set forth in the Partner Program Guide, or as otherwise communicated via the Partner Portal or via email by FullStory.
1.16. “Referred Customer” means a Commissionable Opportunity with whom FullStory has entered into an Order Form (excluding trial agreements or paid evaluation periods of less than twelve (12) months) to provide the FullStory Services within nine (9) months from the date of FullStory’s acceptance of such Lead as a Commissionable Opportunity from Partner, unless such time period is extended by FullStory in writing.
2. Partner Program Acceptance.
2.1. Application and Acceptance. Partner must complete and submit a FullStory Partner Program application or other documents as required by FullStory in order to become a Partner. FullStory will review Partner’s application and notify Partner via email or the Partner Portal regarding whether Partner has been accepted to participate in the FullStory Partner Program.
2.2. Account Requirements. Upon acceptance of Partner into the FullStory Partner Program, Partner agrees to (i) create an account through the Partner Portal, if available, and (ii) complete any Enrollment Criteria (as defined in Section 6.4 below) in registering such an account.
3. Lead Process.
3.1. Identification of Leads; Marketing and Promotion. During the Term of this Agreement, Partner will use commercially reasonable efforts to identify Leads and to market and promote the FullStory Services to Leads. In the course of performing its obligations under this Section 3.1, Partner may provide Leads with the FullStory Materials as supplied to Partner by FullStory and as updated from time to time.
3.2. Criteria. To be eligible for acceptance by FullStory, all Leads must meet the following criteria: (a) at the time of introduction to FullStory, such Lead is not already an existing Customer of FullStory, or, for Expansions, is not already involved in discussions with FullStory relating to the sale of additional FullStory Services; and (b) except for Expansions, has not previously been submitted to FullStory by another Partner or any other third party or engaged by FullStory directly.
3.3. Lead Registration. Partner must register the Lead in the Partner Portal, if available, or via email to the FullStory partner team (“Lead Registration”). FullStory will review each Lead and notify Partner through the Partner Portal or via email whether FullStory accepts such Lead. FullStory may accept or reject such Leads in its sole, good-faith discretion. If FullStory accepts such Lead, at FullStory’s request, such Lead will become a Commissionable Opportunity, and Partner will discuss such Commissionable Opportunity with FullStory and assist FullStory in making contact with the Commissionable Opportunity by arranging an introduction, meeting, conference call, or other means of communication between FullStory and the Commissionable Opportunity.
3.4. Active Participation. Partner acknowledges that, where reasonably helpful, FullStory may request Partner to Actively Participate in the sales process after a Lead has been accepted; if Partner fails to do so, Partner will forfeit any Referral Fees with respect to such Commissionable Opportunity.
4. Partner’s Obligations and Restrictions.
4.1. Training & Certifications. Upon reasonable request by Partner, FullStory will make good-faith efforts to provide Partner with sales training focused on the marketing and promotion of the FullStory Services. In addition, FullStory may require Partner to participate in mandatory training and certification, either prior to the commencement of any Partner Services or payment of Referral Fees or from time to time (as set forth in the Partner Program Guide). FullStory may offer additional training to Partner in its sole discretion. FullStory may change any of the FullStory Services or trainings from time to time, in FullStory’s sole discretion.
4.2. Meetings. Upon FullStory’s reasonable request, Partner agrees to meet, either in person or via teleconference, to discuss the status of the relationship contemplated herein.
4.3. Obligations. Partner will, at all times during the Term of this Agreement: (i) promote and market the FullStory Services in an ethical, professional, and workmanlike manner, consistent with industry best practices, and in a manner that reflects favorably on the FullStory Services and on the good will and reputation of FullStory; (ii) ensure that Leads execute an Order Form or other customer agreement before using the FullStory Services; and (iii) include the FullStory Trademarks, as well as any intellectual property notices of FullStory, on all promotional materials related to the FullStory Services.
4.4. Restrictions. Unless separately authorized, Partner may not: (a) sell, resell, distribute, license, or sublicense the FullStory Services directly to any Lead or any other third party and will instead refer all Leads to FullStory in accordance with Section 3; (b) make any statements concerning the FullStory Services that are false, misleading, or inconsistent with the FullStory Materials or other materials (including price lists) published or otherwise supplied by FullStory from time to time; (c) make any commitments, warranties, guarantees, or misleading statements to Leads with respect to the FullStory Services, the pricing thereof, or Partner’s relationship with FullStory; (d) distribute any unsolicited bulk emails (spam) mentioning or referencing FullStory or the FullStory Services. Partner has no authority to (i) negotiate any contract for or on behalf of FullStory; (ii) represent itself as an agent of FullStory, or (iii) bind FullStory to any contract, representation, or understanding, including those concerning FullStory or the FullStory Services, or any other products or services offered by FullStory.
4.5. Representations and Warranties. Partner represents and warrants that Partner has obtained and will obtain and maintain any and all permits, licenses, authorizations, permissions, and/or certificates that may be required in any jurisdiction, by any regulatory or administrative agency or otherwise, in connection with the marketing of the FullStory Services. Partner represents, warrants, and covenants to FullStory that (i) Partner possesses the right and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder, and (ii) Partner will at all times comply with all applicable laws, rules, and regulations, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010 (together, the “Anti-Bribery Laws”). Notwithstanding anything to the contrary herein, if Partner has taken or takes an action that could constitute a violation of Anti-Bribery Laws in its dealings with Leads or otherwise, Partner will immediately notify FullStory in writing of such action or violation, and FullStory may, at its sole option, immediately terminate this Agreement without liability. Partner represents and warrants that it will, at all times, refrain from engaging in any illegal, unfair, or deceptive trade practices or unethical business practices whatsoever, whether with respect to the FullStory Services or otherwise.
5. Marketing Rights.
5.1. Marketing Rights. Subject to Partner’s continued compliance with the terms of this Agreement, FullStory grants to Partner the non-exclusive, non-transferable, and non-assignable right to market the FullStory Services to Leads during the Term. Except for the express purpose of marketing to Leads, Partner is granted no other right hereunder to market the FullStory Services.
5.2. Right to Use Trademarks. Partner acknowledges that FullStory owns all rights, title, and interest in and to its respective trade names, trademarks, service marks and logos, together with any new or revised names or materials which FullStory may adopt to identify it or any FullStory Services (the “FullStory Trademarks”). Any and all goodwill associated with the use of FullStory Trademarks by Partner will inure solely to the benefit of FullStory. Partner will be entitled to use FullStory Trademarks during the Term, solely in connection with, and solely to the extent reasonably necessary for, the marketing of the FullStory Services to Leads in accordance with the terms of this Agreement. Except for the express purpose of marketing to Leads, Partner is granted no other right hereunder to utilize the FullStory Trademarks or to market, advertise, or imply an association or relationship with FullStory, other than as contemplated hereunder. Partner will not adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly similar to the FullStory Trademarks or in such a way as to create combination marks with the FullStory Trademarks.
5.3. Prohibited Methods of Promotion. Partner agrees not to associate FullStory Trademarks with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in FullStory’s sole discretion. Partner agrees to promptly cease use of, remove, and take down content or marketing material that utilizes FullStory Trademarks or references the FullStory Services, upon FullStory’s request.
6. Referral Fees, Payment & Partner Tiers.
6.1. Referral Fees. If Partner submits a Commissionable Opportunity that results in a Referred Customer, FullStory will pay to Partner an applicable Referral Fee based on Net Revenue, according to Partner’s Tier and as set forth in in the Partner Program Guide or as otherwise communicated to Partner by FullStory from time to time. Unless otherwise agreed to by FullStory in writing, the aggregate maximum Referral Fee FullStory will pay to Partner with respect to a Referred Customer is $75,000.00 USD, as may be increased or decreased from time to time by FullStory upon written notice to Partner (including via email or the Partner Portal).
6.2. Payment. Referral Fees will be deemed to have been earned by Partner only after the payment of the Net Revenue by the applicable Referred Customer has been received by FullStory. FullStory will pay such earned Referral Fees to Partner within thirty (30) days after the end of any calendar quarter in which such Referral Fees are earned and approved by FullStory in accordance with this Agreement (the last day of such period, the “Due Date”). All payments will be made in United States dollars.
6.3. Taxes. If FullStory, its affiliates or subcontractors, or their respective employees are required to pay any taxes, or any penalties and/or interest assessed with respect to taxes, in connection with the Referral Fees paid to Partner or the activities under this Agreement, except for taxes assessable against FullStory based on its income, property, and employees (collectively, “Taxes”), such amounts will be deducted from the Referral Fees payable to Partner hereunder.
6.4. Enrollment Criteria. In order to receive Referral Fees hereunder, Partner must have submitted via email or the Partner Portal all relevant account information, all necessary tax and payment information, and any other information reasonably requested by FullStory (collectively, the “Enrollment Criteria”).
6.5. Expired Transactions. Notwithstanding anything to the contrary in this Agreement, if any of the Enrollment Criteria remain outstanding for six (6) months following the Due Date, Partner’s right to receive such applicable Referral Fees will be forever forfeited (each, an “Expired Transaction”). FullStory will have no obligation to pay Partner any Referral Fees associated with an Expired Transaction.
6.6. Benefits & Tiers. In addition to the applicable Referral Fees set forth herein, FullStory may offer certain benefits (including product and time-based promotional discounts, spiffs, bounties, commissions, and referral fees) to Partner based on the level of Partner’s participation in the FullStory Partner Program and other qualifying criteria, as set forth in the Partner Program Guide, the Partner Portal, or as otherwise provided to Partner by FullStory from time to time (each such level, a “Tier”). FullStory may, in its sole discretion, change the benefits available at, and the qualifying criteria for, each Tier from time to time and may modify or discontinue the FullStory Partner Program or any partner’s participation in it at any time. FullStory (i) reserves the right to review Partner’s Tier periodically; (ii) may raise or lower Partner’s Tier based on the Partnership Program requirements and (iii) will make commercially reasonable efforts to notify Partner of any such changes to Partner’s Tier (including via email or through the Partner Portal). If Partner elects, in its sole discretion, not to receive referral fees, Partner will remain eligible to participate in all other benefits of the FullStory Partner Program. In order to exercise the opt-out right described in the previous sentence, Partner must notify FullStory in writing by emailing such notice to firstname.lastname@example.org.
7. Definitive Agreements.
7.1. Definitive Agreements. The FullStory Services and any related products or services will be licensed or sold (as applicable) directly by FullStory to Referred Customers that enter into FullStory’s terms and conditions applicable to such FullStory Services and such other products or services, as determined by FullStory from time to time and in its sole discretion.
7.2. No Obligation. Partner acknowledges that FullStory will have unrestricted discretion with respect to the decision to enter into any definitive agreement with any Lead, including with respect to the terms and conditions thereof.
8. Intellectual Property.
8.1. Acknowledgement of Proprietary Rights. Partner acknowledges that the FullStory Services, including any changes, new releases, new versions, modifications, enhancements, improvements, adaptations, translations, and derivative works thereof and thereto (as applicable), constitute trade secrets and proprietary information and data of FullStory. Ownership of the FullStory Services, FullStory Trademarks and all other trade secrets, copyrights and other proprietary information and intellectual property rights, including the goodwill associated with such intellectual property and rights, whether or not registered by FullStory, pertaining to or used from time to time by FullStory in connection with the FullStory Services (collectively, the “FullStory IP”), will at all times remain solely vested in FullStory and its licensors, and Partner disclaims any interest in any part therein. There are no implied licenses under this Agreement. FullStory reserves all rights not expressly granted to Referral Partner by this Agreement. To the extent that Partner has any ownership right or title in or to FullStory IP, Partner hereby irrevocably and unconditionally assigns, transfers and grants to FullStory all such right and title Partner has or that may arise to the foregoing, including any associated rights of renewal and reversionary interests thereof, without further consideration. Partner will, at FullStory’s request and expense, execute and deliver such instruments and take such other reasonable actions as may be requested by FullStory to perfect, prosecute, maintain, or otherwise protect FullStory’s rights in the FullStory IP or otherwise to carry out the purpose contemplated in this Section 8.
8.2. Certain Restrictions and Obligations. To the extent that Partner is given access to any of the FullStory Services or any portion thereof, whether for training, marketing or demonstration purposes, Partner will not decompile, disassemble, or otherwise reverse engineer the FullStory Services, in whole or in part, nor utilize the FullStory Services for any purpose other than that for which such access is granted. Additional terms may apply to Partner’s access to the FullStory Services. Partner will not use FullStory Trademarks or any word, symbol, or design confusingly similar thereto, as part of its corporate name, or as part of the name of any product of Partner or in any manner or for any purpose not expressly authorized by FullStory hereunder. Partner will promptly bring to the attention of FullStory any improper or wrongful use of or challenge to the FullStory IP or any such threatened use or challenge of which Partner becomes aware in connection with its performance under this Agreement. Additionally, as applicable, Partner will:
8.2.1. neither alter, deface, erase nor obscure the trademark and copyright identifications as applied to the FullStory Services or the FullStory Materials nor vary the presentation thereof nor act in any way in relation thereto as may result in deception or confusion of the public as to the origin and identity of the FullStory Services or the relationship between FullStory and Partner;
8.2.2. promptly inform FullStory in writing of any infringement of its copyright, trademark, or other intellectual property rights, including the unauthorized use of the FullStory Services, of which Partner becomes aware in connection with its performance under this Agreement;
8.2.3. promptly inform FullStory in writing of any application by a third party for the registration of a mark in any way similar to any trademark or service mark of FullStory or of any activities relating to the presentation of other products that might amount to a passing off at law, of which Partner becomes aware in connection with its performance under this Agreement; and,
8.2.4. at FullStory’s request, do all things as may be reasonably necessary to assist FullStory, at the sole cost of FullStory, in the protection of the FullStory IP.
8.3. Feedback. If Partner provides FullStory with any feedback or suggestions related to the FullStory Services, the FullStory Partner Program, or FullStory’s business operations (the “Feedback”), FullStory may use the Feedback without restriction or obligation of any kind, and Partner irrevocably assigns to FullStory all right, title, and interest in and to the Feedback.
9. Termination of Agreement.
9.1. Term. Subject to the termination provisions set forth in this Agreement, the initial term of this Agreement will be one (1) year, commencing on the Effective Date (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term”), unless either Party notifies the other Party, in writing, of its desire not to renew this Agreement at least thirty (30) days prior to the expiration of the then-current term (the Initial Term and each Renewal Term, collectively, the “Term”).
9.2. Termination for Convenience. Either Party may terminate this Agreement without cause at any time, effective upon thirty (30) days written notice to the other Party.
9.3. Termination for Breach. Either Party may terminate this Agreement 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 breach within fifteen (15) days after receiving written notice from the other Party.
9.4. Payment of Referral Fees. Upon the termination or expiration of this Agreement other than as a result of an uncured breach by Partner, FullStory will pay all Referral Fees due to Partner, including those that become due after the effective date of termination.
9.5. Discontinuance of Use of Trademarks and FullStory Services. Upon termination or expiration of this Agreement, Partner will immediately cease to be, and to represent itself as, a FullStory Partner, and each Party will immediately discontinue any use of the Trademarks of the other Party. Any rights granted to Partner with respect to the FullStory Services pursuant to Section 8.2 or otherwise will immediately cease.
9.6. Return of Materials. Upon either Party’s written request, the other Party will immediately return all Confidential Information of the requesting Party, including all copies thereof, as well as all marketing materials of the requesting Party.
10. Disclaimer of Warranties; Limitation of Liability; Indemnification.
10.1. No Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FULLSTORY MAKES NO WARRANTIES OR REPRESENTATIONS HEREUNDER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE FULLSTORY SERVICES, THE FULLSTORY PARTNER PROGRAM, THE FULLSTORY MATERIALS, OR ANY OTHER MATTER, AND EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10.2.Limitation of Liability. TO THE FULLEST EXTENT PERMITTED 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 (i) UNDER NO CIRCUMSTANCES WILL FULLSTORY’S LIABILITY TO PARTNER FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE FULLSTORY SERVICES, THE FULLSTORY PARTNER PROGRAM, OR THE FULLSTORY MATERIALS, EXCEED THE AGGREGATE AMOUNT OF ANY REFERRAL FEES PAID TO PARTNER HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM; AND (ii) UNDER NO CIRCUMSTANCES WILL FULLSTORY BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY INCIDENTIAL, CONSEQUENTIAL, COVER, SPECIAL, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, OR ACCURACY OF RESULTS.
10.3.Mutual Indemnity. Each Party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other Party and its respective directors, officers, employees, and agents from and against any and all third-party claims for Indemnifying Party’s: (a) unlawful, fraudulent, or willful misconduct, and (b) breach of its confidentiality obligations under this Agreement.
10.4.FullStory Indemnity. FullStory will defend, indemnify, and hold harmless Partner and its respective directors, officers, employees, representatives, and agents (collectively, the “Partner 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; (ii) a claim that the FullStory Services, the FullStory Partner Program, or the FullStory Materials (collectively, the “Covered Materials”) infringe or violate any U.S. patent, copyright, or trademark right of a third party or misappropriates any U.S. trade secret of any third party; or (iii) a breach of its confidentiality obligations under this Agreement. FullStory will pay all Losses incurred by and damages against the Partner 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 Partner’s (a) unauthorized alteration of the Covered Materials; (b) use of the Covered Materials in combination with apparatus, hardware, software, or services not provided or authorized by FullStory; (c) any use of the Covered Materials by Partner that violates any law or regulation of any governmental authority or self-regulatory agency or authority applicable to Partner; or (d) use of the Covered Materials in a manner that violates 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 Covered Materials to make them non-infringing; (ii) procure any rights from a third party necessary to provide the Covered Materials; or (iii) replace the Covered Materials 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. THIS SECTION 12.1 STATES PARTNER’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.
10.5. Partner Indemnity. Partner will defend, indemnify, and hold harmless FullStory and its directors, officers, employees, representatives, and agents (the “FullStory Indemnified Parties”) from and against any and all Third-Party Claims based on an allegation: (a) of Partner’s gross negligence or willful misconduct; (b) that arises as a result of or in connection with any other arrangement or product which Partner may represent; (c) based on any promise, representation, or warranty given by Partner with respect to the FullStory Services without FullStory’s knowledge and prior written consent, including any representations and warranties regarding the FullStory Services which are not contained in FullStory’s standard terms and conditions; (d) that FullStory, under applicable tax laws or otherwise, is required to withhold for the account of Partner any sum from payments (either in cash or in kind) due Partner or is otherwise responsible for payment of Taxes; and (e) that arises as a result of or in connection with Partner’s violation of this Agreement or any applicable law, rule, or regulation.
10.6.Indemnification Procedure. As a condition to a Party’s obligations under Sections 10.4 or 10.5, 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.
11. Confidential Information; Non-Disparagement; Public Statements.
11.1.1. 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, as well as all non-public user-visible aspects of the Services.
11.1.2. 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 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.
11.1.3. 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 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 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).
11.1.4. 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, 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 4.4.
11.1.5. 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 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.
11.1.6. 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 the Disclosing Party for which monetary damages may be an inadequate remedy and difficult to ascertain. Each party agrees that the Disclosing Party will have the right to seek injunctive or other equitable relief for any violation of this Section 4 by the Receiving Party (without the need to pay any bond), in addition to any other rights and remedies that the Disclosing Party may have at law.
11.2. Non-Disparagement. Each Party agrees that, at any time following the Effective Date, it will not publish, utter, broadcast or otherwise communicating any information, misinformation, comments, opinions, remarks or any other form of communication, whether oral or written, regardless of its believed truth, to any person or entity, which is adverse to, reflects unfavorably upon or tends to disparage the other Party or the business, technology, products, prospects, financial condition or personnel of the other Party.
11.3. Public Statement. Without limiting the proprietary and confidential nature of the existence, and the terms and conditions, of this Agreement, as set forth in this Agreement, Partner agrees that it will issue no press release and make no public statements concerning this Agreement, FullStory or the FullStory Services (other than in the normal course of activities hereunder and in accordance with the terms and conditions hereof), without the express written consent of FullStory, which may be withheld by FullStory in its sole discretion. FullStory may publicly identify Partner as a partner of FullStory in its promotional materials, interviews, partner lists, and other promotional activities.
12.1. No Third-Party Beneficiaries. The Parties intend that there will be no third-party beneficiaries under this Agreement.
12.2. Compliance with Laws. Each Party agrees that it will comply with all laws, administrative regulations, and executive orders, including those 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 FullStory Services will be located or from which the FullStory 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. Partner 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 FullStory 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.
12.3. 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.
12.4. No Exclusivity. Nothing in this Agreement restricts (i) FullStory's right to contract with any third party to provide products and/or services similar to or identical to the FullStory Services; or (ii) Partner’s right to contract with any third party to participate in partnership programs similar to the FullStory Partner Program.
12.5. Entire Agreement. These FullStory Partner Program Terms, the FullStory Partner Program Contract, and the Partner Program Guide, along with any attachments and schedules attached hereto or thereto constitute the parties’ entire agreement with respect to their subject matter and supersede any prior or contemporaneous agreements, referral partner agreements, or any other general partnerships terms, written or oral, relating thereto. With the exception of any reseller or subcontractor agreements, the parties agree that any such agreements shall be null and void upon execution of the FullStory Program Contract. To the extent that there is any conflict among these FullStory Partner Program Terms, the FullStory Partner Program Contract, and the Partner Program Guide, such conflict will be governed in the following order: 1) the terms of the FullStory Partner Program Contract; then 2) the Partner Program Guide; and then 3) these FullStory Partner Program Terms and any applicable addenda, the terms of which are incorporated into the FullStory Partner Program Contract by reference.
12.6. 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.
12.7. 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 will be void. This Agreement will inure to the benefit of and be binding upon any successor or permitted assigns of either Party.
12.8.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. 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.
12.9. 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.
12.10. 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.
12.11. 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.
12.12. Notices. Except as specifically set forth in this Agreement, 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 State 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 the respective addressed set forth on the signature page(s) 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.
12.13. Governing Law and Venue. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FULLSTORY SERVICES WILL BE GOVERNED BY DELWARE LAW, EXCLUDING DELAWARE’S CONFLICT OF LAWS RULES, EXCEPT TO THE EXTENT THAT
DELAWARE LAW IS CONTRARY TO OR PREEMPTED BY FEDERAL LAW. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE FULLSTORY SERVICES WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF DELAWARE; THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION IN THESE COURTS.