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TERMS AND CONDITIONS
Last Updated: June 4, 2020
These terms between FullStory, Inc. (“FullStory,” “we,” “us” or “our”) and the
person or entity agreeing to these terms (“Customer” or “you”) set out the
general terms and conditions for (i) you to access and use the FullStory
Services and provide Customer Data to FullStory and (ii) FullStory to provide
the Services to you and use the Customer Data when performing the Services.
BY CLICKING ACCEPT, YOU ARE AGREEING TO THESE TERMS. These terms, along with
Customer’s order for the Services (“Order”) take effect when you click the
“Accept” button or similar check box presented to you as part of the sign-up
process or when you first use the Services, whichever is earlier, and will
remain in effect during the relevant Subscription Term or until terminated as
specified in the Agreement. If you are entering into this Agreement on behalf of
a company or other legal entity, you represent that you have the authority to
commit the entity to the Agreement and the term “Customer” or “you” will refer
to that entity. If you do not have this authority, are under the age of 18 or if
you do not agree with the Agreement, you must not select the “Accept” button or
accept these terms and you may not access or use the Services.
MAKE SURE YOU READ THIS AGREEMENT, THE ORDER, THE PRIVACY POLICY AND THE
ACCEPTABLE USE POLICY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO
USE FULLSTORY. The Order provides the specific terms and conditions regarding
Customer’s subscription for the Services, such as User limitations, pricing
methodologies and the length of the term FullStory will provide the Services
(“Subscription Term”). These terms and conditions, the FullStory Privacy Policy
located at https://fullstory.com/legal/privacy and the FullStory Acceptable Use
Policy located at https://fullstory.com/legal/acceptable-use in addition to the
Order, together make up the “Agreement” between Customer and FullStory.
1. DEFINITIONS.
In addition to the terms otherwise defined in this Agreement or an Order, the
following terms have the definitions below:
1.1. "Customer Data" means any content, data, information or material that is
recorded by, submitted to or stored by, the Services, including, but not limited
to, Personal Data.
1.2. “Personal Data” means all Personal Data 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.
1.3 “Sensitive Data” means any information that: (a) 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 regarding
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 and the Gramm-Leach-Bliley Act, and special
categories of data as defined in the General Data Protection Regulation.
1.4. “Services" means the content, features, functionality, tools, data,
software applications and APIs provided by FullStory
via http://fullstory.com and/or other designated websites as described in the
User Guide, that are ordered by Customer in an Order, as updated from time to
time.
1.5. "User Guide" means the online user guide for the Services accessible at
help.fullstory.com, as updated from time to time.
1.6. "Users" means individuals who are authorized by Customer to use the
Services, for whom subscriptions to the Services have been purchased under an
Order, and who have been supplied user identifications and passwords by Customer
(or by FullStory, at Customer’s request). Users may include Customer’s
employees, consultants, contractors and agents or third parties with which
Customer transacts business.
2. ACCESS GRANT.
Subject to the terms and conditions of this Agreement and the Order, for the
length of the term set forth in the applicable Order, FullStory grants Customer,
a non-exclusive, non-transferable, non-assignable (except as set out in Section
17 below), worldwide, limited right to access and use the Services (as such
Services may be modified, revised and updated in accordance with this Agreement)
for collecting and analyzing web data on Customer’s site(s) and/or native
applications, for Customer’s own internal business purpose.
3. CUSTOMER DATA.
Customer agrees that it will not provide any Sensitive Data to FullStory. If
Customer discovers that due to human error or otherwise, Customer Data does
include Sensitive Data, Customer will promptly notify FullStory and provide
sufficient information to FullStory to locate such Sensitive Data and FullStory
will delete the Sensitive Data in its control or possession. FullStory will
maintain appropriate administrative, physical, and technical safeguards for
protection of the security, confidentiality and integrity of Customer Data. As
between Customer and FullStory, Customer owns all Customer Data and except as
specifically provided in this Agreement or otherwise agreed to in writing
between the parties, FullStory has no right to such Customer Data. Customer
grants to FullStory a non-exclusive, royalty-free license to access and use
Customer Data in order to provide the Services to Customer and as necessary to
monitor and improve the Services. FullStory will not: (a) disclose Customer Data
except as compelled by law or as expressly permitted in writing by you, or (b)
access Customer Data except to provide the Services as described herein or
prevent or address service or technical problems, or at your request in
connection with customer support matters. For the avoidance of doubt, FullStory
may use, reproduce and disclose Customer Data that is anonymized, de-identified,
or is otherwise not reasonably associated or linked to Customer (or any other
identifiable individual person or entity) (“Anonymized Data”) for product
improvement and other purposes consistent with FullStory’s Privacy Policy. This
right to use Anonymized Data will survive termination of this Agreement.
4. CONFIDENTIALITY.
4.1. Confidential Information. Each party (the “Receiving Party”) understands
that the other party (the “Disclosing Party”) has business, technical or
financial information relating to Disclosing Party’s business which it has
disclosed or may disclose during this Agreement (“Confidential Information”).
FullStory’s Confidential Information includes non-public information regarding
features, functionality and performance of the Services, as well as all 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 Customer Data. The terms and conditions of this
Agreement, including all pricing and related metrics, are each party’s
Confidential Information.
4.2. Non-Use. Receiving Party agrees that it will take reasonable measures to
protect the secrecy of and avoid disclosure and unauthorized use of the
Confidential Information of Disclosing Party. Without limiting the foregoing,
Receiving Party will take at least those measures that it takes to protect its
own most important confidential information. Receiving Party agrees (i) not to
use any Confidential Information of Disclosing Party for any purpose except to
perform its obligations or exercise its rights under this Agreement and (ii) not
to disclose any Confidential Information of Receiving Party to third parties or
to such party's employees, officers, agents, contractors or other
representatives (“Personnel”), except to those Personnel of Receiving Party who
need or have access to such Confidential Information in order to perform works
in connection with this Agreement and are subject to confidentiality obligations
consistent with those of this Agreement.
4.3. Exceptions. Disclosing Party agrees that these confidentiality obligations
will not apply to any information that Receiving Party can document (a) is or
becomes generally available to the public; (b) was in its possession or known by
it prior to receipt from Disclosing Party; (c) was rightfully disclosed to it
without restriction by a third party; and/or (d) was independently developed
without use of any Confidential Information of Disclosing Party. 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 such party (i)
gives the other party prior written notice sufficient to permit the other party
to contest the disclosure or seek a protective order (or other confidential
treatment) and (ii) reasonably cooperates with the other party 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 any or all of the following: (x)
potential acquirers, merger partners, investors and their personnel, attorneys,
auditors and investment bankers, solely in connection with the due diligence
review of such party by persons and provided that the disclosures are made in
confidence, (y) the party’s outside accounting firm, or (z) the party’s outside
legal counsel.
4.4. Return of Confidential Information. Promptly following the earlier of (i)
the expiration or earlier termination of this Agreement, or (ii) the request of
Disclosing Party, Receiving Party will return to Disclosing Party, or destroy
all Confidential Information that are in written, electronic or other tangible
form (including, without limitation, all written or printed documents, notes,
memoranda, email, or computer memory, whether or not prepared by Receiving
Party) to the extent containing or summarizing any portion of the Confidential
Information, including, without limitation, all copies and extracts of such
Confidential Information. In addition, upon the request of Disclosing Party,
Receiving Party will certify to Disclosing Party in writing Receiving Party’s
and its Personnel’s compliance with its obligations pursuant to this Section 4.
Notwithstanding anything to the contrary in this Agreement, FullStory may retain
Confidential Information after termination of this Agreement for such period of
time agreed to by Customer and FullStory. To the extent either party is required
by law to maintain copies of Confidential Information or records related to
disclosure or handling, that party will be under no obligation to destroy such
information, however it will remain subject to the obligations in this section.
4.5. Equitable Remedies. Receiving Party acknowledges that in the event of a
breach of this Section 4 by Receiving Party, substantial injury could result to
Disclosing Party and money damages will not be a sufficient remedy for such
breach. In the event that Receiving Party engages in, or threatens to engage in
any act which violates any provision of this Agreement, Disclosing Party will be
entitled, in addition to all other remedies which may be available to it under
law, to seek injunctive relief (including, without limitation, temporary
restraining orders, or preliminary or permanent injunctions) and specific
enforcement of the terms of this Agreement. Disclosing Party will not be
required to post a bond or other security in connection with the granting of any
such relief.
5. CUSTOMER OBLIGATIONS.
Except as permitted under this Agreement or as required by law, Customer will
not, and will not permit or encourage its Users, to:
(i) license, sublicense, sell, resell, transfer, assign, distribute, use as a
service bureau or timeshare, or otherwise commercially exploit or make the
Services available to any third party in any way;
(ii) modify, disassemble or make derivative works based upon the Services or
otherwise attempt to derive source code or other trade secrets from the
Services;
(iii) reverse engineer or access the Services in order to (a) build a
competitive product or service, (b) build a product using similar ideas,
features, functions or graphics of the Services, or (c) copy any ideas,
features, functions or graphics of the Services;
(iv) modify, remove or obstruct any proprietary rights statement or notice
contained in the Services;
(v) send spam or otherwise duplicative or unsolicited messages in violation of
applicable laws;
(vi) send or store (a) infringing, obscene, threatening, libelous, or otherwise
unlawful or tortious material, including material harmful to children or which
violates third party privacy rights; or (b) material containing software
viruses, worms, Trojan horses or other harmful computer code, files, scripts,
agents or programs;
(vii) attempt to gain unauthorized access to the Services or its related systems
or networks;
(viii) access the Services if you or your Users are a direct competitor of
FullStory, unless FullStory agrees in writing before you access the Services;
This next part addresses shared logins- we don’t take pains to keep you from
sharing a seat. But if you do, you are responsible for keeping that shared
information secure.
Customer acknowledges that FullStory does not restrict sharing of User accounts
and/or passwords and agrees that Customer will be responsible for any liability
to the extent arising from such use or sharing of accounts. Customer agrees to
comply with all applicable local, state, national and foreign laws, treaties and
regulations in connection with Customer’s and its User’s use of the Services but
especially 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 or suspected violation of this Agreement or any
actual or suspected data or security breach.
FullStory reserves the right to review information posted by Users to ensure
that it complies with this or any other section of this Agreement, and to amend
it or delete it, or otherwise control such information in order to bring it into
compliance with this Agreement and/or applicable law.
6. SUPPORT.
Subject to the terms of this Agreement, FullStory will provide Customer with
reasonable technical support services in accordance with FullStory’s standard
support offering. Our servers may be unavailable as the result of planned or
unplanned downtime, for reasons including technical issues, legal compliance,
security actions, business decisions, or any other cause. We may attempt to
inform you if such downtime is planned, but we are under no obligation to do so.
You agree that we are not liable for the unavailability of our Service.
7. INTELLECTUAL PROPERTY OWNERSHIP.
7.1. FullStory IP. Except for the limited right to access and use the Services
under this Agreement and the applicable Order, Customer acknowledges and agrees
that, as between the parties, FullStory (or its licensors) have and will retain
any and all rights, title, and interest in the Services, any software utilized
to perform the Services and the User Guides (collectively, the FullStory
Products) and all derivative works made by any person or entity in or to the
FullStory Products, including, but not limited to, patents, copyrights,
trademarks, trade secrets and other intellectual property and proprietary rights
(collectively the “Intellectual Property Rights”) associated with the FullStory
Products. 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.
Customer grants FullStory a royalty-free, worldwide, transferable,
sub-licensable, irrevocable, perpetual license to use or incorporate into its
software or services, any suggestions, enhancement requests, recommendations or
other feedback provided by Customer, including its Users, relating to
FullStory's software, services or business operations. This Agreement is not a
sale and except as set forth in this Agreement, does not give Customer any
rights of ownership in, or related to, the Services, any FullStory software or
the Intellectual Property Rights owned by FullStory.
7.2. Feedback. Customer may, but is not obligated to, provide suggestions,
enhancement requests, recommendations, or other feedback to FullStory relating
to FullStory’s software, the Services, or business operations (“Feedback”). To
the extent Customer provides Feedback, Customer grants FullStory a royalty-free,
worldwide, transferable, sub-licensable, irrevocable, perpetual license to use
or incorporate any such Feedback into its software, the Services, or its
business operations.
7.3. Customer IP. Except as set forth in this Agreement, this Agreement does not
give FullStory any rights of ownership in, or related to, any Intellectual
Property Rights owned by Customer.
8. ACCEPTABLE USE
Customer agrees to comply with FullStory’s Acceptable Use Policy. FullStory
reserves the right to modify the FullStory Acceptable Use Policy in its
reasonable discretion from time to time.
9. PAYMENT OF FEES.
9.1. Fees. FullStory will invoice Customer the fees as set forth in the
applicable Order (“Fees”) and the price per unit rate of such Fees will not
increase during the initial Order Term. If Customer’s use of the Services
exceeds a Services Capacity or Usage Parameter set forth on the Order, Customer
agrees to pay FullStory the applicable additional 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. Unless otherwise agreed to by the parties or as
set forth on an Order, all Fees for any renewal periods will be at a 7% premium
from the preceding Term. FullStory will invoice Customer as set forth in the
applicable Order. All invoices are payable in U.S. dollars unless otherwise set
forth in the applicable Order.
9.2. Payment. Each invoice will be due thirty (30) days after receipt by
Customer, 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 will be charged a fee of 1.5% of
the outstanding balance per month, or the highest amount allowed by law,
whichever is lower.
9.3. Taxes. The Fees do not include any taxes, levies, duties or similar
governmental assessments of any nature, including, for example, value-added,
sales, use or withholding taxes, assessable by any jurisdiction whatsoever
(collectively, “Taxes”). Customer is responsible for paying all Taxes associated
with its purchases under this Agreement and any Order. If FullStory has the
legal obligation to pay or collect Taxes for which Customer is responsible under
this Section 9, including for Fees previously invoiced, FullStory will invoice
Customer and Customer will pay that amount (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.
9.4. Suspension of Service and Acceleration. If any amount owing by Customer
under this or any other Agreement with FullStory that is not subject to a good
faith dispute is sixty (60) or more days overdue, FullStory may, without
limiting its other rights and remedies, accelerate Customer’s unpaid fee
obligations under such Order so that all such obligations become immediately due
and payable, and suspend any and all services until such amounts are paid in
full. Customer will continue to be charged fees during any period of suspension.
If Customer or FullStory initiates termination of this Agreement, Customer will
be obligated to pay the balance due on Customer’s account. FullStory reserves
the right to impose a reconnection fee in the event Customer’s account is
suspended and Customer later requests access to the Services. Any use of the
Services in violation of the Agreement by Customer 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.
10. TERM AND TERMINATION
10.1. Term. This Agreement will commence on its Effective Date and will remain
in effect for the term set forth in the Order (“Initial Term”). The Agreement
will automatically renew for successive terms equal to the Initial Term (each a
“Renewal Term”), unless one party gives notice to the other party of its intent
not to renew at least sixty (60) days prior to the expiration of the then
current Term. The Initial Term together with any Renewal Term permitted under
this Section is the “Term” of this Agreement. If there are any active Orders
existing under this Agreement as of the expiration of the Term, which Orders are
not otherwise terminated under this Agreement, the Term of this Agreement will
continue with respect to an outstanding Order until expiration, termination or
completion of each such Order.
10.2. Termination for Breach. Either party may terminate this Agreement or any
Order at any time by giving written notice to the other party in the event that
the other party is in breach of any of its obligations under this Agreement or
any Order and fails to remedy such breach within thirty (30) days after written
notice from the other party.
10.3. Termination for Convenience. Customer may terminate an Order for
convenience, however all payment obligations are non-cancelable and all amounts
paid are non-refundable, except in the event of a termination by Customer for
breach of the Agreement as set forth in Section 10.2 above.
10.4. Termination for Insolvency. 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; then the other party
may terminate this Agreement and all Orders as of a date specified in a
termination notice.
10.5. Post Termination Obligations. Upon expiration or termination of this
Agreement for any reason, FullStory will promptly terminate the Services.
FullStory will have no obligation to maintain or provide any Customer Data and
may thereafter, unless legally prohibited, delete all Customer Data in its
systems or otherwise in its possession or under its control. Sections 1, 4, 7,
9, 10.5, 11.2, 12, 13 and 15 through 18 will survive any termination or
expiration of this Agreement. All other rights and obligations will be of no
further force or effect. Termination will not relieve either party from any
liability arising from any breach of this Agreement. Neither party will be
liable to the other for damages of any kind solely as a result of terminating
this Agreement in accordance with its terms. Furthermore, 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.
11. REPRESENTATIONS & WARRANTIES AND DISCLAIMERS.
11.1. Reps and Warranties. Each party represents and warrants that it has the
legal power and authority to enter into this Agreement. You warrant that you are
the minimum age required to enter into a contract in the area in which you
reside, and in any event, not less than 18 years of age. FullStory warrants that
it will provide the Services in a manner consistent with general industry
standards reasonably applicable to the provision of such Services and that the
Services will perform substantially in accordance with the User Guide under
normal use and circumstances. Customer’s sole and exclusive remedy and
FullStory’s sole obligation for a breach of the warranties in this Section, 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 Customer, a pro-rata portion of the Fees
that have been paid but not used by Customer from the date of notice by Customer
of such breach. Customer warrants that (i) Customer owns or has a license to use
and has obtained all consents and approvals necessary for the provision and use
of all of the Customer Data that is placed on, transmitted via or recorded by
the Services; (ii) the provision and use of Customer Data as contemplated by
this Agreement and the Services does not and will not violate any Customer
privacy policy, terms-of-use or other agreement to which Customer is a party or
any law or regulation to which Customer is subject.
11.2. DISCLAIMER. FULLSTORY DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE, NOR DOES FULLSTORY MAKE ANY WARRANTY AS TO THE
RESULTS THAT MAY BE OBTAINED OR THE LOSSES THAT MAY OCCUR FROM USE OF THE
SERVICES. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE
PROVIDED “AS IS,” AND FULLSTORY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
12. INDEMNIFICATION.
12.1. Customer’s Indemnification of FullStory. Customer will indemnify, defend
and hold harmless FullStory and its respective directors, officers, employees
and agents from and against any and all claims, losses, damages, suits, fees,
judgments, costs and expenses, (including reasonable attorney’s fees) (“Claims”)
or any claims by you or any third party which may arise from or relate to this
Agreement or the Customer Data.
12.2. Procedure for Handling Indemnification Claims. In the event of any Claim,
FullStory will give prompt notice of any such Claim to Customer; provided that
the failure to provide such notice will not relieve Customer of its obligations
unless such failure prejudices Customer’s ability to defend the Claim). Customer
will be entitled if it so elects in a notice promptly delivered to FullStory, to
immediately take control of the defense, settlement and investigation of any
Claim and to employ and engage attorneys reasonably acceptable to FullStory to
handle and defend the same, at Customer’s sole cost. FullStory will cooperate in
all reasonable respects, at Customer’s cost and request, in the investigation,
trial and defense of such Claim and any related appeals. Customer will not
consent to the entry of any judgment or enter into any settlement with respect
to a Claim without FullStory’s prior written consent, which may be withheld in
its sole discretion. FullStory may also, at its own cost, participate through
its attorneys or otherwise in such investigation, trial and defense of any Claim
and related appeals.
13. LIMITATION OF LIABILITY.
YOU AGREE THAT FULLSTORY’S LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED IN THE AGGREGATE
THE TOTAL FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT DURING THE
THEN-CURRENT ORDER OR, IF LESS, THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF
THE EVENT GIVING RISE TO THE CLAIM. YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY
WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT
NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION,
TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT
TOWARDS YOU. WE ARE NOT RESPONSIBLE FOR ANY LOSSES INCURRED AS THE RESULT OF
YOUR DECISION TO USE OUR SERVICE. YOU ARE RESPONSIBILITY FOR DETERMINING THE
SUITABILITY OF OUR SERVICE FOR YOUR PURPOSES. WE ARE NOT RESPONSIBLE FOR ANY
FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING YOUR CREDIT CARD COMPANY,
TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN
PLACING A HOLD ON YOUR FUNDS.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A
THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED
OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT
ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY. THE PROVISION OF OUR SERVICE
TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS
AGREEMENT.
THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, NO MATTER HOW
CAUSED OR THE THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED
THAT SUCH DAMAGES ARE POSSIBLE.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding
any provision of these Terms, if your jurisdiction has provisions specific to
waiver or liability that conflict with the above then our liability is limited
to the smallest extent possible by law. Specifically, in those jurisdictions not
allowed, we do not disclaim liability for: (a) death or personal injury caused
by its negligence or that of any of its officers, employees or agents; or (b)
fraudulent misrepresentation; or (c) any liability which it is not lawful to
exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT
REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS
MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA
CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE
THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR
PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE
ABOVE RELEASE.
14. 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.
15. FORUM OF DISPUTE.
You agree that any dispute arising from or relating to this Agreement will be
heard solely by a court of competent jurisdiction in the State of Georgia. If
you bring a dispute in a manner other than in accordance with this section, you
agree that we may move to have it dismissed, and that you will be responsible
for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to
this Agreement will be responsible for the reimbursement of the successful
party’s reasonable attorneys’ fees, court costs, and disbursements.
16. NOTICES.
Any notice under this Agreement must be given in writing. FullStory may provide
notice to you via email or through your account. FullStory’s notices to you will
be deemed given upon the first business day after we send it. You may provide
notice to us by post to FullStory, Inc., 1745 Peachtree St NE, Suite G, Atlanta
GA 30309, Attn: Legal. Your notices to us will be deemed given upon our receipt.
17. ASSIGNMENT.
Customer agrees that it will not assign this Agreement without the prior written
consent of FullStory. FullStory may assign our rights and obligations under this
Agreement (in whole or in part) without your consent. Any attempted assignment
in violation of this Section will be void.
18. MISCELLANEOUS.
18.1. Publicity. We may identify you as a FullStory customer in our promotional
materials. You may request that we stop doing so by submitting an email to
support@fullstory.com at any time. Please note that it may take us up to 14 days
to process your request.
18.2. No Third Party Beneficiaries. This Agreement will be binding upon and
inure solely to the benefit of the parties. The parties intend that there will
be no third party beneficiaries under this Agreement, and that no person or
entity, except the parties, will have any rights or remedies under this
Agreement, including the right to bring any action on account of its breach or
in any relation to it whether in contract, in tort, or otherwise.
18.3. Compliance with Laws. Customer agrees that it will comply with all laws,
administrative regulations and executive orders, including but not limited to
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 Services will be located or from which the
Services will be accessed under this Agreement, including, but not limited to,
the Export Administration Regulations of the U.S. Department of Commerce, the
International Traffic in Arms Regulations of the U.S. Department of State, and
the Enhanced Proliferation Control Initiative. Customer will not, without prior
written consent, if required, of the office of Export Administration of the U.S.
Department of Commerce, 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.
18.4. Relationship. The relationship between the parties created by this
Agreement is that of independent contractors and not partners, joint venturers
or agents. Except as expressly agreed by the parties, neither party will be
deemed to be an employee, agent, partner or legal representative of the other
for any purpose and neither will have any right, power or authority to create
any obligation or responsibility on behalf of the other.
18.5. 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 provided under this Agreement.
18.6. Entire Agreement. This Agreement, the applicable Order and the attachments
and schedules attached to this Agreement constitute the entire Agreement of the
parties with respect to the subject matter hereof and supersedes any and all
existing agreements relating to the subject matter hereof. To the extent, there
is any conflict among the terms of this Agreement and the applicable Order, such
conflict will be governed in the following order: 1) the terms of the Order; and
then, 2) this Agreement and any applicable addenda, the terms of which are
incorporated into the Order by reference.
18.7. 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.
18.8. 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 and payment obligations) if prevented from doing so
by a cause or causes beyond its reasonable control (a “Force Majeure Event”).
Without limiting the generality of the foregoing, Force Majeure Events include
fires, floods, terrorism, strikes, blackouts, war, restraints of government,
utility or communications failures or interruptions, failures of third party
vendors, Internet slow-downs or failures, computer hackers or other causes that
are beyond a party’s reasonable control. Failure to meet due dates or time
schedules resulting from a Force Majeure Event will extend the due dates or time
schedules for reasonable periods of time as determined by the parties in good
faith.
18.9. Severability. The illegality, invalidity, or unenforceability of any
provision of this Agreement will not in any manner affect or render illegal,
invalid or unenforceable any other provision of this Agreement, and that
provision, and this Agreement generally, will be reformed, construed and
enforced so as to most nearly give lawful effect to the intent of the parties as
expressed in this Agreement.
18.10. Headings. Section headings are for convenience of reference only and will
not affect the interpretation of this Agreement.
18.11. 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.
18.12. Governing Law. 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 Georgia, without regard to its conflict of laws
rules applicable to contracts to be performed entirely within the State of
Georgia, and without regard to the U.N. Convention on the International Sale of
Goods.
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