Fullstory Partner Program
Managed Service Provider Addendum
This Managed Service Provider Addendum (this “Addendum”) contains terms and conditions that govern your participation in Fullstory’s Managed Service Provider Partner Program (the “Program”) and is a contract between Fullstory, Inc., a Delaware (USA) corporation (“Fullstory”), and you or the entity or organization that you represent. This Addendum is subject to Fullstory’s standard Master Partner Program Agreement, currently available through the Partner Portal and on Fullstory’s website at https://www.fullstory.com/legal/partner-terms-and-conditions/, unless otherwise agreed by the Parties in writing (“MPPA”). Capitalized terms not otherwise defined in this Addendum will have the respective meanings assigned to them in the MPPA or Section 22 of this Addendum below.
This Addendum, the MPPA, and the applicable Program Authorization (collectively, the “Agreement”), replaces and supersedes all previous agreements and other communications (oral or written) between Partner and Fullstory relating to the Program, including any agreements governing Partner’s participation in past Managed Services partner-type programs offered by Fullstory.
This Addendum becomes binding and effective on Partner upon signature of a Program Authorization granting Partner the right to participate in the Program, unless otherwise agreed by the Parties in writing.
1. Background. The Service Terms prohibit the use of the Services as part of a Managed Services offering and limits a subscriber’s access and use of the Services to the subscriber’s own internal business operations (an “Internal Use Subscription”). Partner desires to instead use the Services as part of the Managed Services it offers to its own third-party customers pursuant the terms of this Addendum.
2. MSP Partner Orders. The Agreement sets forth the terms pursuant to which Partner may access, use, manage and support the Services in connection with one or more MSP Partner Orders as part of Partner’s provision of Managed Services to Customers. Subject to the terms of an MSP Partner Order, the Services will support Partner’s collection, monitoring, management and analysis of data generated by systems, platforms, services, software, devices, sites and/or networks that a Customer uses (or that Partner uses on the Customer’s behalf) in the Customer’s own internal business operations (collectively, but exclusive of subscribed Services, “Customer’s Environment”). As part of the Managed Service Subscription, Partner may grant to its Customer an Internal Use Subscription consistent with the terms of the Agreement, but any such grant shall be limited to such Customer and subject to the requirements of Section 7.
3. Access and Use.
3.1 Subject to the applicable MSP Partner Order and the Agreement, Fullstory hereby grants to Partner the right to access, use, manage and support the Services in accordance with the User Guide solely as part of Partner’s provision of Managed Services to each Customer during the applicable MSP Partner Order Term for that Customer’s Environment (a “Managed Service Subscription”).
3.2 All rights granted by each Party to the other under this Section 3 are limited, nonexclusive and, except as otherwise provided in the Agreement, non-transferable. Any Customer is free to enter into orders for Services directly with Fullstory or with another Fullstory partner. Partner is not itself granted an Internal Use Subscription, or any right to resell or grant Internal Use Subscriptions, under any MSP Partner Order or this Addendum; any such rights would be subject to a separate agreement between the Parties.
4. Support. Fullstory will provide Support to Partner Users through the Services and by email.
5. Customer Data.
5.1. Partner, and its Customer, are solely responsible for Customer Data and, to the extent within its control, Partner will ensure that Customer Data complies with all Applicable Laws. Partner, on behalf of its Customer, agrees that it will not provide any Sensitive Data to Fullstory or configure the Services such that Fullstory collects Sensitive Data on Customer’s behalf. Partner acknowledges that Fullstory has provided them with tools that will enable Partner to comply with this Section 5.1. If Partner discovers that Customer Data does include Sensitive Data, Partner 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.
5.2. Fullstory will, at a minimum, comply with the Fullstory Security Overview.
5.3. As between Partner and Fullstory, Partner owns all Customer Data. During the Term, Partner, on behalf of itself and its Customer, grants to Fullstory a non-exclusive, non-transferable, non-assignable (except as expressly provided in this Addendum or the Agreement), worldwide, royalty-free, fully-paid license to access and use Customer Data to provide the Services and as necessary to monitor and improve the Services. Fullstory reserves the right to monitor Partner’s use of the Services and the data collected therein, which may include reviewing Customer Data collected by or stored in the Services as necessary to ensure compliance with Applicable Law and with the terms of the Agreement. Fullstory will not: (a) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (b) access Customer Data except to provide the Services to Partner, to prevent or address service or technical problems, to take measures to comply, or to assist Partner, or its Customer, in complying, with applicable law, at Partner’s request in connection with support matters, or as otherwise expressly provided in the Agreement. Partner, on behalf of 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.
5.4. Partner, on behalf of Customer, agrees that Fullstory may use, reproduce and disclose Customer Data that is anonymized, de-identified, or is otherwise not reasonably associated or linked to Partner’s 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 the Agreement.
5.5. The Data Protection Addendum located at https://www.fullstory.com/legal/form-of-standard-dpa/ (the “DPA”) will apply to the subject matter of the Agreement unless Partner’s Customer and Fullstory have agreed to a separate data protection agreement, and each Party agrees to comply with such terms. For purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Partner, Partner’s Customer and its applicable Affiliates are each the data exporter, and Partner’s signing of or entering into an MSP Partner Order, will be treated as Partner’s, Partner’s Customer, or its applicable Affiliates, signing of the Standard Contractual Clauses and their Appendices. Fullstory may update or modify the DPA from time to time upon written notice to Partner. The Parties further agree that the DPA will be amended from time to time to comply with changes in Applicable Law. Any such updates or modifications will become effective fifteen (15) days after such notice is provided to Partner unless Partner opts out of such updates or modifications in a written notice to Fullstory, in which case a) the then-current version of the DPA will remain in effect; and b) Fullstory may terminate the applicable MSP Partner Order.
6. Applicability of MPPA. This Addendum is subject to the terms and conditions of the MPPA. Without limiting the foregoing, and for clarity of the Parties: (i) Partner’s obligations under the MPPA with respect to its conduct and its compliance with Applicable Laws, including those relating to Personal Information, anti-bribery and anti-corruption, and export controls and trade sanctions, extend to this Addendum; (ii) except as otherwise expressly provided in this Addendum, Partner’s remedies with respect to its participation in the Program, and use of the Services, shall be solely as provided in the MPPA; and (iii) the terms of the MPPA relevant to Partner’s use of Fullstory’s Marks and Content, Confidentiality, Prospect Information, Assignment, Relationship, Third-Party Beneficiaries, Force Majeure, Notices, Governing Law and Venue, and any language provided in a “Miscellaneous” provision, shall, in addition to the remainder of the MPPA, apply to this Addendum.
7. Customer Orders. Partner shall not access, use, manage or support the Services with respect to any of its customers, except pursuant to a completed order or other agreement for Services between Partner and the applicable Customer that is consistent with this Addendum and incorporates the Pass-Through Terms (each, a “Customer Order”). For clarity, however, no Customer, Customer user, or Partner User shall be deemed a third-party beneficiary of this Addendum or the Agreement. Partner agrees that Fullstory shall be a third-party beneficiary with respect to each Customer Order as it relates to the Pass-Through Terms.
8. Partner Responsibilities and Restrictions.
8.1. As between the Parties, Partner will be solely responsible for: (a) the delivery and results of all Managed Services; (b) Customer’s Environment, including as necessary to enable Partner Users’ access and use of the Services; (c) Customer Data (including activities conducted with Partner’s access credentials to the Services), subject to Fullstory’s security and processing obligations under the Agreement; (d) providing any required notices to, and receiving any required consents and authorizations from, Partner Users, and persons whose Personal Data may be included in Customer Data; and (e) ensuring use of the Services is only for Customer’s Environment and in accordance with the AUP, and User Guide.
8.2. Except as permitted under the Agreement or as required by Applicable Law, Customer will not, and will not permit or encourage anyone else, to: (i) license, sublicense, sell, resell, transfer, assign, distribute, use as a service bureau or timeshare, or otherwise commercially exploit or make the Services available to any third party in any way; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to derive source code or other trade secrets from the Services, or modify, make derivative works based upon, copy, or otherwise use any ideas, features, functions, or graphics of the Services in order to (a) build a competitive product or service or (b) build a product using similar features, functions, or graphics of the Services; (iii) provide any Services outside the Territory, or to any Government Entity or Government Official as a Customer, without Fullstory’s prior written consent; (iv) modify, remove, or obstruct any proprietary rights statement or notice contained in the Services; (v) “crawl,” “scrape,” or “spider” any data or portion of the Services (through use of manual or automated means); (vi) send or store (a) infringing, dangerous, harmful, deceptive, obscene, threatening, libelous, or otherwise objectionable, unlawful, or tortious material, including material harmful to children or which violates third-party privacy rights; or (b) material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) access the Services if Customer is a direct competitor of Fullstory, unless Fullstory has agreed in writing before Customer accesses the Services; (ix) use the Services in violation of the AUP; (x) impersonate a User, share passwords, or provide false identity information to access or use the Services; (xi) use the Services in a manner which violates Applicable Law, including Applicable Data Protection Laws; (xii) use the Services on, or capture any sessions or other information from, any website or apps unless Customer (a) owns such website or app or (b) has express consent from the owner to run the Services on such website or app; or (xiii) use the Services in excess of the usage limitations set forth in an applicable MSP Partner Order.
8.3. Partner agrees that it will promptly notify Fullstory of any violation of this Section. In the event Fullstory reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 16.2 of this Addendum), Fullstory will have the right to: (a) require Partner to promptly provide to Fullstory a signed certification verifying that Partner is in compliance with the terms of the Agreement; (b) audit, at Fullstory’s expense, Partner’s compliance with the Agreement; and/or (c) suspend Partner Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Except where Fullstory reasonably believes the violations are willful, or in urgent or emergency situations, Fullstory will notify Partner of any suspension under clause (c) in advance (each, a “Suspension Notice”) and work with Partner in good faith to resolve the potential violation. For clarity, Fullstory reserves the right, but does not assume any obligation to Partner (except with respect to the Suspension Notice) or any Customer, to take any of the actions described in this Section 8.3.
9. Beta Features. From time to time, Fullstory may provide Partner with the option to use Beta Features. Any use of a Beta Feature will be solely at Partner’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 the Agreement (including any indemnification obligations) arising out of related to Partner’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 Partner, 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 Partner to purchase such features for continued use as part of the Services.
10. Pricing and Fees.
10.1. Partner agrees to pay all fees charged by Fullstory for Partner’s use of Services in accordance with the Agreement and applicable MSP Partner Order(s) (the “Fees”). Except as otherwise provided in an MSP Partner Order: (a) Fees must be paid in U.S. dollars and, subject to Section 10.2 below, within 30 days of invoice; and (e) Fees for Services include Support for Partner Users at no additional charge.
10.2. Except in the event of a good faith dispute under this Section 10.2, if Partner fails to make payment when due, without limiting Fullstory’s other rights and remedies: (a) Fullstory may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under Applicable Law; (b) Partner shall reimburse Fullstory for all reasonable costs incurred by Fullstory in collecting any late payments or interest, including attorneys’ fees; and (c) if such failure continues for 60 days or more, Fullstory may suspend Partner’s, its Customers’ and their respective users’ access to the Services until such amounts are paid in full. Partner must assert any dispute with regard to Fees in writing within 15 days of receipt of the invoice giving rise to the dispute. Fullstory will not exercise its suspension or termination rights or apply interest on late Fees if Partner disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute. Partner will continue to be charged fees during any period of suspension.
10.3. Partner shall be responsible for providing, at its own cost, sales, sales support, account management, billing and collection services in managing Customers to which Partner provides the Managed Services. Partner may unilaterally establish its own sale prices and terms regarding Managed Services. Partner is solely responsible for all credit risk regarding, and for collecting payments from, Customers to which Partner provides the Managed Services. Partner’s inability to collect amounts due from a Customer does not affect Partner’s payment obligations to Fullstory under the Agreement.
11. MSP Partner Order Renewal.
11.1. Unless either Party gives the other Party written notice of its intention not to renew an MSP Partner Order at least 60 days prior to the MSP Partner Order’s then current expiration date, the MSP Partner Order will automatically renew for additional periods of the same duration as the expiring MSP Partner Order Term (each, a “Renewal MSP Partner Order Term”).
11.2. Effective upon the one-year anniversary of an MSP Partner Order, or if the term of the MSP Partner Order is longer than one year, then up to one time during each Renewal MSP Partner Order Term), Fullstory may increase then current pricing for the Services by up to 7%. Failure to timely notify Fullstory shall be deemed to constitute consent to the applicable fee increase.
12. Taxes. All Fees are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). Partner shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Partner under MSP Partner Orders and the Agreement (other than any Taxes on Fullstory’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Partner is required to deduct or withhold any Taxes under Applicable Laws, Partner shall remit such Taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that Fullstory receives an amount equal to the sum it would have received had no withholding or deduction been made
13. Ownership.
13.1. Except for the limited right to access and use the Services under the Agreement and the applicable MSP Partner Orders, Partner acknowledges and agrees that, as between the Parties (each, as described, the owner’s “Intellectual Property”): (i) Fullstory (or its licensors) have and will retain any and all right, title, and interest in and to the Services, any software utilized to perform the Services, and the User Guides (collectively, the “Fullstory Products”), as well as all derivative works made by any person or entity based upon the Fullstory Products, including all Intellectual Property Rights associated with the foregoing; and (ii) Partner have and will retain any and all right, title, and interest in and to the Customer Data and Customer’s Environment. If Partner provides Fullstory with any feedback or suggestions about the Services, the Fullstory Products, or Fullstory’s business operations (the “Feedback”), Fullstory may use the Feedback without obligation to Partner, and Partner irrevocably assigns to Fullstory all right, title, and interest in and to the Feedback.
13.2. Neither Party will assert or cause any other Party (including, without limitation, any Customer, or Partner) to assert any right, title, or interest in or to the other Party’s Intellectual Property. The Agreement is not a sale and does not give the other Party any rights of ownership in, or related to, the other Party’s Intellectual Property. Except for the rights expressly granted by one Party to the other in this Addendum or the MPPA, all rights are reserved by the granting Party.
14. Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into the Agreement. 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. Partner’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 the Agreement and refund to Partner a pro-rata portion of the Fees (i.e., all Fees that have been paid but not used by Partner from the date of notice by Partner of such breach). Partner warrants that (i) Partner owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all Customer Data that is placed on, transmitted via, or collected by the Services; and (ii) the provision and use of Customer Data as contemplated by the Agreement and the Services does not and will not violate any Partner or Customer privacy policy, terms of use, or other agreement to which Partner or its Customer is a party or any Applicable Law.
15. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, AND WITHOUT LIMITING THE DISCLAIMERS IN THE MPPA, FULLSTORY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, USER GUIDE, OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (i) MEET PARTNER’S, ANY CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; OR (iv) BE ERROR FREE. THE SERVICES ARE PROVIDED “AS IS.” 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.
16. Term and Termination.
16.1 Notwithstanding any contrary provision in the MPPA, the term of this Addendum will continue through the expiration or earlier termination of the last MSP Partner Order to be in effect.
16.2. Subject to Section 10.2 of this Addendum, Fullstory may terminate any MSP Partner Order upon written notice to Partner if Partner fails to pay any amount due under the MSP Partner Order, and such failure continues more than 15 days after Fullstory’s delivery of written notice. In addition, either Party may terminate all MSP Partner Orders and the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
16.3. Upon expiration or earlier termination of an MSP Partner Order: (a) subject to Section 16.5 below, all rights granted to Partner with respect to Services under such MSP Partner Order will terminate effective as of the effective date of termination; (b) subject to Section 16.5 below, Fullstory will have no obligation to provide Services to Partner, Customer or any of their users after the effective date of the termination; and (c) Partner will, subject Section 16.4 below, pay to Fullstory any Fees payable for Partner’s, or Partner Users’ use of Services through the effective date of the termination, together with all other amounts in accordance with the MSP Partner Order and the Agreement.
16.4. If an MSP Partner Order is terminated early by Partner pursuant to Section 16.2 above, or by Fullstory pursuant to Section 17.2 of this Addendum: (a) Partner shall not be obligated to pay any additional amounts specified in the MSP Partner Order following the effective date of termination; and (b) Fullstory will refund to Partner a pro rata share of any unused amounts prepaid by Partner under the applicable MSP Partner Order for the Services on the basis of the remaining portion of the current MSP Partner Order Term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Partner and its Customers use the Services at the levels reflected in the MSP Partner Orders or otherwise, Partner will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable. Termination will not relieve either Party from any liability arising from any breach of the Agreement. Neither Party will be liable to the other for damages of any kind solely as a result of terminating an MSP Partner Order. Termination of an MSP Partner Order by a Party will be without prejudice to any other right or remedy of a party under the Agreement or Applicable Laws.
16.5. Provided Partner has paid all amounts due under the Agreement, and subject to any applicable shorter retention periods selected by Partner in the Services, Fullstory will promptly terminate Partner’s access to the Services for an applicable Customer(s) and Partner will immediately cease all use of and access to the Services for the applicable Customer(s) in the event of termination of an MSP Partner Order; provided, however that, for up to 30 days from the effective date of termination of the Agreement, Partner will be permitted to continue to access and download Customer Data. Partner’s access and use will continue to be subject to the terms of this Addendum and the Agreement, provided the Partner shall not access or use the Services other than to download Customer Data on Partner's written request to Fullstory. After such 30-day period, Fullstory will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
16.6. The provisions set forth in the following Sections of this Addendum, and any other right or obligation of the Parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: 5.3, 5.4, 6, 7, 8.2, and 12 through 23.
17. Indemnification.
17.1. Subject to Sections 17.2 and 17.4 below, Fullstory agrees to defend, indemnify and hold harmless Partner, its Participating Affiliates (as defined in Section 19 of this Addendum) and their employees, contractors, agents, officers and directors (collectively, “Partner Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party (other than Customer or its Affiliate) alleging that the Fullstory Products or Partner’s use thereof infringes or violates any patent, copyright, or trademark right of a third party or misappropriates any trade secret of any third party (each, a “Partner Infringement Claim”). Fullstory will pay all Losses incurred by and damages against the Partner Indemnitees but will not be responsible for any compromise or settlement made without its express prior written consent.
17.2. If the Services become, or in Fullstory’s opinion are likely to become, the subject of a Partner Infringement Claim, 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 the Agreement and Fullstory will refund to Partner a Pro-Rated Refund. Fullstory will have no obligation to indemnify Partner for a Partner Infringement Claim to the extent it arises from any of the following (collectively, “Partner-Controlled Matters”): (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 Partner or a Customer that violates any Applicable Law; (d) use of the Services in a manner that violates or breaches an MSP Partner Order, Customer Order or the Agreement, including Sections 5.1 and 8.2 of this Addendum; (e) Customer’s Environment; or (f) Customer Data (including activities conducted with Partner’s access credentials to the Services), subject to Fullstory’s security and processing obligations under the Agreement. SECTIONS 17.1 and 17.2 OF THIS ADDENDUM STATE FULLSTORY’S ENTIRE LIABILITY AND PARTNER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION BY A THIRD PARTY RELEVANT TO THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PARTNER (ON ITS OWN BEHALF AND ON BEHALF OF ANY PERSON OR ENTITY AUTHORIZED TO USE THE SERVICES BY PARTNER) COVENANTS NOT TO SUE OR MAKE OR ASSERT AGAINST FULLSTORY ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED TO PARTNER UNDER THE AGREEMENT.
17.3. Subject to Section 17.4 below, Partner agrees to defend, indemnify and hold harmless Fullstory, its Affiliates and their employees, contractors, agents, officers and directors (collectively, “Fullstory Indemnitees”), from and against any and all Losses arising out of or related to any Action by Customer or other third party arising out of or relating to any Partner-Controlled Matter or Partner’s gross negligence, or willful misconduct.
17.4. A Partner Indemnitee or Fullstory Indemnitee seeking indemnification shall adhere to the indemnification procedures of the MPPA in exercising the indemnification rights of this Section 17. For clarity, no Customer, its Affiliates or their employees, contractors, agents, officer or directors shall be deemed Partner Indemnitees for purposes of this Addendum. Any indemnification obligations Fullstory may have to Customers and such other parties are as specified in the Service Terms or Pass-Through Terms, as applicable.
18. Limitations of Liability.
18.1. SOLELY WITH RESPECT TO THE PARTIES OBLIGATIONS UNDER THIS ADDENDUM, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 18, IN NO EVENT SHALL: (a) FULLSTORY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS HAVE ANY LIABILITY TO PARTNER FOR ANY LOSSES ARISING OUT OF OR RELATING TO ANY CUSTOMER ORDER, CUSTOMERS’ OR THEIR USERS’ ACCESS OR USE OF THE SERVICES, OR PARTNER’S PROCESSING OF CUSTOMER DATA; (b) EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS ADDENDUM; OR (c) EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS ADDENDUM EXCEED THE FEES PAID TO FULLSTORY BY PARTNER UNDER APPLICABLE MSP PARTNER ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY (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 Partner or Fullstory.
18.2. NOTWITHSTANDING THE ABOVE, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY PURSUANT TO THIS SECTION 18 WILL NOT, IN THE AGGREGATE AND TOGETHER WITH SUCH PARTY’S OTHER LIABILITIES ARISING OUT OF OR RELATED TO THE AGREEMENT, EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE GENERAL LIABILITY CAP (THE “SUPER CAP”) FOR DAMAGES ARISING AS A RESULT OF: (A) BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; AND/OR (B) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 17 OF THIS ADDENDUM. THE GENERAL LIABILITY CAP AND THE SUPER CAP SHALL NOT APPLY TO LIABILITIES ARISING FROM: (I) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (II) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY; (III) FRAUDULENT MISREPRESENTATION BY A PARTY; (IV) PARTNER’S BREACH OF SECTION 7 OF THIS ADDENDUM OR 8.2 OF THIS ADDENDUM; OR (V) PARTNER’S PAYMENT OBLIGATIONS TO FULLSTORY UNDER THIS ADDENDUM.
18.3. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS SECTION 18 ALLOCATE THE RISKS UNDER THIS ADDENDUM BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS ADDENDUM AND THE PRICING FOR THE SERVICES.
19. Partner Affiliates. Where an Affiliate of Partner has not entered into an MSP Partner Order or other separate agreement directly with Fullstory, Partner may, subject to Fullstory’s prior written consent, authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Services under an existing MSP Partner Order between Fullstory and Partner. In such cases, references to “Partner” in the applicable MSP Partner Order and the Agreement will be deemed references to both Partner and the Participating Affiliate. Partner and its Participating Affiliates will be jointly and severally liable for compliance with the Agreement and all MSP Partner Orders hereunder. As between Fullstory and Partner, Partner accepts full liability for the acts and omissions of its Participating Affiliates.
20. U.S. Government Customers. The Services and User Guide are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and User Guide. If Partner or any Partner User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Partner, Partner Users, and its Customer must immediately discontinue use of the Services and User Guide. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement. For clarity, nothing in this Section 20 relieves Partner of its obligation under Section 8.2 of this Addendum to obtain Fullstory’s prior written consent before providing any Services to any Government Entity as a Customer. Any use, modification, reproduction, release, performance, display, or disclosure of the Fullstory Products or User Guide by the United States Government is governed solely by the Agreement and is prohibited except to the extent expressly permitted by the Agreement.
21. Miscellaneous. Partner agrees to provide any information and assistance reasonably requested by Fullstory with respect to its Customers. The Agreement, together with any MSP Partner Orders, is the complete and exclusive statement of the agreement between the Parties with respect to Partner’s activities as a Managed Services provider for Fullstory. Any terms and conditions of any other instrument issued by Partner or any Customer in connection with the Agreement which are in addition to, inconsistent with or different from the terms and conditions of the Agreement shall be of no force or effect. Except as otherwise provided in Section 24 of this Addendum, this Addendum may be modified only by a written instrument duly executed by authorized representatives of the Parties.
22. Definitions. Capitalized terms not otherwise defined in this Addendum shall have the respective meanings assigned to them in the MPPA or this Section 22.
“Customer Data” means any content, data, information, or material that is collected by, submitted to, or stored by the Services or otherwise provided to Fullstory by a Partner or on behalf of a Customer, including, but not limited to, Personal Data.
“Customer” means a third-party customer of Partner for Managed Services that has acquired the benefit of the Services through Partner and entered into a Customer Order.
“Managed Services” means the software, products, services and support provided by Partner to its own third-party customers, including the access, use, management and support of the Services on behalf of a Customer, as applicable.
“MSP Partner Order” means a separate order for Services pursuant to this Addendum specifying that it is for the provision of Managed Services by Partner to its Customers with respect to the Services, that is: (a) submitted by Partner through the Partner Portal or the Fullstory website, and accepted by Fullstory or (b) executed by Fullstory and Partner. An MSP Partner Order will specify: (i) the identity of the Customer for which the Managed Services are to be provided; (ii) the subscription start date; (iii) the subscription end date; (iv) any limitations in, or other specifics relevant to, use of the Services (i.e., session limits, seats, data retention), as applicable; and (v) any additional terms and conditions that may be agreed to between Fullstory and Partner relevant to Partner’s use of the Services.
“MSP Partner Order Term” means, with respect to each MSP Partner Order, the initial subscription term for the Services specified in the applicable MSP Partner Order and all Renewal MSP Partner Order Terms, if any.
“Partner User” means an individual employee, agent or contractor of Partner or a Participating Affiliate for whom subscriptions to Services have been purchased by Partner pursuant to the terms of the applicable MSP Partner Order and the Agreement, and who have been supplied user credentials for the Services by Partner or a Participating Affiliate (or by Fullstory at Partner’s or the Participating Affiliate’s request). Partner is responsible for any breach of the Agreement by Partner Users.
“Pass-Through Terms” means Fullstory’s standard Pass-Through Terms of Use for customers of Fullstory-authorized resellers and Managed Service Providers, currently available at https://www.fullstory.com/legal/reseller-pass-through-terms/, unless otherwise agreed to by Customer and Fullstory.
“Security Overview” means Fullstory’s standard security policy overview, available at https://help.fullstory.com/hc/en-us/articles/360020624254-Security-Overview, and as updated from time to time.
“Support” means Fullstory’s standard customer support for the Services, currently described at https://help.fullstory.com/hc/en-us/articles/360020828193-Fullstory-Support-Hours-Response-Times.
23. Counterparts. Any written MSP Partner Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of an executed counterpart of a signature page to an MSP Partner Order by fax or by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant MSP Partner Order.
24. Changes to the Agreement. Fullstory may modify this Addendum at any time by posting a revised version on the Partner Site or in the Partner Portal, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an MSP Partner Order specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewal of the Renewal MSP Partner Order Term, if any. In any case, if Partner objects to the updated Addendum, as its sole and exclusive remedy, Partner may choose not to renew, including canceling any terms set to auto-renew. For the avoidance of doubt, each Program Authorization and MSP Partner Order is subject to the version of this Addendum in effect at the time of the Program Authorization or MSP Partner Order, as applicable.