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Fullstory Partner Program

Master Partner Program Agreement

This Master Partner Program Agreement (this “MPPA”), and its applicable Program Addendums, and the Program Authorization which references this MPPA (together, the “Agreement”) is entered into between the Parties and contains the terms and conditions that govern your access to the Partner Portal and your participation in one or more Programs, and is a contract between Fullstory, Inc., a Delaware (USA) corporation (“Fullstory”), and you or the entity or organization that you represent (“Partner”). The Agreement replaces and supersedes all previous agreements and other communications (oral or written) between Partner and Fullstory relating to the subject matter of the Agreement or the Programs. Capitalized terms not otherwise defined in this MPPA shall have the respective meanings assigned to them in Section 27. 

This MPPA becomes binding and effective on Partner upon signature of a Program Authorization granting Partner the right to participate in a Program, unless otherwise agreed by the Parties in writing.

1. Program Authorization. Unless otherwise directed by Fullstory in writing (email sufficient), including via a Program Authorization, Partner must apply to participate in a Program and receive approval from Fullstory. Fullstory will assess Partner’s qualifications for the Program(s) based on the information provided and, depending on Program type, may request additional information. Fullstory reserves the right to accept or reject any Partner application in its sole discretion. Partner’s participation in any Program will be governed by the terms of this MPPA, and the applicable Program Addendum(s). If Fullstory approves Partner to participate in a Program, the Parties will sign a Program Authorization. Such Program Authorization will designate the scope of authorization granted for Partner’s participation in the indicated Programs, and may designate a geographic restriction to Partner’s authorized activities under the terms of the Agreement (“Territory”).

2. Program Tiers and Benefits. 

2.1. Tiers. Fullstory shall designate a “Tier” for Partner based on the level of Partner’s participation in the Program(s) and other criteria, as set forth in the Agreement, Program Guide, the Partner Portal, or as otherwise indicated to Partner by Fullstory from time to time, including in its initial Program Authorization. Fullstory (i) reserves the right to review Partner’s Tier periodically; (ii) may raise or lower Partner’s Tier in its sole discretion; 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).

2.2. Benefits. Fullstory may offer benefits to Partner based on its 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 Program(s), the Partner Portal, or Partner’s participation in a Program(s) or access to the Partner Portal, at any time, upon reasonable notice.

3. Partner Obligations and Restrictions.

3.1. Training and Certifications; Collaboration. Fullstory may provide Partner with training focused on the marketing and promotion of the Services prior to its participation in any Program(s), and on an ongoing basis. Partner shall be required to participate in such training as instructed by Fullstory from time to time, including to the extent Fullstory offers certification programs. Additionally, upon Fullstory’s reasonable request, prior to its involvement in a Program and from time to time as reasonably requested by Fullstory, Partner agrees to meet, either in person or via teleconference, to discuss the status of the relationship contemplated herein.

3.2. Conduct. During the term of the Agreement, Partner shall conduct itself in a professional and competent manner, consistent with the Agreement. Unless separately authorized in writing by Fullstory, including via an applicable Program Addendum, Partner shall: (i) not sell, resell, distribute, license, or sublicense the Services directly to any Lead (as defined in Section 5 of this MPPA) or any other third party; (ii) refer all Leads to Fullstory in accordance with Section 5 of this MPPA; (iii) not directly or indirectly engage in any unfair, unethical, misleading, disparaging, or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of Fullstory or its products or the Services, including making any statements, representations or depictions concerning Fullstory or the Services, or the services that Partner provides to its own customers, that are false, misleading, deceptive, or inconsistent with the Program Content or User Guide or other materials (including price lists) published or otherwise supplied by Fullstory from time to time; (iv) not make any commitments, warranties, guarantees, or misleading statements to Leads with respect to the features or functionalities of the Services (including any technical specifications), the expected benefits of use of the Services, the pricing thereof, the origin thereof, Partner’s relationship with Fullstory, or Partner’s duties under the Agreement; or (v) not distribute any unsolicited bulk emails (spam) mentioning or referencing Fullstory or the Services. Except as may be expressly provided in an applicable Program Addendum(s), Partner has no authority to (a) negotiate any contract for or on behalf of Fullstory; (b) represent itself as an agent of Fullstory, or (c) bind Fullstory to any contract, representation, or understanding, including those concerning Fullstory or the Services, or any other products or services offered by Fullstory. 

4. Partner Portal. 

4.1. Use. Any use of the Partner Portal is subject to this MPPA and the Site Policies. Partner may only access and use the Partner Portal, or other materials as may be provided to Partner by Fullstory including via the Partner Portal, in accordance with the Agreement and solely for the management of its relationship with Fullstory and any assigned Leads. The Partner Portal may include links to third-party owned platforms and websites (“Third-Party Sites”). The Third-Party Sites are not under the control of Fullstory and Fullstory is not responsible for the content of any Third-Party Site and/or any links contained in the Third-Party Site(s). Partner understands that any access to and use of such Third-Party Sites shall be governed by the applicable terms and conditions, or licenses, referenced on such Third-Party Sites. Fullstory is providing links to the Third-Party Site(s) to Partner only for Partner’s convenience and Fullstory is not responsible for any kind of loss or damage arising out of it, and the access to or any other act on such Third-Party Sites shall be entirely at Partner’s risk.

4.2. Profile. Partner may submit or publish information about itself via the Partner Portal (a “Profile”). Partner agrees that any information it provides in its Profile will be truthful and accurate, and that Fullstory has the right to use, reproduce, display, and otherwise disclose the Profile to third parties solely for purposes relating to its business, and the Program(s). 

4.3. Responsibilities. Partner is responsible for all activities conducted with its Partner Portal login credentials and agrees to use reasonable efforts to prevent unauthorized access to or use of the Partner Portal. Partner shall contact Fullstory promptly if any login credentials are lost, stolen or disclosed to an unauthorized person or if Partner reasonably believes the Partner Portal has been compromised. Partner may be provided access to view Prospect Information (as defined in Section 14) in the Partner Portal and agrees to comply with the terms of the Agreement, including Section 14 of this MPPA, in Processing the Prospect Information.

5. Referral Program and Leads. 

5.1. Referrals. Partner may: (i) identify to Fullstory any potential or prospective End-Customer of the Services; (ii) identify any potential opportunity to complete an expansion of usage (e.g., in order size or volume, a higher level plan, additional features, or higher plan type) of the Services for an existing End-Customer (an “Expansion”) (each of (i) and (ii) as applicable, a “Lead”); and (iii) market and promote the Services to Leads and potential Leads in a manner that reflects favorably on the Services and on the goodwill and reputation of Fullstory. Partner’s compliance with this Section 5 shall be deemed Partners participation in a Program in accordance with the terms of the Agreement. 

5.2. Lead Submission. In the event Partner has identified a Lead, Partner shall be required to submit the Lead to Fullstory via the Partner Portal or via email, as may be designated by Fullstory in its sole discretion (“Lead Registration”). Partner must include all information reasonably requested by Fullstory in its Lead Registration, such as the identity of the Lead and the likely scope of purchase; provided, however, that Partner shall not share Sensitive Data of prospective End-Customers or End-Customers with Fullstory in a Lead Registration, or otherwise. 

5.3. Lead Acceptance. Fullstory will review each Lead and notify Partner through the Partner Portal or via email whether Fullstory accepts such Lead. 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 End-Customer, or, for Expansions, is not already involved in discussions with Fullstory relating to an Expansion; and (b) except for Expansions, has not previously been submitted to Fullstory by another Partner or any other third party or otherwise engaged by or with Fullstory directly. Notwithstanding the foregoing, Fullstory may accept or reject such Leads in its sole, good-faith discretion. If Fullstory accepts a Lead submitted to it by Partner, such Lead will become a “Commissionable Opportunity.”

5.4. Collaboration. At Fullstory’s reasonable request, Partner will discuss a Commissionable Opportunity with Fullstory and assist Fullstory in contacting the Commissionable Opportunity by arranging an introduction, meeting, conference call, or other means of communication between Fullstory and the Commissionable Opportunity. Partner acknowledges that, where reasonably helpful, Fullstory may additionally request Partner to actively engage in the ongoing sales development and/or closing of a Commissionable Opportunity. If Partner fails to make best efforts to comply with this Section 5.4, Partner will forfeit any Referral Fees it may be entitled to in accordance with Section 6 with respect to such Commissionable Opportunity.

5.5. Definitive Agreements. Access to the Services shall be provided by Fullstory to End-Customers that enter into the Service Terms. 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 and any fees charged for the Services.

6. Referral Fee Program.

6.1. Referral Fee Calculation. If Partner submits a Commissionable Opportunity that becomes a Referred Customer, and Partner has not provided an Objection Notice (as defined in Section 6.5), Fullstory will pay to Partner a Referral Fee based on Net Revenue according to Partner’s Tier and as set forth in the Program Guide or as otherwise communicated to Partner by Fullstory from time to time; provided, however, that in order to receive Referral Fees hereunder, Partner must have submitted all account, tax and payment information, reasonably requested by Fullstory (collectively, the “Enrollment Criteria”). 

6.2. Payment. Referral Fees will be deemed 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 the Agreement (the last day of such period, the “Due Date”). All payments will be made in U.S. dollars, unless otherwise specified in writing between the Parties (including in a Program Authorization). If any of the Enrollment Criteria remains outstanding for a period of one hundred eighty (180) days following the Due Date, Partner’s right to receive such applicable Referral Fees shall be forfeited.

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 the 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. Maximum Referral Fee. Notwithstanding the foregoing, unless otherwise communicated to Partner by Fullstory in writing (including via email or the Partner Portal), the aggregate maximum Referral Fee Fullstory will pay to Partner with respect to a Referred Customer is USD $75,000.00.

6.5. Opting Out of Referral Fees. We understand that some Partners, in their efforts to ensure to their own customers that their referrals are neutral and unbiased, may wish to exclude themselves from our Referral Fee Program. Accordingly, if Partner elects, in its sole discretion, not to receive Referral Fees, Partner must notify Fullstory in writing by emailing such notice to partners@fullstory.com with “REFERRAL FEE OPT-OUT” in the subject line (“Objection Notice”). If Partner does not provide an Objection Notice to Fullstory, Partner shall be deemed a participant in a Program in accordance with the terms of the Agreement.

7. Demo Account. Fullstory may provide Partner with access to the Services in furtherance of Partner’s participation in a Program (a “Demo Account”). Any Demo Account shall be restricted to Partner’s internal use solely to allow Partner to understand and demonstrate the capability of the Services and shall otherwise be subject to the Service Terms, unless otherwise agreed in writing by the Parties (the “Service Terms”). For clarity, Partner shall not submit Customer Data (as defined in the Service Terms) to the Demo Account. 

8. Marks and Content. Each Party (“Grantor”) authorizes the other Party (“Grantee”) to use certain of Grantor’s Marks and Content pursuant to this Section 8 during the Term.

8.1. Marks. Grantee may use Grantor’s Marks solely to promote Partner’s Program participation and the Services. Partner’s use of Fullstory’s Marks must comply with the Branding Guidelines and Partner shall include the Fullstory Marks, as well as any required intellectual property notices, on all promotional materials related to the Services, including the Fullstory Content. Any use by Grantee of Grantor’s Marks must be consistent with the Agreement, and all goodwill associated with the use of the Grantor’s Marks will inure solely to Grantor’s benefit. Grantor has the right to control the nature and quality of Grantee’s use of Grantor’s Marks. Grantee shall not: (i) use Grantor’s Marks in a manner that (a) misrepresents Grantee’s relationship with Grantor or is otherwise misleading, or (b) that reflects negatively on Grantor, (ii) associate the Grantor’s Marks 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 Grantor’s sole discretion, or (iii) adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly similar to the Grantor’s Marks or in such a way as to create combination marks with the Grantor’s Marks. If Grantor, in its sole discretion, determines any use by Grantee of Grantor’s Mark is not in compliance with the Agreement, Grantee shall promptly modify or discontinue such use as directed by Grantor.

8.2. Content. Grantee may reproduce and distribute Grantor’s Content solely to promote Partner’s Program participation and the Services. Without limiting the foregoing, Grantee acknowledges that except as expressly provided in this Section and applicable Program Addendum(s), Grantee may not (i) use, reproduce, sell, sublicense, distribute or otherwise transfer any Content of Grantor to any third party or (ii) modify, alter or otherwise create derivative works of any Content of Grantor.

8.3. Rights Grant. Grantor is responsible for ensuring it has all rights in and to Grantor’s Marks and Content necessary to grant Grantee the rights under this Section 8. Grantee acknowledges that all authorizations under this Section 8 with respect to Grantor’s Marks and Content are limited, revocable, nonexclusive and, subject to Section 22, non-assignable and non-transferable.

9. Relationship. Fullstory and Partner are independent contractors, and the Agreement does not create a joint venture, agency, fiduciary, employment relationship or partnership; use of the term “partner” refers only to Partner’s participation in the applicable Program(s). Neither Party nor any of its respective Affiliates is an agent of the other for any purpose or has the authority to bind the other, and nothing in the Agreement or any Program creates any franchise relationship between the Parties. Partner’s participation in any Program is on a nonexclusive basis, and Fullstory is free to enter into the same or similar relationships on the same or different terms with other parties. Partner represents that its execution and performance of the Agreement does not conflict with or breach any contractual, fiduciary or other duty or obligation to which Partner is bound.

10. Compliance with Applicable Laws. Each Party agrees to comply with all Applicable Laws in the performance of its obligations and exercise of its rights under the Agreement. Without limiting the foregoing:

10.3. Each Party shall comply with Applicable Data Protection Laws. Partner shall be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorizations required by Applicable Law from, persons whose Personal Data it elects to share with Fullstory. 

10.4. Each Party shall comply with Applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. Each Party represents, warrants and covenants that in the performance of any activities under the Agreement that it has neither provided nor offered, nor will provide or offer, any illegal or improper bribe, kickback, payment, gift or thing of value to any Government Official or Close Family Member of any Government Official. Each Party agrees to promptly notify the other if it learns of any violation of the foregoing and Fullstory may, at its sole option, immediately terminate the Agreement in the event of such notice, without liability.

10.5. Each Party shall (a) comply with Applicable Laws administered by the applicable Government Entities imposing export controls and trade sanctions, which may include, but are not limited to the U.S. Commerce Bureau of Industry and Security, and the U.S. Treasury Office of Foreign Assets Control (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver any Content or Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Partner represents that it is not a Sanctions Target or prohibited from receiving any Program Content under Applicable Laws, including Export Laws.

11. Fees. Each Party shall, as applicable, pay any fees and costs solely as specified in this MPPA and the applicable Program Addendum(s).

12. Ownership. As between the Parties: (a) Partner owns all right, title and interest in and to Partner’s Marks and Partner Content, including in each case all associated Intellectual Property Rights, and (b) Fullstory owns all right, title and interest in and to Fullstory’s Marks, Program Content, Services, the User Guide and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this MPPA or a Program Addendum, all rights are reserved by the granting Party.

13. Confidentiality.

13.3. Confidential Information. As used in the Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (i) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs, including any such information made available by Fullstory through the Partner Portal; (ii) third-party information that the Discloser is obligated to keep confidential; and (iii) the terms of the Agreement. However, Confidential Information does not include any information that: (a) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with the Agreement; (b) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (c) is acquired by the Recipient from another source without restriction as to use or disclosure; or (d) is or becomes publicly available through no fault or action of the Recipient.

13.4. Use. The Recipient shall not (i) use the Discloser’s Confidential Information for any purpose outside the scope of the Agreement without the Discloser’s prior written consent or (ii) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (a) are bound by non-use and non-disclosure obligations at least as protective as those contained in the Agreement and (b) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under the Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.

13.5. Deletion. Promptly following the request of Discloser, Recipient will return to Discloser, or 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. On request of Discloser, Recipient will confirm to Discloser in writing Recipient’s compliance with this Section 13.3. Notwithstanding the foregoing, Recipient may retain Confidential Information (i) contained in electronic archives and backups made in the ordinary course of business, (ii) that such party is required by law to maintain; or (iii) that such party reasonably determines necessary to demonstrate to the other party or any regulatory authority Recipient’s compliance with the 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. 

14. Prospect Information. During the Term, each Party may provide the other Party identifying or other business and Service use information relating to prospective or actual End-Customers of the Services (“Prospect Information”), including via the Partner Portal. Without limiting clauses (a) and (b) of Section 13.1, each Party will treat Prospect Information, and any Personal Data therein, as Confidential Information. Each Party will only Process Prospect Information in accordance with the Agreement and Applicable Laws, including Applicable Data Protection Laws, and expressly understands that (i) it is prohibited from selling and otherwise sharing the Prospect Information with third parties and (ii) it shall only use the Prospect Information for the purpose of providing the services contemplated by the Agreement, and insights, service and feature announcements and other reporting to End-Customers. Unless expressly authorized by Fullstory in writing, Partner may not use any Prospect Information provided by Fullstory to market Partner’s products or services. Without limiting Section 10.1, each Party will be solely responsible for any Prospect Information it elects to provide to the other Party, including providing any required notices to, and receiving any required consents and authorizations from, the prospects, customers and individuals that are the subjects of such Prospect Information.

15. Publicity. Except as expressly provided in the Agreement, neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to the Agreement, or otherwise use the other Party’s Marks, without the prior written consent of the other Party. Notwithstanding the foregoing, Fullstory may publicly identify Partner as a partner of Fullstory in its promotional materials, interviews, partner lists, and other promotional activities.

16. Representations and Warranties. Partner represents and warrants that it (i) 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 Services, performance of its obligations, and its compliance with, the Agreement and (ii) will comply with all Applicable Laws. Each Party represents, warrants, and covenants that it possesses the right and authority to enter into the Agreement and to exercise its rights and perform its obligations hereunder.

17. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT: (a) THE PROGRAM CONTENT, SERVICES, USER GUIDE, AND ANY BENEFITS OR OTHER MATERIAL THAT FULLSTORY MAY MAKE AVAILABLE IN CONNECTION WITH THE AGREEMENT OR ANY PROGRAM, ARE PROVIDED BY FULLSTORY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND (b) NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

18. Term and Termination. 

18.1. Term. This MPPA, including any applicable Program Addendum(s) will remain in effect until terminated as set forth herein or in a Program Authorization, except that this MPPA will automatically terminate upon termination of Partner’s participation in all Programs (the “Term”).

18.2. Termination. Except as otherwise provided in a Program Addendum, either Party may terminate this MPPA, or any Program Addendum (and its participation in the applicable Program), for any or no reason by giving at least 30 days’ prior written notice. Additionally, either Party may terminate this MPPA, or any Program Addendum (and its participation in the applicable Program) effective on written notice to the other Party, if the other Party materially breaches this MPPA, or the applicable Program Addendum, 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.

18.3. Effect of Termination. If this MPPA is terminated for any reason, except as otherwise expressly set forth in in a Program Addendum: (i) all rights and licenses granted by Partner or Fullstory under the Agreement to the other will terminate; (ii) each Party shall cease to identify itself or the other as, and will not otherwise hold itself or the other out as, a Program partner or participant; (iii) each Party shall immediately discontinue all use of the other’s Marks, Program Content and Demo Accounts, as applicable; and (iv) unless such termination is the result of a material breach by Partner, Fullstory will pay all Referral Fees due to Partner, including those that become due after the effective date of termination; and (v) upon either Party’s written request, the other Party will immediately return or destroy all Confidential Information of the requesting Party.

18.4. Survival. The provisions set forth in Sections 8 through 28, 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.

19. Indemnification. 

19.1. Fullstory Indemnification. Fullstory will defend, indemnify, and hold harmless Partner and its respective directors, officers, employees, representatives, and agents (collectively, the “Partner Indemnitees”) 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, willful misconduct or fraudulent misrepresentation; and/or (ii) that the the Partner Program(s), or the Fullstory Marks (collectively, the “Covered Materials”) infringe or violate any third party Intellectual Property Rights. 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.

19.2. Indemnification Exclusions. Such indemnity pursuant to 19.1(ii) is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from Partner’s: (i) unauthorized alteration of the Covered Materials; or (ii) any use of the Covered Materials by Partner that violates Applicable Law or the terms of this Agreement. In order to resolve any Third-Party Claim relating to subsection 19.1(ii), Fullstory may, but is not obligated to: (a) modify or replace the Covered Materials to make them non-infringing; (b) procure any rights from a third party necessary to provide the Covered Materials; or (c) replace the Covered Materials with work product that is materially equal but is non-infringing. If none of the foregoing remedies is available to Fullstory on commercially reasonable terms, Fullstory may terminate the Agreement. EXCEPT AS MAY OTHERWISE BE PROVIDED IN APPLICABLE PROGRAM ADDENDUM(S), THIS SECTION 19.1 and 19.2 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.

19.3. Partner Indemnification. Partner will defend, indemnify, and hold harmless Fullstory and its directors, officers, employees, representatives, and agents (collectively, the “Fullstory Indemnitees”) from and against any and all Losses to the extent based upon or arising from Third-Party Claims alleging: (i) Partner’s gross negligence or willful misconduct, or fraudulent misrepresentation; (ii) Partner’s breach of Section 3.2; (iii) Partner’s use of the Prospect Information in breach of this Agreement; and/or (iv) Partner’s violation of any Applicable Law.

19.4. Indemnification Procedure. A Partner Indemnitee or Fullstory Indemnitee (each, an “Indemnitee”) shall promptly provide the other Party providing the indemnification (each, an “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 Third-Party Claim); (ii) sole control of the defense and settlement of the Third-Party Claim (except that the Indemnitee’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnitee, 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 Indemnitee, 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 Indemnitee may participate in any indemnified matter with counsel of its’ choosing at its’ own expense.

20. Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 20 OR IN AN APPLICABLE PROGRAM ADDENDUM: (a) IN NO EVENT SHALL 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 IN CONNECTION WITH THE AGREEMENT OR ANY PROGRAM, INCLUDING (IN FULLSTORY’S CASE) WITHOUT LIMITATION ANY INVESTMENTS, EXPENDITURES OR COMMITMENTS BY PARTNER IN CONNECTION WITH A PROGRAM; AND (b) IN NO EVENT SHALL FULLSTORY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED US$500 (THE “LIABILITY CAP”). THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING THE FOREGOING, THE LIABILITY CAP SHALL NOT APPLY TO LIABILITIES ARISING FROM OR RELATING TO FULLSTORY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUDULENT MISREPRESENTATION. 

21. Notices. Subject to change solely pursuant to this Section: (a) Fullstory’s physical address for notices is 1745 Peachtree Street, NE, Suite N, Atlanta, Georgia, USA 30309, Attn: Legal Department, and its email address for notices is legal@fullstory.com; and (b) Partner’s physical and email addresses for notices are those indicated in its Program Authorization. Except as specifically set forth in the Agreement, notices, demands or consents required or permitted to be given under the Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by a reputable overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address; provided that any notice sent via email for an indemnification claim must be followed by a written notice in accordance with one of the other methods of notification. Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.

22. Assignment. Each Party may assign the Agreement in connection with any merger, consolidation or reorganization involving such Party (regardless of whether a surviving or disappearing entity), or a sale of all or substantially all of such Party’s business or assets relating to the Agreement to an unaffiliated third party; provided, however, that in the case of Partner, any such assignment is conditioned on Partner being current in the payment of all amounts due to Fullstory and any individual Program requirements. Fullstory may additionally assign the Agreement, in whole or in part, to an Affiliate. Partner may only assign the Agreement to an Affiliate with Fullstory’s prior written consent, not to be unreasonably withheld. Except as otherwise provided, above, neither Party may assign the Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent, which will not be unreasonably withheld, and any purported assignment in violation of this Section is void. The Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. For clarity, Partner shall not be permitted to sub-contract or outsource any of its obligations under the Agreement or otherwise in its participation in the Program(s).

23. Third-Party Beneficiaries. Except as may otherwise expressly provided in a Program Addendum, the Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement. 

24. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments and each Party’s confidentiality obligations), when and to the extent such failure or delay arises from a cause or causes beyond its reasonable control (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

25. Governing Law; Venue. The Agreement, and all claims arising out of or relating to the Agreement, shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without giving effect to the choice of law rules of that State, except to the extent that Delaware law is contrary to or preempted by United States federal law. Any legal action or proceeding arising under or relating to the Agreement shall be brought exclusively in the state or federal courts located in Delaware, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to the Agreement.

26. Miscellaneous. To the extent that there is any conflict among the MPPA, the Program Addendum(s), and the Program Guide, such conflict will be governed in the following order: (i) the terms of this MPPA; then (ii) the terms of the applicable Program Addendum(s); then (iii) the Program Guide. Except as otherwise provided in Section 28, the Agreement, including this MPPA, may be modified only by a written instrument duly executed by authorized representatives of the Parties. The Agreement is the result of negotiations between sophisticated commercial entities; accordingly, the Parties waive any rule of construction dictating that ambiguities in the Agreement be construed against the drafter. Additionally, the Agreement supersedes any confidentiality or non-disclosure agreement, previously entered into by the Parties. The failure of a Party to exercise or enforce any condition, term or provision of the Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of the Agreement shall not be construed as a waiver of any other condition, term or provision. No waiver of any breach of the 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 the Agreement and no course of dealing between the Parties will be construed as a waiver of any subsequent breach of the Agreement. If any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this MPPA, and all Program Addendums, are for reference only and shall not affect the interpretation of the Agreement. For purposes of the Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole. The 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 the Agreement is legal, valid, and binding execution and delivery for all purposes.

27. Definitions. Capitalized terms not otherwise defined in the Agreement shall have the respective meanings assigned to them in this Section 27. 

“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.

“Applicable Law” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under the Agreement.

“Applicable Data Protection Laws” means all Applicable Laws relating to the processing of Personal Data privacy, and data security.

“AUP” means Fullstory’s standard Acceptable Use Policy, currently available at https://www.fullstory.com/legal/acceptable-use/.

“Branding Guidelines” means Fullstory’s standard branding guidelines, as provided by Fullstory to Partner.

 “Close Family Member” means a spouse, an individual’s and a spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, first cousins, the spouse of any of these people, or any other individuals who share the same household.

“Content” means: (a) Program Content where Fullstory is the Grantor and (b) Partner Content where Partner is the Grantor.

“End-Customer” means a Fullstory customer that has subscribed to the Services.

“Feedback” means bug reports, suggestions or other feedback with respect to Program Content, or the Services provided by Partner to Fullstory, exclusive of any Partner Confidential Information therein.

“Government Entity” means (a) any national, state, regional, or local government (including, in each case, any agency, department, or subdivision of such government); (b) any political party; (c) any entity or business that is owned or controlled by any of those bodies listed in subcategory (a) or (c); or (d) any international organization, such as the United Nations or the World Bank. 

“Government Official” means (a) any director, officer, employee, agent, or representative (including anyone elected, nominated, or appointed to be a director, officer, employee, agent, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; (b) any political party, political party official, or political party employee; (c) any candidate for public or political office; (d) any royal or ruling family member; or (e) any agent or representative of any of those persons listed in subcategories (a) through (d).

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Marks” means, with respect a Party as Grantor, its name and such service marks as it may make available to Grantee for limited use in accordance with Section 8.

“Net Revenue” means the fees for the Services received by Fullstory for eligible subscriptions to the Services 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.

“Partner Content” means such content (excluding software and hosted services) that Partner, at its option, makes available to Fullstory for use by Fullstory in accordance with Section 8 in connection with its participation in the applicable Program.

“Partner Portal” means the online portal for one or more Programs that Fullstory makes available to Partner.

“Partner Site” means Fullstory’s standard information site for the Fullstory Partner Program, currently available at https://www.fullstory.com/partners/.

“Party” means each of Fullstory and Partner; and together the “Parties”.

“Personal Data” means information relating to an identified or identifiable natural person that is protected by Applicable Laws, including Applicable Data Protection Laws, with respect to privacy where the individual resides.

“Privacy Policy” means Fullstory’s standard Privacy Policy, currently available at https://www.fullstory.com/legal/privacy-policy/, as updated from time to time.

“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store, adapt or alter; “Processing” has a correlative meaning.

“Program” means the Partner programs Fullstory offers Partners to participate in accordance with this MPPA or in applicable Program Addendum(s), as further described at the Partner Site. 

“Program Addendum” means the applicable addenda to this MPPA as provided at https://www.fullstory.com/legal/partner-program-addenda/, or, such other addendum to this MPPA as otherwise agreed to in writing by Fullstory and Partner, which contains terms and conditions that govern Partner’s participation in a Program.

“Program Authorization” means the grant by Fullstory to Partner of authority to participate in the specified Program(s) as signed by the Parties in writing and which is governed by the Agreement, unless otherwise agreed by the Parties in writing. 

“Program Content” means such Program-related content (excluding software and Services) that Fullstory may make available to Partner through the Partner Portal or otherwise for use by Partner in accordance with Section 8 in furtherance of Partner’s participation in the applicable Program(s).

“Program Guide” means the program guide made available to Partner by Fullstory, as may be updated from time to time.

“Referral Fees” are the fees payable to Partner in accordance with Section 6 of the Agreement, and as set forth in the Program Guide, or as otherwise communicated to Partner by Fullstory.

“Referred Customer” means a Commissionable Opportunity which has become an End-Customer (excluding trial agreements or paid evaluation periods of less than twelve (12) months) within nine (9) months from the date of Fullstory’s designation of such Lead as a Commissionable Opportunity from Partner, unless such time period is extended by Fullstory in writing.

“Sensitive Data" is any information that requires a heightened degree of protection under 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.

“Service Terms” means the terms and conditions available at https://www.fullstory.com/legal/terms-and-conditions/, unless otherwise agreed in writing by the Parties.

“Services” means the hosted services that are made available by Fullstory online via the applicable login page and other web pages designated by Fullstory. The term Services does not include alpha, beta or other pre-commercial releases of a Fullstory product or service (or feature of functionality of a Service).

“Site Policies” means the AUP, Privacy Policy and Fullstory’s standard Cookie Policy, available at https://www.fullstory.com/legal/cookie-policy/.

“User Guide” means Fullstory’s standard user documentation for the Services, currently available at https://help.fullstory.com/hc/en-us.

28. Changes to Programs and Agreement. Except as otherwise expressly provided in applicable Program Addendum(s), Fullstory reserves the right to modify or discontinue any Program, including any associated Program Guide, Program Content, the Partner Site and the Partner Portal, at any time in its sole discretion. Further, Fullstory may modify this MPPA and the Program Addendums at any time by posting a revised version(s) at 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 a Program Authorization for a particular Program specifies a fixed term of 12 months or longer, the modifications will instead be effective with respect to that Program Authorization and associated Program Addendum immediately upon the Program Authorization’s renewal, if any. In either case, if Partner objects to the updated MPPA or Addendum, as its sole and exclusive remedy, Partner may terminate the MPPA (or applicable Addendum) pursuant to its terms or choose not to renew its then-current Program Authorization, including canceling any terms set to auto-renew. For the avoidance of doubt, unless otherwise agreed in writing by the Parties, each Program Authorization and the associated Program Addendum are subject to the version of the MPPA in effect at the time of the Program Authorization.