Customer Terms and Conditions
Master Services Agreement
Last Updated: May 20, 2026
This Master Services Agreement, including any exhibits, policies, or addenda attached hereto or referenced herein (the “Agreement”) is entered into between the parties and contains the terms and conditions that govern access to the Fullstory Services, and is a contract between Fullstory, Inc., a Delaware (USA) corporation (“Fullstory”), and you or the entity or organization that you represent (“Customer”), and, unless otherwise agreed by the parties in writing, becomes binding and effective on Customer upon the earlier of: (i) Customer’s signature of an Order Form; (ii) Customer’s or its User’s access and use of the Fullstory Services; or (iii) Customer’s or its User’s clicking of an “I Accept,” “Sign Up” or similar button or checkbox referencing this Agreement (“Effective Date”).
If you are using the SaaS Services on behalf of an entity or organization: (a) all references to “Customer” are to that entity or organization, (b) you represent that you are at least eighteen (18) years of age, or have otherwise reached the age of majority where you reside, and (c) you represent that you have the right, power, and authority to enter into this Agreement on behalf of Customer. If the individual does not have such authority, or if the individual does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the SaaS Services and/or any Free Trial Services.
1. Definitions. In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
1.1. “Acceptable Use Policy” means Fullstory’s Acceptable Use Policy, currently available at https://www.fullstory.com/legal/acceptable-use/.
1.2. “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
1.3. “Law” means any local, state, or national law, treaty, or regulation that are applicable to a particular party’s performance under the Agreement.
1.4. “Applications” means Customer’s website(s), native applications, and/or any other digital properties, channels, or systems where Customer uses the SaaS Services.
1.5. “Customer Data” means all electronic data or information submitted by or on behalf of Customer (including its Users) to Fullstory for use through the SaaS Services. For the avoidance of doubt, Customer Data does not include Usage Data (defined in Section 6.3 below) or any Documentation or any other technology or components of the SaaS Services created, developed, or provided by or on behalf of Fullstory.
1.6. “Data Processing Addendum” or “DPA” means the applicable Data Protection Addendum available at https://www.fullstory.com/legal/form-of-standard-dpa/, as may be updated by Fullstory if required by applicable Law.
1.7. “Documentation” means the online user guide and other end user documentation for the applicable Service which may be available on the online help feature of the SaaS Services, including those available at help.fullstory.com, and the Security and Compliance Documentation as updated by Fullstory from time to time.
1.8. “Fullstory Services” means generally available software-as-a-service products provided by Fullstory that are (i) specified in the applicable Order Form, or (ii) provided to Customer as a Free Trial Service.
1.9. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
1.10. “Third-Party Products” means products, services, applications, features, functionalities, technologies, codes, data, content, or materials provided by Customer or a third party that interoperate with the SaaS Services and/or Free Trial Service.
1.11. “Order Form” means an ordering document entered between Fullstory and Customer, specifying the SaaS Services and/or Professional Services to be provided hereunder and the fees to be paid by Customer.
1.12. “Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, first and last name, home address, billing address, or other physical address, email address, telephone number, and Sensitive Data, if any, sent to Fullstory via the SaaS Services.
1.13. “SaaS Services” means the generally available products and services, and any generally available improvements, enhancements, and modifications thereto subscribed to by Customer under an Order Form, including associated offline or mobile components, as described in the Documentation. The “SaaS Services” excludes Professional Services, Support Services, Free Trial Services, and Third-Party Products.
1.14. “Sensitive Data” means any Personal Data or Customer Data that requires a heightened degree of protection by applicable Law. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information, or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted requiring heightened standards for data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act, the Gramm-Leach-Bliley Act, or other similar laws, and special categories of data as defined in the General Data Protection Regulation.
1.15. “Subscription Term” means the length of time for which Customer will have access to the SaaS Services, as set forth in an applicable Order Form and including any Renewal Subscription Term.
1.16. “Users” means individuals (including non-human devices, such as applications or services) who are authorized by Customer to use the SaaS Services, for whom subscriptions to the SaaS Services have been purchased via an Order Form. Users may include Customer’s employees, consultants, contractors, agents, or third parties with whom Customer transacts business.
2. SaaS Services and Professional Services.
2.1. Fullstory Obligations. Fullstory will make the SaaS Services available to Customer pursuant to this Agreement and the applicable Order Form during the Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable (except as expressly permitted in Section 15) right during the Term to allow its Users to access and use the SaaS Services, solely for Customer’s own internal business purposes in accordance with the Documentation. Customer agrees that its purchase of the SaaS Services or the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Fullstory with respect to future functionality or features. Fullstory will provide the SaaS Services in accordance with all Laws (including any applicable data protection laws and regulations) applicable to Fullstory’s provision of the SaaS Services to its customers generally, without regard to Customer’s particular use of the SaaS Services and subject to Customer’s and User’s use of the SaaS Services in accordance with the Agreement and the Documentation.
2.2. Customer Obligations & Restrictions.
2.2.1. Customer is responsible for obtaining, maintaining, and managing any equipment and ancillary services needed to connect to, access, or otherwise use the SaaS Services and/or the Professional Services, including, without limitation, computer networks, modems, hardware, servers, software, operating systems, networking, web servers, and the like, and is solely responsible for maintaining the security thereof. Customer has sole control to determine the types and amounts of such content, data, information, and/or materials that will be processed through the SaaS Services, including any Personal Data that may be included. Customer must use the SaaS Services in compliance with this Agreement, the applicable Order Forms, Documentation, and all applicable Laws.
2.2.2. Customer will not, and will not permit or encourage anyone else, including its Users, to (i) disassemble, decompile, reverse engineer, or otherwise attempt to access or derive source code or other trade secrets from the SaaS Services, or any portion thereof, or modify, make derivative works based upon, copy, or otherwise use any ideas, features, functions, or graphics of the SaaS Services or Professional Services in order to build a product using similar or competitive features, functions, or graphics; (ii) send or store (a) infringing, dangerous, harmful, deceptive, obscene, threatening, libelous, or otherwise objectionable, unlawful, or tortious material, including material harmful to children or which violates third-party privacy rights, or (b) Malicious Code; (iii) access the SaaS Services or Professional Services if Customer is a direct competitor of Fullstory, unless Fullstory has agreed in writing; (iv) use the SaaS Services or Professional Services in violation of Fullstory’s Acceptable Use Policy; or (v) use the SaaS Services or Professional Services in violation of applicable Law.
2.2.3. Customer agrees that it will promptly notify Fullstory of any violation of this Section 2.2. Any use of the SaaS Services by Customer in violation of the Agreement that, in Fullstory’s reasonable judgment, threatens the security, integrity, or availability of Fullstory’s services or that of its other customers, may result in Fullstory immediately suspending the SaaS 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.
2.3. Customer Affiliates. A Customer’s Affiliates may use the SaaS Services under the following circumstances: (i) an Affiliate may sign its own Order Form that incorporates this Agreement by reference, in which case, the Affiliate is considered the "Customer" for the purposes of that Order Form and agrees to be bound by the terms of this Agreement, and provided that the Customer will remain fully liable to Fullstory for the actions and omissions of its Affiliate; or (ii) Customer may authorize an Affiliate to access and use the SaaS Services as a User under Customer's existing account, in which case Customer and Affiliate will be jointly and severally liable for Affiliate’s compliance with this Agreement and all applicable Order Form(s) hereunder.
2.4. Professional Services. Customer and Fullstory may enter into an Order Form or statement of work that describes certain Professional Services to be performed by Fullstory (“SOW”). “Professional Services” means implementation assistance and configuration services provided by Fullstory in connection with the SaaS Services, as described more fully in a SOW. Professional Services excludes the SaaS Services, Free Trial Services, Support Services, and Third-Party Products. Each SOW will incorporate this Agreement by reference. Each such Order Form or SOW will be governed by the terms of this Agreement. Fullstory will perform the Professional Services in a professional and workmanlike manner consistent with applicable industry standards. In providing Professional Services, Fullstory may provide deliverables, documentation, standard templates or dashboards, or other materials ("FS Materials"). Fullstory retains all right, title, and interest in and to the FS Materials. Fullstory hereby grants Customer a non-exclusive, non-transferable right and license to use such FS Materials solely for Customer’s internal business purposes in connection with its use of the SaaS Services. As between the parties, Customer owns any “Custom Deliverables”, meaning materials specifically developed by Fullstory for Customer under the applicable SOW (excluding Fullstory's pre-existing or generally applicable templates, tools, and methodologies, which Fullstory retains and licenses to Customer for use solely with the Custom Deliverables and the SaaS Services). Customer grants Fullstory a non-exclusive, royalty-free, perpetual license to use the Custom Deliverables in connection with the services, provided that Fullstory will not disclose Customer's Confidential Information. Nothing in this Agreement limits Fullstory's right to use general skills, know-how, ideas, and methodologies developed or retained in the course of performing Professional Services.
3. Security and Support.
3.1. Security & Data Processing. Fullstory will maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data, as described in the Security and Compliance Documentation (where "Security and Compliance Documentation" means the documentation applicable to the specific SaaS Services purchased by Customer, as updated periodically, and accessible via fullstory.com/legal/security-and-compliance, or as otherwise made reasonably available by Fullstory). Fullstory will conform with security protocols which are further described in Fullstory's most recently completed SSAE18, or successive standard, SOC 2 audit report, or other similar independent third-party annual audit report (“Audit Report”). Fullstory will make the then-current Audit Report available to Customer by self-service download at https://trust.fullstory.com. During the Term, Fullstory will not materially diminish the overall protections provided by the controls set forth in Fullstory’s then-current Audit Report. To the extent Fullstory processes any Personal Data (as defined in the DPA) on Customer’s behalf in the provision of the SaaS Services, the terms of the DPA are hereby incorporated by reference and the parties agree to comply with such terms. For purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data controller, and Customer's signing or entering into this Agreement and/or any Order Form, and/or an applicable Affiliate's signing of or entering into an Order Form, will be treated as signing the Standard Contractual Clauses and their Appendices.
3.2. Privacy Configuration. As between Customer and Fullstory, Customer is solely responsible for how the SaaS Services is configured on Applications, including for any Customer Data collected as a result of that configuration. Customer will ensure that its collection, provision, and use of Customer Data complies with all applicable Laws, rules, and regulations. Customer must configure the SaaS Services to prevent the collection, transmission, or processing of any Sensitive Data and must use reasonable efforts to limit the inclusion of other Personal Data in Customer Data to the amount that is directly relevant to and necessary for Customer’s use of the SaaS Services. If Customer discovers that any Customer Data does include Sensitive Data, Customer will promptly notify Fullstory and provide sufficient information to Fullstory to locate such Sensitive Data, and Fullstory’s sole obligation will be to delete the Sensitive Data in its control or possession upon such notification.
3.3. Support. During the applicable Term, Fullstory will provide support services to Customer in accordance with its then-current support policy, located at https://help.fullstory.com/hc/en-us/articles/19483159822359-FullStory-Support-Policy-and-Service-Level-Agreements (“Support Policy”). Standard support is included with the SaaS Services at no additional charge to Customer. Any updates or modifications to the Support Policy will not materially diminish Fullstory’s responsibilities under the Support Policy during the applicable Term.
4. Confidentiality.
4.1. Confidential Information. "Confidential Information" means all business, technical, financial or other information or data in any form or medium (whether oral, written, electronic, or otherwise) disclosed by one party (the “Discloser”) to the other (the “Recipient”) that is marked as confidential or that a reasonable person would understand to be confidential under the circumstances. Confidential Information does not include information that: (a) is or becomes publicly known through no fault of Recipient; (b) was rightfully known to Recipient before disclosure; (c) is lawfully received from a third party without a breach of any confidentiality obligation; or (d) was independently developed by Recipient without use of or reference to Discloser's Confidential Information. If Recipient is compelled by law to disclose Confidential Information, it will provide prior notice to Discloser (if legally permitted) and reasonable assistance, at Discloser's cost, if Discloser wishes to contest the disclosure, and will use reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Fullstory's Confidential Information includes pricing, non-public aspects of the SaaS Services, Free Trial Services, and Feedback.
4.2. Use and Protection of Confidential Information. Recipient agrees to protect Discloser’s Confidential Information with the same degree of care it uses for its own similar information, but no less than a reasonable standard of care. Recipient will not use or disclose any Confidential Information for any purpose outside the scope of this Agreement without Discloser's prior written permission, except to its Affiliates, employees, officers, directors, attorneys, auditors, financial advisors, contractors, and other representatives who have a need to know and are bound by confidentiality obligations at least as protective as those herein. Recipient is responsible for any breach of this Section 4 by its personnel. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential parties to a bonafide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that the party to whom the terms are disclosed is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein. The obligations set forth in Section 3.1 (Security) and not this Section 4 apply to Customer Data. In the event of a breach of the provisions of this Section, the non-breaching party may be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
5. Free Trials.
Fullstory may provide Customer with the option to use Free Trial Services. “Free Trial Services” means any product, service, feature, or functionality, or any improvements, enhancements, and modifications thereto, that Fullstory makes available to Customer to try at Customer’s option, at no additional charge, including associated Fullstory offline or mobile components, as described in the Documentation, and which may be designated, including via the user interface of the SaaS Services or other communications to Customer, as “beta”, “alpha”, “trial”, “pre-GA”, “pre-release”, “pilot”, “developer preview”, “free trial”, “free plan”, “preview”, “early access”, “experimental”, “evaluation”, “proof of concept (POC)”, or by a similar designation. “Free Trial Service” excludes paid SaaS Services, “FullstoryFree”, and Third-Party Products. Any use of Free Trial Services will be solely at Customer’s own risk and may be subject to additional requirements as specified by Fullstory, and all Free Trial Services are provided as-is and without warranty of any kind, express or implied. Fullstory will have no liability under this Agreement (including any indemnification obligations) arising out of or related to Customer’s use of any Free Trial Services.
6. Ownership and Feedback.
6.1. Customer Data. As between Fullstory and Customer, Customer owns its Customer Data. By submitting Customer Data to the SaaS Services, Customer hereby grants to Fullstory and its Affiliates and applicable contractors a worldwide, non-exclusive, non-transferable, royalty-free, fully-paid, limited-term license to host, copy, transmit, display, process, and use Customer Data, as reasonably necessary for Fullstory to provide the SaaS Services in accordance with this Agreement and to monitor, develop, and improve the SaaS Services and/or Professional Services. Subject to the limited licenses granted herein, Fullstory acquires no right, title, or interest in any Customer Data. 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, and for the means by which Customer acquired Customer Data.
6.2. Fullstory’s Ownership of the SaaS Services. Except for the limited right to access and use the SaaS Services under this Agreement and the applicable Order Form, Fullstory and its licensors retain any and all right, title, and interest in and to the SaaS Services, the Free Trial Services, the Professional Services, and the Documentation (collectively, the “Fullstory Products”), as well as all patents, trademarks, copyrights, trade secrets, mask works, and other intellectual property or proprietary rights (“Intellectual Property Rights”) associated with any of the foregoing. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
6.3. Usage Data. "Usage Data" means data and information generated by Fullstory in connection with the provision, operation, monitoring, and improvement of the SaaS Services and Free Trial Services that does not identify Customer or any User(s) to any third party. Nothing herein will be construed as prohibiting Fullstory from retaining, utilizing, or disclosing the Usage Data for purposes of providing and improving the SaaS Services or the Free Trial Service; provided that the Usage Data will be de-identified and/or aggregated so that it will not disclose the identity of Customer or any User(s) to any third party. Fullstory owns any Usage Data, and nothing herein may be construed as prohibiting Fullstory from utilizing the Usage Data for purposes of operating Fullstory's business.
6.4. Feedback. If Customer provides Fullstory with any feedback or suggestions about the Fullstory Products or Fullstory’s business operations (the “Feedback”), Fullstory may use the Feedback without obligation to Customer, and Customer irrevocably assigns to Fullstory all right, title, and interest in and to the Feedback (excluding any of Customer’s Confidential Information included in such Feedback). Customer will have no obligation to provide Feedback, and Fullstory will have no obligation to use Feedback. Feedback does not include Customer Data.
6.5. Third-Party Products. Customer may use, at Customer’s sole discretion, Third-Party Products that interoperate with the SaaS Services. Customer's decision to enable any Third-Party Products is at its sole discretion. Any use by Customer of a Third-Party Product is a relationship solely between Customer and the applicable provider, and Customer is responsible for complying with that provider's terms. By enabling a Third-Party Product, Customer grants Fullstory permission to allow the Third-Party Product provider to access Customer Data as required for the interoperation of that Third-Party Product with the SaaS Services. Fullstory is not responsible for any use, disclosure, modification, or deletion of Customer Data resulting from that access. Fullstory cannot guarantee the continued availability of any Third-Party Product integration and may cease providing it without entitling Customer to any refund, credit, or other compensation. Providers of Third-Party Products are not Sub-processors of Fullstory as defined in the DPA.
7. Payment of Fees.
7.1. Fees. Customer will pay Fullstory all fees set forth in the applicable Order Form or otherwise agreed by the parties (“Fees”). Except as otherwise stated on an Order Form: (i) all Fees will be paid in advance on an annual basis; (ii) all Fees will be paid in United States Dollars (USD); (iii) Fees for the SaaS Services include standard support services at no additional charge; (iv) Fullstory will not bear the cost of Customer’s transaction fees related to this Agreement; and (v) the Fees will not increase during the initial Subscription Term (provided that quantities and features elected by Customer remain the same). Each Order Form will automatically renew for subsequent one-year periods (each a “Renewal Subscription Term”) unless either Party provides written notice of non-renewal at least sixty (60) days before the end of the then-current term. Unless otherwise stated in an Order Form, all Fees are non-cancelable and non-refundable. Fees for any Renewal Subscription Term will be at a 7% premium from the preceding term, provided the features and services elected for such renewal are the same as the prior term.
7.2. Invoicing and Payment. Fullstory will invoice Customer as set forth in the Order Form. All invoices are payable in U.S. dollars and are due thirty (30) days from the invoice date. For any undisputed amounts past due, Fullstory may charge interest of 2% of the outstanding balance per month, or the highest rate permitted by law, whichever is lower. Customer will be responsible for all reasonable costs incurred by Fullstory in collecting any past due amounts.
7.3. Payment Disputes. Customer must notify Fullstory in writing of any disputed invoice amounts within fifteen (15) days of receipt. Failure to do so will be deemed a waiver of Customer's right to dispute such invoice. The parties agree to cooperate diligently to resolve any good-faith disputes. If any undisputed amount owed by Customer is thirty (30) or more days overdue, Fullstory may, without limiting its other rights and remedies, suspend all SaaS Services or Professional Services until such amounts are paid in full.
7.4. Purchase Orders. If Customer requires the use of a purchase order, Customer is responsible for providing the applicable purchase order at the time of purchase. Any terms or conditions within a Customer-issued purchase order, vendor onboarding portal, or other ordering document are void and will have no effect, even if Fullstory references such a document. Customer’s failure to provide a purchase order will not relieve it of its payment obligations.
7.5. Taxes. Fees do not include, and may not be reduced to account for, any taxes, including any local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use, or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form (excluding taxes based on Fullstory’s net income, property, or employees), unless Customer provides Fullstory with a valid tax exemption certificate authorized by the appropriate tax authority. If Fullstory has the legal obligation to pay or collect Taxes for which Customer is responsible, Fullstory will invoice Customer for taxes owed and Customer will pay that amount in addition to the Fees owed.
8. Term and Termination.
8.1. Term. The term of this Agreement will commence on the Effective Date and continues until the Subscription Term in all Order Forms have expired or have otherwise been terminated (the “Term”).
8.2. Termination. Either party may terminate this Agreement by providing written notice to the other party in the event that (i) such other party is in material breach of this Agreement and fails to remedy such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. In the event of termination by Customer pursuant to this Section 8.2 (i), Fullstory will refund to Customer a pro rata portion of any pre-paid and unused Fees for the remainder of the applicable Term after the effective date of termination and a pro-rata portion of any prepaid Professional Services fees that cover Professional Services that have not been delivered as of the effective date of termination. For clarity, a breach or termination of any SOW will not be considered a breach or termination of this Agreement or any Order Form.
8.3. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all rights and subscriptions granted to Customer (including all Order Forms) will immediately terminate and Customer will cease using the SaaS Services and Fullstory Confidential Information. Termination will not relieve Customer of its obligation to pay any fees accrued prior to the effective date of termination.
8.4. Data Retention and Deletion.
8.4.1. During the Term. During the Term, Fullstory will make Customer Data available for export through the in-product tools described in the Documentation, in an industry-standard format, and Customer is responsible for exporting any Customer Data it wishes to retain prior to the effective date of termination or expiration of the Agreement.
8.4.2. Post-Termination. After the Term, Fullstory will provide Customer with access to previously-captured session replay data for up to thirty (30) days. Fullstory will have no further obligation to maintain Customer Data and will delete all Customer Data in its systems in accordance with the timelines described in the applicable Documentation, and in any event no later than six (6) months following the effective date of termination or expiration of the Agreement. Customer may request earlier deletion at any time by written request to support@fullstory.com. Upon written request, Fullstory will provide Customer with a certificate of deletion. The foregoing is subject to Fullstory's right to retain Customer Data to the extent required by applicable Law or as described in an Order Form.
8.4.3. Legal Holds. If Customer requests that Fullstory retain any specific or general categories of Customer Data for a defined or undefined period of time as a result of any anticipated or active claims by or against Customer, then Customer will pay any additional costs for such retention beyond the retention periods otherwise applicable under this section or the applicable Order Form.
8.5. Survival. Upon expiration or termination of the Agreement, all rights and obligations will immediately terminate except that any accrued payment obligations and other sections of the Agreement that by their nature should survive such termination will survive, including, but not limited to, the sections on Confidentiality, Ownership and Feedback, Payment of Fees, Termination, Indemnification, Limitation of Liability, Notices, and Miscellaneous provisions (below), will survive any termination or expiration of this Agreement; all other rights and obligations will be of no further force or effect.
9. Representations & Warranties and Disclaimers.
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Fullstory Warranties. Fullstory warrants that during the applicable Subscription Term: (i) the SaaS Services will perform materially in accordance with the applicable Documentation; and (ii) Fullstory will employ then-current, industry-standard measures to test the SaaS Services to detect and remediate Malicious Code designed to negatively impact the operation or performance of the SaaS Services. As Customer’s sole and exclusive remedy and Fullstory’s entire liability for a breach of the warranties set forth in Section 9.2(i), Fullstory will use commercially reasonable efforts to correct the non-conforming Service at no additional charge to Customer; in the event Fullstory fails to successfully correct the SaaS Services within a reasonable time from receipt of written notice from Customer detailing the breach, then Customer will be entitled to terminate the applicable Service and receive a refund of any prepaid, unused Fees for the non-conforming Service. The warranties set forth in this subsection will apply only if the applicable Service has been utilized in accordance with this Agreement and applicable Law and Documentation.
9.3. Customer Warranties. 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 Customer Data that is placed on, transmitted via, or collected by the applicable Service; (ii) it has and will maintain throughout the Term a valid, lawful basis to process Customer Data pursuant to and in accordance with the terms of this Agreement; and (iii) the provision and use of Customer Data as contemplated by this Agreement and the SaaS 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.
9.4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.2 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SAAS SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS”. FULLSTORY DOES NOT WARRANT THAT THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SAAS SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR THE CONCLUSIONS IT DRAWS FROM ITS USE OF THE SAAS SERVICES AND FOR ITS COMPLIANCE WITH ALL APPLICABLE LAWS. FULLSTORY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. FULLSTORY DISCLAIMS ALL LIABILITY FOR DELAYS, FAILURES, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND MAKES NO WARRANTY REGARDING ANY THIRD-PARTY PRODUCTS. FURTHERMORE, ALL FREE TRIAL SERVICES ARE PROVIDED "AS IS" WITHOUT ANY COMMITMENTS, INDEMNITY, OR WARRANTY OF ANY KIND, AND FULLSTORY WILL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM ARISING FROM OR RELATED TO THE FREE TRIAL SERVICES.
10. Mutual Indemnification.
10.1. Fullstory Indemnification of Customer. Fullstory will defend, indemnify, and hold harmless Customer, its Affiliates, and their respective directors, officers, employees, representatives, and agents (collectively, the “Customer Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a third-party claim (collectively, “Claims”) alleging that the SaaS Services or Customer’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. Fullstory will pay all Losses incurred by and damages against the Customer Indemnified Parties but will not be responsible for any compromise or settlement made without its express prior written consent. Such indemnity is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from Customer’s (a) unauthorized alteration of the SaaS Services; (b) use of the SaaS Services in combination with apparatus, hardware, software, or services not provided or authorized by Fullstory; (c) any use of the SaaS Services by Customer that violates any law or regulation of any governmental authority or self-regulatory agency or authority applicable to Customer; or (d) the nature, origin, or content of Customer Data. In order to resolve any such Claim, Fullstory may, at its sole option, obtain for Customer the right to continue use of the applicable SaaS Service or replace or modify the applicable SaaS Service so that it is no longer infringing. If neither of the foregoing remedies is available to Fullstory on commercially reasonable terms, Fullstory may terminate this Agreement and Fullstory will refund to Customer a prorated portion of any prepaid fees allocable to the period after such termination. THIS SECTION 10.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND FULLSTORY’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
10.2. Customer Indemnification of Fullstory. Customer will defend, indemnify, and hold harmless Fullstory, its Affiliates, and their respective directors, officers, employees, representatives, and agents (the “Fullstory Indemnified Parties”) from and against any and all Claims arising out of or related to the nature, origin, or content of Customer Data.
10.3. Procedure for Handling Indemnification Claims. As a condition to a party’s obligations under Sections 10.1 or 10.2, the party being indemnified (the “Indemnified Party”) will provide the party providing the indemnification (the “Indemnifying Party”) with: (i) prompt written notice of the Claim (provided that the failure to provide such notice will not relieve a party of its obligations unless such failure prejudices its ability to defend the Claim); (ii) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (iii) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
11. Limitation of Liability.
11.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, OR OTHER INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, OR ACCURACY OF RESULTS, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. EXCEPT FOR A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, CUSTOMER’S PAYMENT OBLIGATIONS, AND/OR CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2.2 (CUSTOMER OBLIGATIONS), EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (a) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (b) $1,000 (THE “LIABILITY CAP”).
12. Insurance. Fullstory agrees to maintain, throughout the Term, industry standard insurance coverage in amounts appropriate to the nature of its business. All insurance policies required under this Section 12 will be issued by insurance companies with a Best’s rating of no less than A-VII. Upon Customer’s written request, Fullstory will provide Customer with copies of its most recent certificates of insurance. Nothing in this Section 12 is intended to waive, restrict, or limit the liability of either party under this Agreement.
13. Special Terms for Government Customers (if applicable). 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.
14. Notices. Except as specifically set forth in this Agreement or an Order Form, all notices, demands, or consents required or permitted under this Agreement will be in writing. Notice will be considered delivered and effective (a) when personally delivered; (b) one (1) day after posting when sent by reputable private overnight carrier; (c) five (5) days after posting when sent by certified United States mail; or (d) one (1) business day after being sent by email to the email address provided in (i) the signature block (provided that any notice of indemnification pursuant to Section 10 must be delivered to the physical address of the other party after any email notice is provided) or (ii) the applicable email address provided in Customer’s administrative account in the SaaS Services. All notices must be sent to the respective addresses set forth on the signature page to this Agreement or to such other address as may be provided by either party to the other party in writing.
15. Assignment. Each party agrees that it will not assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed, provided that either party may assign this Agreement without prior written consent to: (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of the stock or assets of such party, or (iii) a successor by merger. Any attempted assignment or transfer in violation of this Section 15 will be void. This Agreement will inure to the benefit of and be binding upon any successor or permitted assigns of either party.
16. Miscellaneous.
16.1. No Third-Party Beneficiaries. The parties intend that there will be no third-party beneficiaries under this Agreement.
16.2. Export Laws. Customer will comply with all laws and regulations governing export, re-export, and economic sanctions. Customer will not permit any person or party to access or use the SaaS Services or Confidential Information in violation of such laws and regulations, including 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 any other U.S. government list of prohibited or restricted parties, or any entity owned 50 percent or more by such a party, as each may be amended from time to time. If Customer is named on any official sanctions list or if Fullstory is otherwise prohibited from providing the SaaS Services or Professional Services to Customer, Fullstory may immediately terminate any Order Form and will not be obligated to continue to provide the SaaS Services or Professional Services to Customer.
16.3. Anti-Bribery and Anti-Corruption. Each party will comply with applicable Law concerning bribery and corruption.
16.4. Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents, and neither party has the authority to bind the other party in any respect whatsoever.
16.5. Entire Agreement. This Agreement, the applicable Order Form, and any attachments and schedules attached thereto constitute the parties’ entire agreement with respect to their subject matter and supersede any prior or contemporaneous agreements, written or oral, relating thereto. To the extent there is any conflict among the terms of this Agreement and the applicable Order Form, such conflict will be governed in the following order: (1) the terms of the Order Form; and then (2) this Agreement and any applicable addenda, the terms of which are incorporated into the Order Form by reference. No different or additional terms or conditions contained in or linked from any purchase order or other instrument issued by Customer and purporting to govern Customer’s use of the SaaS Services or Professional Services will be binding on the parties, even if signed and returned, unless the parties expressly agree in a writing, separate from such purchase order, to be bound by such terms and conditions.
16.6. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement and no course of dealing between the parties will be construed as a waiver of any subsequent breach of this Agreement.
16.7. Force Majeure. Neither party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations) if prevented from doing so by a cause or causes beyond its reasonable control. Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, Internet slow-downs or failures, computer hackers, pandemics, 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.
16.8. Severability. If any provision of this Agreement is deemed to be illegal, invalid, or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16.9. 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.
16.10. Governing Law.
16.10.1. Governing Law (All Customers except as stated below). This subsection only applies if Customer is located outside the European Economic Area, including but not limited to the United States. This Agreement, and all matters arising directly or indirectly from this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of Delaware, and without regard to the U.N. Convention on the International Sale of Goods, and will be litigated exclusively in the federal or state courts of Wilmington, Delaware; the parties consent to personal jurisdiction and venue in those courts.
16.10.2. Governing Law (European Economic Area Customers). This subsection only applies if Customer is located in the European Economic Area (including the European Union, Switzerland, or the United Kingdom). This Agreement, and all matters arising directly or indirectly from this Agreement, will be governed by and construed in accordance with the laws of England and Wales, without giving effect to its choice of law rules, and without regard to the U.N. Convention on the International Sale of Goods, and will be litigated exclusively in the courts located in London, England; the parties consent to personal jurisdiction and venue in those courts.
Previous MSA versions: