Welcome to the Salsify Open Catalog! The “Open Catalog” is a standardized product content catalog hosted by Salsify, Inc. (“Salsify”), that enables brand manufacturers (each, a “Supplier”) and retailers (each, a “Retailer”) (together, Suppliers and Retailers, “Participants” and, each, a “Participant”) to exchange digital assets and related product information made available by Participants in the Open Catalog (collectively, “Product Content”). For clarity, if any Participant acts both as a Retailer and as a Supplier of Product Content, then such party shall also be obligated to comply with the terms and conditions set forth herein for both Suppliers and Retailers, as applicable.
1. General Obligations
- Access and Use. Salsify hereby grants to each Participant a non-exclusive, non-transferable and non-sublicensable right during the Term (defined below) to access and use the Offering solely for Participant's own business purposes.
- Restrictions. Participant shall not: (i) permit any third party to access the Offering, (ii) reverse engineer or create derivative works based on the Open Catalog or the Offering, (iii) copy, frame, mirror, reverse engineer, or create derivative works from any part or content of the Offering, (iv) access the Offering in order to build a product or service that is competitive with Salsify, or (v) upload, post, store, distribute, transmit, sell, promote or provide any Product Content or other material that is illegal to store or transmit, or that violates or infringes the intellectual property rights or rights to the publicity or privacy of others.
- Reservation of Rights; Acknowledgement of Ownership. Except for the limited rights granted to each Participant herein, Salsify reserves all right, title, and interest in and to the Open Catalog and the Offering, including all modifications, derivatives, enhancements, and improvements thereto.
- Content Usage Agreements. Participants may have separate agreements regarding the sharing of content between or among them (“Content Usage Agreements”). Participants hereby acknowledge and agree that these OC Terms do not modify any such existing Content Usage Agreement(s), and that Salsify shall not, under any circumstances, be liable for Participants breach of any Content Usage Agreement(s).
2. Supplier Obligations
Supplier Participant Listing. Supplier hereby grants to Salsify a worldwide, royalty-free license to use the Supplier’s company name and brand names, solely for the purpose of identifying Supplier as a Participant.
Supplier Reservation of Ownership. Supplier hereby grants, subject to the restrictions and conditions contained in these OC Terms: (i) Salsify a worldwide, perpetual, royalty-free, non-exclusive, non-transferable, and non-sublicensable right to access, use, store, and transmit the Product Content in and through the Open Catalog, and (ii) Retailer (that has agreed to substantially similar terms to these OC Terms) a worldwide, perpetual, royalty-free, non-exclusive, non-transferable, and non-sublicensable right to use the Product Content for its retail purposes. Except for the limited license granted in this Section 2(b), Supplier reserves all right, title, and interest in and to its Product Content. Supplier is responsible for securing all necessary consents, prior to making its Product Content available in the Open Catalog, for the collection, storage, and use as contemplated hereunder, of any such Product Content and represents and warrants that it has all legal rights necessary to grant these rights, and that Product Content does not libel, defame, invade the privacy of, or violate the proprietary rights of any person.
Product Content. Supplier will use commercially reasonable efforts to maintain its Product Content as accurate and up-to-date in the Open Catalog.
3. Retailer Obligations
- Retailer Participant Listing. Retailer hereby grants to Salsify a worldwide, royalty-free license to use the Retailer’s company name and brand names, solely for the purpose of identifying Retailer as a Participant.
- Retailer Use Restrictions. Retailer shall not: (i) transfer, assign, or sublicense the rights conferred upon Retailer by the se OC Terms (ii) sell, rent, lease, lend, or transfer any portion of Product Content not owned by the Retailer,, (iii) materially alter Product Content.
- Updated Product Content. Retailer will use commercially reasonable efforts to use, and to display to consumers, the most-up-to-date Product Content from the Open Catalog.
4. Fees. Notwithstanding Salsify’s rights herein to modify the Open Catalog, in no event will Salsify charge a fee to use the Offering under these OC Terms.
5. Trademarks. “Salsify,” “Open Catalog” and all Salsify logos and other words or symbols representing Salsify as the source of the Offering (“Salsify Trademarks”) are owned by Salsify. Participants may not use Salsify Trademarks without Salsify’s written permission. All other trademarks, service marks, product names and company names or logos appearing in the Offering that do not belong to Salsify (“Third-Party Trademarks”) are the property of their owners. Salsify conveys no rights or licenses with respect to Third-Party Trademarks.
6. Disclaimer of Warranties. THE SOLUTIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND AND SALSIFY AND ITS RESPECTIVE AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SALSIFY DOES NOT WARRANT THAT SOLUTIONS WILL MEET PARTICIPANT’S REQUIREMENTS, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOLUTIONS SHALL RESULT IN ANY SALES OR PROFIT FOR PARTICIPANT. TO THE FULLEST EXTENT PERMITTED BY LAW, SALSIFY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOLUTIONS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ALL PRODUCT CONTENT PROVIDED BY OR MADE AVAILABLE BY ANY PARTICIPANT VIA THE OPEN CATALOG IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND BY SALSIFY. SALSIFY DOES NOT GUARANTEE THAT THE PRODUCT CONTENT IS ACCURATE, UP-TO-DATE, OR FREE OF ERRORS.
7. Limitations of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT), REGARDLESS OF THE FORM OF THE ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SALSIFY BE LIABLE CONCERNING THESE OC TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF $10,000 (THE “CAP”), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT, IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS; SALSIFY’S AGGREGATE LIABILITY HEREUNDER WILL NOT EXCEED FIVE (5) TIMES THE CAP.
- Salsify Indemnity. Salsify will indemnify, defend, and hold Participant, its directors, officers, employees, and representatives, harmless from and against any and all losses, damages, liability, costs, and expenses awarded finally by a court of competent jurisdiction or agreed upon in settlement (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of any third-party claim alleging that Salsify’s provision of the Open Catalog infringes any U.S. patent, copyright, trademark, or trade secret.
- Exclusions to Salsify’s Indemnity. Section 8 (a) will not apply if the alleged claim arises, in whole or in part, from: (i)(a) a use or modification of the Offering by Participant in a manner outside the scope of any right granted under these OC Terms, or (b) a combination, operation, or use of the Offering with other software, hardware or technology not provided by Salsify if the claim would not have arisen but for the combination, operation, or use (clauses (i)(a) and (i)(b) collectively referred to as a “Participant Indemnity Responsibility”); or (ii) the Product Content.
- Supplier Indemnity. Supplier will indemnify, defend, and hold harmless Salsify, its directors, officers, employees and representatives, from and against any and all Losses arising out of any: (i) Participant Indemnity Responsibility; or (ii) Supplier’s breach of any term of these OC Terms; or (iii) Product Content contributed to the Open Catalog by such Supplier.
- Retailer Indemnity. Retailer will indemnify, defend, and hold harmless Salsify, its directors, officers, employees, and representatives, from and against any and all Losses arising out of any: (i) Participant Indemnity Responsibility; or (ii) Retailer’s breach of any term of these OC Terms.
- Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action, except where such failure to notify does not materially prejudice the indemnifying party; (ii) reasonably cooperating in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party, provided that that the indemnifying party may not settle any claim in a manner that admits liability or otherwise prejudices the indemnified party, without the prior written consent of the indemnified party.
9. Information Security.
- Participant is responsible for the security of passwords created by users under its account and for all activities that occur using its account if accessed with any of its passwords, including liability for damages resulting from misuse. If Salsify considers a password under Participant’s account insecure, Salsify may require Participant to change the password in order to access the account.
- Participant may not attempt to violate the security of the Open Catalog, or use the Offering to violate the security of other persons or websites or to violate the law, including by: (i) accessing data not intended for Participant or logging into an account that Participant is not authorized to access, (ii) attempting to probe, scan, or test the vulnerability of the Offering or to breach security or authentication measures, or (iii) attempting to interfere with service to any user, host, or network, including without limitation, by submitting a virus to the Open Catalog. Salsify reserves the right to immediately suspend any users or to remove from the Open Catalog any Product Content it deems to be a security risk.
- Salsify will take all reasonably-necessary steps to investigate suspected violations of these OC Terms. Salsify reserves the right to involve, and to fully cooperate with, any law enforcement authorities and Salsify will comply with applicable court orders requesting or directing Salsify to disclose the identity of anyone engaging in conduct that is believed to violate applicable law.
10. Term & Termination. These OC Terms will continue in effect until terminated either by Participant or Salsify in accordance with this Section. Participant may terminate its Open Catalog account at any time by providing written notice to Salsify. Salsify may discontinue or modify any or all aspects of the Open Catalog without prior notice to Participant. Salsify may also suspend or terminate Participant’s access to the Offering at any time for any reason. If Salsify makes material changes to these OC Terms, Participant will be asked to review and accept the changes the next time Participant accesses the Open Catalog. If Participant does not agree to the new terms, Participant’s sole recourse is to discontinue use of the Offering.
11. General Terms
- Each party hereby represents, warrants, and covenants that: (i) it has full corporate power and authority to enter into these OC Terms and to perform its obligations hereunder; (ii) the person that assents to these OC Terms has the authority to bind Participant to these OC Terms; and (iii) in performing its obligations under these OC Terms, it will comply with all applicable laws and regulations (including without limitation all applicable privacy laws and regulations).
- If any portion of these OC Terms is held invalid or unenforceable, that portion will be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties, and the remainder of these OC Terms shall remain in full force and effect.
- The failure of either party to insist upon strict performance of any provision of these OC Terms is not to be construed as a waiver of any provision or right.
- These OC Terms shall be governed by the laws of the State of Delaware without regard to its conflict of laws rules. Each party expressly agrees that exclusive jurisdiction for any claim or dispute relating in any way to these OC Terms, or to provision or use of the Offering, shall reside solely in the state and federal courts of Wilmington, Delaware. Each party further consents and agrees to the personal jurisdiction of such courts in connection with any such claim or dispute.
- Participant shall resolve disputes with Salsify on an individual basis only and shall not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action (including without limitation class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations).
- Any claim by Participant concerning these OC Terms must be instituted within one year after the claim or cause of action has arisen.