These terms of service along with the Order Form (as defined below), any statement of work (each an “SOW”) and exhibits incorporated herein (collectively, the “Agreement”), govern the use of the Solutions (as defined below) provided by Salsify to Retailer. Terms not defined herein have the meaning given to them in the Order Form or SOW.
“Confidential Information” means all written or oral information, disclosed by one party (the “disclosing party”) to the other (the “receiving party”), related to the business, products, solutions, services or operations of the disclosing party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including the terms of this Agreement.
“Salsify Platform” means the proprietary cloud-hosted product experience management platform that enables brand manufacturers to collaboratively integrate, manage, enhance, publish and continually optimize product content, digital assets and related information across the digital shelf.
“Supplier” product suppliers and vendors that post Supplier Content to the Retailer Platform.
API Access and License. Each party shall make available to the other party application program interfaces (“APIs”), specifications and information reasonably requested in order to allow Salsify to provide Retailer with Supplier Content via the Salsify Platform. Each party hereby grants to the other party a non-exclusive, royalty-free, non-transferable (except as set forth herein) license to access and use the other party’s API(s) solely in connection with the provision of the Solutions.
Term. The Term will commence and continue for the period set forth in the Order Form.
Unless otherwise expressly set forth in the Order Form, there are no fees applicable to this Agreement.
Use and Disclosure. Each receiving party agrees as follows: (i) it will not disclose the Confidential Information of the disclosing party to anyone except its employees, contractors, third party services and advisors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement and (ii) it will not use or reproduce the Confidential Information for any purpose other than performing its obligations as described herein. Each receiving party will be liable for the acts and omissions of its representatives with respect to the disclosing party’s Confidential Information. Confidential Information shall not include information that is (i) generally known to the public without breach of this Agreement, (ii) obtained by the receiving party from another source not known to have an obligation of confidentiality to the disclosing party, (iii) at the time of disclosure to the receiving party is already in the possession of the receiving party free of any confidentiality obligation (iv) independently developed by the receiving party without reference to any Confidential Information of the disclosing party, or (v) required by applicable law or regulation to be disclosed, provided that the receiving party shall give the disclosing party prompt notice of any such requested disclosure and shall comply with any valid protective order that is obtained by such other party.
Return of Confidential Information. Upon the expiration or termination of the Agreement, each party shall promptly return, upon request by the other party, or destroy (at the option of the disclosing party) all Confidential Information in tangible form received from the other party hereunder, all copies thereof, and all summaries, reports and analyses prepared by the receiving party to the extent they reflect or contain any such information. In the event of the destruction of such information, the receiving party shall certify to the disclosing party in writing within thirty (30) days following such destruction that such destruction has been completed.
Except for the limited rights provided in this Agreement, no other right or license is granted to Retailer or Salsify hereunder, no other use is permitted and each party (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights) in and to the Retailer Platform, Salsify Platform, Solutions, APIs and all associated software and technology, respectively.
Trademark License. Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, non-exclusive, non-transferable (except as set forth in Section 11(g)), non-sublicenseable, worldwide license to use and display such party’s name, logo and trademarks (“Trademarks”) in connection with this Agreement and in accordance with such party’s standard trademark guidelines.
No Acquisition of Rights. Each party agrees that it will not: (i) acquire any rights with respect to the other party’s Trademarks and that all use of Trademarks and all associated goodwill shall inure to the benefit of the other party; (ii) register or attempt to register the other party’s Trademarks or any confusingly similar mark anywhere in the world; and/or (iii) use the Trademarks in any manner that tarnishes the reputation of or otherwise unfavorable reflects upon the other party.
Indemnification Process. The foregoing indemnification obligations are conditioned on Retailer: (i) notifying Salsify promptly in writing of such action, except where such failure to notify does not materially prejudice Salsify, (ii) reasonably cooperating and assisting in such defense and (iii) giving sole control of the defense and any related settlement negotiations to Salsify with the understanding that Salsify will not settle any claim in a manner that admits guilt or otherwise prejudices the Retailer Indemnified Party, without consent.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THIS AGREEMENT OR ANY SOW, 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 $15,000 (THE “CAP”), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT, IN CONNECTION WITH (i) SALSIFY’S BREACH OF ITS DATA SECURITY OR PRIVACY OBLIGATIONS IN SECTION 6.2, OR (ii) SALSIFY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS; SALSIFY’S AGGREGATE LIABILITY HEREUNDER WILL NOT EXCEED FIVE (5) TIMES THE CAP.
Entire Agreement. This Agreement along with any SOW(s) contain a complete statement of all the arrangements between the parties with respect to its subject matter, supersedes all previous agreements between them concerning that subject matter, and cannot be changed except by a writing duly executed by both parties. In the event of any conflict between this Agreement and the terms and conditions set forth in the Order Form, the terms and conditions set forth in the Order Form shall be controlling.