One of your partners, ITEMMASTER (below defined as “Recipient”) has requested that you send digital product content to them using Salsify. Salsify's Product Content Management platform enables suppliers, distributors, and retailers to create, manage, optimize, and syndicate product information and digital assets across the distributed commerce ecosystem.
The Recipient has provided you with this Salsify license, once you accept the Terms of Service below. These terms govern your use of Salsify and in particular ensure the following:
These Terms of Service (these "Terms" or this “Agreement”), constitute an agreement between the person or entity agreeing to the Agreement ("Supplier") and Salsify, Inc., a Delaware corporation, with a place of business located at 3 Center Plaza, Boston, MA 02108 ("Salsify"). Each of Salsify and Supplier may be referred to herein individually as a "Party" or collectively as the "Parties".
BY ACCESSING AND USING THE SALSIFY PLATFORM IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE "ACCEPT" BUTTON BELOW (OR ANY SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED BY SALSIFY TO SHOW YOUR ACCEPTANCE OF THIS AGREEMENT) OR THE DATE THAT YOU SIGN AND DELIVER TO SALSIFY A WRITTEN ACKNOWLEDGMENT AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THIS AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE ENTITY THAT YOU REPRESENT, TO THIS AGREEMENT. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE SALSIFY PLATFORM. SALSIFY RESERVES THE RIGHT IN ITS SOLE DISCRETION TO CHANGE OR MODIFY PORTIONS OF THIS AGREEMENT AT ANY TIME. YOU WILL RECEIVE NOTICE WHEN THIS AGREEMENT IS UPDATED. YOUR FURTHER USE OF THE SALSIFY PLATFORM AFTER ANY SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT.
Salsify is the provider of a hosted platform and related software tools and services that can be used to collaboratively integrate, manage, enhance, clean, share, and publish product content and information ("Salsify Platform"). Supplier desires to access and use the Salsify Platform in accordance with the terms and conditions set forth herein in order to publish certain content to one Salsify-enabled data recipient (each a “Recipient”).
A Salsify Account may be used to publish to more than one data recipient, but such usage requires an additional contract with Salsify and is not permitted under this license.
2.1 Access and Use. Subject to the terms and conditions of this Agreement, Salsify hereby grants Supplier a revocable, non-exclusive, non-transferable (except as otherwise expressly set forth in Section 8.3 below) and non-sublicensable, right to access and use the Salsify Platform solely in order to make Supplier Content (as defined below) available to the Recipient.
2.3 Authorized Users. For purposes of this Agreement, "Authorized Users" means Supplier's employees, contractors, and agents who are authorized by Supplier to access and use the Salsify Platform using a user identifier and password provided by Supplier. In addition, Authorized Users may include employees, contractors, and agents of Recipient and any Salsify employees, contractors, and agents who access Supplier’s Salsify.
2.4 Reservation of Rights; Acknowledgement of Ownership. The Salsify Platform contains proprietary information, materials and content including, but not limited to, copyrighted material, trademarks, service marks, and other proprietary information; which may include (without limitation), text, software, photographs, video, graphics, interactive elements, images, and sounds that are owned by Salsify and/or its licensors (collectively "Salsify Materials") and are protected by applicable intellectual property and other laws including, but not limited to, copyright and trade secrets and Supplier agrees that such Salsify Materials will not be used in any way other than in compliance with the terms of this Agreement. Subject only to the rights expressly granted to Supplier under this Agreement and except for any Supplier Content (as defined below), all rights, title and interest in and to the Salsify Platform, Salsify Materials, and all modifications, enhancements and improvements thereof will remain with and belong exclusively to Salsify.
2.5 Salsify Materials. Notwithstanding any other provision of this Agreement, Salsify and its licensors reserve the right to enhance, change, suspend, remove or disable access to any Salsify Materials, particular functions or other materials comprising a part of the Salsify Platform at any time. Salsify may also set limits on the use of or access to certain features, functions or portions of the Salsify Platform.
2.6 Supplier Content. Supplier will own all content, text, graphics, photos, audio, video material, and materials, in both its altered or unaltered form, provided by Supplier to Salsify in connection with its use of the Salsify Platform under this Agreement ("Supplier Content"). Supplier acknowledges that one primary function of the Salsify Platform is to allow Supplier to transmit and distribute its Supplier Content to third parties through the Salsify Platform. Accordingly, during the Subscription Term, Supplier hereby grants to Salsify a non-exclusive, royalty-free right and license to store and distribute the Supplier Content to the applicable Recipient. Use of the Supplier Content by the Recipient shall be governed by a separate license or similar agreement between Supplier and the Recipient. Salsify will not publish, share, or otherwise make public Supplier Content except as directed by Supplier through its use of the Salsify Platform.
2.7 Feedback. Salsify appreciates the feedback that it receives from its customers with respect to the Salsify Platform. Supplier acknowledges and agrees that Supplier will gain no right, title, or interest in or to the Salsify Platform or any other products or services (other than as licensed pursuant to this Agreement) by virtue of any questions, comments, suggestions, ideas, feedback or other information about the Salsify Platform ("Feedback"), provided by Supplier to Salsify, and Salsify will be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to Supplier. Supplier agrees that it does not now have, will not have, nor will it ever claim, any proprietary rights (including intellectual property rights and trade secret rights) in or to the Feedback, the Salsify Platform and/or the other services and products offered. If Supplier is ever held or deemed to hold any right, title or interest in or to the Salsify Platform (including any changes, modifications or corrections thereto), other services and products, and/or the Feedback, then Supplier hereby irrevocably assigns to Salsify all such right, title and interest.
2.9. One primary feature of the Salsify Platform is that the Salsify Platform may provide the Supplier Content to the Recipient’s website properties and services. Because Salsify has no control over such sites and services, the parties acknowledge and agree that: (i) the manner in which the Recipient uses, stores and discloses the Supplier Content is governed solely by the policies of such Recipient and Supplier’s separate agreement with such Recipient; (ii) Salsify is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice, or statements made available in connection with the Recipient’s sites or services; (iii) Salsify shall have no liability or responsibility for the privacy practices or other actions of the Recipient; and (iv) Salsify enables these features merely as a convenience and does not endorse and is not responsible or liable for any content, advertising, events, products, or other materials on or available from any Recipient sites or services. The Parties further acknowledge and agree that Salsify shall not be responsible or liable, directly or indirectly, for any damage or loss, including bodily harm or death, caused or alleged to be caused by or in connection with use of or reliance on any such content, events, activities, goods or services available on or through any Recipient sites or services. To the extent that the Salsify Platform connects to other third party applications, Supplier agrees to comply with all terms and conditions of use for those services that are applicable to Supplier's use thereof provided such terms and conditions are made available to Supplier in advance.
3.1 As used herein, "Confidential Information" means any and all information or data, regardless of whether it is in tangible form, disclosed by either Party (the "Disclosing Party") that reasonably should be known to be confidential or proprietary, or that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the "Receiving Party"), or that the Receiving Party would reasonably expect to be treated as confidential information, provided, however, that personally identifiable information of or about Supplier or its Authorized Users will be considered the Confidential Information of Supplier and all Salsify Materials will be considered Confidential Information of Salsify, whether or not such information or materials are marked as confidential or proprietary. Information and data will not be deemed "Confidential Information" if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information.
3.2 The Receiving Party agrees that it will not (i) use any Confidential Information of the Disclosing Party in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any such Confidential Information to any person or entity, other than furnishing such Confidential Information to (a) its Authorized Users, employees and independent contractors who have a need to know such information in connection with the exercise of Receiving Party's rights or performance of its obligations under this Agreement and (b) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such Authorized Users, employees, and independent contractors and professional advisers are bound by confidentiality obligations or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in accordance with the terms and conditions of this Section 3. The Receiving Party agrees that it will not allow any unauthorized person access to Disclosing Party's Confidential Information, and that Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that the Receiving Party is required by law to make any disclosure of any of Disclosing Party's Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party, at the Disclosing Party's sole expense, in seeking to obtain such protection. The provisions of this Section 3 shall survive the expiration or termination of this Agreement for a period of three (3) years.
4.1 Disclaimer . THE SALSIFY PLATFORM AND ALL SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND AND SALSIFY AND ITS AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER ACKNOWLEDGES THAT SALSIFY DOES NOT WARRANT THAT THE SALSIFY PLATFORM WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES, OR THAT THE SALSIFY PLATFORM WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION OR THAT THE SALSIFY PLATFORM WILL BE ACCURATE, COMPLETE, SUFFICIENT OR ADEQUATE TO MEET SUPPLIER'S AND ITS AUTHORIZED USERS' REQUIREMENTS OR NEEDS.
Supplier will, at its expense, defend, indemnify and otherwise hold Salsify and its affiliates harmless from and against any and all claims directly or indirectly brought against Salsify or any of its affiliates by any third party arising from (i) any use of the Salsify Platform by Supplier, Authorized Users, or any other person or entity authorized by Supplier, which use is in violation of the terms of this Agreement, or (ii) claims for the infringement or misappropriation of a third party copyright, trade secret or trademark by reason of the use of the Supplier Content as authorized under this Agreement. Supplier will pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Supplier for such defense; provided that: (a) Salsify promptly notifies Supplier in writing of such claim, (b) Supplier is given the sole and exclusive authority to defend and/or settle any such claim (provided that Salsify may participate in the defense or settlement of such claims at its own expense and with its own counsel) and (c) Salsify reasonably cooperates with Supplier, at Supplier's sole expense, in connection therewith.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SALSIFY HAVE ANY LIABILITY TO SUPPLIER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR INSUFFICIENCIES IN THE SALSIFY PLATFORM, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF SALSIFY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SALSIFY BE LIABLE TO SUPPLIER FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF $100. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
7.1 Termination. Salsify may terminate this Agreement and Supplier’s use of the Salsify Platform at any time and for any reason upon notice to Supplier.
7.2 Obligations on Termination. Upon termination of this Agreement all rights granted hereunder and all obligations of Salsify to provide the Salsify Platform will immediately terminate and the Parties will return any Confidential Information of the other Party in its possession or control to the other Party upon written request, and Supplier shall, and shall cause its Authorized Users to, cease all use of the Salsify Platform. Except to the extent Supplier and Salsify enter into a new, separate agreement with respect to Supplier’s continued use of the Salsify Platform, upon termination, Salsify will delete such Supplier Content and any related information and files in Supplier's account. All provisions which by their nature are reasonably intended to survive the termination or expiration of this Agreement will survive.
7.3 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), the inability to obtain sufficient supplies, transportation or other essential commodity or service required in the conduct of its business, any change in or the adoption of any law, regulation, judgment or decree or causes occurring without such Party's fault or negligence including, but not limited to, by suppliers, subcontractors, carriers or other providers (each a "Force Majeure Event").
8.1 Claims. No claim or action, regardless of form, arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby may be brought by either Party more than one (1) year after the events which gave rise to the claim or action become known.
8.2 Export Compliance; Use Restrictions. Certain technology and software components of the Salsify Platform may be subject to U.S. export control and economic sanctions laws. Supplier shall comply strictly with all such laws and regulations as they relate to such technology and software and access and use of the Salsify Platform. In addition, Supplier shall not, and shall cause Authorized Users not to, access or use the Salsify Platform if Supplier or any Authorized User is located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (such jurisdictions, together with all other jurisdictions designated by applicable U.S. export control and economic sanctions laws or regulations promulgated thereunder, are collectively referred to as the "Prohibited Jurisdictions"), and neither Supplier nor any Authorized User shall provide access to the Salsify Platform to any government, entity or individual located in the Prohibited Jurisdictions, any individual identified on the Bureau of Industry and Security's Denied Persons List or the Office of Foreign Assets Control's Specially Designated Nationals List, or to any entity or individual with knowledge or reason to know that the Salsify Platform will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes.
8.3 No Assignment. Neither Party may assign or transfer this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the other Party provided that either Party may, without consent, assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or business to which this Agreement relates provided that Supplier does not assign this Agreement to a competitor of Salsify. Any attempt to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns.
8.4 Relationship. Nothing in this Agreement will be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
8.5 Severability. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
8.6 Governing Law; Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the "Massachusetts Courts") for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
8.7 Communications. Supplier (a) consents to receive communications from Salsify in electronic form; and (b) agrees that all notices, documents, disclosures, and other communications that Salsify provides to Supplier electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Supplier’s consent to receive communications and do business electronically, and Supplier’s agreement to do so applies to all of Supplier’s interactions and transactions with Salsify.
8.8 Entire Agreement. This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, invoices, sales acknowledgments or quotations. There shall be no force or effect to any additional or different terms of any other related purchase order, invoice or similar form provided by either Party on or after the date hereof.