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Terms of Service
SALSIFY, INC. (“SALSIFY) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO ONE OR MORE ORDER FORMS, SALES ORDERS, STATEMENTS OF WORK, REGISTRATION FORMS OR SIMILAR DOCUMENTS (EACH AN “ORDER FORM”) WITH SALSIFY THAT REFERENCES THESE TERMS OF SERVICE, ONLY ON THE CONDITION THAT YOU ACCEPT THESE TERMS OF SERVICE. READ THESE TERMS OF SERVICE CAREFULLY BEFORE PURCHASING ANY SERVICES FROM SALSIFY. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND SALSIFY. BY EITHER (A) CLICKING THE "ACCEPT" BUTTON BELOW (OR ANY SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED BY SALSIFY TO SHOW YOUR ACCEPTANCE OF THESE TERMS OF SERVICE) OR BY (B) ENTERING INTO AN ORDER FORM WITH SALSIFY THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THESE TERMS OF SERVICE AND ALL ORDER FORMS ARE COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT”.
IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
YOU MAY NOT USE OR ACCESS THE SALSIFY PLATFORM (AS DEFINED BELOW) IF YOU ARE A DIRECT COMPETITOR OF SALSIFY. YOU AGREE THAT SUCH USE OR ACCESS COULD CAUSE HARM TO SALSIFY, AND FURTHER AGREE TO INDEMNIFY SALSIFY AND HOLD SALSIFY HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, COSTS, LIABILITIES, EXPENSES AND CLAIMS INCURRED BY SALSIFY AS A RESULT OF YOUR BREACH OF THE IMMEDIATELY PRECEDING SENTENCE.
Salsify is the provider of a hosted product experience management platform that can be used to collaboratively integrate, manage, enhance, clean, share, publish, evaluate and continually optimize product content, digital assets, and related information ("Salsify Platform") across the supply chain. Customer desires (i) a subscription to access and use the Salsify Platform in accordance with the terms and conditions set forth herein and/or (ii) to engage Salsify to perform certain Onboarding Services or Professional Services (each as defined below) on behalf of Customer.
2.1 Access and Use. Subject to the terms and conditions of this Agreement and any additional restrictions, terms or conditions set forth on the applicable Order Form, Salsify hereby grants Customer a non-exclusive, non-transferable (except as otherwise expressly set forth in Section 10.2 below) and non-sublicensable right to access and use the Salsify Platform and any related Salsify Materials (as defined in Section 2.5 below) solely for Customer's own business purposes and solely for the duration of the applicable Subscription Term identified on Customer’s applicable Order Form(s). Customer may not access or use the Salsify Platform if it is a direct competitor of Salsify.
If expressly permitted in an Order Form, Customer may make the Salsify Platform and related Salsify Materials available to its Affiliates provided that Customer ensures that such Affiliate complies with this Agreement and Customer is liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. For purposes of this Agreement an “Affiliate” shall mean any corporation, partnership or other entity that directly or indirectly controls, is controlled by or under common control with Customer and that is expressly identified on the applicable Order Form.
2.2 Restrictions. Except as provided herein or in the applicable Order Form, the access rights granted in Section 2.1 are granted to Customer subject to the following restrictions: (a) the Salsify Platform and Salsify Materials will be accessed and used only by Customer's Authorized Users; (b) Customer will not, and will ensure that its Authorized Users do not: (i) reproduce, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share the Salsify Platform or any Salsify Materials or otherwise commercially exploit or make the Salsify Platform, any Salsify Materials or any portion thereof available to any third party, other than as expressly permitted by this Agreement; (ii) intentionally or knowingly interfere with or disrupt the integrity or performance of the Salsify Platform, any Salsify Materials or the data contained therein, including by knowingly introducing viruses, worms, harmful code and/or Trojan horses on or in the Salsify Platform or the Internet; (iii) intentionally attempt to gain unauthorized access to or unduly burden the network capacity of the Salsify Platform or its related systems or networks; (iv) access or attempt to access (through password mining or any other means) other accounts hosted by the Salsify Platform or other computer systems or networks not covered by this Agreement, for which Customer does not have permission from Salsify to access; (v) access or use the Salsify Platform in a way intended to avoid incurring fees or hiding usage that exceeds usage limits or quotas if any; (vi) remove, obscure or alter any proprietary right notice related to or contained in the Salsify Platform or on any Salsify Materials; (vii) use or monitor the Platform’s availability, performance, or functionality for any competitive purpose; or (vii) use the Salsify Platform or any Salsify Materials in any manner or for any purpose other than as expressly permitted by this Agreement; and (c) Customer will not, and will ensure that its Authorized Users do not, use the Salsify Platform to upload, post, store, distribute, transmit, sell, promote or provide any products, services, Customer Content (as defined below), information, data or other material that (i) includes any “Sensitive Personal Information”; (ii) is defamatory, libelous, threatening, harassing, illegal to store or transmit or otherwise inappropriate; (iii) encourages any conduct that could constitute a criminal offense; or (iv) that violates or infringes the intellectual property rights or rights to the publicity or privacy of others. For purposes of the foregoing, “Sensitive Personal Information” means any Personal Information that requires additional protection under applicable data protection laws as a result of its sensitive nature, including, without limitation, information concerning an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, physical or mental health, sex life or orientation, criminal records, financial account numbers, account passwords or voice mail access codes, medical records, biometric information, date of birth and government-issued identification numbers (such as U.S. Social Security numbers or other national insurance or identification numbers, driver's license numbers, and passport numbers).
2.3 Authorized Users. For purposes of this Agreement, "Authorized Users" means employees, contractors, and agents of Customer (or its permitted Affiliates as described in Section 2.1 above) who are authorized by Customer to access and use the Salsify Platform using a user ID such as an email provided by Customer.
2.4 Services. From time to time, Customer may request Salsify to provide certain Onboarding Services or Professional Services (each as defined below) on behalf of Customer (the "Services"). The specific Services to be provided by Salsify, or a Salsify sub-contractor, to Customer will be evidenced by one or more written Order Forms which may include the following information: (i) a detailed description of the Services; (ii) a projected timetable for completion of the Services; (iii) any special conditions of acceptance; (iv) the location where the Services are to be performed; (v) the projected commencement and termination dates; (vi) Salsify’s compensation rates; (vii) names of the parties’ appointed project representatives; (viii) a timetable for invoicing; and (ix) such other requirements for the Services as may be agreed to in writing by the parties. For purposes of the foregoing, “Onboarding Services” means the configuration, customization and implementation of the Salsify Platform and training services set forth and described on the Order Form and “Professional Services” means consulting, design and other services to be provided by Salsify and set forth and described on the applicable Order Form.
2.5 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 and may also include other related software tools and services (collectively "Salsify Materials") and are protected by applicable intellectual property and other laws including, but not limited to, copyright and trade secrets. Customer 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 Customer under this Agreement and except for any Customer 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. Unless otherwise expressly set forth in the Order Form, Salsify shall own all right, title and interest in and to all work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed by Salsify on behalf of Customer and delivered to Customer in the performance of any Onboarding Services or Professional Services (“Work Product”). Unless otherwise expressly set forth in the Order Form, Customer will have a non-exclusive, non-transferable, royalty-free license to use any Work Product developed by Salsify in the performance of the Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for use in connection with the Customer’s internal use of the Salsify Platform.
2.6 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. By way of example, Salsify’s engineering team provides numerous updates to the Salsify Platform in an effort to improve performance and to introduce new or enhanced features and functionality. In the event, however, that such changes will reasonably be deemed to materially and adversely affect the overall functionality of the Salsify Platform and no workaround is reasonably available to the Customer, then Customer may notify Salsify that it intends to terminate its subscription to the Salsify Platform. If upon receiving Customer’s notice Salsify fails to remove such adverse changes and restore the functionality to the Salsify Platform within thirty (30) days of receiving Customer’s notice then Customer may as its sole remedy, elect to terminate its subscription to the Salsify Platform upon written notice to Salsify (in which case Customer shall be entitled to receive a refund of any prepaid, unused fees paid in advance for the balance of the unexpired Subscription Term). Salsify may also set limits on the use of or access to certain features, functions or portions of the Salsify Platform upon notice to Customer provided that such limits shall not be effective until any renewal of Customer’s subscription to the Salsify Platform.
2.7 Customer Content. Customer will own all content, text, graphics, photos, audio, video material, and materials, in both its altered or unaltered form, provided by Customer to Salsify in connection with its use of the Salsify Platform under this Agreement ("Customer Content"). Customer acknowledges that one primary function of the Salsify Platform is to allow Customer to transmit and distribute its Customer Content to third parties through the Salsify Platform. Accordingly, during the Subscription Term, Customer acknowledges that Salsify may use, store and transmit the Customer Content solely as necessary to provide Salsify Platform and its related services to Customer. For the sake of clarity, Salsify will not publish, share, or otherwise make public Customer Content except as otherwise directed by Customer or its personnel. During the Subscription Term and for a period of thirty (30) days following termination or expiration of the Subscription Term for any reason, Customer shall have the right to download all Customer Content in the Salsify Platform via standard export mechanisms – including through the Salsify Platform interface – in industry standard export formats. In addition, upon termination or expiration of the Subscription Term, Salsify will maintain Customer Content for a period of thirty (30) days and, during such period, will deliver such Customer Content to Customer upon request.
2.8 Feedback. In the event Customer provides Salsify with Feedback, Customer hereby grants to Salsify an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed. For purposes of the foregoing, “Feedback” means any Customer provided feedback or reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Salsify Platform or Salsify Materials.
2.10 Third Party Service Providers. One primary feature of the Salsify Platform is that the Salsify Platform may use and/or provide access to a third party's (e.g. Amazon, Walmart, Google, etc.) website properties and services, for example to enable Customer to publish Customer Content to a third-party site or service. Because Salsify has no control over such sites and services, the parties acknowledge and agree that: (i) the manner in which third party services use, store and disclose Customer Content is governed solely by the policies of such third parties; (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 third party sites or services; (iii) Salsify shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled via the Salsify Platform; 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 such 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 such third-party sites or services. To the extent that the Salsify Platform connects to other third-party applications, Customer agrees to comply with all terms and conditions of use for those services that are applicable to Customer's use thereof provided such terms and conditions are made available to Customer in advance.
3.1 Service Levels. During the Subscription Term, Salsify will provide the Salsify Platform in accordance with the Salsify Service Level Policy attached hereto as Appendix A and will further provide Customer with the support services set forth and described in the Salsify Support Availability Policy attached hereto as Appendix B.
3.2 Backups. Customer Content is backed up regularly as protection against accidental or intentional data destruction. Specifically:
In addition to the above, Salsify APIs and standard scheduled export functionality can be used by Customer to regularly back up all Customer Content at intervals Customer may require.
4.1 Fees; Payment Terms. In exchange for Customer's access and use of the Salsify Platform or receipt of any Services provided by Salsify as set forth herein, Customer will pay Salsify the fees set forth in any applicable Order Form. Salsify reserves the right to modify pricing prior to the commencement of any Renewal Term (as defined below. Failure to pay any fees under this Agreement will result in an interruption of service after written notice and failure to pay and reasonable opportunity to cure. In addition to paying the applicable fees, Customer shall also pay all pre-approved reasonable travel and out-of-pocket expenses incurred by Salsify in connection with any Onboarding Services or Professional Services rendered.
4.2 Payment Terms. Except as otherwise expressly set forth on an Order Form, all fees and payments under this Agreement will be billed in advance and, except as expressly set forth herein, are non-refundable. All payments will be made in U.S. dollars by ACH bank transfer or check, without any withholding, deduction, offset, setoff or other charge, and are due thirty (30) days after the date of Customer’s receipt of the invoice. Customer is responsible for providing information to complete payment, such as valid and updated bank account information.
4.3 Net of Taxes. All amounts payable by Customer to Salsify hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Salsify. Customer will not withhold any Taxes from any amounts that are due to Salsify.
5.1 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 Customer or its Authorized Users will be considered the Confidential Information of Customer and all Salsify Materials and Work Product 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.
5.2 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 5. The Receiving Party agrees that it will not allow any unauthorized person access to Disclosing Party's Confidential Information, and that Receiving Party will treat the Disclosing Party’s Confidential Information with the same degree of care it treats its own Confidential Information, but no less than reasonable care. 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 5 shall survive the expiration or termination of this Agreement for a period of three (3) years.
6.1 Representations and Warranties. Salsify represents and warrants to Customer that during the term of any applicable Order Form for the Salsify Platform, the Salsify Platform will conform, in all material respects, with any Salsify provided user documentation and any other specifications set forth on such Order Form and that Salsify will use industry standard precautions to ensure that the Salsify Platform is free of all viruses, worms, Trojan horses and other malicious code. Salsify further represents and warrants that any Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set forth in the Order Form in all material respects. Each Party represents and warrants to the other Party that such Party has the required rights, power and authority to enter into this Agreement and to grant all rights, authority and licenses granted hereunder, and that such Party will comply with all federal, state, local and foreign laws, rules and regulations applicable to its performance of obligations or exercise of rights under this Agreement. Salsify is not responsible for examining or evaluating the content or accuracy of any Customer Content or third-party materials or websites, does not warrant or endorse, does not assume, and will not have any liability or responsibility for any such Customer Content or third-party materials or websites or for any other materials, products, or services of third parties.
6.2 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SALSIFY PLATFORM, SALSIFY MATERIALS 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, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT SALSIFY DOES NOT WARRANT THAT THE SALSIFY PLATFORM OR SALSIFY MATERIALS WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES, OR THAT THE SALSIFY PLATFORM OR SALSIFY MATERIALS WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR THAT THE SALSIFY PLATFORM OR SALSIFY MATERIALS WILL BE ACCURATE, COMPLETE, SUFFICIENT, OR ADEQUATE TO MEET CUSTOMER'S AND ITS AUTHORIZED USERS' REQUIREMENTS OR NEEDS.
7.1 Indemnification by Salsify. In the event of a claim against Customer for the infringement or misappropriation of a third party patent, copyright, trade secret or trademark by reason of the use of the Salsify Platform (other than with respect to the Customer Content) or Work Product by Customer as permitted hereunder, Salsify will, at its expense, defend, indemnify and otherwise hold Customer harmless from such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Salsify for such defense, provided that (i) Customer promptly notifies Salsify in writing of such claim, (ii) Salsify is given the sole and exclusive authority to defend and/or settle any such claim (provided that Customer may participate in the defense or settlement of such claims at its own expense and with its own counsel), and (iii) Customer reasonably cooperates with Salsify, at Salsify's sole expense, in connection therewith. If the use of the Salsify Platform or Work Product by Customer has become, or in Salsify's opinion is likely to become, the subject of any claim of infringement, Salsify may at its option and expense (a) procure for Customer the right to continue using the Salsify Platform or Work Product as set forth hereunder; (b) replace or modify the infringing component of the Salsify Platform or Work Product to make it non-infringing so long as the Salsify Platform or Work Product has comparable functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement and provide Customer with a refund of any prepaid, unused fees paid to Salsify by Customer for the Salsify Platform (if any) for any unexpired portion of the Subscription Term or, with respect to any infringing Work Product, provide Customer with a pro rata refund of any fees paid to Salsify for the infringing Work Product. Salsify will have no liability or obligation under this Section 7.1 with respect to any claim to the extent such claim is caused in whole or in part by (x) Salsify's use of any Customer Content, compliance with designs, data, instructions or specifications provided by Customer; or (y) the combination, operation or use of the Salsify Platform or Work Product with other applications, software, content, products, data or services not provided by Salsify where the Salsify Platform or Work Product, as the case may be, would not by itself be infringing.
7.2 Indemnification by Customer. Customer 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 or Work Product by Customer, Authorized Users, or any other person or entity authorized by Customer, 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 Customer Content as authorized under this Agreement. Customer will pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Customer for such defense; provided that: (a) Salsify promptly notifies Customer in writing of such claim, (b) Customer 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 Customer, at Customer's sole expense, in connection therewith.
EXCEPT FOR A BREACH BY A PARTY OF ITS OBLIGATIONS IN SECTION 5 (CONFIDENTIALITY), DAMAGES PAYABLE TO THIRD PARTIES IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, OR ANY VIOLATION BY CUSTOMER OF ANY OF SALSIFY’S INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SALSIFY PLATFORM, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR INSUFFICIENCIES IN THE SALSIFY PLATFORM OR SALSIFY MATERIALS, 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 THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH BY A PARTY OF ITS OBLIGATIONS IN SECTION 5 (CONFIDENTIALITY), ANY VIOLATION BY CUSTOMER OF ANY OF SALSIFY'S INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SALSIFY PLATFORM OR SALSIFY MATERIALS OR A PARTIES' LIABILITY ARISING UNDER ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PAID OR PROPERLY PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. NOTWITHSTANDING THE FOREGOING, SALSIFY’S TOTAL, CUMULATIVE LIABILITY HEREUNDER IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS SHALL NOT EXCEED FIVE (5) TIMES THE FEES PAID OR PROPERLY PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE THE PARTY'S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. 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.
9.1 Term. The initial term of the Customer's subscription will commence and continue for the period set forth in the applicable Order Form (the "Initial Term"). Thereafter, unless otherwise expressly set forth on such Order Form, the term of Customer's subscription and this Agreement will automatically renew for successive periods of one (1) year (each, a "Renewal Term" and, together with the Initial Term, the "Subscription Term"). Either Party may prevent an automatic renewal by notifying the other Party in writing no less than thirty (30) days prior to the end of the then current Subscription Term of its election not to renew the Subscription Term.
9.2 Termination. Either Party may terminate this Agreement or any Order Form upon written notice to the other party in the event the other party commits any material breach of this Agreement or such Order Form and fails to cure such breach within thirty (30) days after written notice of such breach is received. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms.
9.3 Obligations on Termination. Upon termination of this Agreement all rights granted hereunder and all obligations of Salsify to provide the Salsify Platform and Salsify Materials 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 Customer shall, and shall cause its Authorized Users to, cease all use of the Salsify Platform and Salsify Materials. Termination or expiration of this Agreement will not relieve Customer from paying all fees accruing prior to termination or expiration, if any. Except as otherwise expressly set forth in this Agreement, Customer will not receive a refund for any fees paid hereunder. Upon termination, Salsify will maintain Customer Content in accordance with Section 2.7. After such period, Salsify will delete such Customer Content and any related information and files in Customer's account. Sections 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 4, 6.2, 7, 8, 9.3, and 10 will survive the termination or expiration of this Agreement for any reason whatsoever.
9.4 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"); provided that financial inability in and of itself will not be a Force Majeure Event. In the event that a Force Majeure Event prevents Salsify from performing its obligations hereunder for a period of ten (10) consecutive days, then Customer may immediately terminate this Agreement and receive a refund of any prepaid, unused fees paid to Salsify for the Services or for the use of the Salsify Platform, as the case may be.
10.1 Export Compliance; Use Restrictions. Certain technology and software components of the Salsify Platform and Salsify Materials may be subject to U.S. export control and economic sanctions laws. Customer 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 and Salsify Materials. In addition, Customer shall not, and shall cause Authorized Users not to, access or use the Salsify Platform or Salsify Materials if Customer 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 Customer nor any Authorized User shall provide access to the Salsify Platform or Salsify Materials 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 or Salsify Materials will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes.
10.2 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 all or substantially all of its assets or business to which this Agreement relates provided that it provided the other Party prompt written notice of the assignment. 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.
10.3 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.
10.4 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.
10.5 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. Except as otherwise expressly provided on an Order Form, 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.
10.6 Notices. All notices, demands, requests and other communications under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth in the applicable Order Form or such other addresses designated pursuant to this Section 10.7.
10.7 Entire Agreement. This Agreement and any related Order Forms constitute 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. In the event of any conflict between any term or condition in these Terms and any term or condition in any Order Form, the applicable term in the Order Form will govern. 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.
10.8 Publicity. Salsify may identify Customer as a customer of Salsify and display Customer's name and logo solely for such purpose on its customer lists, its website, and its marketing and promotional materials provided that Customer may request that Salsify cease such use at any time upon written notice to Salsify.
10.9 Open Experience Alliance. As a customer of Salsify, during the Subscription Term Customer shall be included, at no additional fee, in Salsify’s program “Open Experience Alliance,” a supplier consortium that collectively advocates for an open ecosystem that enables brands to submit content to retailers using the technology of their choice. As a member of the program, Salsify may include Customer’s name and logo in private “Open Experience Alliance” retailer communication that advocates on Customer’s behalf for content submission processes that directly benefit Customer. Any such usage of Customer’s logo in connection with any “Open Experience Alliance” communication shall be preceded by at least 48 hours notice to Customer prior to submission, with an email demonstrating how Customer’s logo will be used. Customer may elect to cease its participation in the Open Experience Alliance at any time upon written notice to Salsify. More information about the Open Experience Alliance can be found at https://www.salsify.com/oxa.