The terms and conditions listed below together with the Technology Partner Agreement within which such terms and conditions are referenced (collectively, this “Agreement”) is by and between Salsify, Inc. (“Salsify”) and the partner identified on the cover page (“Partner” or “You”).
1.Salsify Platform and the Integration.
- 1.1.Salsify Platform and the Integration. The “Salsify Platform” is the hosted product experience management platform, made generally available by Salsify, that collaboratively integrates, manages, enhances, cleans, shares, publishes, evaluates, and continually optimizes product content, digital assets, and related information across the supply chain. The “Integration” is the integration between the Salsify Platform and Partner’s products and/or services, built and maintained in accordance with the cover sheet.
- 2.1.Term and Termination. The term of this Agreement will commence on the Effective Date and continue for the Term set forth on the cover page. Salsify may terminate this Agreement at any time upon sixty (60) days prior written notice to the other Party. In addition, either Party may terminate this Agreement for cause if the other Party breaches this Agreement and does not cure such breach within thirty (30) days of receiving notice of breach, provided that for breaches of the confidentiality and trademark license provisions, no advance notice or opportunity to cure will be required prior to termination. All provisions of this Agreement that by their nature should survive termination will survive termination, including Sections 3 through 7.
- 3.1.Ownership. You agree that title to the Salsify Platform and any material supplied to you under this Agreement is, and will remain the sole property of Salsify, and that you have no right, interest or title to the Salsify Platform or such materials. As such, Salsify disclaims all warranties related to the Salsify Platform, including any implied warranties of merchantability or fitness for a particular purpose. Salsify will have no liability to you related to the Salsify Platform for: (a) consequential, special, indirect or similar damages or (b) direct damages, whether in contract, tort or other theory of law, even if advised of the potential damages.
4.Confidential Information and Trademarks.
- 4.1.“Confidential Information” means any information, technical data, or know-how that is identified at the time of disclosure, in writing or orally, as confidential or that should reasonably be considered confidential, including information regarding the Salsify Platform, software programs or documentation, specifications, source code, object code, research, inventions, processes, designs, drawings, engineering, services, customers, markets, pricing, or financing.
- 4.2.Each Party agrees that it will not disclose the other Party’s Confidential Information to any third party and will protect the Confidential Information with at least the level of care it takes to protect its own confidential information of similar value, but in no event with less than reasonable care. The receiving party will use the Confidential Information solely for the purpose of fulfilling its obligations under this Agreement and will not use the Confidential Information for its own benefit or the benefit of any third party, except to fulfill its obligations under this Agreement. The obligation to maintain Confidential Information as confidential will survive termination.
- 4.3.Confidential Information will not include information that: (i) was previously known to the receiving party free of any obligation to keep confidential; (ii) is or becomes publicly available without breach of this Agreement; (iii) is received from a third party without confidentiality restrictions; (iv) is independently developed without reference to or use of Confidential Information received under this Agreement; or (v) is approved for disclosure by written authorization of a duly authorized representative of the disclosing party. The receiving party may make Confidential Information available to its attorneys, accountants and other advisers with a need to know, and who are contractually obligated, or have a fiduciary responsibility, to protect such information. The receiving party is liable for any acts or omissions of its attorneys, accountants and other advisors. In the event any law or government entity compels the disclosure of any Confidential Information, the receiving party may disclose such Confidential Information only if it gives the disclosing party prompt notice of its intent to disclose the Confidential Information and reasonably cooperate (at the receiving party’s expense) to assist in eliminating or minimizing the disclosure.
- 4.4.If a receiving party breaches the Confidentiality provision of this Agreement, the disclosing party will be entitled to institute and prosecute proceedings in any court of competent jurisdiction (either at law or in equity) to enforce the specific performance of such Confidentiality provisions or to enjoin receiving party from any further or continuing breach without posting bond or providing other security or proving actual damages and, in the case of a temporary restraining order, such relief may be granted ex parte (that is, at the instance and for the benefit of the disclosing party without notice to the receiving party); provided, however, that nothing in this Agreement shall be construed as prohibiting the disclosing party from pursuing any other available remedies for such breach, including the recovery of damages from the receiving party.
- 4.5.Each party hereby grants to the other a limited, nonexclusive license to use such party’s trademarks as may be provided by it solely for purposes of identifying the other party’s products and services in connection with the exercise of rights under this Agreement. Each party will use such trademarks solely in connection with its activities under this Agreement and solely in accordance with such usage guidelines as may be established by the other party from time to time.
- 5.1.Indemnity. You will defend, indemnify and hold Salsify harmless from any and all third-party claims, demands, suits or liability arising out of (1) breach by Partner, your employees, contractors, or agents (each an “Indemnifying Party”), of the terms of this Agreement, or (2) the negligent acts or omissions by an Indemnifying Party, whether based upon breach of contract, negligence, strict liability or otherwise.
6.Limitation on Liability.
- 6.1.IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, FAILURE TO REALIZE EFFICIENCIES OR COST SAVINGS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
- 6.2.EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, DAMAGES, OR EXPENSES FROM ANY CAUSE WHATSOEVER UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS ($10,000.00); PROVIDED THAT, THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO PARTNER’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 5. FOR THE AVOIDANCE OF DOUBT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY FAILURE OF A PARTY TO FULFILL ITS OBLIGATIONS UNDER ANY AGREEMENT BETWEEN SUCH PARTY AND ITS CUSTOMERS, INCLUDING ANY SUPPORT OR SERVICE LEVEL AGREEMENTS RELATED THERETO.
- 7.1.Assignment. This Agreement cannot be assigned by either you or Salsify without the prior written consent of the other; provided, however, that Salsify may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all of its assets, stock or business. Any attempted assignment or delegation in violation of this Section 7.1 will be null, void and of no effect.
- 7.2.Insurance. You agree that you are acting as an independent contractor and not an employee of Salsify. You, your personnel and employees, will receive no benefits from Salsify. Partner will obtain workers compensation and other insurance required by law, if any, for your employees and will maintain commercially reasonable liability insurance for its respective business activities.
- 7.3.Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the cover page. Either party may change its address by giving notice of the new address to the other party.
- 7.4.Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 7.5.Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- 7.6.Co-Marketing Activities. At Salsify’s request and direction, the parties may from time to time during the term of this Agreement engage in jointly-agreed-upon marketing activities that promote the Salsify Platform. These activities may include: participating in case studies, making press announcements, collateral, or participating in events. Neither party will issue press releases, statements, materials, or perform demonstrations concerning this Agreement or the relationship between the parties without the prior consent of the other party.
- 7.7.No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- 7.8.Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
- 7.9.Order of Precedence. In the event of any conflict between the Technology Partner Agreement and the Technology Partner Terms and Conditions, the terms of the Technology Partner Agreement shall prevail.
- 7.10.Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
- 7.11.Choice of Law. This Agreement will be governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, excepting any choice of law provisions. Any dispute regarding this agreement will be filed exclusively in the state or federal courts serving Suffolk County, Massachusetts and both parties submit to their personal jurisdiction.
- 7.12.Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.