Salsify Terms of Service for Retail Agreements v1.0

Retailer Terms of Service

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.

1.Definitions.

1.1.“Aggregated Data” means analysis, technical data and other data created, received or processed from the Salsify Platform in connection with deploying the Solutions; provided that such data is anonymized or otherwise not directly attributable to or identified with Retailer, Supplier and/or end-user customer.
1.2.
“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.
1.3.“Order Form” means the document signed by an authorized representative of each party identifying the Solutions to be made available, the fees to be paid and other relevant terms and conditions.”
1.4.“Retailer Platform” means the Retailer website(s) and/or platform(s), including any mobile applications.
1.5.
“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.
1.6.“Services” means services provided by Salsify to Retailer as described in any SOW, including, but not limited to, implementation services, integration services, configuration services, support services and other professional services.
1.7.“Solutions” means the solutions powered by the Salsify Platform and Services identified in any SOW.
1.8.
“Supplier” product suppliers and vendors that post Supplier Content to the Retailer Platform.
1.9.“Supplier Content” means all Supplier product information, data and attributes requested by Retailer and provided by the Supplier in support of the marketing and sale of Supplier’s products and services on the Retailer Platform.
1.10.“Term” means the term of any Order Form.
1.11.“Usage Data” means information stored in log files, including internet protocol addresses, type of browser, Internet Service Provider, date/time stamp, referring/exit pages, clicked pages and any other information the browser may send to Salsify.

2.Solutions.

2.1.
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.
2.2.Restrictions. Neither party shall (i) permit any third party to access the Retailer Platform, the Salsify Platform or use the Solutions or APIs except as permitted herein, (ii) copy, modify, disrupt, disassemble, decompile, reverse engineer or create derivative works based on the Retailer Platform, the Salsify Platform, the Salsify Solutions or the APIs, (iii) copy, frame, or mirror any part or content of the Retailer Platform, the Salsify Platform, the Salsify Solutions, or the APIs, (iv) access the Retailer Platform or the Salsify Platform in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Retailer Platform or the Salsify Platform, (v) upload, post, store, distribute, transmit, sell, promote or provide any products, services, Supplier Content, information, data or other material that (a) includes any personally identifiable information; (b) is defamatory, libelous, threatening, harassing, illegal to store or transmit or otherwise inappropriate; (c) encourages any conduct that could constitute a criminal offense.

3.Term.

3.1.
Term. The Term will commence and continue for the period set forth in the Order Form.
3.2.Termination. Either party may terminate this Agreement upon written notice to the other party in the event the other party commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice.
3.3.Termination upon Bankruptcy or Insolvency. Either party may terminate this Agreement immediately upon written notice to the other party, in the event such party: (i) becomes insolvent or unable to pay its debts when due; (ii) files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of its creditors.
3.4.Suspension of the Solutions. At any time during the Term, Salsify may, immediately upon notice to Retailer, suspend access to the Solutions for the following reasons: (i) a threat to the technical security or integrity of the Solutions; (ii) any amount due under this Agreement is not received by Salsify within thirty (30) days after it was due, or (iii) Retailer’s breach of Section 2.2 of these Terms of Service.

4.Fees.

4.1.
Unless otherwise expressly set forth in the Order Form, there are no fees applicable to this Agreement.

5.Non-Disclosure.

5.1.
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.
5.2.Equitable Relief. The parties acknowledge that any actual or threatened breach of Section 5 will constitute immediate, irreparable harm to the other party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorneys’ fees and court costs, in addition to any other relief it may receive.
5.3.
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.

6.Data, Security and Privacy.

6.1.Aggregated Data and Usage Data. Retailer acknowledges and agrees that Salsify may obtain Aggregated Data and Usage Data in connection with the use of the Solutions and Salsify may use the Aggregated Data and Usage Data to develop, analyze, improve, support and operate the Solutions. For clarity, this Section 6 does not provide Salsify the right to identify Retailer, the Retailer Platform, Supplier or any end-user customer as the source of any Aggregated Data or Usage Data.
6.2.Security and Privacy. Salsify maintains commercially reasonable technical and organizational measures designed to (i) secure its systems from unauthorized disclosure, access or alteration, and (ii) protect against unlawful destruction or accidental loss, as further described at https://www.salsify.com/security-and-reliability.

7.Intellectual Property.

7.1.
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.

8.Trademarks.

8.1.
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.
8.2.
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.

9.Representations & Warranties; Disclaimers.

9.1.Representations. Each party represents and warrants and covenants to the other party that (i) it has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder; and (ii) in performing its obligations under this Agreement, it will comply with all applicable laws and regulations (including without limitation all applicable privacy laws and regulations).
9.2.Disclaimer of Warranties. THE SOLUTIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND AND SALSIFY, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL SUPPLIER CONTENT PROVIDED BY OR MADE AVAIABLE BY ANY SUPPLIER IS PROvIDED VIA THE Salsify PLATFORM ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND BY SALSIFY.

10.Indemnification.

10.1.Salsify’s Indemnification Obligations. Salsify will indemnify, defend and hold harmless Retailer, its directors, officers, employees and representatives (each a “Retailer Indemnified Party”), harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable attorneys’ fees (collective, “Losses”) arising out of any third-party claim (each a “Claim”) alleging that the Salsify Platform, the Solutions or its APIs, infringe any U.S. patent, copyright, trademark or trade secret. The foregoing obligations will not apply to the extent a Claim arises, in whole or in part, from: (1) a use or modification of the Solutions (including the Salsify Platform) by Retailer in a manner outside the scope of any right granted or in breach of this Agreement, (2) a combination, operation or use of the Salsify Solutions with other software, hardware or technology not provided by Salsify if the claim would not have arisen but for the combination, operation or use, (3) Salsify’s compliance with any designs, specifications or instructions provided by Retailer where such designs, specifications or instructions cause the infringement, or (4) the Supplier Content unless Salsify has caused a mistake in relaying or copying or otherwise inputting the Supplier Content into the Supplier Platform and the Claim would not have arisen but for such mistake. THIS SECTION STATES SALSIFY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10.2.
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.

11.Limitation of Liability.

11.1.
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.

12.General.

12.1.Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of laws rules. Each party hereby submits to exclusive personal jurisdiction in the federal and state courts located in Boston, Massachusetts in connection with any disputes arising hereunder.
12.2.Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when received and sent, mailed by registered mail, return receipt requested, or overnight air courier, to the addresses set forth in the Order Form (or at such other address as a party may specify by notice to the other). Electronic mail shall provide sufficient notice for routine operational matters.
12.3.Survival. Sections 5 through 12 shall survive the expiration or earlier termination of the Agreement in accordance with their respective terms.
12.4.
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.
12.5.Force Majeure. Neither party shall be responsible for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, including, but not limited to, acts of God, fires, floods, wars, civil disturbances, sabotage, accidents, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy) governmental actions, or unavailability of phone or Internet service.
12.6.Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing and duly executed by the party granting the waiver.
12.7.Assignment. Neither party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other party, and any such assignment absent such consent shall be deemed null and void.
12.8.Counterparts. This Agreement and any SOW may be executed in one (1) or more counterparts (including faxed or electronic counterparts), each of which shall be an original, but taken together constituting one and the same instrument.
12.9.Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.