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These Terms of Service (these “Terms”), together with the terms and conditions of any online or offline Order Form (collectively, the “Agreement”) constitute an agreement between the person or entity agreeing to the Agreement (“Customer”) and Salsify, Inc., a Delaware corporation, with a place of business located at 1 Winthrop Square, 5th Floor Boston, MA 02110 (“Salsify”). Each of Salsify and Customer 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). 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. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, CLICK THE “DO NOT ACCEPT” BUTTON BELOW AND DO NOT ACCESS OR USE 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”). Customer desires a subscription to access and use the Salsify Platform in accordance with the terms and conditions set forth herein.
2.1 Access and Use. Subject to the terms and conditions of this Agreement, Salsify hereby grants Customer a non-exclusive, non-transferable and non-sublicensable, right to access and use the Salsify Platform for its own business purposes only for the duration of the Term.
2.2 Restrictions. Except as provided herein or in an order form (the “Order Form”), the access rights grants in Section 2.1 is granted subject to the following restrictions:
(a) the Salsify Platform 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 or otherwise commercially exploit or make the Salsify Platform or any portion thereof available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Salsify Platform or the data contained therein, including by introducing viruses, worms, harmful code and/or Trojan horses on or in the Salsify Platform or the Internet; (iii) 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 other accounts hosted by the Salsify Platform or other computer systems or networks not covered by this Agreement, for which it does not have permission, through password mining or any other means; (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 the Salsify Platform; (vii) use the Salsify Platform to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; or (viii) use the Salsify Platform 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 a social security number, driver’s license or state identification card number, financial account number, credit or debit card number, security code, access code, or password that would permit access to an individual’s financial account, or any other information that requires encryption under any law, regulation, rule, privacy policy or agreement; (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.
(d) Customer will, and will ensure that its Authorized Users will, access and use the Salsify Platform only in compliance with Salsify’s standard published policies then in effect, including its privacy policy, and all applicable laws and regulations.
2.3 Authorized Users; Audit. “Authorized Users” means Customer’s personnel who are authorized to access and use the Salsify Platform using a user identifier and password provided by Customer. Customer will not make available the Salsify Platform to any person or entity other than Authorized Users. Customer will cooperate with Salsify if Salsify wishes to monitor Customer’s compliance with this requirement (such cooperation to include providing Salsify access to premises to inspect the way the Salsify Platform is used by Customer and Authorized Users) (“Audit”). In addition, Customer acknowledges that the Salsify Platform records and logs certain usage information related to the Salsify Platform. Customer shall not disable or tamper with such recording and logging functionality in any way and shall provide Salsify with access (either direct or remote, at Salsify’s option) to all devices and servers owned by Customer and used by Authorized Users to access and use the Salsify Platform for purposes of retrieving any such information and otherwise reasonably cooperate with Salsify’s efforts to obtain such information. If an Audit or any such log information reveals that the Salsify Platform has been used by anyone who is not an Authorized User or by an Authorized User for which applicable fees were not paid, then (a) Customer will promptly reimburse Salsify any underpaid subscription fees (at the current list price) and all costs incurred by Salsify in carrying out the Audit, and (b) Salsify may terminate the Agreement immediately upon written notice.
2.4 Services. From time to time, Customer may request Salsify to provide certain professional services. If Salsify or its applicable affiliate agrees to perform any such professional services for Customer, then such professional services (the “Services”) will be described in a mutually agreed upon statement of work that references this Agreement (“Statement of Work”), and the fees for such Services will be as agreed to by the Parties in the applicable Statement of Work.
2.5 Reservation of Rights; Acknowledgement of Ownership. Customer agrees that 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 that such Salsify Materials will not be used in any way whatsoever except for the use of the Salsify Platform 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. Any content ordered by Customer as part of the Services, which is created, compiled, arranged, modified, displayed or published by Salsify is the property of Salsify.
2.6 Salsify Materials. Notwithstanding any other provision of this Agreement, Salsify and its licensors reserve the right to 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 upon notice to Customer. In no event will Salsify be liable for the removal or disabling of access to any such content, functions or materials under this Agreement. 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.
2.7 Customer Content. Customer will own all content, text, graphics, photos, audio, video material, and other tangible materials, in its unaltered form, provided by Customer to Salsify under this Agreement in connection with its use of the Salsify Platform under this Agreement (“Customer Content”). Customer hereby grants to Salsify and its affiliates a worldwide, perpetual, irrevocable, sub-licensable (through multiple tiers), royalty-free, non-exclusive right and license to access, retrieve, store, copy, create derivative works of, display, perform, distribute and otherwise use the Customer Content, in whole or in part, in connection with operating, maintaining, and supporting the Salsify Platform for Customer under this Agreement.
2.8 Feedback. Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback of other information about the Salsify Platform (“Feedback”), provided by Customer to Salsify are non-confidential 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 Customer.
2.9 Privacy; Data Security.
(a) Customer understands and agrees that Salsify may use cookies, web beacons and/or other technologies to collect certain personally non-identifiable data in connection with this Agreement, which data may include, among other things, information such as an Authorized User’s IP address, pages viewed by an Authorized User, date and time and domain type. Such information, which is collected passively using various technologies, cannot presently be used to specifically identify any Authorized User. Salsify may store such information itself or such information may be included in databases owned and maintained by Salsify affiliates, agents or service providers. Salsify may use such information and pool it with other information for billing purposes or to track, for example, the total number of users of the Salsify Platform, the number of visitors to each area or interactive object within the Salsify Platform, and the domain names of our visitors’ Internet service providers.
(b) Salsify may monitor use of the Salsify Platform by all of its customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Subscription Service. Customer agrees that Salsify may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.
(c) Salsify will use commercially reasonable administrative, technical, and physical safeguards to prevent the unauthorized access, use or disclosure of any personally identifiable information in violation of any applicable laws. Customer acknowledges, however, that Salsify cannot guarantee the security of such information given the nature of the Internet. Customer also acknowledges that by issuing user identifiers and passwords for its Authorized Users, Customer controls, defines and manages access to the content and related information that will be used by Customer and its Authorized Users within the Salsify Platform. Customer is responsible for (i) compliance with all foreign and domestic privacy laws and regulations that may be applicable to Customer’s use of the Salsify Platform, (ii) securing all necessary prior consents for the collection, storage, and use of data and content within the Salsify Platform, and (iii) creation of, and compliance with, applicable policies regarding access and use by Customer’s Authorized Users of such data and content.
2.10 Third Party Service Providers. The Salsify Platform may use and/or provide access to a third party’s (e.g. Amazon) 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 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.
2.11 Digital Millennium Copyright Act.
(a) Salsify will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Salsify’s Copyright Agent at dmca@salsify.com (Subject line: “DMCA Takedown Request”). Customer may also contact Salsify by mail at the address above.
(b) To be effective, the notification must be in writing and contain the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that Customer claims has been infringed; (iii) a description of where the material that Customer claims is infringing is located on the Site or Service, with enough detail that we may find it on the Site or Service; (iv) Customer’s address, telephone number, and email address; (v) a statement by Customer that Customer has a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (vi) a statement by Customer, made under penalty of perjury, that the above information in such notice is accurate and that Customer is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
(c) If Customer is the subject of a complaint and Customer believes that Customer Content that was removed (or to which access was disabled) is not infringing, or that Customer has the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the Customer Content, Customer may send a written counter-notice containing the following information to the Copyright Agent: (i) Customer’s physical or electronic signature; (ii) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (iii) a statement that Customer has a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (iv) Customer’s name, address, telephone number, and e-mail address, a statement that Customer consents to the jurisdiction of the federal court located within Massachusetts and a statement that Customer will accept service of process from the person who provided notification of the alleged infringement.
(d) If a counter-notice is received by the Copyright Agent, Salsify will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Salsify’s sole discretion.
3.1 Subject to the terms and conditions of this Agreement, Salsify will use commercially reasonable efforts to host and maintain the Salsify Platform. The foregoing shall not apply to any unavailability, suspension or termination of the Salsify Platform that results from: (i) Customer’s breach of this Agreement; (ii) any Force Majeure Event; (iii) any actions or inactions of Customer or any Authorized User; (iv) Customer’s equipment, software or other technology of Customer or any Authorized User (other than third party equipment within Salsify’s or its vendors’ direct control); or (v) scheduled periods of maintenance or downtime for which Customer is notified at least 24 hours in advance. At no additional charge to Customer, Salsify will provide Customer with reasonable technical support regarding Customer’s access and use in accordance with Salsify’s then standard support terms located athttp://www.salsify.com/support.
3.2 In the event that Salsify fails to maintain or experiences interruption in access to the Salsify Platform, Salsify will use commercially reasonable efforts to restore the Salsify Platform as quickly as reasonably possible under the circumstances.
4.1 Fees; Payment Terms. In exchange for Customer’s access and use of the Salsify Platform provided by Salsify as set forth herein, Customer will pay Salsify the fees set forth in the Order Form. The fees will remain fixed during the Subscription Term unless Customer’s usage of the Salsify Platform exceeds the limits of the existing tier, at which point the Customer’s fees will be adjusted up to the prices applicable at the next tier, as set forth in the Order Form. Where a price change is applicable to Customer, Salsify will charge Customer under the new price structure, starting with the next monthly billing period in the Subscription Term. Notwithstanding anything to the contrary herein, Salsify may change its fees at any time after the Initial Term upon thirty (30) days written notice to Customer. Failure to pay any fees under this Agreement will result in an interruption of service.
4.2 Payment Terms. All fees and payments under this Agreement will be billed in advance on a monthly basis and are non-refundable, and all fees for Services performed under a Statement Work will be due and payable as set forth in the applicable Statement of Work. All payments will be made in U.S. dollars by credit card or bank transfer, without any withholding, deduction, offset, setoff or other charge. Customer is responsible for providing valid and updated credit card information or 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 due 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 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”), 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 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 written agreements 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 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 in seeking to obtain such protection.
5.3 In addition, the terms and conditions of this Agreement shall be deemed Confidential Information of each Party. Each Party may disclose the terms and conditions of this Agreement (i) to existing and potential investors, lenders and acquirers and the accountants and professional advisors of any of the foregoing, provided, that any such recipient is bound by confidentiality obligations or ethical duties to maintain the terms of this Agreement in accordance with the terms and conditions of this Section 5, and (ii) as otherwise required pursuant to applicable law, regulation, stock market or stock exchange rule or rule of a self-regulatory organization (e.g., rules or regulations of the United States Securities and Exchange Commission, the Nasdaq Stock Market or the NYSE).
6.1 Representations and Warranties. Salsify represents and warrants to Customer that Salsify will provide the Salsify Platform in a professional and workmanlike manner. 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 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 and does not warrant or endorse and 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 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. CUSTOMER 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 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 copyright, trade secret or trademark by reason of the use of the Salsify Platform (other than with respect to the Customer Content) by Customer as permitted hereunder, Salsify will, at its expense, defend 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 will promptly notify Salsify of such claim, (ii) Salsify will have 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 (iii) Customer reasonably cooperates with Salsify in connection therewith. If the use of the Salsify Platform 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 as set forth hereunder; (b) replace or modify the infringing component of the Salsify Platform to make it non-infringing so long as the Salsify Platform has comparable functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. Salsify will have no liability or obligation under this Section 7.1 with respect to any claim if 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; (y) modification of the Salsify Platform by any person or entity other than Salsify; or (z) the combination, operation or use of the Salsify Platform with other applications, software, content, products, data or services where the Salsify Platform would not by itself be infringing.
7.2 Indemnification by Customer. Except for claims for which Salsify is obligated to indemnify Customer pursuant to Section 7.1 above, Customer will, at its expense, defend Salsify 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 Customer, Authorized Users, or any other person or entity authorized by Customer, which use is in violation of the terms of this Agreement or in a manner not prescribed by Salsify, 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 Salsify for such defense; provided that: (a) Salsify will promptly notify Customer of such claim, (b) Customer will have 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 in connection therewith.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SALSIFY OR ITS AFFILIATES HAVE ANY LIABILITY 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 A REPRESENTATIVE OF SALSIFY OR ANY OF ITS AFFILIATES HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING UNDER ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, SALSIFY WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE ANNUAL SUBSCRIPTION 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 CUSTOMER’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 Order Form (the “Initial Term”). Thereafter, the term of this Agreement will automatically renew for successive periods of one (1) month (each, a “Renewal Term” and, together with the Initial Term, the “Subscription Term”), provided, however, either Party may terminate this Agreement at any time.
9.2 Termination. Salsify, in its sole discretion, may suspend or terminate this Agreement (or any part thereof) or use of the Salsify Platform for any reason and at any time upon thirty (30) days’ prior notice, including, without limitation, if Customer is in breach of any term or condition of this Agreement. Customer may terminate this Agreement upon written notice in the event Salsify commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach.
9.3 Obligations on Termination. Upon termination of this Agreement all rights granted hereunder and all obligations of Salsify to provide 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, and Customer shall, and shall cause its Authorized Users to, cease all use of the Salsify Platform. Termination or expiration of this Agreement will not relieve Customer from paying all fees accruing prior to termination or expiration, if any. Customer will not receive a refund for any unused portion of the Subscription Term, except if this Agreement is terminated by Salsify and Customer is not in breach of the Agreement. Upon termination, 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. After such period, Salsify may immediately remove and discard 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, 5, 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.
10.1 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 Customer more than one (1) year after the events which gave rise to the claim or action become known.
10.2 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. 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. In addition, Customer shall not, and shall cause Authorized Users not to, access or use the Salsify Platform 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 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.
10.3 No Assignment. Customer may not assign or transfer this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent 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.
10.4 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.
10.5 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date.
10.6 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.
10.7 Notices. All notices 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 above or such other addresses designated pursuant to this Section 10.7.
10.8 Entire Agreement. This Agreement and the Order Form 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, sales acknowledgments or quotations. In the event of any conflict between any term or condition in these Terms and any term or condition in the Order Form, the applicable term in this Order Form will govern. There shall be no force or effect to any additional or different terms of any related purchase order or similar form provided by Customer after the date hereof.
10.9 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.
