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Note: if you signed up for Salsify before November 25, 2014, you agreed to an older Terms of Service.
These Terms of Service (these "Terms"), together with the terms and conditions of any Order Form (as defined below) entered into between the parties (collectively, such Order Forms and these Terms are referred to as 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 (except as otherwise expressly set forth in Section 10.3 below) and non-sublicensable, right to access and use the Salsify Platform solely for Customer's own business purposes and solely for the duration of the applicable Subscription Term.
2.2 Restrictions. Except as provided herein or in an any online or offline order form, registration form or similar instrument that is entered into between Salsify and Customer and that references these Terms (hereinafter an "Order Form"), the access rights granted in Section 2.1 are granted to Customer 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 require that its Authorized Users do not: (i) reproduce, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share the Salsify Platform 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) intentionally or knowingly interfere with or disrupt the integrity or performance of the Salsify Platform 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) 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; (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;(c) Customer will not, and will require 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; and (d) Customer will, and will require that its Authorized Users will, access and use the Salsify Platform only in compliance with Salsify's standard published policies then in effect and which are made available to Customer in writing in advance or that are otherwise posted on Salsify's website at www.salsify.com, including its privacy policy, and all applicable laws and regulations.
2.3 Authorized Users. For purposes of this Agreement, "Authorized Users" means Customer's employees, contractors, and agents who are authorized by Customer to access and use the Salsify Platform using a user identifier and password provided by Customer.
2.4 Services. From time to time, Customer may request Salsify to provide certain professional services. If Salsify 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 and other terms 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. The Salsify Platform contains proprietary information, materials and content including, but not limited to, copyrighted material, trademarks, service marks, and other proprietary information; which may include (without limitation), text, software, photographs, video, graphics, interactive elements, images, and sounds that are owned by Salsify and/or its licensors (collectively "Salsify Materials") and are protected by applicable intellectual property and other laws including, but not limited to, copyright and trade secrets and 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.
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 then Customer, as its sole remedy may 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 copy, modify, 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 directed by Customer through its use of the Salsify Platform. All Customer Content may be exported by Customer at any time during the Subscription Term and for a period of thirty (30) days thereafter.
2.8 Feedback. Salsify appreciates the feedback that it receives from its customers with respect to the Salsify Platform. Customer acknowledges and agrees that Customer will gain no right, title, or interest in or to the Salsify Platform or any other products or services (other than as licensed pursuant to this Agreement) by virtue of any questions, comments, suggestions, ideas, feedback or other information about the Salsify Platform ("Feedback"), provided by Customer to Salsify, and Salsify will be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to Customer. Customer agrees that it does not now have, will not have, nor will it ever claim, any proprietary rights (including intellectual property rights and trade secret rights) in or to the Feedback, the Salsify Platform and/or the other services and products offered. If Customer is ever held or deemed to hold any right, title or interest in or to the Salsify Platform (including any changes, modifications or corrections thereto), other services and products, and/or the Feedback, then Customer hereby irrevocably assigns to Salsify all such right, title and interest.
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, including, without limitation, an Authorized User’s IP address, pages viewed by an Authorized User, date and time and domain type. For clarity, Salsify will only collect such information when an Authorized User is using the Salsify Platform. Salsify may store such information itself or such information may be included in databases owned and maintained by Salsify, its 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 its 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 Salsify Platform. Customer agrees that Salsify may use and publish such information, provided that such information does not incorporate any Customer Content and/or identify Customer. (c) Salsify will use the same level of care it uses to protect its own confidential information, but in no event less than a 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) its 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 any Customer Content within the Salsify Platform, and (iii) its compliance with applicable Salsify policies made available to Customer in advance in writing by Salsify regarding access and use by Customer's Authorized Users of such data and content.
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, eBay, Overstock.com, 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.
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 Salsify Platform, with enough detail that Salsify may find it on the Salsify Platform; (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 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 shall be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice.
3.1 Service Level Agreement. Salsify shall use commercially reasonable efforts to ensure that that Salsify Platform is generally available 99.9% of the time in a calendar month during the Subscription Term (i.e. will serve content from Salsify’s hosting facility 99.9% of the time).
General availability will be calculated per calendar month, as follows:
[((total - nonexcluded - excluded) / total - excluded) * 100] ≥ 99.9%
Where:
In the event that Salsify fails to maintain or experiences interruption in access to the Salsify Platform below 99.9% general availability in any given month, Salsify's sole liability and Customer's sole and exclusive remedy will be for Salsify to provide a credit based on the availability level above (or, in the case of a non-renewal, a refund based on the availability level below), but Customer must notify Salsify of such breach within 7 days of the end of the month in question by emailing support@salsify.com. To be eligible, the credit request must include: (i) the words "SLA Credit Request" in the subject line; and (ii) the dates and times of each interruption in service that Customer is claiming.
General availability to Credit of Fees Paid (prorated to month):
3.2 Backups. Salsify maintains backups of its entire system according to industry standard practices, including but not limited to full nightly backups. In addition, Salsify also encourages Customer to use Salsify APIs to maintain a full backup of Customer Content on a regular basis.
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 then current 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. If Customer is to be adjusted up, Salsify will provide written notice to Customer and allow seven (7) days after written notice to modify usage below limits of existing tier. Salsify reserves the right to modify pricing prior to the commencement of any Renewal Term (as defined below), though does not have the right to modify pricing effective during an existing Subscription Term. 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.
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 on a monthly basis and are non-refundable, and all fees for Services performed under a Statement of 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, bank transfer, or check, without any withholding, deduction, offset, setoff or other charge. Customer is responsible for providing information to complete payment, such as 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 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 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 take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that the Receiving Party is required by law to make any disclosure of any of Disclosing Party's Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party, at the Disclosing Party's sole expense, in seeking to obtain such protection. The provisions of this Section 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 Salsify will provide the Salsify Platform in a professional and workmanlike manner during the applicable Subscription Term. 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 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 AND ALL SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND AND SALSIFY AND ITS AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 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, 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 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 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. 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 with other applications, software, content, products, data or services not provided by Salsify where the Salsify Platform 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 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) 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, 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 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 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 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 Order Form (the "Initial Term"). Thereafter, unless otherwise expressly set forth on the 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 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 written notice of such breach is received.
9.3 Obligations on Termination. Upon termination of this Agreement all rights granted hereunder and all obligations of Salsify to provide the Salsify Platform will immediately terminate and the Parties will return any Confidential Information of the other Party in its possession or control to the other Party upon written request, and 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. 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 for a period of thirty (30) days and, during such period, will deliver such Customer Content to Customer upon request. 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 use of the Salsify Platform.
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 either Party 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. Neither Party may assign or transfer this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the other Party provided that either Party may, without consent, assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or business to which this Agreement relates provided that Customer does not assign this Agreement to a competitor of Salsify. Any attempt to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns.
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. 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.
10.6 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. Except as otherwise expressly provided on the 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.
10.7 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 inOrder Form 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, 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 the 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.
10.9 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 provided that Customer may request that Salsify cease such use at any time upon written notice to Salsify.
