Salsify Terms of Service v7.0

These Terms of Service along with the Subscription Order Form, any statement of work (each an “SOW”) and exhibits incorporated herein form this Solution Agreement (collectively, the “Agreement”), which is by and between Salsify, Inc. (“Salsify” and the Customer identified as “Customer” on the Subscription Order Form (“Customer”). The Agreement will govern the use and provision of any Salsify Solutions (as defined below). Terms not defined herein have the meaning given to them in the Subscription Order Form or SOW. Salsify provides the leading hosted product experience management platform that collaboratively integrates, manages, enhances, cleans, shares, publishes, evaluates and continually optimizes product content, digital assets, and related information across the supply chain (the “Salsify Platform”). Customer desires (i) a subscription to access and use the Salsify Solutions, including access to the functionality of the Salsify Platform, in accordance with the terms and conditions of this Agreement.

1.Definitions

1.1.“Affiliates” means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person.
1.2.“Aggregated Data” means analysis, messaging and chat data and other data created, received or processed from the Salsify Platform or in connection with deploying the Salsify Solutions; provided that such data is anonymized or otherwise not directly attributable to or identified with Customer and/or end user.
1.3.“Authorized User” means each of Customer’s employees, agents, and independent contractors who are provided access to the Salsify Solutions by Customer or Salsify.
1.4.“Confidential Information” means all written or oral information, disclosed by one party (the “disclosing party”) to the other (the “recipient”), 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, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents and (iii) information regarding the skills and compensation of the disclosing party’s employees, contractors, and other agents.
1.5.“Customer Content” means all Customer data, information or content submitted by Customer to Salsify in connection with the use of the Salsify Solutions.
1.6.“Documentation” means text and/or graphical documentation, whether in electronic or printed format, provided by Salsify to Customer that are identified as, or intended to be, user manuals or videos and describe the features, functions and operation of the Salsify Solutions.
1.7.“No-Cost Offering” means a no-cost subscription to all or a portion of the Salsify Solutions for a limited or unlimited period of time (as indicated on the Subscription Order Form).
1.8.“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
1.9.“Report” means the report, document or other deliverable identified in any SOW as the Report.
1.10.“Report Tools” means the generic and reusable templates, tools, processes, methodologies or materials developed by Salsify which have been and/or will be used by Salsify for itself and/or other customers.
1.11.“Salsify Platform” has the meaning set forth in the recitals.
1.12.“Salsify Solutions” means the Salsify Solutions identified in any Subscription Order Form, which consists of access to the functionality of the Salsify Platform and the Services. References to any Salsify Solution includes the Documentation.
1.13.“Services” means services provided by Salsify to Customer as described in any Subscription Order Form or SOW, including, but not limited to, implementation services, integration services, configuration services, support services, training services and other professional services.
1.14."Sensitive Personal Information” means any personal information that requires additional protection under applicable data protection laws as a result of its sensitive nature, including, without limitation, information concerning an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, physical or mental health, sex life or orientation, criminal records, financial account numbers, account passwords or voice mail access codes, medical records, biometric information, date of birth and government-issued identification numbers (such as U.S. Social Security numbers or other national insurance or identification numbers, driver's license numbers, and passport numbers).
1.15.“Subscription Order Form” means the document signed by an authorized representative of each party identifying the Salsify Solutions to be made available, the fees to be paid and other relevant terms and conditions.
1.16.“Subscription Term” means the duration of any Subscription Order Form, as set forth in the Subscription Order Form.
1.17.“Technical Crawling Risks” means technical risks associated with crawling, including (i) the web crawlers operated by Salsify could be blocked by the target retailer websites or servers; (ii) the retailer websites may not be accessible due to network downtime on the retailer’s internal servers; (iii) data extraction, categorization, de-duplication, and matching of products are conducted on a reasonable efforts basis and Salsify makes no guarantee of accuracy; (iv) the page structure of the Salsify websites may have changed; and (v) such activities may be prohibited by the retailer (including according to its terms of use or service).
1.18.“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.Salsify Solutions

2.1.
Access and Use. Subject to Customer’s compliance with the terms and conditions of this Agreement, Salsify hereby grants, and Customer hereby accepts, a non-exclusive, non-transferable (except to any of its Affiliates upon notice and subject to Section 10.2) and non-sublicensable right during the Subscription Term(s) to access and use the Salsify Solutions solely for Customer's own business purposes.

If expressly permitted in an Order Form, Customer may make the Salsify Solutions available to its Affiliates provided that Customer ensures that such Affiliate complies with this Agreement and Customer is liable for any breach of the terms and conditions of this Agreement by any of its Affiliates.
2.2.Restrictions. Customer and any Authorized User shall not (i) permit any third party to access the Salsify Platform or use the Salsify Solutions except as permitted herein, (ii) create derivative works based on the Salsify Platform or the Salsify Solutions, (iii) copy, frame, or mirror any part or content of the Salsify Platform or the Salsify Solutions, (iv) reverse engineer the Salsify Platform or the Salsify Solutions, (v) access the Salsify Platform in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Salsify Platform or the Salsify Solutions, or (vi) upload, post, store, distribute, transmit, sell, promote or provide any products, services, Customer Content, information, data or other material that (a) includes any Sensitive Personal 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; or (d) that violates or infringes the intellectual property rights or rights to the publicity or privacy of others.
2.3.Service Levels. During the Subscription Term, Salsify will provide the Salsify Solutions in accordance with the Salsify Service Level Policy attached hereto as Appendix A and will further provide Customer with the support services set forth and described in the Salsify Support Availability Policy attached hereto as Appendix B.
2.4.Reservation of Rights; Acknowledgement of Ownership. Except for the limited licenses granted to Customer herein, Salsify reserves all right, title and interest in the Salsify Platform, Salsify Solutions and Documentation, including all modification, derivatives, enhancements and improvements (e.g. new features and functions) to the Salsify Platform, Salsify Solutions and Documentation. Unless otherwise expressly set forth in the Subscription Order Form or SOW, Customer shall own all right, title and interest in and to the content on all Reports developed by Salsify on behalf of Customer and delivered to Customer in the performance of any Services, excluding the Report Tools. Salsify retains all right, title and interest in the Report Tools and grants Customer a non-exclusive, non-transferable, royalty-free license to use any Report Tools embedded in the Reports, upon Customer’s payment in full of all amounts due hereunder, solely for use in connection with the Customer’s internal use of the Salsify Platform.
2.5.Third-Party Service Providers. One primary feature of the Salsify Platform is that the Salsify Platform may use and/or provide access to a third party's (e.g. Amazon, Walmart, Google, etc.) website properties and services, for example to enable Customer to publish Customer Content to a third-party site or service. Salsify has no control over such sites and services, and 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.
2.6.Technical Crawling Risks. The Salsify Solutions include crawling of websites in which structured data is extracted out from semi-structured data that is present on product pages hosted on third-party retailer websites or servers that Salsify does not own or control in any way. Customer acknowledges and accepts that these data gathering tasks are not fault tolerant and are susceptible to Technical Crawling Risks.
2.7.No-Cost Offering. To the extent that Salsify makes available to Customer one or more of its No-Cost Offerings then Customer hereby acknowledges and agrees as follows: (i) the No-Cost Offering may not contain all of the features and functions generally made available by Salsify in connection with a purchased subscription to the Salsify Solutions and (ii) the No-Cost Offering is made available to Customer by Salsify on an “AS IS” basis without any representations or warranties whatsoever. For the avoidance of doubt, Sections 7 and 8 of this Agreement and Salsify’s Service Level Policy attached hereto as Appendix A and Support Availability Policy attached hereto as Appendix B shall not be applicable to the No-Cost Offering.
2.8.Continuous Development. Customer acknowledges that Salsify may continually develop, deliver and provide to Customer on-going innovation and improvements to the Salsify Platform and Salsify Solutions, including in the form of new features, functionality, and efficiencies. Accordingly, Salsify reserves the right to modify the Salsify Platform and Salsify Solutions from time to time. Some modifications will be provided to Customer at no additional charge. In the event Salsify adds additional functionality to a particular Salsify Solution, Salsify may condition the implementation of such modifications on Customer’s payment of additional fees provided Customer may continue to use the version of the Salsify Solution that Salsify makes generally available (without such features) without paying additional fees.
2.9.Feedback. In connection with its receipt of the Salsify Solutions, Customer may provide comments, criticism, suggestions or other feedback (collectively “Feedback”) regarding the Salsify Platform or Salsify Solutions. Customer hereby grants Salsify a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into the Salsify Platform and Salsify Solutions, and to otherwise use the Feedback. Salsify acknowledges that any Feedback is provided “as is” without any representations or warranties.

3.Customer Content and Obligations

3.1.Ownership and Reservation of Rights. Except for the limited license granted to Salsify in Section 3.2, as between Customer and Salsify, Customer reserves all right, title and interest in the Customer Content. During the Subscription Term and for a period of thirty (30) days following termination or expiration of the Subscription Term for any reason, Customer shall have the right to download all Customer Content in the Salsify Platform via standard export mechanisms – including through the Salsify Platform interface – in industry standard export formats.
3.2.License in Customer Content. Customer grants to Salsify a non-exclusive license during the Subscription Term, to use, store and transmit the Customer Content solely as necessary in connection with the provision of the Salsify Solutions.
3.3.Customer Obligations. 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 and Salsify Solutions, (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 customer-facing policies made available, upon written request, to Customer in advance in writing by Salsify regarding access and use by Customer’s Authorized Users of such data and content. In the event that Customer requires or directs Salsify to obtain any content for Customer from any third party website, Customer represents and warrants that (i) it owns such content or has otherwise secured all necessary prior consents for the collection, storage, and use of any such content within the Salsify Platform and (ii) such content will be deemed Customer Content for all purposes of this Agreement

4.Privacy, Data, Security and Backup Data

4.1.Privacy. Salsify provides the Salsify Solutions subject to Salsify’s privacy policy and data protection rules located at https://www.salsify.com/privacy-policy
4.2.Usage Data. Customer acknowledges and agrees that Salsify may derive Usage Data in connection with use of the Salsify Solutions by Authorized Users and Salsify may use Usage Data in order to develop, analyze, improve, support and operate the Salsify Solutions.
4.3.Aggregated Data. Customer acknowledges and agrees that Salsify may obtain Aggregated Data in connection with the use of the Salsify Solutions and Salsify may use the Aggregated Data to develop, analyze, improve, support and operate the Salsify Solutions. For clarity, this Section 4.3 does not provide Salsify the right to identify the source of any Aggregated Data.
4.4.Security. Salsify maintains a comprehensive information security program consistent with industry standards that contains appropriate administrative, technical and physical safeguards reasonably designed to protect Customer Content from unauthorized disclosure, as further described at https://www.salsify.com/security-and-reliability. Such information security program will include business continuity and disaster recovery plans that are consistent with industry standards and are designed to protect against loss of Customer Content. In the event that Salsify has reason to believe that there has been any unauthorized access to, or loss of, Customer Content from its systems or premises, then it will promptly notify Customer according to Salsify’s policies and protocols aligned with the data type and nature of the event.
4.5.Backups. Customer Content is backed up regularly as protection against accidental or intentional data destruction. Specifically, Customer Content is backed up once per day to storage that is separate from the primary Salsify Platform servers and backups are kept on a seven (7) day rotating schedule. In addition to the above, Salsify APIs and standard scheduled export functionality can be used by Customer to regularly back up all Customer Content at intervals Customer may require.

5.Fees; Fulfillment; Payment Terms

5.1.Fees; Payment Terms. In exchange for Customer's access and use of the Salsify Solutions, Customer will pay Salsify the fees set forth in any applicable Subscription Order Form or SOW. Failure to pay any fees under this Agreement will result in an interruption of service after written notice and failure to pay and reasonable opportunity to cure. In addition to paying the applicable fees, Customer shall also pay all pre-approved reasonable travel and out-of-pocket expenses incurred by Salsify in connection with any Services rendered.
5.2.Payment Terms. Unless otherwise specified in any Subscription Order Form or SOW, all fees under this Agreement will be billed annually in advance and, except as expressly set forth herein, are nonrefundable. In the event that Customer exceeds the number of authorized chats or licenses set forth on the applicable Subscription Order Form then Customer will pay Salsify, quarterly in arrears, for the number of chats or licenses in excess of the limits set forth on the applicable Subscription Order Form at the excess rates set forth on the applicable Subscription Order Form. All invoices issued by Salsify will be due and payable thirty (30) days after invoice date and all fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes.
5.3.Net of Taxes. The fees on the Subscription Order Form do not include any sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity that Customer may be responsible for in connection with the Salsify Solutions (excluding taxes based solely on Salsify’s income). Sales tax, if applicable, will be added to Customer’s invoice at time of billing. Alternatively, Customer may furnish to Salsify an exemption certificate, provided however that if such exemption certificate is challenged or held invalid by a taxing authority then Customer agrees to pay for all resulting fines, penalties and expenses (including without limitation reasonable attorney’s fees and costs).

6.Confidential Information

6.1.Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each disclosing party agrees as follows: (i) it will not disclose the Confidential Information of the disclosing party to anyone except its Authorized Users, 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 (each a “Representative”) and (ii) it will not use or reproduce the Confidential Information disclosed by the disclosing party for any purpose other than exercising its rights and/or performing its obligations as described herein. Each recipient 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) now or hereafter 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 law to be disclosed in connection with a judicial, administrative or other governmental proceeding, 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. In addition, the provisions of this Agreement shall be deemed Confidential Information of the other Party.
6.2.Equitable Relief. The parties acknowledge that any actual or threatened breach of Section 6 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, court costs, and other collection expenses, in addition to any other relief it may receive.

7.Warranties; Disclaimers; Limitations on Liability

7.1.Salsify Representations. Salsify represents and warrants to Customer that during the term of any applicable Subscription Order Form for the Salsify Solutions, the Salsify Solutions will conform, in all material respects, with any Documentation and any other specifications set forth on such the Subscription Order Form and that Salsify will use industry standard precautions to ensure that the Salsify Solutions are free of all viruses, worms, Trojan horses and other malicious code. Salsify further represents and warrants that any Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set forth in the Subscription Order Form or SOW in all material respects.
7.2.General Representations. Each party represents and warrants that: (i) throughout the Subscription Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of the Agreement, or use of the Salsify Solutions, will not conflict with or violate any provision of any law having applicability to such party; and (iii) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
7.3.General Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 AND 7.2, THE SALSIFY PLATFORM, SALSIFY SOLUTIONS AND DOCUMENTATION 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, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT SALSIFY DOES NOT WARRANT THAT THE SALSIFY SOLUTIONS WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES, OR THAT THE SALSIFY SOLUTIONS WILL BE FREE FROM TECHNICAL CRAWLING RISKS, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR THAT THE SALSIFY SOLUTIONS WILL BE ACCURATE, COMPLETE, SUFFICIENT, OR ADEQUATE TO MEET CUSTOMER'S AND ITS AUTHORIZED USERS' REQUIREMENTS OR NEEDS.
7.4.Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, FAILURE TO REALIZE EFFICIENCIES OR COST SAVINGS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL SALSIFY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
7.5.Limitation on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO SALSIFY UNDER THE APPLICABLE SUBSCRIPTION ORDER FORM OR SOW DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE; PROVIDED THAT, THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO (i) A PARTY’S BREACH OF ITS OBLIGATIONS IN SECTION 6 (CONFIDENTIALITY); (ii) SALSIFY’S BREACH OF ITS DATA SECURITY OBLIGATIONS IN SECTION 4.4 (SECURITY); OR (ii) A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS.
7.6.THE PROVISIONS OF THIS SECTION 7 WILL APPLY without regard to whether other provisions of this Agreement have been breached, any limited remedy herein is held to fail of its essential purpose OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).

8.Indemnification

8.1.Salsify Indemnity. Salsify will indemnify, defend and hold Customer, its directors, officers, employees and representatives, 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 and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that the Salsify Solutions, including the Salsify Platform, infringe any U.S. patent, copyright, trademark or trade secret.
8.2.Exclusions. Section 8.1 will not apply if the alleged claim arises, in whole or in part, from: (i) a use or modification of the Salsify Solutions (including the Salsify Platform) by any Customer or any Authorized User in a manner outside the scope of any right granted or in breach of this Agreement, (ii) 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, or (iii) the Customer Content (any of the foregoing circumstances under clauses (i), (ii) or (iii) will be collectively referred to as a “Customer Indemnity Responsibility”).
8.3.Customer Indemnity. Customer will indemnify, defend and hold harmless Salsify, its directors, officers, employees and representatives, from and against any and all Losses arising out of any third-party claim arising out of any Customer Indemnity Responsibility.
8.4.Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action, except where such failure to notify does not materially prejudice the indemnifying party, (ii) reasonably cooperating and assisting in such defense and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
8.5.Infringement. Subject to Section 8.2, if the Salsify Platform or any Salsify Solution is, or in Salsify’s opinion, is likely to become the subject of any infringement-related claim, then Salsify will, at its expense and in its discretion: (i) procure for Customer the right to continue using the Salsify Solution; (ii) replace or modify the infringing technology or material so that the Salsify Solution becomes non-infringing and remains materially functionally equivalent; or (iii) terminate the Subscription Order Form(s) pursuant to which the Salsify Solution is provided and give Customer a refund for any pre-paid but unused fees.
8.6.THE PROVISIONS OF THIS SECTION 8 STATE SALSIFY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SALSIFY SOLUTIONS INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.

9.Term and Termination

9.1.Term. The Subscription Term will commence and continue for the period set forth in the applicable Subscription Order Form.
9.2.Termination. Either Party may terminate this Agreement or any Subscription Order Form upon written notice to the other party in the event the other party commits any material breach of this Agreement or such Subscription Order Form and fails to cure such breach within thirty (30) days after receiving written notice. Termination of a Subscription Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Subscription Order Forms.
9.3.Suspension of Salsify Solutions. At any time during the Subscription Term, Salsify may, immediately upon notice to Customer, suspend access to any Salsify Solution for the following reasons: (i) a threat to the technical security or technical integrity of the Salsify Solutions; (ii) any amount due under this Agreement is not received by Salsify within fifteen (15) days after it was due, (iii) Customer’s breach of Section 2.2 of these Terms of Service, or (iv) breach or violation by Customer of any statutes, laws, or regulations.
9.4.Termination upon Bankruptcy or Insolvency. Either party may, at its option, 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.
9.5.Return/Deletion of Customer Content. Upon termination or expiration of this Agreement, 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.
9.6.Effect of Termination. Upon termination or expiration of this Agreement for any reason, (i) any amounts owed to Salsify before such termination or expiration will be immediately due and payable, and (ii) all licensed and access rights granted will immediately cease to exist. Sections 1, 3.3, 4, and 6 through 11 will survive the termination or expiration of this Agreement for any reason whatsoever.

10.General

10.1.Export Compliance; Use Restrictions. Certain technology and software components of the Salsify Solutions 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 Solutions. In addition, Customer shall not, and shall cause Authorized Users not to, access or use the Salsify Solutions 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 Solutions 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 Solutions will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes.
10.2.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.
10.3.Publicity. Salsify may identify Customer as a customer of Salsify and display Customer's name and logo solely for such purpose on its customer lists, its website, and its marketing and promotional materials provided that Customer may request that Salsify cease such use at any time upon written notice to Salsify.
10.4.Notices. All notices, consents, and approvals under this Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth below such party’s signature on the Cover Page and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.
10.5.Governing Law; Disputes. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in a federal or state court located in Boston, Massachusetts and both parties submit to the jurisdiction and venue of such courts (or arbitration proceeding).
10.6.Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.7.Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10.8.No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
10.9.Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
10.10.Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terror, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
10.11.Open Experience Alliance. During the Subscription Term, Customer shall be included, at no additional fee, in Salsify’s program “Open Experience Alliance,” a supplier consortium that collectively advocates for an open ecosystem that enables brands to submit content to retailers using the technology of their choice. As a member of the program, Salsify may include Customer’s name and logo in private “Open Experience Alliance” retailer communication that advocates on Customer’s behalf for content submission processes that directly benefit Customer. Any such usage of Customer’s logo in connection with any “Open Experience Alliance” communication shall be preceded by at least 48 hours’ notice to Customer prior to submission, with an email demonstrating how Customer’s logo will be used. Customer may elect to cease its participation in the Open Experience Alliance at any time upon written notice to Salsify. More information about the Open Experience Alliance can be found at https://www.salsify.com/oxa.
10.12.Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.

APPENDIX A

Salsify Service Level Policy

1. Service Availability

Salsify shall use commercially reasonable efforts to ensure that Salsify Platform is generally available 99.9% of the time in a calendar month during the Subscription Term.
General availability will be calculated per calendar month, as follows:

[((total - nonexcluded - excluded) / total - excluded) * 100] ≥ 99.9%

Where:

total means the total number of minutes for the month
nonexcluded means periods of downtime that are not excluded
excluded means the following:

Any planned downtime of which Salsify gives 24 hours or more notice.
Delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under the Agreement
Failure of Customer’s or its Users’ network, Internet, hardware, software or systems,
Any unavailability caused by circumstances by Force Majeure events defined in Section 10.10.

Salsify will make commercially reasonable efforts to not schedule planned downtime during the hours 3:00 am (Eastern) to 9:00 pm (Eastern), Monday through Friday. Additionally, Salsify will make commercially reasonable efforts to restrict scheduled maintenance to not more than two (2) events per month and not more than four (4) hours per event.

The measurement of Service Availability is the availability of the Salsify Platform at the hosting center’s Internet connection points. Customer may request a response time report not more than once per month via Salsify Support.

2. Service Response

Salsify’s Service Response commitment for interactive requests is: (i) 50th percentile response time under two (2) seconds and (ii) 90th percentile response time under five (5) seconds. Service Response is the processing time of the Salsify Platform to complete requests submitted from a web browser.
The time required to complete the request will be measured from the point in time when the request has been fully received by the Salsify Platform servers, until such time as the response begins to be returned for transmission to Customer. Customer may request a response time report not more than once per month via Salsify Support.

3. Service Credits

In the event that Salsify fails to maintain the above the stated Service Availability and Service Response levels in any given month (a “Service Level Failure”), Salsify's sole liability and Customer's sole and exclusive remedy will be for Salsify to provide Service Credits to Customer in accordance with the tables below. Customer must notify Salsify of such Service Level Failure within 10 days of the end of the month in question by emailing support@salsify.com. To be eligible for Service Credits, the email 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. The credits shall be calculated by dividing the fees for the Salsify Platform, as stated in the Order Form, by the number of months in the applicable subscription term and then applying the percentages below.

Service Availability Credits

99% - 99.9%: 10% credit
95% - 99%: 33% credit
< 95%: 100% credit

Service Response Credits

50th percentile response 2-3s and/or 90th percentile response 5-7.5s: 10% credit
50th percentile response 3-6s and/or 90th percentile response 7.5-15s: 33% credit
50th percentile response > 6s and/or 90th percentile response > 15s: 100% credit

APPENDIX B

Salsify Support Availability Policy

Severity Level Determination

Customer may report errors in or questions about the Salsify Platform (collectively “support issues”) via the Salsify online help site or via email to support@salsify.com.

When communicating support issues to Salsify, Customer shall reasonably self-diagnose each support issue and recommend, in good faith, to Salsify an appropriate Severity Level designation. Salsify shall validate Customer's Severity Level designation, or notify Customer of a proposed change in the Severity Level designation to a higher or lower level with justification for the proposal. In the event of a conflict regarding the appropriate Severity Level designation, each party shall promptly escalate such conflict to its management team for resolution through consultation between the parties’ management, during which time the parties shall continue to handle the support issue in accordance with the Salsify Severity Level designation. In the rare case a conflict requires a management discussion, both parties shall be available within one business hour of the escalation.

Support Issue Production Severity Levels

Salsify responds to support issues based on severity level (as defined below) during standard Salsify support hours. Standard Salsify support hours are from 8:30am to 5:30pm US Eastern Time on weekdays, excluding when these US holidays are observed: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.

Salsify Response Time is the period of standard Salsify support hours from the time a support issue is first communicated by Customer to Salsify until Salsify responds to Customer and/or escalation within Salsify, if appropriate.

Because of the widely varying nature of issues, it is not possible to provide specific resolution commitments.

Severity Level 1:

Definition: The Salsify Platform is unavailable for all users, or the Salsify Platform contains a bug that prevents Customer from executing one or more critical business processes with a significant impact and no workaround exists.
Salsify Response Commitment: Salsify will respond within one (1) hour of receipt of case.
Resolution: Salsify will work to resolve the problem until the Platform is returned to normal operation or a workaround is made available that reduces the situation to Severity 2, 3, or 4. Customer will be notified of status changes.
Escalation: If the problem has not been resolved within one (1) hour, Salsify will escalate the problem to the appropriate Salsify organization. The escalated problem will have higher priority than ongoing support, development or operations initiatives.
Customer Response Commitment: Customer shall remain accessible by phone for troubleshooting from the time a Severity 1 issue is logged until such time as it is resolved.

Severity Level 2:

Definition: The Salsify Platform contains a bug that prevents Customer from executing one or more important business processes. A workaround exists but is not optimal.
Salsify Response Commitment: Salsify will respond within four (4) hours of receipt of case.
Resolution: If resolution requires a Salsify bug fix, Salsify will add the bug fix to its development queue for future Update and suggest potential workaround until the problem is resolved in a future Update. Customer will be notified of status changes.
Escalation: If the problem has not been resolved within one (1) week, Customer may request that Salsify escalate the problem to the appropriate Salsify organization.
Customer Response Commitment: Customer will respond to Salsify requests for additional information and implement recommended solutions in a timely manner.

Severity Level 3:

Definition: The Salsify Platform contains a bug that may disrupt important business processes where a workaround is available, or functionality is not imperative to Customer's business operations.
Salsify Response Commitment: Salsify will respond within twenty-four (24) hours of receipt of case.
Resolution: If resolution requires a Salsify bug fix, Salsify will add the bug fix to its development queue for future Update and suggest potential workaround until the problem is resolved in a future Update. Customer will be notified of status changes.
Escalation: None.
Customer Response Commitment: Customer will respond to Salsify requests for additional information and implement recommended solutions in a timely manner.

Non-system issues (Severity Level 4):

Definition: Non-system issues such as product functionality questions, account configuration questions, or other account requests.
Salsify Response Commitment: Salsify will respond within twenty-four (24) hours of receipt of case.
Resolution Commitment: Salsify will respond to request. Customer will be notified of status changes.
Escalation: None.
Customer Commitment: Customer will respond to Salsify requests for additional information in a timely manner.