Terms of Service

These Terms of Service along with the Order Form, any statement of work (each an “SOW”) and exhibits incorporated herein (collectively, the “Agreement”), govern the use and provision of any Solutions (as defined below). Terms not defined herein have the meaning given to them in the Order Form or SOW.

1.Definitions

1.1.“Affiliates” means any Person that, directly or indirectly, controls, is controlled by, or is under common control with such Person.
1.2.“Aggregated Data” means analysis, technical data and other data created, received or processed from the Platform in connection with deploying the 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 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 “receiving party”), related to the business, products, solutions, services or operations of the disclosing party or a third party that has been identified as confidential or that by the nature of the information ought reasonably to be treated as confidential, including the terms of this Agreement.
1.5.“Customer Content” means all Customer data or information submitted by Customer to Salsify in connection with the use of the Solutions.
1.6.“Deliverable” means the report, document or other deliverable made available through the Platform or otherwise identified in any SOW.
1.7.“Deliverable Tools” means the generic and reusable templates, tools, processes, methodologies or materials developed by Salsify that have been and/or will be used by Salsify for itself and/or other customers.
1.8.“Documentation” means text and/or graphical documentation, whether in electronic or printed format, provided by Salsify to Customer that describe the features and operation of the Solutions.
1.9.“No-Cost Offering” means a no-cost subscription to all or a portion of the Solutions for a limited or unlimited period of time (as indicated on the Order Form).
1.10.“Order Form” means the document signed by an authorized representative of each party identifying the Solutions to be made available, the fees to be paid and other relevant terms and conditions.
1.11.“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
1.12.“Personal Information” means any information about a natural person who is identifiable by referencing an identifier such as name, identification number, location data, or factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity.
1.13.“Platform” means the proprietary cloud-hosted product experience management platform that enables brand manufacturers to collaboratively integrate, manage, enhance, publish and continually optimize product content, digital assets and related information across the digital shelf.
1.14.“Privacy Laws” means any federal, state, municipal or other laws, statutes, or regulations governing the collection, use, disclosure or storage of Personal Information.
1.15.“Services” means services provided by Salsify to Customer as described in any Order Form or SOW, including, implementation services, integration services, configuration services, support services, training services and other professional services.
1.16.“Solutions” means the solutions identified in any Order Form, which consists of access to the functionality of the Salsify Platform and the Services. References to the Solutions includes the Documentation.
1.17.“Term” means the term of any Order Form.
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.Solutions

2.1.Access and Use. Salsify hereby grants, and Customer hereby accepts, a non-exclusive, non-transferable (subject to Section 10.2) and non-sublicensable right during the Term to access and use the Solutions solely for Customer's own business purposes; provided, however, that if expressly permitted in an Order Form, Customer may make the 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 Platform or use the Solutions except as permitted herein, (ii) reverse engineer or create derivative works based on the Platform or the Solutions, (iii) copy, frame, or mirror any part or content of the Platform or the Solutions, (iv) access the Platform in order to build a competitive product or service, or (v) upload, post, store, distribute, transmit, sell, promote or provide any Customer Content, information, data or other material that (a) is illegal to store or transmit; or (b) that violates or infringes the intellectual property rights or rights to the publicity or privacy of others.
2.3.Service Levels and Support. Salsify will provide the Solutions in accordance with (i) the Service Level Policy attached hereto as Appendix A and (ii) the support services (Standard, Premium Support or Premium Plus) purchased by Customer and set forth in the Order Form.
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 Platform, the Solutions and Documentation, including all modifications, derivatives, enhancements and improvements thereto. Customer shall own all right, title and interest in the Deliverables, excluding the Deliverable Tools. Salsify retains all right, title and interest in the Deliverable Tools and grants Customer a non-exclusive, non-transferable, royalty-free license to use any Deliverable Tools embedded in the Deliverables solely for use in connection with the Customer’s internal business use.
2.5.Third-Party Sites. Customer may use the Solutions to publish Customer Content to a third-party site or service (e.g. Amazon, Walmart, Google, etc.). Salsify has no control over such sites and services, and the parties acknowledge and agree that: (i) the manner in which third-party sites use, store and disclose Customer Content is governed solely by the policies of such third parties; and (ii) Salsify is not responsible for the accuracy, availability or reliability of any information, content or other data made available in connection with third-party sites or services. Customer agrees to comply with all terms and conditions of use for any third-party sites or services that are applicable to Customer's use thereof.
2.6.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 for the 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. Sections 2.3, 7 and 8 of this Agreement do not apply to No-Cost Offerings.
2.7.Continuous Development. Salsify continually develops new features and functionality to the Solutions. In the event Salsify adds additional functionality to a particular Solution, Salsify may (i) provide Customer such features at no additional charge or (ii) condition the implementation of such modifications on Customer’s payment of additional fees; provided Customer may continue to use the version of the Solution that Salsify makes generally available (without such features) without paying additional fees.
2.8.Feedback. Customer may provide suggestions or other feedback (collectively “Feedback”) regarding the Solutions. Customer hereby grants Salsify a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into the Solutions. 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, Customer reserves all right, title and interest in the Customer Content.
3.2.License in Customer Content. Customer grants to Salsify a non-exclusive license during the Term, to use, store and transmit the Customer Content solely as necessary in connection with the provision of the Solutions.
3.3.Customer Obligations. Customer is responsible for securing all necessary prior consents for the collection, storage, and use of any Customer Content within the Platform.

4.Aggregated Data, Security and Backup Data

4.1.Aggregated Data and Usage. Customer acknowledges and agrees that Salsify may obtain Aggregated Data and Usage Data in connection with the use of the Solutions and Salsify may use the Aggregated Data and Usage Data to develop, analyze, improve, support and operate the Solutions.
4.2.Security and Privacy. Salsify maintains commercially reasonable technical and organizational measures designed to (i) secure its systems from unauthorized disclosure, access or alteration, and (ii) protect against unlawful destruction or accidental loss, as further described at https://www.salsify.com/security-and-reliability.
4.3.Backups. Customer Content is backed up once per day to storage that is separate from the primary Platform servers and backups are kept on a seven (7) day rotating schedule. In addition, Salsify APIs and standard scheduled export functionality can be used by Customer to regularly back up all Customer Content at intervals that Customer may require.

5.Fees; Fulfillment; Payment Terms

5.1.Fees; Payment Terms. Customer will pay Salsify the fees set forth in the Order Form.
5.2.Payment Terms. All fees 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 licenses set forth on the Order Form, then Customer will pay Salsify, quarterly in arrears, for the number of licenses in excess of the limits set forth on the Order Form at the excess rates set forth therein. All invoices issued by Salsify will be due and payable thirty (30) days after invoice date.
5.3.Net of Taxes. The fees on the Order Form do not include any sales, use, excise, withholding and any other similar taxes of any kind imposed by any federal, state or local governmental entity that Customer may be responsible for in connection with the Solutions (excluding taxes based solely on Salsify’s income). Sales tax, if applicable, will be added to Customer’s invoice at time of billing.

6.Confidential Information

6.1.Use and Disclosure. Each receiving party agrees as follows: (i) it will not disclose the Confidential Information of the disclosing party to anyone except its 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 and (ii) it will not use or reproduce the Confidential Information for any purpose other than performing its obligations as described herein. Each receiving party will be liable for the acts and omissions of its representatives with respect to the disclosing party’s Confidential Information. Confidential Information shall not include information that is (i) generally known to the public without breach of this Agreement, (ii) obtained by the receiving party from another source not known to have an obligation of confidentiality to the disclosing party, (iii) at the time of disclosure to the receiving party is already in the possession of the receiving party free of any confidentiality obligation (iv) independently developed by the receiving party without reference to any Confidential Information of the disclosing party, or (v) required by applicable law or regulation to be disclosed, provided that the receiving party shall give the disclosing party prompt notice of any such requested disclosure and shall comply with any valid protective order that is obtained by such other party.
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 and court costs, 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, (i) Salsify will comply with all applicable laws and regulations in the performance of this Agreement, including applicable Privacy Laws, (ii) the Solutions will be provided in conformity with industry standards and (iii) the Services will be performed in a professional and workmanlike manner. In addition, Salsify will use industry standard precautions to ensure that the Solutions are free of all viruses, worms, Trojan horses and other malicious code.
7.2.General Representations. Each party represents and warrants that: (i) that the execution and performance of the Agreement, or use of the Solutions, will not conflict with or violate any provision of any law having applicability to such party; and (ii) 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 SOLUTIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND AND SALSIFY, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT SALSIFY DOES NOT WARRANT THAT THE SOLUTIONS WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES, OR THAT THE SOLUTIONS WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR THAT THE 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, 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 HEREUNDER WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO SALSIFY UNDER THE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE (THE “CAP”); PROVIDED THAT, IN CONNECTION WITH (i) SALSIFY’S BREACH OF ITS DATA SECURITY OR PRIVACY OBLIGATIONS IN SECTION 4.2 (SECURITY), OR (ii) A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS, SALSIFY’S AGGREGATE LIABILITY HEREUNDER WILL NOT EXCEED FIVE (5) TIMES THE CAP.

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 (including reasonable attorneys’ fees) (collectively “Losses”) arising out of any third-party claim alleging that the Solutions 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 Solutions by Customer or any Authorized User in a manner outside the scope of any right granted pursuant to this Agreement, (ii) a combination, operation or use of the 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 (clauses (i), (ii) or (iii) 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 in such defense and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party provided that that the indemnifying party may not settle any claim in a manner that admits liability or otherwise prejudices the indemnified party, without consent.
8.5.Infringement. If the Solutions are, or in Salsify’s opinion, are likely to become the subject of any infringement-related claim, then Salsify will, at its expense: (i) procure for Customer the right to continue using the Solutions; (ii) replace or modify the infringing technology or material so that the Solutions become non-infringing and remains materially functionally equivalent; or (iii) terminate the Order Form and give Customer a refund for any pre-paid, but unused fees.

9.Term and Termination

9.1.Term. The Term will commence and continue for the period set forth in the Order Form.
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 receiving written notice.
9.3.Suspension of the Solutions. At any time during the Term, Salsify may, immediately upon notice to Customer, suspend access to the Solutions for the following reasons: (i) a threat to the technical security or integrity of the Solutions; (ii) any amount due under this Agreement is not received by Salsify within thirty (30) days after it was due, or (iii) Customer’s breach of Section 2.2 of these Terms of Service.
9.4.Termination upon Bankruptcy or Insolvency. Either party may terminate this Agreement immediately upon written notice to the other party, in the event such party: (i) becomes insolvent or unable to pay its debts when due; (ii) files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of its creditors.
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, Customer may access and download Customer Content via standard export mechanisms, including through the Platform interface, or upon request, Salsify will deliver such Customer Content to Customer. After such period, Salsify will delete such Customer Content.
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 10 will survive the termination or expiration of this Agreement for any reason whatsoever.

10.General

10.1.Export Compliance; Use Restrictions. Customer shall not, and shall cause Authorized Users not to, access or use the 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, are collectively referred to as the “Prohibited Jurisdictions”), and neither Customer nor any Authorized User shall provide access to the 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.
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 fax, or by certified or registered mail, to the other party at the address set forth on the Order Form 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.
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 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 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 the 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 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 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 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 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