Last Updated: April 11, 2025
This Online Master Services Agreement (the “Agreement”) applies to customers purchasing Licenses and/or Supplemental Services from Pigment SAS or Pigment Inc. (as applicable, "We", "Us", "Our" or “Pigment”) and any company that has accepted the Agreement via a Statement of Work or Order Form incorporating this Agreement by reference as further set out in the table below (“You”, “Your”).
Background:
This Agreement is the framework under which We will license the Solution and agree to the Services to be provided to You, as set out and agreed by the Parties from time to time in separate Order Forms and Statement of Works.
It is agreed as follows:
1.1 Certain capitalized terms used in this Agreement are defined in Section 20.1.
2.1. We will make the Solution available to You and Your Authorized Users by way of a non exclusive, non-transferable, limited license (without further right to grant sublicenses) as further set out in this Section 2 below, and one or more Order Forms. Your use of the Solution will be solely for Your internal business purposes.
2.2. In relation to the Authorized Users, You warrant and represent that:
(a) the maximum number of Authorized Users will not exceed the number of Licenses You have purchased from time to time;
(b) You will not allow any License to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User will no longer have any right to access or use the Solution;
(c) if You breach either 2.2(a) or 2.2(b) above, You will notify Us and pay for the additional use of the Solution an amount equal to the fees which We would have levied (in accordance with Our commercial terms then current) had We licensed any such excess use on the date when such use started; and
(d) each Authorized User will keep the credentials used to access the Solution confidential and secure and not share such credentials with anyone else.
2.3. You may, from time to time, purchase additional Licenses by entering into additional Order Forms with Us.
2.4. You will not use the Solution in violation of the Acceptable Use Policy and We reserve the right to disable Your access to the Solution if You breach the provisions of this Section.
2.5 You acknowledge that in the event You use any AI Features, terms set out in the AI Addendum will apply.
2.6. You acknowledge that in the event You opt-in to use Beta Features, additional or other terms may apply. Any obligations or warranties made by Us under this Agreement shall not apply to Beta Features.
2.7. You will use all reasonable endeavors to prevent any unauthorized access to, or use of, the Solution and, in the event of any such unauthorized access or use, promptly notify Us.
2.8. You may not remove Our Marks from the Solution.
2.9. You acknowledge and agree that We may collect aggregate and anonymous data relating to use of the Solution, including Authorized User behavior, traffic and other interactive information relating to the Solution. You agree that, both during and after the Term, We may retain and use all such data to improve and market the Solution and our other services.
2.10. Unless otherwise specified in an Order Form or SoW, and in accordance with the Support and Maintenance Policy, We will provide You with customer support services and will use commercially reasonable endeavours to make the Solution available 24 hours a day, seven days a week. We do not warrant that the use of the Solution will be uninterrupted or error free and We will not be held liable in the event of any unavailability, slowdown or inaccessibility of the Solution that may be caused by any Force Majeure Event, failure or inadequacy of any internet connection dependencies or any cloud hosting platform.
2.11. You agree that We may modify, adapt and/or update the Solution at any time including to improve the Solution, provided that any such modification, adaptation and/or update will not adversely and materially impact the functionality of the Solution.
2.12. Except as expressly provided in this Agreement, You assume sole responsibility for results obtained from Your use of the Solution, and for conclusions drawn from such use. We will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Solution.
2.13. You will be responsible for obtaining all necessary consents, rights or license(s) for the use of the Solution in combination with other software. You will indemnify and hold Us harmless against any loss or damage which We may suffer or incur in connection with Your use of the Solution in circumstances where such rights or licenses have not been obtained.
2.14. You acknowledge and agree that We advise You to only use the Recommended Sharing Tools. We do not warrant that Your use of any Recommended Sharing Tools will be uninterrupted or error free and We accept no liability or responsibility for the functionality or performance of any Recommended Sharing Tools. In the event that You fail to use Recommended Sharing Tools, You do so entirely at Your own risk and You assume sole responsibility for any loss or damage You may suffer as a result of the same.
3.1. We may enter into one or more Statements of Work with You for the provision of the Supplemental Services, as requested by You. Each Statement of Work is part of this Agreement once properly signed and will not form a separate contract to it.
3.2. Each type of Supplemental Service will be subject to its relevant associated terms which are set out in the relevant Statement of Work.
4.1. We will use commercially reasonable endeavors to meet any timelines agreed in any Order Form or Statement of Work.
4.2. We will perform the Services:
(a) in compliance with all laws applicable to Our provision of the Services;
(b) with reasonable care and skill; and
(c) only using employees or consultants who are appropriately skilled and experienced.
5.1. You will:
(a) cooperate with Us in all matters relating to the Services;
(b) give Us (in a timely manner) all of the information, items and materials needed by Us to effectively provide the Services to You and ensure that everything You provide to Us is accurate and complete. We will only use Your information, items and materials to provide the Services to You in accordance with this Agreement. You further agree that Our possession and use of Your supplied materials and information will not cause Us to infringe the rights, including any IPR, of any third party;
(c) comply with all laws applicable to Your use of the Services;
(d) adhere to (and ensure that Your Authorized Users adhere to) the terms of Section 2 (Your Right to Use the Solution) and the Order Form(s) when accessing and using the Solution; and
(e) obtain and maintain all necessary permissions, licenses and consents required to enable Us to deliver the Services.
5.2. If Our performance of this Agreement is prevented or delayed by You (or any act or omission of Your agents, subcontractors, consultants or employees), then, without prejudice to any other right or remedy We may have, We will be entitled to an extension of time to perform Our obligations equal to the delay caused by You.
6.1. Each Party represents and warrants that:
(a) it has the full power and authority to execute this Agreement and each Order Form and Statement of Work, and perform its obligations under the same;
(b) there are no currently in force or binding agreements with third parties the terms of which would prevent either of us from entering into this Agreement; and
(c) it will comply with the applicable provisions of the Security Addendum and the Data Processing Addendum .
7.1. We and/or our licensors retain ownership of all IPR in the Solution and the output of any Supplemental Services, including any Deliverables. We grant You a non-exclusive, non-transferable, limited license (without further right to grant sublicenses) to use the Deliverables in conjunction with Your Authorized use of the Solution.
7.2. All Marks owned or used by Us in the course of Our business are owned by Us or Our licensors. We reserve all IPR in relation to the use of such Marks. You may not use or permit the use of such Marks or any similar marks without Our prior written permission.
7.3. Subject to Section 7.4, We will indemnify You against any loss, damage, liability or reasonable expense incurred by reason of any third party claim that the Authorized use of the Solution in accordance with this Agreement infringes the IPR of any unaffiliated third party, except to the extent that:
(a) You prejudice the defense of any such claim; or
(b) such infringement is caused by or contributed to by:
(i) Our compliance with Your requirements or instructions;
(ii) Your use of the Solution in combination with any third party software or service; or
(iii) Your use of the Solution, or Your other acts or omissions, other than in accordance with this Agreement.
7.4. If You become aware of any claim or likely claim of infringement as contemplated by Section 7.3., You shall:
(a) promptly notify Us in writing of the details of the claim;
(b) give Us all reasonable assistance with such claim at Our reasonable cost; and
(c) give Us sole conduct and control of the claim and its settlement or resolution.
7.5. If any portion of the Services are alleged to infringe any third party IPR, We may choose to: (a) procure the rights for You to use the infringing item; (b) replace the infringing portion with a non-infringing equivalent; or (c) modify the infringing portion to make it non-infringing while still providing substantially the same level of functionality in the Services. If, in Our reasonable opinion, subsections (a)-(c) of this Section are not feasible, We may terminate this Agreement upon notice to You and We will refund any prepaid, unused Fees You have paid for the Services applicable to the remaining portion of the applicable Term following the effective date of termination.
7.6. You grant Us a non-exclusive, worldwide, sub-licensable, royalty-free, fully paid up right to use Your Data to provide the Services under this Agreement. You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
7.7. You indemnify Us against any loss, damage, liability or expense incurred by reason of any claim that the use or possession of Your Data in accordance with this Agreement infringes the IPR of any third party.
7.8. You grant Us a perpetual, non-revocable, free, exclusive license in all IPR pertaining to the Feedback and Improvements. We may freely use or exploit such Feedback and Improvements in connection with any products or services, without any obligation, liability or compensation to You or anyone else. For the avoidance of doubt, this clause does not assign any IPR ownership to Us in Your Data.
7.9. This Agreement is non-exclusive and We may provide similar Services to other clients. Nothing will prevent Us from using any know-how (that does not include any of Your Confidential Information or Your Data) acquired in the course of delivering the Services.
8.1. Each Party will comply with the provisions of the Data Protection Addendum.
9.1. In consideration of the provision of the Solution and Supplemental Services by Us, You will pay the Fees in accordance with the provisions of this Section 9 and the relevant Order Form and SoW.
9.2. All Fees are exclusive of all taxes, which will be payable by You at the rate and in the manner prescribed from time to time by applicable laws (excluding taxes based on Our net income).
9.3. We will invoice You for the Fees at the intervals specified in the relevant Order Form or SoW. If no intervals are specified, We will invoice You on or after the Order Form Effective Date or SoW Effective Date as applicable, for the Services to be performed during the next twelve months from such date. All invoices and payments will be in the currency specified in an Order Form or a SoW.
9.4. You will pay each invoice submitted by Us within thirty (30) days of the date of the invoice to Our nominated bank account unless otherwise stated in the applicable Order Form or SoW.
9.5. You will pay all Fees under this Agreement in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If You fail to pay Us any Fees due under this Agreement on the due date:
(a) We will be entitled to charge You interest on the overdue sum from the due date until payment of the overdue sum accruing each day at the rate of 4% per annum; and
(b) We may suspend provision of the Solution or all or part of the Supplemental Services upon fifteen (15) days’ written notice, until payment has been made in full.
10.1. NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT YOUR OR OUR LIABILITY:
(a) FOR DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;
(b) FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR
(c) LIABILITY THAT CANNOT, AS A MATTER OF LAW, BE LIMITED OR EXCLUDED.
10.2. SUBJECT TO SECTION 10.1:
(a) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS, BUSINESS, DATA OR GOODWILL, OR FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT;
(b) EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUIVALENT TO 100% OF THE TOTAL FEES PAID OR PAYABLE FOR THE PERIOD OF 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY UNDER THE ORDER FORM OR SOW UNDER WHICH THE EVENT GIVING RISE TO THE LIABILITY OCCURRED. FOR CLARITY, THE LIMIT OF LIABILITY IN THE PRECEDING SENTENCE IS CUMULATIVE AND NOT PER-INCIDENT; AND
(c) THE LIABILITIES LIMITED BY SECTIONS 10.2(a) AND 10.2(b) APPLY TO THE BENEFIT OF THE PARTIES’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND PIGMENT’S THIRD PARTY CONTRACTORS, AS WELL AS: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT (INCLUDING UNDER ANY INDEMNIFICATION OBLIGATIONS), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE; (ii) EVEN IF EITHER PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iii) EVEN IF THE APPLICABLE REMEDIES FAIL THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE BASED OUR PRICING ON AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES AND DAMAGES IN SECTION 10.2(A), SECTION 10.2(B) AND SECTION 11 AND THAT SUCH TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. IF APPLICABLE LAW LIMITS THE APPLICATION OF ANY LIMITATION OF LIABILITY PROVISION HEREIN, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR ARISING FROM COURSE OF DEALING AND COURSE OF PERFORMANCE) ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.1. The Receiving Party will:
(a) use the Confidential Information solely for the purposes of performing obligations or exercising rights under this Agreement;
(b) keep Confidential Information secure and take no lesser security measures and degree of care to protect Confidential Information than it applies to its own confidential information; and
(c) not disclose Confidential Information to any third party except with the prior written consent of the other or as permitted by this Section 12.
12.2. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its and its Affiliates’ directors and employees and any subcontractors or other third parties which are directly involved in, and need to know such Confidential Information for the purpose of, enabling the recipient to perform its obligations or exercise its rights under this Agreement.
12.3. The obligations of confidentiality set out in this Section 12 will not apply to the extent:
(a) the Disclosing Party has given specific prior written consent to the disclosure;
(b) to Confidential Information which has entered the public domain, other than as a result of a breach of this Section 12 by the Receiving Party;
(c) the Receiving Party can show that the information was obtained, free from any restrictions as to its use or disclosure, from a third party who was free to divulge it;
(d) the information was developed independently of any information received under this Agreement by the Receiving Party and by persons who had no access to, or knowledge of, that information;
(e) the Receiving Party was required to disclose the Confidential Information by a court or regulatory authority of competent jurisdiction, and used reasonable endeavors to limit the scope of the required disclosure and to maintain the confidentiality of the disclosed Confidential Information to the extent possible (provided that this exception will not otherwise render the information to no longer be considered Confidential Information).
12.4. To the extent that We or You do not require the Confidential Information of the other to perform obligations or exercise rights under the Agreement, We or You (as applicable) will (and will procure that its directors, employees, sub-contractors and other relevant third parties shall) either return or destroy the Confidential Information together with any copies, notes, analyses or records of such Confidential Information and any documents and other material (including all electronically generated or stored data) containing, reflecting or deriving from the Confidential Information which are in its possession or under its control.
12.5. Damages may not be an adequate remedy for a breach of this Section 12. We and You will be entitled to seek any legal or equitable relief, including injunctive relief or specific performance, upon the breach (or reasonably anticipated breach) of any part of this Section 12.
13.1. Other than a failure to pay fees when due, neither You nor We will be liable for a failure to perform or delay in performing obligations under this Agreement to the extent that such failure or delay is caused by a Force Majeure Event.
13.2. If You or We are prevented from performing any obligations due to a Force Majeure Event, You or We will as soon as reasonably practicable after the start of the Force Majeure Event notify the other of the event and of its likely or potential duration and will use reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligations.
13.3. If a Force Majeure Event continues for a period of three (3) months or more, the other will have the right to terminate this Agreement (in whole or in part) or the relevant Order Form or SoW by notice in writing at any time after the expiry of such period while the Force Majeure Event continues.
14.1. We may, upon written notice to You, suspend the provision of all or part of the Services if:
(a) You violate Section 2.2 of this Agreement;
(b) You commit a material breach of this Agreement which is:
(i) incapable of remedy; or
(ii) capable of remedy and You fail to remedy such material breach within ten (10) days after receiving written notice requiring it to remedy that material breach;
(c) We reasonably believe that Your or any Authorized User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the network or servers used to provide the Services;
(d) there is suspected unauthorized third-party access to the Services;
(e) We reasonably believe that suspension is required to comply with any applicable law or protect the integrity of the Solution, provided that We will lift such suspension when the circumstances giving rise to the suspension have been resolved, in Our sole discretion. At Your request, We will, unless prohibited by applicable law, notify You of the basis for the suspension as soon as is reasonably possible.
15.1. This Agreement will come into force on the date of the last signature and will continue in force during the Term.
15.2. You or We may, by written notice to the other, terminate this Agreement as a whole or any Order Form or Statement of Work with immediate effect in the following circumstances:
(a) the other commits a material breach of this Agreement and fails to remedy such material breach within thirty (30) days after receiving written notice requiring it to remedy that material breach; or
(b) the other becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, administration, administrative receivership, liquidation or assignment for the benefit of creditors or any similar process under the laws of any jurisdiction, where such proceedings are not dismissed within thirty (30) days.
15.3. In the event that either You or We are in material breach of an Order Form or Statement of Work and fail to remedy such breach within the timescales provided for under Section 15.2(a), the other may terminate just the individual Order Form or Statement of Work concerned.
15.4. We may terminate this Agreement as a whole or any Order Form or Statement of Work with immediate effect by giving written notice to You if You fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than thirty (30) days after being notified in writing to make such payment.
16.1. Termination or expiry of any one Order Form or Statement of Work will not affect the continuing validity or operation of any other Order Form or Statement of Work entered into pursuant to this Agreement (nor the continuing application of this Agreement to such other Order Forms or Statement of Works).
16.2. Termination of this Agreement will cease any obligations of the Parties under the Agreement other than those obligations that survive the expiration or termination of this Agreement.
16.3. Termination or expiry of this Agreement as a whole will not affect:
(a) Your and Our accrued rights and obligations at the date of termination;
(b) the right to claim damages for losses whenever they occur provided they arise out of an event occurring on or before termination of this Agreement; and
(c) the continued existence and the validity of the rights and obligations under any Sections the survival of which is necessary for the interpretation or enforcement of this Agreement.
16.4. On termination or expiry of an Order Form, SoW or this Agreement as a whole:
(a) We will cease provision of the relevant Services;
(b) all licenses granted under the relevant Order Form, Statement or Work or this Agreement as a whole (as applicable) will terminate and You will cease Your use of the Solution, Services and/or Deliverables licensed under this Agreement or relevant Order Form or Statement of Work (as applicable); and
(c) in respect of the relevant Order Form, Statement of Work or this Agreement as a whole (as applicable), You will immediately pay Us all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, We may submit an invoice, which will be payable immediately on receipt.
16.5. On termination of this Agreement as a whole, You and We will permanently destroy any Confidential Information of the other together with all copies except to the extent You or We are required by any law, regulation, or government or regulatory body to retain any documents or materials. You shall be solely responsible for exporting Your Data from the Solution in a reliable format prior to the termination or expiry of this Agreement and You shall not be subject to any additional charges related to the same.
17.1 You will not permit any third party or Authorized Users to access or use the Solution in violation of any applicable laws. Without limiting the generality of the foregoing, You will not permit any third party or Authorized Users to access or use the Solution in, or export the Solution to the Sanctions Compliance Territories. You will not permit any individual or entity to access the Solution if they are subject to sanctions imposed by any government authority or institution in the Sanctions Compliance Territories. Each Party represents and warrants that it and its Affiliates are not subject to any sanctions imposed by any government authority or institution within the Sanctions Compliance Territories.
17.2 Each Party hereby undertakes that, as of the latest date of signature below, its directors, officers or employees and those of its Affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind. Each Party agrees to comply with all applicable anti-bribery and anti-corruption laws and regulations. Neither Party shall offer, promise, give, solicit, or accept any bribe or engage in any other form of corruption, including extortion, fraud, or collusion.
18.1. Unless expressly provided in this Agreement, no term of this Agreement is enforceable by any person who is not a party to it.
18.2. This Agreement constitutes the entire agreement and understanding of You and Us with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous Agreements, representations, understandings or arrangements between You and Us in relation to such subject matter.
18.3. We make the Solution available to You in accordance with Our policies and procedures, in particular the Data Processing Addendum, Security Addendum, Acceptable Use Policy and AI Addendum. We may change such policies and procedures from time to time, and, where practicable, we will provide You with reasonable advance notice of any such changes. You will use reasonable efforts to promptly comply with any such changed policies and procedures. Your continued use of or access to the Solution after any such update as noted above constitutes Your acceptance of such updated and amended policies and procedures, as applicable.
18.4. Neither party may assign this Agreement or its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent to any of its Affiliates or to a successor in connection with a merger, reorganization of its business, acquisition, or other transfer of all or substantially all of its assets or voting securities. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Non-permitted assignments are void and will create no obligations on the parties.
18.5. We may use subcontractors to perform Our obligations and permit them to exercise Our rights under this Agreement, but We at all times remain responsible for compliance of any such subcontractor with this Agreement.
18.6. Except as expressly set out in this Agreement, no purported variation or modification of this Agreement will be valid unless it is in writing (which excludes email) and signed by or on behalf of each of You and Us.
18.7. If We request a change to this Agreement, any Order Form, any Statement of Work, any Services or any Deliverables in order to comply with any applicable statutory or legal requirements, and such change does not materially reduce the quality and standard of services provided, You will not unreasonably withhold or delay your agreement to such change.
18.8. No failure or delay to enforce or exercise any right or remedy under this Agreement or by law will be deemed to be a waiver of that or any other right or remedy, nor will it operate so as to bar the enforcement or exercise of that or any other right or remedy at any time subsequently. Any waiver of any breach of this Agreement will not be deemed to be a waiver of any subsequent breach.
18.9. Except as otherwise provided elsewhere in this Agreement, any notice given by a party to the other under this Agreement will be in writing, delivered by prepaid first class or special delivery post to the address given in the Order Form or SoW. You must send a copy of any notice by email to legal@pigment.com on the date the notice is sent. Either party may, by a notice given in accordance with this Section, change address for the purposes of this Section. Notices will be deemed to have been given two business days after the date of posting.
18.10. Nothing in this Agreement is intended to or will operate to create a partnership or joint venture between You and Us, or to authorize either to act as agent for the other and neither You nor We will have authority to act in the name of or on behalf of the other, or to enter into any commitment or make any representation or warranty or otherwise bind the other in any way.
18.11. Sections 1, 5, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19 will survive the termination or expiration of this Agreement.
19.1. This Agreement and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation will be governed by and construed in accordance with the laws of the country specified in the table below depending on Your registered office location without regard to conflicts of laws rules.
19.2. Competent courts located within the jurisdiction specified in the table below shall have that exclusive jurisdiction for actions arising under or in connection with this Agreement depending on Your registered office location.
20.1. In this Agreement, unless the context otherwise requires, the following definitions will apply:
"Acceptable Use Policy” means the rules for use of the Solution set out in the Schedule, as may be modified form time to time.
"Affiliate” means an entity that directly or indirectly owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the entity's voting equity securities or equivalent voting interests.
"Agreement" means this Online Master Services Agreement (including all Schedules), together with all Order Forms and SoWs entered into between You and Us.
“AI Features” means any artificial intelligence features included in or related to the Solution.
"Authorized Users" means Your or Your Affiliate’s employees, agents and independent contractors or other individuals who You authorize to use the Solution.
“Beta Features” means any beta product, pre-release products, testing or other experimental features related to the Solution.
"Confidential Information" means any confidential information which is disclosed, or made available, by a party to the other party which is designated in writing as confidential or would appear to a reasonable person to be confidential and which relates to the disclosing party’s business including business methods, corporate plans or intentions, management systems, finances, new business opportunities, operations, processes, trade secrets, know how, personnel, suppliers and customers, potential suppliers and customers, and any information in respect of which the disclosing party owe an obligation of confidentiality to any third party and including any designs, plans, software or other materials created by Us in connection with this Agreement, and all information derived from any of the above together with the existence or provisions of this Agreement and any negotiations relating to it.
"Data Protection Addendum" means the Data Protection Addendum set out in the Schedule.
"Deliverables" means all documents, manuals, products, materials and other deliverables connected with the Supplemental Services and developed or produced by Us in connection with this Agreement.
“Disclosing Party” means a Party disclosing Confidential Information to the Receiving Party.
“Feedback and Improvements” means (i) any suggestions, recommended improvements, or any other feedback You provide us with related to the Services, underlying technology, or Our marketing materials; or (ii) the way You use the Solution from time to time, excluding Your Data.
“Fees” means the License Fees and Supplemental Service Fees, collectively.
"Force Majeure Event" means any event outside the reasonable control of You or Us affecting the ability to perform obligations under this Agreement including, but not limited to, natural disaster, earthquake, epidemic, fire, flood, lightning, war, revolution, acts of terrorism, riot or civil commotion, imposition of sanctions, embargo, or breaking off of diplomatic relations, cyber warfare, embargoes, any labor or trade dispute, strikes, industrial action or lockouts, and any non performance by suppliers or subcontractors.
"IPR" means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"License" means any license purchased by You pursuant to a relevant Order Form which entitles an Authorized User to access and use the Solution in accordance with this Agreement.
"License Fees" means the license fees payable by You to Us for Licenses purchased pursuant to an Order Form, as set out in the relevant Order Form.
“Marks” means logos, trade names or trade marks.
"Order Form" means each ordering document under which You purchase License(s) to access and use the Solution and any additional support which is signed by You and Us and incorporates this Agreement by reference.
"Order Form Effective Date” means the commencement date of an Order Form, or if no date is specified, the date of execution of such Order Form by the last person to sign it.
“Sanctions Compliance Territories” means a country or group of countries subject to sanctions or an embargo imposed by a government authority or institution from the United States, Canada, United Kingdom, any European Economic Area member state, Switzerland or Australia.
"Schedule" means a schedule to this Agreement.
"Security Addendum" means Our security addendum set out in the Schedule, which may be updated from time to time.
"Services" means the provision by Us to You of the Solution and any support that We provide to assist You in using and implementing the Solution and/or the Supplemental Services, including any improvements we may make to the Solution and/or the Supplemental Services.
"Solution" means Our quantitative data planning and analysis solution for businesses, including without limitation, the AI Features, which is accessible online under the software-as-a-service.
"SoW Term" means the duration of a Statement of Work, as specified in such Statement of Work.
"Statement of Work" or "SoW" means an agreement signed by You and Us which specifies the Supplemental Services and incorporates this Agreement by reference.
"Supplemental Services" means the supplemental services related to the Solution, including integration, configuration and training to be provided to You pursuant to a Statement of Work.
“Support and Maintenance Policy” means the policy specifying the customer support services and maintenance We provide to You, currently available at https://www.pigment.com/support-maintenance-policy, as amended by Us from time to time.
"Term" means the term of this Agreement, this is, the time period starting on the date of last signature below and continuing as long as there is a valid Order Form or Statement of Work in place.
“Use Case” means each use case for which You are Authorized to use the Solution, as identified in the applicable Order Form.
"Your Data" means any information that is provided by or on behalf of You to Us or collected by Us as part of Your use of the Services, including any information derived from such information.
20.2. In this Agreement, unless the context otherwise requires, the following rules of interpretation will apply:
(1) words in the singular include the plural and vice versa;
(2) a reference to:
(a) any party includes its successors in title and permitted assigns;
(b) a party, Section and Schedule is to a party to, a Section of and a Schedule to this Agreement; and
(3) the words "includes" or "including" will be construed without limitation;
(4) if there is any conflict, ambiguity or inconsistency between the provisions of an Order Form, Statement of Work and the provisions in the remainder of this Agreement, then the provisions of the Order Form and Statement of Work will prevail (in that order). By signing below, the parties agree to be bound by the terms of this Agreement.
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