> ## Documentation Index
> Fetch the complete documentation index at: https://docs.pinkfish.ai/llms.txt
> Use this file to discover all available pages before exploring further.

# Pinkfish Master Services Agreement

> Terms and conditions governing Pinkfish subscriptions ordered through the Genesys AppFoundry marketplace.

*Version dated 11 August 2026. These terms apply to Pinkfish subscriptions ordered through the Genesys AppFoundry marketplace.*

This Master Services Agreement (“Agreement”) governs Customer’s access to and use of the Services (as defined below) made available by Pinkfish AI, Corp., a corporation with its principal place of business at 4 Park Place, Tiburon, CA, 94920 (“Pinkfish”), and is entered into between Pinkfish and the customer identified in the applicable Order Form (“Customer”). This Agreement becomes effective as of the date Customer first submits an Order Form for the Services through Genesys’ AppFoundry online marketplace (“AppFoundry”) or otherwise accepts this Agreement, whichever is earlier (the “Effective Date”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ORDERING OR USING THE SERVICES OFFERED BY PINKFISH. BY SUBMITTING AN ORDER FOR THE SERVICES THROUGH APPFOUNDRY (EACH, AN “ORDER FORM”), OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. ANY PURCHASE ORDER OR SIMILAR DOCUMENT ISSUED BY CUSTOMER THAT PURPORTS TO IMPOSE DIFFERENT OR ADDITIONAL TERMS SHALL BE OF NO FORCE OR EFFECT, EVEN IF ACCEPTED OR ACKNOWLEDGED BY PINKFISH.

**TERMS AND CONDITIONS**

## 1. SAAS Services and Support

**1.1 Order Form; License.** Each order for Services that Customer submits and Pinkfish accepts through AppFoundry (each, an “Order Form”) shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Pinkfish grants Customer a nonexclusive, limited, non-sublicensable, nontransferable right and license to access and use the Pinkfish product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with the technical documentation made available by Pinkfish at [https://docs.pinkfish.ai/introduction](https://docs.pinkfish.ai/introduction), as may be updated from time to time (the “Documentation”). Any additional services offered by Pinkfish, but not mentioned in an Order Form, may be subscribed to by the Customer at the applicable charges by submitting another Order Form through AppFoundry.

**1.2 Support; Service Levels.** Subject to Customer’s payment of all applicable fees (if applicable), Pinkfish will provide support, maintenance service, and uptime for each Service in accordance with Pinkfish’s standard Service Level Agreement (the current version of which is attached hereto as Exhibit A) (“**Service Level Agreement**”). Pinkfish may update the Service Level Agreement, with notice, from time to time provided there is no material degradation in support or availability.

**1.3 Registration.** As part of the registration process, Customer will identify an administrative user name and password for Customer’s Pinkfish account. Customer shall be solely responsible for its account credentials, and for all use and activity carried out under its account.

**1.4 Update; Upgrades.** From time to time, Pinkfish may provide upgrades, modifications, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“**Updates**”), and such Updates will become part of the Services and subject to this Agreement; provided that Pinkfish shall have no obligation under this Agreement or otherwise to provide any such Updates; and provided that Pinkfish shall not materially reduce the functionality of the Service in the aggregate.

## 2. Restrictions and Responsibilities

**2.1 Restrictions.** Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not:

* (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements of the Service;
* (b) translate, adapt, or modify the Service, or any portion of the foregoing;
* (c) write or develop any program based upon the Service, or any portion thereof, or otherwise use the Service in any manner for the purpose of developing products or services that compete with the Service;
* (d) use the Service for the benefit of, or allow access to the Service by, unauthorized persons;
* (e) transmit unlawful, infringing or harmful data or code to or from the Service;
* (f) alter or remove any trademarks or other proprietary notices contained in or on the Service;
* (g) circumvent or otherwise interfere with any authentication or security measures of the Service, otherwise interfere with or disrupt the integrity or performance thereof;
* (h) use the Service in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; or
* (i) otherwise use the Service or any other technology, documentation software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining to the Service (collectively, the “**Pinkfish Technology**”) except as expressly permitted hereunder.

**2.2 Export Control.** Customer may not remove or export from the United States or allow the export or re-export of the Services, underlying software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The Service and Documentation are “commercial items” as defined in FAR section 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as those terms are used in FAR section 12.212 and DFAR section 227.7202. Consistent with FAR section 12.212 and DFAR section 227.7202, any use, modification, reproduction, release, performance, display, or disclosure of the Service or Documentation by or for the U.S. Government will be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.

**2.3 Customer Responsibilities.** Customer represents, covenants, and warrants that Customer will:

* (a) use the Services only in compliance with the Documentation, Pinkfish’s standard published policies then in effect and all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws);
* (b) not use the Service in a manner that violates any third-party intellectual property, contractual or other proprietary rights;
* (c) cooperate with Pinkfish and provide Pinkfish with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable Pinkfish to perform the Service, and as otherwise requested by Pinkfish, from time to time, and in a timely manner;
* (d) be responsible for obtaining any consents, licenses, authorities, and permissions from other parties necessary for the Service to be provided in accordance with this Agreement, at its cost, and for providing Pinkfish with the necessary consents, licenses, authorities, and permissions;
* (e) grant the right to access the Service only to agreed number of authorized end-users of its organization as provided in the Order Form (“**End Users**”) to use the Service in accordance with the terms of this Agreement; and
* (f) not implement the Services or combine it with the services of another provider without obtaining an express written decryption authorization from Pinkfish.
  Although Pinkfish has no obligation to monitor Customer’s use of the Services, Pinkfish may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

**2.4 End Users.** Customer acknowledges and agrees that:

* (a) It is liable for all End Users’ use of the Service and compliance with this Agreement;
* (b) It shall determine who is an End User, controls each End User’s level of access to the Service at all times, and revoke or change an End User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an End User or must have that different level of access, as the case may be; and
* (c) any End User’s license to access the Service will terminate upon the termination of the Customer’s license to access the Service.

**2.5 Operating Environment.** Customer shall be responsible for obtaining, maintaining and supporting any equipment, ancillary services and other operating environment needed by the End Users to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “**Operating Environment**”). Customer shall also be responsible for maintaining the security of the Operating Environment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Operating Environment with or without Customer’s knowledge or consent in relation to the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Pinkfish is not responsible for any End User’s inability to access or use the Service arising from any issue with that End User’s Operating Environment.

## 3. Customer Data

**3.1 Definition.** For purposes of this Agreement, “**Customer Data**” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.

**3.2 Rights to Customer Data.** Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Pinkfish, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Any changes to the Customer Data must be notified immediately to Pinkfish.

**3.3 Limited License.** Customer hereby grants Pinkfish a limited license to copy, transmit, store and back-up or otherwise access the Customer Data during the applicable Order Form Term solely to:

* (a) supply the Service to the Customer (including to enable Customer and its End Users to access and use the Service);
* (b) diagnose problems with the Service;
* (c) enhance and otherwise modify the Service;
* (d) develop other services, provided Pinkfish de-identifies the Customer Data; and
* (e) as reasonably required to perform Pinkfish’s obligations under this Agreement.

**3.4 Security.** Any Customer Data shared in terms of this Agreement must be shared in the most suitable and secured means by the Customer. Pinkfish shall use all commercially reasonable efforts compliant with industry standards to maintain the security and integrity of the Service and the Customer Data received from Customer in accordance with the terms of Section 4 and Section 8 below. Pinkfish is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service caused by any act or omission of Customer or its End Users. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use.

**3.5 Warranty.** Customer hereby represents and warrants that:

* (a) It has obtained all necessary rights, releases and permissions to provide all Customer Data to Pinkfish and to grant the rights granted in this Agreement; and
* (b) the Customer Data (and its transfer to and use by Pinkfish), as authorized by Customer under this Agreement, does not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity.

**3.6 Injunctive Relief.** Customer acknowledges that Pinkfish will suffer real and substantial damage as a result of a breach of this Section 3 and may seek injunctive relief for any actual or perceived breach and damages alone are not an adequate remedy.

## 4. Proprietary Information

**4.1 Proprietary Information.** Each party (the “**Receiving Party**”) understands that the other party (the “**Disclosing Party**”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “**Proprietary Information**” of the Disclosing Party). Proprietary Information of Pinkfish includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes Customer Data.

**4.2 Confidentiality.** The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information indefinitely, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document

* (a) is or becomes generally available to the public;
* (b) was in its possession or known prior to receipt from the Disclosing Party;
* (c) was rightfully disclosed to it without restriction by a third party;
* (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or
* (e) is required to be disclosed by law.

**4.3** In addition to the confidentiality provisions stated hereinabove, all provisions of the Non-Disclosure Agreement executed between the parties shall continue to apply and bind the parties as per the terms contained therein.

## 5. Intellectual Property

**5.1 Pinkfish IP.** As between the parties, Pinkfish and/or its affiliates or group companies retains all right, title, and interest in and to the Services, Pinkfish Technology, Updates and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Pinkfish for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified in an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.

**5.2 Feedback.** Customer may (but is not obligated to) provide suggestions, comments or other feedback to Pinkfish with respect to the Service (“**Feedback**”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Pinkfish notwithstanding anything else. Pinkfish acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Pinkfish a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for the purpose of improving the Services. Nothing in this Agreement will impair Pinkfish’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

**5.3 Marketing Rights.** The Customer agrees that during the term of this Agreement and afterwards Pinkfish shall have the right to use and display the Customer’s name, logo, trademarks, service marks and/or include a high-level description of the collaboration between the parties in Pinkfish’s website, social media, portfolios and other marketing and promotional materials, subject to the Customer’s prior written approval. Upon the Customer’s written request, Pinkfish shall promptly, and to the extent commercially feasible, remove any such marks from Pinkfish’s marketing materials.

## 6. Payment of Fees

**6.1 Fees.** Subscription by the Customer to the Services by executing a mutually agreeable Order Form, the fees set out in the Order Form shall become payable by the Customer (“**Fees**”). Unless otherwise specified in the Order Form, the Customer will pay Pinkfish the then applicable fees described in the Order Form on an annual basis in advance for the Services to be provided during the Order Form Term. Any cost, fee, or other charges applicable on the payment of the Fees must be paid by the Customer. If Customer’s use of the Services exceeds the licensed users or the usage limits, if applicable and set forth in the Order Form, or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. To the extent permitted by law, any Fees paid hereunder are non-refundable and Pinkfish does not provide refunds or credits should the Customer cancel the Service during its current Order Form Term.

**6.2 Taxes.** All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable tax, which will be added to those amounts and payable by the Customer. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Pinkfish’s net income.

**6.3 Fee Disputes.** If Customer disputes in good faith the amount of any invoice, Customer will timely pay the undisputed amount and will notify Pinkfish in writing of the disputed amount no later than the date payment would otherwise be due, together with the reasons for the dispute. The parties will attempt to resolve the dispute in good faith within thirty (30) days after Pinkfish’s receipt of Customer’s notice (the “Resolution Period”), during which Customer’s withholding of the disputed amount will not be considered a breach of this Agreement and no interest will accrue on the disputed amount. Upon resolution of the dispute, Customer will pay the resolved amount within ten (10) days of the parties’ written agreement. If the dispute is not resolved within the Resolution Period, each party may pursue all available remedies.

**6.4 Revision.** Unless agreed otherwise in writing, Pinkfish reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the ongoing Order Form Term, upon thirty (30) days prior notice to Customer (which may be sent by email).

**6.5 Payment Terms.** Pinkfish may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Pinkfish thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

## 7. Third Party Services

**7.1** Customer acknowledges and agrees that the Service may operate with, or may use, application programming interfaces (APIs) and/or other services operated or provided by third parties (“**Third Party Services**”), including without limitation through integrations or connectors to such Third Party Services that are provided by Pinkfish. Pinkfish is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Other than Third Party Services licensed by and provided to Customer by Pinkfish, Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Pinkfish does not make any representations or warranties with respect to Third Party Services or any third party providers.

## 8. Privacy and Data

**8.1 Personal Data.** Customer is responsible for the collection, use, storage and otherwise dealing with any personal data or personal information (as commonly understood under the international data privacy laws) (“**Personal Data**”) related to the Customer’s business and all matters relating to the Customer Data in its capacity of a data controller (as the term is commonly understood under international data privacy laws).

**8.2 Compliance.** Customer (in its capacity of a data controller) and Pinkfish (in its capacity of a data processor acting on behalf of the data controller) must comply and must ensure that all of its personnel and End Users comply, with the requirements of the applicable privacy laws in respect of all Personal Data collected, used, stored, or otherwise dealt with under or in connection with this Agreement.

**8.3** Without limiting this Section 8, but to the extent required by applicable privacy law, Customer must:

* (a) notify End Users or other natural persons from whom Personal Data is collected about any matter prescribed by the applicable privacy laws in relation to the collection, use, and storage of their Personal Data;
* (b) ensure that any Personal Data transferred to Pinkfish is complete, accurate, and up to date; and
* (c) notify Pinkfish immediately upon becoming aware of any breach of the applicable privacy laws that may be related to the use of the Personal Data under this Agreement.

**8.4** Without limiting this Section 8, to the extent such disclosure is governed by applicable privacy law, Customer may only disclose Personal Data in its control to Pinkfish if:

* (a) Customer is authorized by the applicable privacy laws to collect the Personal Data and to use or disclose it in the manner required by this Agreement;
* (b) Customer has informed the individual to whom the Personal Data relates, that it might be necessary for Customer to disclose their Personal Data to third parties and Customer has obtained their consent to do so; and
* (c) where any Personal Data is sensitive information (as generally understood under the applicable privacy laws), Customer has obtained the specific consent to that disclosure from the individual to whom the sensitive information relates.

**8.5** Pinkfish agrees that it shall process all Personal Data received from the Customer only in accordance with applicable data privacy laws including General Data Protection Regulation (GDPR), the California Consumer Privacy Act and California Privacy Rights Act.

## 9. Term and Termination; Suspension

**9.1 Agreement Term; Order Form Term.** This Agreement shall commence on the Effective Date and shall continue to be valid unless terminated in accordance herewith. For each Order Form submitted through AppFoundry, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (ii) following the Order Form Initial Term, the Services may be renewed by the parties for an additional term as may be mutually agreed by the parties. Expiry or termination of one Order Form will not impact the validity of the other Order Forms.

**9.2 Termination for Breach.** In addition to any other remedies it may have, in case of a material breach of this Agreement, the non-breaching party may terminate this Agreement upon furnishing a written notice on the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice where the breach can be remedied. For breach of provisions such as Section 2.1 (Restrictions), Section 4 (Proprietary Information), non-payment of Fees under Section 6 for more than sixty (60) days, Section 8 (Privacy and Data), or any other form of misuse of the Services by Customer or its representatives, Pinkfish shall have the right to terminate the Agreement with immediate notice to the Customer. For breach of provisions of Section 8 (Privacy and Data) by Pinkfish or its representatives that is not capable of being remedied or otherwise capable of being addressed in terms of the Service Level Agreement set out under **Exhibit A**, Customer shall have the right to terminate the Agreement with immediate notice to Pinkfish.

**9.3 Suspension of Services.** Without limiting the foregoing, Pinkfish may suspend or limit Customer’s access to or use of the Service if:

* (a) Customer’s account is more than thirty (30) days past due;
* (b) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Pinkfish’s ability to provide access to the Service to other customers; provided that in the case of subsection (b): (i) Pinkfish shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (ii) prior to any such suspension or limitation, Pinkfish shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (iii) Pinkfish shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remedies the issue within thirty (30) days of receipt of such notice; or
* (c) Such suspension is necessary for maintenance of the Services.

## 10. Effects of Termination

**10.1 Effects of Termination.** On expiration or termination of this Agreement for any reason:

* (a) Customer must immediately stop using the Service;
* (b) Pinkfish may take any action necessary to disable or terminate Customer’s access to the Service;
* (c) each party must promptly return (where possible) or delete or destroy (where not possible to return), the other party’s Proprietary Information and intellectual property, and/or documents containing or relating to the other party’s Proprietary Information unless required by law or regulatory requirements to retain such information; and
* (d) Pinkfish may remove or delete all Customer Data within ninety (90) days of termination or expiry.

**10.2 No Refund.** To the extent permitted by law, and except where expressly stated in this Agreement, Customer will not be entitled to a refund of Fees that have already been billed or paid.

**10.3 Survival.** All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, privacy and data, effects of termination, warranty disclaimers, indemnity and limitations of liability.

## 11. Limited Warranty and Disclaimer

**11.1 Pinkfish Assurance.** Pinkfish shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pinkfish or by third-party providers, or because of other causes beyond Pinkfish’s reasonable control, but Pinkfish shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption in accordance with the then applicable Service Level Agreement.

**11.2 DISCLAIMER.** EXCEPT TO THE EXTENT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, THE PINKFISH TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. PINKFISH EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING UNDER THIS AGREEMENT. PINKFISH DOES NOT WARRANT THAT THE PINKFISH TECHNOLOGY OR THE SERVICES PROVIDED HEREUNDER IS ERROR-FREE OR THAT OPERATION OF THE PINKFISH TECHNOLOGY WILL BE SECURE OR UNINTERRUPTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ASSUMES ALL RISKS ARISING OUT OF USE OF THE PINKFISH TECHNOLOGY AND THE SERVICES, EXCEPT TO THE EXTENT THAT PINKFISH IS FOUND TO BE GROSSLY NEGLIGENT OR IN MATERIAL BREACH OF THIS AGREEMENT.

**11.3 Limited Warranty.** Pinkfish warrants that the Services will perform substantially in accordance with the Documentation provided by Pinkfish for the applicable subscription term and will ensure its availability and support in accordance with the Service Level Agreement set out under **Exhibit A**. If the Services do not so perform, and such failure is reported by Customer to Pinkfish during the active subscription period, Pinkfish’s entire liability and Customer’s exclusive remedy will be, at Pinkfish's option, to either correct the error or provide a workaround for the error. If Pinkfish is unable to correct the error or provide a workaround within a reasonable period of time after Customer’s notification, either party may terminate the affected Order Form upon thirty (30) days’ written notice, and Pinkfish will refund Customer any prepaid, unused fees for the terminated Service. This limited warranty is void if failure of the Services has resulted from reasons beyond Pinkfish’s reasonable control including occurrence of a force majeure event, abuse, misapplication or abnormal use of the Services by the Customer, or a virus or similar attack.

## 12. Indemnity

**12.1 Pinkfish IP Indemnity.** Subject to Section 12.2, Pinkfish will defend Customer from and against any third party claim alleging that the Service, in its unaltered state, infringes or misappropriates such third party’s valid and enforceable intellectual property rights (an “IP Claim”), and will indemnify Customer from damages finally awarded against Customer, and pay for any settlements agreed to by Pinkfish, with respect to such IP Claim. Pinkfish may at any time and at its option and expense: (i) obtain for Customer a license to continue using the Service; (ii) modify the Service so as to avoid infringement while preserving substantially equivalent functionality; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement or the applicable Order Form, and the rights granted thereunder, and refund to Customer any prepaid, unused fees covering the remainder of the applicable Order Form Term. This Section states Pinkfish’s entire liability and Customer’s sole and exclusive remedy with respect to any infringement or claims of infringement of any third-party intellectual property rights related to the Service.

**12.2 IP Indemnity Exclusions.** Pinkfish’s defense and indemnity obligations in Section 12.1 do not apply to the extent the IP Claim arises from: (i) third party products, or Customer’s use of the Service in combination with other programs, hardware, data or specifications that are not required by Pinkfish for the use of the core functionality described in the Documentation; (ii) the development or use of any customizations or modifications to the Service, other than those undertaken and performed by Pinkfish, its subcontractors, or agents; (iii) Pinkfish’s compliance with Customer’s specifications, requests or instructions; (iv) Customer’s operational processes or business methods that allegedly, or are found to, infringe on the rights of others; (v) Customer Data or other Customer content uploaded to or used with the Service; or (vi) Customer’s continuation of allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or Customer’s use of the Service other than strictly in accordance with this Agreement.

**12.3 Customer Indemnity.** Customer hereby releases and agrees to defend, indemnify and hold harmless Pinkfish, its affiliates and each of its and its affiliates’ employees, contractors, directors, agents and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“**Losses**”), that arise from or relate to (a) the Customer’s abuse or misuse of Services, (b) any breach by Customer of the terms of this Agreement, (c) any claim that the Customer Data infringes, violates, or misappropriates any third party intellectual property or proprietary right, or (d) any matter for which Pinkfish has purported to disclaim liability under this Agreement.

**12.4 Indemnity Requirements.** A party entitled to indemnification under this Section 12 ("Indemnitee") will promptly notify the other party ("Indemnitor") in writing of any claim and provide reasonable assistance to the Indemnitor with respect to handling such claim, at the Indemnitor’s expense. Failure to provide timely notice or reasonable assistance will relieve the Indemnitor of its indemnification obligations only to the extent the Indemnitor has been materially prejudiced thereby. The Indemnitor has the right, at its sole discretion, to defend and settle any claim, except that the Indemnitor may not agree to any settlement that does not unconditionally release the Indemnitee, or that includes an admission of liability by the Indemnitee, without the Indemnitee’s prior written consent. The Indemnitee will be entitled to participate in the defense of any such claim using counsel of its choice, at its own expense.

## 13. Limitation of Liability

**13.1 EXCLUSIONS.** IN NO EVENT WILL PINKFISH OR ITS DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR AFFILIATES, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE OR LOSS OF INFORMATION OR DATA, EVEN IF PINKFISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, OR (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (C) FOR DELAY OR FAILURE TO SUPPLY THE SERVICE CAUSED BY ANY FORCE MAJEURE EVENT, OR (D) FOR ANY LIABILITY TO THE EXTENT THAT CUSTOMER CONTRIBUTED TO THE LIABILITY.

**13.2 LIMITATION OF LIABILITY.** SUBJECT TO SECTION 13.1 ABOVE, EXCEPT FOR PINKFISH’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, PINKFISH’S LIABILITY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES CUSTOMER PAID TO PINKFISH PURSUANT TO THIS AGREEMENT DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING SUCH CLAIM. FURTHER, FOR ANY CLAIMS ARISING IN RELATION TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, PINKFISH’S TOTAL AGGREGATE LIABILITY SHALL BE LIMITED TO A MAXIMUM OF USD 200,000 (UNITED STATES DOLLARS TWO HUNDRED THOUSAND) UNDER THIS AGREEMENT.

## 14. Force Majeure

**14.1 Force Majeure Event.** Neither party will be liable to the other for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control that could not have been avoided using a reasonable standard of care, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemic, epidemic and quarantine restrictions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

**14.2 Notification.** The affected party must promptly after becoming aware of a force majeure event, give written notice to the other party of the nature of the force majeure event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavors to limit the effects of the force majeure event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

**14.3 Termination.** In the event that any force majeure event as stated above prevails for a continuous period of more than six (6) months, the Agreement may be terminated by either party by providing a written notice to the other party.

## 15. Miscellaneous

**15.1 Amendments.** Pinkfish retains the right to effect changes to the terms under which the Services are offered by providing a reasonable written notice to the Customer; provided, however, that Pinkfish shall not effect any changes that would materially reduce the overall level of service previously being offered.

**15.2 Severability.** If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

**15.3 Assignment.** Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (a) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a merger, acquisition, sale of substantially all of such party’s business or assets relating to this Agreement, reorganization, or similar transaction, and (b) Pinkfish may utilize subcontractors in the performance of its obligations hereunder.

**15.4 Entire Agreement.** This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

**15.5 Waivers.** Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

**15.6 Relationship.** The parties are independent contractors in the performance of their obligations under this Agreement and no agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Pinkfish in any respect whatsoever.

**15.7 Notices.** All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

**15.8 Governing Law and Jurisdiction.** This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions, and the parties consent to the exclusive jurisdiction and venue of the U.S. District Court for the Northern District of California; provided that if such court lacks subject matter jurisdiction, the parties consent to the exclusive jurisdiction and venue of the state courts located in Santa Clara County, California.

## Exhibit A — Service Level Agreement

This Service Level Agreement (the “**SLA**”) sets forth the policies and procedures with respect to the products and services (the “**Service**”) provided by Pinkfish to a customer (“**Customer**”) pursuant to a separate Service Agreement between Pinkfish and Customer (a “**Master Services Agreement**”).

**Summary:**

As further described below, Pinkfish will use commercially reasonable efforts to: (i) provide Customer with 99.9% availability to the Service (the “**Service Availability**”); and (ii) provide standard support to Customer.

**Availability:**

The Service Availability of 99.9% stated above will be measured on a monthly basis, with all hours weighted equally. “Available” or “Availability” in this context is defined as the ability of Pinkfish to (a) make the admin console available to the Customer, (b) ensure that the data in the admin console can be viewed and operated on by the Customer, and (c) keep the data current to the extent possible. “Unavailability” consists of the number of minutes that the Services was not Available to the Customer but the Unavailability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime or performance issues resulting from third party connections, services or utilities or other reason beyond Pinkfish’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, pandemics, epidemics, quarantine restrictions, civil unrest, acts of terror, strikes or other labor problems (other than those involving Pinkfish employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Pinkfish’s possession or reasonable control, and denial of service attacks). If the Service is Unavailable to Customer due to defects with the Service beyond the Service Availability metric, then, as Customer’s sole and exclusive remedy (and Pinkfish’s sole liability), Pinkfish will provide Customer extension of service contract for the amount of time the service was not Available in the manner provided below.

Notification and Redemption:

Upon receiving a written request from the Customer, Service time credits shall be initiated by Pinkfish in the manner stated above. Customer will be notified of the credited Service extension, and the redemption process will be facilitated through Pinkfish’s customer support.

Exclusions: This credit policy does not apply to service unavailability resulting from scheduled maintenance as well as any downtime or performance issues resulting from third party connections, services or utilities, Customer actions, or circumstances beyond our control (force majeure).

Review and Modification: Pinkfish reserves the right to review and modify this credit policy as necessary, with changes communicated to the Customer in advance.

**Support:**

Pinkfish will respond to Customer support requests within the target time specified in the table below.

Pinkfish will provide support to Customer for defects with the Service in accordance with Pinkfish’s then-current standard Service Plan. Any other support services are outside of the scope of this SLA and must be separately agreed in writing by Customer and Pinkfish. Any support requests shall be sent at **[support@pinkfish.ai](mailto:support@pinkfish.ai)**

Pinkfish will attempt to resolve reported Errors based on the Error Severity and overall impact to users of the Service.

“**Error**” means (1) a failure of the Service to conform to or perform in accordance with the Documentation, the SLAs or any other specifications or performance standards applicable to the Service.

“**Error Severity**” means the priority of Error that Customer assigns, and Pinkfish agrees to, to a given malfunction, defect, failure or nonconformity of the Service:

* Severity 1 Error - The Services are deemed failing and/or unusable by Customer, including if at least one component of mission-critical functionality does not perform, and/or is inaccessible or unusable by Customer, resulting in a significant business or technical impact on Customer.
* Severity 2 Error – Customer is able to use the Services, but Customer’s operations are severely restricted, the overall performance of the Services is degraded or at least one component of material (but not mission-critical) functionality does not perform.
* Severity 3 Error - Any Error that affects performance of the Services but does not degrade any material or mission critical functionality. Includes all problems reported which are not a Severity 1 or Severity 2 Error.

| Severity Level   | Target Response Time                                                                                                                                                                                                           |
| ---------------- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ |
| Severity 1 Error | Pinkfish will respond within 2 hours of an error being reported during Business Hours (Monday-Friday, 9:00am – 5:00pm Pacific)                                                                                                 |
| Severity 2 Error | Pinkfish will respond within 8 hours of an error being reported during Business Hours (Monday-Friday, 9:00am – 5:00pm Pacific) and within 8 hours of the start of the next business day if reported outside of Business Hours. |
| Severity 3 Error | Pinkfish will respond within 2 business days of an error being reported during Business Hours (Monday-Friday, 9:00am – 5:00pm Pacific).                                                                                        |