These Pragma Terms of Service (this “Agreement”) is between Pragma Platform, Inc., a Delaware corporation (“Pragma”), and the customer identified in one or more applicable Orders (“Customer”) and is effective as of the of Customer’s first Order (the “Effective Date”).
1.1. Provision of Service. Subject to the terms and conditions of this Agreement, Pragma will make the Service available to Customer as set forth in this Agreement and the applicable Order.
1.2. Restrictions. The rights granted herein are subject to the following restrictions (the “Restrictions”). Except as expressly permitted by Pragma, Customer will not directly or indirectly:
1.3. Customer Responsibilities.
1.4. Affiliates. Any Affiliate of Customer will have the right to enter into an Order executed by such Affiliate and Pragma and this Agreement will apply to each such Order as if such Affiliate were a signatory to this Agreement. With respect to such Order, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order is a separate obligation of the Customer entity that executes such Order, and no other Customer entity has any liability or obligation under such Order.
1.5. Modifications. Customer acknowledges that Pragma may modify the features and functionality of the Service during Customer subscription term. Pragma shall provide Customer with thirty (30) days’ advance notice of any deprecation of any material feature or functionality. In the event that Pragma makes a change to the Service that deprecates a material or features or functionality of the Service, Customer may terminate this Agreement and its subscription to the Service upon written notice to Pragma.
2.1. Fees. Customer will pay Pragma fees set forth in the Order. Except as otherwise specified herein or in any applicable Order, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Payment will be made on the schedule specified in the appliable Order in the method described therein. If no schedule or method is described in the applicable Order, fees will be paid in advance within fifteen (15) days of receipt of invoice. Pragma may change the fees for its services at any time by providing Customer with notice of the updated pricing at least sixty (60) days in advance of the expiration of Customer’s then-current subscription term, with such change effective upon renewal.
2.2. Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Pragma. Customer will not withhold any taxes from any amounts due to Pragma.
3.1. Proprietary Rights. As between the parties, Pragma exclusively owns all right, title and interest in and to the Service (including all underlying code, script and related programs and systems) and Pragma’ Confidential Information, and Customer exclusively owns all right, title and interest in and to Customer’s Confidential Information.
3.2. Feedback. Customer may from time to time provide Pragma suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Service. Pragma will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Pragma will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
3.3. Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
3.4. Customer Data. As between the parties, data that Customer or its users provide to Pragma (“Customer Data”) will be and remain the property of Customer. Upon termination or expiration of this Agreement or the applicable Order will make Customer’s data stored on the Service available to Customer for download for at least thirty (30) days. Upon termination or expiration of this Agreement or any Order hereunder, Customer Data will be made available to Customer as described above. Within sixty (60) days after disconnecting Customer’s access to and use of the Service, Pragma will delete all Customer Data in Pragma’s system and shall provide written confirmation thereof upon request from Customer. Notwithstanding the foregoing, Pragma may anonymize and aggregate Customer Data with data gathered from other Pragma customers which may be used to improve Pragma’s products and services, and for research purposes (“Usage Data”). Pragma may retain Usage Data after termination of this Agreement and publish derivative works of such data, provided that such derivative works are anonymized as to not identify the Customer or its users.
3.5. Customer Content. Customer’s Game and other materials and all other content that Customer makes available to third parties through the Service (“Customer Content”) will remain the sole property of Customer. Customer hereby grants to Pragma a worldwide, non-exclusive, right and license to host, transfer, display, perform, reproduce, modify, distribute and re-distribute the Customer Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) as needed solely in connection with providing the Service to Customer. Customer hereby represents and warrants that Customer has all rights necessary to publish the Customer Content through the Service, and that the Customer Content does not infringe the intellectual property, publicity or privacy rights of any third party. Customer is solely responsible for the accuracy, integrity, and legality of the Customer Content. Customer agrees that it will comply with Pragma’s Acceptable Use Policy as published by Pragma from time to time.
4.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is a duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
4.2. Pragma. Pragma warrants that it will, consistent with prevailing industry standards, provide the Service in a professional and workmanlike manner and the Service will conform in all material respects with the Documentation. For breach of the foregoing express warranty, Customer’s exclusive remedy shall be the correction by Pragma of the non-conformity, if Pragma cannot correct such deficiency within thirty days of receiving notice of breach, Customer shall be entitled to terminate the applicable Order and recover a pro-rata portion of the fees paid to Pragma for the then-current term.
4.3. Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Pragma to use the same as contemplated hereunder.
4.4. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.5. BETA PRODUCTS. From time to time, Customer may have the option to participate in a program with Pragma where Customer gets to use alpha or beta products, features or documentation (collectively, “BETA PRODUCTS”) offered by Pragma. The BETA PRODUCTS are not generally available and are provided “AS IS”. Pragma does not provide any indemnities, support obligations, service level commitments or warranties, express or implied. Customer or Pragma may terminate Customer’s access to the BETA PRODUCTS at any time.
5.1. Indemnity by Pragma. Pragma will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Pragma) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Pragma of such Claim, (b) Pragma will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Pragma may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Pragma in connection therewith. If the use of the Service by Customer has become, or in Pragma’ opinion is likely to become, the subject of any claim of infringement, Pragma may at its option and expense (i) procure for Customer the right to continue using the Service as set forth hereunder; (ii) replace or modify the Service to make them non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Pragma will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Service by Customer not in accordance with this Agreement; (C) modification of the Service or associated software by any party other than Pragma without Pragma’ express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the Service with other applications, portions of applications, product(s) or services where the Service would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Pragma’ sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
5.2. Indemnification by Customer. Customer will defend Pragma against any Claim made or brought against Pragma by a third party related to Customer’s game(s), the Customer Content, or the Excluded Claims, and Customer will indemnify Pragma for any damages finally awarded against (or any approved settlement) Pragma in connection with any such Claim; provided that (a) Pragma will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Pragma’ prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Pragma of all liability) and (c) Pragma reasonably cooperates with Customer in connection therewith.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR A BREACH OF CONFIDENTIALITY OR THE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, CUSTOMER’S EXCLUSIVE REMEDY AND PRAGMA’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY PRAGMA HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY LEADING UP TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
7.1. Term. The term of this Agreement shall commence on the Effective Date and continue as set forth in the applicable Order unless terminated sooner as provided herein. Unless otherwise set forth in the applicable Order, the Order and this Agreement will automatically renew following the initial term for successive subscription terms of equal length to the initial subscription term unless either party provides the other with notice of non-renewal at least thirty (30) days prior to the end of the then current term.
7.2. Termination. Each party may terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
7.3. Effect of Termination. Upon expiration of the term of this Agreement, Customer shall cease all use of the Service. In the case of termination of this Agreement, Customer will immediately cease all use of the Service and any derivatives thereof. All outstanding payments are immediately due and payable upon any termination.
7.4. Survival. Upon termination of this Agreement, (i) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below; and (ii) Customer shall promptly discontinue using the Service.
8.1. Export Compliance. Each party will comply with the applicable export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Service.
8.2. Publicity. Pragma may refer to Customer’s name and trademarks in Pragma’ marketing materials and website; however, Pragma will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
8.3. Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. For clarity, the license provided by Pragma shall not extend to any products or games of any acquiror of Customer, unless such acquiror requests and Pragma agrees, in its sole discretion, to enter into a separate Order with acquiror. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
8.4. Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
8.5. Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
8.6. Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
8.7. Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
8.8. Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Pragma must be sent to Pragma at Pragma Platform, Inc., 10811 Washington Blvd., Unit #360 Culver City, CA 90232 Attn: Legal. Notices to Customer must be sent to the address specified by Customer on the applicable Order. The parties may update their contact information at any time by providing notice of the change to the other.
8.9. Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
8.10. Government Terms. Pragma provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Service was developed fully at private expense.
8.11. Non-Solicit. During the term of this Agreement and for a period of one (1) year thereafter, customer will, whether directly or indirectly on its own account or in conjunction with or on behalf of any other person or entity, solicit the employment or services of the employees or independent contractors of Pragma, to the extent such individuals were introduced to Customer as a result of the Services performed hereunder.
8.12. Data Processing Agreement. Pragma’s Data Processing Agreement is available upon request (the “DPA”) is incorporated by reference and subject to the terms of this Agreement. Pragma reserves the right to update the DPA from time to time as necessary in response to changes in applicable law, provided that such changes are no less protective of personal information processed on behalf of Customer. Pragma may also update the DPA to reflect changes in the Service or Pragma’s subprocessors.
8.13. Interpretation. For purposes hereof, “including” means “including without limitation.”
8.14. Entire Agreement. This Agreement (including any Order hereunder) comprises the entire agreement between Customer and Pragma with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Pragma, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the technical documentation and user manuals made available by Pragma for the Service, as applicable.
“Order” means an order for services agreed upon by the parties, including without limitation, any order placed through the Pragma.gg or FirstLook.gg websites.
“Service” means those services purchased by Customer under an applicable Order.
Last Updated: January 6, 2025
This FirstLook Addendum is an addendum to the Pragma Terms of Service entered into between Pragma Platform, Inc., a Delaware corporation (“Pragma”), and the customer identified in one or more applicable Orders (“Customer”) and is effective as of the of Customer’s first Order that incorporates this Addendum by reference.
Customer may use the Service to conduct playtests within the limits set forth in Customer’s applicable Order. Customer is solely responsible for the content that it publishes to playtesters and potential playtesters through the Service (“Playtesters”). Customer agrees that all its communications with Playtesters will comply with applicable law, and will not contain malicious code or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or spam.
Information collected from Playtesters by Customer is considered Customer Data, as defined in the Pragma Terms of Service, and as between the parties, is owned by Customer. If Playtesters opt in to having their information provided to Pragma for the purpose of learning about other playtesting opportunities, that information, when used by Pragma in accordance with the rights granted by those Playtesters, and the restrictions set forth in Pragma’s Privacy Policy, will not be considered Customer Data.
Last Updated: January 6, 2025