Last Updated: January 17, 2025
THIS AGREEMENT CONTAINS PROVISIONS THAT REQUIRE BINDING ARBITRATION OF MOST DISPUTES, LIMIT THE LIABILITY OF PREFLECT, IMPOSE OBLIGATIONS FOR INDEMNIFICATION, AND WAIVE CERTAIN LEGAL RIGHTS. YOU ARE ADVISED TO HAVE THIS AGREEMENT REVIEWED BY LEGAL COUNSEL BEFORE ACCEPTING THESE TERMS.
This Embedded Advertising Services Agreement ("Agreement") is entered by and between Pricestack Inc. dba Preflect ("Preflect", "we", "us", and "our"), and the entity you represent ("Customer", "you", and "your"). Preflect and Customer are collectively referred to as the "Parties" and each individually as a "Party". The individual who agrees to this Agreement on behalf of the Customer is referred to as the "Representative." This Agreement is effective upon the date you first access or use the Services (the "Effective Date").
WHEREAS, Preflect resells advertising inventory ("Advertising Inventory") that it purchases from advertising platforms ("Ad Networks"), which presently include Meta Platforms, Inc. and may include others in the future.
WHEREAS, Preflect has developed a software product ("Embedded Advertising" or the "Platform"), located at leads.preflect.com, designed to facilitate the management of Advertising Inventory.
WHEREAS, the Advertising Inventory, Platform, and all related work performed by Preflect (including, but not limited to, customer support), are collectively referred to as the "Services."
WHEREAS, Preflect also offers a separate ecommerce product that is not governed by this Agreement.
WHEREAS, the Customer desires to purchase Advertising Inventory from Preflect and use the Platform to manage such Advertising Inventory.
WHEREAS, the Customer is represented by a Representative over the age of 18 who has the authority to enter into this Agreement on behalf of the Customer.
NOW, THEREFORE, in consideration of the promises and the mutual covenants of this Agreement, the Parties hereto agree as follows:
1.1 Eligibility
Only businesses (including sole proprietors) headquartered and located in the United States, are eligible to use the Services.
1.2 Authority of Representative
The Customer and the Representative each warrant that:
(a) the Representative is authorized to bind the Customer to this Agreement; and
(b) the Representative is an executive officer of, or otherwise has significant responsibility and control over, the Customer.
1.3 Sole Proprietors
If the Customer is a sole proprietor, the Representative and the Customer agree that the Representative is personally responsible and liable for any use of the Services by the Customer, including payment of all amounts owed under this Agreement.
1.4 One Account Per Person
The Customer represents and warrants that they will maintain only one account per person (i.e., employee, contractor, or any other team member) for accessing and using the Platform. It is strictly prohibited to share account access with other people, to transfer an account to another person, or to register an individual for multiple accounts.
2.1 Definitions of Agency and Agency's Client
If the Customer uses the Services for the benefit of or on behalf of another entity, then the Customer is deemed an "Agency", and each such entity is deemed an "Agency's Client."
2.2 Additional Representations and Warranties of Agency
The Agency represents, warrants, and covenants that:
(a) Before using the Services on behalf of any Agency's Client, the Agency has entered into (or will promptly enter into, prior to any use of the Services of behalf of the Agency's Client) a written agreement with that Agency's Client that grants the Agency the legal authority ("Agency Rights") to make all decisions and take all actions relating to the Agency's Client's accounts; binds the Agency's Client to terms no less protective of Preflect than this Agreement, while designating Preflect as an intended third‐party beneficiary with the right, but not the obligation, to enforce any relevant provisions related to Preflect's Services, disclaimers, and liability limitations; and authorizes the Agency to execute and agree to this Agreement on the Agency's Client's behalf when exercising such Agency Rights.
(b) By exercising the Agency Rights, the Agency hereby agrees to this Agreement in its own capacity and on behalf of the Agency's Client. The Agency acknowledges that it is jointly and severally liable for all obligations arising under this Agreement in connection with the Agency's Client's use of the Services.
(c) Without prior written consent from an authorized officer of Preflect, the Agency will not make any representation, guarantee, condition, or warranty concerning the Services; represent itself as a partner of Preflect; make any commitments to an Agency's Client or prospective Agency's Client beyond Preflect's obligations under this Agreement; negotiate any terms or conditions related to the Services that are inconsistent with this Agreement; or use Preflect's trademarks.
2.3 Agency Relationship Termination
Upon notice from either the Agency or the Agency's Client that the Agency's relationship with an Agency's Client has terminated, Preflect may, in its sole discretion, (a) terminate the Agency's Client's account, (b) permit the Agency's Client to use the Services directly, and/or (c) transfer to the Agency's Client access to any accounts or data created by the Agency for that Agency's Client. Preflect's decision shall be final and binding, and Preflect shall have no liability to the Agency or the Agency's Client for any such decision, provided that the Agency remains responsible for all outstanding Payment Obligations (as defined in Section 2.5) incurred before Preflect's transfer or termination of access.
2.4 Additional Liability
(a) Without limiting any other provision of this Agreement, any acts or omissions by the Agency's Client in violation of this Agreement shall be deemed a breach of this Agreement by Agency, and Agency will indemnify, defend, and hold Preflect harmless from and against all damages, liabilities, costs, and expenses that Preflect may incur as a result of such violation.
(b) Agency acknowledges that Preflect may, but shall in no event be obligated to, directly contact any Agency's Client or directly enforce any terms against such Agency's Client. Preflect's decision not to do so shall not relieve Agency of its obligations under this Agreement.
2.5 Payment Guarantee (Co-Signed Payment Obligations)
The Agency acknowledges and agrees that it is jointly and severally liable (i.e., fully responsible alongside the Agency's Client) for any and all amounts due to Preflect in connection with the Services used for or on behalf of the Agency's Client (collectively, "Payment Obligations"). In the event that the Agency's Client fails, neglects, or otherwise refuses to make timely and complete payment to Preflect, the Agency shall be immediately obligated to satisfy any overdue amounts (including all costs of collection in accordance with Section 6 of this Agreement). The Agency's obligations under this Section 2.5 are absolute, irrevocable, and unconditional; Agency waives any defenses, setoffs, or counterclaims that may otherwise be available to the Agency's Client. The Agency will reimburse and indemnify Preflect on demand for all costs, expenses, and attorney's fees incurred by Preflect in the collection of any overdue amounts from the Agency's Client and/or the Agency.
2.6 Support Inquiries
All support inquiries related to payments made to Preflect shall be directed to Preflect. Agency agrees to make commercially reasonable efforts to address all other support inquiries from Agency's Clients before escalating them to Preflect. Preflect may, but is not obligated to, (a) respond to support inquiries it receives from the Agency's Clients, and/or (b) directly contact the Agency's Clients for any reason at its sole discretion.
2.7 No Obligation to Grant Platform Access
Unless otherwise provided under this Agreement or required by Preflect in its sole discretion, the Agency may, but is not obligated to, grant the Agency's Client access to the Platform. The Agency's Client's ability to access the Services or the Platform directly is subject to Preflect's approval (which Preflect may withhold, grant, or retract, at its sole discretion, at any time, and without prior notice), technical limitations of the Platform, and the terms of this Agreement.
2.8 Agency Incentives
Preflect may, at any time and in its sole discretion, offer incentives of any kind (collectively, "Agency Incentives"), which may include but are not limited to rebates, commissions, or other financial or non-financial consideration, to the Agency. Preflect further reserves the right, at its sole discretion, to withhold or deny any Agency Incentives, in whole or in part, for any reason. The Customer acknowledges and agrees that this section 2.8 constitutes the sole and sufficient disclosure of such Agency Incentives, and no additional or separate disclosure shall be required. However, if applicable law or regulatory requirements mandate further disclosure, then the Agency shall be responsible for such disclosure to the Agency's Client, and the Agency's Client agrees to release and hold Preflect harmless from any liability, claims, or damages arising from any failure of the Agency to disclose such information.
2.9 Additional Terms for Agency's Clients
If a Customer is an "Agency's Client" (i.e., the entity on whose behalf an Agency uses the Services), that Agency's Client:
(a) Grants the Agency all rights and authority needed to access, manage, and legally bind the Agency's Client regarding the Services.
(b) Will not assert claims against Preflect based on any alleged breach or wrongdoing by the Agency; any such claim must be brought solely against the Agency.
(c) Accepts that all Agency actions on the Agency's Client's account(s) are binding on the Agency's Client.
(d) Waives any defense or claim against Preflect based on an alleged lack of Agency authority.
2.10 No Endorsement of Agencies or Customers
Preflect's provision of Services to any agency or customer does not constitute an endorsement of that agency or customer, nor does it imply any partnership, affiliation, or recommendation. All references to or descriptions of agencies or customers are for the purpose of delivering the Services, and should not be construed as a statement of preference, quality, or trustworthiness.
3.1 License Grant
Preflect hereby grants to Customer, for the Term (as defined in Section 7 of this Agreement), a non-exclusive, non-transferable, non-sublicensable, non-assignable license (the "License") to use the Platform for the purpose of managing Advertising Inventory purchased from Preflect. Notwithstanding the foregoing, an Agency Client's ability to utilize this License may be restricted by their Agency in accordance with Section 2.7 above.
3.2 Service Provision
Subject to the terms of this Agreement, Preflect will render the Services in accordance with Preflect's standard practices then in effect.
3.3 Platform and Services Modifications
All aspects of the Platform and Services, including features, functionality, and information regarding the same, are subject to change without notice.
4.1 Protection of Proprietary Information
Each Party (the "Receiving Party") acknowledges that the other Party (the "Disclosing Party") may disclose non-public proprietary information ("Proprietary Information"). Such information will be considered Proprietary Information if it is labeled as confidential when disclosed in writing, is identified as confidential when disclosed orally, or is described below. Proprietary Information of Preflect includes, but is not limited to, all details relating to the functionality of the Services. The Receiving Party agrees: (a) to take all reasonable precautions to protect such Proprietary Information, and (b) 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 after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public except through breach of this Agreement or any unlawful act by a third party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 License for Brand Assets
Customer shall provide, through the Platform or otherwise, copies of its name, trademarks, logos, and other brand assets (collectively the "Brand Assets"), to Preflect. Customer represents, warrants, and covenants that its Brand Assets do not infringe on any trademark or other proprietary rights of any third party. Customer hereby grants Preflect an irrevocable, worldwide, non-exclusive, royalty-free license to use, modify, display, distribute, reproduce, store, and publish the Brand Assets in connection with the Services.
4.3 Publicity
Customer grants Preflect an irrevocable, worldwide, non-exclusive, royalty-free license to use the Brand Assets and references to Customer's use of Preflect for marketing, advertising, and promotional purposes. This includes, but is not limited to, the creation and distribution of case studies, press releases, testimonials, advertisements, and other marketing materials showcasing Customer's use of the Services. Additionally, if the Customer is an Agency, then Preflect is expressly permitted to disclose the Agency's use of Preflect, including to the Agency's Clients.
4.4 License for Advertising Content
Customer may use the Platform to provide Preflect with ads, images, illustrations, trademarks, logos, company names, fonts, text, audio, videos, and other content (collectively the "Advertising Content"). Customer grants Preflect an irrevocable, worldwide, non-exclusive, royalty-free license to use, modify, display, distribute, reproduce, store and publish Advertising Content in connection with Preflect's provision of Services to the Customer.
4.5 Ownership of Intellectual Property
Notwithstanding anything to the contrary, Preflect shall own and retain all right, title, and interest in and to (a) the Services, including all improvements, enhancements, or modifications thereto; (b) any software, applications, inventions, or other technology developed in connection with support; (c) any data and other information collected or analyzed in connection with the provision, use, and performance of the Services; and (d) all intellectual property rights related to any of the foregoing. Any feedback, suggestions, enhancement requests, recommendations ("Feedback"), or data provided by the Customer for the improvement of the Services is granted to Preflect on a perpetual, irrevocable, worldwide, non-exclusive, royalty-free basis, with the right to incorporate such Feedback and data into its products and services without any obligation to provide compensation. Customer shall not label Feedback as Proprietary Information. Subject to the licenses granted herein, Customer shall own and retain all right, title, and interest in and to its Brand Assets.
4.6 Access to Third-Party Accounts
Customer unconditionally authorizes Preflect to access, use, and make modifications to any third-party accounts that Customer connects to the Platform (the "Third-Party Accounts"), including, but not limited to, accounts on Meta Platforms, Inc. (such as Facebook Pages and Instagram accounts).
5.1 Restrictions on Authorized Customers
Unless granted prior written approval by Preflect, Customer represents, warrants, and covenants that they, and, if they are an Agency, their Agency's Clients, (a) are not in the business of, or may enter the business of, developing, distributing, or commercializing services substantially similar to or competitive with the Platform, (b) are not sanctioned by any department of the United States of America, (c) are not involved in activities relating to vice, firearms, gambling, securities, lending, social issues, politics, government, medicine, or other highly regulated industries, (d) are not involved in products and/or services that may be illegal at the federal or state level, (e) are not in violation of any of Meta's advertising standards then in effect, (f) are not subject to Meta's special ad categories then in effect, and/or (g) were not previously restricted or banned by Preflect.
5.2 Prohibition on Reverse Engineering
Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to obtain, copy or utilize (or aid, enable or encourage others to do so) the source code, object code or underlying structure, ideas, design, know-how or algorithms used in connection with the Services, or any documentation or data related to the Services; modify, translate, or create derivative works based on the Services; or remove any proprietary notices or labels.
5.3 Export Compliance
Customer may not remove or export from the United States or allow the export or re-export of the Services, 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. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
5.4 Compliance with Laws and Policies
Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws, regulations, and Preflect's policies then in effect. Although Preflect has no obligation to monitor Customer's use of the Services, Preflect may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
5.5 Security Responsibilities
Customer is responsible for maintaining the security of computer systems, including email accounts, used to access the Services. Customer is responsible for all actions taken by anyone using its accounts, including, but not limited to, all unauthorized use arising from any security breach of its computer systems or email accounts.
5.6 Compliance with Ad Network Policies
Customer is responsible for its knowledge of, and compliance with, all applicable Ad Network policies, including, without limitation, Meta's ad policies (https://www.facebook.com/policies/ads).
5.7 Personal Data
Customer is responsible for determining the purposes of processing any personal data collection facilitated by the Platform, ensuring compliance with all applicable data protection laws, including obtaining consents, providing privacy notices, and addressing data subject rights requests. Each Party shall immediately inform the other Party, in writing, of data subject requests (e.g., deletions), and the Parties will use commercially reasonable efforts to cooperate and respond to such requests. Upon written request by the Customer, the Parties will cooperate to enter into any further data protection agreements as required by law.
5.8 On-Meta Lead Form Ads
Customer acknowledges that leads obtained through Meta lead form advertising ("Meta Leads") are collected by Meta and made available to the Customer through the Platform subject to Meta's policies and practices. Meta Leads typically remain accessible to the Customer for a brief period of time, after which they expire and become unavailable. Preflect is not responsible for the retention, durability, or ongoing availability of Meta Leads. Customer is solely responsible for accessing, securely handling, and using Meta Leads in compliance with all applicable laws, regulations, privacy standards, and Meta's policies. Preflect may link Meta lead forms to a generic privacy policy, but Preflect makes no representations or warranties, whether express or implied, as to the sufficiency, completeness, accuracy, or compliance of any such privacy policy. Preflect hereby expressly disclaims any and all liability arising out of or relating to Customer's use or reliance on the generic privacy policy. Customer shall supply its own compliant privacy policy to Preflect for use in Meta's lead forms, and Customer is solely responsible for ensuring that its privacy policy complies with all applicable privacy and data protection laws and regulations.
5.9 Preflect Controls Ad Network Usage
Customer authorizes Preflect to decide, in its sole and absolute discretion, how to utilize Ad Networks. Customer acknowledges that it will not have access to, nor control over, nor audit rights to, the features or reporting provided to Preflect by the Ad Networks. Customer acknowledges that the advertising accounts and other digital assets created by Preflect within the Ad Networks are not usable except within the Platform, and are non-transferable.
5.10 Restrictions on Representations, Ad Networks
Customer shall not: (a) make any representation, guarantee, condition, or warranty concerning the Ad Networks, or that Customer is an affiliate or partner of the Ad Networks, nor (b) use the intellectual property of the Ad Networks, including, without limitation, their logos and trademarks.
6.1 Purchase of Advertising Inventory
The Customer may purchase Advertising Inventory from Preflect. The Customer acknowledges and agrees that all amounts paid to Preflect for such purchases are fully earned upon payment. Advertising Inventory does not constitute funds held for the Customer. ALL PURCHASES ARE FINAL AND NON-REFUNDABLE, REGARDLESS OF PERFORMANCE.
6.2 Consumption of the Advertising Inventory
Through the Platform, the Customer shall manage advertisements, the delivery of which consumes Advertising Inventory. The Customer shall set and maintain a desired pace (the "Daily Budget") of Advertising Inventory consumption. The actual pace of Advertising Inventory consumption may, without notice, deviate materially from the Daily Budget, and the Customer agrees to accept any and all consumption of Advertising Inventory. The Customer expressly waives any right to consumption of Advertising Inventory by reason of deviation from the Daily Budget, performance, or any other reason.
6.3 Preflect Margin
Preflect earns a margin (the "Preflect Margin") of twenty-five percent (25%) on the Customer's purchases of Advertising Inventory.
6.4 Business Payment Methods
The Customer represents and warrants that all payment methods it has provided or will provide to Preflect ("Payment Method(s)") are valid business payment methods under the Customer's control ("Business Payment Method"). Personal payment methods, including but not limited to personal credit cards or personal debit cards, are strictly prohibited unless the Customer is a sole proprietor who does not maintain a separate business payment method; in that case, the sole proprietor's personal payment method will be treated as a Business Payment Method and the sole proprietor remains personally, jointly, and severally liable for all amounts due. If any Payment Method bears the name of an individual (the "Cardholder"), that individual and the Customer shall each be personally, jointly and severally liable for all amounts due. By providing or permitting use of a payment method, both the Customer and the Cardholder expressly agree to be bound by these terms.
6.5 Authorization to Charge
The Customer unconditionally authorizes Preflect to charge any Payment Method, at any time, for any and all amounts due under this Agreement. Preflect may, at its sole discretion and without notice, select or change which Payment Methods to charge or accept.
6.6 Prices Exclude Taxes
All prices quoted by Preflect exclude sales, use, value-added, and other applicable taxes or duties, which the Customer agrees to pay.
6.7 Ad Delivery and Network Approval
The Customer's ability to consume Advertising Inventory is subject to availability and approval by the Ad Networks. Preflect cannot guarantee that the Customer will be permitted by the Ad Networks to consume Advertising Inventory. Preflect shall have no liability to the Customer for any inability to consume Advertising Inventory.
6.8 Depletion of Advertising Inventory
Preflect may suspend the Customer's access to the Services without notice if the Customer's Advertising Inventory is depleted.
6.9 Payment Default and Remedies
If the Customer fails to pay Preflect in full when due – whether caused by a failed Payment Method or any other reason – then the Customer shall immediately be in default ("Payment Default"). THE CUSTOMER AGREES NOT TO WITHHOLD PAYMENT FOR ANY REASON.
6.10 Payment Default Due to Issuer Recovery
If the Customer pays any amounts due with a credit card and the issuer of the credit card seeks to recover from Preflect any amounts received by Preflect from the issuer, the Customer shall (a) immediately be in Payment Default, and (b) immediately remit to Preflect all amounts necessary to comply with the issuer's request, as well as any costs and expenses incurred by Preflect in connection therewith.
6.11 Interest on Past Due Amounts and Collection Costs
Preflect may pursue any remedy available at law or in equity to collect any overdue amounts from the Customer. The Customer shall reimburse Preflect for all reasonable expenses and recovery costs incurred in collecting past due amounts, including attorneys' fees. Interest shall accrue on any outstanding amounts, as well as on all such expenses and costs of collection, at the lesser of two percent (2%) per month or the maximum rate permitted by applicable law.
6.12 Agency Payment Liability Trigger
If the Customer is an Agency that is co-signing Payment Obligations under Section 2.5, then the Agency's payment liability shall be triggered immediately upon the Agency's Client's Payment Default.
6.13 Refunds Are Not Waivers
The Customer acknowledges and agrees that any refund from Preflect does not constitute a waiver, relinquishment, or forfeiture of Preflect's right to collect the amounts due. Specifically, without limitation, any refund by Preflect in response to alerts from Ethoca, CDRN, RDR, or similar chargeback-mitigation programs does not constitute a waiver of any amounts owed to Preflect.
6.14 Means of Waiver
Preflect's right to collect amounts owed by the Customer may only be waived by a written agreement between the Parties that (i) expressly references this Agreement, and (ii) specifies the amount to be waived. Any notice that does not meet these criteria is invalid.
7.1 General Term and Termination Rights
This Agreement shall continue in full force and effect until terminated in accordance with this Section 7 (the "Term"). Either Party may terminate this Agreement upon seven (7) days' prior written notice, at any time and for any reason. The date on which the termination takes effect is the "Termination Date."
7.2 Termination for Breach
If a Party is in material breach of this Agreement, the other Party may immediately terminate the Agreement on written notice. For the avoidance of doubt, any Payment Default by the Customer is a material breach.
7.3 Obligations Upon Termination
Upon termination, Customer shall (a) immediately deauthorize all Third-Party Accounts to which they have granted Preflect access, and (b) complete all other reasonable steps that Preflect may require.
7.4 Survival of Obligations
All sections of this Agreement which by their nature should survive termination, will survive termination, regardless of the cause of such termination. Without limiting the foregoing, this includes but is not limited to obligations regarding confidentiality, indemnity, warranty, release of and limitations on liability, dispute resolution, payment defaults, license for brand assets, and publicity.
8.1 No Warranty of Results
Preflect expressly disclaims any implied or express warranties that use of the Services will result in any particular performance or achieve any particular results, including, without limitation, results comparable to that indicated in Preflect's marketing materials or otherwise. THE CUSTOMER ASSUMES ALL RISKS ARISING FROM USE OF THE SERVICES.
8.2 No Warranty of Meta Leads
Preflect expressly disclaims any implied or express warranties that use of the Services will produce any Meta Leads, that any Meta Leads will be of a particular quality, that the contact information of such Meta Leads will be accurate, or that any opt-in (if applicable) to receive communications will be valid or suitable for the Customer's purposes. THE CUSTOMER IS ADVISED TO CONDUCT DUE DILIGENCE REGARDING THE LEAD COLLECTION PROCESS AND ASSUMES ALL RISKS RELATED TO META LEADS.
8.3 Advertisement Previews Disclaimer
Previews of advertisements provided by the Services may be inconsistent with how advertisements actually appear on Ad Networks. The Customer agrees to accept and pay for all consumption of Advertising Inventory regardless of the advertisement's appearance, format, or quality. THE CUSTOMER ASSUMES ALL RISKS ARISING FROM ADVERTISEMENT PREVIEWS AND IS ADVISED NOT TO RELY UPON THEM.
8.4 Analytics Disclaimer
The Platform may display data ("Analytics"), including but not limited to clicks, impressions, spend, and conversions. Analytics depend on data received by Preflect from Ad Networks, which may be estimated, modeled, or otherwise non-deterministic; may contain inaccuracies, biases, or errors; and may exhibit latency and lag, including retroactive updates. Preflect expressly disclaims any implied or express warranties relating to the accuracy, reliability, or completeness of Analytics. THE CUSTOMER ASSUMES ALL RISKS ARISING FROM USE OF ANALYTICS AND IS ADVISED NOT TO RELY UPON THEM.
8.5 Advertising Inventory Disclaimer
Preflect expressly disclaims any implied or express warranties as to the quantity, quality, or pacing of advertising impressions delivered in connection with the consumption of Advertising Inventory. Preflect does not guarantee that Ad Networks will approve any advertisement. Ad Networks maintain sole discretion over whether to accept, reject, or remove any advertisement. THE CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH ADVERTISING INVENTORY.
8.6 Service Availability Disclaimer
Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance, or other causes including issues with third-party providers. During any such downtime, the Customer may be unable to manage Advertising Inventory (including Advertising Inventory actively being consumed). The Customer agrees to assume all risks associated with such downtime and remains responsible for all costs of Advertising Inventory consumed during these periods.
8.7 Data Durability Disclaimer
Preflect may, during and after the Term, retain, modify, or delete data stored in connection with or by the Services for commercial purposes, in accordance with applicable data protection laws. Preflect may retain data as necessary to meet legal, regulatory, and auditing needs. The Customer acknowledges that Preflect's decisions regarding data retention, modification, and deletion shall be at Preflect's sole discretion, provided such actions are compliant with applicable laws.
8.8 General Disclaimer of Warranties
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PREFLECT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND PREFLECT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.1 Customer Indemnity Obligations
The Customer agrees to defend, indemnify, and hold harmless Preflect, its officers, directors, employees, and subsidiaries from and against any and all liabilities, damages, costs, and expenses (including settlement costs and reasonable attorneys' fees) arising out of or related to any third-party claim or demand resulting from:
(a) Any use of the Services by the Customer, including any misuse or unauthorized access;
(b) Any breach of this Agreement by Customer, including violations of any warranties or obligations;
(c) Advertising Content and any data provided by the Customer in connection with the Services, including claims related to the accuracy, legality, or appropriateness of such content or data;
(d) Customer's infringement, misappropriation, or violation of applicable laws or regulations, or any third-party rights, including but not limited to intellectual property rights, property rights, privacy rights, or publicity rights;
(e) Any breach by Customer of Ad Network policies or of any applicable laws or regulations (including, but not limited to, CAN-SPAM, CCPA, and CPRA);
(f) Any failure by Customer to respond to data subject rights requests (e.g., access, rectification, deletion) in compliance with applicable law; and
(g) If the Customer is an Agency, any claim, damage, liability or loss arising from or relating to any claim by any of the Agency's Clients.
9.2 Indemnified Party's Control of Defense
The indemnified party shall have the right to select counsel of their choosing and shall have sole discretion to determine and direct the legal strategy, including decisions regarding settlement, litigation, and any other actions taken in defense of claims covered by this indemnity. The indemnifying party shall be responsible for all reasonable attorneys' fees and costs associated with such defense, including the costs of any strategies or actions taken at the direction of the indemnified parties.
10.1 Release of Liability
To the maximum extent permitted by law, the Customer hereby releases Preflect from liability to the Customer and its affiliates (including, if the Customer is an Agency, any of Agency's Clients) under this Agreement or in connection with the Services during and after the Termination Date, whether in contract, negligence, strict liability, tort, or other legal or equitable theory, for any lost profits, personal injury, property damage, loss of data, business interruption, indirect, incidental, consequential, exemplary, special, reliance, punitive, or multiple damages, even if these losses, damages, or costs are foreseeable, and whether or not Preflect has been advised of their possibility.
10.2 Limitation of Aggregate Liability
To the fullest extent permissible by law, Preflect's aggregate liability arising from or related to this Agreement shall not exceed the greater of: (a) the total Preflect Margin earned on Advertising Inventory paid by the Customer in the three (3) months preceding the initial event giving rise to the claim, or (b) one thousand dollars ($1,000).
10.3 Basis of the Bargain
The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that access to the Platform has been granted, the Preflect Margin has been set, and the Agreement entered into, in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
10.4 Sole Remedies
Except as explicitly stated, the remedies set forth in this Agreement are the Customer's sole and exclusive remedies for any dissatisfaction, breach, or other claim arising out of or relating to the Services.
11.1 Governing Law
This Agreement shall be governed by the laws of the State of Nevada without giving effect to its conflict of laws principles.
11.2 Binding Arbitration
(a) Scope of Arbitration and Exclusions
All disputes, claims, and controversies, whether based on past, present, or future events, arising
out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation,
or validity of any provision of this Agreement, and the determination of the scope or applicability
of the agreement to arbitrate any dispute, claim, or controversy originating from this Agreement,
but specifically excluding any dispute principally related to Preflect's collection of overdue amounts
or either Party's intellectual property rights (which shall be resolved in litigation before the
United States District Court for the District of Nevada), will be determined by binding arbitration
in Las Vegas, Nevada before a single arbitrator. For clarity:
I. Disputes Over Payment Terms: Any dispute over the application or interpretation of payment
terms shall be resolved by arbitration, unless it arises from or in connection with Preflect's
efforts to collect overdue amounts, in which case it is excluded from arbitration. II. Refunds and Overpayments: Disputes involving claims for refunds, overpayments, or
adjustments, unless they lead to a Payment Default, shall be subject to arbitration.
(b) Arbitration Administration
The American Arbitration Association will administrate the arbitration under its Commercial Arbitration
Rules.
(c) Applicable Law in Arbitration
The arbitrator will apply the substantive law of the State of Nevada and of the United States, excluding
their conflict or choice of law rules.
(d) Provisional Remedies
Nothing in this Agreement will preclude the Parties from seeking provisional remedies in aid of arbitration
from a court of appropriate jurisdiction.
(e) Federal Arbitration Act Application
The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce.
Notwithstanding the provisions in this Section 11 referencing applicable substantive law, the Federal
Arbitration Act (9 U.S.C. Sections 1-16) will govern any arbitration conducted in accordance with
this Agreement.
(f) Judgment on Award
Judgment on the award may be entered in any court having jurisdiction.
(g) Limitations on Arbitrator's Powers
The arbitrator shall have the power to award any remedy provided under applicable law, except that
the arbitrator shall have no power to award: (a) punitive, exemplary, or multiple damages under any
legal theory (as further specified in Section 10 of this Agreement); nor (b) any damages in excess
of the limits set forth in Section 10 of this Agreement.
(h) Confidentiality of Arbitration
All aspects of the arbitration shall be confidential, and the Parties and the arbitrator shall not
disclose to others, or permit disclosure of, any information related to the proceedings, including
but not limited to discovery, testimony and other evidence, briefs and the award.
11.3 Class Action Waiver
No Party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No Party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all Parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
11.4 Waiver of Jury Trial
If, for any reason, a claim or dispute proceeds in court rather than through arbitration, each Party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.
12.1 No Agency Relationship
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and the Customer does not have any authority of any kind to bind Preflect in any respect whatsoever.
12.2 Entire Agreement and Reliance Disclaimer
This Agreement constitutes the complete and exclusive statement of the mutual understanding of the Parties regarding the subject matter herein and supersedes and cancels all prior written and oral agreements, communications, and other understandings specifically related to such subject matter. The Customer acknowledges and agrees that in entering into this Agreement, it has not relied and is not relying on any representations, warranties, or other statements whatsoever, whether written or oral (from or by Preflect or any person acting on their behalf) other than those expressly set out in this Agreement.
12.3 Review by Counsel
The Customer represents and warrants to Preflect that it has had this Agreement reviewed by independent legal counsel of its choice, or if it has not, that it has had the opportunity to do so, and hereby waives any claim, objection or defense on the grounds that this Agreement has not been reviewed by legal counsel of its choice.
12.4 Assignment and Delegation
Either Party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such Party (whether by merger, stock sale, or asset sale), with thirty (30) days prior written notice, without the other Party's consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other Party, and any assignment or delegation in violation of this section shall be void.
12.5 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.
12.6 Waivers and Modifications
The failure of either Party to enforce at any time any provision of this Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof, nor a relinquishment of the right to enforce such provision in the future. All waivers and modifications must be in a subsequent written agreement signed by both Parties, and no right or remedy shall arise from any representation, warranty, or other statement not expressly set out herein. No waiver of any right, claim, or remedy by Preflect is valid unless in writing and signed by Preflect's Chief Executive Officer.
12.7 Electronic Signatures
The Parties acknowledge and agree that acceptance of this Agreement may be manifested electronically, including through a clickwrap or similar process (e.g., clicking "I Agree," checking a box, or continuing to use the Services after having had a reasonable opportunity to review these terms). Such acceptance shall be legally binding and enforceable to the same extent as a signature delivered in ink on paper. A copy or representation of this Agreement presented electronically shall be deemed an original for all purposes.
12.8 Notices
All notices under this Agreement must be in writing and will be deemed to have been duly given when: (a) received, if personally delivered; (b) sent, if transmitted by email, unless the sender receives an automated notice of non-delivery; (c) the day after it is sent, if sent for next-day delivery by a recognized overnight delivery service; or (d) upon receipt, if sent by certified or registered mail, return receipt requested. All notices sent by any method other than email must also be sent via email. Email notices addressed to Preflect must be delivered to support@preflectads.com.
12.9 Right to Modify
Preflect may update or modify this Agreement at any time by providing you with written notice. Unless you reject these modifications in writing within thirty (30) days after the notice was given (the "Review Period"), you will be deemed to have accepted them as of the effective date specified in Preflect's notice (the "Modification Effective Date"). If the notice does not specify a Modification Effective Date, then that date will be thirty (30) days after the notice was given. Any modifications will apply solely on a forward-looking basis from the Modification Effective Date and will not retroactively affect rights or obligations arising prior to that date, unless the Parties agree otherwise. If you affirmatively indicate acceptance (e.g., by clicking "I Agree") before the Review Period ends, you will be deemed to have accepted the modifications immediately as of that acceptance date. If you provide a timely written rejection within the Review Period, the unmodified terms will govern for the remainder of the Review Period, after which this Agreement shall automatically terminate.