PEAK Targeting Advertising Platform Terms of Service
These PEAK Targeting Advertising Platform terms are entered into and agreed upon by PEAK Targeting Corporation (“PEAK Targeting”) and the PEAK Targeting account holder listed below (“Customer”). The individual executing these Terms on behalf of Customer warrants that he or she is authorized to accept these Terms on behalf of Customer. These Terms, along with any additional terms and policies set forth on the user interface of PEAK Targeting’s automated advertising platform (the “Platform”; collectively, the “Terms”), govern Customer’s access to and use of the Platform with respect to any orders (“Orders”) placed through Customer’s account with PEAK Targeting.
1. PEAK TARGETING ADVERTISING PLATFORM
2. CANCELLATION OR MODIFICATION OF ORDERS
Customer may modify or cancel any Order as specified on the Platform’s user interface. Customer agrees that it shall be bound by such procedures in effect at the time any Order is placed and that Customer shall have no right to cancel Orders or receive any refund or credit other than as specified on the Platform. In the event Customer attempts to cancel or modify an Order, but PEAK Targeting serves Advertisements prior to such cancellation or modification taking effect, Customer shall pay all such fees associated with such served Advertisements.b. If, for any reason, Customer cannot access its account on the Platform, Customer shall contact its designated account representative at PEAK Targeting or contact PEAK Targeting at [email protected] to request cancellation of any Order.
3.CUSTOMER’S END USERS
In the event Customer utilizes the Platform on behalf of any third party or Customer authorizes a third-party to access the Platform through Customer’s account (such third parties, “End User”), Customer warrants that it has provided a copy of these Terms to such End User and that End User agrees to be bound by these Terms, including, but not limited to, the “Privacy Disclosures” set forth in Section V, as if End User were a “Customer” hereunder, except with respect to Customer’s payment obligations. Customer warrants further that in the event it utilizes the Platform to place Orders on behalf of any End User, it is authorized to act on behalf of such End User.b. Notwithstanding any End User, Customer is and shall remain bound to comply with all obligations under these Terms with respect to any Order placed through Customer’s account, including, but not limited to, all Customer warranties with respect to Creatives and Targeting Lists, and obligations of indemnification and payment, with respect to any use of the Platform pursuant to Customer’s account. Customer’s payment obligations hereunder are not contingent upon or limited by Customer’s receipt of payment by any End User.c. Notwithstanding the disclosure of any End User to PEAK Targeting, no End User shall be a Party to or third-party beneficiary under these Terms, and no End User shall have any right to enforce these Terms.
4. CUSTOMER’S WARRANTY
Customer warrants and represents that:i) Customer and/or any End User holds all rights to and in the Creatives and Targeting Lists necessary and sufficient for PEAK Targeting and its affiliates or Partners to provide services with respect to any Order and that Customer or any End User is authorized to and hereby does grant to PEAK Targeting and its affiliates and Partners all rights and licenses in and to the Creatives and Targeting Lists in order to provide such services.ii) The Creatives and any other material, image, file, or document Customer or End User transmits to PEAK Targeting do not contain any untrue, defamatory, harmful, abusive, obscene, or pornographic materials; are in compliance with all applicable laws, statutes, and regulations; and do not infringe upon the rights of any other person, including, but not limited to, copyrights, trademarks, privacy rights, moral rights, trade secrets, patents, and any other right.iii) The Creatives and any other material, image, file, or document Customer or End User transmits to PEAK Targeting do not contain any malware, spyware, or other malicious code.iv) Customer’s or End User’s acquisition, retention, and provision to PEAK Targeting of the information contained in Targeting Lists are in compliance with all applicable laws, statutes, and regulations and do not infringe upon any right of any other party, including, but not limited to, copyrights, trademarks, privacy rights, moral rights, trade secrets, patents, and any other right.v) Customer has the full and complete authority to enter into these Terms and perform its obligations hereunder.vi) Customer’s performance of its obligations under these Terms will not violate or breach any other agreement to which Customer is a party or is bound.vii) Customer is aware that PEAK Targeting has authorized third-party agents and resellers to sell PEAK Targeting’s Products, either under PEAK Targeting’s brand or under such third-party’s brands. Customer represents and warrants that, in the 180 days prior to executing these Terms, no PEAK Targeting agent or reseller has attempted to sell PEAK Targeting’s Products to Customer.
5. REQUIRED PRIVACY DISCLOSURES
Fees and other charges for each Product are set forth on the user interface for the Platform in connection with placing an Order.b. Customer will pay all fees and charges, including applicable taxes, if any, incurred on its account in connection with the Platform, within 30 days of invoice from PEAK Targeting, in U.S. dollars, and in immediately available funds. Past due amounts incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are solely based on PEAK Targeting’s measurements for the Platform and the applicable billing metrics (e.g., CPM, and impressions) specified for the Product(s) in question.c. Any portion of a charge not disputed in good faith must be paid in full. Customer may not offset any payment due under these Terms against any other payment to be made under these Terms. PEAK Targeting may, in its sole discretion, extend, revise, or revoke credit to Customer at any time.d. PEAK Targeting reserves the right to require Customer to prepay for any or all Orders. PEAK Targeting will return any unused, pre-paid amounts to Customer, without interest, upon Customer’s request.e. Customer will pay all of PEAK Targeting’s expenses, including reasonable attorneys’ fees, in connection with collecting late payments.f. PEAK Targeting may, in its sole discretion, suspend Customer’s access to the Platform and/or cancel all or any portion of Customer’s orders until all past-due amounts are paid.g. In the event of a chargeback by Customer, Customer agrees and acknowledges to a $500 investigation and chargeback fee per individual chargeback. All chargeback and investigation fees are due immediately upon notification of chargeback from PEAK Targeting’s payment processor.h. Customer expressly authorizes that any stored credit cards, pre-paid deposits, or other means of payment on file with PEAK Targeting may be used to pay any and all past-due invoices and fees.
7. TERM AND TERMINATION
Either Party may terminate these Terms at any time by written notice to the other Party, but PEAK Targeting will not cancel any Order unless that Order is cancelled pursuant to procedures set forth on the Platform. Customer shall remain obligated to pay any fees and charges associated with any Order that is not cancelled through the Platform’s user interface or with any services provided prior to such cancellation taking effect.b. PEAK Targeting may modify, amend, add to, or delete from these Terms at any time, in its sole discretion, and without any liability. PEAK Targeting will post any modified Terms on the Platform. Customer should review these posted Terms frequently. Any changes to the Terms shall apply prospectively and not retroactively. By continuing to utilize the Platform after PEAK Targeting posts modified Terms, Customer agrees to be bound by the modified Terms.c. Any modifications to these Terms other than pursuant to Section 7.2 hereof must be in writing, signed by both Parties, and must expressly state that it is amending these Terms.d. Sections 1.2, 6 through 15 will survive termination of these Terms.
8. DISCLAIMER OF WARRANTY
TO THE EXTENT PERMITTED BY LAW, CUSTOMER ASSUMES FULL RESPONSIBILITY FOR USE OF THE PLATFORM AND USES THE SAME AT ITS OWN RISK. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY PEAK TARGETING, ITS AFFILIATES, PARTNERS, OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT PEAK TARGETING’S PARTNERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THESE TERMS AND PEAK TARGETING DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THESE TERMS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR DATA ACCURACY.
9. LIMITATION OF LIABILITY
Except for the indemnification obligations set forth in Section 10 of these Terms, in no event shall either Party be liable to the other Party for any incidental, indirect, consequential, special, or punitive damages arising out of or relating to these Terms, any Order, or any service provided hereunder, regardless of whether such Party had been advised of the possibility of such damages, including, but not limited to, claims for lost revenue, loss of potential clients, or loss of potential business opportunity. In no event shall PEAK Targeting’s affiliates, Partners, or suppliers have any liability to Customer or any End User hereunder. PEAK Targeting shall not be responsible for any losses or damages arising as a result of the unavailability of the Platform for failure to serve any Advertisement or implement any Order.b. PEAK Targeting’s aggregate liability to Customer, for any reason and all causes of action arising out of or relating to these Terms or any Order (including, but not limited to, contract, tort (including negligence), and strict product liability), shall be limited to the lesser of: (a) the fees paid or owed by Customer to PEAK Targeting under the Order that is the subject matter of the claim or (b) the total fees paid by Customer to PEAK Targeting in the six months preceding the dispute at issue.
11. INTELLECTUAL PROPERTY RIGHTS, NO TRANSFER OF TITLE
PEAK Targeting owns all right, title, and interest in all intellectual property constituting, delivered through, or otherwise associated with the Platform, including advertisement serving technology, geographic location targeting technology, Platform technology, Platform control panel technology, and Platform features, including implied licenses. All materials, including, but not limited to, any documents, data, software, and information provided by PEAK Targeting to Customer; any identifiers or passwords used to access the Platform or otherwise provided by PEAK Targeting to Customer; and any know-how methodologies or processes, including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto (collectively, “PEAK Targeting Proprietary Information”), used by PEAK Targeting in connection with the Platform or to provide Products under these Terms shall remain the sole and exclusive property of PEAK Targeting or its affiliates or partners. Notwithstanding anything above, PEAK Targeting shall not own or acquire any rights in Customer’s Creatives or Targeting Lists, other than as necessary to provide Products or services under these Terms.b. Customer and End Users shall not acquire any interest in the Platform or PEAK Targeting Proprietary Information, by these Terms or by virtue of the payments provided for herein. Customer and End Users may not disassemble, decompile, reverse engineer, reproduce, modify, or distribute the PEAK Targeting Proprietary Information, in whole or in part, or use them for the benefit of any third party. All rights in the PEAK Targeting Proprietary Information are reserved to PEAK Targeting.
PEAK Targeting agrees to maintain in confidence, not to disclose to third parties or otherwise use, except for such use in connection with the Platform, Products, Orders, or, as is expressly permitted herein, Targeting Lists or any information therein provided by Customer to PEAK Targeting pursuant to these Terms or in connection with any Order.b. Customer hereby authorizes PEAK Targeting to utilize Customer’s name and logo in connection with PEAK Targeting’s promotional materials, including the placement of Customer’s logo on PEAK Targeting’s website.c. In the event PEAK Targeting is obligated by law, through proper service of a subpoena, interrogatory, request for documents, civil investigative demand, court proceeding, or similar process, to disclose Customer’s Targeting Lists, PEAK Targeting shall provide prompt written notice to Customer, along with a copy of such demand, and Customer may, in its discretion and at its sole expense, seek to obtain a protective order or other appropriate remedy to protect against such disclosure.
13. ARBITRATION AND CLAIMS FOR NON-PAYMENT OF FEES
Except with respect to any claims by PEAK Targeting against Customer for unpaid fees, the Parties hereto agree, irrevocably, to submit any dispute arising under or concerning these Terms or the Service to binding arbitration, on an individual basis, administered by the American Arbitration Association (“AAA”) and pursuant to the Commercial Rules thereof. TO THE EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT IT SHALL NOT BRING ANY CLAIM AGAINST PEAK TARGETING ARISING OUT OF THESE TERMS OR CUSTOMER’S OR ANY END USER’S USE OF THE PLATFORM, PRODUCT, OR ANY ORDER, AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR AS ANY PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY. CUSTOMER AGREES THAT IT CANNOT COMBINE ITS INDIVIDUAL CLAIMS WITH CLAIMS OF OTHERS WITHOUT THE CONSENT OF ALL PARTIES.
b. No claim by PEAK Targeting against Customer for unpaid fees shall be submitted to arbitration, whether individually or as part of a larger proceedings, and Customer shall not assert the pendency or possible pendency of any arbitration as a defense to payment of any fees hereunder. With respect to any unpaid fees and accrued interest, PEAK Targeting may bring a civil action against Customer to collect such payment. The Parties agree to submit such dispute to the exclusive jurisdiction of the federal or state courts located in St Petersburg, Florida, and the Parties agree to submit to the personal jurisdiction of said court and to waive any objection to venue lying with said court.c. To the extent permitted by law, before either Party may commence an arbitration with respect to a dispute involving any aspect of these Terms, such Party shall provide written notice to the other Party for the purpose of resolving the dispute in good faith. If the dispute is not resolved within sixty (60) days after the initial notice, then a Party may proceed in accordance with this Section 13.d. Notice of demand for an arbitration hearing shall be in writing and properly served upon the Parties to these Terms as specified in Section 15. Arbitration hearings shall be held in St Petersburg, Florida or at a location agreeable to the Parties.e. All costs of the arbitration and the AAA shall be borne equally by both Parties to these Terms, regardless of the final decision. Each Party shall bear its own costs, including attorneys’ fees, arising out of any dispute between the Parties concerning these Terms. Any panel constituted to hear and decide a dispute between the Parties shall not be empowered to award attorneys’ fees as part of any award.
14. GENERAL PROVISIONS
Applicable Law: These Terms, including any disputes over its terms, shall be governed by the laws of the State of Florida without regard to conflicts of law.b. Interpretation and Enforceability: The language of these Terms shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against any Party, regardless of who drafted these Terms or was primarily responsible for the drafting of any language contained herein. Each Party waives the application of any law, regulation, doctrine, holding, or rule of construction that ambiguities in an agreement will be construed against the drafter. Should any Court or Panel find any provision to be unenforceable or contrary to public policy, then such offensive provision shall be deemed stricken and the remainder of these Terms shall nevertheless remain in full force and effect.c. No Guarantee of Results: Customer acknowledges that PEAK Targeting is not making and has not made any warranty, representation, or guarantee of the success of any advertising campaign instituted on or in connection with the Platform.d. Other Remedies; Specific Performance: Any and all remedies herein expressly conferred upon PEAK Targeting will be deemed cumulative and not exclusive of any other remedy conferred hereby or available in law or equity, and the exercise by PEAK Targeting of one remedy will not preclude PEAK Targeting from exercising any other remedy. Nothing in these Terms is or will be deemed to be a waiver of the right to obtain specific performance or injunctive relief. Customer acknowledges that Customer’s failure to perform any provision of these Terms according to its terms or Customer’s breach of any warranty will result in irreparable damage to PEAK Targeting and, accordingly, PEAK Targeting will be entitled to seek, at its discretion, and obtain injunctive relief preventing breaches of these Terms or to enforce specifically the terms of these Terms, in addition to any other remedy to which PEAK Targeting is entitled.e. Force Majeure: Notwithstanding anything to the contrary contained herein, PEAK Targeting shall have no liability hereunder due to circumstances beyond its control, including, but not limited to, acts of God, terrorism, flood, fiber cuts, natural disaster, regulation or governmental acts, fire, power surges or outages, civil disturbance, weather, or any unauthorized access to or destruction or modification of the Platform, in whole or in part (each a “Force Majeure Event”). f. No Agency, Joint Venture, or Other Relationship: The Parties acknowledge that they will not hold themselves out as an agent, partner, or co-venturer of the other and that these Terms are not intended and do not create an agency, partnership, joint venture, or any other type of relationship, except the contract relationships established hereby. The Parties acknowledge that these Terms do not create a fiduciary relationship between the Parties.g. Non-Assignability; Transfer of Customer Account(s) on the Platform: PEAK Targeting may assign its rights and obligations under these Terms: (1) to any affiliate or (2) in connection with any merger or sale of a fifty percent (50%) or more equity interest to any person or entity, without the prior written approval of or notice to Customer, provided that such assignee assumes all of PEAK Targeting’s rights and obligations hereunder, including obligations of payment and indemnification. Customer may not assign its rights and obligations under these Terms or assign or transfer its PEAK Targeting account to any party other than an affiliate, and then only if (1) Customer provides PEAK Targeting with prior written notice of such assignment and PEAK Targeting approves of such assignment in writing; (2) assignee agrees in writing to be bound by these Terms and to assume any of Customer’s outstanding payment obligations hereunder; and (3) Customer agrees to remain liable for assignee’s obligations hereunder, including, but not limited to, all warranties, payment and indemnification obligations.h. Failure to Exercise Rights: Either Party’s failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver of any provision of these Terms is effective unless in writing and signed by both Parties.i. Entire Agreement; No Reliance: These Terms, including any applicable policies and terms set forth on the user interface of the Platform, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, and representations, both written and oral, among the Parties with respect to the subject matter hereof. These Terms are solely for the benefit of the signatories to it; there are no third-party beneficiaries to these Terms (except for those third-party indemnitees specified in Section 11).
Any notice, approval or disapproval, consent, request, demand, or other communications under these Terms (each a “Notice”), including any change to this Section, shall be in writing and shall be given:b. In the case notice to PEAK Targeting: (i) by hand delivery, (ii) by nationally recognized courier service, or (iii) by prepaid certified mail, to the attention of the person listed below at the addresses set forth below, in addition to delivery by electronic mail as noted. Each Notice shall be effective: (a) if delivered by hand or by nationally recognized courier service, when received at the address specified in this Section and (b) if given by certified mail by a signed return receipt:
To: PEAK Targeting
200 2nd Avenue S, #107
St Petersburg, Florida 33701
Attn: PEAK Targeting Legal Dept. [email protected]
In case of notice to Customer, at the email address provided in Customer’s account. The Customer is obligated to ensure that its account information and contact email address are up-to-date.