Last Updated: June 9, 2024

Thank you for choosing Prismfly as your performance marketing agency. This page outlines the terms under which we will provide our services. These terms may change with 30 days' written notice. Master Services agreements will prevail over these terms of service.

PROJECT SERVICES

Statement of Work (EXHIBIT B). Prismfly will provide services detailed in SOW Exhibit B and any additional agreed SOWs. In case of conflict, SOW terms prevail in this agreement. Services will be performed competently and professionally. Timelines and scoped hours are estimates unless specified otherwise in the SOW. Client agrees to cooperate, providing necessary information, materials, and access. Delays from Client may affect Service timelines. Client is responsible for third-party hardware, software, or services unless specified otherwise. Each party may appoint a project manager for coordination and issue resolution. Changes to this Agreement require approval by a Prismfly Managing Partner.

Compliance with Law. Each Party agrees to comply with all applicable laws, rules, and regulations in performing their obligations under this Agreement, including Prismfly's Services and Client's use of Deliverables.

COMPENSATION

Fees. Client shall pay Prismfly for Services at the rates specified in the applicable SOW. Prismfly may modify its fees with 30 days' notice. If Client does not accept the fee changes, they may terminate the applicable SOW within 15 days of receiving notice; otherwise, the new fees will apply after the 30-day notice period. Work outside normal business hours (Weekdays, 9am-5pm CT) may be deemed Premium Time, billed at $250/hour, including weekends, Prismfly holidays, or overnight work per Client's request. Prismfly cannot guarantee fulfilling Premium Time requests, and failure to do so is not a breach of this Agreement.

Payment Terms. Retainers are non-refundable and due 5 business days before Services begin. Retainers auto-renew and auto-charge unless terminated in writing. Upon termination, final charges are prorated. Hours used above the retainer are invoiced semi-monthly, due within 7 days. Late payments incur a $300 fee, recurring every 7 days. Prismfly may suspend services for non-payment. We accept ACH, Bank Transfer, and Cards via Stripe; Card use incurs a 3% surcharge. Non-Stripe payments incur a 1% charge, and Client is responsible for fees by their bank or payment softwares.

Taxes. Prismfly's fees exclude taxes and governmental charges. Client is responsible for all applicable taxes and charges (e.g., sales, use, excise, value-added, and similar taxes) related to the Services or Deliverables, except for taxes on Prismfly's net income and employment taxes.

INTELLECTUAL PROPERTY MATTERS

Intellectual Property Rights: Each party retains rights to its pre-existing intellectual property (IP). Prismfly retains rights to Prismfly Background IP and Prismfly Improvements. Upon full payment, Client owns Deliverables. Prismfly retains ownership of Prismfly Improvements. Until full payment, Client may use work-in-progress for internal evaluation. Prismfly may provide interim Deliverables before full payment and retains rights to unselected versions, which become Prismfly Improvements

Licensing. Client is granted a limited license to use Work Product. For Prismfly Background IP and Improvements incorporated in Deliverables, Client is granted a non-exclusive, paid-up, non-transferable license solely for use with Deliverables, subject to full payment.

Free Open-Source Software. Prismfly may use FOSS in creating Deliverables and Work Product. Client acknowledges that such use may require sharing of certain modifications or reporting obligations. Prismfly cannot assign ownership of FOSS components. Prismfly makes no warranties regarding FOSS and cannot guarantee non-infringement of third-party rights related to FOSS.

Fair Use. Client grants Prismfly a perpetual, worldwide license to: (1) use redacted Deliverables for demonstrations, portfolios, and marketing; and (2) describe work with Client, using Client's name and logo, for promotional purposes. This license survives termination.

CONFIDENTIALITY

Both parties agree to keep confidential information secret. Confidential Information includes all non-public information disclosed by either party. Exceptions include publicly known information, information known prior to disclosure, or independently developed information. Parties may disclose information if legally compelled, with notice to the other party when possible.

DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

Prismfly doesn't investigate third-party IP rights for Services or Deliverables. No warranty of non-infringement is provided. If infringement is discovered, Prismfly will remedy at standard rates. This is Client's sole recourse for infringement claims. Except as expressly stated in this agreement, each party disclaims all warranties, whether express or implied, including but not limited to merchantability, fitness for a particular purpose, and non-infringement. Except for breaches of confidentiality obligations and gross negligence or willful misconduct, neither party is liable to the other for special, consequential, incidental, punitive, or indirect damages or lost profits arising from this Agreement, regardless of any notice of such damages. Except for gross negligence or willful misconduct, Prismfly's total liability under this Agreement is limited to the aggregate amount of Fees and expenses paid or payable by Client to Prismfly.

TERM AND TERMINATION

This Agreement begins on the Kick-Off Date and may be terminated by either party with 45 days' written notice, or immediately for uncured breaches after 15 days' notice. Upon termination, sections on Compensation, Intellectual Property, Confidentiality, Warranties/Liability, and General Provisions survive. Accrued obligations and liabilities for prior breaches remain in effect. Client must reimburse Prismfly for non-cancellable expenses related to terminated services. Both parties must return or destroy Confidential Information, except for surviving licenses. Termination doesn't affect payment obligations for services rendered.

GENERAL PROVISIONS

Governing Law; Dispute Resolution. Oklahoma law governs. Disputes resolved by binding arbitration in Oklahoma City under AAA rules. Client bears costs if Prismfly prevails. Parties may seek interim court relief pending arbitration.

Independent Contractors. Prismfly is an independent contractor to Client. This Agreement does not create an employer-employee, joint venture, partnership, or similar relationship. Each party is responsible for its own taxes, expenses, and employee obligations. Neither party may commit or bind the other without written authorization. Prismfly reserves the right to designate its personnel for Client's account and controls the means, manner, and method of service delivery. Prismfly will provide Client with a W-9 before performing Services. 

Non-Solicitation. During and for two years after this Agreement ends, Client agrees not to recruit or hire any Prismfly employees, associates, consultants, or contractors. If Client does so, Client must pay Prismfly the greater of $500,000 or three times the individual's annual compensation.

Client Responsibility for Use of Work Product.  Client is solely responsible for using and exploiting any Work Product, including all associated risks and liabilities. Client must comply with all Applicable Laws. Client shall indemnify and hold Prismfly (including its directors, officers, employees, affiliates, agents, and contractors) harmless from any claims, damages, expenses (including attorney fees), and liabilities arising from Client's use or exploitation of the Work Product or its failure to comply with Applicable Laws.

Severability. If any provision of this Agreement is held invalid, unlawful, or unenforceable, the remaining provisions will remain in full force and effect. The invalid provision will be modified to the extent permitted by law to ensure validity and enforceability. 

No Assignment. Neither party may assign this Agreement without the other party's written consent, except for assignment to a successor in case of merger, consolidation, reorganization, or sale of relevant assets. Any permitted assignment binds successors and assigns. Unauthorized assignments are void. 

Notices.  Each Party must send all required or permitted notices, consents, and approvals under this Agreement in writing to the other Party at the address specified on the SOW signature page. Notice is effective upon receipt or refusal. Either Party may update their notice address by notifying the other Party.

Remedies; Waiver.  Rights and remedies in this Agreement are cumulative and additional to other legal or equitable remedies. Waivers must be in writing and signed. Delayed enforcement doesn't constitute waiver. A waiver on one occasion doesn't apply to other provisions or occasions.

Force Majeure. Neither party is liable for failures or delays due to causes beyond reasonable control, including acts of God, war, governmental actions, or natural disasters.