Terms & Conditions

Subscription Services Agreement

Last updated: May 11, 2026

This Subscription Services Agreement (the “Agreement”) is between Nitehawk LLC, a Delaware limited liability company (“Nitehawk”), and you and/or your employer (“Client”), as set forth on the applicable services order form, checkout flow, or other written agreement (each, an “Order”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY USING THE SERVICES AND/OR CLICKING “AGREE,” YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY.

1. Description of Services

Nitehawk provides software-enabled monitoring, analytics, automation, reconciliation, dispute recovery, pricing optimization, marketing optimization, campaign management, reporting, and related services involving third-party delivery platforms, point-of-sale systems, aggregators, and related commerce systems (collectively, the “Services”).

Services may include:

  • storefront uptime monitoring;
  • automated storefront reactivation;
  • dispute and refund recovery services;
  • reconciliation services;
  • AI-driven campaign optimization;
  • advertising and promotional optimization;
  • automated or semi-automated pricing optimization;
  • analytics and reporting;
  • automated recommendations and execution workflows; and
  • other services identified in an applicable Order.

Client acknowledges that:

  • third-party delivery platforms (“DSPs”) control approvals, payouts, reversals, and policy enforcement;
  • campaign results, pricing performance, and optimization outcomes are affected by variables outside Nitehawk’s control; and
  • Nitehawk does not guarantee recoveries, campaign performance, increased sales, margin improvement, profitability, return on advertising spend, or any financial outcomes.

2. License Grant

(a) Limited License

Subject to Client’s compliance with this Agreement and payment of all Fees, Nitehawk grants Client a limited, non-exclusive, non-transferable license to access and use the Services during the applicable Subscription Term solely for Client’s internal business purposes.

(b) Authorized Users

Client may permit employees, contractors, affiliates, franchisees, and other authorized users (“Users”) to access the Services.

Client is responsible for:

  • all User activity;
  • account security;
  • permissions management; and
  • credential confidentiality.

(c) Restrictions on Use

Client shall not, and shall not permit any User to:

  • sell, sublicense, or resell the Services;
  • reverse engineer or attempt to identify underlying technologies or service providers;
  • use the Services to build competing products;
  • circumvent or bypass Nitehawk;
  • interfere with the integrity or performance of the Services;
  • misuse automation features; or
  • use the Services in violation of Applicable Law.

3. Fees & Payment

(a) Fees

Client shall pay the fees identified in the applicable Order (“Fees”).

Fees may include:

  • subscription fees;
  • per-location fees;
  • usage-based fees;
  • managed service fees;
  • recovery-based contingency fees;
  • advertising management fees;
  • software access fees; and
  • implementation fees.

Except as expressly stated otherwise in writing, all Fees are non-refundable.

(b) Recovery Fee

For Revenue Recapture services, Client agrees to pay Nitehawk a contingency fee equal to the percentage stated in the applicable Order Form of all amounts:

  • approved by a DSP; and
  • actually paid out to Client

as a result of Nitehawk’s Services (“Recovered Amounts”).

No Recovery Fee is charged for denied or unpaid disputes.

(c) Marketing Spend

Client acknowledges that advertising, promotional, or campaign spend established through Marketing AI services is funded directly by Client through applicable DSP accounts or approved payment methods.

Nitehawk does not guarantee:

  • return on ad spend;
  • increased sales;
  • customer acquisition;
  • campaign efficiency; or
  • profitability.

(d) Pricing Optimization Authorization

Client authorizes Nitehawk to:

  • automate pricing changes;
  • automate promotional adjustments;
  • implement AI-driven pricing recommendations; and
  • execute pricing strategies

within the parameters, thresholds, budgets, and guardrails established by Client.

Client acknowledges that pricing changes may impact:

  • sales volume;
  • margins;
  • conversion rates;
  • customer behavior; and
  • platform rankings.

Client assumes responsibility for business decisions related to pricing strategy.

(e) Taxes

Client is responsible for all applicable taxes excluding taxes based on Nitehawk’s income.

4. Billing & Payment Authorization

Client authorizes Nitehawk to store payment credentials and initiate recurring, usage-based, manually calculated, and variable charges through PCI-compliant payment processors, including Stripe.

Client acknowledges and agrees that:

  • subscription and platform fees may automatically recur on a monthly, annual, or other recurring basis as specified in the applicable Order;
  • certain Fees, including Recovery Fees, may be manually calculated based on recovered funds, operational results, usage activity, campaign performance, or other variable metrics;
  • Nitehawk may manually charge the payment method on file for such variable Fees in accordance with this Agreement and the applicable Order; and
  • Client is responsible for maintaining accurate and valid payment information at all times.

Platform and service fees are billed pursuant to the applicable Order.

Recovery Fees are billed monthly in arrears and typically charged within the first week of each calendar month for Recovered Amounts paid out during the prior month.

Billing is based on DSP payout and operational data regardless of dispute timing.

Client waives any requirement for separate notice prior to recurring or variable charges authorized under this Agreement.

(a) Late Payments

Any undisputed Recovery Fees not paid when due may accrue a late fee equal to five percent (5%) per month, calculated monthly, or the maximum amount permitted by law, whichever is less.

Late fees are in addition to any other rights or remedies available to Nitehawk.

Nitehawk may suspend Services for overdue balances.

5. White-Label Services & Subcontractors

Nitehawk may provide Services directly or through third-party service providers, subcontractors, data providers, technology partners, or automation partners (“Service Providers”).

Services may be delivered on a fully white-labeled basis under the Nitehawk brand.

Client acknowledges that:

  • Nitehawk is the sole contracting party;
  • Nitehawk is not required to disclose underlying providers;
  • underlying technologies and providers may change from time to time; and
  • Nitehawk remains responsible for Client-facing Services.

6. Non-Refundable Payments & Clawbacks

All Fees are non-refundable once charged.

DSP reversals, clawbacks, offsets, or adjustments do not entitle Client to refunds or credits from Nitehawk.

7. Data Access & Authorization

Client authorizes Nitehawk to:

  • access DSP portals;
  • access POS and aggregator systems;
  • retrieve reports and data;
  • automate actions; and
  • share data with Service Providers solely to perform Services.

Client represents it has authority to grant such permissions.

8. AI & Automation Disclaimer

Client acknowledges that certain Services utilize:

  • artificial intelligence;
  • machine learning;
  • automated recommendations;
  • automated workflows;
  • automated campaign execution; and
  • automated pricing adjustments.

Such outputs may:

  • be inaccurate;
  • produce unintended outcomes;
  • be affected by incomplete data; or
  • rely on third-party platform behavior.

Client is solely responsible for reviewing and approving business strategies, budgets, and operational decisions.

Nitehawk disclaims liability arising from:

  • campaign performance;
  • pricing decisions;
  • ad spend efficiency;
  • customer demand fluctuations;
  • algorithmic recommendations; and
  • automated execution outcomes.

9. Non-Circumvention

Client agrees that Nitehawk is the exclusive provider of the Services.

During the term of this Agreement and for twelve (12) months thereafter, Client shall not:

  • bypass or circumvent Nitehawk;
  • contract directly with Service Providers used by Nitehawk;
  • attempt to identify underlying providers; or
  • enable affiliates or franchisees to do the same.

Violation constitutes material breach.

This Section survives termination.

10. Proprietary Rights

All Services, software, workflows, APIs, dashboards, analytics, reporting structures, and related intellectual property remain the exclusive property of Nitehawk and its licensors.

11. Disclaimer

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”

NITEHAWK DISCLAIMS ALL WARRANTIES INCLUDING:

  • MERCHANTABILITY;
  • FITNESS FOR A PARTICULAR PURPOSE;
  • NON-INFRINGEMENT;
  • ERROR-FREE OPERATION; and
  • GUARANTEED RESULTS.

12. Confidentiality

Each party shall protect Confidential Information using reasonable care.

13. Limitation of Liability

EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS:

  • NEITHER PARTY SHALL BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES.
  • NITEHAWK’S TOTAL LIABILITY SHALL NOT EXCEED FEES PAID BY CLIENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

14. Indemnification

Client shall indemnify and hold harmless Nitehawk from claims arising from:

  • Client misuse;
  • Client-provided data;
  • Client-selected pricing or campaign strategies;
  • violations of law; or
  • unauthorized access permissions.

15. Term & Termination

Unless otherwise specified in an applicable Order, this Agreement renews automatically on an annual basis.

Either party may terminate upon thirty (30) days written notice.

Nitehawk may suspend Services immediately for:

  • non-payment;
  • security concerns;
  • misuse; or
  • breach of non-circumvention obligations.

16. Governing Law & Venue

This Agreement is governed by the laws of the State of Delaware, without regard to conflict of law principles.

The parties agree that any dispute arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in the State of Delaware, and each party irrevocably submits to the jurisdiction of such courts.

17. Miscellaneous

This Agreement constitutes the entire agreement between the parties.

Electronic acceptance and signatures are valid and enforceable.