Master Services Agreement

Master Services Agreement

This Master Services Agreement (“Agreement”) is incorporated by reference into any Statement of Work (the “Statement of Work”) or Order Form (the “Order Form”) between the undersigned customer (the “Customer”) and Adzerk, Inc. dba Kevel (“Kevel”).

This Agreement is entered into by and between Customer and Kevel (each a “Party” and together the “Parties”) and is effective as of the latest date of signature set forth below (the “Effective Date”).

Customer confirms that it has reviewed this Agreement carefully and in its entirety. By accepting an Order and/or using the Services, Customer agrees to be bound by the terms and conditions of the Agreement, and Customer represents and warrants that it has full power, authority and legal capacity to enter into and be bound, or, where applicable, bind its employer to this Agreement. Please contact Kevel at [email protected] with any questions about this Agreement.

In consideration of the mutual covenants, terms, and conditions below, the adequacy of which consideration is hereby accepted and acknowledged, the Parties agree as follows:

1. Definitions

“Ads” mean advertisements for products and/or services (including house ads and third-party ads) displayed in connection with the Services.

“Ad Decision Request (ADR)” means any query that is made by Customer to Kevel to fill an ad placement as part of a request to the API.

“Affiliate” means any entity, directly or indirectly through one or more intermediaries, that is controlled by or is under common control with a party hereunder.

“Affiliated Entity” means: (i) Customer’s affiliate or subsidiary; and (ii) Customer’s customer (but only so long as Customer provides materially more services to such customer in addition to facilitating the serving of Ads).

“API” means the application programming interfaces developed and enabled by Kevel that permit Customer to access certain functionality provided by the Services and any accompanying or related documentation, source code, executable applications and other materials made available by Kevel.

“Authorized User” means an employee or contractor of Customer or an Affiliated Entity.

“Breaking API Change” means any change that requires you to make lockstep changes in order for the consuming code to continue to work properly.

“Confidential Information” means any non-public information or data that is disclosed by one party to the other party pursuant to the Agreement.

“Event” means any item measured by the Services, including impressions, clicks, conversions, or other custom items unique to Customer.

“Intellectual Property Rights” means all common law or statutory: (a) patents, patent applications, and patent rights; (b) rights associated with original works, authorship, moral rights, copyrights and all of their exclusive rights; (c) rights relating to the protection of trade secrets and Confidential Information; (d) rights associated with designs, industrial designs and any other design; (e) rights analogous to those rights set forth above and all other industrial or intellectual property rights; and (f) registrations, provisionals, continuations, continuations-in-part, renewals, reissues, reexaminations and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired.

“Order” means the ordering terms presented by Kevel to the Customer describing the Services, including without limitation, the type, fees, limitations and duration of the Services. All Orders shall be subject to and incorporated into this Agreement.

“Service(s)” means the provision by Kevel to Customer of online ad serving and related administrative service, in accordance with the Service descriptions and other options as set forth in the Order. The Services include the provision on a hosted basis of non-exclusive use and access to the Software, and associated hosting and support services as described herein. All Services shall be specifically identified in the Order.

“Service Offerings” means the Internet websites, WAP portals, and other internet-enabled services associated with the URL’s and/or advertising networks owned or controlled by Customer and/or Customer’s Affiliated Entities.

“Site” means the web site at www.kevel.co, www.kevel.com, www.adzerk.net and/or such other web site or sites that Kevel communicates to Customer where Customer may access the Services.

“Software” means Kevel’s proprietary software used by Kevel to deliver the Services, made available to Customer through the platform on a “Software as a Service” basis, and all updates and associated documentation thereto made available as a part of the Services pursuant to the Agreement.

“Systems” means hardware, modems, servers, software, network and communications equipment and ancillary services.

“Term” means the Initial Term and all Renewal Terms as set forth in Section 9.

“Third Party Services” means all third party products, applications, services, software, networks, systems, directories, websites, databases and information with the Services link to, or which the Customer may connect to or enable in conjunction with the Services, including, without limitation, Third Party Services which may be integrated directly into Customer’s account by Customer or at Customer’s direction.

2. Purchased Access to Services

2.1 Services. Subject to all terms, conditions, and restrictions of this Agreement, including full payment of all applicable fees, Kevel will use commercially reasonable efforts to provide the Services to Customer during the term of the Agreement. The Customer may use and access the Services and Software solely through the platform and through the API (as defined below). Use of Video Assets may be subject to Third Party terms. Customer rights to use the Services are non-exclusive and non-transferable. Customer may use the Services only to serve Ads in connection with the Service Offerings. Kevel, in its sole discretion, may provide the Services using third party vendors or service providers. Subject to the terms of this Agreement, Kevel shall be liable for such third party vendors’ and service providers’ breach of this Agreement.

2.2 Limitations. Kevel will not be responsible or liable for any failure in the Services or other damages, losses or claims resulting from or attributable to (a) Systems of the Customer or its Affiliates, (b) network, telecommunications or other service or equipment, (c) Customer’s or a third party’s (except for a third party subcontractor engaged by Kevel to provide the Services) products, services, negligent acts or omissions, (d) Customer’s breach of this Agreement, or (e) scheduled maintenance.

2.3 Customer’s Account. Customer is responsible for all activities that occur under Customer’s account. Customer is responsible for maintaining the security and confidentiality of all usernames and passwords associated with Customer’s account. Only one individual may access the Service at a given time using the same user name and password or other access credentials. Customer agrees to notify Kevel immediately upon becoming aware of any unauthorized use of Customer’s username or password or account or any other known or suspected breach of security. As between Customer and Kevel, Customer is fully responsible and liable for compliance with the provisions of this Agreement by its Affiliates and each of the employees, agents, subcontractors for any and all activities that occur under Customer’s account.

2.4 Modification, Substitution, Discontinued Services. Kevel, in its sole discretion, may from time to time modify the Services or add, update, upgrade, change, or delete features or functionality of the Services in its reasonable discretion. Kevel will use reasonable endeavors to notify Customer of such changes to the Service by posting information about such changes on the website or within the platform. Kevel will provide at least 90 days’ prior notice before sunsetting major features or functionality of the Services (“Sunset Notice”). If the sunsetting of such features or functionality materially adversely affects Customer’s use of the Service, then Customer may terminate this Agreement at any time from its receipt of the Sunset Notice up until 30 days following the date that the feature or functionality has been sunset by providing written notice to Kevel (“Sunset Notice Period”). Customer’s continued use of the Service after the Sunset Notice Period constitutes Customer’s acceptance of these changes.

2.5 Third Party Use. The Services may be used and accessed only by Authorized Users who have a need to access the Services. In no event may third parties other than Affiliated Entities use and access the Services provided to Customer. Neither Customer nor any Affiliated Entities or Authorized Users may use the Services or any of the Software to compete with Kevel. Customer shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of the Agreement.

2.6 Systems. Customer shall be responsible for obtaining and operating all Systems needed to use the Services and shall conduct all of its own backup, recovery and maintenance services on its Systems. Customer shall ensure that all such Systems are compatible with the Services.

2.7 User Information. Customer agrees that all user information provided to Kevel by Customer and/or the Authorized Users, whether for purposes of obtaining a username and password, other access credentials or otherwise, will be accurate and complete in all respects.

2.8 Partner Orders. Customer may procure the Services directly from a Kevel-authorized reseller (“Partner”) pursuant to a separate agreement that may include a partner order form and other commercial terms (a “Partner Transaction”). Kevel will be under no obligation to provide the Services to Customer if it has not received the Partner’s order form for the Customer. Partner is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Kevel or in any way concerning the Services. If Customer licensed the Services through a Partner Transaction, then Customer agrees that Kevel may share certain data and other information with the Partner related to Customer’s access and use of the Services.

3. Proprietary Rights; Customer Obligations

3.1 Grant of License. Kevel hereby grants to Customer a revocable (in accordance with this Agreement), non-exclusive, non-sublicensable, non-transferable, limited license to use the Services, or any component thereof, during the Term and in accordance with the restrictions set forth herein and the applicable Order for Customer’s internal business purposes only. Except for the limited rights and licenses expressly granted hereunder, no other license is granted to Customer, no other use is permitted and Kevel shall retain all right, title and interest in and to the Services.

3.2 Additional Restrictions. Customer agrees not to, nor attempt to, nor permit any third party to: (i) use the Services to deliver spyware, adware, spam, or other deceptive or fraudulent Ads and/or malicious code; (ii) violate any local, state, national or international law or regulation in connection with use of the Services, or otherwise use the Services in any way that is in furtherance of criminal, fraudulent, or other unlawful activity; (iii) interfere with or disrupt the Services or servers or networks connected to the Services; (iv) violate any applicable codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Services; (v) interfere with or attempt to interfere with any other person’s use of the Services; (vi) gain access to or attempt to gain access to any account, computers or networks related to the Services without authorization; (vii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Services; or (vii) use traffic sources generated by toolbars, plugins, piracy sites, and/or any similar sites or applications. Kevel reserves the right to delete an account or suspend Customer’s access to the Services if Customer violates this Section 3.2.

3.3 Compliance with Law. Customer represents and warrants it will comply with all applicable laws and regulations of the United States and other applicable jurisdictions in using the Services, including without limitation, import, re-import, sanctions, anti-boycott, export, re-export, data localization, and data privacy and security laws. Customer shall be solely responsible for complying with any home country restrictions on receipt, use or downloading of the Services.

4. Intellectual Property

4.1 Customer Obligations. Customer agrees that Kevel and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. Customer will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. Customer further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit, other than Affiliated Entities subject to the terms herein. Kevel reserves all rights in the Services and Software not expressly granted to Customer hereunder.

4.2 Retention of Rights. Customer shall retain ownership of all Customer rights in the content and data provided to Kevel in connection with Customer use of the Site and the Service (“Customer Data”). Customer hereby grants Kevel a non-exclusive license to copy, use, distribute and disclose the Customer Data solely as necessary to provide the Services.

4.3 Data Use. Kevel may derive and compile from Customer’s usage of the Services certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal any information about Customer or any individual. Such aggregated data and metadata may be used for Kevel’s own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve Kevel’s products and services, create new products and marketing.

4.4 Trademark. Customer acknowledges and agrees that Kevel and its licensors’ trademarks, brand names and copyright notices will be included on the Services and associated documentation. Customer agrees not to remove, modify, obscure or hide any trademarks, brand names or any other proprietary rights notices included on the Service and associated documentation.

4.5 License Grant. Kevel shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, or other information provided by Customer or any Authorized User relating to the Service.

5. API Terms

5.1 Use of API. Kevel provides an application programming interface (“API”) as part of the Service. The API allows Customer to create scripts and programs to automate certain tasks performed through the Service and to enable certain integrations.

5.2 API Limits. Kevel may from time to time set and update limits on Customer usage of the API, including without limitation limits on API calls and requests and access to data (the “API Limits”). The API Limits will be described on the Kevel website and/or in Kevel documentation. Customer agrees to comply with all API Limits, and further agrees that Customer will not use the API in a manner that constitutes excessive or abusive usage, or otherwise is in breach of the terms of this Agreement. Without limiting the foregoing, Customer agrees not to use the API in a manner that competes with any software or services provided by Kevel, or that provides API functionality to third parties. Customer will not circumvent or attempt to circumvent any API Limits.

5.3 Usage Monitoring. Kevel reserves the right to monitor Customer API usage to verify compliance with the terms of the Agreement and to improve Kevel’s products and services. Customer agrees not to interfere with any such monitoring.

5.4 Update of API. Kevel may update the API from time to time and will (i) use reasonable endeavors to notify Customer of updates by posting information about such updates on the Site, (ii) provide at least 30 days prior notice before making any material change to an API that would require Customer to modify Customer method of making calls to the API, and (iii) provide at least 90 days prior notice before making any Breaking API Change. Customer acknowledges and agrees that such updates may cause issues with any scripts or programs written with earlier versions of the API, and that it is Customer sole responsibility to update any such scripts or programs. Kevel does not guarantee backwards compatibility when it updates the API.

5.5 Customer Scripts. Customer is solely liable and responsible for Customer’s and Customer Authorized Users’ use of scripts, programs, and interfaces written with use of the API (“Customer Scripts”). Kevel has no liability or responsibility for mistakes or actions caused by Customer Scripts, and/or any errors, misuse or unintended use associated with Customer or any Authorized User’s use of the API or Customer Scripts.

6. Unsupported Services

6.1 Beta Products. “Beta Products” means products and features currently in development which Kevel may make available to Customer. From time to time, Kevel may make Beta Products available to Customer. Customer may choose whether or not to try such Beta Products in its sole discretion. Beta Products are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Kevel may discontinue Beta Products at any time in Kevel’s sole discretion and may choose to never make them generally available. Customer acknowledges and agrees that the Beta Products are not designed to support privacy and security regulations. Beta Products are not considered Services under this Agreement, however, all restrictions, Kevel’s reservation of rights, and Customer’s obligations concerning the Services shall apply equally to Customer’s use of Beta Products. Kevel shall have no liability for any harm or damage arising out of or in connection with a Beta Product. Customer acknowledges and agrees that the Beta Products may not operate properly, be in final form or fully functional.

6.2 Trial Periods. If Customer is granted a “Free Trial,” Customer will be permitted to access and use the Services until the end of such trial period. Upon the termination of such trial period, Customer must select a Service plan and begin paying fees as set forth in this Agreement and/or Order. Trial periods shall be as agreed to in writing by the Parties. Any trial period or otherwise free account that has been inactive for six or more months is subject to termination and deletion of all content. “Free Trials” are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Customer acknowledges and agrees that “Free Trials” are not designed to support privacy and security regulations. “Free Trials” are not considered Services under this Agreement, however, all restrictions, Kevel’s reservation of rights, and Customer’s obligations concerning the Services shall apply equally to Customer’s use of the “Free Trial.”

6.3 Feedback. Customer may provide reasonable feedback to Kevel concerning the features and functionality of the Services, “Free Trial” and/or Beta Products. If Customer provides feedback to Kevel, all such feedback will be the sole and exclusive property of Kevel. Customer hereby irrevocably transfers and assigns to Kevel all of Customer’s right, title, and interest in and to all feedback including intellectual property rights therein. Customer will not earn or acquire any rights or licenses in the Services, “Free Trial” or Beta Products or in any Kevel intellectual property rights under this Agreement or Customer’s performance under this Agreement, even if Kevel incorporates any feedback into the Services and/or Beta Products.

7. Fees and Expenses

7.1 Payment Terms. Customer agrees to pay Kevel all fees associated with the Service as set forth in the Order. Unless otherwise set forth in the Order, the following payment terms shall apply: (i) Base fees for the first month are due upon the Effective Date; (ii) Subsequent fees will be invoiced, in arrears, within five (5) days after the end of each 30 day period during the term. If credit card payments are specified on the Order, Customer authorizes its credit card to be charged by Kevel for the invoiced amount at the time of invoice. If Customer is not paying by credit card, then Customer agrees to pay the invoiced amount within thirty (30) days of receipt. Kevel reserves the right to increase its fees prior to the start of any Renewal Term, provided Kevel gives Customer notice of such fee increase at least 30 days prior to the expiration of the then-current term. All payments under the Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one percent (1 %) per month, or (b) the maximum rate allowed by law.

7.2 Taxes. The fees do not include Taxes and similar assessments. For purposes of this Agreement, “Taxes” shall mean any sales, excise, value-added (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on Kevel’s income. Customer is responsible for paying all Taxes or other charges imposed by law with respect to the import, export, sale or use of the Service purchased hereunder. If Kevel has a legal obligation to pay or collect Taxes for which Customer is responsible under this section, Kevel will invoice Customer and Customer will pay that amount unless Customer provides Kevel with a valid exemption certificate authorized by the appropriate taxing authority. The parties will work together to avoid any withholding Tax if exemptions, or a reduced domestic or treaty withholding rate, are available. If Kevel qualifies for a Tax exemption, or a reduced treaty withholding rate, Kevel will provide Customer with reasonable documentary proof. Customer will notify Kevel of any withholding Taxes against payment to Kevel sufficiently in advance so as to allow Kevel to provide or apply for any eligible withholding tax exemptions prior to remittance. In the event that Customer must withhold any Taxes prior to remittance, Customer will (a) provide Kevel reasonable evidence that it has paid the relevant authority for the sum withheld or deducted and (b) gross-up the fees so the amount received by Kevel equals the amount Kevel would have received without any withholding Taxes. The parties agree to cooperate with each other in good faith on Tax matters.

7.3 Overdue Payments. If a payment becomes five (5) days or more overdue, Kevel reserves the right to suspend Customer access to the Service without liability to Customer, until payment is made in full. If any payment becomes ten (10) days or more overdue, Kevel may terminate the Agreement upon notice to Customer. Kevel has the right to change payment terms, including by requiring upfront payment for the Service, in its discretion based on Customer payment history and/or financial status.

7.4. Partner Transactions. If Customer has procured the Services through a Partner Transaction, then different terms regarding invoicing, payment and taxes may apply as specified between Customer and the Partner. Customer acknowledges that: (a) Kevel may share information with the Partner related to Customer’s use of Kevel’s Services; (b) the termination provisions contained herein will also apply if Customer’s Partner fails to pay applicable fees; and (c) Partner is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Kevel or in any way concerning the Services.

8. Confidentiality

8.1 Confidential Information. The Confidential Information of Kevel includes the Software, as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Software.

8.2 Not Confidential Information. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of the Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.

8.3 Obligations with Respect to Confidential Information. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, (b) to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (c) except as expressly authorized by the Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information as required by law; in such event, the receiving party shall (if permitted by law) inform the other party prior to any such required disclosure to allow the other party to seek a protective order or other limitations on such disclosure.

8.4 Injunctive Relief. Each party acknowledges and agrees that any violation of this Section 8 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that the disclosing party shall have at law or in equity.

8.5 Return or Destruction of Confidential Information. Upon termination or expiration of the Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.

9. Term and Termination

9.1 Term. The initial term of the Agreement (“Initial Term”) begins on the Effective Date of the Order. Subject to Customer providing Kevel with reasonably requested information, assistance and approvals, the Service will begin on the start date as specified in the Order (“Start Date”). If the Start Date is delayed by Customer, then the Start Date will be such later date as reasonably specified by Kevel. The Initial Term will continue for the term specified in the Order, beginning on the Start Date, unless terminated earlier as set forth herein. The Agreement and the Service shall automatically renew for terms equal to the Initial Term (each a “Renewal Term”) unless written notice of non-renewal is given by a party to the other party at least sixty (60) days prior to the expiration of the then-current term.

9.2 Termination. This Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Kevel may suspend or terminate Customer’s use of the Services at any time without prior notice: (a) in order to prevent damages to, or degradation of, Kevel’s network integrity or infrastructure; (b) if needed to comply with any law, regulation, court order, or other governmental request or order which requires immediate action; (c) in order to otherwise protect Kevel from potential legal liability; (d) if Customer does not provide a valid payment method or fails to pay fees in accordance with this Agreement; (e) if the Customer violates the usage restrictions contained herein; or (f) if the Customer is found to use abusive or harassing language toward any of Kevel’s employees, contractors, or Affiliates.

9.3 Survival. The terms in Sections 4, 5.5, 7, 8, 9.3, 10, 11, 12, 13, 14, and 15 herein shall survive any termination of the Agreement. In addition, upon termination of this Agreement for any reason Customer shall promptly pay Kevel all outstanding amounts due to Kevel under the Agreement.

10. Warranties; Disclaimers

Customer and Kevel each warrant that they have full authority to enter into the Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder. In addition, Kevel warrants that the Service will substantially conform to the written or electronic documentation provided by Kevel in connection with the Services. In the event of a breach of this warranty by Kevel, as Customer’s sole and exclusive remedy, Kevel will, at its expense, use commercially reasonable efforts to cause the Services to conform.

Customer represents and warrants that all Customer Data: (i) is owned by Customer, or Customer has the full right to provide the Customer Data to Kevel; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. Customer further represents and warrants that its use of Customer Data on the website or platform or in connection with the Services is not in breach of any covenant or obligation of confidentiality that Customer has to any other person or entity. Customer is solely responsible for the Customer Data, and acknowledges that Kevel has no responsibility or intent to review or monitor any Customer Data.

Customer shall be solely responsible for its use of the Service, and, acknowledge and agrees that the Services are strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.

The Services may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems (“Third-Party Materials”). Customer’s use and access of these features and functionality is subject to the terms published or otherwise made available by the third-party providers of Third-Party Materials. Kevel has no responsibility for any Third-Party Materials, and Customer irrevocably waives any claim against Kevel with respect to such Third-Party Materials.

Kevel does not warrant that the Services will operate without interruption or be error-free, or that the Service will be totally secure. To the extent that data is being transmitted over the Internet hereunder, Customer acknowledges that Kevel has no control over the functioning of the Internet, and Kevel makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, KEVEL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.

11. Indemnification

11.1 Customer Indemnification. Customer, at its own expense, shall indemnify, defend and hold Kevel and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorneys’ fees) arising out of or relating to Customer’s use of the Services, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) Customer’s breach of any representations, warranties, or covenants in the Agreement, (b) Customer’s compliance with applicable laws and regulations, and (c) the Customer Data. Kevel shall provide Customer with prompt written notice of any such claim.

11.2 Kevel Indemnification. Kevel, at its own expense, shall indemnify, defend and hold Customer and Customer officers, directors, owners, employees, and affiliates (collectively, including Customer, the “Customer Indemnitees”) harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorneys’ fees) in each case to the extent any of the foregoing are incurred as a result of a claim, action or proceeding brought against a Customer Indemnitee by a third party alleging that the Service (excluding the Customer Data) or Customer’s use of the Service in accordance with its documentation and this Agreement infringe, misappropriate or otherwise violate the U.S. patent, copyright, trademark, trade secret or other intellectual property right of such third party (each, an “Infringement Claim”). Customer must immediately notify Kevel of any Infringement Claim, allow Kevel to control the defense and settlement of the claim, and provide reasonable cooperation to Kevel (at Kevel’s expense) in the defense of the claim. Kevel will not enter into a settlement of any such claim in a manner that imposes any liability on Customer without Customer prior written consent (not to be unreasonably withheld).

If the Service is determined by a court of competent jurisdiction to be infringing, or in Kevel’s opinion is likely to be the subject of an Infringement Claim, Kevel may, at its option and its sole cost and expense: (i) obtain the right for Customer to continue to use the Service as contemplated by this Agreement, (ii) modify or replace the Service to make the Service (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, Kevel may terminate this Agreement and require Customer to cease using the Service upon written notice and promptly refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
THIS SECTION 11.2 SETS FORTH CUSTOMER’S SOLE REMEDIES AND KEVEL'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICE) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12. Liability

The limit of Kevel’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to Customer or to any third party concerning performance or non-performance by Kevel, or in any manner related to the Agreement or the Service, for any and all claims shall not exceed in the aggregate the fees paid by Customer to Kevel hereunder with respect to the Services at issue (excluding any fees or charges relating to approved expenses incurred by Kevel on behalf of Customer) during the three (3) months prior to the date that the relevant cause of action accrued.

In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence.

The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and Kevel’s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.

13. Dispute Resolution

13.1 Escalation. In case of a dispute, either party may call for escalation by written notice to the other. Within 5 business days of such notice, each party shall designate an executive with authority to make commitments that would resolve the dispute (a “Senior Manager”). The parties’ Senior Managers shall meet in person or by video conference (“Dispute Conference”) within 15 business days of their designation and shall negotiate in good faith to resolve the dispute. Except to the extent necessary to prevent irreparable harm or to preserve rights or remedies, neither party shall submit to mediation until 10 business days following the Dispute Conference.
13.2 Mediation. If the parties cannot themselves resolve a dispute arising out of or related to this Agreement, they shall attempt to resolve such dispute through mediation under the auspices of the American Arbitration Association (“AAA”), in Wilmington, Delaware (USA), with the parties sharing equally the costs of mediation. Except to the extent necessary to prevent irreparable harm or to preserve rights or remedies, neither party shall submit to arbitration until 30 days after the first mediation conference, unless the other party has materially breached its obligations in the preceding sentence. Any requirement in this Agreement to pay or reimburse costs or attorneys’ fees includes, without limitation, a requirement to reimburse costs and fees related to such mediation.

13.2 Arbitration. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations or mediation shall be finally settled by binding arbitration conducted in the English language in Wilmington, Delaware (USA), under the commercial arbitration rules of the AAA. The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.

13.3 Governing Law. The Agreement shall be interpreted, construed, and governed by the laws of the State of Delaware, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.

14. Miscellaneous

14.1 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, pandemic, severe weather or other act of God, failure of telecommunication or internet service providers.

14.2 Entire Agreement. The Agreement (including the Order and any attachments thereto specifically agreed by the parties) constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of the Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right.

14.3 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

14.4 Severability. Every provision of the Agreement is intended to be severable. If any section of the Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from the Agreement and the rest of the Agreement will remain in full force and effect.

14.5 Independent Contractors. The parties are and intend to be independent contractors with respect to the services contemplated hereunder and so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. Kevel agrees that neither it, its employees nor its contractors shall be considered as having an employee status with Customer. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created. There are no intended third-party beneficiaries under the Agreement.

14.6 Export Control. Customer agrees to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). Customer warrants that it is not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). Customer will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to Kevel's business or related technical data or any direct product thereof to any Restricted Person.

14.7 Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested.

15. Agreement and Amendments

By executing an Order, Customer represents that it is 18 years old or older, is authorized to bind any legal entity that Customer represents, and agrees to all of the terms in the Agreement. Customer may print and keep a copy of the Agreement.

Kevel may reasonably modify or change these Terms of Service, including all Exhibits, at any time by posting the changes to the Site. Customer continued use of the Site or Service following the posting of such changes constitutes acceptance of those changes. Kevel will use reasonable commercial efforts to provide notice of material changes to Customer.