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 legal@kevel.co 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

• Active Resources means (i) the number of active Ads, meaning Ads that are in a flight and campaign that is active, not archived, and has not yet reached its end date, plus (ii) the number of active sites.
• Ads means the Customer’s advertisements for products and/or services (including house ads and third-party ads) displayed using the Services.
• Ad Decision Request (ADR) means any query that is made by Customer to Kevel to fill an ad placement through the Services.
• 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 the Customer to make lockstep changes in order for the consuming code to continue to work properly.
• Confidential Information means all information (whether written, oral or in some other form) disclosed to or obtained by one Party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement) and which information is marked as being confidential or might reasonably be assumed to be confidential.
• Event means any metric measured by Kevel in relation to the Ads, including impressions, clicks, conversions, or other custom items unique to Customer’s Ads.
• Fees means the fees payable by the Customer to Kevel in consideration of the Services, as specified in each Order Form.
• Highly Sensitive Data means certain sensitive data including payment card information, account numbers, or government-issued identification numbers.
• Intellectual Property Rights means all common law or statutory rights associated with industrial or intellectual property.
• Order means the ordering terms presented by Kevel to the Customer describing the Services.
• Self-Serve UI means the application programming interface designed and built by Kevel which permits the Customer to access the Software directly.
• Service(s) means the provision by Kevel to Customer of online ad serving and related administrative service.
• Service Offerings means the Internet websites, WAP portals, and other internet-enabled services associated with the URLs owned or controlled by Customer and/or Customer’s Affiliated Entities.
• Site means the web site at www.kevel.co, www.kevel.com, and/or such other web site or sites that Kevel communicates to Customer.
• Software means Kevel’s proprietary software used by Kevel to deliver the Services.
• 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 linked to the Services.

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. Customer may use and access the Services and Software solely through the platform and through the API.

2.2 Limitations

Kevel will not be responsible or liable for any failure in the Services arising from (a) Systems of the Customer, (b) network or telecommunications issues, (c) Customer’s negligent acts, (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 and for maintaining the security and confidentiality of all usernames and passwords associated with Customer’s account.

2.4 Modification, Substitution, Discontinued Services

Kevel may from time to time modify the Services or add, update, upgrade, or change features or functionality of the Services at its discretion.

2.5 Third Party Use

The Services may be accessed only by Authorized Users who have a need to access the Services, and Customer is responsible for their compliance.

2.6 Systems

Customer shall be responsible for obtaining and operating all Systems needed to use the Services.

2.7 User Information

Customer agrees that all user information provided to Kevel will be accurate and complete.

2.8 Partner Orders

Customer may procure the Services directly from a Kevel-authorized reseller pursuant to a separate agreement.

2.9 Order

Each Order shall form part of this Agreement and shall not form a separate contract to it.

2.10 Purchased Access to Self-Serve APIs

Customer and Kevel shall execute a separate API Licensing Agreement if they agree to license the Self-Serve UI APIs.

3. Proprietary Rights; Customer Obligations

3.1 Grant of License

Kevel grants to Customer a revocable, non-exclusive, non-sublicensable, non-transferable license to use the Services during the Term.

3.2 Additional Restrictions

Customer agrees not to use the Services for unlawful activities or in a way that disrupts the Services.

3.3 Compliance with Law

Customer represents and warrants it will comply with all applicable laws in using the Services.

4. Intellectual Property

4.1 Customer Obligations

Customer agrees Kevel and its licensors own all intellectual property rights in the Service, Software, and Site.

4.2 Retention of Rights

Customer retains ownership of all rights in the content provided to Kevel in connection with its use of the Site and Services.

4.3 Data Use

Kevel may derive and compile certain aggregated information from Customer’s usage of the Services.

4.4 Trademark

Customer acknowledges Kevel’s trademarks will be included on the Services and associated documentation.

4.5 License Grant

Kevel shall have a license to use any suggestions or feedback provided by Customer regarding the Service.

5. API Terms

5.1 Use of API

Kevel provides the API as part of the Service allowing Customer to automate certain tasks.

5.2 Limits

Kevel may set and update limits on Customer usage of the API and Active Resources.

5.3 Usage Monitoring

Kevel reserves the right to monitor Customer API usage to verify compliance.

5.4 Update of API

Kevel may update the API and will provide reasonable notice to Customer of any significant changes.

5.5 Customer Scripts

Customer is responsible for the use of scripts written with the API.

6. Unsupported Services

6.1 Beta Products

Beta Products are products and features currently in development which Kevel may make available for evaluation purposes.

6.2 Trial Periods

If Customer is granted a “Free Trial,” they may use the Services until the end of that trial period.

6.3 Feedback

Customer may provide feedback to Kevel regarding the Services or Beta Products.

7. Fees and Expenses

7.1 Payment Terms

Customer agrees to pay all Fees associated with the Service as set forth in the Order.

7.2 Taxes

The Fees do not include Taxes and similar assessments, which are the Customer's responsibility.

7.3 Overdue Payments

If a payment is overdue, Kevel may suspend Customer access to the Service until full payment is made.

7.4 Partner Transactions

Different terms regarding invoicing may apply if Services are procured via Partner Transactions.

8. Confidentiality

8.1 Confidential Information

The Confidential Information of Kevel includes the Software and related materials.

8.2 Not Confidential Information

Confidential Information does not include information that becomes publicly available without breach.

8.3 Obligations with Respect to Confidential Information

A Receiving Party agrees to hold the Disclosing Party's Confidential Information in confidence.

8.4 Injunctive Relief

Each Party acknowledges that any violation of confidentiality may cause irreparable injury.

8.5 Return or Destruction of Confidential Information

Upon termination, the Receiving Party will return or destroy all Confidential Information.

9. Term and Termination

9.1 Term

The Initial Term begins on the start date specified in the Order.

9.2 Termination

This Agreement may be terminated by either Party under specified conditions.

9.3 Survival

Certain sections shall survive any termination of the Agreement.

10. Warranties; Disclaimers

Each Party warrants that it has authority to enter into the Agreement.

11. Indemnification

11.1 Customer Indemnification

Customer agrees to indemnify Kevel against liabilities arising from Customer’s use of the Services.

11.2 Kevel Indemnification

Kevel agrees to indemnify Customer against liabilities arising from claims regarding the Service.

12. Liability

The limit of Kevel’s liability concerning performance or non-performance shall not exceed the fees paid by Customer.

13. Dispute Resolution

13.1 Escalation

Either Party may escalate disputes to Senior Managers for resolution.

13.2 Mediation

If disputes cannot be resolved, mediation will be attempted.

13.3 Arbitration

Unresolved disputes shall be settled by binding arbitration.

14. Miscellaneous

14.1 Force Majeure

Neither Party shall be liable for any failure due to causes beyond their control.

14.2 Entire Agreement

This Agreement constitutes the entire understanding of the Parties with respect to its subject matter.

14.3 Assignment

Neither Party may assign its rights without the other Party’s written consent.

14.4 Severability

If any provision is found to be invalid, the rest shall remain in full force.

14.5 Independent Contractors

The Parties are independent contractors with respect to the Agreement.

14.6 Export Control

Customer agrees to comply with all relevant export laws and regulations.

14.7 Notices

Notices shall be sent to specified addresses and deemed received upon delivery.

14.8 Publicity

Kevel reserves the right to publicize the Customer’s use of the Services.

15. Agreement and Amendments

By executing an Order, Customer agrees to all terms in the Agreement. Kevel may modify these Terms by posting changes.