Terms & Conditions

Please read these terms and conditions (“Terms and Conditions”) carefully before accessing and using the services offered by Kellar Media a Delaware limited liability company (“Kellar” “we,” “us,” or “our”). These Terms and Conditions set forth the legally binding terms and conditions for your (“Customer,” “you,” or “your”) use of our media and marketing services (the “Services”), unless you have executed a separate agreement governing the access and use of the Services. By using our Services, or otherwise accessing any part of the Services, you agree that you have read, understood, and agree to be bound by these Terms and Conditions. These Terms and Conditions are hereby incorporated by reference into each insertion order (an “IO”), provided that the IO expressly references these Terms and Conditions and is duly executed by a representative of each party. These Terms and Conditions, each IO, and our Privacy Policy (located at www.kellarmedia.com/ (the “Privacy Policy”), form the entire agreement between the parties relating to the Services (this “Agreement”).

Should you desire to engage Kellar Media to provide creative ad-building services (“Creative Services”), the provision of such services shall be governed by a separate Creative Services and Licensing Agreement.

In the event Customer is an agency entering into this Agreement on behalf of itself and its advertiser customer(s), and unless as otherwise expressly stated in this Agreement, all references to “Customer” in these Terms and Conditions shall mean: (i) the agency that has registered for an account with Kellar Media to receive the Services and (ii) the agency’s advertiser customer(s) whose marketing campaigns are performed by using the Services.

  1. Insertion Order

When Customer and Kellar Media duly execute an IO which expressly references these Terms and Conditions, then these Terms and Conditions will apply to the IO. Except as otherwise expressly set forth in the main body of these Terms and Conditions or in an IO, in the event of a conflict, ambiguity or inconsistency between the provisions in the body of these Terms and Conditions and any IO, the provisions in the applicable IO shall prevail, but solely with respect to the Services reflected in such IO.

  1. Services and License

2.1. Platform Access. Kellar Media offers the Services through a proprietary digital marketing platform technology (the “Platform”). The Platform features: (i) an audience management system; (ii) a campaign management system; and (iii) an analytics system. Subject to this Agreement, Kellar Media hereby grants Customer a limited, revocable, non-exclusive, non-transferable (without the right to sublicense) license to access the Platform during the term of this Agreement for Customer’s internal business purposes. All rights not expressly granted herein to Customer are reserved to Kellar Media, its affiliates, service providers, and licensors. Customer will be given access to the Platform once both parties execute this Agreement and Customer pays the Fees set forth in an applicable IO (as further described in Section 5).

2.2. Platform Account. To access and use the Platform you will be provided an account by Kellar Media (“Account”). Any passwords used for an Account on the Platform are for your use, and your authorized representative(s) only.

2.3. Access Credentials. Customer is solely responsible for keeping Customer’s access credentials for the Platform secure and confidential, and Customer is responsible for all use of the Platform through Customer’s access credentials, including any unauthorized use. If Customer becomes aware of any unauthorized use of Customer’s Account, Customer must notify Kellar Media immediately in writing. Kellar Media is not liable for any loss or damage arising from the unauthorized access to or use of Customer’s Account. Upon termination of this Agreement, Kellar Media may disable and/or delete Customer’s Account with or without notice to Customer.

2.4. Access Restrictions. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Platform available to any third party; (ii) use the Platform in the operation of a service bureau or similar service for third parties; (iii) modify, copy, or create derivative works based on the Platform; (iv) disassemble, reverse engineer, decompile, or otherwise seek access to the source code of the Platform; (v) access the Platform in order to build a competitive product or service; (vi) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (viii) attempt to gain unauthorized access to the Platform or its related systems or networks; (ix) remove from the Platform any language or designation indicating the confidential nature thereof or the proprietary rights of Kellar Media, its affiliates, service providers, or licensors; or (x) use the Platform in any manner not expressly permitted under this Agreement.

  1. Customer Content and Customer Data.

3.1. Customer Content. “Customer Content” means all materials uploaded to the Platform or otherwise provided or made accessible to Kellar Media, by or on behalf of Customer, including but not limited to: (i) information and materials regarding Customer’s products and services; (ii) Customer’s ads and other creative materials; and (iii) Customer’s marketing and promotional text, content, videos, logos, images, and fonts. Customer shall be solely responsible for all Customer Content and ensure that such Customer Content does not contain any illegal, offensive, indecent, inappropriate, or objectionable conduct or content. Customer grants to Kellar Media and its affiliates, licensors, contractors, agents, and service providers a limited, revocable, non-exclusive license to reproduce, use, and distribute the Customer Content as necessary to provide the Services to Customer.

3.2. Customer Data. “Customer Data” means all data uploaded to the Platform or otherwise collected, stored, received, provided or made accessible to Kellar Media by or on behalf of Customer, including but not limited to data about visitors to Customer’s website(s), such as: (i) information about visitors to Customer’s website(s) and the actions taken on such website(s), cookie IDs, IP addresses, other IDs, visits to certain parts of the website(s), browsing history, and other behavioral data; (ii) email addresses sent to Kellar Media by Customer; and (iii) any data and other information relating to Customer’s use of the Services, including data relating to the performance metrics and other measurements of Customer’s ads and other marketing materials (“Usage Data”). Customer shall ensure that Customer’s collection, storage, use, and transfer of all Customer Data that constitutes personal information complies at all times with all applicable data privacy, protection and security laws, including without limitation, and as may be amended from time to time: (A) the California Consumer Privacy Act of 2018 (“CCPA”); (B) the Virginia Consumer Data Protection Act (“VCDPA”); (C) the Colorado Privacy Act (“CPA”); (D) the Connecticut Data Privacy Act (“CTDPA”); (E) the Utah Consumer Privacy Act (“UCPA”); (F) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; (G) the Children’s Online Privacy Protection Act of 1998; (H) any guidance, guidelines, approved codes of conduct, codes of practice, or approved certification mechanisms issued by any relevant regulator; (I) any laws or regulations implementing, or any judicial, regulatory or administrative interpretation of, any of the above; and (J) any other applicable laws, rules, and regulations, including, without limitation, industry self-regulations such as the Network Advertising Initiative (NAI) Code of Conduct and guidance, and Self-Regulatory Principles and guidance of the Digital Advertising Alliance (DAA) (subsections (A) to (J) collectively referred to as “Privacy Laws”)

3.3. Kellar Media Use of Customer Content and Usage Data. Kellar Media may employ machine learning applications including deep learning and natural language processing to train the Platform to optimize ad campaigns based on data and other information relating to Customer’s use of the Services, including Customer Content and Usage Data. Customer hereby grants to Kellar Media a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free license, to use, copy, process, and reproduce, Customer Content and Usage Data to provide and improve the Services, provided that no individual element of the Customer Content or Usage Data, alone or in combination with any other data element, can be used to identify Customer or any individual. Without limiting the foregoing, Customer agrees Kellar Media is permitted to share, disclose, or otherwise make available all analyses regarding the Usage Data and the performance of the Customer Content with third parties provided that such analyses does not, alone or in combination with any other data element, identify Customer or any individual.

3.4. Consent. In jurisdictions that require informed consent for the collection, access to or sharing of information, or lawful use of cookies or non-cookie technology, on an individual’s device, Customer shall ensure, in a verifiable manner, that Customer has obtained the necessary consent before Customer enables Kellar Media to collect or access information from, or use cookies or non-cookie technology on, each individual’s device who is subject to the foregoing consent requirement.

3.5. Data Restrictions. Customer shall not provide or make available to Kellar Media, directly or indirectly, any Customer Data, whether through the Platform or otherwise, that: (i) contains sensitive or special data (including, without limitation, data that is used by Customer to make decisions related to an individual’s eligibility for employment, health care, credit or insurance) regulated by applicable Privacy Laws about any individuals, including end users, or (ii) is collected from sites, platforms, or channels directed to or likely to be accessed by individuals under the age of eighteen (18) or from individuals whose age Customer knows or should know to be under the age of 18.

3.6. Privacy Policy. Customer shall post a public facing privacy policy on its website(s) where any Customer Data or other data about website visitors and users is collected and in any other circumstances where it is required by applicable Privacy Laws, and the presentation, posting and content of such privacy policies shall always comply with applicable Privacy Laws. Without limiting the foregoing, such privacy policies shall clearly disclose: (i) how Customer collects, uses, stores and shares data (including but not limited to email addresses, IP addresses and/or cookie IDs); (ii) that Customer uses cookie and non-cookie technology to serve interest-based advertising across the user’s devices; (iii) the use of such technology by third party marketing companies for that purpose; (iv) mechanisms available for individuals to opt out of such data collection; and (v) mechanisms available for individuals to opt out of interest-based advertising, including but not limited to, using the following links: http://optout.networkadvertising.org/ and http://www.aboutads.info/choices. Customer shall comply with its public facing privacy policy and all other public statements regarding the privacy or security of data collected about individuals.

3.7. Security Measures. To the extent that Kellar Media, processes (as those terms is defined under applicable Privacy Laws) any Customer Data, it will implement appropriate technical and organizational measures designed to provide a level of security appropriate to the risk and establish a clear allocation of the responsibilities between Kellar Media and Customer to implement such measures. Any data security vulnerabilities which are detected by Kellar Media or communicated by Customer to Kellar Media will be acknowledged as soon as is reasonably practicable under the circumstances.

  1. Term and Termination.

4.1. Term. If (i) Customer and Kellar Media have duly executed an IO that states the term, then the term of this Agreement is for the term set forth in such IO, or (ii) if the IO does not state the term, then the term of this Agreement shall be for as long as Kellar Media makes available, and Customer makes use of, any aspect of the Platform or Services (in each (i) or (ii), the “Term”).

4.2. Termination. Either party may terminate this Agreement or any IO, or other document which is part of this Agreement, upon written notice (email sufficing) forty-eight (48) hours prior to such termination.

4.3. Effect of Termination. Upon termination or expiration of this Agreement or upon Customer’s suspension or termination of the Services through Customer’s Account on the Platform: (i) all licenses and rights granted to Customer hereunder shall terminate immediately and Customer shall cease using the Platform and Services; (ii) Customer will pay any unpaid Fees payable to Kellar Media related to Services provided through the date of termination under this Agreement or an applicable IO; (iii) each party shall destroy all copies of Confidential Information of the other party; and (iv) any and all IOs executed pursuant to this Agreement shall automatically terminate. If Customer has pre-paid monies to Kellar Media for advertising spend that has not been utilized by Kellar Media prior to termination of this Agreement or any IO, such pre-paid monies for advertising spend shall be refunded to Customer, less any earned Fees related thereto.

4.4. Right to Suspend. Notwithstanding any other provision in this Agreement, Kellar Media shall be entitled, without liability to Customer, to immediately suspend, terminate, or limit Customer’s access to the Platform or Services, at any time, in its sole and absolute discretion, with or without cause, and Kellar Media will use commercially reasonable efforts to provide written notice to Customer (email sufficing) prior to any suspension, termination, or limitation on Customer’s access to the Platform or Services. Without limiting the foregoing, Kellar Media may immediately suspend, terminate, or limit Customer’s access to, the Platform or Services without notice in the event that: (i) Kellar Media determines that the Platform or Services, are being used in violation of any applicable law, rule, or regulation; (ii) Kellar Media determines Customer has breached any term, condition, covenant, representation or warranty under this Agreement; (iii) Kellar Media determines that the Platform or Services are being used in an unauthorized or fraudulent manner; (iv) Kellar Media determines that Customer’s use of the Platform or Services adversely affects Kellar Media, or its affiliates, service providers, and licensors’, equipment or service to others; (v) Kellar Media receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or otherwise violate any law or the rights of a thirty party; (vi) Kellar Media is prohibited by an order of a court or other governmental agency from providing the Platform or Services; or (vii) there is any other event which Kellar Media determines, in its sole discretion: (a) may create a risk to the Platform or Services, (b) harms or is likely to harm Kellar Media s business reputation, or (c) is likely to adversely affect any other customers of Kellar Media if the Platform or Services were not suspended. Without limiting the generality of Section 10, Kellar Media shall have no liability for any damages, liabilities, or losses as a result of any suspension, limitation, or termination of Customer’s right to use the Platform or Services in accordance with this Agreement.

  1. Fees and Payment; Taxes.

5.1. Fees and Payment. Except as otherwise set forth in any applicable IO, Customer shall pay all fees (“Fees”) set forth in any applicable IO prior to the performance of any Services by Kellar Media. Customer shall pay all amounts due to Kellar Media under this Agreement, or any applicable IO, by credit card, debit card or such other payment method authorized by Kellar Media in writing.

5.2. Taxes. The Fees described in this Agreement and in any applicable IO are exclusive of all taxes, including national, state, or provincial and local use, sales, value-added, property, and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Kellar Media’s net income) unless Customer has provided Kellar Media with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Kellar Media on account thereof.

  1. Intellectual Property Rights

6.1. Kellar Media Intellectual Property. As between the parties, Kellar Media (and its service providers and licensors, where applicable) exclusively own all rights in and to the Platform and Services or any other software or materials made available to Customer under this Agreement, including any intellectual property rights arising from the performance of the Services, and any modifications, improvements, or derivatives of the foregoing, and all intellectual property rights relating to any of the foregoing.

6.2. Feedback. Customer grants to Kellar Media a perpetual, non-exclusive license to use, modify, distribute, and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations, or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Platform or Services.

6.3. Customer Intellectual Property. Customer shall retain ownership of the Customer Content, Customer Data, and any intellectual property rights with respect to the foregoing.

  1. Confidentiality.

7.1. Confidential Information. “Confidential Information” of a party means all confidential and proprietary data and information of the disclosing party that is submitted to or learned by the receiving party in connection with this Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs, and financial information. Without limiting the foregoing, the following shall be deemed Confidential Information of Kellar Media the Platform, Services, and the terms of any IO. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of this Agreement. Each party may disclose the Confidential Information of the other party only to its employees, officers, directors, shareholders members, managers, consultants, contractors, service providers, and agents (collectively, “Representatives”) who need to know such Confidential Information for the purposes of this Agreement. Each party will advise its Representatives of their responsibilities under this Agreement and be responsible for any breach of this Section 7 by its Representatives. For purposes of clarity and without limiting the foregoing, Kellar Media shall have the right to disclose Customer’s Confidential Information to its subcontractors, service providers, licensors, and other third-party strategic partners who are providing Services in connection with this Agreement, provided that the subcontractors, service providers, licensors, and other third-party strategic partners are bound by confidentiality obligations at least as restrictive as the obligations in this Section 7. Confidential Information shall not include information that is: (i) or becomes publicly available (other than by disclosure by the receiving party in violation of this Agreement); (ii) previously known to the receiving party without an obligation of confidentiality; (iii) independently developed by the receiving party outside this Agreement; or (iv) rightfully obtained by the receiving party from third parties without an obligation of confidentiality. The confidentiality obligations of each party in this Section 7 shall survive for one (1) year after termination of this Agreement, and to the extent that the Confidential Information disclosed by the disclosing party under this Agreement contains trade secret information, such Confidential Information will be subject to the protection of this Agreement for the longest period permitted under any applicable law.

7.2. Exclusions/Remedies. The obligations in this Section 7 do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order, if legally permissible, so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section 7 or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in a writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section 7, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

7.3. NDA Superseded. The parties agree that this Section 7 replaces any non-disclosure or confidentiality agreement previously entered between the parties (or their affiliates, as applicable), and such non-disclosure or confidentiality agreement is automatically terminated as of (i) Customer’s acceptance of this Agreement by executing an IO which references these Terms and Conditions or (ii) execution of this Agreement by both parties, as applicable.

  1. Representations and Warranties.

8.1. Kellar Media Representations and Warranties. Kellar Media represents and warrants to Customer that Kellar Media has the necessary authority to enter into this Agreement and carry out its obligations hereunder.

8.2. Customer Representations and Warranties. Customer represents, warrants, and covenants to Kellar Media that: (i) Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (ii) Customer is the owner of or is licensed to use and transfer the Customer Content to the Platform or otherwise provide such Customer Content to Kellar Media and all subject matter contained therein; (iii) all Customer Data provided to Kellar Media pursuant to this Agreement was collected in compliance with applicable Privacy Laws, that Customer has provided notice to individuals regarding its sharing of information with Kellar Media as required by applicable Privacy Laws, and that Kellar Media’s use, storage, or disclosure of Customer Data in accordance with this Agreement shall be in compliance with such applicable Privacy Laws; (iv) the Customer Content does not infringe or misappropriate the copyright, patent, trademark, trade secret, or other intellectual property or other proprietary rights of any third party; and (v) Customer will at all times comply with all applicable laws, rules, and regulations.

8.3. Disclaimer. THE PLATFORM AND SERVICES PROVIDED BY KELLAR MEDIA TO CUSTOMER AND THE RESULTS THEREOF ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND THE WARRANTIES STATED IN SECTIONS 8.1 AND 8.2 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY KELLAR MEDIA AND CUSTOMER, RESPECTIVELY. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, AND KELLAR MEDIA HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, SERVICES, AND ANY OTHER MATERIALS OR SOFTWARE PROVIDED BY KELLAR MEDIA HEREUNDER, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND KELLAR MEDIA DOES NOT WARRANT THAT THE PLATFORM, SERVICES, AND ANY OTHER MATERIALS OR SOFTWARE PROVIDED BY KELLAR MEDIA HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, SECURE, OR ERROR-FREE.

  1. Indemnification.

9.1. Kellar Media Indemnification. Subject to the limitations of liability in Section 10, Kellar Media will defend Customer and its parent, subsidiaries, and affiliates and their respective directors, employees, and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer Indemnitee by a third party alleging that the Platform or Services, as provided by Kellar Media to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and Kellar Media shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Kellar Media in a settlement with respect to such claims. Kellar Media shall have no obligation to defend or pay damages to Customer for claims or losses arising from: Customer Content; Customer’s failure to comply with applicable Privacy Laws in relation to Customer Data; Customer’s breach of this Agreement; the combination of the Platform or Services with other services, products, or content; any modifications to the Platform or Services made by any entity other than Kellar Media; or Customer’s use of the Platform or Services or any portion thereof after Kellar Media has suspended such use or terminated this Agreement or such portion in accordance with this Agreement. If the Platform or Services become or may become the subject of a claim of infringement, Kellar Media may: (i) obtain the right for Customer to continue use of the Platform or Services; (ii) replace or provide a work-around in order to allow for Customer’s continued use of the Platform or Services; or (iii) if Kellar Media cannot effect (i) or (ii) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing Platform or Service. The provisions set forth in this Section 9.1 shall be Kellar Media s sole obligation, and Customer’s sole remedy, for any violation of third-party rights by the Platform or Services.

9.2. Customer Indemnification. Customer will defend Kellar Media and its parent, subsidiaries and affiliates and their respective directors, members, managers, employees and agents (collectively, the “Kellar Media Indemnitees”) from and against any claim made or brought against any Kellar Media Indemnitee arising from or relating to any third party claims or actions based on: (i) Customer’s gross negligence or willful misconduct that arises from or is related, directly or indirectly, to this Agreement; (ii) Customer’s breach of any term, condition, covenant, representation, or warranty under this Agreement, including but not limited to, any claims arising out of or related to consent, collection, processing, transfers, and/or use of Customer Data; (iii) use of the Platform or Services in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; or (iv) any allegation that the Customer Content violates any applicable laws, including but not limited to Privacy Laws; or (v) any allegation that the Customer Content infringes any patent, copyright, trademark, or other proprietary right, or misappropriates any trade secret, of any third party. Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.

9.3. Notification. The indemnified party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.

  1. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KELLAR MEDIA BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF KELLAR MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF KELLAR MEDIA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY CUSTOMER TO KELLAR MEDIA IN THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER. CUSTOMER ACKNOWLEDGES THAT KELLAR MEDIA HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

  1. Governing Law; Jurisdiction and Venue.

11.1. Governing Law. This Agreement, and any claims arising out of or related, directly or indirectly, to this Agreement, shall be governed by the laws of the State of Delaware excluding its conflicts of law rules, regardless of Customer’s state or country of origin or where Customer accesses the Platform or Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11.2. Jurisdiction and Venue. All actions arising from or relating to this Agreement shall be commenced and prosecuted in the United States District Court for the District of Delaware. The Parties waive any objection to jurisdiction and venue of any action instituted against any party as provided herein and agree not to assert any defense based on lack of jurisdiction or venue.

  1. General Provisions

12.1. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay Fees) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of a god, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, or insurrections.

12.2. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created because of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

12.3. Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Kellar Media s prior written consent (not to be unreasonably withheld). Kellar Media may freely transfer and assign this Agreement or any of its rights and obligations hereunder. Any assignment in contravention of this provision will be null and void. The parties’ rights and obligations under this Agreement will be binding on and will inure to the benefit of all permitted assignees and successors in interest.

12.4. Entire Agreement; Amendments and Modifications; Waivers. This Agreement, including all IOs that are incorporated herein by reference, contain the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto are merged herein and superseded hereby (including any provision contained in any invoice, purchase order or other documentation that is different from or in addition to these Terms and Conditions or any applicable IO). The provisions of any IO may not be amended by either party except by an agreement in writing signed by authorized representatives of both parties referencing the applicable IO and stating their intention to amend such IO. Kellar Media may modify these Terms and Conditions and/or its Privacy Policy from time to time, and any modifications become effective upon Customer’s first access to or use of the Platform or Services after such modification. If Kellar Media makes significant changes to these Terms and Conditions and/or its Privacy Policy, Kellar Media will notify Customer by providing notice via the Platform or by sending an email, indicating that these Terms and Conditions and/or its Privacy Policy have been changed. Customer’s continued use of the Platform or Services after the modifications have become effective will be deemed Customer’s conclusive acceptance of and consent to the modified Terms and Conditions and/or Privacy Policy. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion.

12.5.

  • Notices. Except as may be otherwise set forth herein, all notices, requests, demands, and other communications hereunder will be in writing (including without limitation, by email if delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address:

If to Customer :

To the name and address contained in any applicable IO or on the signature page of this Agreement, or to the email address provided upon registration for the Platform.

If to Kellar Media:

Kellar Media LLC

Attn: Business Operations Department

Email: contact@kellarmedia.com

Such addresses may be changed by notice given by one party to the other pursuant to this Section 12.5.

12.6. Kellar Media Use of Customer Name and Logo. Notwithstanding the foregoing, Customer agrees Kellar Media is permitted to disclose on its website or otherwise that Customer is one of Kellar Media s customers and Customer agrees to allow Kellar Media a limited right to use Customer’s logo and name on Kellar Media’s website and in its marketing materials.

12.7. Severability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.

12.8. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, but all of which together will be considered one and the same agreement. Electronic signatures (e.g., via DocuSign) are permissible and shall have the same force and effect as original (i.e., “wet ink”) signatures for all purposes.

12.9. Survival. The terms and conditions of Sections 4.3 (Effect of Termination), 6 (Intellectual Property Rights), 7 (Confidentiality) as specified therein, 8 (Representations and Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11 (Governing Law; Jurisdiction and Venue), and 12 (General Provisions) are expressly intended to survive any expiration or termination of this Agreement.