Katalys Platform Services Agreement

This Katalys Platform Services Agreement (“Agreement”) is made as of the Effective Date set forth below, by and between Katalys LLC, a Delaware limited liability company(“Katalys”) and the “Customer” set forth below, and sets forth the terms and conditions under which Katalys shall provide the Customer with access to the Katalys “Platform”, which encompasses those Katalys “Products” set forth below and defined more fully within the Platform Services Agreement. Certain capitalized terms used herein are defined in, the Katalys Privacy Policy located at https://katalys.com/legal/katalys-shops-privacy-policy, the Katalys Shop Terms of Service located at https://katalys.com/legal/katalys-shops-terms-of-service and the Katalys Advertiser Terms located at https://katalys.com/legal/advertiser-terms-and-conditions/ all of which are incorporated herein by reference and form an integral part of this Agreement. This Agreement shall govern Customer’s initial engagement of Katalys on the Effective Date as well as any future purchases made by Customer that reference this Agreement.  This Agreement includes any and all Exhibits, addendum(s)k, Order Forms (which may be entered into electronically), or other attachments included herein or subsequently executed by the parties.  

 

  1. KATALYS SERVICES
    1. Services Subject to the terms and conditions of this Agreement, Katalys agrees to provide to Customer with online access to the Katalys Platform, together with all updates, bug fixes, error corrections, or other minor enhancements or improvements thereto made available under this Agreement and any emails, reports, or other materials provided by Katalys as part of such product offering identified in any attached addendum (collectively, the “Services”). Customer’s use of the Services are subject to any restrictions indicated in any attached addendum, which may include, without limitation, restrictions on the number and kind of authorized Customer users (“Authorized Users”), the number or nature of Shops that may be deployed, the number, type, pricing or other aspects of the “Products” or types of Products that may be sold via the Platform and Shops, the locations online where Shops may be placed, and/or any other restrictions set forth herein. If this Agreement (including any Appendix thereto) identifies any “additional services”, Katalys shall also provide such services pursuant to this Agreement and such services (and any emails, reports or other deliverables provided as part of such services) shall be included as “Services” hereunder.  Katalys reserves the right to suspend, update, modify, or replace the Services in whole or in part at any time in Katalys’ sole discretion.  
    2. License Grant Subject to the terms and conditions of this Agreement, Katalys hereby grants to Customer a limited term, non-exclusive, non-transferable, non-sublicensable license for the use of the Katalys Platform as set forth herein, and only as set forth herein.  
    3. General Restrictions.  Customer shall not: (a) rent, lease, provide access to, or sublicense the Services, Platform or Detection Tags to a third party or use the Platform to provide a service to a third-party (for example, by offering consulting services to third parties), except as explicitly permitted in the applicable Exhibit, addendum, or Order Form (which may be entered into electronically); (b) copy, reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to the Platform, except to the extent permitted by applicable law; (c) modify the Platform, or create any derivative product from the Platform except as permitted in the applicable Exhibit or Order Form; (d) remove or obscure any product identification, proprietary, copyright, or other notices contained in the Platform (including any reports or data printed from the Platform except as permitted in the applicable Exhibit or Order Form; (e) incorporate the Platform into any other offering (whether software as a service or otherwise) except as permitted in the applicable Exhibit or Order Form; or (f) publicly disseminate information or analysis regarding the Katalys Platform, Services, or any information or services obtained directly or indirectly from use or the performance of the Platform except as set forth in the applicable Exhibit or Order Form.

 

2. KATALYS OBLIGATIONS

    1. Customer’s Proprietary Information. Katalys shall reasonably safeguard the Customer’s account, content, Product information, Confidential Information, methods, systems, process, materials, business models, campaign configurations, trade secrets, and any other information that are collected, stored, or resident (or that can be derived or inferred from the Platform, Services, Shops, Reporting, or related deliverables) on the Platform, Services, Shops, Reporting, or related deliverables operated for the benefit of Customer pursuant to an Exhibit hereto, addendum or Order Form for Katalys Services (“Customer’s Proprietary Information”).
    2. Compliance. Katalys shall ensure that Katalys is at all times compliant with all applicable laws, rules, and regulations.

 

3. DATA PROTECTION AND PRIVACY. Katalys shall comply with all applicable data protection and privacy laws and regulations, including but not limited to the General Data Protection Regulation (“GDPR”), with respect to any personal data collected from the Customer or its users in connection with the Services provided under this Agreement. Katalys shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing such personal data. Katalys shall only process personal data for the purposes of providing the Services and will not disclose such personal data to any third party, except as necessary to provide the Services or as required by law. Katalys shall promptly notify the Customer in writing in the event of any unauthorized access, use, or disclosure of personal data. Upon termination or expiration of this Agreement, Katalys shall, at the Customer’s option, either return or destroy all personal data collected from the Customer or its users. 


4. PAYMENTS AND FEES

    1. Commission Terms. The Customer will determine the commissions to be paid per Offer (each, a “Referral Commission”) and may indicate specific payment terms for its Offers on the Katalys Platform.  The Customer shall pay the Referral Commission set forth in the Offer Terms agreed to on the Katalys Platform for each transaction generated and tracked by the Network, which will be paid to Katalys and will be distributed by Katalys to its publishers in its sole discretion.
    2. Fees
      1. Platform Fee. “Platform Fee” means the monthly fee charged by Kalalys for access and use of the Network and related services. The Platform Fee is $750 per month unless otherwise agreed to in writing via a Platform Fee Addendum or electronic mail. The Customer will be charged a prorated first Platform Fee for the number of days remaining in the calendar month from the Effective Date until the end of the then current month. The first Platform Fee will be invoiced upon signing of this Agreement and be due upon receipt
      2. Network Fee. The Customer shall pay Katalys a “Network Fee” of an additional 20% on top of either or any of the Cost Per Action (CPA) Fee, Cost Per Sale (CPS or “RevShare”) or the Cost Per Thousand (CPM) Fee indicated in the Commission terms or agreed to via electronic mail, in addition to the Referral Commission payable for each order, generated and tracked by the Network. The Network Fee may be changed at any time by mutual agreement of the parties in written communication, which may be via electronic mail. 
      3. Shop Fee.  Customer shall pay a “Shop Fee” of 5% of gross revenue related to any transaction in which a Katalys Shop is involved. The Shop Fee may be changed at any time by mutual agreement of the parties in written communication, which may be via electronic mail.
    3. Payment Terms . If applicable, Customer shall pay the Platform Fee upon receipt of the applicable invoice, and the Network Fee and Referral Commissions within 10 days of receipt of the applicable invoice or notification. The Parties will settle accounts after the close of each invoice period with the following stipulations:
      1. Invoicing Date.  Invoicing for the Platform Fee shall occur on the first (1st) of each calendar month and invoicing for Commissions shall occur on or near the first (1st) day of the month following the month of a sale to a Customer. Invoices will be created using the Network’s tracking statistics and calculations and the Customer will be invoiced for Commissions due for all sales generated in the previous month.  
      2. Invoice Payable. Invoices will be payable on or before the tenth (10th) business day following the delivery of the Invoice.  Payment will be due to Katalys in accordance with this Section 2 notwithstanding any failure or inability of Customer to collect payment from its client(s), if any.
      3. Publisher Payouts. All commission payouts to Network’s Publishers will be managed by the Network and will be payable in accordance to the terms agreed upon by Publisher  following receipt of the invoiced payment from the Customer.
      4. Late Payments. If an invoice is not paid when due, Customer shall also pay Network a late charge on any amount overdue at 1.5% per month or the highest rate allowed by applicable law, whichever is greater.  Customer shall be liable to Katalys for all attorneys’ fees and other costs of collection incurred in collecting any unpaid amounts.  All sales or use taxes payable in connection with such fees shall be borne and paid by Customer.  In the event of any termination of this Agreement, the fees applicable through the date of termination shall be due and payable to Network in accordance with this Section 2.
    4. Shop Transaction Payments. If applicable, Customer agrees to remit any payments (attributable to Product sales transactions carried out via Katalys Shops or otherwise) due to Katalys or any third party hereunder in a timely manner and, in the case of sales transactions, no later than 30 days after the date of such transaction.  Failure to remit payment in a timely manner shall be a material breach of this contract, and Katalys reserves the right to cease providing the services immediately in the case of any such failure. Except as expressly set forth in an Exhibit hereto, addendum or Order Form, Customer agrees to reimburse Katalys for pre-approved extraordinary expenses incurred in the course of providing the Services. In the event any sales, use or other taxes are required and/or assessed by state authorities which result from Services and/or Deliverables performed or delivered by Katalys under this Agreement or any applicable Exhibit, addendum or Order Form, Katalys will itemize such taxes on its invoice. Such invoices shall be provided to Customer no later than ten (10) days from the date Katalys (i) is required to pay such taxes; or (ii) obtains notice of such assessment. All undisputed payments shall be made in U.S. dollars in the manner set forth in the applicable Exhibit, addendum or Order Form by Customer check or wire transfer. Customer and Katalys shall make their best efforts to promptly resolve any disputes with regard to invoices. Under no circumstances shall any dispute be raised by Customer more than forty-five (45) days of the date of Customer’s receipt of a given invoice. In the event that any invoice dispute remains unresolved for more than 90 days, and/or if an amount due is not remitted in full or on time, Katalys reserves the right to suspend provision of the Services until such time as payment is made in full.

 

5. CUSTOMER OBLIGATIONS

    1. Applicable Use of Services.  To use the Katalys Platform or the Services, the Customer may be required to create an account.  While Katalys takes steps to safeguard Customer’s Proprietary Information, it is the Customer’s responsibility to manage the use of its account.  The Customer is solely responsible for all usage and activity on its account, including any activity by any person acting on the Customer’s behalf. The Customer agrees to immediately notify Katalys of any actual or suspected unauthorized access or use of Customer’s account. Katalys reserves the right to limit Customer’s access or revoke access to the Katalys Platform at any time and for any reason. 
    2. Parameterized Agreements.  Some aspects of the platform may allow Customer and other customers of Katalys (the “Participants”) to enter into parameterized agreements (“PA(s)”) related to, amongst other things, the Participants joint use of the Platform, Network, Shops, and other Services. The Participants shall agree to specific terms of engagement in individual PAs via the platform, or by setting a range of acceptable agreement terms via the Platform, which may subsequently be matched with other Participants’ ranges of acceptable terms by the Platform, in which case Customer agrees that such “Matches” shall constitute binding PAs. PAs (including Matches) shall contain any supplemental terms and conditions agreed between the Participants, which shall also be binding upon the Participants, and shall specify the “Action(s)” and qualifying parameters that entitle one Participant to compensation from the other(s). Katalys shall be a facilitator for the relationship between Participants and shall not be an active party to the PAs.  Accordingly, the terms of the PAs (including Matches”) are strictly between the Participants.  
      1. Compliance Customer agrees to comply with all applicable laws, rules, and regulations.
      2. Quality.  Customer shall ensure that for any Product sold via a Katalys Shop, no more than 10% of sales transactions shall result in a return, chargeback, or other similar reversal of that sales transaction (a “Failure”).  If the Failure rate for any Product exceeds 10% at any point during the term hereof, the customer shall address the issues causing such Failures in a timely manner, and/or cease using a Shop to sell that Product.  If Customer does not address a Product Failure in a timely manner, Katalys reserves the right to disable any Shops selling that Product.

 

6. TERM AND TERMINATION

    1. Term.  This Agreement is effective as of the Effective Date and shall remain in effect for the Term set forth in the applicable Order Form attached hereto. In the event a party terminates this Agreement pursuant to this Section and the term of an Order Form is still in effect, the effective date of the termination of this Agreement shall be the same date as the effective date of the completion of the work agreed to be performed under the Order Form.
    2. Renewal. This agreement shall automatically renew for additional 12-month renewal Terms unless canceled in writing by either party at least 30 days prior to the end of the then current Term.
    3. Termination for Cause.
      1. Either party may terminate this Agreement (including all related Exhibits or Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees when due) within thirty (30) days after written notice; (b) ceases operation without a successor; (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 
      2. In the event Katalys discovers any use of the Platform by the Customer or any agent or affiliate of the Customer other than those permitted hereunder, Katalys may immediately limit the Customer’s access to the Platform, until such time as the Customer cures the material breach constituted by such misuse. 
    4. Effect of Termination.  Upon any termination of this Agreement, all licenses granted under this Agreement will terminate and Customer shall immediately cease any and all use of and access to the Platform (including any and all related Katalys technology) and delete or otherwise cease use of (or, at Katalys’ request, return) any and all Katalys technology. Customer agrees that, should Katalys terminate this Agreement, Customer shall completely remove the Shop Tags from the code of all internet resources on which Customer has placed them within five (5) business days after such termination becomes effective. Customer acknowledges that except as retained by Customer on such reports, following termination it shall have no further access to the Platform, and that Katalys shall destroy any data, confidential information, or proprietary data from Customer inputted into the Platform and shall certify such destruction upon Customer’s request. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.  Neither party shall have any liability from any termination of this Agreement in accordance with its terms.  
    5. Termination Fee. In the event that Customer has made use of Katalys Affiliate Network during the term of this Agreement, and the Agreement is terminated prior to the end of the then-current Term, Customer shall pay Katalys an “Termination Fee” within 15 days of the date of termination.  The Termination Fee shall equal the greater of a) 10% of Customer’s last 12 months gross sales generated through the Katalys Marketing Platform and/or its partners; or b) the remainder of the Platform Fee payable to Katalys under this Agreement had it not been terminated prior to the end of the then-current term. 
    6. Survival.  The following Sections shall survive any expiration or termination of this Agreement: 1.4 (General Restrictions), 1.5.1 (Customer’s Proprietary Information), 1.5.3. (Use of Data), 1.6.1 (Payment), 2 (Ownership), 3 (Term and Termination), 5 (Indemnification; Limitation of Liability), 6 (Confidential Information), 8 (Marketing & Publicity) and 9 (General Terms).  

 

7. CONFIDENTIALITY

    1. Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, that is disclosed during the term of the Agreement by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), as well as information that the Receiving Party would reasonably expect or know to be confidential, including, but not limited to the Disclosing Party’s business plans, financial information, strategies, know how, marketing plans, business partners, software, and technology.  Confidential Information does not include information that (a) is in or enters into the public domain without breach of this Agreement; (b) the Receiving Party lawfully receives from a third party without restriction on disclosure or a breach of this Agreement; (c) the Receiving Party lawfully knew prior to the time of disclosure by the Disclosing Party; or (d) the Receiving Party develops independently without using the Disclosing Party’s Confidential Information.
    2. Disclosure and Use of Confidential Information.   The Receiving Party agrees that it will not disclose to any third party the Confidential Information except as expressly permitted by this Agreement or as necessary to perform its obligations under this Agreement.  The Receiving Party agrees to keep confidential all Confidential Information and to preserve the confidential and proprietary nature of the Confidential Information at all times, including, without limitation, by requiring all employees, agents, and contractors with access to the Confidential Information to enter into written confidentiality agreements consistent with the obligations under this Agreement.  Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law or by an order of a court of competent jurisdiction or by a governmental agency, provided that the Receiving Party give prompt notice to the Disclosing Party to permit the Disclosing Party to seek a protective order or other appropriate remedy to contest the disclosure of the Confidential Information.
    3. Independent Development. Nothing in this Agreement will prohibit a party from developing products, concepts, systems, or techniques that are similar to or compete with any such concepts, systems, or techniques of the other party, provided that such party does not violate any of its obligations (confidentiality or otherwise) under this Agreement in connection with such development.

 

8. MARKETING & PUBLICITY 

    1. Each party shall obtain the other party’s express written authorization prior to making any public statement in any form, written, verbal, or otherwise, regarding the nature of the relationship between the parties and/or the contents of this agreement, and/ or including the other party’s name, logo, and/or other intellectual property in its customer list, on its website, in its marketing collateral and press releases, and/or in any other similar publicity materials. Notwithstanding the foregoing, Katalys reserves the right to respond to and if necessary correct (via press release, statement to news media, statement posted on its website, and/or other statement via those media channels it deems necessary and appropriate) any unauthorized and/or inaccurate public statement made by Customer concerning Katalys and/or Customer’s relationship with Katalys or the contents of this Agreement.  Any violation of the provisions of this paragraph shall constitute a material breach of this agreement.

 

9. INTELLECTUAL PROPERTY

    1. Ownership.  Customer acknowledges that the Services and the Katalys Platform are protected by intellectual property rights and Katalys exclusively has all right, title, and interest in and to the Services and the Katalys Platform.  Except as otherwise set forth herein, no other right, title, or interest in or to the Services and the Katalys Platform are granted to Customer.
    2. Feedback.  Customer grants Katalys a irrevocable, perpetual, royalty-free right and license to use, modify, or incorporate into the Service any comments or suggestions in connection with the Service or the Katalys Platform (collectively, “Feedback”).  

 

10. INDEMNIFICATION.  

    1. Katalys’ Indemnification Obligations.  Katalys shall defend, indemnify, and hold Customer harmless from any and all damages, costs, liabilities, losses, or expenses (collectively, “Losses”) arising out of or relating to a claim by a third party that the Customer’s use of the Services of the Platform infringe or misappropriate any copyright, patent, trade secret, trademark, or other intellectual property right of a third party. 
    2. Customer’s Indemnification Obligations.  Customer shall defend, indemnify, and hold harmless Katalys from any and all Losses arising out of or relating to (a) Customer’s Proprietary Information; (b) the Customer’s use of the Services in a manner other than as contemplated or prescribed by this Agreement; or (c) the Customer’s breach of this Agreement. 
    3. Procedure.  The indemnifying party’s obligations as set forth above are expressly conditioned upon the indemnified party providing prompt written notice of a claim.  The indemnified party agrees to provide reasonable assistance and cooperation with the defense or settlement of any claim, however, the indemnifying party shall have sole control over the defense or settlement of the claim so long as such defense or settlement does not adversely affect the rights of the indemnified party.  

 

11. DISCLAIMER AND LIMITATION OF LIABILITIES.

    1. Disclaimer of Warranties.  THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES AND THE PLATFORM ARE PROVIDED ON AN “AS IS, AS AVAILABLE BASIS.”  EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 2, KATALYS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES OR THE PLATFORM AND HEREBY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  KATALYS DOES NOT WARRANT THAT THE SERVICES OR THE PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT THE SERVICES WILL GENERATE REVENUE OR PRODUCE ANY SPECIFIC RESULT.
    2. Limitations of Liability.  THE CUSTOMER UNDERSTANDS AND AGREES THAT KATALYS EXERCISES NO CONTROL OVER, ACCEPTS NO RESPONSIBILITY FOR, AND IS NOT LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY THIRD PARTIES, INCLUDING WITHOUT LIMITATION, ITS PUBLISHERS.  EXCEPT FOR INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, OR A BREACH OF SECTION 1.3 BY THE CUSTOMER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR INDIRECT OR DIRECT LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, KATALYS’ TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO KATALYS UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FOR SUCH DAMAGES IS MADE.  

 

12. GENERAL TERMS

    1. Assignment. This Agreement will bind and insure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement except upon the advance written consent of the other party (which consent shall not be unreasonably withheld), except that Katalys may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of Katalys’ assets or voting securities upon notice to Customer, provided that Customer may terminate this Agreement and notify Katalys of the effective date of such termination (to be determined by Customer in its sole discretion) within thirty (30) days of receipt of notice of assignment from Katalys and Katalys agrees that Customer shall only be liable for paying the fees for Services rendered up to the effective date of such termination.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 10.1 will be null and void. Customer reserves the right to assign its rights and obligations hereunder to its affiliates, as it deems appropriate.
    2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
    3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Diego County, California and both parties hereby submit to the personal jurisdiction of such courts.
    4. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth in the signature block of this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt, (b) if given by overnight courier service, the first business day following dispatch, (c) if given by electronic mail, the first business day following dispatch or (d) if given by registered or certified mail, postage prepaid, and return receipt requested, the second business day after such notice is deposited in the mail.  A copy of any notice given by Katalys to Customer shall also be given by electronic mail to [email protected].
    5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  No provision of any purchase order, invoice, or other similar business form employed by either party will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 
    6. Conflicts with this Agreement. In the event of any conflict between this Agreement and any Exhibit, addendum hereto or Order Form hereunder, the terms of that Exhibit, addendum or Order Form shall govern. In the event of any conflict between this Agreement and any other agreement, the terms of this Agreement shall govern.
    7. Entire Agreement. This Agreement (including the Katalys Privacy Policy, the Katalys Shop Terms of Service, the Katalys Advertiser Terms, any MNDA, and any Exhibits or addendums hereto or Order Forms hereunder) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.  Customer acknowledges that in order to provide improved customer experience Katalys may make changes to the Platform, and so long as such changes do not result in a material decrease in the level of service agreed to between the parties under this Agreement (or result in an increase in the fees to be charged to Customer without its prior written approval, Customer hereby consents to such changes.
    8. Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the control of such party, such as a strikes, insurrections, war, act of terrorism, riot, government action,labor conditions, interruptions in Internet Services to an area where Katalys (or its wholly owned subsidiaries) control or Customer servers are located or co-located, fire, floods, explosions, or other natural disaster, or failure or diminishment of power or telecommunications or data networks or services (a “Force Majeure Event”); provided, that the party whose performance or obligation is affected by any such event gives the other party written notice thereof within 24 hours of such event.  Either party may terminate this Agreement immediately upon written notice to the other party in the event that the delay or failure continues for thirty (30) or more consecutive days.
    9. Subcontractors.  Katalys may use the services of subcontractors for performance of Services under this Agreement, provided that Katalys remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement and (b) for the overall performance of the Platform and/or Services as required under this Agreement. In order to ensure the confidentiality of Customer’s information as it pertains to the work to be performed by such subcontractors, such subcontractors shall sign a confidentiality agreement prior to the commencement of such work with terms as restrictive as the confidentiality terms in Section 8 of this Agreement.  Katalys will describe the identities and services provided by any subcontractor upon request by Customer.
    10. Independent Contractors.  The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise or Customer created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
    11. Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, including the breach, termination, or validity thereof, shall be resolved by binding arbitration in accordance with the rules and procedures of the American Arbitration Association (“AAA”). The arbitration shall be conducted in San Diego County, California, and shall be heard by a single arbitrator selected in accordance with the AAA rules. The decision of the arbitrator shall be final and binding on the parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party in any such arbitration shall be entitled to recover its reasonable attorneys’ fees and costs incurred in connection therewith. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court of competent jurisdiction to prevent or restrain the other party from breaching its obligations under this Agreement.
    12. Service Level Agreement. Katalys does not guarantee the Service will be operable at all times or during any downtime (1) caused by outages to any public Internet backbones, networks or servers or third party data centers or cloud service providers (2) caused by any failures of Customer equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to a Force Majeure Event. If for any reason Katalys fails to provide the Services with regards to the Services, the Shops, the Katalys Platform or against any obligations of Katalys to Customer under any applicable Exhibit or Order Form.