Advertiser
Terms and Conditions

This Katalys Affiliate Network Advertiser Agreement (the “Advertiser Agreement”) shall govern the relationship between Katalys LLC, a Limited Liability Company located at: 315 S. Coast Highway 101 #528 Encinitas, CA 92024, DBA Katalys (“Katalys,” “Katalys Affiliate Network” or “we”) and the Advertiser (“Advertiser”), whereby Advertiser may obtain access to the Katalys Affiliate Network, registered third party affiliates (“Affiliates”) and publishers (“Publishers”), and related technology and software (“Katalys Affiliate Network Ad Server”), to market customized advertisements and links provided by Advertiser and/or Katalys Affiliate Network (“Ads,” as further defined below).

The Katalys Affiliate Network, as well as the services provided by Katalys Affiliate Network in connection therewith (“Services”), are further described in the Affiliate Marketing Program (“AMP”) Agreement (the “AMP Agreement”) which is attached hereto and incorporated herein by reference (referred to collectively with this Advertiser Agreement, as the “Agreement”.). The terms of the AMP Agreement shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.

1. Katalys Affiliate Network/Services. Advertiser agrees to accept and pay for, and Katalys Affiliate Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Katalys Affiliate Network shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Katalys Affiliate Network will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Katalys Affiliate Network Ads (as defined below) through the Katalys Affiliate Network either:

1. 1. On Publisher websites via the Katalys Affiliate Network Ad Server for impressions-based Ad Campaigns (“CPM”); or
   2. By Affiliates via e-mail-based marketing, search engine marketing, website-based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Katalys Affiliate Network commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or other compensable activities generated on behalf of Advertiser as set forth in the subject AMP (collectively, “Actions”).

The applicable Actions, the fees due to Katalys Affiliate Network for each Action, and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each AMP. Katalys Affiliate Network shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.

2. Account. Upon the execution of the Agreement, Advertiser must register on the Katalys Affiliate Network website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify Katalys Affiliate Network of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Katalys Affiliate Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.  Katalys reserves the right to limit your access to the Katalys Affiliate Network or revoke your account at any time and for any reason.

3. Ads. In connection with an Ad Campaign, Katalys may distribute Ads as described in Section 1 of this Advertiser Agreement.  Advertiser shall submit all Advertiser Ads to Katalys Affiliate Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable AMP. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Katalys Affiliate Network’s prior express written consent, after the applicable Ad has been approved by Katalys Affiliate Network. Katalys Affiliate Network shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. Under no circumstances shall Katalys Affiliate Network be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the AMP(s).

1. 1. Advertiser Ads.  Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Katalys Affiliate Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; except for any Advertiser Ads containing Katalys Affiliate Network Ads. Advertiser grants to Katalys Affiliate Network a non-exclusive, transferable, royalty-free, sub-licensable right and license to use, reproduce, display, transmit, and distribute the Advertiser Ads for the purpose of performing this Agreement.  Advertiser shall be solely responsible for the Advertiser Ads, including without limitation, the content contained therein.  Advertiser agrees to indemnify and hold Katalys harmless from any damages arising from the usage or display of the Advertiser Ads.
   2. Katalys Affiliate Network Ads.  The Advertiser may request for Katalys to prepare certain advertisements or portions of advertisements on Advertiser’s behalf (such portions hereinafter referred to as, the “Katalys Affiliate Network Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Katalys Affiliate Network is the sole owner of any and all intellectual property rights associated with the Katalys Affiliate Network Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Katalys Affiliate Network Ads. 
   3. Advertising Guidelines. Katalys Affiliate Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Katalys Affiliate Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Katalys Affiliate Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Katalys Affiliate Network or any of its Publishers and/or Affiliates. 
   4. Advertiser Requests.  Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Katalys Affiliate Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Katalys Affiliate Network’s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.

4. Intellectual Property and Use.

1. Grant of License to Katalys Intellectual Property. Except as expressly licensed or assigned in this Agreement, Katalys retains all right, title and interest in (including but not limited to all confidentiality, copyright, trade secret, and patent rights) to the “Katalys Intellectual Property”, and any and all upgrades, enhancements, modifications or derivative works of any of the foregoing. “Katalys Intellectual Property” means all information or data (but not any Customer User Data or Confidential Information of Customer) relating to products, services or technology of Katalys including but not limited to software code, algorithms or technology owned or developed by or for Katalys.
2. Right to Use Third-Party Providers’ Intellectual Property. Katalys licenses certain intellectual property and the rights from Third-Party Providers (including links to third-party licensed intellectual property). Advertiser is responsible for evaluating whether to access or use such intellectual property and agrees to be bound by any applicable “terms and conditions” related to such intellectual property in this Agreement.
3. Non-Infringement. Advertiser agrees it will not copy, reproduce, distribute, transmit, broadcast, modify, display, sell, license or otherwise exploit Katalys’s Intellectual Property or the Third-Party Providers’ intellectual property, except in strict compliance with the rights, if any, granted to Advertiser by the Agreement. Katalys will terminate the account of any Advertiser, and block access of any user, who infringes upon any Katalys or Third-Party intellectual property rights.

5. Ownership and Use of Customer User Data. Advertiser warrants that all data uploaded, shared and/or distributed via Katalys by Advertiser shall comply with all applicable law.

1. 1. Data Ownership. In order for Katalys to provide the Services, Katalys will collect information about Advertiser and about a visitor/customer to Advertiser’s website (“Customer User Data”). All Customer User Data is sole property of Advertiser and Katalys has no ownership rights in any Customer User Data. Customer User Data includes, without limitation, all sales and marketing information provided by Advertiser to Katalys.
   2. Use of Data. Solely as necessary for Katalys to provide its Services to Advertiser, Advertiser grants to Katalys a limited license to use Customer User Data to perform its obligations to Advertiser. Additionally, Katalys will treat all Customer User Data as confidential, proprietary information of Advertiser and will protect the confidentiality of Customer User Data with at least the same degree of care that Katalys uses to protect its own proprietary information, but with no less than reasonable care, including, without limitation, as may be required to transfer, store and administer such information in accordance with all applicable laws, rules and regulations. Advertiser’s license to Katalys includes the right to collect Customer User Data, either directly from Advertiser or through other means such as the use of redirects and I-by-I pixels. Katalys will (a) store Customer User Data only for so long as necessary to perform the Services and will delete the Customer User Data after it no longer has application to provision of the Services; and (b) will immediately notify Advertiser of any breach of Katalys’ systems that might compromise any Customer User Data and cooperate with Advertiser in its attempts to address such breach and comply with any legal obligations arising in connection therewith. So that Katalys may improve and promote its service offerings, Katalys may aggregate Customer User Data with other data, (and/or segregate portions of the Customer User Data) so that it is non-personally identifiable with respect to both Advertiser and visitors/clients to Advertiser’s Website(s). Such anonymous data is known as “Aggregated Anonymous Data”. Advertiser agrees that Katalys may create Aggregated Anonymous Data, and may use, execute, display and commercially exploit the Aggregated Anonymous Data. Katalys may disclose Aggregated Anonymous Data to third parties and may transfer or sublicense its rights with respect to Aggregated Anonymous Data.

6. Placement. The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Katalys Affiliate Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable AMP may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable AMP or, in cases where “Run of Affiliate Network” or similar designation is specified in the applicable AMP, the Ads may appear at any point of placement and/or distribution that Katalys Affiliate Network and/or its Affiliates and Publishers may determine, in their respective sole discretion.

7. Ad Codes. Unless otherwise stated in writing by Katalys Affiliate Network, each Ad used by Katalys Affiliate Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Katalys Affiliate Network (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Katalys Affiliate Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Katalys Affiliate Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by Katalys Affiliate Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Katalys Affiliate Network’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.

8. E-mail Marketing. The following terms apply to all Ad Campaigns transmitted via e-mail by Katalys Affiliate Network’s Affiliates on behalf of Advertiser. Any and all e-mail-based Ads:

1. 1. shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 (“CAN-SPAM”), the Cal. Bus. & Prof. Code §17529, and any and all Federal Trade Commission implementing regulations;
   2. must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; 
   3. must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party; and
   4. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery).

Katalys Affiliate Network may make available, at a Katalys Affiliate Network-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by Katalys Affiliate Network’s Affiliates for Advertiser under applicable AMP(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Katalys Affiliate Network, or send its suppressed e-mail addresses to Katalys Affiliate Network via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then Katalys Affiliate Network may conclude that no such addresses exist. The suppression list and login provided by Katalys Affiliate Network are deemed to be Confidential Information of Katalys Affiliate Network, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.

9. Fraud. The parties acknowledge that Fraudulent Activity may arise from participating in affiliate marketing programs generally.  “Fraudulent Activity” may include, but is not limited to, (i) the use of fake redirects, automated software, or other fraudulent methods to generate Actions; (ii) generating multiple leads using proxy servers; (iii) using iFrames, hidden frames, or adware; or (iv) any other method meant to increase commissions in a dishonest or deceitful way.  

Katalys takes preventative measures to attempt to stop Fraudulent Activity from occurring by monitoring its Affiliates and Publishers, however, Katalys cannot detect all Fraudulent Activity and Advertiser acknowledges and understands that Fraudulent Activity may occur from time to time and Katalys shall not be liable to Advertiser for such Fraudulent Activity.  Advertiser agrees to aid Katalys in mitigating fraud by creating its own measures to prevent Fraudulent Activity.  At a minimum, Advertiser shall maintain fraud detection software and shall immediately notify Katalys of any suspected or actual instances of Fraudulent Activity.  The parties agree to work together to mitigate exposure to Fraudulent Activity.

10. Payments.

1. 1. Invoices. The rates for Actions shall be set forth in the applicable AMP(s). Katalys Affiliate Network will invoice Advertiser once monthly. Unless otherwise set forth in the applicable AMP, payment will be due and paid to Katalys Affiliate Network on a “net 5 day” basis following the full calendar month the commission was earned. Payment will be due to Katalys notwithstanding any failure or inability of Advertiser to collect payment from its client(s) or customers, if any.  If payment is not made in a timely manner, Katalys Affiliate Network may, at its option, immediately terminate the Agreement and/or any applicable AMP(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Katalys Affiliate Network for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Katalys Affiliate Network and/or any of its Publishers or Affiliates pursuant to California State Tax Law.
   2. Offsets.  In the event a client cancels an order from an Advertiser after a commission has been paid to Affiliates or Publishers in the Network, the Affiliate or Publisher agrees to repay or credit the commission to the Advertiser. Advertiser may offset future commissions payable to an Affiliate or Publisher with the amount due as a repayment. In the event no commissions are earned by the Affiliate or Publisher to offset within 30 days of the cancellation, Advertiser may issue an invoice for the commission return to be made upon receipt of the invoice.  Advertiser must submit all credit requests due to cancelled orders within ten (10) days after the end of the month from which the initial order date. The Network is not responsible or liable for the repayment of any commissions from any Affiliate or Publisher. Additionally, the Parties agree that the Network may, in its discretion, establish and require a reserve fund of revenues generated from sales reasonably necessary to pay and settle required repayments, chargebacks and returns.

11. Leads and CPA-Based Ad Campaigns. In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Katalys Affiliate Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:

1. 1. it rejects within five (5) days of its receipt thereof; and
   2. both parties determine is not a Valid Action (as defined below). Where Katalys Affiliate Network determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person that:
      1. is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
      2. in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
      3. in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser’s criteria as set forth in the applicable AMP.

12. Unaccepted Actions. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Katalys Affiliate Network, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to Katalys Affiliate Network therefore in accordance with payment terms set forth herein and in the applicable AMP), Katalys Affiliate Network shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable AMP, and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:

1. 1. will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
   2. will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Katalys Affiliate Network;
   3. will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
   4. will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
   5. will notify Katalys Affiliate Network as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Katalys Affiliate Network in the investigation and prosecution of any such unauthorized use or disclosure.

13. Term/Termination. The Agreement shall continue for the term set forth in any underlying IO or AMP, provided that either party may terminate the Agreement and/or any AMP at any time, upon thirty (30) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:

1. 1. Advertiser agrees to pay agreed upon termination fees set forth in the underlying AMP;
   2. Advertiser will pay Katalys Affiliate Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 10 hereinabove;
   3. any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
   4. any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed.

Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.

14. Warranty/Limitation of Liability.

THE SERVICES, KATALYS AFFILIATE NETWORK AD SERVER, ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY UNDER THE AGREEMENT AND/OR ANY APPLICABLE AMP ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, Katalys MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Katalys DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE SERVICES, ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. KATALYS HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND Katalys DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. KATALYS HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE KATALYS AFFILIATE NETWORK AD SERVER OR APPLICABLE ACTIONS AND KATALYS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISERS USE OF THE KATALYS SERVICES, ADS, KATALYS AFFILIATE NETWORK SERVER AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. Katalys MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL KATALYS BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF KATALYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KATALYS WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY AMP AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND KATALYS’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Katalys’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO Katalys BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. KATALYS SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.

15. Representation and Warranties. Advertiser represents and warrants that:

1. 1. it has the power and authority to enter into and perform its obligations under the Agreement;
   2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
   3. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Katalys Affiliate Network Ads, by Katalys Affiliate Network, its Publishers and Affiliates, as contemplated by the Agreement;
   4. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
   5. it will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
   6. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
   7. for CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser’s website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser’s use, collection and disclosure of their personal information;
   8. Advertiser shall fulfill all commitments made in the Ads;
   9. no Ad is targeted to end-users under the age of eighteen (18);
   10. prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
   11. the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
       1. contain any misrepresentations or content that is defamatory;
       2. contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
       3. promote or support gambling or sweepstakes or contests; or
       4. contain any “worm,” “virus” or other device that could impair or injure any person or entity;
   12. Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time; and
   13. Advertiser has disclosed to Katalys the existence of any past federal or state decrees, orders, or consent agreements involving Advertiser, and any threatened or pending formal or informal governmental investigations or prosecutions involving Advertiser by the FTC or any other federal state governmental or regulatory body or agency.  In the event that Advertiser becomes involved or named in any such action, investigation or proceeding, Advertiser shall provide immediate notice to Katalys.
   14. Reverse Engineering. Advertiser shall not decompile, reverse engineer or otherwise attempt to derive or modify the Network’s software including but not limited to the Source Code thereof or any code that is placed on the advertiser’s website. Advertiser shall not merge the Network software with another software program. Any desired modifications must be delivered in a written request to the Network.

16. Indemnification. Advertiser shall irrevocably defend, indemnify and hold Katalys Affiliate Network, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:

1. 1. Advertiser’s breach of the Agreement and any and all applicable AMP(s) or any representation or warranty contained therein;
   2. the Advertiser Ads, Advertiser Products and/or Advertiser websites;
   3. Advertiser’s use of the Services and the Katalys Affiliate Network Ad Server; and/or;
   4. any claim that Katalys Affiliate Network is obligated to pay any taxes in connection with Advertiser’s participation hereunder.

Katalys will promptly notify Advertiser of any such claim of which it becomes aware and will provide reasonable cooperation to Advertiser at Advertiser’s expense in connection with the defense or settlement of the claim and be entitled to participate at RevOffer’s own expense in defense of any such claim.

17. Confidentiality. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

1. 1. a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
   2. the material terms of the Agreement and/or any associated AMP(s), including commission rates and payment details;
   3. with respect to Katalys Affiliate Network, the Unaccepted Action Data and suppression lists; and Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential;
   4. any information marked or designated by the Disclosing Party as confidential.

The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information to any person, company or entity, except to those of its employees and professional advisers:

1. 1. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
   2. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein.

Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:

1. 1. is generally available to or known to the public through no wrongful act of the receiving party;
   2. was independently developed by the Receiving Party without the use of Confidential Information; or
   3. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party.

Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law or by a lawful order of a court of competent jurisdiction, provided that the Receiving Party provides the Disclosing Party with reasonable advance notice of any such intended disclosure and cooperates reasonably with its efforts to obtain a protective order.  The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond.

18. Non-Circumvention. Advertiser recognizes that Katalys Affiliate Network has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Katalys Affiliate Network’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Katalys Affiliate Network hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Katalys Affiliate Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement.
    
    Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first AMP executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that a breach of this Section 18 will cause irreparable damage to Katalys, the exact amount of which will be difficult or impossible to determine, and that remedies at law for such breach may not be adequate.  Accordingly, in the event of a breach of this Section 18, Katalys Affiliate Network shall be entitled to:

1. 1. injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;
   2. liquidated damages from Advertiser in the amount equal to the greater of: (i) one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; or (ii) the average monthly fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, multiplied by twelve (12).  Advertiser acknowledges that because actual damages are difficult to currently estimate, these liquidated damages are a reasonable estimate of the anticipated or actual harm and shall be construed as a compensation, not as a penalty; and
   3. any and all other remedies available to Katalys Affiliate Network at law or in equity.

19. Force Majeure. Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, acts of terrorism, insurrections, riots, or wars, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

20. Miscellaneous.

1. 1. Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any AMP without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any AMP or any portion hereof/thereof, to:
      1. an acquirer of all or substantially all of such party’s equity, business or assets;
      2. a successor in interest whether by merger, reorganization or otherwise; or
      3. any entity controlling or under common control with such party.
   2. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of California. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either a United States District Court for in California or any California State court of competent jurisdiction, located in San Diego County in California, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
   3. Modification. The Agreement, any exhibits attached hereto and any and all applicable AMP(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable AMP(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any AMP is in conflict or inconsistent with the Agreement, the AMP shall take precedence.
   4. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
   5. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Katalys Affiliate Network acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable AMP(s).

Contact Information

Katalys

315 S. Coast Highway 101 #528

Encinitas, CA 92024

Email: [email protected]