Program Terms and Conditions

Contents 

• Affiliate Marketing Agreement
  • California Privacy Addendum
• Lead State List
• Content Creation Addendum
  • Content Creation Addendum- Exhibit A- Standards of Conduct
• Schedule of Compensation
• General Affiliate Eligibility
• Terms & Conditions for Referred Borrower

Affiliate Marketing Agreement

The Kiavi Affiliate Marketing Program provides an opportunity for any eligible person or entity (“Affiliate”) to receive a referral fee for participating in Kiavi’s affiliate marketing program (the “Affiliate Program”). To be eligible, you must accept this Affiliate Marketing Program Agreement (“Agreement”) without change. By registering for the Affiliate Program, you agree to this Agreement, including all program policies which may be updated from time to time. Please read the Agreement carefully prior requesting to participate in the Affiliate Program. Further, by participating in the Affiliate Program, you may not participate in any other referral fee program that may be offered by Kiavi such as the Refer a Friend Program.

The term “Agreement” means this Affiliate Marketing Agreement, and any riders or schedules hereto, and as they may be subsequently amended.

Background

1. Kiavi is in the business of originating business-purpose loans secured by, and for the purpose of acquiring and rehabilitating, refinancing, renting and otherwise investing in or operating residential real property (“Loans,” or singularly, a “Loan”).
2. Affiliate is in a business which presents an opportunity to, and may from time-to-time, identify potential customers for Kiavi (each a “Lead” and collectively, “Leads”). 
3. An approved Affiliate will be placed in either the Keyholder or Influencer channel of the Affiliate Marketing Program. Placement into either the Keyholder or Influencer channel is determined by Kiavi at its sole discretion. The Keyholder and Influencer channels are explained in the Schedule of Compensation. 
4. This Agreement sets forth the manner, requirements, and circumstances whereby Affiliate may be placed in a particular channel and may be compensated for presenting such Leads to Kiavi.

NOW THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, Affiliate hereby agrees as follows:

1. Lead Generation, Content, & Delivery; Content Creation.

a. Generation of Leads. Affiliate may, in such manner and at such times as identified and required by Kiavi, provide to Kiavi the information it requires to identify a Lead or Leads who has/have expressed an interest in obtaining a Loan from Kiavi, subject to any jurisdiction specific privacy restrictions. Such information may be provided by the Lead themselves to Kiavi via a dedicated internet landing page the address of which is provided to the Lead by Affiliate. Affiliate may not use Kiavi’s name, brand or marketing materials in generating any Leads, without Kiavi’s prior written consent. Any permission granted to Affiliate concerning Kiavi’s name, brand or marketing materials is for use in relationship to this Agreement only; no rights, ownership, or other license in Kiavi’s name, brand or marketing materials is granted to Affiliate.

b. Keyholder Lead: The referred person or entity shall constitute a “Keyholder Lead” if and to the extent Kiavi is provided sufficient information by the Lead or Affiliate, the Lead actually qualifies for a Loan, and actually closes the Loan with Kiavi identified through the unique referral link, and the Lead satisfies all other requirements identified in this Agreement.

c. Influencer Lead:The referred person or entity shall constitute an “Influencer Lead” if and to the extent Kiavi is provided sufficient information by the Lead or Affiliate and the Lead satisfies all other requirements identified in this Agreement.

d. Lead Content Delivery. For either the Keyholder or Influencer channel, Affiliate must provide sufficient information as determined by Kiavi in its sole discretion to allow Kiavi to identify the Lead, effect contact with the Lead and fully identify the property the Lead wishes to be financed. This information may include, but is not limited to, (i) the Lead’s name, email address, telephone number, and state of residence, (ii) the street address of the subject real estate, and (iii) the name of the entity which will be the borrower in any resulting loan. If Lead information is provided directly by Affiliate to Kiavi, such information shall not include a social security number and/or tax identification number and shall not be construed as an application for credit. Leads shall be limited to opportunities in those states of the United States to which Kiavi accepts leads as identified in the Lead States List included with this Agreement.

e. Response to Leads. Upon receipt of information regarding a Lead by Kiavi, Kiavi may, but shall not be required to, attempt contact with the Lead.

2. Compensation.

a. In General. As compensation for providing qualified Leads to Kiavi, Affiliate shall be entitled to a >Referral Fee per New Lead as specified in the Schedule of Compensation which may be adjusted by Kiavi from time to time. Further, New Leads may receive a one-time referral fee if they qualify by providing sufficient information and meet all other obligations of a New Lead as required under the Agreement and the Schedule of Compensation.

b. Payment. Payment shall be paid to Affiliate on a net 30-day basis subsequent to the last day of the month in which the closing of any related Loan executed by a qualified Lead occurs.

c. Reports. Upon reasonable request, Kiavi will provide reports reflecting Lead compensation due to Affiliate for a period of time not exceeding ninety (90) days from the date of the request.

d. Compensation Following Termination. Following the termination of this Agreement without cause, Affiliate shall be entitled to compensation pursuant to this Agreement for all qualified Leads sent prior to the date of termination of this Agreement.

3. Representations of Kiavi. Kiavi hereby represents as follows to Affiliate:

a. As applicable or required by state law, Kiavi is licensed to conduct the business contemplated by this Agreement in each of the jurisdictions identified on the Lead States List. If at any point Kiavi either expands or eliminates the number of states or jurisdictions in the Lead State List, for any reason, Kiavi will update the Lead State List.

b. In dealing with Leads, Kiavi shall conduct itself with no less courtesy, responsiveness, and professionalism than it uses in dealing with its other customers.

c. Kiavi shall make such investigation of Leads and related matters as Kiavi determines necessary in its sole and absolute discretion and as may be required by law or regulation.

4. Responsibilities & Rights of Affiliate.

a. Affiliate shall have no rights beyond those described in the Agreement as may be amended by Kiavi from time to time;

b. Affiliate shall have no obligation with respect to the contemplated transactions or the relationship between Kiavi and the Lead;

c. Affiliate shall have no further rights to, or ownership in, the relationship between the Lead and Kiavi beyond payment for a qualified Lead as provided for in paragraph 2; and

d. Affiliate shall have no right to, and will not, participate in any negotiations between Kiavi and the Lead or provide any additional information concerning the Lead to Kiavi.

“New Lead” is defined as an entity that has never closed a loan with Kiavi.

5. Representations of Affiliate. Affiliate hereby represents as follows to Kiavi:

a. Affiliate is a fully licensed business that is qualified to conduct business in all relevant jurisdictions.

b. Affiliate will promptly notify Kiavi of (i) any complaints made by a Lead in connection with its services, or (ii) any adverse actions taken against Affiliate by any regulatory body, legal authority, or Lead.

c. Affiliate will not present a Lead to Kiavi in which it is aware of a potential conflict of interest. If after providing a Lead to Kiavi, Affiliate subsequently learns of a potential or actual conflict of interest, it will notify Kiavi in writing of the conflict within 24 hours. Email to Kiavi is a sufficient writing for notice of such conflict of interest.

d. Affiliate will not provide any services, nor deliver any supplies or material to, nor permit any other person including sub-contractors or vendors of Affiliate to provide any services or deliver materials, to any property, real or that could otherwise be construed as being related to securing the Lead’s Loan (each, a “Property”) until after recordation of the security interest securing Kiavi’s Loan on the Property.

e. Affiliate will not permit any liens to attach to or file its own lien with respect to any Property at any time during the term of the related Loan made by a Lead.

f. Affiliate hereby acknowledges and agrees that any lien it may claim or be granted in any Property shall be subordinate to any lien or security interest of Kiavi in that Property. Affiliate will promptly execute any written subordination agreement provided by Kiavi documenting the superiority of Kiavi’s lien to any lien(s) of Affiliate. Any voluntary lien(s) placed on any Property by Affiliate shall be recorded no earlier than the business day following recordation of Kiavi’s lien on such Property.

g. In dealing with Leads, Affiliate will conduct itself with no less courtesy, responsiveness, and professionalism than it uses in dealing with its own customers.

h. To the best of Affiliate’s knowledge, the information provided about a Lead, including but not limited to the Lead’s name, email address, telephone number, business entity name, and state in which the subject real estate is located, is current and accurate;

i. If a Keyholder Lead, the Lead has expressed an actual interest in financing certain residential real property with a business purpose loan;

j. With respect to Lead information provided by Affiliate to Kiavi directly, the Lead has given any required permission to Affiliate for it to provide that information to Kiavi and for Kiavi to use that information to contact the Lead; and

k. Affiliate will not provide Leads with any information, promises, or commitments regarding any potential Loan, including but not limited to interest rate or other Loan terms, provide any other information concerning Kiavi to Leads (other than publicly-available information), or make any representations concerning Kiavi to Leads, except as authorized by Kiavi in writing in advance.

l. To the extent Affiliate is granted permission to create content in support of its Lead generation activities as contemplated under this Agreement and any amendments or supplements thereto, Affiliate must also accept the Content Creation Addendum, attesting that it is in compliance with Federal Trade Commission requirements in third-party marketing activities.

6. Ownership of Intellectual Property.

a. Affiliate acknowledges and agrees that Kiavi is the exclusive owner of (1) all of the intellectual property rights associated with its business, including all trademarks, service marks, patents, copyrights, trade secrets, designs, algorithms, and software embodied therein and any updates and new versions created by or for Kiavi, (2) all data that Kiavi collects from the use and operation of its business, including but not limited to the data it collects from Affiliate and Leads (collectively, the “Kiavi Materials”).

b. Affiliate expressly acknowledges and agrees that, unless provided in a separate writing signed by Kiavi, except for marketing materials presented to it by Kiavi, no license is granted in respect of Kiavi’s Materials or any other technology or information, and that Kiavi’s Materials shall remain its exclusive property. Any creation of, and/or use of, marketing materials outside of the Kiavi Materials provided to Affiliate without Kiavi’s express written consent may result in expulsion from the Affiliate Program as well as further legal action if Kiavi deems necessary.

7. Confidentiality

a. Included Information. For purposes of this Agreement, the term "Confidential Information” means all non-public, confidential and proprietary information of a party and its affiliated and related companies, including but not limited to information concerning people, data, research, products, documentation, services, formulae, processes, techniques, developments, inventions, engineering, pricing, internal procedures, finances, employees and business opportunities that is non-public, confidential or proprietary in nature, including information provided to the Disclosing Party (as defined below) by third parties that the Disclosing Party is obligated to keep confidential. The party receiving Confidential Information is referred to as the “Recipient” and the party disclosing such information is referred to as the “Disclosing Party”. Unless excluded in writing by the Disclosing Party, the parties shall assume that any and all information disclosed, that is of a nature that a reasonable person would understand is confidential, is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing, Confidential Information includes inventions, product research and development, production data, product designs, specifications, descriptions and labels, discoveries, trade secrets, techniques, models, data, programs, processes, scripts, policies and procedures, know-how, customer lists and contact information, marketing plans, plans for future promotions, drawings, financial information, products, business plans, sales positioning strategies and communication strategies. Confidential Information shall also include any “nonpublic personal information (NPI),” as defined in § 509 of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6809, and implementing regulations thereof.

b. Excluded Information. For purposes of this Agreement, the term Confidential Information shall exclude any information (i) that is or becomes generally known to the public through no act or failure to act on the part of the Recipient; (ii) which has been independently developed by Recipient (as evidenced by Recipient’s written records), before or after the execution of this Agreement, without violation of any rights which Disclosing Party may have in such information; (iii) that is furnished or made known on a non- confidential basis to Recipient by a third party who has a lawful right to disclose such information; or (iv) is required pursuant to the final binding order of a governmental agency or court of competent jurisdiction, but only to the extent of such required disclosure; provided, however, that Recipient will give (a) the Disclosing Party prompt notice of such required disclosure to allow the Disclosing Party the opportunity to seek a protective order (if the Recipient is not prohibited from giving such notice pursuant to applicable legal requirements) and (b) reasonable assistance, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. In any dispute between the parties with respect to the exclusions in this section, the burden of proof shall be on the Recipient and such proof shall be by clear and convincing evidence.

c. Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a party may disclose Confidential Information (i) if required to do so by legal process (i.e., by a subpoena), provided that such party shall notify the other party prior to such disclosure so that such other party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required in the operation of such party’s business. The parties shall not disclose the Confidential Information to anyone other than its employees or agents (including affiliates) who have a need to know the Confidential Information and who shall be bound by nondisclosure restrictions at least as protective as those in this Confidentiality Agreement. The Recipient agrees that it will (i) keep the Confidential Information disclosed by the Disclosing Party confidential, (ii) use such Confidential Information only in furtherance of this Agreement, and (iii) not disclose such Confidential Information without the prior written consent of the Disclosing Party. Each party shall maintain reasonable security procedures and practices to protect the confidentiality of Confidential Information from unauthorized access, destruction, use modification or disclosure. Recipients will maintain the confidentiality of such Confidential Information by using reasonable care and at least the same degree of care that it takes to hold in confidence its own confidential and/or proprietary information of a similar nature. Each party represents and warrants that it has the right to disclose any information provided to the other party in furtherance of this Agreement.

d. Return of Confidential Information. Upon termination of this Agreement for any reason or upon the other party’s written request, each party promptly shall (i) return or destroy, at the other party’s direction, all material, tangible or intangible, embodying the Confidential Information in such party’s possession or under such party’s control, provided that any destruction shall be acknowledged in writing to Disclosing Party upon its written request, except as required by record retention provisions of applicable law, rule or regulation; and (ii) if requested by the other party, deliver an affidavit, signed by an executive officer of such party, certifying that such party has complied with such obligation.

e. Interest in Confidential Information. No title or interest in or to any Confidential Information of Disclosing Party is granted to Recipient by this Agreement and the Disclosing Party reserves all patent, trade secret and other proprietary rights it might have in such Confidential Information. All Confidential Information of a Disclosing Party shall remain the sole property of the Disclosing Party.

f. Disclosure of Non-Public Information. To the extent a Disclosing Party discloses non-public information (“NPI”), the Parties shall implement and maintain appropriate measures to (i) ensure the security and confidentiality of Confidential Information; (ii) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information; and (iii) protect against any unauthorized access to or use of Confidential Information that might result in substantial harm or inconvenience. Additionally, the parties will have in place policies, which provide for the secure disposal of documents and information which contain Confidential Information, including but not limited to, shredding documents and establishing internal controls over the authorized access to such information.

g. Unauthorized Access>. In the event of any unauthorized access to, unauthorized disclosure of, loss of, damage to or inability to account for any Nonpublic Personal Information (each individually a “NPI Breach”), the Parties agree that they shall promptly, at their own expense (i) report such NPI Breach to the other Party by telephone with immediate written confirmation sent by e-mail or fax and by mail, describing in detail any accessed materials and identifying any individual(s) who may have been involved in such NPI Breach; (ii) take all actions necessary or reasonably requested by the other Party to stop, limit or minimize the NPI Breach; (iii) restore and/or retrieve, as applicable, and return all NPI that was lost, damaged, accessed, copied or removed; and (iv) cooperate in all reasonable respects to minimize the damage resulting from such NPI Breach.

h. Injunctive Relief. Each party acknowledges and agrees that a breach of this Section 7, including but not limited to, the release or use of Confidential Information, publication of information regarding the business relationship of the Parties, and/or use of the other party’s trademarks, tradename, logo or service mark in violation of this Agreement, will cause the damaged party great and irreparable harm, injury and damage, which cannot be reasonably or adequately compensated by money damages, the exact amount of which will be difficult or impossible to ascertain and for which the injured party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, each party acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies.

i. No Representations or Warranties. Neither the Disclosing Party nor any of its officers, directors, employees, agents, representatives and/or affiliates (collectively, “Representatives”) make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to the Recipient hereunder. Neither the Disclosing Party nor any of its Representatives shall be liable to the Recipient or any of its Representatives relating to or resulting from the Recipient's use of any of the Confidential Information or any errors therein or omissions therefrom.

j. Common Interest Agreement. To the extent that any Confidential Information provided or made available hereunder may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient and Disclosing Party understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided or made available by the Disclosing Party that is entitled to protection under work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.

k. Indemnification by Recipient. The Recipient agrees to indemnify and hold the Disclosing Party (and its Representatives) harmless from and against any and all claims, demands, damages, actions, causes of action, losses and liabilities (including reasonable attorney fees and court costs), arising from, related to, or in connection with any unauthorized disclosure or use of Confidential Information caused by the Recipient or its Representatives.

8. Data Privacy.

a. Compliance with Applicable Laws. Each party acknowledges that data privacy regarding data relating to potential Leads is of utmost importance for the parties and hereby represents and warrants that during the (i) collection and (ii) transfer of data relating to Leads shall apply any and all applicable data privacy laws, including but not limited to, collecting consents from Leads to forward data obtained to or from Affiliate or Kiavi, as the case may be.

b. California Residents. Affiliate and Kiavi shall apply any additional data privacy and security standards as may be required under the California Consumer Privacy Act (CCPA) for Leads who are California residents protected by CCPA. Accordingly, Affiliate agrees that it is in compliance with, and will continue to comply with, the requirements stated in the California Privacy Addendum incorporated herein by this reference.

9. Term.

a. In General. The term of this Agreement (the “Term”) shall begin on the date first written above and shall remain in effect for one (1) year, unless specified elsewhere in this Agreement. Thereafter, the Term shall be automatically renewed for additional periods of one (1) year unless either party gives notice of non- renewal no less than thirty (30) days before the expiration of the then-current term.

b. Termination without Cause. Either Affiliate or Kiavi may terminate this Agreement for any reason or no reason by giving no less than thirty (30) days’ notice to the other party.

c. Termination for Cause. Either Affiliate or Kiavi may terminate this Agreement in the event the other party breaches this Agreement and such breach is not cured within ten (10) days’ notice from the non-breaching party.

d. Result of Termination. Following any termination of this Agreement (i) Affiliate shall not forward any additional Affiliate Leads or Affiliate Lead information, but (ii) the parties shall comply with any obligations that, by their terms, extend beyond termination of the Agreement. The termination of this Agreement shall not affect the rights or obligations of the parties as in effect immediately before termination.

10. Indemnification for Claims in Connection With Leads

a. Indemnification by Kiavi. Kiavi shall indemnify and hold Affiliate harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising from claims made by a Lead against Affiliate in connection with any Loan and associated transactions subsequent to referral of the Lead, except to the extent such claims, liabilities, losses, damages, costs or expenses were caused by Affiliate’s breach of Sections 4,5, 7 and/or 8.

b. Indemnification by Affiliate. Affiliate shall indemnify and hold Kiavi harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising from claims made by Leads against Kiavi in connection with the referral of the Lead to Kiavi, including but not limited to claims, liabilities, losses, damages, costs or expenses caused by Affiliate’s breach of Sections 4,5, 7 and/or 8.

c. Notice of Claim. Upon receipt of a third party claim or demand for which a party is entitled to indemnification, such party (the “Indemnified Party shall (i) notify the party required to provide such indemnification (the “Indemnifying Party) in writing of the nature of the claim and the names and addresses of the persons involved in or having an interest in such claim; (ii) furnish the Indemnifying Party with all documents and information within the possession, custody, or control of the Indemnified Party and relating to such claim; and (iii) cooperate with the Indemnifying Party should the Indemnifying Party choose to defend such claim pursuant to Section 10.d.

d. Defense of Claim. Upon receipt of the notice described in Section 10.c, the Indemnifying Party shall be entitled to exercise control of the defense and settlement of any third party claim giving rise to the claim to indemnification, provided that (i) such defense and settlement shall be at the sole cost and expense of the Indemnifying Party; (ii) the Indemnifying Party shall notify the Indemnified Party of its intention to assume control of the defense and settlement within a reasonable time of its receipt of the notice described in Section 10.c; (iii) the Indemnifying Party shall be permitted to control the defense of the claim only if the Indemnifying Party is financially capable of such defense and engages the services of a qualified attorney, each in the reasonable judgment of the Indemnified Party; (iv) the Indemnifying Party shall not thereafter withdraw from control of such defense and settlement without giving reasonable advance notice to the Indemnified Party; (v) the Indemnified Party shall be entitled to participate in, but not control, such defense and settlement at its own cost and expense; (vi) before entering into any settlement of the claim, the Indemnifying Party shall be required to obtain the prior written approval of the Indemnified Party, which shall be not unreasonably withheld, if pursuant to or as a result of such settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or its assets or business; and (vii) the Indemnifying Party will not enter into any settlement of any such claim without the prior written consent of the Indemnified Party, unless the Indemnifying Party agrees to be liable for any amounts to be paid to the third party pursuant to such settlement and satisfies to the reasonable satisfaction of the Indemnified Party its ability to satisfy such liability.

11. Limitations.

a. Limitation of Liability. NEITHER AFFILIATE NOR KIAVI SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION, INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Limitation of Damages. THE AGGREGATE MONETARY LIABILITY OF EITHER PARTY FOR ANY CAUSE OR CAUSES (REGARDLESS OF THE FORM OF ACTION) UNDER OR RELATING TO THIS AGREEMENT, WHETHER PRIOR OR SUBSEQUENT TO ITS TERMINATION, SHALL IN NO EVENT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO AFFILIATE BY KIAVI PURSUANT TO THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS.
c. Exceptions. The limitations set forth in Section 11.a and 11.b shall not apply to (i) under Section 6 (for infringement of Kiavi’s intellectual property), (ii) claims under Section 7 (dealing with confidentiality), (iii) claims under Section 8 and the related California Privacy Addendum (dealing with data privacy), (iv) claims under Section 11 (dealing with indemnification), (v) claims by either party for the actual compensation due under the Agreement, or (vi) claims based upon the gross negligence or willful misconduct of either party.

12. Miscellaneous.

a. Modification. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.

b. Governing Law; Jurisdiction and Venue; General. This Agreement shall be governed by the internal laws of the State of California without giving effect to conflicts of laws principles and regardless of the choice of law rules of the particular forum. Each party hereby consents to service of process by notice sent by regular mail by any means authorized by California law. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the City and County of San Francisco, and each Party submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. The terms of this Agreement shall be binding on both Parties. Except as provided in above, neither Party shall assign, transfer or delegate its rights or duties under this Agreement without the prior written consent of the other Party. Each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. All notices hereunder to Kiavi shall be given with an electronic copy to legalnotices@kiavi.com.

c. Force Majeure. Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

d. Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that they have reviewed and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement.

e. No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound, only if and when Affiliate has executed this Agreement.

f. Assignment. Affiliate may not assign or otherwise transfer this Agreement in whole or in part, or his, her, or its rights or duties hereunder without the prior written consent of Kiavi. Such assignment shall not relieve Affiliate of its obligations hereunder. Any attempted assignment without such required prior written consent shall be null and void, and of no force and effect.

g. No Third-Party Beneficiaries. Except as otherwise specifically provided in this Agreement, this Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way.

h. Insurance. Affiliate shall maintain insurance in types and amounts appropriate to its business and as reasonably requested by Kiavi. Such insurance shall include errors and omissions insurance in a reasonable per occurrence amount. Affiliate shall provide Kiavi proof of insurance upon demand by Kiavi, including a certificate of insurance.

i. Titles and Captions. All article, section, and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.

j. Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require.

k. Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.

l. Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal counsel and shall be deemed to be given (i) one (1) day after the date such notice is deposited with a commercial overnight delivery service with delivery fees paid, or (ii) on the date transmitted by facsimile or electronic mail with transmission acknowledgment.

m. Entire Agreement. “Agreement” means this Affiliate Marketing Program Agreement and includes any schedules or riders hereto, or any subsequent written amendments thereto. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings.

n. Severability. Notwithstanding the foregoing or anything to the contrary herein, if and to the extent any of the provisions hereof are deemed non-enforceable, such provision shall be deemed removed and the balance of this Agreement shall remain in full force and effect. Further any Addenda, shall remain enforceable and in effect beyond the term of this Agreement, including with respect to consumer protections, intellectual property, and confidentiality requirements.

o. Publicity. Neither party to this Agreement shall publicize its business relationship with the other party to this Agreement without the prior written authorization of the other party. Each party agrees not to use any trade name, trademark, service mark or logo or any other information that identifies the other party in their sales, marketing or publicity activities and/or materials without prior written consent. Media releases or publications of any kind, and interviews with representatives of any written publication, radio or television station or network, or Internet site or outlet are included within the foregoing prohibition.

p. Attorney’s Fees. If either party shall bring an action against the other by reason of the breach or alleged violation of any covenant, term or obligation hereof or for the enforcement of any provision or otherwise arising out of this Agreement, the prevailing party in such suit shall be entitled to its costs of suit and reasonable attorneys’ fees which shall be payable whether or not such action is prosecuted to judgment.

q. Independent Contractor; Disclaimer of Agency. Each Party shall perform services hereunder as an independent contractor and nothing herein shall be construed as creating any other relationship between the Parties. Each Party and each Party's contractor shall be solely responsible for the withholding or payment of all applicable federal, state and local income taxes, social security taxes and other payroll taxes with respect to their employees, as well as any taxes, contributions or other obligations imposed by applicable state unemployment or workers' compensation acts. Each Party has sole authority and responsibility to hire, fire and otherwise control its employees. Except for provisions herein expressly authorizing a Party to act for another, nothing in this Agreement shall constitute a Party as a legal representative or agent of the other Party, nor shall a Party have the right or authority to assume, create or incur any liability or any obligation of any kind, express or implied, against or in the name or on behalf of the other Party unless otherwise expressly permitted by such other Party under this Agreement. Except as otherwise expressly provided in this Agreement, no Party undertakes to perform any obligation of the other Party, whether regulatory or contractual, or to assume any responsibility for the management of the other Party's business.

CALIFORNIA PRIVACY ADDENDUM

This California Privacy Addendum (“Addendum”) to the Affiliate Marketing Agreement, dated, is acknowledged and agreed to by Affiliate. Kiavi and Affiliate are collectively referred to as the “Parties” and each individually referred to as a “Party.” While this Addendum is incorporated into the Agreement, it is also an independent agreement between the parties and a termination of the Agreement shall not terminate the agreements of this Addendum which shall expressly survive the expiration or earlier termination of the Agreement.

WHEREAS, the Agreement contemplates Affiliate will perform certain work for the benefit of recipients of Loans from Kiavi (the “Services”); and

WHEREAS, this Addendum defines the Parties’ relationship, obligations, and compliance with California laws and regulations governing Personal Information.

NOW THEREFORE, in consideration of the mutual promises in this Addendum, the Parties agree to the following:

1. Definitions. Unless otherwise defined herein, all capitalized terms are as defined in the Agreement or Applicable Laws. To the extent there is any conflict between the definition of a capitalized term in the Agreement or this Addendum and the definition of that same term under the Applicable Laws, that conflict shall be resolved in favor of the definition that imposes more restriction on Affiliate’s use of Personal Information.

a. “Personal Information” shall mean information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, as defined under Cal. Civ. Code § 1798.140(v)(1), and that is collected, received, processed, or otherwise used by Affiliate in providing the Services to Kiavi.

b. “Applicable Laws” means all applicable United States federal or state privacy and data protection laws including, without limitation, the California Consumer Privacy Act of 2018 (“CCPA”), Cal. Civ. Code Section 1798.100, et seq., as may be amended from time to time (including but not limited to those amendments enacted by the California Privacy Rights Act of 2020 (“CPRA”), and any implementing regulations relating to the same.

2. Compliance with Applicable Laws. Affiliate shall comply with the Applicable Laws during the course, scope, and performance of the Agreement.

3. Affiliate’s Use of Personal Information. Affiliate is a “Affiliate” and not a “third party,” as those terms are defined by the CCPA and the CPRA. Affiliate shall not: (A) retain, use or disclose Personal Information for any purpose other than for the business purpose(s) set forth in the Agreement; (B) retain, use, or disclose Personal Information for a commercial purpose other than providing the Services; (C) “sell” or “share” Personal Information, as defined under the CCPA and CPRA; (D) retain, use or disclose Personal Information outside of the direct business relationship between Kiavi and Affiliate; or (E) combine Personal Information received from or on behalf of Kiavi with Personal Information received from or on behalf of any other person or collected from Affiliate’s own interaction with a consumer, except as specifically allowed under the CCPA and CPRA.

4. Sensitive Personal Information . In addition to all other requirements applicable to Personal Information, if any “Sensitive Personal Information” as defined under Cal. Civ. Code § 1798.140(ae) is disclosed by Kiavi to Affiliate, Affiliate will comply with all instructions relating to such Sensitive Personal Information that may be provided by Kiavi to Affiliate.

5. Minimum Security Requirements. Affiliate shall implement commercially reasonable and appropriate safeguards to secure and protect the privacy, accuracy, and reliability of Personal Information, including full compliance with any data security requirements contained in the Agreement.

6. Subcontractors. Affiliate acknowledges that the restrictions and obligations under the Applicable Laws, this Addendum, and the Agreement apply even if it uses Subcontractors in the operation of its business. Affiliate shall not disclose Personal Information to Subcontractors for any purpose other than for Subcontractors to assist Affiliate in the performance of the Services. In all such instances, in addition to the obligations under the Agreement, Affiliate is responsible for ensuring that all Subcontractors comply with the terms of the Agreement, the Addendum, and the Applicable Laws. Affiliate shall be liable for the acts and omissions of its Subcontractors to the same extent Affiliate would be liable if performing the Services of each Subcontractor directly under the Agreement.

7. Party Cooperation. Affiliate will cooperate with Kiavi, and promptly (and in any event within ten days following notice by Kiavi) provide any information and documents requested by Kiavi to respond to requests by consumers under the Applicable Laws. Affiliate further agrees to timely carry out any requests for deletion or correction of Personal Information that may be made to Kiavi by consumers. Upon notice of a request for deletion or correction of Personal Information, Affiliate will delete or correct (as applicable) the consumer’s Personal Information from its systems and records and notify Affiliate’s own employees and Contractors to delete or correct the Personal Information (as applicable) unless this proves impossible or involves disproportionate effort. Affiliate shall also notify Kiavi within two business days if Affiliate receives any requests by consumers under the Applicable Laws related to their Personal Information. Affiliate shall promptly inform the consumer that the request cannot be acted upon because the request has been sent to an Affiliate. If Affiliate becomes aware of any unauthorized access to, use of, exfiltration, theft, disclosure or sharing of Personal Information entrusted to Affiliate by Kiavi (a “Data Breach”), Affiliate shall inform Kiavi without undue delay and in any event no later than 24 hours after it becomes aware of such Data Breach.

8. Audit. Affiliate will cooperate with Kiavi, its internal auditors and external auditors for the purpose of inspecting, examining, and assessing (collectively, “Auditing”) Affiliate’s and any of its subcontractors’ and third- party suppliers’ compliance with the obligations defined in this Addendum or the Agreement, as it relates to the Services. This Auditing may be conducted through measures including, but not limited to, manual reviews and automated scans, as well as technical and operational testing. Auditing may take place at least once every twelve (12) months.

9. Indemnity. Affiliate agrees to indemnify, defend, and hold harmless Kiavi and each of its officers, directors, employees, contractors and agents from and against all losses, fines, liabilities, damages, settlements, actions, claims, suits, investigations, or other proceedings (including, without limitation, legal fees and costs) to the extent relating to or arising from: (i) Affiliate’s failure to comply with its obligations as set forth in this Addendum; (ii) Affiliate’s failure to comply with Applicable Laws; or (iii) any Data Breach.

10. Certificate of Compliance. By acknowledging this Addendum, Affiliate certifies that it understands the restrictions set forth herein and will comply with them.

11. Notice of Inability to Comply. Affiliate shall immediately notify Kiavi if it determines that it can no longer meet its obligations under this Addendum or Applicable Laws. Upon such notice, Kiavi shall have the right to take reasonable and appropriate steps to stop and remediate any unauthorized use of Personal Information by Affiliate.

Lead States List

1. Alabama
2. Alaska
3. Arizona
4. Arkansas
5. California
6. Colorado
7. Connecticut
8. Delaware
9. Florida
10. Georgia
11. Hawaii
12. Idaho
13. Illinois
14. Indiana
15. Iowa
16. Kansas
17. Kentucky
18. Louisiana
19. Maine
20. Maryland
21. Massachusetts
22. Michigan
23. Minnesota
24. Missouri
25. Montana
26. Nebraska
27. Nevada
28. New Hampshire
29. New Jersey
30. New York
31. North Carolina
32. North Dakota
33. Ohio
34. Oklahoma
35. Oregon
36. Pennsylvania
37. South Carolina
38. South Dakota
39. Tennessee
40. Texas
41. Virginia
42. Washington
43. Washington D.C.
44. Wisconsin
45. West Virginia
46. Wyoming

Content Creation Addendum

1. 1. Services/Deliverables. During the term of the Agreement, if you are granted permission by Kiavi to publish marketing content on your website, your social media accounts, and/or content platforms and/or other physical content (collectively the "Deliverables"), you agree the Deliverables will conform to the specifications and instructions outlined within this Content Creation Addendum. We will provide you with the necessary briefing materials, so you can create Deliverables that achieve the goals of the applicable Campaign (the “Campaign Materials).
   2. Compliance with FTC Guidelines and Company Policies.

(a) Your Deliverables must comply with the Federal Trade Commission’s (the “FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”), for which we provide you a link in Content Creation Addendum - Exhibit A. You agree to participate in any training we require which is designed to ensure compliance with the Endorsement Guides. You must clearly and conspicuously disclose your “material connection” with us, making it clear that you are a paid influencer and/or have received free products, gifts, travel or any other incentives. You must place the disclosure in plain sight in close proximity to any audio or visual communications that you make about us, our brands, and our products. If the Deliverable contains audiovisual content, you must make the disclosure both orally as well as visually in the caption/description. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures, and the disclosure must be “above the fold” meaning the viewer should see it without clicking a “see more” or similar button. The disclosure must travel with the Deliverable, whether it is shared on the same platform or posted on another platform. We require this disclosure regardless of any space limitations of the platform (like Twitter), where you can use hashtags for the disclosure (like #ad or #sponsored). If a platform does not allow for a clear and conspicuous disclosure, you should not use that platform. 

(b) Your Deliverables must only make factual statements about the Company and our products or services which you know for certain are true and can be proven or verified. In the Campaign Materials, we may provide you with a list of verified factual statements that you may use in your Deliverables as well as statements you should avoid making.

(c) Although we want your Deliverables to be authentic and based on your own opinions, beliefs, and experiences, your Deliverables should rely on the Campaign Materials to accurately use our trademarks, describe the applicable Campaign, and describe our products/services.

(d) Your Deliverables must be original and created solely by you.

(e) Your Deliverables must not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans unless you have obtained a signed release from the owner of the intellectual property, which you must submit to Company prior to posting.

(f) Your Deliverables may not include any person, or personally identifiable information about anyone, other than you, unless you receive our prior written approval and obtain a signed release from every other person that appears in the Deliverables, which you must submit to Company prior to posting.

(g) Your Deliverables must comply with the rules of the applicable social media platforms.

(h) Your Deliverables must comply with our standards of conduct set out in Content Creation Addendum - Exhibit A and any other policies we provide you.

(i) Your Deliverables must comply with all applicable laws, rules, and regulations.

3. Schedule[; Approval]. With respect to each Deliverable due during the Term, you will: (a) publish each Deliverable on a timely basis according to the schedule set out in the applicable SOW[;/.] (b) [submit all Deliverables to us for our review and approval at least 5 business days prior to the scheduled publishing date. We will notify you within [5] days of receiving each Deliverable whether we accept it or require revisions. No Deliverable shall be deemed approved unless and until we approve the Post in writing.]

4. Monitoring. You understand that we will be monitoring your Deliverables for compliance with this Agreement, including but not limited to compliance with the Endorsement Guides. We have the right to address noncompliant Deliverables (as determined by us in our sole discretion) by taking any of the following actions alone or in combination: (a) requiring you to fix the Deliverable; (b) fixing the Deliverable ourselves or, if applicable, through one of our agencies; (c) withholding payment of the Fee (or any portion thereof); and/or (d) terminating the Agreement under Paragraph 13(a) for a material breach. Without limiting the generality of the foregoing, at our request you agree to remove or modify (as instructed by us) any Deliverable that we determine in our sole discretion is not in compliance with this Agreement or the Endorsement Guides.

5. Ownership; Grant of Rights. You will own and retain all right, title, and interest in and to the Deliverables, subject to the license granted to us in this paragraph. We will own and retain all right, title, and interest in and to all derivative works of the Deliverables made by us, or by any third party for our benefit subject to your rights in the underlying Deliverables. You hereby grant to Company and our affiliates, and each of our respective direct and indirect licensees, successors, and assigns, an exclusive, perpetual, irrevocable, freely transferable and sublicensable, fully paid-up and royalty-free right and license to use the Deliverables, including all copyrights and other intellectual property rights therein and all renewals and extensions thereof, in all formats and media, whether now known and existing or hereafter discovered or developed, throughout the universe, for all or any purposes whatsoever in perpetuity. For purposes of clarity and without limiting the foregoing, you agree that this license gives us the right: (a) to modify, edit, combine with other materials, translate, include in collective works, and otherwise create derivative works of the Deliverables; and (b) to reproduce, perform (publicly or otherwise), display (publicly or otherwise), and transmit the Deliverables, including any derivative works of the Posts, in whole or in part. This provision will survive the expiration or termination of this Agreement.

6. Use of Your Name, Likeness, and Information. You hereby grant to Company and our affiliates, and each of our respective direct and indirect licensees, successors, and assigns, the right to use your name, image, likeness, voice, quotes, testimonials, statements, and biographical, professional, and other identifying information (including information you provide to us and any other information about you that is publicly available) (collectively, "Likeness"in connection with the Campaigns, the Deliverables, and any derivative works we make from the Deliverables, including to advertise and promote the same or any product or service that features or is included in at least one of the Deliverables or a derivative work. You waive the right to inspect or approve any use of your Likeness as contemplated in this Agreement.

7. Representations and Warranties. By providing the Deliverables to us, you represent and warrant that the Deliverables: (a) are your sole and original creation; (b) have not been, and prior to our publication of them will not be, published or otherwise made publicly available, in whole or in part; (c) are not libelous or otherwise defamatory; (d) do not, and our use or them will not, infringe or otherwise violate any right of any third party, including any copyright, trademark, patent, trade secret, or other intellectual property right, or any right of publicity or privacy; and (e) that you are not a party to or bound by any agreement that would prevent or restrict your ability to provide the Services or Deliverables set forth in this Agreement. You further represent and warrant that you will comply with all applicable laws and regulations (including without limitation the Endorsement Guides) in providing the Deliverables and performing your Services hereunder, and that the Deliverables will be truthful and reflect your honest opinions about our products/services.

8. Content Requirements: Affiliate will provide content that relates to the real estate investing financing strategies (“fix and flip”, “BRRRR”, etc.) provided by Kiavi that highlights the benefits of working with Kiavi as a “go-to” hard money lender to partner with by discussing “Key Messaging” or Affiliate’s own experience in utilizing Kiavi. 

a. Key Messaging: Kiavi provides financing to real estate investors through a technology platform that makes funding faster, more reliable, and scalable.

b. Kiavi provides bridge (fix-and-flip) and rental loan flexible financing with high leverage options

c. Kiavi offers reliable capital for confidence in closing

d. Kiavi’s easy, technology-powered platform makes the finding process faster

e. Kiavi is a trusted partner and reliable lender that provides industry guidance and support that helps real estate investors scale

f. Include #KiaviPartner in every post related to Kiavi

g. Include disclaimer that Affiliate may receive payment for their promotion of Kiavi as well as any additional disclaimers as supplied by Kiavi marketing team which must be displayed in any content in which Affiliate is promoting Kiavi and may be paid as provided for by the terms of the Agreement.

9. Content Distribution: Affiliate may post content on any of the following platforms/channels depending on their audience engagement and following:

a) Instagram
b) Facebook
c) YouTube
d) TikTok
e) Website

Content Creation Addendum - Exhibit A

Standards of Conduct

With respect to promotional messages, photos, or other communications made on social media platforms about Company and our products/services/brands, all influencers must adhere to the following standards:

1. You must comply with the Federal Trade Commission’s (the "FTC") Guides Concerning the Use of Endorsements and Testimonials in Advertising, including making: statements that reflect your honest beliefs, opinions, and experiences; and clear and conspicuous disclosure about your connection to us in all of your posts.
2. To better understand your responsibilities under the Endorsement Guides, you must review: 
   • The FTC’s Endorsement Guides: What People Are Asking. 
   • FTC: The Do’s and Don’ts for Social Media Influencers
   • FTC: Disclosures 101 for Social Media Influencers. 
   • FTC:Do you endorse things on social media? 
3. You may not:
   • make deceptive or misleading claims about our products/services or our competitors’ products or services;
   • make any claims about our products/services or our competitors’ products/services that are not backed up by evidence;
   • disclose any of our confidential information;
   • disparage Company or our brands/products/services;
   • engage in any communication that is defamatory or infringes upon the copyright, trademark, privacy, publicity, or other intellectual property rights of others;
   • offer for sale or solicit products on behalf of Company;
   • make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
   • post content that promotes bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
   • use ethnic slurs, personal insults, obscenity, or other offensive language; and
   • make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Company’s consumers or other individuals.
4. You must adhere to:
   • the posted policies, guidelines, and terms of use on any platform on which you post content on behalf of Company, understanding that any these platforms’ disclosure requirements about your connection to us do not necessarily satisfy FTC disclosure requirements;
   • any additional guidelines provided by Company, such as product-specific program requirements.
5. You must not create fake followers or engagement on social media platforms, such as: buying followers; using bots to grow audience size by automating account creation, following, commenting, and liking; or post fake sponsored content.

 

Schedule of Compensation

 

 

General Eligibility

 

Affiliate Program Terms & Conditions for Referred Borrower

If you (“Referor” or "Affiliate") or your referral (“Referee”) (together, “Referring Parties”) fail to meet any of the following obligations and conditions of the Kiavi Affiliate Program, you will be ineligible to receive a referral bonus for that referral.

1. Referring Parties must sign up for an account with PartnerStack^* and Stripe in order to submit a referral and receive payment.
2. Eligible Referors will receive a unique referral link to be provided to the Referee. This link will direct the Referee to a Kiavi landing page where they may begin their loan application. Referee MUST use this link to apply for a loan with Kiavi in order for either Referring Party to be eligible for a referral bonus.
3. Referors may not refer themselves or any business entity in which they hold any business interest.
4. Referee MUST submit their loan application within 90 days from the date they first submit information using the referral link.
5. Referee must be seeking a business purpose loan for residential property on behalf of a legally established business entity that was formed and is operating in the United States; individuals seeking consumers loans or businesses formed outside of the United States are ineligible.
6. Referee must successfully apply for and close the loan associated to the referral.

Additional Terms and Conditions

Kiavi will NOT pay any referral bonus unless Referee successfully closes the applied-for loan associated to the referral. Eligible Referees will receive a $350 referral bonus and eligible Referors will receive compensation per the terms in the Schedule of Compensation. Referral bonuses are paid via direct deposit within fifteen (15) business days of loan closing and approval of the referral on the PartnerStack platform. Payment will be made to the Referring Party via direct deposit through Stripe. Referring Parties must submit ACH information and a current W-9 on the PartnerStack platform in order for referral bonus payments to be processed. Failure to timely provide the required banking information and any other documents required by Kiavi, Partnerstack, or Stripe may result in a denial of payment of an otherwise eligible referral bonus payment. A 1099 may be issued to the Referring Parties for any applicable taxes. Referral bonuses are only for a Referee's first closed loan; any subsequent loans closed by the same Referees are ineligible for any further referral bonuses. Terms and conditions of the Affiliate Program program are subject to change and may be withdrawn at the sole discretion of Kiavi at any time.