BUTTER MASTER SUBSCRIPTION AGREEMENT
Last updated on: 2/8/2021
THIS AGREEMENT GOVERNS YOUR ORDERING AND USE OF OUR SERVICES. IF YOU ACCEPT A TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
PLEASE NOTE THAT DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
- means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Your Affiliates will have the right to enter into an Order executed by such Affiliate and Butter, and this Agreement will apply to each such Order as if such Affiliate had entered into to this Agreement. With respect to such Orders, such Affiliate becomes a party to this Agreement and references to You in this Agreement are deemed to be references to such Affiliate. Each Order is a separate obligation of the entity that enters into such Order.
- means this Master Subscription Agreement.
- “Anonymized Transaction Data”
- means anonymized transaction-level data provided by You via Our APIs in connection with Your use of a Service.
- means an individual who is authorized by You to use the Services on Your behalf and to whom You (or We at Your request) have supplied a user identification and password. Authorized Users may include, for example, Your employees, consultants, contractors and agents.
- "Beta Services"
- means Our Services that are not generally commercially available to Our customers.
- "Butter," "We," "Us" or "Our"
- means Big Bear Labs, Inc. d/b/a Butter, a Delaware corporation.
- or “You” means the entity that is listed in the applicable Order as a customer.
"Initial Subscription Period"
- means the initial period during which We will make the applicable Purchased Services available to You, as set forth in the applicable Order.
- means an ordering document (including any online form) specifying the Purchased Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto.
- "Purchased Services"
- means Services that You purchase pursuant to an Order.
- means the products and services that are ordered by You, including on a trial or subscription basis, and made available online by Us, including associated offline components.
- "Subscription Period"
- means, on an Order by Order basis, the Initial Subscription Period and any Renewal Period (as defined below).
- "Trial Products"
- means Services provided to You by Us on a trial basis.
- "Your Data"
- means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services.
2. Our Responsibilities.
- 1. Provision of Purchased Services. We will (a) use commercially reasonable efforts to make the Purchased Services available to You pursuant to this Agreement and the applicable Order, subject to reasonable downtime for maintenance of such Purchased Services, (b) provide support for registration and onboarding to the Purchased Services, and (c) provide support for such Purchased Services. Additional support may be available at an additional charge.
- 2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data and Anonymized Transaction Data.
3. Use of Services.
- 1. Trial Subscriptions. We may offer access to Trial Products for a certain period of time specified when you sign up for the Trial Product or in the Order. Except as may be otherwise provided in the specific terms for the trial offer, Trial Services are only available if You have not previously subscribed to the Services in connection with which the trial is being offered. We reserve the right to terminate trials at any time, without notice and in our sole discretion. In order to continue using the Services that are subject to a trial, you must purchase a subscription to such Services before the trial ends.
- 2. Your Responsibilities. You will (a) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Services and be solely responsible for its failure to maintain such equipment, software and services, and Butter will have no liability for such failure (including under any service commitments, if applicable), (b) be responsible for Your compliance and Authorized Users' compliance with this Agreement, (c) be responsible for the accuracy, quality and legality of Your Data and Anonymized Transaction Data, (d) ensure that You have the necessary rights to share Your Data and Anonymized Transaction Data to Us pursuant to this Agreement, (e) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (f) use the Services only in accordance with applicable laws and government regulations, and (g) otherwise comply with all other Customer obligations described in this Agreement or the applicable Order.
- 3. Personally Identifiable Information. You will ensure that the transaction-level data you provide to Butter via the Services does not include any information that could reasonably identify an individual (including without limitation “Personal Data” under GDPR and “Personal Information” under CCPA).
- 4. Usage Restrictions. You acknowledge and agree that We have no obligation to monitor or police the content of communications or data of You or Authorized Users, and that We are not responsible for the content of any such communications or transmissions. You will not (a) make the Services available to, or use the Services for the benefit of, anyone other than You or Your Authorized Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) store or transmit infringing, libelous, or otherwise unlawful or tortious material through the Services, (d) store or transmit material in violation of third-party intellectual property, proprietary, privacy, or similar rights through the Services, (e) store or transmit malicious code through the Services, (f) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (g) attempt to gain unauthorized access to the Services or their related systems or networks, (h) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (i) copy the Services or any part, feature, function or user interface thereof, (j) frame or mirror any part of the Services, other than framing on Your own intranets or otherwise for Your own internal business purposes, (k) access the Services in order to build a competitive product or service, to obtain competitive information or for other competitive purposes, (l) reverse engineer the Services or any part thereof, (m) modify, translate, or otherwise create derivative works of the Services; (n) allow the removal, alteration, covering, or obscuring of any Butter Trademarks that appear on the Services, (o) promote, market, or sell any products or services that are competitive with the Services, or (p) use the Services in violation of any applicable law or outside the scope expressly permitted herein.
- 5. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such Beta Services in Your sole discretion. Beta Services will be designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered "Services" under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any right to use Beta Services will expire upon the earlier of one year from the start date or the date that a version of the Beta Services becomes generally available. We may terminate Your right to use Beta Services and/or discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with the Beta Services, and You accept all risk associated with use of the Beta Services.
4. Fees and Payment for Purchased Services.
- 1. Fees. You agree to pay all fees specified in an Order for the entire Subscription Period specified in the Order, and any additional Services obtained through renewals, additional Orders and/or revised Orders. Except as otherwise specified herein or in an Order, payment obligations are non-cancelable and fees paid are non-refundable.
- 2. Invoicing and Payment. You will provide Us with valid and current payment and/or invoicing information, or with an alternative form of payment acceptable to Us in Our sole discretion. You authorize Us to charge for all Purchased Services listed on the Order for the Initial Subscription Period and any Renewal Periods. Such charges shall be made in advance in accordance with the frequency stated on the applicable Order. Unless otherwise stated on the Order, invoiced charges are due net 30 calendar days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. You are solely responsible for any consequences attributed to Your failure to provide current, complete, and accurate billing and contact information including, but not limited to, overdue charges as set forth in Section 4.3.
- 3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) You agree that We may impose late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
- 4. Suspension of Services and Acceleration. If any amount owed by You under this or any other agreement for any Services is 30 or more days overdue We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations pursuant to the Order become immediately due and payable, and suspend the Services to You until such amounts are paid in full. We will give You at least 7 days' prior notice that Your account is overdue, in accordance with Section 11.1 (Notices), before suspending Services to You.
- 5. Payment Disputes. We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if You (a) are disputing the applicable charges reasonably and in good faith; (b) are cooperating diligently to resolve the dispute; and (c) timely pay any undisputed amounts due.
- 6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, accessible by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
- 7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
5. Proprietary Rights and Licenses.
- 1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Services, including all of Our related intellectual property rights. Our intellectual property rights include, without limitation, all rights associated with the Services and the Beta Services, and the online, web-based applications and platform provided by Us. No rights are granted to You hereunder other than as expressly set forth herein.
- 2. License by You to Host Your Data. You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data and Anonymized Transaction Data created or provided by or for You using the Services, as necessary for Us to provide the Services in accordance with this Agreement. In addition, You grant Us a perpetual, irrevocable right to maintain, access, and use Your Data and Anonymized Transaction Data in order to improve Our services. Without limiting the foregoing, We may (i) disclose Your Data and Anonymized Transaction Data to Our service providers to process and supplement Your Data and Anonymized Transaction Data for the purpose of providing the Services in accordance with this Agreement, (ii) use or disclose Anonymized Transaction Data to help our clients learn more about their current and prospective customers, and to assist them in communications and marketing activities; and/or (iii) use or disclose without restriction Anonymized Transaction Data for any purpose.
- 3. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our or Our Affiliates’ offerings any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Authorized Users relating to the operation of the Services.
- 4. License by You to Disclose Business Relationship. You grant to Us and Our Affiliates a worldwide, royalty-free license to use any of Your trademarks, brand names, and/or logos for the limited purpose of disclosing that Butter provides services to You. The license set forth in this Section 5.5 shall be valid only during the period of time in which Butter provides Services to You and shall expire at the termination of this Agreement.
- 5. Remedies for Infringement Claims Related to the Services. If We receive information about an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 7.2 (Our Warranties), (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your access to any Trial Service immediately and Your subscriptions for the Services upon 30 days' written notice and refund You a pro rata amount of any prepaid fees covering the remainder of the applicable Subscription Term. Notwithstanding any contrary provision in this Agreement, if We provide any of the remedies set forth in this Section 5.6, You agree that such action satisfies Our obligations under this Agreement, and You are not eligible for further relief, subject to Our indemnification obligations in Section 8.1.
- 1. Definition. “Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- 2. Obligations. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such Confidential Information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and representatives who have a need to know and are legally bound to keep such information confidential; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).
7. Representations, Warranties, Exclusive Remedies and Disclaimers.
- 1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
- 2. Our Warranties. We warrant that We will use commercially reasonable efforts to provide You with the Purchased Services in accordance with Section 2.1. For any breach of an above warranty, Your exclusive remedies are those described in Sections 10.3 (Termination) and 10.4 (Refund or Payment upon Termination).
- 3. Your Warranties. You warrant that Your use of the Services or execution of this Agreement does not and will not conflict with Your obligations to any third parties.
- 4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; CLAIM OF INFRINGEMENT; OR CLAIM IN TORT (WHETHER BASED ON NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHER THEORY). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
- 1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a "Claim Against You"), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense (including selection of attorneys) and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it releases You of all liability), and (c) give Us necessary assistance, at Our expense. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement, modification of the Purchased Service by or on Your behalf or the combination, operation or use of the Purchased Service with other applications, products or services where the Purchased Service would not by itself be infringing.
- 2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your breach of this Agreement, or any conduct arising out of Your breach of this Agreement infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against Us"), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense (including selection of attorneys) and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it releases Us of all liability), and (c) give You necessary assistance, at Your expense.
- 3. Exclusive Remedy. Section 5.6 and this Section 8 state the indemnifying party's sole liability to, and the indemnified party's exclusive remedies against, the other party for any type of claim described in this Section 8.
9. Limitation of Liability.
- 1. Limitation on Damages. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
- 2. Exclusion of Consequential and Related Damages. NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- 3. Exceptions. THE ABOVE LIMITATIONS IN SECTIONS 9.1 AND 9.2 WILL NOT APPLY TO: (A) EITHER PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT; (B) CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES); (C) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8; (D) EITHER PARTY'S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6; OR (E) EITHER PARTY'S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.
10. Term and Termination.
- 1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all trials and subscriptions hereunder have expired or have been terminated.
- 2. Term of Purchased Subscriptions. The Initial Subscription Period shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the Initial Subscription Period or one year, whichever is shorter (each, a "Renewal Period"), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Initial Subscription Period or Renewal Period. The per-unit pricing during any Renewal Period will be the same as that during the immediately prior Initial Subscription Period or Renewal Period, as applicable, unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
- 3. Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach, including nonpayment, if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- 4. Refund or Payment upon Termination for Cause. If this Agreement is terminated by You in accordance with Section 10.3 (Termination for Cause), We will provide You a pro rata refund of any prepaid fees covering the remainder of the term for which such fees were prepaid after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 10.3, You will pay any unpaid fees for Purchased Services provided up to the effective date of termination. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
- 5. Surviving Provisions. The following provisions shall survive termination of this Agreement: Sections 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights and Licenses), 6 (Confidentiality), 7.4 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Surviving Provisions), 11 (Notices, Governing Law and Jurisdiction), 12 (Arbitration and Class Action Waiver), and 13 (General Provisions).
11. Notices, Governing Law and Jurisdiction.
- 1. Notices. All notices, permissions, approvals, and other communications which are required or permitted under this Agreement shall be in writing and shall be deemed to have been given upon: (i) the day of personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the Customer Billing Info contact on the Order. All other notices shall be addressed respectively (a) to Butter at Butter’s contact information on the Order and (b) to You at Your contact information on the Order.
- 2. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to its conflict of laws rules. Except for matters which must be arbitrated in accordance with Section 12, the parties specifically consent and agree that the courts of the State of California and/or the Federal Courts located in the Northern District of California will have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings.
12. Arbitration and Class Action Waiver.
PLEASE READ THIS SECTION 12 CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- 1. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If You have any dispute with Us, You agree that before taking any formal action, You will contact Us at legal@Butter.com, and provide a brief, written description of the dispute and Your contact information. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
- 2. Binding Arbitration. Except as provided in Section 12.4, if we cannot resolve a dispute informally, any dispute will be resolved only by binding arbitration in San Francisco, CA or another location that we have both agreed to, and not in courts of general jurisdiction. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated (referred to as the "JAMS Rules") and under the rules set forth in this Agreement. If there is a conflict between JAMS Rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to You pursuant to Your state's law.
If You decide to initiate arbitration on behalf of the company or legal entity You represent, You will be required to pay the arbitration initiation fee as well as any additional deposit required by JAMS to initiate Your arbitration. You also agree to pay the costs of the arbitration proceeding. Other fees, such as attorney's fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. To start an arbitration, You or We must do the following things:
(1) Write a Demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111; (415) 774-2609.
(3) Send one copy of the demand for arbitration to Us at the U.S. mailing address listed below.
Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 12 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
- Arbitrator's Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to Your use of the Services and the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- 3. Exceptions. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
- 4. Class Action Waiver. Both parties agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither You nor We can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Butter customers, and cannot be used to decide other disputes with other customers.
13. General Provisions.
- 1. Export Compliance. The Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Authorized Users to access or use the Services or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
- 2. Anti-Corruption. Where anti-corruption laws are applicable, You acknowledge that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@Butter.com.
- 3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a Void Contracting Method. A "Void Contracting Method" is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for Us through Your action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if You are informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.
- 4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without prior notice to the other party's; provided, however, either party may assign this Agreement in its entirety (including all Orders) to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning party under the Agreement. If Your fees for a subscription-based Purchased Service are paid upfront and are not limited to a specific number of transactions, and You assign this Agreement or otherwise undergo a change of control, then Your right to use such Purchased Service will be limited to the number of transactions that You had historically used such Purchased Service prior to such assignment or change of control, unless the parties mutually agree in writing on new pricing for such Purchased Service. In the event of such a termination, We will refund to You a pro rata amount of any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- 6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
- 7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- 8. Construction. This Agreement has been prepared with the participation of each party and will not be strictly construed against either party. Each party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.
- 9. No Third-Party Beneficiaries. No Authorized User nor any other third party, other than as expressly set forth in this Agreement, is a third-party beneficiary to this Agreement (except that the specified indemnified parties are third-party beneficiaries of the indemnification and defense provisions).
- 10 Force Majeure. If the performance of this Agreement or any obligations hereunder is prevented or interfered with by reason of any force majeure act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
- 11. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.