Butter Addendum – Post-dunning Outreach Services (SMS/MMS and Email)

For the purposes of this Addendum, “Electronic Communication, Telephone Privacy and Debt Collection Laws” mean (a) the United States Telephone Consumer Protection Act, 47 U.S.C. § 227and any implementing regulations; (b) the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101-6108; (c) the Federal Trade Commission’s Telemarketing Sales Rule, 16 CFR Part 310; (d) the Mobile Marketing Association’s U.S. Consumer Best Practices for Messaging; (e) the policies and rules of the Wireless Association (CTIA), including the CTIA Messaging Principles and Best Practices Guidelines, and any similar generally accepted industry policies or rules adopted by carriers, or other practices enforced by carriers; (f) any contractual obligations and requirements by applicable mobile carriers; (g) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. §§ 7701-7713 (CAN-SPAM Act)and any implementing regulations; (h) Canada’s Anti-Spam Legislation, S.C.2010, c. 23; (i) the federal Fair Debt Collection Practices Act; and (j) any other state or federal laws, rules, regulations or requirements concerning debt collection or dunning communications, electronic communications, telephone solicitation, telemarketing, text messages, autodialing, junk messaging, spam messaging, or other similar uses of telecommunications and electronic communication networks; and (k) any successor laws or regulations, as in effect during the term of this Agreement.

2. Use of Outreach Services

You agree to familiarize Yourself with and comply with the applicable Electronic Communication, Telephone Privacy and Debt Collection Laws pertaining to Your use of the Outreach Services.   

You acknowledge and agree that Butter only serves as a technology platform to facilitate SMS/MMS message and email delivery (“Communications”) initiated and directed by You and executed by downstream third-party messaging service providers and carriers outside the control of Butter (e.g., Iterable). Butter does not “initiate” or “send” Communications as those terms are defined in Electronic Communication, Telephone Privacy and Debt Collection Laws. The Services do not include any capabilities related to managing consents, opt-out requests, or unsubscribe mechanisms, or otherwise intended to assist customers in complying with their obligations under the Electronic Communications, Telephone Privacy and Debt Collection Laws. To the extent Butter provides advice, guidance, templates, or suggestions (collectively “Templates”) to You, the foregoing is provided solely for convenience and should not be taken as legal advice or guidance. Regardless of the fact that certain features and/or Templates may be made available to You through the Services, Butter is not responsible for assisting you in complying with your obligations under the Electronic Communication, Telephone Privacy and Debt Collection Laws. You acknowledge that You remain solely responsible for compliance with the Electronic Communication, Telephone Privacy and Debt Collection Laws, including without limitation, all actions necessary to ensure that any required consents are obtained and documented prior to sending communications to End Users or other individuals or businesses, that all opt-outs received through any reasonable method and unsubscribe requests are honored as required by any applicable law or regulation. You agree that no email Communications shall use false or misleading header information or deceptive subject lines; fail to identify itself as an advertisement if it is an advertisement; exclude clear and conspicuous instructions regarding how End Users may opt-out of marketing emails from You, if required under applicable law; or exclude Your postal address.

In order to use the Outreach Services, You must have an active account with Iterable, Inc. or another third-party SMS/MMS messaging and/or email delivery service provider accepted by Butter for Communications delivery (“Messaging Provider”). You acknowledge and agree that Butter is not a party to Your agreement with any Messaging Provider and is not responsible for, and hereby disclaims all responsibilities for, the actions and inactions of such Messaging Partner. Butteris not responsible for any costs, fees, or other expenses in connection with Your use of such services.

3. Representations and Warranties

For the purposes of this Addendum: (a) the representations and warranties of the parties set forth in the Agreement applicable to the Services shall be deemed to apply, and to be repeated, with respect to the Outreach Services and (b) in addition to the representations and warranties in the Agreement, You represent and warrant that, in Your use of the Services, You will not, and will not cause any third-party to: (i) send any Communications in violation of any of the Electronic Communications, Telephone Privacy and Debt Collection Laws or participate in “spamming” activities; (ii) mislead others as to the identity of the sender of any Communications; (iii) engage in any illegal dunning or debt collection practices;(iv) send any SMS/MMS messages to any emergency telephone line; (v) send emails with deceptive subject lines or without a valid physical postal address or (vi)perform any other illegal act.  

You acknowledge and agree that Butter is in no way responsible for the contents of any Communications You send, cause to be sent, or permit to be sent via the Services.  

EXCEPTAS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE OUTREACH SERVICES AND TEMPLATESARE PROVIDED “AS IS,” AND BUTTER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHERREPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED ORSTATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OFMERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULARPURPOSE.  

4. Additional Indemnification

IN ADDITION TO THEINDEMNIFICATION REQUIREMENTS IN THE AGREEMENT, YOU AGREE TO INDEMNIFY, DEFENDAND HOLD BUTTER AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTSHARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, CLAIMS, OBLIGATIONS,DAMAGES, COSTS AND EXPENSES, INCLUDING REASONABLE LEGAL FEES INCURRED, INCONNECTION WITH OR ARISING OUT OF (A) YOUR USE OF THE OUTREACH SERVICES; (B)YOUR BREACH OF ANY REPRESENTATIONS OR WARRANTIES MADE UNDER THE AGREEMENT; (C)YOUR VIOLATION OF THE ELECTRONIC COMMUNICATION, TELEPHONE PRIVACY AND DEBTCOLLECTION LAWS AS APPLICABLE TO COMMUNICATIONS YOU SEND, CAUSE TO BE SENT, ORPERMIT TO BE SENT VIA THE SERVICES, INCLUDING WITHOUT LIMITATION THE OUTREACHSERVICES; AND (D) THE CONTENTS OF ANY COMMUNICATIONS YOU SEND, CAUSE TO BESENT, OR PERMIT TO BE SENT VIA THE SERVICES, INCLUDING WITHOUT LIMITATION THE OUTREACHSERVICES. NOTWITHSTANDING THE FOREGOING, BUTTER RESERVES THE RIGHT, AT YOUREXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE OF ANY MATTER IN WHICH IT MAY BEINDEMNIFIED BY YOU UNDER THIS PARAGRAPH. YOU SHALL NOT ENTER INTO ANYSETTLEMENT OF ANY OF THE ABOVE MATTERS WITHOUT THE PRIOR WRITTEN CONSENT OF BUTTER.    

THEINDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 4 SHALL BE AN “EXCLUDEDLIABILITY” UNDER SECTION 9 OF THE BUTTER SUBSCRIPTION TERMS AND CONDITIONS THATARE PART OF THE AGREEMENT. 

5. Reservation of Rights

From time to time, Butter may, but is under no obligation to, monitor and review Your use of the Outreach Services to confirm compliance with the Agreement (including this Addendum).Notwithstanding anything else under the Agreement (including this Addendum), Butter retains the right to limit, suspend, or terminate Your use of the Services, in whole or part, if it determines in its sole discretion that such use violates the requirements of the Agreement (including this Addendum) or any applicable laws, rules and regulations, including any of the Electronic Communications, Telephone Privacy and Debt Collection Laws, or You are otherwise breaching any term of the Agreement (including this Addendum).

6. Terms

The terms of this Addendum supersede provisions in the Agreement only to the extent that the terms of this Addendum and the Agreement expressly conflict and then only with respect to the Outreach Services. Nothing in this Addendum should be interpreted as invalidating the Agreement, and provisions of the Agreement will continue to govern relations between the parties, including the Outreach Services, insofar as they do not expressly conflict with this Addendum.   

7. Counterparts

This Addendum may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument.