Butter Subscription Terms and Conditions

Definitions.

‍“Affiliate” 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.‍

“Authorized User” means an individual who is authorized by You to use the Services, for whom You have ordered the Service, 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 available to Our customers.‍

“End User” means any of individual who makes a transaction through Your website, platform, or other offering.‍

“End User Data” means data, content, and/or information about Your End Users.‍

“Initial Subscription Period” means the initial period during which We will make the Ordered Services available to You, as set forth in the Order.‍

"Order" means an ordering document that references these Terms, specifying the Services to be provided hereunder, that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto.

‍“Ordered Services” means Services that You order pursuant to an Order, as distinguished from those provided pursuant to a Trial Subscription.‍

“Personal Data” means: (a) all data that falls within the definition of personal information, personal data, personally identifiable information or similar language under applicable Privacy Laws; (b) all personally identifiable information including name, residential or business address, email address, telephone number, photograph, account number, driver’s license, passport, social security or government issued identification number, and (c) all other information relating to or associated with such personally identifiable information.‍

“Privacy Laws” means any applicable law related to the protection, privacy, and security, collection, use, or disclosure of sensitive or other personally identifiable information, including but not limited to, as applicable, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time and the California Consumer Privacy Act).

‍“Services” means the products and services that are ordered by You under a Trial Subscription or an Order and made available online by Us, including associated offline components.

‍“Subscription Period” means the Initial Subscription Period and any Renewal Period (as defined below).

‍“Trial Subscription” means products and services provided to You by Us on a trial basis.

‍“You” or “Your” means the Licensee.

‍“Your Data” means electronic data and information submitted by or for You to the Services.

‍“Butter,” “We,” “Us” or “Our” means Butter Payments, Inc., a Delaware corporation.

Our Responsibilities.

1. Provision of Ordered Services. We will (a) use commercially reasonable efforts to make the Ordered Services available to You pursuant to this Agreement and the applicable Order, subject to reasonable downtime for maintenance of Our Services, and (b) provide reasonable support for registration/onboarding to the Ordered Services consistent with our then-standard practices. Additional support may be available at an additional charge.
2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Your Data and End User Data.

Access to and Use of Services.

1. Subscriptions. Except for Trial Subscriptions, and unless otherwise provided in the applicable Order, (a) Services are purchased as subscriptions, (b) additional subscriptions may be added during a Subscription Period at the same pricing then in effect, prorated for the portion of that Initial Subscription Period or Renewal Period, as applicable, remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
2. Trial Subscriptions. We may offer Trial Subscriptions for a certain period of time specified when you sign up for the Trial Subscription or in the Order. Except as may be otherwise provided in the specific terms for the Trial Subscription offer, Trial Subscriptions are only available if You have not previously subscribed to the Services in connection with which the Trial Subscription is being offered. We reserve the right to terminate Trial Subscriptions at any time, without notice and in our sole discretion. In order to continue using the Services that are subject to a Trial Subscription after your Trial Subscription ends, you must purchase a subscription to such Services before such Trial Subscription ends.
3. Access Rights. Subject to Your compliance with the terms of this Agreement, Butter hereby grants to You, a limited, non-exclusive, non-transferable, and non-sublicensable (except to Authorized Users) right during the Subscription Term to access and use the features and functionality of the Services for Your internal business purposes, including to access and use any APIs made available to you for purposes of enabling Butter to access and use End User Data as authorized in this Agreement.
4. 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 Your failure to maintain such equipment, software and services. Butter will have no liability for such failure, (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, (d) ensure that You have the necessary rights to share Your Data and End User 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 Services only in accordance with applicable laws and government regulations, and (g) otherwise comply with all other Licensee obligations described in this Agreement or Order
5. End User Data. Clients provide Butter with access to certain pseudonymized transaction-level End User Data via API access in order to provide and/or improve the Services. To the extent such End User Data constitutes Personal Data under applicable Privacy Laws, You shall notify Butter in writing, and the Parties agree to enter into a Data Protection Addendum with respect to such data.
6. Usage Restrictions. 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, including by diverting traffic from Butter for any reason, including for testing purposes or competitive purposes, (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 or use the Services to train, calibrate, or validate, in whole or in part, any other systems, programs, or platforms (including Your own systems, programs, or platforms), or for benchmarking or internal or external A/B testing, software development, or other competitive purposes (or attempt to do any of the same), including to build a competitive product or service, (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, or (o) access or use the Services to develop a competing product or service.
7. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial 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 Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may 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.

Fees and Payment for Ordered Services.

1. Fees. You agree to pay to Butter all fees specified in an each Order (including for any Initial Subscription Period and any Renewal Periods). Except as otherwise specified herein or in an Order, all payment obligations are non-cancelable and fees paid are non-refundable.
2. Reports and Payment.  Except as otherwise set forth on an Order, all fees and other amounts due under this Agreement, as set forth on the Order, are payable within thirty (30) days of the date of applicable invoice. Each invoice will be accompanied by a report for the applicable reporting period that sets forth the calculation of revenue recovered for the reporting period as a result of the Services converting a failed payment or invoice into a successful one, and the calculation of the fees owed for the reporting period based on such recovered revenue calculation.
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 (Reports and Payment).
4. Suspension of Services and Acceleration. If any amount owed by You under this or any other agreement for Our 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 Your (including Your Authorized Users’) access to the Services 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.
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 and have provided Us will written notice of such dispute; (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.

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 related thereto. Our intellectual property rights include, without limitation, all rights in and to the Services and the Beta Services, including the online, web-based applications and software-as-a-service platform used to enable access to the Services and the machine learning models and artificial intelligence algorithms used by Us in the performance of the Services. 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, license during the Subscription Term to use, copy, modify, and create derivative works of Your Data and End User Data created by or for You through the Services for the purpose of providing the Services in accordance with this Agreement. You acknowledge that the foregoing license includes the right for us to disclose Your Data and End User Data to Our service providers for the purpose of providing the Services in accordance with this Agreement. In addition, You grant Us a perpetual, irrevocable right to maintain, access, and use Your Data and End User Data, on a de-identified, aggregate basis, in order to improve Our Services (including to train our machine learning models and artificial intelligence algorithms)
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 the Services 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, including on Butter’s website and in sales and marketing collateral and other Butter promotional materials. The license set forth in this Section 5.4 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.

Confidentiality.

1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, and all enhancements and improvements thereto, will be considered Confidential Information of Butter.
2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to You) or to those employees or independent contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Butter). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. 
3. Exceptions. The confidentiality obligations set forth in Section 6.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

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 Ordered Services in accordance with Section 2.1. For any breach of an above warranty, Your exclusive remedies are those described in Section 10.3 (Termination for Cause).
3. Your Warranties. You warrant that (a) at all times during the term of this Agreement, You shall comply with all applicable federal, state, and local laws, and the terms of this Agreement and (b) Your use of the Services or execution of this Agreement does not and will not conflict with Your obligations to any third parties.
4. General 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, BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES.

Indemnification.

1. Indemnification and Infringement Remedies by Us.
   1. 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 Ordered 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 court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You (provided that failure to so notify will not remove Our obligation except to the extent We are materially prejudiced thereby), (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 and/or Your Data.
   2. 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 subscriptions for the Services upon 30 days’ written notice. Notwithstanding any contrary provision in this Agreement, if We provide any of the remedies set forth in this Section 8.1(ii), You agree that such action, together with Section 8.1(i) satisfies Our obligations under this Agreement, and You are not eligible for further relief in connection with third-party infringement claims.
2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party (i) alleging that Your Data or any End User Data provided to Us infringes or misappropriates such third party’s intellectual property rights or violates applicable law, or (ii) your provision to us of Personal Data in breach of this Agreement (each, “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 court-approved settlement of, a Claim Against Us, provided We promptly give You written notice of the Claim Against Us (provided that failure to so notify will not remove Your obligation except to the extent You are materially prejudiced thereby), (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. You shall reimburse Us upon demand for any losses incurred by Us that is subject to an indemnification obligation as set forth in this Section 8.2.
3. Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party infringement claims described in this Section 8.

Limitation of Liability.

1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID OR PAYABLE BY YOU TO US UNDER THE APPLICABLE ORDER(S) DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS AND LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY YOU TO US HEREUNDER UNDER ALL ORDERS DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT APPLY TO: (A) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8; (C) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6; OR (D) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY (COLLECTIVELY, “EXCLUDED LIABILITY”).
2. Exclusion of Consequential and Related Damages. EXCEPT FOR EXCLUDED LIABILITY, 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.

Term and Termination.

1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated (the “Term”).
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 the then-current Initial Subscription Period or Renewal Period, in which case the pricing increase will be effective upon the commencement of the immediately subsequent Renewal Period.
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, (ii) immediately in the event of a material breach of this Agreement which remains incurable (e.g., breach of confidentiality obligations in Section 6), or (iii) 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. Early Termination Fee. If any Order is terminated for nonpayment or other default before the conclusion of the applicable Initial Subscription Period or Renewal Period, or if you terminate any or all Services for any reason other than in accordance with Section 10.3, you agree to pay us, in addition to all other amounts owed, an early termination fee in the amount specified on the Order as applicable.
5. Surviving Provisions. The following provisions shall survive termination of this Agreement: Sections 4 (Fees and Payment for Ordered Services), 5.1 and 5.3 (Proprietary Rights and Licenses), 6 (Confidentiality), 7.4 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10.4 (Early Termination Fee), 10.6 (Surviving Provisions), 11 (Notices, Governing Law and Jurisdiction), 12 (Arbitration and Class Action Waiver), and 13 (General Provisions).

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 e-mail, 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 Licensee Billing Info contact on the Order. All other notices shall be addressed respectively (a) to Butter at the contact information on the Order under Licensor and (b) to You at the contact information on the Order under Licensee.
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. Additionally, subject to the limitation of liability set forth in Section 9, the party that loses any such proceeding will pay all costs and expenses incurred by the other party(s) in connection therewith, including all attorneys’ and other professional fees and expenses.

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.
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   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.
3. 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.
4. 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), outside of the arbitration process described in this Section 12. Any such enforcement actions will be brought in the Federal and state courts located in San Francisco, California; provided, however, the parties may seek injunctive or equitable relief in connection with the claims described in this Section 12.4 in any court of competent jurisdiction.
5. 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.

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. 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 to which this Agreement relates, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning Party under the Agreement. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then the assigning party must notify the other party in writing and such other party may terminate this Agreement upon written notice, which termination right must be exercised within thirty (30) days of receipt of notice of such change of control. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. Agreement Updates. We can update this Agreement at any time in our sole discretion, with or without notice to you. When changes are made, Butter will make a new copy of these Terms available on the Services, and we will also update the “Last Updated” date at the top of this Agreement.  If we make any material changes and you have registered an account with us, we will also send an email with a link to the updated Agreement to you at the email address associated with your account.  Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an account and thirty (30) days after posting for users with an account.  Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted.  IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
8. 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.
9. 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.
10. No Third-Party Beneficiaries. No End 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).
11. 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.
12. 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.