Supplemental Terms for the Attentive Services

These Supplemental Terms for the Attentive Services ("Attentive Services Terms"), together with the overhead agreement including but not limited to the Mindbody Terms of Service (the "ToS"), apply to your access to, and use of, the software-as-a-service product known as Attentive® and all related products and services, each a Third Party Offering, made available by Attentive Mobile Inc. (the "Attentive Services"). The Attentive Services Terms are incorporated in the ToS and the Agreement. Capitalized terms used in these Attentive Services Terms but not otherwise defined herein will have the meaning given to them in the ToS.

We may, in our sole discretion, make changes to the Attentive Services Terms from time to time. Any changes we make will become effective when we post a modified version to https://www.mindbodyonline.com/company/legal/terms-of-service/supplemental-terms-for-the-attentive-services (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time, and we agree the changes will not be retroactive. If you continue using the Attentive Services after any changes, it means you have accepted them. It is your obligation to ensure that you read, understand and agree to the latest version of the Attentive Services Terms. The last updated date under the title of these Attentive Services Terms indicates when they were last changed.

1. Access to the Attentive Services.

Attentive Mobile Inc. ("Attentive") is a global SMS and marketing services provider. We may provide you access to Mindbody's integration to Attentive and Attentive Services. The Attentive Services are Third Party Offerings accessible from within the Services allowing you to leverage advanced marketing and messaging functionality. You are solely responsible for your use of the Attentive Services (including, but not limited to use by your staff, employees, consultants, advisors, independent contractors, and End Users, collectively your "Authorized Users") and for any content that, in the course of using the Attentive Services, you and your Authorized Users may upload to be processed by the Attentive Services ("Input"), and receive as output generated and returned by the Attentive Services using that Input ("Output"). You shall review any Output prior to its use and exercise your own business and legal judgment as to its suitability for use. We reserve the right, in our sole discretion, to suspend your access to the Attentive Services for any or no reason, without liability to you or any third party.

2. License Grants to Attentive.

By accessing the Attentive Services, you grant to Attentive and Mindbody Parties a non-exclusive and non-transferable license to host, copy, process and transmit the data, information and other materials transmitted to or through the Attentive Services solely as necessary for Attentive to provide the service ("Input Data"). For the sake of clarity, Input Data may include but is not limited to the following data: Subscribers' (as defined below) telephone numbers, Subscribers' email addresses, and all messages. As between you and Attentive, Attentive shall retain all right, title, and interest, including all intellectual property rights, in and to the Attentive Services, the Attentive Works (defined below), and data regarding use of the Attentive Services and platform performance that is aggregated and de-identified such that it cannot identify you or any other entity, or any natural persons.

3. Usage Fees.

Use of the Attentive Services is subject to usage fees communicated to you when you sign up for Attentive Services or thereafter, and which we may update from time to time with notice to you. Unless a larger monthly allotment is designated in your Order Form, the applicable usage allotment is 0, and usage fees apply to all usage of the Attentive Services. You agree that Mindbody may charge, and you and/or your Affiliates will pay all applicable fees. All fees are non-refundable. All fees are due in accordance with the payment terms of the ToS, and failure to pay any such fees may result in suspension of access to the Attentive Services or the Services in addition to any other rights or remedies available to Mindbody.

4. Attentive Professional Services.

You may have opportunities to engage Attentive through Mindbody to provide you with professional services. In doing so, Attentive may develop software or other works of authorship, trade secrets, inventions or other intellectual property (collectively, "Attentive Works"). These professional services may include customization or other assistance with the design and creation of marketing campaigns, templates, or messages. You remain at all times solely responsible for your use of the Attentive Services and reviewing and approving any final design to confirm it meets your design and accessibility needs. Neither we nor Attentive make final design or accessibility decisions with respect to your use of the Attentive Services.

5. Representations and Warranties.

In addition to the other representations and warranties in the Agreement, you represent and warrant that: (i) you own or otherwise have sufficient rights to the content and Input you upload or which is otherwise made available on your behalf to the Attentive Services to grant the license set forth above; (ii) the posting and use of that Input on or through the Attentive Services does not and will not violate any privacy rights, publicity rights, contract rights, intellectual property rights, or other rights of any person or entity, and that you will not upload any content or data to the Attentive Services that contains any sensitive or special categories of information as defined in applicable data protection laws, including without limitation the CCPA and California Privacy Rights Act, GDPR, the UK Data Protection Laws, and HIPAA; (iii) the upload, posting, or other submission of Your Data to the Attentive Services does not and will not result in a breach of contract between you and Mindbody or any third party; (iv) you do not knowingly collect or instruct to be collected any personally identifiable information from children under thirteen (13) via the Attentive Services; (v) when using the Attentive Services, including when using the Attentive Services to send text messages (SMS, MMS, or any other related messaging) or email messages (collectively, "Attentive Messages"), that you will, and will cause your Authorized Users to: (a) comply with and maintain appropriate records to demonstrate your compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing the transmission of such messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission's Telemarketing Sales Rule, the CAN-SPAM Act of 2003, the Personal Information Protection and Electronic Documents Act, the Americans with Disabilities Act, provincial privacy legislation, Canada's Anti-Spam Legislation ("CASL"), and all state, local, and foreign equivalents; all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices, and any other applicable foreign carrier requirements (collectively, "Applicable Message Requirements"); (b) ensure the content of all Attentive Messages complies with Applicable Message Requirements, including all applicable form, content and unsubscribe requirements; and (c) send Attentive Messages only to individuals from whom you have obtained all necessary and legally required consent to do so in accordance with your obligations under Applicable Message Requirements ("Subscribers"); and (vi) any consumer contact information provided by you has been collected in accordance with Applicable Message Requirements.

Further, you agree that (i) you are solely responsible for your own use or misuse of the Attentive Services (including use by your Authorized Users); (ii) any action taken by Authorized Users constitutes an action taken by you; and (iii) without limiting the foregoing, you are responsible for the proper care and use of your access credentials and responsible for any actions resulting from the use of access credentials associated with any party accessing the Attentive Services.

6. Disclaimers.

EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE AND IN THE MINDBODY TERMS OF SERVICE, MINDBODY MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND MINDBODY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING. WITHOUT LIMITING THE FOREGOING IN THIS SECTION, (I) MINDBODY SHALL HAVE NO LIABILITY FOR YOUR OR YOUR AUTHORIZED USERS' USE OF INPUT DATA; (II) EXCEPT TO THE EXTENT EXPLICITLY SET FORTH ABOVE, TEMPLATES ARE MADE AVAILABLE BY ATTENTIVE AND ARE FOR CONVENIENCE ONLY; YOU SHOULD CONFER WITH YOUR OWN LEGAL COUNSEL AS TO WHETHER ANY LANGUAGE IN THE TEMPLATES IS SUFFICIENT FOR LEGAL PURPOSES OR TO MEET YOUR OBLIGATIONS UNDER APPLICABLE LAWS, INCLUDING APPLICABLE MESSAGE REQUIREMENTS; (III) EXCEPT TO THE EXTENT EXPLICITLY SET FORTH ABOVE, YOU MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE OR OTHER CONTENT IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE OR CONTENT SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS; (IV) THE ATTENTIVE SERVICES ARE PROVIDED BY ATTENTIVE MOBILE INC., WHICH IS A THIRD PARTY OUTSIDE OF MINDBODY AND ITS AFFILIATES; AND (V) MINDBODY DOES NOT INITIATE, SEND, DRAFT, REVIEW, APPROVE, OR CONTROL ANY ATTENTIVE MESSAGES AND SHALL NOT BE DEEMED A "SENDER," "INITIATOR," OR "MAKER" OF ANY MESSAGE FOR PURPOSES OF THE TCPA, CAN-SPAM ACT, CASL, OR ANY SIMILAR LAW OR REGULATION. MINDBODY DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE AVAILABILITY, PERFORMANCE, SECURITY, COMPLIANCE, OR FUNCTIONALITY OF THE ATTENTIVE SERVICES, AND ANY DISPUTE REGARDING THE ATTENTIVE SERVICES IS SOLELY BETWEEN YOU AND ATTENTIVE. THE ATTENTIVE SERVICES ARE A CONDUIT FOR MESSAGES SENT OVER THE ATTENTIVE PLATFORM BY YOU, AND MINDBODY HAS NO RESPONSIBILITY FOR SUCH MESSAGES OR MESSAGE CONTENT.

7. Messaging Compliance Indemnity.

In addition to other indemnification and defense obligations set forth in the ToS and Agreement, you agree to defend, indemnify, and hold harmless Mindbody Parties (as defined in the ToS) from and against any and all claims, demands, actions, damages, fines, penalties, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (i) any Attentive Messages sent by or on your behalf; (ii) any alleged violation of Applicable Message Requirements, including the TCPA, CAN-SPAM, CASL, or similar laws; (iii) any allegation that required consent was not obtained, was defective, or was withdrawn; or (iv) the content of any Attentive Messages, including templates you modify, use, or approve.

8. Sub-Processing.

You authorize Attentive to engage third-party entities to process Your Data on behalf of and as specifically directed by Attentive pursuant to a written contract that includes obligations that are at least as protective as those set out in this Agreement as required by applicable data protection laws.

9. Maintenance of Privacy Policy; Adherence to Applicable Law.

You shall provide and abide by an appropriate consumer-facing privacy policy and any other privacy notice as required to comply with all relevant and applicable data protection laws. You will maintain a privacy policy that provides notice of the processing of Personal Information (as defined in the Privacy Annex) as contemplated by the Attentive Services, including, if applicable, the use of cookies and other similar technologies to collect Personal Information from individual consumers (including via email). You shall provide each applicable consumer with clear and comprehensive information about, and obtain authorization and verifiable consent to, as appropriate, the storing and accessing of cookies or other information on the individual's device where such activity occurs in connection with the Attentive Services (including via email) and to the extent required by applicable data protection laws. Further, you shall provide notice and obtain all necessary authorization (including, without limitation, verifiable consent) and rights necessary under applicable data protection laws for Attentive to process Personal Information as required to provide the Attentive Services. Notwithstanding anything to the contrary, Mindbody Parties have no liability for any claim or losses to the extent arising out of your failure to provide notice or obtain verifiable consent for Attentive to process the Personal Information as required to provide the Attentive Services (or for claims or issues subject to your indemnification or defense obligations herein or under the Agreement). As between you and Mindbody, you are the data controller (or equivalent role under applicable data protection laws) with respect to all Personal Information processed via the Attentive Services relating to your End Users. Mindbody acts solely as a passive conduit enabling access to the Attentive Services and does not determine the purposes or means of processing such Personal Information.

10. Survival.

The sections titled Usage Fees, Representations and Warranties, Messaging Compliance Indemnity, Disclaimers, Sub-Processing, Maintenance of Privacy Policy; Adherence to Applicable Law, and Survival shall survive any termination or expiration of your access to the Attentive Services.