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AFFILIATE PROGRAM TERMS OF SERVICE

 

These Terms of Service (“Agreement“) are entered into by and between ButterflyMX, Inc. (“ButterflyMX“) and the Affiliate Partner (“Partner“) (collectively referred to as the “Parties“). This Agreement outlines the terms and conditions governing the participation of the Partner in the ButterflyMX Affiliate Partner Program (“Program“). By participating in the Program, Partner agrees to be bound by the terms and conditions set forth in this Agreement.

 

1. Definitions

 

1.1. Partner: An individual or company that has been accepted into the ButterflyMX Affiliate Partner Program and promotes ButterflyMX products and services.

1.2. Referral Fee: The compensation paid to a Partner for a Referral that results in a Customer who pays for a Subscription. 

1.3. Referral: A potential customer referred to ButterflyMX by Partner.

1.4. Subscription: A purchase and payment by a Customer of an annual subscription to ButterflyMX’s access control software, which otherwise meets the criteria set forth in Section 3 of this Agreement.

1.5 Customer: A Partner Referral who has purchased and paid for a Subscription.

 

2. Participation in the Program

 

2.1. Eligibility: To be eligible for the Program, Partner must complete the Affiliate Program application and training process and be approved by ButterflyMX. ButterflyMX reserves the right to accept or reject any Affiliate application for any reason at its sole discretion.

2.2. Compliance: Partner agrees to comply with all applicable laws, regulations, and guidelines while participating in the Program. Partner shall not engage in any deceptive, fraudulent, or unethical marketing practices. Without limiting the foregoing obligations, Partner’s promotion of ButterflyMX and its products and services shall comply with the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials, as well as any ancillary guidance or regulations promulgated by the Federal Trade Commission in the future. 

2.3. Termination: ButterflyMX reserves the right to terminate Partner’s participation in the Program at any time for any reason, with or without cause. Upon termination, any unpaid Referral Fees will be forfeited by Partner.

2.4. Availability of Products: ButterflyMX may, in its sole discretion, discontinue the sale, license and/or support of any of its products or services and any hardware therefor and make any changes affecting their form, fit or function as it determines.  ButterflyMX makes no guarantees that all products and services currently available will continue to be available in the future.

2.5 Audit Rights: In connection with the Program, Partner shall keep proper records, which are sufficient to enable ButterflyMX to verify Partner’s compliance with the Agreement.  During the term of the Agreement and for the three-year period immediately following expiration of the term. ButterflyMX reserves the right, upon reasonable notice and during normal business hours, to audit Partner’s records for purposes of determining or otherwise verifying Partner’s compliance with the Agreement.  

 

3. Referral Fee and Payment

 

3.1. Referral Fee Structure: ButterflyMX shall pay Partner a Referral Fee for each Subscription purchase made by a Customer that originated from a Referral that can be traced back to Partner’s unique referral link or through a direct lead submission completed by Partner on ButterflyMX’s Partner portal. The payment amount of the Referral Fee paid hereunder will be shared during the Partner training and onboarding process.

3.2. Referral Fee:  Referral Fee shall be paid to Partner up to 60 calendar days from the date the Partner’s Referral makes Payment for the Software Subscription. Referral Fees shall only be made in the form of cash deposits through the Partnerstack platform. Referral Fees shall not be made in any other form.

3.3. Refund Policy: If a refund is issued for a Subscription in which a Referral Fee was paid, any Referral Fee paid to the Partner for that transaction shall be deducted from or set off against future payments.

3.4. Taxes: Partner is responsible for any taxes or fees associated with Referral Fee(s) earned through the Program.

3.5. Ineligible Referrals: The following types of referrals are not eligible for a Referral Fee under this Program:

a. Referrals for buildings with fewer than ten (10) apartment units;
 b. Renewals or extensions of existing ButterflyMX Software Subscription agreements;
 c. Referrals submitted by certified ButterflyMX Dealers or Resellers;
 d. Self-referrals, including referrals for properties that the Partner develops, owns, or manages directly or indirectly.

ButterflyMX reserves the right to determine the eligibility of any Referral at any time for any reason, with or without cause. If ButterflyMX determines a referral is ineligible, Partner will not receive a Referral Fee for the Referral.

 

4. Marketing and Promotion

 

4.1. Marketing Materials: ButterflyMX may provide Partner with marketing materials and tools to promote ButterflyMX products and services. Partner agrees to use these materials in a manner consistent with ButterflyMX’s branding guidelines and all applicable laws, regulations and other guidelines.

4.2. Prohibited Activities: Partner shall not engage in any of the following activities:

  1. Use of misleading or deceptive marketing practices.
  2. Bidding on trademarked terms in pay-per-click advertising campaigns, including but not limited to the term BUTTERFLYMX.
  3. Promotion of ButterflyMX products on adult, illegal, or offensive websites.
  4. Spamming or unsolicited email-, text-, or tele-marketing.
  5. Marketing or other practices that are violative of applicable laws, regulations, and other guidelines.

 

 

5. Intellectual Property

 

5.1. Ownership: All patents and inventions, trademarks, service marks, trade names, trade dress and logos, copyrights, trade secrets, moral rights, and all other intellectual and industrial property or proprietary rights, in each case, whether now existing or created or arising hereafter, in any jurisdiction world-wide (“collectively, “Intellectual Property Rights”) and other rights relating to ButterflyMX’s products and services and any modifications thereof or derivative works based in whole or in part thereon (whether or not authorized) will at all times be the exclusive property of ButterflyMX or its licensors, and all use of such rights will accrue to the benefit of ButterflyMX. Partner will not challenge ButterflyMX’s title to such intellectual property.  Nothing contained in this Agreement will constitute or be construed as a transfer of ownership of any of the Intellectual Property Rights of ButterflyMX or its licensors or to otherwise give Partner any proprietary rights to any of the Intellectual Property Rights of ButterflyMX or its licensors. 

Partner is granted a limited, non-exclusive, revocable license to use ButterflyMX’s trademarks and logos solely for the purpose of promoting ButterflyMX products and services in connection with the Program.

 

6. Confidentiality

 

6.1. Confidential Information: Partner agrees to keep all non-public information about ButterflyMX and the Program confidential and shall not disclose such information to any third party without the prior written consent of ButterflyMX.

6.2. Notice of Breach:  Partner shall promptly notify ButterflyMX in writing of any and all material breaches of any of its obligations under the Agreement and Partner shall assist ButterflyMX in all steps reasonably necessary to mitigate any damages resulting therefrom.

 

7. Limitation of Liability and Indemnity

 

7.1. Disclaimer: The Program is provided “as is” and ButterflyMX makes no representations or warranties regarding the Program, whether express or implied by statute, trade usage or course of dealing or otherwise, including, without limitation, the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or title. Partner participates in the Program at its own risk. 

7.2. LIMITATIONS OF LIABILITY: UNDER NO CIRCUMSTANCES WILL BUTTERFLYMX BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR OTHER DAMAGES, OR LOSS OF PROFITS HOWSOEVER ARISING, IN CONNECTION WITH THE AGREEMENT OR THE USE, OR INABILITY TO USE, ANY PRODUCT OR SERVICE, EVEN IF BUTTERFLYMX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  BUTTERFLYMX’S AGGREGATE CUMULATIVE LIABILITY FOR DAMAGES (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL IN NO EVENT EXCEED TWENTY-FIVE DOLLARS ($25.00).  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

7.3. Indemnification: Partner agrees to defend, indemnify, and hold harmless ButterflyMX, its affiliates, and their respective directors, officers, employees and agents (the “ButterflyMX Entities”) from all damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by the ButterflyMX Entities in connection with any third party suit, action, claim or proceeding arising out of or in connection with:

  • Partner’s failure to comply with applicable laws, rules, or regulations;
  • Partner’s breach of the Agreement; and
  • the negligence or intentional misconduct of Partner or its employees, contractors and agents, including, without limitation, faulty installation of ButterflyMX products or service;

 

8. Termination

 

8.1. Termination: ButterflyMX may terminate this Agreement at any time for any reason, with or without cause, upon written electronic notice to the Partner.

 

9. Miscellaneous

 

9.1. Governing Law: The Agreement will be governed by the laws of the State of New York (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to any conflicts of law principles which may result in the application of the laws of another jurisdiction.  

9.2. Reporting Disputes: In the event of a dispute or conflict between ButterflyMX and Partner, the Partner shall report the dispute electronically to partners@butterflymx.com. Disputes will be reviewed and decided upon by the ButterflyMX team.  Notwithstanding the foregoing, any suit, action or proceeding arising in connection with the Agreement will be brought only in the state or federal courts sitting in the State of New York and the parties hereby expressly submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding. Partner irrevocably waives any objections which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to the Agreement if brought in New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  The parties expressly waive any right to a jury trial regarding disputes related to the Agreement.

9.3. Severability:  If any provision contained in the Agreement is held by a court to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions of the Agreement will not be affected thereby. 

9.4. Assignment:  The Agreement and the licenses granted hereunder may be freely assigned by ButterflyMX but may not be assigned by Partner without the prior express written consent of ButterflyMX. 

9.5. Waivers:  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. 

9.6. Headings:  The section headings used herein are for reference only and shall not be read to have any legal effect.

9.7. Amendments and Updates:  ButterflyMX reserves the right to amend or update the Agreement in its sole discretion. Changes will be electronically sent to the affected parties, and Partner shall be responsible for complying with any and all such updates and/or amendments unless and until such time as it provides written notice of termination to ButterflyMX.

9.8. Entire Agreement. [Except as otherwise expressly set forth, ] the Agreement and the other documents expressly referenced herein constitute the entire arrangement and understanding between the parties with respect to the Program and supersede all prior agreements, negotiations and discussions relating to the Program, whether written or verbal.