STANDARD TERMS AND CONDITIONS
(FOR PROPERTY MANAGEMENT SOFTWARE)
These Standard Terms and Conditions (these “Terms”) govern Customer’s subscription to the ButterflyMX property management software as a service platform and mobile application and the content, tools, features and functionality offered through such platform (collectively, the “Services”) and purchase of related hardware products (“Hardware Products”) offered by ButterflyMX, Inc., a Delaware corporation, with its principal place of business at 127 West 26th Street, 9th Floor, New York, NY 10001 (“Provider”). Capitalized terms have the definitions set forth herein.
For purposes of these Terms, “Customer” means the individual accepting these Terms by executing an Order Form. If the individual accepting these Terms is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Customer” refers to such entity and its affiliates.
1. HARDWARE AND SUBSCRIPTION PURCHASE
1.1 Customer’s subscription to the Services and purchase of Hardware Products will be covered by one or more order forms agreed upon by the parties (each, an “Order Form”). Each Order Form will be in writing, signed by an authorized representative of each party and will reference these Terms. Each duly executed Order Form will constitute part of these Terms and in the event of any conflict between these Terms and an Order Form, these Terms will control.
1.2 Upon Customer’s payment in full of the fees for the Services for the initial subscription term set forth in the applicable Order Form and the Hardware Products (including all applicable taxes and delivery fees), Provider will ship the Hardware Products to Customer’s delivery address set forth on the applicable Order Form. Title to and risk of loss of the Hardware Products will transfer to Customer upon delivery. Unless otherwise noted on the applicable Order Form, Customer is solely responsible for the installation of all Hardware Products. Provider reserves the right to charge a restocking fee of twenty-five percent (25%) of the purchase price for any Hardware Products that are returned by Customer between 30 and 60 days after delivery. No returns of Hardware Products will be accepted more than 60 days after delivery.
Customer will pay Provider the fees for the Services and the purchase price for the Hardware Products as set forth in the applicable Order Form, in accordance with the payment terms set forth therein. Provider reserves the right to increase the fees for the Services by up to 3% annually, which increase will be effective at the start of the next renewal term set forth in the applicable Order Form.
3. TERM AND TERMINATION
3.1 These Terms will become effective between Customer and Provider on the date of Customer’s acceptance of these Terms by executing an Order Form, and will remain in effect for so long as any Order Forms are in effect between Customer and Provider (the “Term”). The subscription term for the Services will be set forth in the applicable Order Form.
3.2 Either party may terminate any or all Order Forms (a) upon written notice if the other party (i) commits a breach (including Customer’s non-payment of amounts due) of these Terms that remains uncured for more than 30 days after notice of breach, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (b) as otherwise set forth in the applicable Order Form. Upon termination of these Terms, all licenses granted to Customer herein will terminate, and Customer and its Authorized Users will cease all use of the Services.
5. PROPRIETARY RIGHTS
Provider retains all rights, title, and interest (including all intellectual property rights) in and to the Services and Documentation, and all intellectual property rights in and to the Hardware Products, including any updates, modifications and enhancements to the foregoing. Customer does not acquire any rights, express or implied, in the Services other than those rights expressly granted under these Terms. Customer acknowledges that the Services and Documentation include or constitute Provider’s Confidential Information and that they are protected by copyright and other intellectual property laws. Any comments, suggestions for improvements or other feedback related to the Services provided by Customer to Provider will be the sole and exclusive property of Provider and Customer hereby assigns to Provider all of Customer’s right, title and interest (including all intellectual property rights) in and to such feedback. Provider will have the right to use and disclose such feedback in any manner and for any purpose, without compensation or attribution to Customer.
6. PROVISION OF SERVICES
Subject to Customer’s compliance with these Terms, Provider will use commercially reasonable efforts to provide Customer and its Authorized Users with the Services in accordance with these Terms and the applicable Order Form, including technical support for the Services consisting of (i) access to a phone number [(571) 480-6579] from 6am to 10pm EST, seven days a week, excluding U.S. national holidays, (ii) a dedicated email account at email@example.com, and (iii) personnel to provide responses to any telephone and email inquiries. Provider will use commercially reasonable efforts to make the Services available twenty-four hours a day, seven days a week, except for (i) scheduled maintenance (of which Provider will give advance electronic notice), and (ii) unplanned maintenance, and (iii) unavailability caused by circumstances beyond Provider’s reasonable control, including, for example, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes, epidemics, pandemics, quarantine restrictions, labor-related problems, Internet or service provider failures or delays, or denial of service attacks (each, a “Force Majeure Event”). “Authorized User” means each of Customer’s employees, contractors, tenants and third-party service providers who are expressly authorized by Customer to access and use the Services that have been supplied user identifications and passwords by Customer (or by Provider at Customer’s request) and who have agreed to Provider’s standard terms of service for access and use of the Services at https://butterflymx.com/terms-of-service/.
7. CUSTOMER RESPONSIBILITIES AND USAGE RESTRICTIONS
7.1 Use of Hardware and Services. Customer will use the Services and Hardware Products only for its internal business purposes and not for the purpose of resale, and in accordance with these Terms and the documentation accompanying the Hardware Products describing their use, and any user manuals, training materials and other supporting materials related to the Services that Provider customarily provides to end users of the Services, including without limitation all of the published specifications for the Services on the date that these Terms take effect (collectively, “Documentation”). To use the Services, Customer will need to create an account (“
Account”). Customer agrees to provide Provider with accurate, complete and updated information for Customer’s Account. Customer is solely responsible for any activity on Customer’s Account and for maintaining the confidentiality and security of Customer’s password. Provider is not liable for any acts or omissions by Customer in connection with Customer’s Account. Customer will be responsible for its Authorized Users’ compliance with these Terms and the Documentation, the accuracy, quality and legality of all Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services. Customer represents and warrants that Customer has, or has obtained, all rights, licenses, consents, permissions, power and/or authority necessary to submit all Customer Data to the Services. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Provider promptly of any such unauthorized access or use. Customer acknowledges that availability of the Services and operation of the Hardware Products depends on Customer’s obtaining and maintaining adequate infrastructure including power, internet connectivity, a low-voltage electrical connection, computer, mobile device and other related equipment as may be described in the Documentation, and that Customer is responsible for paying all third-party fees and access charges for such infrastructure.
7.2 Restrictions. Customer will not and will not permit others to: (a) reverse engineer, decompile, or otherwise attempt to derive the source code, structure, algorithms, or other trade secrets in the Services or the Hardware Products; (b) copy, translate, or prepare derivative works of any content or screen shots accessible via the Services or bypass, delete, or disable any copy protection or security mechanisms associated with the Services; (c) publish, pledge, rent, lease, sell, resell or commercially distribute the Services to any third parties; (d) engage any time-sharing or outsourcing application service provider or reseller or in any other distribution arrangement in connection with the Services or Hardware Products; (e) alter, remove, obscure, or destroy any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation placed upon the Services, Hardware Products, Documentation or any other Provider materials; (f) make the Services available to anyone other than the Authorized Users; (g) use the Services to upload, create, access, display, store, manipulate, or distribute any Customer Data that infringes upon the intellectual property, privacy, or proprietary rights of any third party; or (i) use the Services or Hardware Products in a manner that violates any statute, law, rule, regulation in place at the time of such use.
8.1 Each of the parties will maintain in confidence any non-public, confidential or proprietary information disclosed by or on behalf of the other party (“Confidential Information“). The receiving party will not disclose or make available to any third party any Confidential Information of the disclosing party, and will not use any Confidential Information of the disclosing party except as necessary in order to perform its obligations or exercise its rights under these Terms. Each party will take all actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information of the other party, at all times exercising at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care.
8.2 The obligations set forth in Section 8.1 will not apply to any information that the receiving party can establish through written documentation (a) was already known to the receiving party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of these Terms; (d) was disclosed to the receiving party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (e) was developed independently by the receiving party without any use of or reference to the disclosing party’s Confidential Information. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process will not be considered a breach of these Terms; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the disclosing party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
9. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1 Two-Year Warranty. Provider warrants that the Hardware Products, if used in accordance the Documentation, will be free from material defects in workmanship and materials and will function and perform substantially in accordance with the specifications set forth in the applicable Documentation for a period of two years from delivery to Customer. In the event that the Hardware Products purchased by Customer fail to perform in accordance with the foregoing limited warranty in such two-year period, at Customer’s request, Provider will repair such Hardware Products within thirty days of Customer’s notice of such failure to Provider. Provider will have no liability for any claim under this Section 9.1 if the claim arises from modifications to the Services or Hardware Products made other than by Provider, combinations of the Services or Hardware Products with software, hardware or other materials not provided by Provider, a Force Majeure Event, or defects caused by persons or entities other than Provider, including improper installation or misuse, or defects or failures in the third-party equipment or infrastructure (e.g., internet service or mobile device) used in connection with the Services or Hardware Products. Customer’s sole and exclusive remedy for a breach of the foregoing limited warranty will be for Provider to use commercially reasonable efforts to correct the noncompliance at no additional cost to Customer and if Provider cannot correct such noncompliance within a reasonable period of time, Customer may terminate its subscription under the applicable Order Form pursuant to Section 3.2(a)(i) and receive a refund of the fees paid for the nonconforming Hardware Products and any prepaid subscription fees for the Services covering the remainder of the Term of the applicable Order Form after the effective date of termination.
9.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, THE SERVICES AND HARDWARE PRODUCTS ARE PROVIDED TO CUSTOMER “AS IS.” PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES AND HARDWARE PRODUCTS AND THESE TERMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE.
Customer will defend Provider from and against any and all claims, actions, suits or proceedings made or brought against Provider by any third party (“Claims”) and indemnify and hold Provider harmless from any and all losses, damages, liabilities, penalties, awards, fines, costs and expenses (including reasonable attorneys’ fees) resulting from such Claims to the extent arising out of or in connection with (a) Customer’s or its Authorized Users’ negligence, willful misconduct or breach of these Terms, or (b) the Customer Data.
11. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, A PARTY’S INFRINGEMENT, MISAPPROPRIATION, DILUTION OR OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER SUCH PARTY, FOR ANY LOST PROFITS OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO PROVIDER DURING THE TWELVE MONTHS PRECEDING THE CLAIM. PROVIDER WILL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY WHATSOEVER RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INSTALLATION SERVICES BY CUSTOMER OR ITS THIRD-PARTY CONTRACTOR. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS IN THIS SECTION 11 ARE AN ESSENTIAL ELEMENT OF THESE TERMS AND THAT IN THE ABSENCE OF THIS SECTION 11 THE PRICING AND OTHER TERMS SET FORTH IN THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
12. GENERAL TERMS
These Terms and any dispute arising from the construction, performance or breach hereof will be governed by and construed and enforced in accordance with the laws of the State of New York, without reference to its conflict of law principles. The United Nations Convention for the International Sale of Goods is excluded in its entirety from these Terms. All disputes arising hereunder will be adjudicated in the state and federal courts having jurisdiction over disputes arising in New York County, New York, and the parties hereby agree to consent to the personal jurisdiction and venue of such courts. These Terms, and the rights and obligations hereunder, may not be assigned by Customer without Provider’s prior written consent. Any purported assignment by Customer will be null and void. Provider may assign its rights or obligations hereunder without notice to Customer or Customer’s consent. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. The relationship of the parties is solely that of independent contractors, and these Terms will not establish any partnership, joint venture, employment, franchise or agency between the parties. These Terms (including all duly executed Order Forms) constitute the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and supersedes any prior communications, representations, understandings and agreements, either oral or written, between the parties with respect to such subject matter. These Terms may not be altered except in a writing signed by both parties. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. All notices under these Terms will be delivered by email, or physical mail to the other Party at the address or number set forth in the applicable Order Form, and will be effective upon receipt. Sections 2, 4, 5, 7, 8, 9, 10, 11 and 12 will survive any expiration or termination of any Order Form.