INTRODUCTION TO THE BUTTERFLYMX PROPERTY MANAGEMENT SOFTWARE AND HARDWARE TERMS
Our ButterflyMX Property Management Software and Hardware Terms are designed to get you onboarded quickly.
We are a SaaS company at heart, providing software and hardware to support a range of property access and security solutions for our customers. We do not provide any on-site installation services, and our customers should separately contract with third parties for those types of services.
We provide a cloud-based, multi-tenant software as a service solution, whereby all our customers access our offering on a shared architecture, code base, and infrastructure. It also means we do not create any custom IP, custom deliverables, or works-made-for-hire for you, nor are we able to provide custom service offerings with respect to policies and procedures (e.g., usage restrictions, security policies, and insurance policies.) If you have any questions about these policies and procedures, we encourage you to review our ButterflyMX Trust Center (https://trust.butterflymx.com) for specifics or contact support@butterflymx.com.
Lastly, ButterflyMX provides a mobile application experience, which is subject to the ButterflyMX Terms of Service (https://butterflymx.com/terms-of-service/), available on our public website and from the appropriate third-party mobile application downloading services. ButterflyMX keeps the Terms of Service standardized across our applicable offerings. However, these ButterflyMX Property Management Software and Hardware Terms below govern in the event of conflicts.
We are excited to work with you!
PROPERTY MANAGEMENT SOFTWARE AND HARDWARE TERMS
Effective date: October 1, 2026
These Property Management Software and Hardware Terms (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 44 West 28th Street, 4th Floor, New York, NY 10001 (“Provider”).
These Terms are incorporated by reference into the ButterflyMX Terms of Service. In the event of a conflict between the ButterflyMX Terms of Service and these Terms, these Terms shall govern and control. 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 “Customer” refers to such entity and its affiliates.
1. HARDWARE AND SUBSCRIPTION ORDERS
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 for the Hardware Products (including all applicable taxes, duties, and delivery fees), Provider will ship the Hardware Products to Customer’s delivery address set forth on the applicable Order Form. Customer may update, change, or modify the delivery address, however Customer will be responsible for all associated shipping fees. Title to and risk of loss of the Hardware Products will transfer to Customer upon shipment from Provider’s facility (the “Shipment Date”). Customer assumes all rights, responsibilities, and risks associated with ownership of the Hardware Products from the Shipment Date, subject to these Terms. Unless otherwise agreed in writing, shipments are made FOB Shipping Point (as defined by the Uniform Commercial Code or equivalent in the applicable jurisdiction). The Customer shall inspect the Hardware Products upon receipt and notify the Provider in writing of any defects, non-conformities, or damages within seven (7) days of receipt. 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.
1.3 Unless otherwise stated on the applicable Order Form, the Services will be provided for a one year period that begins (a) for an existing property, upon the earlier of (i) date on which Provider activates the Services in its system for Customer’s Account (as hereinafter defined) or (ii) twelve months from the date of the applicable Order Form; or (b) for a property under construction, upon the earlier of (i) date on which Provider activates the Services in its system for Customer’s Account or (ii) the date a final certificate of occupancy is issued, hereinafter the “Subscription Term.” The Subscription Term shall automatically renew for successive one-year periods unless either party provides the other party with written notice of nonrenewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.
2. FEES, INVOICES, AND TAXES
2.1 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 annually, which will be effective at the start of the next renewal Subscription Term or as set forth in the applicable Order Form.
2.2 Provider shall invoice Customer for the Services at the start of the Subscription Term and for Hardware Products upon Order Form signature. For Subscription Term renewals, Provider shall invoice Customer annually in advance. Fees shall be due within thirty (30) days from the date of the invoice. Customer may pay fees due for the Services by any form accepted by Provider; except that, Customer shall be solely responsible for all payment processing fees due for payments made pursuant to an Order Form as of the effective date and in the future. Customer shall be responsible for providing complete, accurate billing and contact information to Provider prior to the commencement of the initial Subscription Term. In the event this information changes during the Term, Customer shall provide written notice to Provider of such changes.
2.3 Customer may dispute an invoice within thirty (30) days of the invoice date by providing notice to invoices@butterflymx.com including all documentation or information explaining the error that gave rise to the dispute. If Customer does not notify Provider within this timeframe, Customer waives its right to dispute that invoice. If disputed, the parties will use commercially reasonable efforts to promptly resolve it. Provider can suspend Customer’s access to the Services until all undisputed amounts that are due have been paid. Even if a dispute is made, Customer will pay any undisputed amounts before the due date. If Customer does not pay any undisputed invoiced amount, then Provider may charge interest at 1.5% per month or at the highest rate permissible by law, whichever is lower. Customer will reimburse Provider for any and all reasonable collection costs (including reasonable attorneys’ fees and costs). Provider reserves all other rights and remedies available under the Order Form, in equity and at law.
2.4 Customer is responsible for any applicable sales, use, gross receipts, excise, value-added, personal property, or other similar taxes. If Provider has the legal obligation to pay or collect any taxes that Customer is responsible for, that amount will be separately itemized in the invoice and payable by Customer.
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 and will remain in effect for so long as these Terms or any Order Forms are in effect between Customer and Provider (the “Term”).
3.2 These Terms are binding and not cancelable, however either party may terminate (a) these Terms and any or all Order Forms upon written notice if the other party (i) commits a breach (including Customer’s non-payment of amounts due) of these Terms that are not remedied 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.
3.3 Upon termination of these Terms, all licenses granted to Customer will terminate, and Customer and its Authorized Users (as hereinafter defined) will cease all use of the Services. If terminated by Provider pursuant to Section 3.2(a)(i), then Provider may accelerate and invoice Customer the amount of all Services that would have otherwise been due by Customer to Provider for the Subscription Term and Customer will reimburse Provider for all collection costs, including reasonable attorneys’ fees. Upon termination of these Terms or any Order Form, Provider shall have the right to remove Customer Data (as hereinafter defined), Customer’s account information, and account settings after sixty (60) days, and Customer will not be able to recover this data or content.
4. PRIVACY
4.1 The processing of personal information related to the use of the Services is governed by the Data Processing Addendum available at: https://butterflymx.com/data-processing-addendum/. Customer acknowledges that it has reviewed the Data Processing Addendum (“DPA”) and agrees to comply with it. Provider’s Privacy Policy, which can be found at https://butterflymx.com/privacy-policy/, describes how Provider processes all personal information submitted by or for Customer or by or on behalf of any Authorized User to the Services (“Customer Data”). “Authorized User” means each of Customer’s employees, contractors, residents, tenants and third-party service providers who are expressly authorized by Customer to access and use the Services that (a) have been supplied user identifications and passwords by Customer (or by Provider at Customer’s request) or (b) who have agreed to the ButterflyMX Terms of Service.
5. PROPRIETARY RIGHTS
5.1 Provider retains all rights, title, and interest (including all intellectual property rights) in and to the Services and Documentation (as hereinafter defined), 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 (as hereinafter defined) and that they are protected by copyright and other intellectual property laws. Any comments, responses, ideas, suggestions for improvements or other feedback related to the Services (“Feedback”) provided by Customer to Provider will be the sole and exclusive property of Provider and Customer hereby irrevocably assigns to Provider all of Customer’s right, title and interest (including all intellectual property rights) in and to such Feedback. Customer further irrevocably waives, to the maximum extent permitted by applicable law, all moral rights in respect of the Feedback in favor of Provider. Provider will have the right to use and disclose such feedback in any manner and for any purpose, without any further notice, compensation, or attribution to Customer.
6. PROVISION OF SERVICES
6.1 Subject to Customer’s compliance with these Terms, Provider will use commercially reasonable efforts to provide Customer and its Authorized Users with a non-exclusive, non-sublicensable, non-transferable, limited right to access and use the Services in accordance with these Terms and the applicable Order Form during the Subscription Term, including technical support for the Services consisting of (i) access to a phone number, 1(800) 398-4416, Ext. 2, 24 hours per day Monday through Friday (ET) and 8am – 8pm (ET) on Saturday and Sunday, excluding U.S. national holidays, (ii) a dedicated email account at support@butterflymx.com, and (iii) personnel to provide responses to any telephone and email inquiries.
6.2 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), (ii) unplanned maintenance, (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, denial of service attacks, or any other unforeseeable and irresistible event rendering performance impossible, or that materially affects Provider’s ability to supply, deliver, host, support, or make available any Hardware Products or Services (each, a “Force Majeure Event”) (iv) Customer’s or any of its Authorized User’s failure to meet any minimum hardware or software requirements set forth in the Documentation; (v) interruptions caused by portions of the system or services that Provider is not obligated to operate or maintain (e.g., electric utility or connections, network or wiring infrastructure, system configuration determined by Customer, issues with locks, strikes, and any other hardware that is used for the installation or network connectivity of Provider devices, Third Party Products, or Third Party Services, etc.); (vi) interruptions caused by Customer and/or user(s) error including, without limitation, expired or incorrect access credentials or Customer’s or any of its Authorized User’s misuse of the Services. Upon the occurrence of a Force Majeure Event, Provider’s performance obligations under these Terms shall be suspended for the duration of the Force Majeure Event, and, if possible, the time for performance shall be extended for a period equal to the duration of the delay caused by the Force Majeure Event. If a Force Majeure Event affects Provider’s ability to deliver the Hardware Products or Services to its customers generally, Provider may allocate available capacity among its customers and channels in its reasonable discretion.
6.3 Provider may suspend or revoke Customer’s (or any Authorized User’s) use of the Services if Provider reasonably and in good faith believes such suspension or revocation is necessary to prevent unauthorized use of the Services (including but not limited to a violation of any of the restrictions in these Terms) or to prevent an ongoing violation of any applicable laws or regulations. Provider will use commercially reasonable efforts to notify Customer prior to such suspension or revocation and will only suspend or revoke the Services to the extent necessary to prevent such unauthorized use or violation.
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 (accessible at help.butterflymx.com) 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, and to maintain, 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. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Provider immediately in writing of any such unauthorized access or use. 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 and for Provider to communicate, use, and disclose such Customer Data as set forth herein.
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. Without limiting Section 7.1 above, 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 (h) 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. CONFIDENTIALITY
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 or as otherwise authorized herein. 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 that the receiving party promptly notifies the disclosing party in writing of such subpoena, order or other disclosure requirement (to the extent legally permitted) and cooperates, at the disclosing party’s expense, in any reasonable efforts to seek a protective order or otherwise challenge or limit the scope of such disclosure.
9. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1 Two-Year Warranty. Provider warrants that the Hardware Products, if used in accordance with 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 (2) years from delivery to Customer. If the Hardware Products purchased by Customer do not perform in accordance with the foregoing limited warranty within such two-year period, and the Customer provides written notice to the Provider describing the non-conformity, Provider will, at its option and using commercially reasonable efforts, repair or replace such Hardware Products within thirty (30) days of Customer’s notice of such failure to Provider. Any repair or replacement period will be extended to the extent Customer fails to provide reasonable access, information, or other cooperation reasonably required by Provider to perform the repair or replacement. Customer must return to Provider any Hardware Products subject to replacement pursuant to this Section 9.1 within thirty (30) calendar days of receiving the replacement Hardware Product, failing which the Provider may invoice the Customer for such replacement.
This warranty is expressly conditioned on the Hardware Products having been installed by a Certified Installer. If any Hardware Product is installed, in whole or in part, by any person or entity that is not a Certified Installer, the warranty set forth in this Section 9.1 is void as to such Hardware Product, and Provider will have no obligation to repair, replace, or otherwise remedy any defect or nonconformance in such Hardware Product. “Certified Installer” means a third-party installer who has been certified, authorized, or otherwise approved in writing by Provider to install the Hardware Products, in each case as identified on Provider’s then-current list of approved installers, available upon request.
Provider will have no liability for any claim under this Section 9.1 if the non-conformity arises from (a) modifications to the Services or Hardware Products made other than by Provider, (b) use of the Services or Hardware Products in combination with software, hardware or other materials not provided by Provider, (c) a Force Majeure Event, (d) improper installation, use, handling, or maintenance of the Services or Hardware Products not in accordance with the Documentation, (e) defects or failures attributable to third-party equipment or infrastructure (e.g., internet service, power, or mobile devices) used in connection with the Services or Hardware Products, or (f) installation completed by a third party who is not a Certified Installer or otherwise approved in writing by ButterflyMX. Subject to applicable law, 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. If Provider cannot correct such noncompliance within a reasonable period of time, Customer may terminate its Services 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 Subscription Term of the applicable Order Form after the effective date of termination.
9.2 Customer warrants that: (i) it owns or has a license to use, and has obtained all consents and approvals necessary for, the provision, collection, use, and disclosure of Customer Data and any other data of Authorized Users; (ii) it shall comply with applicable law; and (iii) the provision, collection, use, and disclosure of Customer Data as contemplated by these Terms and the Services will not violate any agreement to which Customer is a party or any law or regulation applicable to Customer.
9.3 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, THE SERVICES AND HARDWARE PRODUCTS ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE.” PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS WITH RESPECT TO THE SERVICES AND HARDWARE PRODUCTS AND THESE TERMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR LEGAL WARRANTIES OF MERCHANTABILITY, QUALITY, 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 IS ENTERING INTO THESE TERMS IN THE COURSE OF ITS BUSINESS AND IS NOT A CONSUMER WITHIN THE MEANING OF APPLICABLE CONSUMER PROTECTION LEGISLATION.
10. THIRD-PARTY PRODUCTS AND THIRD-PARTY SERVICES
10.1 Use and Definitions. Customer may use Third-Party Products and Third-Party Services in connection with Provider’s Services and Hardware Products, subject to these Terms and the applicable third party’s separate terms and conditions. If Customer does not accept such third-party terms, Customer must not use the applicable Third-Party Product or Third-Party Service with Provider’s Services or Hardware Products. By using any Third-Party Product or Third-Party Service, Customer provides consent and authorizes Provider and the applicable third party to exchange information as reasonably necessary to enable the requested interoperability (e.g. permitting property access or providing device status.) Provider may monitor any interactions between Customer and a Third-Party Product or Third-Party Service to the extent occurring through Provider’s Services or Hardware Products. A “Third-Party Product” means any hardware or device manufactured by a third party that is designed to interoperate with Provider’s Services or Hardware Products and is approved in Provider’s Documentation. A “Third-Party Service” means any service, application, or platform provided by a third party, including such third party’s employees, agents, contractors, and other authorized personnel acting in connection with such service, that is designed to interoperate with, or receive access through, Provider’s Services or Hardware Products and is approved in Provider’s Documentation.
10.2 Modifications. Provider may, in its sole discretion, decline to establish, or suspend or discontinue, interoperability with any Third-Party Product or Third-Party Service, in whole or in part, at any time and without liability to Customer.
10.3 Disclaimer. Provider does not manufacture, develop, or control any Third-Party Product or Third-Party Service and expressly disclaims and makes no representation or warranty regarding its performance, availability, security, or compatibility. Provider has no responsibility or liability for any Third-Party Product or Third-Party Service, its integration with Provider’s Services or Hardware Products, or any loss, injury, or damage arising from or attributable to any Third-Party Product or Third-Party Service.
10.4 Third-Party Service Delivery Integrations. Provider will enroll Customer’s Account to interoperate with certain Third-Party Services that support delivery, carrier, or last-mile access services or other logistics functionality through Provider’s Services and Hardware Products. Customer may opt out of any such integrations at any time, at no cost, by disabling the applicable interoperability in Customer’s Account settings or by emailing support@butterflymx.com. Opting out disables future access grants and data sharing under the applicable integration, but does not retroactively revoke access or data shared before the opt-out took effect.
Customer’s Account will be enrolled in Amazon Key. The terms applicable to this Third-Party Service integration are the Access Consent – ButterflyMX Terms and Conditions for Amazon Key Integration (https://butterflymx.com/amazon-terms/), which are incorporated into these Terms by reference.
11. INDEMNIFICATION
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 legal fees, disbursements, and expenses) resulting from such Claims to the extent arising out of or in connection with (a) Customer’s or its Authorized Users’ negligence or willful misconduct (including recklessness), or breach of these Terms, or (b) the Customer Data or Provider’s use thereof in accordance with these Terms.
Without limiting the generality of the foregoing, Customer will defend Provider from and against any and all Claims brought by any Authorized User related to the collection, use, or disclosure of their personal information by (i) the Customer; and (ii) by the Provider on Customer’s behalf in connection with the provision of Services as contemplated in these Terms.
12. 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 11, (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 OR IF SUCH DAMAGES WERE FORESEEABLE, 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 UNDER THE APPLICABLE ORDER FORM 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.
For purposes of this Section, “Installer” means any third-party contractor engaged to install, mount, wire, configure, integrate, or otherwise physically deploy hardware, equipment, devices, or other tangible products, regardless of whether such Installer is engaged by Customer or by any other party, and regardless of whether such Installer was identified or referred by Provider as a Certified Installer. An Installer is not a subcontractor, agent, or employee of Provider for any purpose under these Terms, and no act, omission, or work of any Installer shall be deemed performed by, controlled by, or attributable to Provider. Provider assumes no responsibility for, and shall have no obligation to defend, indemnify, or hold harmless Customer from and against, any claim, demand, loss, fine, penalty, damage, or liability of any kind arising from, resulting from, or connected with the acts, omissions, negligence, or willful misconduct of any Installer.
EACH PARTY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS IN THIS SECTION 12 ARE AN ESSENTIAL ELEMENT OF THESE TERMS AND THAT IN THE ABSENCE OF THIS SECTION 12 THE PRICING AND OTHER TERMS SET FORTH IN THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING EXCLUSIONS AND LIMITATIONS DO NOT APPLY TO LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
13. 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 exclusively 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 exclusive personal jurisdiction and venue of such courts. Notwithstanding the foregoing, in connection with any breach of these Terms that relates to intellectual property, personal information or Confidential Information, Provider may seek an injunction or other equitable relief in any court of competent jurisdiction. 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. Notwithstanding the foregoing, if Customer transfers ownership of the property at which the Hardware Products are installed and assigns these Terms to the transferee in connection with that transfer, Customer does not require Provider’s consent to such assignment. 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, mandate, or agency between the parties. These Terms (including all duly executed Order Forms and any other terms referenced herein) 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. 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, 12, 13 and 14, and any sections required to give effect to these provisions, will survive any expiration or termination of any Order Form.
14. DISPUTE RESOLUTION
14.1 APPLICABILITY. CUSTOMER UNDERSTANDS AND AGREES THAT THESE DISPUTE RESOLUTION TERMS APPLY TO ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN CUSTOMER AND PROVIDER (AND ANY OTHER RELEASED PARTY), AND ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, MANDATARIES, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF OR ACCESS TO THE SERVICES.
14.2 DISPUTE NOTICE AND INFORMAL DISPUTE RESOLUTION. Provider does not anticipate any dispute between the parties, however if a dispute should arise between Customer and Provider, Provider would like to provide Customer with a resolution that is efficient and cost effective without the need for formal litigation. If any disputes arise, the parties will first attempt to resolve the dispute informally via good faith negotiation which shall include before initiating an action, Customer and Provider each agree to first provide the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute can be (1) mailed to ButterflyMX, Inc., 44 West 28th Street, 4th Floor, New York, NY 10001, Attention: Legal, or (2) emailed to legal@butterflymx.com. Customer and Provider agree to also make reasonable attempts to resolve the dispute prior to commencing any legal action, including discussions over telephone or in person between Customer and Provider. Nothing in this Section shall be deemed to prevent either party from seeking injunctive or other equitable relief from the courts of competent jurisdiction as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights, or other proprietary rights. If an agreement cannot be reached within sixty (60) days of receipt of the Notice of Dispute, Customer or Provider may initiate legal action, including the filing of a lawsuit. Failure to comply with this informal dispute resolution provision may result in the dismissal of any initiated litigation.
15. UPDATES TO THESE TERMS
Provider reserves the right to change or modify these Terms, in which case Provider will update the “Effective Date” at the top of these Terms, provided that these changes will be prospective only and not retroactive. If Provider makes material changes, Provider will use reasonable efforts to attempt to notify Customer, such as by e-mail to the e-mail address in Customer’s Account and/or by placing a prominent notice on the first page of these Terms. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. If Customer continues to use the Services after any changes or modifications of these Terms are posted, Customer will be considered to have accepted such changes and/or modifications.