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TERMS OF SERVICE


Welcome to the Terms of Service (these “Terms”) for the website https://butterflymx.com/ (the “Website”) and 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 “App,” and together with the Website, the “Services”) offered by ButterflyMX, Inc., a Delaware corporation, with its principal place of business at 127 West 26th Street, 9th Floor, New York, NY 10001 (“ButterflyMX”, “we” or “us”). These Terms govern your access to and use of the Services. Please review these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.

For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.

If you or another business entity granting you access to the Services has entered into a separate subscription agreement with us for use of the Services (the “Subscription Agreement”), then in the event of a conflict between these Terms and the Subscription Agreement, the terms of the Subscription Agreement will supersede and control with respect to your use of the Services.

WHO MAY USE THE SERVICES.  You must be 18 years of age or older and reside in the United States or any of its territories to use the Services. By using the Services, you represent and warrant that you meet all of these requirements.

CREATING AND SAFEGUARDING YOUR ACCOUNT. To use the Services, you may need to create an account (“Account”).  You agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. You must immediately notify us if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in the case of any actual or suspected unauthorized use of your Account.

PRIVACY POLICY. Our Privacy Policy describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy available online at https://butterflymx.com/privacy-policy/.

RIGHTS WE GRANT YOU. Subject to your compliance with these Terms, we hereby grant to you a worldwide, revocable, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Services, and download, install and operate the App on an electronic device owned by you only for personal, non-commercial purposes. The foregoing license is granted to you for the sole purpose of enabling you to use and enjoy the Services in accordance with these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that ButterflyMX, in its sole discretion, may elect to take.

RESTRICTIONS ON YOUR USE OF THE SERVICES. Except as expressly permitted in these Terms, you may not directly or indirectly:

a) exploit the Services for any commercial purpose;

b) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;

c) decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;

d) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;

e) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;

f) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;

g) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services, or circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;

h) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;

i) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;

j) use the Services for illegal harassing, unethical or disruptive purposes, or violate any applicable law or regulation in connection with your access to or use of the Services, including without limitation any applicable data privacy laws; or

k) access or use the Services in any way not expressly permitted by these Terms.

USE OF THE SERVICES. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, wifi network and other related equipment, (ii) your internet service provider and (iii) your mobile device operator. We do not guarantee that the Services can be accessed and used on any particular device or with any particular service plan.  We do not guarantee that the Services will be available in any particular geographic location. As part of the Services, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the Services (“Push Messages”). You acknowledge that, when you use the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Services, including your receipt of Push Messages from ButterflyMX. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Services on your mobile device, including for your receipt of push messages from ButterflyMX. You acknowledge that you are responsible for all fees charged for your use of the above in connection with your use of the Services.

MOBILE SOFTWARE FROM THE APPLE APP STORE. The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and ButterflyMX, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store’s applicable terms of use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and ButterflyMX acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You and ButterflyMX acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, ButterflyMX, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and ButterflyMX acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your use of the App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

 

OWNERSHIP OF TRADEMARKS AND SERVICES. The ButterflyMX name, trademarks and logo and all related names, logos, product and service names, designs and slogans are trademarks of ButterflyMX or its affiliates or licensors. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that ButterflyMX and/or its licensors own all right, title and interest in and to the Services (including all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and their content, including, without limitation, the exclusive right to create derivative works. ButterflyMX reserves the right to make such modifications to the Services from time to time as it deems advisable in order to enhance the functionalities or appearance of the Services or for any other reason.

OWNERSHIP OF FEEDBACK. You acknowledge and expressly agree that any feedback, comments and suggestions for improvements to the Services you provide to us (“Feedback”) becomes the sole and exclusive property of ButterflyMX, and ButterflyMX may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to ButterflyMX any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.

DISCLAIMERS. You understand and agree that the Services are provided to you on an “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, ButterflyMX, its parents, affiliates, related companies, officers, directors, employees, contractors, officers, agents, representatives, partners and licensors (the “THE BUTTERFLYMX ENTITIES”) DISCLAIM ALL, AND MAKE NO, WARRANTIES OF ANY KIND (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING WITHOUT LIMITATION (A) THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR LOSS OF DATA; (B) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (c) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (d) the operation or compatibility with any other application or any particular system or device;  and (e) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from the ButterflyMX Entities or through the Services, will create any warranty or representation not expressly made herein.

LIMITATIONS OF LIABILITY TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL the BUTTERFLYMX entities BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING without limitation DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING FROM CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE OR OTHERWISE) OR ANY OTHER CAUSE OF ACTION, EVEN IF THE BUTTERFLYmx ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING, BUT NOT LIMITED TO: (a) PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS or BUSINESS INTERRUPTION; (B) ANY ACTS OR OMISSIONS OF ANY INDIVIDUAL THAT YOU LET INTO ANY BUILDING OR PREMISES, or DAMAGE TO OR LOSS OF ANY PERSONAL PROPERTY OR BUILDING; (C) PERSONAL INJURY OR LOSS OF LIFE ARISING FROM YOUR USE OF THE SERVICES; OR (D) ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO some of THE ABOVE EXCLUSIONs OR LIMITATIONs MAY NOT APPLY TO YOU. Notwithstanding the foregoing, IF a court of competent jurisdiction finds ButterflyMx liable to you, then THE ButterflyMX ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED in any matter arising from, related to or connected with the services or these terms SHALL NOT EXCEED THE AMOUNT OF TWENTY-FIVE U.S. DOLLARS ($25.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

INDEMNIFICATION. You agree to defend, indemnify, and hold harmless the ButterflyMX Entities from all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the ButterflyMX Entities arising out of or in connection with: (A) your access of or use of the Services; (B) the acts or omissions of any individual that you let into any building or premises; (C) your violation or breach of any term of these Terms, any applicable law or regulation, or the rights of any third party; or (D) your negligence or willful misconduct.  ButterflyMX reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are obligated to indemnify ButterflyMX.  If ButterflyMX chooses to assume the defense of any matter that is subject to indemnification by you, you will cooperate with ButterflyMX, at its expense, in any respect reasonably requested by ButterflyMX.

UPDATES. ButterflyMX may from time to time in the future change or modify these Terms in which case we will update the “Last Updated” date at the top of these Terms. If ButterflyMX makes material changes, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. 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 you continue to use the Services after any changes or modifications of these Terms are posted on the Website, you will be considered to have accepted, and to have accepted such changes and/or modifications.

TERMINATION OF LICENSE AND YOUR ACCOUNT. If you breach any of the provisions of these Terms, all licenses granted to you by ButterflyMX will terminate automatically. Additionally, we may suspend, disable, or delete your Account and/or access to the Services (or any part of the foregoing) with or without notice, for any or no reason. If we delete your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of the license or your Account by ButterflyMX or you. Termination will not limit any of our other rights or remedies at law or in equity.

INJUNCTIVE RELIEF. You agree that a breach of these Terms may cause irreparable injury to ButterflyMX for which monetary damages would not be an adequate remedy and ButterflyMX shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

CALIFORNIA RESIDENTS. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

MISCELLANEOUS. If any provision contained in these Terms 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 these Terms will not be affected thereby. These Terms and the licenses granted hereunder may be freely assigned by ButterflyMX but may not be assigned by you without the prior express written consent of ButterflyMX. 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. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms will be governed by, and construed under, the laws of the State of New York, without regard to its principles of conflicts of laws. You expressly agree that the exclusive jurisdiction for any claim, suit or action arising out of or relating to these Terms or your use of the Services will be filed only in the state or federal courts located in New York County, New York, and you agree to submit to the personal jurisdiction of such courts.

HOW TO CONTACT US. You may contact us regarding the Services or these Terms by email at info@butterflymx.com, by phone at (571) 480-6579 ext. 1, or at 127 West 26th Street, 9th Floor, New York, NY 10001.