Terms of Use

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY CLICKING "I ACCEPT" DURING THE ONLINE SETUP PROCESS, USER AGREES TO THE FOLLOWING TERMS OF USE (THE "TERMS OF USE") GOVERNING USER'S USE OF THE NIGHTTENDERS, INC. ONLINE SERVICE (THE "SERVICE"). THE TERMS "NIGHTTENDERS", "US," "WE," or "OUR" ARE USED INTERCHANGEABLY AND MEAN NIGHTTENDERS, INC

1. Authorized Parties.

If you are entering into this agreement on behalf of a company or other legal entity, you warrant that you have the authority to bind such entity to these terms of use. The terms “You,” “Your,” User” or “Subscriber” or any derivative of the pronoun shall refer to such entity. If you do not have such authority or do not agree with these terms of use, do not proceed with registration.

The acceptance of NightTenders, Inc. of your registration is expressly conditioned upon your assent to all the terms and conditions of this agreement, to the exclusion of all other terms and expressly limited to the terms contained herein.

2. Modification of Terms of Agreement.

The web pages available at www.NightTenders.com, and all linked pages (the “Site”), are owned and operated by NightTenders, Inc., a Colorado corporation, and accessed by you, under the following terms and conditions. We may amend or change these Terms of Use from time to time, in our sole discretion, by providing you with written notice by regular US mail, electronic mail, or by posting the updated terms on the site. Please mark your calendar to remember to access the site and review this Terms of Use Agreement regularly. If you find the Terms of Use unacceptable to you at any time, please discontinue your use of the service. Your use of the service, after we have made such changes available will be considered your agreement to the change.

3. Charges and Billing.

User subscriptions automatically renew and User's credit card will be automatically charged every month, quarter, or year, depending on User's noted subscription level. Payment for the Service is non-refundable once User has subscribed to the Service, whether on a monthly, quarterly, or annual basis. There will be no refunds or credits issued for partial months, quarters, or years of service. All Services rendered under this Agreement are non-refundable. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all such taxes, levies, or duties. NightTenders, Inc. services do not include charges for phone and Internet access or other data transmissions. User must provide NightTenders, Inc. with a valid credit card or executed authorization for ACH transactions as a condition to subscribing to the Service. NightTenders, Inc. reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least fifteen (15) days prior notice to User according to the terms outlined in the Modification of Terms of Agreement section of this agreement.

4. Changes in Subscription Levels.

Users may change subscription levels at any time. Billing adjustments will be made as follows:

Subscription Upgrades(# of units)
If your service is:	Service Change Effective	Billing Change Effective	Billing Change Calculation
Monthly	Immediately	Immediately	prorated for remainder of month, billed on 1st of following month
Quarterly	Immediately	Immediately	prorated for remainder of quarter, billed on 1st of following month
Annual	Immediately	Immediately	prorated for remainder of year, billed on 1st of following month

Subscription Downgrades(# of units)
If your service is:	Service Change Effective	Billing Change Effective	Billing Change Calculation	Amount of Credit
Monthly	Immediately	No credit given	1st of following month	$0.00
Quarterly	Immediately	1st of following month	For remainder of subscription quarter	85% of difference
Annual	Immediately	1st of following month	For remainder of subscription year	90% of difference

Fees may not be credited towards other services. All currency references are in U.S. dollars

User is required to maintain a valid credit card on file from the Subscription Settings page of their account at all times. Regardless of User’s payment method, User’s subscription to the Service authorizes NightTenders, Inc. to charge User’s credit card. This authorization shall remain valid until 30 days after termination or cancellation of User’s account, whereupon NightTenders, Inc. may charge User’s credit card for any outstanding charges as may be applicable.

5. Renewal.

NightTenders, Inc. charges and collects in advance for use of the Service. NightTenders, Inc., at its sole discretion, will automatically renew User's subscription and charge User's credit card every month, quarter, or year at the commencement of each consecutive renewal term, which shall be monthly, quarterly, or annual depending on User's subscription type, unless you elect to cancel the Service or we terminate your subscription, as provided below. The renewal charge will be based upon the then-current license fee in effect at the time of renewal. As stated above, NightTenders, Inc.’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all such taxes, levies, or duties.

User agrees to provide NightTenders, Inc. with complete and accurate billing and contact information. This information includes User's legal name or company name, credit card and billing address, e-mail address, and name and telephone number of an authorized billing contact. User agrees to update this information immediately upon change to it, in the event of a lost or stolen credit card, or upon receipt of a new card with new expiration date. If the contact or billing information User has provided is false or fraudulent, NightTenders, Inc. reserves the right to terminate User's access to the service in addition to any other legal remedies.

6. Non-Payment and Suspension.

In addition to any other rights granted to NightTenders, Inc. herein, Night Tenders, Inc. reserves the right to suspend or terminate this Agreement and User's access to the service if User's account becomes delinquent (falls into arrears) or User fails to maintain a valid credit on file for their account. Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If User or NightTenders, Inc. initiates termination of this Agreement and User's access to the service, User will be obligated to pay the balance due on User's account computed in accordance with the Charges and Billing section above. User agrees that NightTenders, Inc. may charge such unpaid fees to User's credit card or otherwise bill User for such unpaid fees.

If the User's credit card is invalid, the User will be notified to provide a valid credit card within 72 hours. If the subsequent credit card provided is invalid, the User will have 72 hours to provide a new card. If the third credit card provided is invalid, the Service may be cancelled and all the information contained within deleted permanently. NightTenders, Inc. accepts no liability for information that is deleted due to an invalid credit card.

NightTenders, Inc. reserves the right to impose a reconnection fee in the event User is suspended and thereafter requests access to the Service. User agrees and acknowledges that NightTenders, Inc. has no obligation to retain User Data and that such User Data may be irretrievably deleted if User's account is 10 days or more delinquent.

7. User Cancellation and Termination upon Expiration.

Subject to the terms and conditions of this Agreement, User may cancel the Service at any time, unless bound by a quarterly or annual term. Such cancellation may be may by either (a) certified mail, or (b) by email or telephone which receipt is confirmed in writing by NightTenders, Inc.

For monthly subscriptions, User is purchasing the Service for full monthly terms, meaning if User attempts to terminate Service prior to the end of a monthly term, User will be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, which will immediately become due and payable. Expiration of the term or termination of Service will not excuse User from paying all accrued and unpaid charges due under this Agreement.

For fixed term quarterly or annual subscriptions (i.e., three (3) or twelve (12) months), User is purchasing the Service for the full quarterly or annual term, to be paid upfront quarterly or annually. User’s quarterly or annual subscription will automatically renew after the initial fixed term is over. Early cancellation of a quarterly or annual subscription is not eligible for any refund, whether in whole or in part, and may also result in the loss of promotional consideration. Expiration of the term or termination of Service will not excuse User from paying all accrued and unpaid charges due under this Agreement.

If User cancels the Service before the end of the term, your cancellation will take effect immediately. Upon cancellation, User will no longer have access to the Site and all information contained within User's account and User Data will automatically, permanently and irreversibly deleted. NightTenders, Inc. accepts no liability for such deleted information or User Data.

8. Privacy & Security.

NightTenders, Inc.’s privacy policy may be viewed at http://www.NightTenders.com/privacy.htm. NightTenders, Inc. reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. When users initially log in, they will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from NightTenders, Inc.from time to time. User may opt out of receiving such communications at that time or at any subsequent time. Note that because the Service is a hosted, online application, NightTenders, Inc. occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.

9. License Grant & Restrictions

NightTenders, Inc. hereby grants User a revocable, non-exclusive, non-transferable, worldwide right to use the Service, solely for User's own internal business purposes, subject to these Terms of Use (the "License"). All rights not expressly granted to User are reserved by NightTenders, Inc. and its licensors.

User shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) co-brand (i.e., display any name, logo, trademark or other means of attribution or identification of any party in such a manner reasonably likely to give a user the impression that such other party has the right to display, publish or distribute the Service or content accessible through the Service) the Service, the Content or any portion thereof; (iv) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device (whereby the Service or portion thereof will appear on the same screen with a portion of another website); or (v) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User agrees to cooperate with NightTenders, Inc. in causing any unauthorized cobranding, framing or linking to immediately cease. User licenses may be used by any number of employees, representatives, consultants, contractors or agents within a single User organization, but cannot otherwise be shared or used by more than one User entity.

10. User's Responsibilities.

User is solely responsible for all activity occurring within User's account(s) and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with User's use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. User shall: (i) notify NightTenders, Inc. immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to NightTenders, Inc. immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by User; and (iii) not impersonate another NightTenders, Inc. user or provide false identity information to gain access to or use the Service.

NightTenders, Inc. relies on the data provided by User to make decisions regarding which services, if any, to arrange in response to an emergency call for maintenance services by User’s tenants. User agrees to update unit and preference data provided to NightTenders, Inc. via the Site as often as there is a change in such data. NightTenders, Inc. does not assume any responsibility for inaccurate or outdated data provided by User or for any work orders issued as a result of inaccurate or outdated data provided by User.

11. Best Judgment

NightTenders, Inc. will use its best judgment in determining whether a tenant caller’s request constitutes an emergency or can wait until the next business day based on the information and preferences provided by User. NightTenders, Inc. will seek information from the tenant and the data provided by User to act on an informed basis, protect life and property, act in the best interests of the landlord, and not be wasteful. User agrees that in instances where best judgment is applied there is room for disagreement and will hold harmless NightTenders, Inc. where such disagreements occur.

12. Account Information and User Data.

Basic User information, such as User name, address, phone number, and e-mail address, and financial qualification and billing information, the number of users within the organization that will be using the Services, is subject to our Privacy Statement and Policy, found at http://www.NightTenders.com/privacy.htm.

Users of the Service will be using the Site to host confidential data and information about their managed properties and tenants’ maintenance requests ("User Data"). NightTenders, Inc. will not review, share, distribute, print, or reference any such User Data except, as provided herein, in the Property Privacy Statement, in the NightTenders, Inc. Subscription Agreement or as may be required by law. Individual records and User Data may at times be viewed, accessed or utilized by NightTenders, Inc. for the purpose of resolving a problem, improving customer support or our Services, investigating a suspected violation of the Subscription Agreement, or as may be required by law. Of course, Users are responsible for maintaining the confidentiality and security of their user registration and password. User, not NightTenders, Inc., shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and NightTenders, Inc. shall not be responsible or liable for the deletion, correction, destruction, damage, inaccuracy, loss of or failure to store any User Data. NightTenders, Inc. reserves the right to withhold, permanently remove and/or discard User Data without notice for any breach, including, without limitation, User's non-payment of Service fees. Upon termination, User's right to access or use User Data shall immediately cease, and NightTenders, Inc. shall have no obligation to maintain, preserve or forward any User Data.

13. Technical, Customer, and Sales Support.

Technical, customer, and sales support is provided via email or other online means, phone or traditional mail. User acknowledges and agrees that technical processing of User Data is and may be required: (a) for the Service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Service; or (d) to conform to other, similar technical requirements. User also acknowledges and agrees that NightTenders, Inc. may access User's account and User Data and its contents as necessary to identify or resolve technical problems, respond to complaints about the Service, or to improve the Service generally.

14. Intellectual Property Rights.

The Site and its Contents are intended solely for the use of NightTenders, Inc. Users and may only be used in accordance with the terms of this Agreement. NightTenders, Inc. (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the NightTenders, Inc. Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other party relating to the Service. This Site is protected by copyright as a collective work and/or compilation, pursuant to US copyright laws, international conventions, and other copyright laws. User may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in the User Subscription Agreement), create derivative works base on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services, in whole or in part; except that User may print out a copy of Content solely for User's personal use, and in doing so, User will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content. This Agreement is not a sale and does not convey to User any rights of ownership in or related to the Service, the Content, the NightTenders, Inc. Technology or the Intellectual Property Rights owned by NightTenders, Inc. The NightTenders name, the NightTenders logo, and the product names associated with the Service are trademarks of NightTenders, Inc. or third parties, and no right or license is granted to use them. Accordingly, User will not reproduce, transmit, publish or distribute such Content to any third party without the express written consent of NightTenders, Inc., which may be granted or withheld in NightTenders, Inc.’s sole and absolute discretion.

15. Third Party Interactions.

During use of the Service, User may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity is solely between User and the applicable third-party. NightTenders, Inc. and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between User and any such third-party. NightTenders, Inc. does not endorse any sites on the Internet that are linked through the Service or Site. NightTenders, Inc. provides these links to User only as a matter of convenience, and in no event shall NightTenders, Inc. or its licensors be responsible for any content, products, or other materials on or available from such sites. User recognizes, however, that certain third-party providers of ancillary software, hardware or services may require User's agreement to additional or different license or other terms prior to User's use of or access to such software, hardware or services.

16. NightTenders, Inc. Termination.

Any breach of User's payment obligations or unauthorized use of the NightTenders, Inc. technology or Service will be deemed a material breach of this Agreement. NightTenders, Inc., in its sole discretion, may terminate User's password, account or use of the Service if User breaches or otherwise fails to comply with this Agreement. NightTenders, Inc. may terminate any User account, at its sole discretion, with prior written notice delivered at least one week prior to the end of User’s subscription term. User agrees and acknowledges that NightTenders, Inc. has no obligation to retain the User Data after termination, and may delete such User Data at any time if User has materially breached these Terms of Use.

17. Representations & Warranties.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. NightTenders, Inc. represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. User represents and warrants that User has not falsely identified itself nor provided any false information to gain access to the Service and that User's billing information is correct.

18. Indemnification

User shall indemnify, defend and hold NightTenders, Inc., its licensors, content providers, service providers and contractors, and each such party's parent organizations, subsidiaries, affiliates, members, managers, officers, directors, employees, attorneys and agents (collectively, the "Indemnified Parties") harmless from and against any and all claims, demands, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any breach of these Terms of Use by User, including any use of Content other than as expressly authorized in these Terms of Use, and including, without limitation: (i) a claim alleging that use of the User Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by User of User's representations and warranties; or (iii) a claim arising from the breach by User of these Terms of Use. User will also indemnify, defend and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of User's use of any information accessed from the Service.

19. Disclaimer of Warranties

User will have access to a variety of sources of content through the Internet. NightTenders, Inc. has made no effort to verify the accuracy or suitability of any information contained in any such sources. Accordingly, NightTenders, Inc. will have no liability or responsibility whatsoever for any content contained within any such sources. User accesses, uses and relies upon such content at User's own risk. User understands that, except for information, products or services clearly identified as being provided by NightTenders, Inc., NightTenders, Inc. does not operate, control or endorse any information, products or services on the Internet in any way. User also understands that NightTenders, Inc. cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. Each User is responsible for implementing sufficient procedures and checkpoints to satisfy User's particular requirements for security and accuracy of data input and output, and for maintaining a means external to the Service for the reconstruction of any lost data. NightTenders, Inc. does not assume any responsibility or risk for User's use of the Internet.

NIGHTTENDERS, INC. AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. NIGHTTENDERS, INC. AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA, INCLUDING BUT NOT LIMITED TO USER DATA, WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE SERVICE WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO USER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NIGHTTENDERS, INC. AND ITS LICENSORS.

20. Internet Delays and Electronic Communications Privacy Act Notice

NIGHTTENDERS, INC.'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NIGHTTENDERS, INC. IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. 2701-2711): WE MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED TO THE SITE OR ANY WEB SITE LINKED TO THE SITE. WE WILL NOT BE LIABLE FOR THE PRIVACY OF THE INFORMATION, USER DATA, E-MAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, STORAGE SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADESECRET INFORMATION, OR ANY OTHER CONTENT TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SITE.

21. Limitation of Liability.

IN NO EVENT SHALL NIGHTTENDERS, INC.’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE ONE (1) MONTH PERIOD, OR IN THE CASE OF A QUARTERLY SUBSCRIPTION, ONE THIRD (1/3) OF THE QUARTERLY SUBSCRIPTION, OR IN THE CASE OF AN ANNUAL SUBSCRIPTION, ONE TWELFTH (1/12) OF THE ANNUAL PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL NIGHTTENDERS, INC. AND/OR ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO USER IN CONNECTION WITH THE SERVICES BE LIABLE TO ANYONE UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST BUSINESS REVENUE, OTHER ECONOMIC LOSS OR ANY LOSS OF RECORDED DATA, INCLUDING BUT NOT LIMITED TO THE LOSS OF USER’S DATA, QUICKBOOKS COMPANY FILE(S) OR ANY OTHER DATA, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, LOSS OR DELETION, UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF USER’S DATA THROUGH ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD REGARDLESS OF CAUSE IN THE CONTENT OR NEGLIGENCE ON THE PART OF NIGHTTENDERS, INC. OR ITS SERVICE PROVIDERS, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

22. Additional Rights.

Certain states and/or jurisdictions limit or do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you, or be limited in scope.

23. Local Laws and Export Control.

NightTenders, Inc. provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. User acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, User represents and warrants that User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. User agrees to comply strictly with all U.S. and European Union export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. NightTenders, Inc. and its licensors make no representation that the Service is appropriate or available for use in other locations. If User uses the Service from outside the United States of America, User is solely responsible for compliance with all applicable laws, including without limitation taxes, export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

24. Notice.

NightTenders, Inc. may give notice by means of a general notice on the Service, electronic mail to User's e-mail address on record in NightTenders, Inc.’s account information, or by written communication sent by first class mail or pre-paid post to User's address on record in NightTenders, Inc.’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). User may give notice to NightTenders, Inc. (such notice shall be deemed given when received by NightTenders, Inc.) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to NightTenders, Inc. at the following address: NightTenders, Inc., PO Box 2907, Loveland, C0 80539, USA, addressed to the attention of: Billing. To terminate or cancel the Service, User shall abide by the terms and conditions set forth in Sections 12 and 13 hereto, as appropriate.

25. Modification to Terms.

NightTenders, Inc. reserves the right to modify these Terms of Use or its policies relating to the Service at any time, effective upon posting of an updated version of these Terms of Use on the Service. User is responsible for regularly reviewing these Terms of Use. Continued use of the Service after any such changes shall constitute User's consent to such changes.

26. Assignment.

This Agreement may not be assigned by User without the prior written approval of NightTenders, Inc.; however, this Agreement may be assigned without User's consent by NightTenders, Inc. to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger or consolidation. Any purported assignment in violation of this section shall be void.

27. Resale of Service.

User agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by NightTenders, Inc. 28. No Third Party Beneficiaries. No provision of these Terms of Use provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

28. General.

This Agreement shall be governed by Colorado law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts in Larimer County, Colorado. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary these Terms of Use. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between User and NightTenders, Inc. as a result of this Agreement or use of the Service. The failure of NightTenders, Inc. to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by NightTenders, Inc. in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between User and NightTenders, Inc. and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. User acknowledges that any use of the Services contrary to these Terms of Use, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to NightTenders, Inc., its affiliates, suppliers and any other party authorized by NightTenders, Inc. to resell, distribute, or promote the Services ("Resellers"), and under such circumstances NightTenders, Inc., its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

29. Definitions.

As used in this Agreement and in any Order Forms now or hereafter associated herewith:

"Agreement" means these Terms of Use, any Order Forms, whether written or submitted online, and any materials available on the NightTenders, Inc. Site specifically incorporated by reference herein, as such materials, including these Terms of Use, may be updated by NightTenders, Inc. from time to time in its sole discretion;

"Content" means the audio and visual information, documents, software, products and services contained or made available to User in the course of using the Service or the Site.

"Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date User begins using the Service;

"Initial Term" means the initial period during which User is obligated to pay for the Service equal to the billing frequency selected by User during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);

"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

"License Administrator(s)" means the individual(s) designated by User who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer User's use of the Service;

"License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);

"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);

"Online Order Center" means NightTenders, Inc.’s online application that allows the License Administrator designated by User to, among other things, add additional Users to the Service;

"Service(s)" means the specific edition of NightTenders, Inc.’s online property information system, billing, and, activity management systems or other services identified during the ordering process, developed, operated, and maintained by NightTenders, Inc., or ancillary services rendered to User by NightTenders, Inc., to which User is being granted access under this Agreement, including the NightTenders, Inc. Technology and the Content;

“Site” means http://www.NightTenders.com or another designated or linked web site or IP address owned by NightTenders, Inc.

"User(s)" means User's employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by User (or by NightTenders, Inc. at User's request).

"User Data" means any data information or material about User’s tenants provided or submitted by User to the Service in the course of using the Service.