PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY CLICKING "I ACCEPT"
"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,
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
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
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
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
Subscription Upgrades(# of units)
If your service is:
Service Change Effective
Billing Change Effective
Billing Change Calculation
prorated for remainder of month, billed on 1st of following month
prorated for remainder of quarter, billed on 1st of following month
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
No credit given
1st of following month
1st of following month
For remainder of subscription quarter
85% of difference
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
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.
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
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. 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,
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
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.
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
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.
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.
relating to the Service at any time, effective upon posting of an updated version
User's consent to such changes.
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
with any remedy, claim, liability, reimbursement, or cause of action or creates
any other third party beneficiary rights.
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
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.
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
submitted online, and any materials available on the NightTenders, Inc. Site specifically
may be updated by NightTenders, Inc. from time to time in its sole discretion;
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.
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;
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
"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;
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;
means the period(s) during which a specified number of
Users are licensed to use the Service pursuant to the 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;
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;
or another designated or
linked web site or IP address owned by NightTenders, Inc.
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).
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.