(Effective Date: November 20, 2014)
Thank you for downloading the NightOwl application (the “Application”). The terms and conditions listed below (the “Terms”) are intended to make you aware of your legal rights and responsibilities with respect to your access to and use of the Application. By accessing or using the Application, you agree to be bound by these Terms. If you do not agree to these Terms, please do not use or access the Application.
This Application is based in the United States. NightOwl makes no claims concerning whether the Application and/or the content may be downloaded, viewed, or appropriate for use outside of the United States. If you access the Application or the content from outside of the United States, you do so at your own risk.
You must register to use certain features on the Application. Use of any personal information you provide to us during the account creation process is governed by our Privacy Notice. Your account is for your sole, personal use. You are entirely responsible for maintaining the confidentiality and security of your account and you are responsible for all changes and updates submitted through your account and all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account by sending an email to firstname.lastname@example.org. We reserve the right to suspend access to or close your account at any time for any or no reason.
In creating an account, you represent that all information provided to us in such process is true, accurate and correct. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own or create multiple accounts except as otherwise authorized by us.
You should review our Privacy Notice for an explanation of our collection and use of your information when you use the Application, as you will be bound by the terms of our Privacy Notice.
Limitations on use
You must be at least 13 years old to use or access the Application. If you are not 13, you are not permitted to use or access the Application.
Use of the Application
You may use the Application solely for personal and non-commercial purposes. Keep in mind that all applicable laws, rules and regulations and any agreements or terms with third parties to which you are subject still apply. If you want to use the Application in any other manner, you are required to obtain a separate agreement between you and NightOwl or our prior written consent.
The Application may contain information on businesses, establishments, public services, events and other third parties, as well as news, feature stories, images, video, audio and other materials. Although we try our best to ensure everything passes muster, NightOwl makes no guarantee that such information is accurate and your use of the information we provide is at your own risk. If you think something looks fishy, please let us know. You agree that you will not hold NightOwl liable for any inaccurate, incomplete, outdated or missing information on the Application.
Your License to NightOwl
You own all content you submit to the Application, including but not limited to profile information, reviews, ratings, remarks, data, information, images, text, audio, video, messages, check-ins and any other materials such as bookmarks, tags and other attributes that you create within the Application to describe or otherwise identify venues (“Your Content”). By submitting Your Content you hereby irrevocably grant us a perpetual, world-wide, non-exclusive, royalty-free, sublicensable and transferable license and right to use Your Content for any purpose and in any media now existing or in the future. By “use” we mean use, copy, display, distribute, modify, translate, reformat, incorporate into advertisements and other works, promote, and create derivative works. You irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to Your Content brought against us.
You can mark any tags that you create within the Application as “private”. Although tags marked as “private” are provided by you as an anonymous submission, you understand that other users may still be able to see your “private” tags within the Application. NightOwl does not warrant that any of your “private” tags will remain completely confidential or anonymous, and you acknowledge that the confidentiality of such “private” tags is also dependent upon the type of information you provide within the tags. You agree that you will not hold NightOwl liable for any damage resulting from a user discovering or determining that you created a “private” tag.
You are responsible for Your Content. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You may be held liable for Your Content.
In submitting Your Content to us, you represent that:
- You are the sole author of Your Content, and Your Content are not copied from or based on, in whole or in part, any other work or website, except works in the public; and
- Use of Your Content by us will not violate or infringe any right of yours or any third party;
- With regard to Your Content which are images, audio, or video you agree that at least one of the following is met:
- You have taken the photograph or created the audio or video being submitted;
- You own the rights to the image, audio, or video; or
- You have explicit permission from the rights-holder to submit such image, audio, or video for use on our Application and to grant the rights you have granted herein.
Restrictions on Use
Whether you are being complementary or critical or whether you are agreeing or disagreeing with a post or a user comment, you should act in a civil manner and refrain from personal attacks when using the Application. Without limiting the generality of these Terms, you specifically agree not to do the following while using the Application:
- ‘Stalk’ or harass other users or persons;
- Harm minors in any way;
- Falsely state or misrepresent your affiliation with another person or entity;
- Infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person;
- Access or use the account of another user without permission;
- Accuse others of illegal activity, or describe physical confrontations and/or sexual harassment;
- Use material that is illegal, or that violates any federal, state, or local law or regulation;
- Use material that contains language or images intended to impersonate another person or offensive or inappropriate user names or signatures;
- Disguise or attempt to disguise the origin of Your Content;
- Assert or imply that Your Content is in any way sponsored or endorsed by us, each as determined in our sole discretion;
- Solicit, spam or otherwise advertise to users and/or business using Our Content or the Application;
- Distribute unsolicited or unauthorized advertising, surveys, contests, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or other messages for any purposes;
- Distribute computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Interfere with, disrupt, or destroy the functionality or use of any features of the Application;
- Interfere with, disrupt, or destroy the servers or networks connected to the Application, or disobey any rules or regulations applicable to such servers or networks;
- ‘Hack’ or access without permission our proprietary or confidential records, those of another user, or those of anyone else;
- Violate any applicable law, rule, or regulation;
- Decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Application;
- Remove, circumvent, disable, damage or otherwise interfere with security-related features, or features that enforce limitations on use of, the Application; and/or
- Modify, copy, publish, license, sell, rent, lease, lend, transfer or otherwise commercialize any rights to the Application or Our Content (as defined below);
each as determined in our sole discretion.
We may at any time in our sole discretion (i) move, edit, delete, or destroy any materials (including Your Content) that you provide or deliver; (ii) access, preserve, or disclose in accordance with our Privacy Notice any materials (including Your Content) that you provide or deliver including information that may be collected from you from your web browser or mobile device; (iii) suspend or terminate your access to and use of the Application or any of their features in response to a breach of these Terms, or for any or no reason; or (iv) take any other action available at law in response to a breach of these Terms.
Our Proprietary Rights
We are the sole and exclusive copyright owners of the Application and our content, including, but not limited to, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate user review ratings, reports and other usage-related data in connection with the other elements and components of the Application excluding Your Content and third party content (“Our Content”). As between NightOwl and you, NightOwl owns all the copyrights, trademarks, service marks, logos, trade names, trade dress and other intellectual and proprietary rights throughout the world (the “IP Rights”) associated with the Application and Our Content, which may be protected by copyright, patent, trademark and other applicable intellectual property and proprietary rights and laws. You may not use, copy, display, distribute, modify, translate, reformat, incorporate into advertisements and other works, promote, create derivative works, or in any way exploit or allow others to exploit any of Our Content in whole or in part except as expressly authorized by us. Except as otherwise expressly granted to you in writing, we do not grant you any other express or implied right or license to the Application, Our Content or our IP Rights.
Social Media Sites
Digital Millennium Copyright Act (“DMCA”) Notice
We respect the copyright interests of others. If you believe that your copyright has been or is being infringed upon by material found in the Application, you are required to follow the below procedure to file a notification pursuant to the U.S. Digital Millennium Copyright Act (the “DMCA”). You may be subject to liability under Section 512(f) of the DMCA if you knowingly make any misrepresentations on a take-down notice.
- Identify in writing the copyrighted material that you claim has been infringed upon;
- Identify in writing the material on the Application that you allege is infringing upon copyrighted material, and provide sufficient information that reasonably identifies the location of the alleged infringing material (for example, the user name of the alleged infringer);
- Include the following statement: “I have a good faith belief that the use of the content on the Application as described above is not authorized by the copyright owner, its agent, or law”;
- Include the following statement: “I swear under penalty of perjury that the information in my notice is accurate and I am the copyright owner or I am authorized to act on the copyright owner’s behalf”;
- Provide your contact information including your address, telephone number, and e-mail address (if available);
- Provide your physical or electronic signature; and
- Send the written communication to:
175 Varick Street
New York, NY 10014
No Endorsement of Content
Some of the content available through the Application may include materials that belong to third parties. We have no control over, and make no representation or endorsement regarding the accuracy, relevancy, copyright compliance, legality, completeness, timeliness or quality of any product, services, advertisements and other content appearing in or linked to from the Application.
We do not screen or investigate third party material (including, without limitation, materials posted by our users) before or after including them on our Application. We reserve the right, in our sole discretion and without any obligation, to make improvements to, or correct any error or omissions in, any portion of the content accessible on the Application. Where appropriate, we may in our sole discretion and without any obligation, verify any updates, modifications, or changes to any content accessible on the Application, but shall not be liable for any delay or inaccuracies related to such updates. Third party content, including those posted by our users, do not reflect our views or that of our affiliates, employees, officers, directors, or shareholders. In addition, none of the content available through the Application are endorsed or certified by the providers or licensors of such third party content.
We assume no responsibility or liability for any of the content (including, without limitation, Your Content or any third party content) posted, stored or uploaded by you or any third party or our use thereof. In addition, we do not assume responsibility or liability for any claims, damages or losses resulting from your reliance or use of the Application or the materials contained herein. Without limiting the generality of the foregoing, we expressly disclaim any liability for any offensive, defamatory, illegal, invasive, unfair, or infringing content provided by you or any third parties and we are not liable for any statements, representations or content (including, without limitation, tags and other descriptive information posted about a venue) provided by our users through the Application.
Disclaimer of Warranties
YOU BEAR THE ENTIRE RISK OF USING THE APPLICATION AND ANY PRODUCTS OR SERVICES INCLUDED OR ADVERTISED ON, OR LINKED TO FROM, THE APPLICATION. WE MAKE NO WARRANTIES, GUARANTEES, REPRESENTATIONS, OR PROMISES REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, OR SUITABILITY OF THE INFORMATION CONTAINED, OR PRODUCTS OR SERVICES OFFERED IN THE APPLICATION. THE INFORMATION MAY CONTAIN ERRORS OR OMISSIONS, FOR WHICH WE EXPRESSLY DISCLAIM ANY LIABILITY. THE APPLICATION AND THE ENTIRE CONTENTS THEREOF ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
WE MAKE NO WARRANTIES, GUARANTEES, REPRESENTATIONS, OR PROMISES REGARDING THE COMPATIBILITY OF THE APPLICATION WITH ANY PARTICULAR SOFTWARE OR HARDWARE DEVICES. YOUR USE OF THE APPLICATION IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR SOFTWARE OR HARDWARE DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE APPLICATION.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OF THE APPLICATION OR ANY PRODUCTS OR SERVICES INCLUDED OR ADVERTISED IN THE APPLICATION, WHETHER THE CLAIM FOR DAMAGES IS BASED ON CONTRACT, TORT, OR OTHERWISE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU EXCEED THE AMOUNT YOU PAID TO US, IF ANY, FOR THE USE OF THE APPLICATION.
You agree to indemnify, defend, and hold harmless us and our affiliates, subsidiaries, successors, assignees, licensees, directors, officers, employees, agents, contractors, vendors, business partners, owners, and professional advisors from any claims, damages, liabilities, costs, or expenses (including without limitation court costs, collection costs, and reasonable attorney fees) related to (i) Your Content, (ii) your unauthorized use of the Application, or products or services included or advertised in the Application; or (iii) your breach of these Terms.
Changes to the Terms
NightOwl may modify these Terms from time to time. When changes are made, we will notify you by making the revised version available on this webpage, and will indicate at the top of this page the date that revisions were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of the new Terms. If you do not agree to, or cannot comply with, these Terms as modified, you must stop using the Application and, if applicable, cancel your account. You understand and agree that your continued use of the Application after any posted modification to the Terms indicates your acceptance of the modification.
The section and subject headings in these Terms are included for reference only and shall not be used to interpret any provisions of these Terms. These Terms shall not be construed against us on the grounds that we conducted or arranged for the drafting of the Terms.
Governing Law/Dispute Resolution
These Terms are governed exclusively by the laws of the State of New York and the United States. Any controversy or claim relating to these Terms or the Application shall be submitted to the judicial courts located in New York County in the State of New York. You consent to the exclusive jurisdiction of those courts. You must commence any legal action against us within one (1) year after the alleged harm initially occurs. Failure to commence the action within that period shall forever bar any claims or causes of action regarding the same facts or occurrence. WHERE PERMITTED BY LAW, YOU HEREBY WAIVE YOUR RIGHTS TO A JURY TRIAL.
If any provision of these Terms is deemed unlawful, invalid, or unenforceable by a judicial court for any reason, then that provision shall be deemed severed from these Terms, and the remainder of the Terms shall continue in full force and effect.