Software Application End User License Agreement
This Software Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Night Owl SP, LLC ("Company"). This Agreement governs your use of the Night Owl (including all related documentation, the "Application") on either or both of a mobile or desktop device (each, a “Device”). The Application is licensed, not sold, to you.
BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION.
2.
License Restrictions. Licensee shall not:
(a) copy the Application, except as expressly permitted by this license;
(g) use the Application:
(i) in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
(ii) for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
(iii) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of their use of the Application, or which, as determined by us, may harm the Company or other users of the Application or expose them to liability;
(iv) use the Application in any manner that could disable, overburden, damage, or impair any Application Website (defined below) or interfere with any other party's use of an Application Website, including their ability to engage in real time activities through an Application Website;
(v) use any robot, spider or other automatic device, process or means to access an Application Website for any purpose, including monitoring or copying any of the material on an Application Website;
(vi) use any device, software or routine that interferes with the proper working of an Application Website;
(vii) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
(viii) use the Application with a device that you do not own; or
(ix) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of any Application Website, the server on which the Application Website is stored, or any server, computer or database connected to an Application Website.
3.
Additionally, you
acknowledge that the Application not intended to be used as a third-party
monitored emergency notification system and that the Company does not monitor
emergency notifications and will not dispatch emergency authorities to your
home in the event of an emergency. The Company makes no warranty or
representation that use of the Products or Services will affect or increase any
level of safety. You acknowledge that the Services are not intended to be 100%
reliable and are not a substitute for a third party monitored emergency
notification system. We cannot and do not guarantee that you will receive
notifications in any given timeframe or at all. All life threatening, safety
and emergency events should be directed to the appropriate response services.
5.
Collection and Use of
Your Information. You acknowledge that when you
download, install, or use the Application, Company may use automatic means
(including, for example, cookies and web beacons) to collect information about
your Device and about your use of the Application. You also may be required to
provide certain information about yourself as a condition to downloading,
installing, or using the Application or certain of its features or
functionality, and the Application may provide you with opportunities to share
information about yourself with others. All information we collect through or
in connection with this Application is subject to our Software Application Privacy
Policy. By downloading, installing,
using, and providing information to or through this Application, you consent to
all actions taken by us with respect to your information in compliance with the
Privacy Policy.
7.
Account Security. If you choose, or
are provided with, a user name, password or any other piece of information as
part of our security procedures, you must treat such information as confidential,
and you must not disclose it to any other person or entity. You also
acknowledge that your account is personal to you and agree not to provide any
other person with access to an Application Website or portions of it using your
user name, password or other security information. You agree to notify us
immediately of any unauthorized access to or use of your user name or password
or any other breach of security. You also agree to ensure that you exit from
the Application at the end of each session. You should use particular caution
when accessing the Application from a public or shared computer so that others
are not able to view or record your password or other personal
information. We have the right to
disable any user name, password or other identifier, whether chosen by you or
provided by us, at any time in our sole discretion for any or no reason,
including if, in our opinion, you have violated any provision of this
Agreement.
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
(i) all rights granted to you under this Agreement will also terminate; and
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
ADDITIONALLY, YOU ACKNOWLEDGE THAT THE APPLICATION NOT INTENDED TO BE USED AS A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM AND THAT THE COMPANY DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT USE OF THE APPLICATION WILL AFFECT OR INCREASE ANY LEVEL OF SAFETY. YOU ACKNOWLEDGE THAT THE APPLICATION IS NOT INTENDED TO BE 100% RELIABLE AND IS NOT A SUBSTITUTE FOR A THIRD PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. THE COMPANY DOES NOT GUARANTEE THAT YOU WILL RECEIVE NOTIFICATIONS THROUGH THE APPLICATION OR OTHERWISE IN ANY GIVEN TIMEFRAME OR AT ALL. ALL LIFE THREATENING, SAFETY AND EMERGENCY EVENTS SHOULD BE DIRECTED TO THE APPROPRIATE RESPONSE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
19.
Arbitration. At Company's sole
discretion, it may require You to submit any disputes, claims or causes of
action arising under this Agreement or from the use of the Application (“Disputes”) to final and binding arbitration. The arbitration and all preliminary
proceedings related thereto shall be conducted in accordance with such rules as
may be agreed upon by the parties, or, failing agreement on such rules within
thirty (30) days of a written request for such agreement, in accordance with
the Rules for Commercial Arbitration of the American Arbitration Association
(the "AAA"), as amended
from time to time and as modified by this Agreement. The dispute shall be
presented to a single arbitrator (the "AAA Arbitrator") sitting in a site located in Boca Raton,
Florida. The AAA Arbitrator shall be
selected jointly by you and the Company within fifteen (15) days after demand
for arbitration is made by Company. If the parties are unable to agree on an
AAA Arbitrator within that period, then either party may request that the AAA
select the AAA Arbitrator in accordance with its then existing rules and
regulations. The AAA Arbitrator shall possess substantive legal experience in
the principal issues in dispute. Any
discovery permitted shall be limited to information directly relevant to the
controversy or Dispute in arbitration. In the event of discovery disputes, the
AAA Arbitrator is directed to issue such orders as are appropriate to limit
discovery in accordance with the foregoing and as are reasonable in light of
the issues in dispute, the amount in controversy, and other relevant
considerations. To the extent the parties are unable to agree on the scope of
discovery, the AAA Arbitrator shall require the party seeking discovery on an
issue to present the legal and factual basis for the Dispute and shall permit
the party opposing discovery to respond. The AAA Arbitrator shall permit
discovery on an issue only if the AAA Arbitrator concludes that there is a
reasonable and good faith basis in law and in fact for bringing such
allegations and that the discovery appears likely to present substantive
evidence regarding that Dispute. The AAA Arbitrator may permit limited
discovery to permit investigation of some of the Disputes or to determine
whether a Dispute has sufficient basis in law or in fact to warrant further
discovery, but shall issue appropriate orders to restrict the scope of such
discovery. The federal and state rules of procedure and evidence shall not
apply to the arbitration proceedings, including without limitation the rules of
discovery. The AAA Arbitration shall consider claims of privilege, work product
and other restrictions on discovery as appear to be warranted. The AAA Arbitrator shall award the prevailing
party its attorney's and expert's fees and disbursements incurred in resolving
the dispute and shall award double costs and expenses or other actions to the
extent the AAA Arbitrator finds any Dispute advanced in the proceedings to be
frivolous or without a good faith basis in fact and in law when such Dispute
was first presented for arbitration.
Except as may otherwise be agreed in writing between the parties or as
ordered by the AAA Arbitrator upon substantial jurisdiction shown, the hearing
for the dispute shall be held within ninety (90) days of Company’s submission
of the dispute to arbitration. The AAA Arbitrator shall render a final award
within thirty (30) days following the conclusion of the hearing and any
required post-hearing briefing or other proceedings ordered by the AAA
Arbitrator. The AAA Arbitrator shall state the factual and legal basis for the
award. The decision of the AAA Arbitrator shall be final and binding, except as
provided in the Federal Arbitration Act, 9 U.S.C. § 1. et seq., and except for
errors of law based on the findings of fact. Final judgment may be entered upon
such award in any court of competent jurisdiction, but entry of such judgment
shall not be required to make the award effective. YOU AND THE COMPANY EACH
EXPRESSLY WAIVE ITS RIGHTS TO A TRIAL BY JURY.