Night Owl Cloud Services Terms of Service
Last Updated: Jun 4, 2025
Scope of Terms of Service
Welcome to the Night Owl cloud-based subscription service that allows you to manage your access to, and use of, your Night Owl security products through a web-based application (the “Cloud Services”) developed and operated by our company, Night Owl SP, LLC (“Night Owl,” “we,” “our,” “us,” or “the Company”). These Terms of Service apply to your access to, or use of, the Cloud Services, and any of our other products or services (collectively with the Cloud Services, the “Night Owl Products”) via the Cloud Services, including but not limited to:
· the Night Owl hardware products, including cameras, doorbells, and recorders (the “Night Owl System"); and/or
· any other Night Owl websites, mobile apps, or streaming video sites, (collectively with the Cloud Services, the “Night Owl Digital Platform”).
These Terms of Service are intended to supplement, not replace, any terms of use, terms of service, or other terms that apply to any other website or application comprising part of the Night Owl Digital Platform that you may access through the Cloud Services.
Revisions to Terms of Service
From time to time, Night Owl may revise these Terms of Service in its discretion. We will inform you about any revisions by email at least 30 days before the revisions come into effect. If you do not agree with the revisions, you may terminate your subscription to the Cloud Services as provided in the “Termination of Cloud Services” section of these Terms of Service. Revised Terms of Service will also be available through the Cloud section of the Night Owl website. We encourage you to periodically check the Cloud section of the Night Owl website for the most current version of these Terms of Service.
Registering your Night Owl System on Cloud Services
In order to access and use the Cloud Services, you are required to register your Night Owl System when you subscribe to the Cloud Services. To register, you must provide and maintain accurate information, which may include:
· your name
· your Night Owl Systems recorder identification number (provided with each Night Owl recorder); and
· an e-mail address.
Night Owl may terminate your account if you provide Night Owl with inaccurate or incomplete information. You also certify that you are legally permitted to use and access the Cloud Services. You must be 18 years or older to use the Cloud Services. Night Owl may refuse to accept a registration or subscription for the Cloud Services for any legal reason.
Privacy
Night Owl respects the privacy of your user information and will safeguard your user information that you provide in connection with your subscription to, and use of the Cloud Services, in accordance with the Night Owl Privacy Policy located at https://nightowlsp.com/privacy-policy-cookie-restriction-mode/ (the “Privacy Policy”). We encourage you to review the Privacy Policy frequently. Night Owl will monitor usage data, such as log entries, diagnostics, bandwidth usage, and various other analytics coming from devices tied to your Cloud Services account, but will not disclose your user information to third parties for their independent marketing or promotional purposes unless you affirmatively give us consent to do that during or after the registration process.
By completing the registration process, you agree to the Privacy Policy and affirm that you understand and consent to Night Owl’s collection, storage and use of your user information in accordance with the Privacy Policy. You have the right to update your user Information at any time. Such changes can be made by logging into your Cloud Services account. Certain features of the Night Owl Products may not be available if you restrict the collection, storage, or use of your user information in connection with your subscription to the Cloud Services.
Cloud Services Subscriber Account, Password and Security
You will create a password and account designation during the Cloud Service's registration process. You are responsible for maintaining the confidentiality of the password and your Cloud Services account, and are fully responsible for all activities that occur under your password or account. You agree to do the following:
· immediately notify us of any unauthorized use of your password or account or any other breach of security; and
· ensure that you exit from your account at the end of each session.
The Cloud Services allows you to access and view images captured by your Night Owl Systems through your Cloud Services account. Some images captured by your Night Owl System may be inappropriate for children under the age of 18. As a result, Night Owl strongly recommends that you not provide access to your Cloud Services account to anyone under the age of 18.
Third-Party Content
The Cloud Services may give you the ability to access and use content or materials controlled by third parties ("Third-Party Content") over which we exercise no editorial or programming control. You understand the following:
· Third-Party Content providers may restrict or revoke access to their Third-Party Content at any time;
· To the extent possible under the governing law, we are not responsible for, and have no editorial control over, any Third-Party Content; and
· Night Owl has no control over the distribution of Third-Party Content.
You agree that Night Owl will have no liability to you or anyone else who uses your Cloud Services account with regard to any Third-Party Content. You also agree that any and all Third-Party Content accessed through the Cloud Services is for personal, non-commercial use, and that you will not use the Cloud Services to illegally distribute, copy, display or otherwise use Third-Party Content. Generally, authorization from the appropriate rights holder is needed prior to distributing, displaying, using, or copying Third Party Content. Unauthorized copying or distribution of copyrighted works may constitute an infringement of the copyright holders' rights. Night Owl may terminate your Cloud Services account if you infringe, or are allegedly infringing, the copyrights, trademarks, or intellectual property rights of others.
Changes to Cloud Services
Night Owl may, at its discretion and without notice or user permission, change, add, or remove features and functionality of the Cloud Services. If you are dissatisfied with any material changes to the Cloud Services during your subscription period, you may immediately terminate your use of the Cloud Services and request a refund of the pro-rated, unused portion of your Cloud Services subscription.
Technical Requirements
In order to access and manage your Night Owl System through the Cloud Services, any devices through which you access the Cloud Services, as well as your Night Owl System, must have an always-on broadband internet connection. Additionally, to enable the Cloud Services to connect with your Night Owl System, you much register your Night Owl Systems at protectcloud.nightowlsp.com.
Subscriber Conduct
You understand that all information, data, text, software, photographs, video, messages, tags, feedback, comments, questions, other information or materials that you publicly post or privately transmit through the Cloud Services (“Content”) is your sole responsibility. This means that you are entirely responsible for all Content that you capture, upload, post, email, transmit or otherwise make available via the Cloud Services.
Night Owl does not manage or control the Content in your Cloud Services account, and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Night Owl be liable for any Content, including but not limited to:
· any errors or omissions in any Content;
· any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via your Cloud Services account, including viewing, copying or redistribution of the Content;
· loss or destruction of Content; or
· failure to comply with any and all applicable federal, state, and local laws with respect to use of the Cloud Services and/or the Night Owl System, including but not limited to laws related to closed-circuit television monitoring for any purpose and recording in public areas.
We do not control, and have no duty to take any action, regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Cloud Services.
You agree not to use the Cloud Services to: upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or invasive of another's privacy; harm minors in any way; impersonate any person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Cloud Services; upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail, "spam," "chain letters," "pyramid schemes," or any other form of solicitation; interfere with or disrupt the Cloud Services or servers or networks connected to the Cloud Services (including without limitation denial-of-service attacks) or disobey any requirements, procedures, policies or regulations of networks connected to the Cloud Services; intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law; and "stalk" or otherwise harass another.
You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Cloud Services. You acknowledge, consent and agree that Night Owl may access, preserve and disclose your account information if required to do so by law or in a belief that such disclosure is reasonably necessary to
· comply with legal process, including without limitation subpoenas and search warrants;
· enforce these Terms of Service;
· respond to claims that any Content violates the rights of third parties;
· respond to your requests for customer service; or
· protect the rights, property or personal safety of Night Owl, its users and the public.
You understand that the technical processing and transmission of the Cloud Services, including your Content, may involve transmissions over various third-party networks and require changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Cloud Services and software embodied within the Cloud Services may include security components that permit digital materials to be protected and that use of these materials is subject to usage rules set by Night Owl and/or content providers who provide content to the Cloud Services. Night Owl may require certain security safeguards in order to use the Cloud Services, such as two-factor authentication.
You may not attempt to override or circumvent any of the usage rules embedded into the Cloud Services. Any unauthorized or illegal reproduction, publication, further distribution or public exhibition of the materials provided on the Cloud Services, in whole or in part, is prohibited.
Content Submitted Or Made Available For Inclusion On The Cloud Services
When you use a third-party application, the application may ask for your permission to access your Content and information to enable the application to work as intended. Your agreement with the provider of that application will control how the application can use, store, and transfer that content and information, so be sure to thoroughly read any such application’s terms of service and only use applications from trusted providers.
Subscription Fees
The Cloud Services require an ongoing subscription. You agree to pay your subscription fee in advance. Your subscription period is stated in your Night Owl subscription plan. Your subscription fee will cover the Cloud Services covered in your Night Owl subscription plan. You may have a choice of subscription payment options and may change your selected payment option by notifying Night Owl in accordance with the subscription plan. If for any reason you need to reactivate a terminated subscription you may be charged a reactivation fee. If you register for the Cloud Services under a promotional subscription fee, some additional restrictions may apply. Whatever your subscription payment option, your subscription fee does not include any services, features or functionality other than the Cloud Services as defined in the plan you choose. Night Owl may offer multiple subscription plans with varying levels and services.
Payment authorization
To sign up for a subscription option with recurring payments, complete the required registration details online and select your method of payment. You will receive an e-mail confirmation of your auto renewal once you complete the initial payment process. If you choose a subscription option with recurring payments (i.e. the monthly and annual subscriptions) you agree that Night Owl may automatically charge the subscription fee to the credit or charge card provided and associated with your account at the beginning of each period at the frequency you have selected unless and until you cancel the subscription in your Night Owl account settings at protectcloud.nightowlsp.com. You must cancel prior to the subscription fee being charged to the credit or charge card. If you signed up at a promotional rate any renewals past the promotional period will be charged at the then effective subscription fee. Access to your Cloud Services will not be established until Night Owl or its agent has verified that the credit card information is valid, accurate and that your credit card account is in good standing. You will receive an e-mail reminder of your auto renewal 5 days prior to any applicable renewal. You will also receive a reminder email a day before your date of renewal reminding you that your subscription option will be renewed for an additional period.
Night Owl may change the Cloud Services fees or charge additional fees for features and functionalities that are not a part of the Cloud Services. Such fee changes and additional charges will generally not take place until the renewal date for your subscription, and if you are dissatisfied with the fee changes or additional charges, you may terminate your use of the Cloud Services. For details regarding termination, please refer to the "Cancellation and Termination Policy" section. Night Owl will notify you by email to the email address on record for your account 30 days in advance of any fee changes or new fees.
Night Owl may suspend or terminate your Cloud Services (including deleting stored data) without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks the return of payments previously made to Night Owl for Cloud Services. Such rights are in addition to and not in lieu of any other legal rights or remedies available to Night Owl. Night Owl may refer your account to a third party for collection in the event of ongoing default.
Internet Service Provider And Cell Phone Charges
The Cloud Services require the use of a broadband internet connection. You are responsible for any service charges for your internet connection or data plan incurred as a result of using or accessing the Cloud Services and acknowledge and agree that you will be solely responsible for all disputes with any internet service or cell phone provider relating to same. In particular, streaming and viewing recorded videos and the use of the apps may incur extra and substantial charges on devices that use a data plan. Night Owl is not responsible for, and does not make any assurances about, the availability, functionality, or cost of any broadband internet connection or other data plan.
Using The Cloud Services
You may access and use the Cloud Services only with a Night Owl System that is authorized to communicate with the Cloud Services. You agree not to tamper with, or otherwise modify, your Night Owl System. The Cloud Services are provided for your personal, non-commercial use and may not be resold, in whole or in part. Except as expressly provided in these Terms, you may not transfer the Cloud Services or the right to receive them. By using the Cloud Services, you agree to receive all software updates and upgrades that Night Owl sends to your Night Owl System. If you disable the automatic upgrade feature of the Night Owl System, then certain functionality of the Night Owl System may be adversely impacted. Even if you disable the automatic upgrade feature of your Night Owl System, Night Owl may still implement critical Night Owl System updates; updates for Night Owl applications running on your iPhone, iPad, Android phone, or tablet; and Night Owl back-end service updates. If your Night Owl System accesses the Night Owl Websites (regardless of your payment or subscription status) you acknowledge and agree that you are a user of the Cloud Services and are bound by the provisions of these Terms.
Cancellation and Termination Policy
You may cancel your Cloud Services subscription at any time, with no restrictions. Once you request cancellation, your Cloud Services will remain active until the end of your current billing period. During this time, you will continue to have full access to your account and should download any stored videos or content before your subscription ends.
Please note: Night Owl does not offer refunds or credits for any unused portion of your subscription once it is canceled. After your account is terminated, certain system data—such as log files, diagnostic reports, and device analytics—may remain on Night Owl’s servers or those of its service providers for a limited time. This may include transaction history or data subject to legal processes such as subpoenas or search warrants.
Night Owl reserves the right to immediately cancel your account under the following circumstances:
In such cases, you will be provided with at least 30 days' advance notice. You will still be responsible for paying any outstanding fees owed up to the termination date. Upon termination, your account and all associated content may be permanently deleted. We strongly encourage users to back up any important information prior to cancellation.
The following sections of our Terms of Service remain in effect even after your account is canceled, and will survive termination: Cancellation and Termination Policy; Notice; Title to Software and Intellectual Property; Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement; Indemnity; Warranty and Disclaimer; Limitation of Nigh Owl’ Liability; and General Information.
Notice
Night Owl may provide you with notices, including those regarding changes to these Terms of Service, by email, regular mail, text message, postings or updates to the Night Owl Websites or other reasonable means now known or hereinafter developed.
Title to software and intellectual property
You may need to use certain software programs in your Night Owl System to use or have full access to certain features of the Cloud Services. You are required to accept and use the software included in your Night Owl System at the time of purchase and other software programs that may be delivered to your Night Owl System by Night Owl from time to time. Night Owl and/or its subsidiaries, affiliates, and licensors retain title to and ownership of all the software for the Night Owl Products and certain intellectual property rights in the Night Owl Products. Night Owl and/or its affiliates also retain ownership of all Night Owl copyrights and trademarks. In the case of third-party software delivered by Night Owl and/or its subsidiaries and affiliates to the Night Owl System, the applicable third party retains title to and ownership of its software, copyrights, and trademarks.
Any attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute or use for other purposes the Night Owl the Night Owl Products is strictly prohibited, unless such prohibition is not allowed under the applicable law. If you install any Night Owl software applications on your home computer, ownership and the other terms of such use are governed by the applicable End User License Agreement to which you must agree prior to installation.
Notice And Procedure For Making Claims Of Copyright Or Intellectual Property Infringement
Night Owl respects the intellectual property of others, and we require our users to do the same. Night Owl may, in appropriate circumstances and at its discretion, disable and/or terminate the Cloud Services accounts of users who may be repeat intellectual property infringers. If you believe that your work has been copied in a way that constitutes copyright infringement or your intellectual property rights have been otherwise violated through another’s use of the Cloud Services, please provide Night Owl with the following information in writing:
· a description of the copyrighted work or other intellectual property interest that you claim has been infringed;
· your address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
· a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
· Your inked or electronic signature on such written notification.
Please mail this information to:
Legal Department, Night Owl Security Products
4851 Tamiami Trail North, Suite 200
Naples, FL 34103
Open-Source Software
Certain components of the Cloud Services may subject to the GNU General Public License ("GPL") or other so-called open-source licenses ("Open-Source Software"). Notwithstanding any terms to the contrary in these Terms of Service, you are free to use, modify and distribute Open-Source Software that is subject to the GPL so long as you comply with the terms of the GPL (available at www.gnu.org/copyleft/ gpl.html). For clarification, these Terms of Service do not limit your rights under, or grant you rights that supersede, the license terms of any applicable Open-Source Software.
Links
The Cloud Services may provide, or third parties may provide, links to other worldwide websites or resources. Because Night Owl has no control over such sites and resources, you agree that Night Owl is not responsible for the availability of such external sites or resources, and does not endorse, and is not responsible or liable for, any content, advertising, products or other materials on or available from such sites or resources. You further agree that Night Owl will not be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the use of or reliance on any such content, goods or services available on or through any such site or resource.
Special Admonitions For International Use
Recognizing the global nature of the internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or from the country in which you reside. You represent and warrant that you are not located in Cuba, Iran, North Korea, Sudan, Syria, or any other country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
No resale of Cloud Services
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes any portion of the Cloud Services (including your Night Owl ID), use of the Cloud Services or access to the Cloud Services.
Indemnity
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NIGHT OWL, AND ITS EMPLOYEES, INDEPENDENT CONTRACTORS, DIRECTORS, EQUITY OWNERS, SUBSIDIARIES AND AFFILIATES, FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), INCLUDING BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE, INVASION OF PRIVACY, COPYRIGHT INFRINGEMENT AND/OR TRADEMARK INFRINGEMENT, RELATING TO OR ARISING OUT OF YOUR BREACH OF ANY PROVISION OF THESE TERMS OF SERVICE, YOUR MISUSE OF ANY NIGHT OWL PRODUCTS, OR YOUR UNAUTHORIZED MODIFICATION OR ALTERATION OF ANY NIGHT OWL PRODUCTS.
Warranty And Disclaimer
TO THE EXTENT ALLOWED UNDER GOVERNING LAW, THE CLOUD SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE,” AND NIGHT OWL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NIGHT OWL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NIGHT OWL MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY NIGHT OWL PRODUCTS, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NIGHT OWL DOES NOT MAKE ANY CLAIMS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE CLOUD SERVICES OR ANY OF THE OTHER NIGHT OWL PRODUCTS POTENTIAL, ABILITY OR EFFECTIVENESS TO PREVENT, MINIMIZE OR IN ANY WAY AFFECT PERSONAL OR PROPERTY DAMAGE OR INJURY. NIGHT OWL IS NOT RESPONSIBLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE, LOSS OR THEFT RELATED TO THE USE OF THE CLOUD SERVICES AND ANY OTHER NIGHT OWL PRODUCTS.
YOU AGREE THAT NIGHT OWL IS NOT AN INSURER, AND THAT NIGHT OWL IS NOT PROVIDING YOU WITH INSURANCE OF ANY TYPE. ANY AMOUNTS THAT YOU PAY NIGHT OWL FOR THE CLOUD SERVICES ARE NOT INSURANCE PREMIUMS AND ARE NOT RELATED TO THE VALUE OF YOUR PROPERTY, ANYONE ELSE’S PROPERTY LOCATED IN YOUR PREMISES, OR ANY RISK OF LOSS AT YOUR PREMISES. IF YOU WANT INSURANCE TO PROTECT AGAINST ANY RISK OF LOSS AT YOUR PREMISES, YOU WILL PURCHASE IT. IN THE EVENT OF ANY LOSS, DAMAGE OR INJURY, YOU WILL NOT LOOK TO NIGHT OWL TO COMPENSATE YOU OR ANYONE ELSE. YOU RELEASE AND WAIVE FOR YOURSELF AND YOUR INSURER ALL SUBROGATION AND OTHER RIGHTS TO RECOVER AGAINST NIGHT OWL ARISING AS A RESULT OF THE PAYMENT OF ANY CLAIM FOR LOSS, DAMAGE OR INJURY.
USE OF THE CLOUD SERVICES AND THE NIGHT OWL SYSTEM CANNOT PREVENT CERTAIN EVENTS, INCLUDING, BUT NOT LIMITED TO, FIRES, FLOODS, BURGLARIES, ROBBERIES AND MEDICAL PROBLEMS. NIGHT OWL MAKES NO GUARANTY OR WARRANTY, THAT YOUR USE OF THE CLOUD SERVICES AND THE NIGHT OWL SYSTEM WILL DETECT OR AVERT SUCH INCIDENTS OR THEIR CONSEQUENCES.
ANY AND ALL CLAIMS OR STATEMENTS, WHETHER WRITTEN OR VERBAL, BY SALESPEOPLE, RETAILERS, DEALERS OR DISTRIBUTORS CONTRARY TO THE PROVISIONS OF THIS SECTION OF THESE TERMS OF SERVICE ARE NOT AUTHORIZED BY NIGHT OWL, AND DO NOT AFFECT THIS TERMS OF THE ABOVE WARRANTY DISCLAIMER.
Limitation Of Night Owl's Liability
IN NO EVENT WILL NIGHT OWL BE LIABLE UNDER, OR IN CONNECTION WITH, THESE TERMS OF SERVICE OR YOUR USE OF THE CLOUD SERVICES OR ANY OTHER NIGHT OWL PRODUCTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER NIGHT OWL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL NIGHT OWL’S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, OR YOUR USE OF THE CLOUD SERVICES OR ANY OTHER NIGHT OWL PRODUCTS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS YOU PAID FOR YOUR SUBSCRIPTION TO THE CLOUD SERVICES FOR THE PERIOD DURING WHICH THE APPLICABLE LIABILITY OF NIGHT OWL ACCRUED.
THE LAWS OF SOME STATES AND COUNTRIES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. ADDITIONALLY, THIS PROVISION IS NOT INTENDED TO LIMIT NIGHT OWL'S LIABILITY IN THE EVENT OF NIGHT OWL'S WILLFUL OR INTENTIONAL MISCONDUCT. MOREOVER, IF NIGHT OWL MISTAKENLY OR WRONGFULLY OVERCHARGES YOUR ACCOUNT, THIS SECTION DOES NOT LIMIT NIGHT OWL'S ABILITY TO REFUND SUCH MISTAKENLY OR WRONGFULLY OVERCHARGED AMOUNTS.
General Information
These Terms of Service constitute the entire agreement between you and Night Owl regarding your use of the Cloud Services and supersede any prior agreements between you and Night Owl with respect to the Cloud Services. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other Night Owl Products, affiliate services, third-party content or third-party software.
These Terms of Service and the relationship between you and Night Owl will be governed by the laws of the State of Florida without regard to its conflict of law provisions.
Any dispute arising from or relating to the subject matter of these Terms of Service or your subscription to the Cloud Services will be finally settled by arbitration held in Naples, Florida, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who will be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted.
YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND NIGHT OWL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the foregoing, each party will have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Middle District of Florida.
The failure of Night Owl to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of these Terms of Service remain in full force and effect.
You agree that your Cloud Services account is nontransferable and any rights to your Cloud Services ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated, and all contents therein permanently deleted.
Contact
For inquiries related to these Terms of Service, the Cloud Services, or other Night Owl Products, you may contact us at:
https://support.nightowlsp.com/hc/en-us/articles/1260803683009