CLICKING ON THE “I ACCEPT” BUTTON BELOW INDICATES THAT YOU CONFIRM EACH OF 1-3 ABOVE, AND ACCEPT AND INTEND TO BE BOUND BY THIS AGREEMENT, AND CONSENT TO ENTER INTO THIS AGREEMENT IN ELECTRONIC FORM. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT REGISTER FOR OR USE THE SERVICES NOR CLICK “I ACCEPT”.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND NIGHTWATCH THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY THE “DISPUTE RESOLUTION” SECTION BELOW FOR DETAILS REGARDING ARBITRATION.
We may modify this Agreement from time to time, in which case we will post a new version on this site skiff.org (“Site”), and update the “Effective Date” above, and changes to this Agreement are effective when posted to the Site. Your continued use of the Services following posting of any changes constitutes your acceptance of such changes, and if you do not agree with these changes, you must immediately stop using the Services. Because our Services are evolving over time we may change or discontinue all or any aspect of the Services, at any time and without notice, in our sole discretion.
- Description of our Services. Nightwatch provides a privacy-first, end-to-end encrypted collaboration web-based platform, which is made available on the Site, and is intended to enable teams to communicate and collaborate on documents privately, keeping sensitive information private only to shared collaborators (the “Services”. The Services are designed to restrict all unauthorized parties, including Nightwatch, from viewing the content of any documents you post without your consent.
“Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws are currently in effect or later come into effect during the term of this Agreement.
“Customer” means an individual or legally recognized entity that has entered into a software services subscription agreement with Nightwatch (the “Subscription Agreement”) pursuant to which you may be provided with access to the Services.
“Customer Effective Date” means the effective date of the Subscription Agreement.
“Customer User” means you, if you are an employee or agent of a Customer and (i) are authorized by Customer to access and/or use the Services for Customer’s business purposes in accordance with the Subscription Agreement; and (ii) for whom a password-protected account for use of the Services has been created by or on behalf of Customer.
“Customer Materials” means all information, data, content and other materials (including user content), in any form or medium, that is transmitted or otherwise provided by or on behalf of Customer or you through the Services or to Nightwatch in connection with Customer’s use of the Services, but excluding, for clarity, any Nightwatch intellectual property.
“Subscription Period” means the term of Customer’s subscription to the Services, pursuant to the terms of the Subscription Agreement.
- Scope of Rights and Restrictions.
- Services. Nightwatch hereby grants you the revocable, non-exclusive, limited, non-transferable right to access and use the Services via Nightwatch’s hosted platform solely in strict accordance with this Agreement. If you are a Customer User, then your use of the Services is also subject to the corresponding Customer’s compliance with the terms of the Subscription Agreement, and you may use the Services solely (i) for the associated Customer’s own internal purposes, and (ii) for the term of such Customer’s Subscription Period.
- Beta Version. You acknowledge and agree that Nightwatch is providing the Services hereunder in the “beta” software phase, for beta testing purposes. You acknowledge that the Services are being provided on an “AS IS” basis, and Nightwatch does not make any guarantees about the performance of the Services, or the security of the Services or the Customer Materials you provide or access on the Services.
- Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). To the extent you provide Feedback, you assign all right, title and interest in and to such Feedback to Nightwatch. If for any reason this assignment is not valid, then you grant to us an irrevocable, transferable and sub-licensable (through multiple tiers), worldwide, perpetual, fully-paid, royalty-free license, to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any lawful purpose.
- Use of Customer Materials. In consideration of your use of the Services, you hereby grant to Nightwatch, its parents, subsidiaries, affiliates, licensees, designees, and successors and assigns a limited, non-exclusive right to use, copy, distribute and display Customer Materials (i) to provide the Services and related services to you and if applicable, Customer, and (ii) the right to sub-license and share any Customer Materials with other users authorized by you or Customer for use within the Services.
- Restrictions. You agree not to use or allow others to use, the Services in any manner outside of the Services except as otherwise expressly allowed in this Agreement including without limitation, in Section 2.3 above. Without limiting the foregoing, you expressly agree not to do the following with respect to the Services: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Services or its structural framework, (ii) sublicense, subcontract, translate or sell any rights to the Services, (iii) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services, (iv) harvest or collect information about or from other users of the Services (v) probe, scan or test the vulnerability of the Services, nor breach the security or authentication measures on the Services or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services (vi) modify or create derivative works of the Services, (vii) attempt to gain unauthorized access to the Services or its related systems or networks, (viii) use the Services in whole or in part for any illegal or other purpose except as expressly provided under this Agreement (including without limitation allowing any distribution or sublicense of the Services or other access to the Services by any person or entity that is not an Customer User, or processing data using the Services on behalf of third parties or any affiliated entities, (ix) collect or uploaded any personally identifiable information from or to the Services, except as authorized by the relevant subject, or (x) facilitate or encourage any violations of this Section 2.5. You further expressly agree (a) to take all reasonable precautions to prevent unauthorized or improper use of the Services, (b) to not interfere with or disrupt the integrity or performance of the Services, (c) to not attempt to gain unauthorized access to the Services or its related systems or networks, (d) to not create Internet “links” to the Services or “frame” or “mirror” any content therein; (e) that your access to the Services will not be used in connection with the development of any product or service that is in competition with the services provided by the Services, nor will you assist or facilitate any third party in any such use.
- Security. You expressly agree to ensure the confidentiality and security of your account ID, password, and access to the Services. If any administrative account ID or password is stolen or otherwise compromised, you agree to immediately change the password and inform Nightwatch of the compromise. You acknowledge that the responsibility for all Customer Materials submitted by you or otherwise on your behalf to the Services lies solely with you. You (and if you are a Customer User, the corresponding Customer) are solely responsible for the integrity and quality of Customer Materials, and for maintaining an appropriate backup thereof. Nightwatch may change the authorization method for access to the Services if it determines in its sole discretion that there are circumstances justifying such changes. Nightwatch is not responsible for loss of any Customer Materials or other information or data in transmission or improper transmission by or on behalf of you or Customer.
- Third Party Services. Certain features and functionalities within the Services as we determine in our sole discretion may include or otherwise also allow you and other holders to interact with, access and/or use compatible third-party services, products, data, technology, websites and content (collectively, “Third Party Services”) through the Services. You agree that Nightwatch does not provide any aspect of the Third Party Services and is not responsible for the accuracy of such Third Party Services nor any compatibility issues, errors or bugs in the Services or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto.
- Equipment. As between Nightwatch and you, you are responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Services, and for paying any associated third-party access expenses.
- Reservation of Rights. All rights not expressly granted to you herein are expressly reserved by Nightwatch. Nightwatch will retain ownership of the Services, including without limitation, all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, and all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights (whether registered or unregistered) relating to or embodied in the Services and any updates, improvements, modifications or enhancements (including error corrections) thereto, and all derivative works thereof. You will have no right, title, or interest in or to the same except the rights expressly granted to you in Section 2.1. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Nightwatch’s or its licensors’ existing or future rights in or to the Services except as expressly granted in Section 2.1. Nightwatch trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by Nightwatch and shall inure solely to the benefit of Nightwatch.
- Suspension of Access. You agree and acknowledge that Nightwatch may immediately suspend your access to the Services at any time, without notice to you and without liability, and Nightwatch shall have the right to withdraw or have returned any Customer Materials at any time in its sole discretion. If you are a Customer User, if your access is suspended by Nightwatch, you agree that your sole recourse, if any, shall be to contact the applicable Customer. You agree and acknowledge that Nightwatch has no obligation to retain any Customer Materials unless otherwise agreed to in the Subscription Agreement. If you are a Customer User, you also agree and acknowledge that Customer Materials may be irretrievably deleted including without limitation, if the applicable Customer’s subscription is terminated. Without limiting the foregoing, Nightwatch may immediately suspend your access to the Services at any time, without notice and without liability (i) if Nightwatch suspects or receives notice that the Services or the use thereof actually or allegedly infringes or violates any third party’s rights or violates any Applicable Laws or (ii) if Nightwatch determines, in its sole discretion, that any improper activity or potential damage may impact the Services (or any other Nightwatch product or service).
- Term and Termination.
- Term. If you are a Customer User, the term of this Agreement will commence on the Customer Effective Date and continue through the Subscription Period unless and otherwise terminated in accordance with this Section 4. If you are not a Customer User, the term of this Agreement will commence on the date that Nightwatch first makes the Services available to you and will continue until your access is suspended or terminated by Nightwatch.
- Termination. Nightwatch may terminate this Agreement immediately, at any time, with or without notice.
- Effect of Termination. Upon termination of this Agreement, your right to access or use the Services shall immediately cease and Nightwatch will have no obligation to maintain, deliver or provide access to any Customer Materials. Sections 2.2 (Feedback), 2.4 (Restrictions), 2.8 (Reservation of Rights), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Disclaimers), 8 (Indemnification and Liability), 9 (General) and 10 (Dispute Resolution) will survive expiration or termination of this Agreement. Expiration or termination of this Agreement shall immediately terminate all subscriptions and access rights granted to you and as applicable any other party herein.
- Confidential Information. You agree and acknowledge that any and all technical, trade secret, or business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, which is disclosed to you by Nightwatch or otherwise accessed by you during the term of this Agreement (the “Confidential Information”) is confidential and proprietary, constitutes trade secrets of Nightwatch, Customer, or a third party who has authorized you to view such Confidential Information, and, as such is of great value and importance to the success of the Nightwatch or its Customer’s or third party’s partner’s business.
- Exceptions. Confidential Information does not include information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information.
- Obligations. If you are a Customer User, Nightwatch’s obligations with respect confidentiality pertaining to your access to and use of the Services shall be limited solely and exclusively to the confidentiality provisions of the corresponding Subscription Agreement that apply to Nightwatch. You agree to maintain as confidential and not disclose (except, for Customer Users, as is permitted in the Subscription Agreement), copy, or use for purposes other than in connection with use of the Services as authorized hereunder, the Confidential Information.
You agree to protect the Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. You shall be liable under this Agreement to Nightwatch for any use or disclosure in violation of this Agreement by your attorneys, accountants, or other advisors or agents. For Customer Users, this Section 5.3 is in addition to, and without limiting, any duties of confidentiality that you may owe to the corresponding Customer.
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THE SUBSCRIPTION AGREEMENT, NIGHTWATCH EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES AND ANY MATERIALS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NIGHTWATCH DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY ASSOCIATED SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND NIGHTWATCH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOU ACKNOWLEDGE THAT NIGHTWATCH IS NOT RESPONSIBLE FOR THE INTEGRITY OF INFORMATION, INCLUDING WITHOUT LIMITATION, CUSTOMER MATERIALS, INCLUDING COMPLETENESS, ACCURACY, VALIDITY, AUTHORIZATION FOR USE AND INTEGRITY OVER TIME, AND NIGHTWATCH SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR LIABILITY ARISING OUT OF THE CUSTOMER MATERIALS, INCLUDING ANY MISTAKES CONTAINED IN THE CUSTOMER MATERIALS, OR THE USE OR TRANSMISSION OF THE CUSTOMER MATERIALS. YOU ACCEPT SOLE RESPONSIBILITY FOR, AND ACKNOWLEDGE THAT YOU EXERCISE YOUR OWN INDEPENDENT JUDGMENT IN, YOUR SELECTION AND USE OF CUSTOMER MATERIALS AND ANY RESULTS OBTAINED THEREFROM.
- Representations made by User. You represent, warrant and covenant that (i) you will comply with all Applicable Laws with respect to your access to and use of the Services; and (ii) you have received all third party consents and certifications necessary for the transmission of Customer Materials to the Services, if applicable. Nightwatch is not responsible for ensuring that the Services, or any portion thereof, is in compliance with your criteria for legal compliance. You acknowledge that Nightwatch and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements in this Section 7 and otherwise in this Agreement. You agree that, if any of the acknowledgments, representations or warranties are no longer accurate, you will promptly notify Nightwatch. If you represent an entity on whose behalf you are making such representations and warranties, you represent that you have full power and authority to make such acknowledgments, representations, and agreements on behalf of such entities.
- Indemnification and Liability.
- By User. If instructed by Nightwatch, you shall be responsible for defending, and in any event indemnifying, and holding harmless Nightwatch and its affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all claims arising out of or incurred as a result of: (i) any breach of this Agreement by you; (ii) your use of the Services or any component thereof; and/or (iii) any modification or unauthorized use of Customer Materials.
- Process. You must give us prompt notice of any claim under Section 8.1. We may elect to either defend the claim at your sole cost or otherwise allow you or if you are a Customer User, Customer to defend the claim. We shall have the right, at your cost, to employ counsel of its choice to participate in the defense of such claim.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NIGHTWATCH WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES AND ANY OTHER SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF NIGHTWATCH IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NIGHTWATCHs TOTAL CUMULATIVE AND AGGREGATE LIABILITY TO YOU WILL NOT EXCEED $500.
- Assignment. The Agreement and all rights and obligations hereunder are not assignable or transferable by you without the prior written consent of Nightwatch, and any attempt to do so shall be void. This Agreement will bind the parties’ successors and permitted assigns.
- Force Majeure. Nightwatch will not be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control including without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, governmental orders and acts (including government-imposed travel restrictions and quarantines), pandemics, material changes in law, war, terrorism, riot, or acts of God.
- Independent Contractor. You agree and acknowledge that you and Nightwatch are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between you and Nightwatch. You will not have or represent that you have the right, power or authority to bind, contract or commit Nightwatch or to create any obligation on behalf of Nightwatch without its express prior written consent.
- Miscellaneous. Notices to you shall be sent to the address that Nightwatch has on file with your user account. You agree that Nightwatch may communicate with you electronically regarding administrative, security and other issues relating to your use of the Services. Notwithstanding anything to the contrary herein, you agree that any notices, agreements, disclosures or other communications that Nightwatch sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The foregoing does not affect your statutory rights. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement. IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, no other person or entity shall be a direct or indirect beneficiary of nor shall have any direct or indirect cause of action or claim in connection with this Agreement. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege. This Agreement supersedes all prior discussions, understandings and agreements with respect to its subject matter. This Agreement may only be modified by Nightwatch as set forth in the fourth paragraph of this Agreement, or by the parties in a writing signed by both parties.
- Dispute Resolution.
- Disputes. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 10 (Dispute Resolution), the exclusive jurisdiction for all Disputes (defined below) that you and Nightwatch are not required to arbitrate will be the state and federal courts located in the County of New York, New York, and you and Nightwatch each waive any objection to jurisdiction and venue in such courts
- Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Nightwatch agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Nightwatch are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
- Exceptions. As limited exceptions to Section 10.1 above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
- Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
- Injunctive and Declaratory Relief. Except as provided in Section 10.3 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
- Class Action Waiver. YOU AND NIGHTWATCH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 10 (Dispute Resolution) shall be null and void.
- Effect of Changes on Arbitration. Notwithstanding anything to the contrary int these Terms, if Nightwatch changes any of the terms of this Section 10 (Dispute Resolution) after the date you most recently accepted this Agreement, you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Nightwatch’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Nightwatch in accordance with the terms of this Section 12 (Dispute Resolution) as of the date you most recently accepted this Agreement.
- Severability. With the exception of any of the provisions in Section 10.7 of this Agreement ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.