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 security products application (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.

  1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
    1. download, install, and use the Application for your personal, non-commercial use on one or more Devices owned or otherwise controlled by you strictly in accordance with the Application's documentation; and
    2. access, stream, download, and use on such Devices the Content and Services (as defined in Section 6) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement.

  2. License Restrictions. Licensee shall not:
    1. copy the Application, except as expressly permitted by this license;
    2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
    3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
    4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
    5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason;
    6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application;
    7. use the Application:
      1. 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);
      2. 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;
      3. 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;
      4. 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;
      5. 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;
      6. use any device, software or routine that interferes with the proper working of an Application Website;
      7. introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
      8. use the Application with a device that you do not own; or
      9. 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. Not Intended as Emergency Services. 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.  

  4. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, the Content and the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. 

  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.

  6. Content and Services; Application Websites. Certain features, functionality, and content accessible on or through the Application (collectively, "Content and Services") may be hosted on the Company’s computer servers or on cloud-based servers and accessed by the Application via the internet and one or more designated websites (each, an “Application Website”).  We reserve the right to withdraw or amend any Application Websites, and any service or material we provide on any Application Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of an Application Website is unavailable at any time or for any period. From time to time, we may restrict access by users to any Application Website.  You are responsible for making all arrangements necessary for you to have access to any Application Websites.
  7. We may use equipment that relies on wireless or internet connections or are connected to a network (such as security systems, communications equipment, cameras, wireless radios, access control, cloud storage, NAS storage, DVRs, NVR and other kinds of networkable security and other devices). This equipment may not be secure and may be exploited or hacked by malware and spyware variants (“Malware Vulnerabilities”). Malware Vulnerabilities may provide a gateway for a person with malicious intent the capability to arm or disarm your system or related equipment; view, extract, change, destroy, steal, disclose or alter your data, or the data of others; monitor and/or spy on your activities and the activities of others; cause internet and network outages; provide for unintended or unauthorized access by others to your network, or the network of others; and otherwise place people, property or data at risk. THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT THE APPLICATION OR SERVICRES ARE SECURE, OR DO NOT HAVE, OR ARE NOT SUSCEPTIBLE TO, MALWARE VULNERABILITIES. The Company assumes no liability for any Malware Vulnerabilities and, to the fullest extent permitted by applicable law.  You hereby agree to release and hold the Company and its representatives, successors and assigns harmless from any Malware Vulnerabilities and any related loss or damage of any kind or sort, even if caused by any breach of contract or negligence of any kind or degree by the Company (the “Malware Vulnerability Release”). If the Malware Vulnerability Release is not enforceable under applicable law for any reason, then the LIMITATION OF LIABILITY in Section 13 shall apply to any losses or damages, of any kind or sort, arising from, or related to, Malware Vulnerabilities. 

  8. 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.

  9. Geographic Restrictions. The Content and Services are based in the United States and provided for access and use only by persons located in the United States, Canada, and Mexico. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States, Canada, and Mexico, and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, Canada, or Mexico you are responsible for compliance with local laws.

  10. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either:
    1. the Application will automatically download and install all available Updates; or
    2. 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.

  11. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.

  12. Term and Termination.
    1. The term of Agreement commences when you download or install the Application and will continue in effect until terminated by you or Company as set forth in this Section 10.
    2. You may terminate this Agreement by deleting the Application and all copies thereof from all of your Devices.
    3. Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
    4. Upon termination:
      1. all rights granted to you under this Agreement will also terminate; and
      2. you must cease all use of the Application and delete all copies of the Application from your Device and account.
    5. Termination will not limit any of Company's rights or remedies at law or in equity.

  13. Disclaimer of Warranties. THE APPLICATION, INCLUDING ALL CONTENT AND SERVICES, IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
  14. 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.

  15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
    1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
    2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

    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.

  16. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application, Content or Services, or your breach of this Agreement, including but not limited to any content you submit or make available through this Application.

  17. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

  18. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

  19. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

  20. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Boca Raton and Palm Beach County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

  21. 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.

  22. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  23. Entire Agreement. This Agreement and our Software Application Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

  24. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.