Updated: June 8, 2005
PLEASE READ THIS SERVICE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING NapkinNights. BY ACCESSING OR USING NapkinNights, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE NapkinNights. REMEMBER THAT NapkinNights MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF NapkinNights SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. ACCEPTANCE OF TERMS
NapkinNights is a service provided by NTS Interactive, LLC. As used herein, the term "We" or "NapkinNights" shall mean NapkinNights Website and Service as provided by NTS Interactive, LLC, its business groups and/or affiliates. The NapkinNights Website (including all services and/or products offered, sold, downloaded and/or made available through NapkinNights) shall be referred to as the "Service". We will provide the Service to you (hereinafter “You” or “Your”), subject to the following terms and conditions, referred to as the "Service Agreement" or "SA," which may be updated or modified by us from time to time without notice to You, therefore, it is Your responsibility to check this SA from time-to-time for any changes and/or updates . Your use of the Service will confirm Your agreement to these terms and conditions as well as Your acceptance of the changes we make to the SA. In addition, when using particular NapkinNights services subject to this SA, You and NapkinNights shall be subject to any posted guidelines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules are incorporated by reference into this SA.
2. DESCRIPTION OF SERVICE
NapkinNights is the premier nightlife destination on the Internet. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the SA. You understand and agree that the Service is provided "AS IS" and that we do not assume responsibility for the timeliness, accuracy, deletion, mis-delivery or failure to store any user provided content, communications, images, or personalization settings. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
3. EDITORIAL POLICY
Use of the Service may require You to register and obtain a password. In return for our enabling You to use the Service, You agree to: (a) provide true, accurate, current and complete information about Yourself when necessary or as prompted by the Service's registration form (such information being the "Registration Data") and; (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).
6. MEMBER ACCOUNT, PASSWORD AND SECURITY
When the particular service You use requires You to register as described above, You will also receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under Your password or account. You agree to (a) immediately notify NapkinNights of any unauthorized use of Your password or account or any other breach of security, and (b) ensure that You exit from Your account at the end of each session. NapkinNights cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section.
7. USE OF THE SERVICE; MEMBER CONDUCT
You understand that all information, images, data, text, messages, postings, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not NapkinNights, are entirely responsible for all Content that You upload, post, or otherwise transmit via the Service. If You have included information available through the Service then You are responsible for making modifications or updating information to the extent there are errors or updates are required. NapkinNights does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, You may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will NapkinNights be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content (for example, if an event posted on NapkinNights is listed with the wrong date, place, or time), or for any loss or damage of any kind incurred as a result of the use of any Content posted, or otherwise transmitted via the Service. You agree that You will not use the Service or the information obtained through the Service (including without limitation, directory or event listings) (a) for solicitations, commercial or otherwise; (b) for incorporation into a commercial product or service; (c) to download directory listings or other information by using any type of automated means; (d) for the purposes of soliciting, offending or harassing any person or persons; (e) to alter the directory listings, event listings, or other information, or enter additional listings or Content which in any way: (i) are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) violates any patent, trademark, service mark, trade secret, copyright or other proprietary rights ("Rights") of another, or (iii) are known to be false or misleading at the time of entry; (f) harm minors in any way; (g) impersonate any person or entity, including, but not limited to, a NapkinNights official, or falsely state or otherwise misrepresent Your affiliation with a person or entity; (h) provide any Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (i) transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or (k) intentionally or unintentionally violate any applicable local, state, national or international law. (b) You acknowledge that NapkinNights does not pre-screen Content, but that NapkinNights and its designees shall have the right (but not the obligation) in their sole discretion to refuse, move or remove any Content that is available via the Service. Without limiting the foregoing, we shall have the right to remove any Content that violates the SA or is otherwise objectionable (as determined solely by NapkinNights). You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not rely on any Content created by us or submitted to us. (c) You understand that the technical processing and transmission of the Service, including Your Content, may involve, a. transmissions over various networks and, b. changes to conform and adapt to technical requirements of connecting networks or devices.
8. CONTENT POSTED TO NapkinNights.
(a) For purposes of the SA, "publicly accessible areas of the Service" are those accessible by the general public. By way of example, a publicly accessible area of the Service would include the NapkinNights Message Boards. Please note that this Content may be seen by anyone using the Service.
(b) With respect to all other Content You elect to post to publicly accessible areas of the Service, You grant NapkinNights the world-wide royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) and/or to incorporate it in other works, in any form, media, or technology now known or later developed. (c) You represent and warrant that You have all right, title and interest in, or otherwise have the right to publicly display all Content that You post to or transmit through the Service and that the Content You post to or transmit through the Service does not infringe, or dilute the intellectual or proprietary rights of any third party.
9. PURCHASING IMAGES
You may have the opportunity (but not the right) to purchase certain Images from the NapkinNights Website subject to the following: (a) NapkinNights reserves the right to (i) change any/all pricing at any time (in its sole discretion) without providing notice to You; and (ii) deny or refuse (in NapkinNights’ sole discretion) Your request to purchase, print, or download certain Image(s) or Data File(s) offered through the NapkinNights Website; (b) except for Your purchase of a Digital File, NapkinNights grants You a nonexclusive, nontransferable, (without right to sublicense), license to print, copy, store, edit, or modify Your Image for non-commercial purposes; (c) In addition to all other rights contained in this SA, NapkinNights in no way guarantees the accuracy, quality or appropriateness of Images available on the NapkinNights Website; (d) You represent and warrant that Your use of any/all Image(s) (including Digital Files) purchased, downloaded, or otherwise obtained from NapkinNights will not be (as determined solely by NapkinNights) offensive, misleading, deceptive, libelous, defamatory, obscene, intended to harass or annoy, violates the intellectual, proprietary or privacy rights of any third party, or which violates any laws; (e) You may not use the images to create your own photo gallery Website for commercial purposes; (f) ANY IMAGES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH IMAGES; (g) In addition to any other rights and remedies available to NapkinNights under this SA, You shall indemnify, defend and hold harmless NapkinNights and/or NTS Interactive, LLC, and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees and cost s) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of any material breach by You of any representation or warranty under this Agreement (including this Section 9); (h) You acknowledge and agree that all Images (including Data Files) ordered through NapkinNights by You is Your own responsibility and in no way shall NapkinNights be responsible for wrong orders, duplicate orders, or the quality of any Image(s) or Data Files. NapkinNights' failure to insist upon or enforce strict performance of this Section 9 shall not be construed as a waiver of any provision or right set forth in this SA; and (i) NapkinNights is not responsible for the privacy practices or services provided by any third-party fulfillment partner to provide you with the Image(s) You have requested. This section shall survive completion, cancellation or termination of the Agreement.
10. RIGHTS AND REPRESENTATIONS
(a) NapkinNights reserves the right to deny access to You or any group of users to the Service, at its sole discretion, at any time. NapkinNights also reserves the right to remove any listings, Content or other information from the Service at any time and at its sole discretion. (b) NapkinNights cannot and does not guarantee or warrant that data or Image files available for downloading through the Service will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for accuracy of data input and output, and for maintaining a means external to the Service for the reconstruction of any lost data. (c) NapkinNights and/or NTS Interactive LLC MAKES NO WARRANTIES EXPRESS OR IMPLIED,, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE, ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE, OR ANY MERCHANTS LISTED ON THE SERVICE, AND NapkinNights and/or NTS Interactive LLC SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. NapkinNights and/or NTS Interactive LLC DOES NOT WARRANT THAT THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. THE SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. IN NO EVENT WILL NapkinNights and/or NTS Interactive LLC (OR ITS DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, AGENTS, REPRESENTATIVES, DISTRIBUTORS OR AFFILIATES) BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABIL ITY TO USE THE SERVICE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SERVICE OR DOWNLOADED FROM THE SERVICE, EVEN IF NapkinNights and/or NTS Interactive LLC OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DIRECTORY OR EVENT LISTINGS OR INFORMATION DOWNLOADED THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, NapkinNights' and/or NTS Interactive LLC's LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
In addition the NapkinNights’ indemnification rights set forth in Section 9 above, You agree to indemnify and hold NapkinNights and/or NTS Interactive LLC, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of 1) Content You submit, post to or transmit through the Service, 2) Your use of the Service, 3) Your connection to the Service, 4) Your violation of this SA, or 5) Your violation of any rights of another.
12. MODIFICATIONS TO SERVICE
NapkinNights reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that NapkinNights shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Service.
You agree that NapkinNights, in its sole discretion, may terminate Your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, for any reason (in NapkinNights’ sole discretion) , including, without limitation, for lack of use or if NapkinNights believes that You have violated or acted inconsistently with the letter or spirit of the SA. NapkinNights may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of Your access to the Service under any provision of this SA may be effected without prior notice, and acknowledge and agree that NapkinNights may immediately deactivate or delete Your account and all related information and files in Your account and/or bar any further access to such files or the Service. Further, You agree that NapkinNights shall not be liable to You or any third party for any termination of Your access to the Service.
14. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. You agree that NapkinNights shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
The Service may provide, or third parties may provide, links to other World Wide Websites or resources. Because NapkinNights has no control over such sites and resources, You acknowledge and agree that NapkinNights 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 acknowledge and agree that NapkinNights shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Use of this site is contingent on acceptance of viewing of any and all advertisements (ADS) sent on or by pages of this site. ADS include, but are not limited to: banners, buttons and pop-up windows. Users found to be using screening or filtering systems to remove or hide ads from NapkinNights may have their accounts terminated without prior notice or warning.
17. PROPRIETARY RIGHTS AND IDEA SUBMISSIONS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to You through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by NapkinNights or advertisers, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. The compilation of the contents of the Service are copyrighted under the United States copyright laws. The owner of the copyright is NapkinNights and in some cases a third party. In addition to the rights granted in Section 9 above, NapkinNights grants You a personal, non-transferable, non-sublicenseable, and non-exclusive right and license to print and download portions of directory or event listings from or other information found on the Service solely for Your own non-commercial use. Any other copying, redistribution, retransmission, display or publication of any downloaded information is strictly prohibited without the express written consent of NapkinNights. You agree to grant to NapkinNights a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sublicense, to reproduce, distribute, transmit, create derivative works of, and publicly display any Content, including directory listings and other materials or information such as ideas contained therein for new or improved products and services You submit to NapkinNights (such as through posting to public areas or mailing to NapkinNights) by all means and in any media now known or hereafter developed. You also agree to grant to NapkinNights the right to use Your name in connection with the submitted Content as well as in connection with all advertising, marketing and promotional material related thereto. You grant NapkinNights non-exclusive, royalty-free, worldwide permission to implement or use in any manner and in any media any ideas or information contained in Your communications. You further agree to release NapkinNights from any claims of alleged or actual infringement, or misappropriation of any proprietary rights that may result from such implementation or use.
18. DISPUTE RESOLUTION
Any cause of action or claim You may have with respect to the Service must be commenced within one year after the claim or cause of action arises or such claim or cause of action is barred. ALL DISPUTES, CONTROVERSIES OR CLAIMS, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SERVICE ("DISPUTES") SHALL BE SETTLED BY FINAL AND BINDING ARBITRATION CONDUCTED IN CALIFORNIA, BY A NEUTRAL ARBITRATOR, IN ACCORDANCE WITH THIS AGREEMENT AND THE THEN CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. The arbitrability of Disputes shall also be determined by the arbitrator. Each party shall bear its own expenses, except that the prevailing party may recover the filing costs and the expenses of the arbitrator from the other party. Any award of the arbitrator shall be in writing and shall state the reasons for the award. Judgment upon an award may be entered in any Court having competent jurisdiction. The arbitrator shall not have the power to order pre-hearing discovery of documents or the taking of depositions, but may compel attendance of witnesses and the production of documents at the hearing. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 14, shall govern the interpretation and enforcement of this paragraph. The parties, their representatives and participants and the arbitrator shall hold the existence, content and result of the arbitration in confidence, except to the limited extent necessary to enforce a final settlement agreement or to obtain or enforce a judgment on an arbitration decision and award. The foregoing notwithstanding, this agreement shall not prevent the parties from seeking and obtaining temporary equitable remedies, including temporary restraining orders, from a court with jurisdiction over the parties and the subject matter. A request to a court for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate.
19. TRADEMARK NOTICES
NapkinNights is a trademark and/or service marks of NTS Interactive. Other NapkinNights products, services and company names mentioned herein and or applicable Company Websites may be the trademarks and/or service works of NapkinNights. Other product, service and company names mentioned herein may be the trademarks or service marks of their respective owners.
This Agreement shall all be governed and construed in accordance with the laws of the State of California applicable to agreements made and to be performed in California. This site is controlled and operated by NTS Interactive LLC from its offices within the United States of America. NapkinNights and/or NTS Interactive LLC makes no representation that materials in the site are appropriate or available for use in other locations. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. NapkinNights' failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. NapkinNights may assign its rights and duties under this Agreement to any party at any time without notice to You. The section titles in the SA are for convenience only and have no legal or contractual effect.
NapkinNights.com reserves the right to change, modify, or update this Service Agreement at any time without notice.