Terms & Conditions
Use of Content
The Content is intended to convey general information about Access the Night, and to provide you with a means to promote offers, specials, and general information to consumers ("Consumers"), for consumers' purchase of your goods and/or services. It should not be relied upon as professional or legal advice. It is not an offer to represent you. Access the Night is not affiliated with any you or any other business who offers its goods and/or services on the Site and ATN App (each a "Vendor"), and makes no representation or warranty, express or implied, as to the accuracy, truth, reliability or value of any Vendor's goods and services displayed on the Site and ATN App. The content of any Internet e-mail sent to Access the Night or any of its employees at the e-mail addresses set forth on the Site and ATN App will not create a legal relationship and will not be treated as confidential. All uses of the Content, other than personal uses, are prohibited. The Content shall not be construed as professional or legal advice but is intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of Access the Night. The views set forth on the Site and ATN App are the personal views of the author and do not necessarily reflect those of Access the Night.
Access to the Site, ATN App and Content
You acknowledge and agree that Access the Night owns all legal right, title and interest in and to the Site, ATN App and Content, including any intellectual property rights which subsist therein, whether those rights are registered or not, and wherever in the world those rights exist. The Site, ATN App and Content are protected to the maximum extent permitted by law. Content displayed on the Site and ATN App is protected by copyright as a collective work and/or compilation, and any reproduction, modification, creation of derivative works, copying, or redistribution, of the Site, ATN App and Content, or any portions thereof is expressly prohibited without first obtaining the prior express written consent of Access the Night. You further acknowledge and agree that the Site, ATN App and Content may contain confidential information, and that you shall not disclose such confidential information without Access the Night's prior written consent.
Third Party Content
The Site and ATN App may contain links or references to other Vendor and third-party websites, resources, content, services, products and/or materials (collectively, “Third Party Content”). Access the Night makes no representation or warranty concerning any Third Party Content that may be referenced on, accessed from, or linked to the Site and ATN App. The Third Party Content may be protected by various laws, rules and regulations, including, but not limited to, copyright as a collective work and/or compilation, and any reproduction, modification, creation of derivative works, copying, or redistribution, of any Third Party Content, or any portions thereof is expressly prohibited without first obtaining the prior written consent of the owner of the Third Party Content. You further acknowledge and agree that the Third Party Content may contain confidential information, and that you shall not disclose such confidential information without the prior written consent of the owner of the Third Party Content.
Limitation of Liability
You expressly understand and agree that Access the Night and its affiliates shall not be liable to you for any direct, indirect, incidental, special, consequential, or exemplary damages of any type whatsoever which may be incurred by you arising from, related to, or resulting from your access and/or use of the Site, ATN App, the Content, and/or any Third Party Content, no matter how caused, and under any theory of liability whatsoever EVEN THOUGH CAUSED OR ALLEGED TO BE CAUSED BY THE NEGLIGENCE OR FAULT OF ACCESS THE NIGHT, OR ANYONE CLAIMING BY, THROUGH OR UNDER ACCESS THE NIGHT. Even if Access the Night is expressly advised of the possibility of such damages, this exclusion and limitation of liability applies to any and all causes of action, whether based on contract, tort, or any other legal theories.
DISCLAIMER OF WARRANTIES
You understand and agree that your use and access of the Site and ATN App is entirely at your own risk. THE SITE, ATN APP AND THE CONTENT ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS, "WITH ALL FAULTS", WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, OF ANY KIND APPLICABLE TO THE SITE, ATN APP, CONTENT AND ANY THIRD PARTY CONTENT, INCLUDING BUT NOT LIMITED TO: WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY, INTEGRATION, COMPLETENESS, TIMELINESS AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. ACCESS THE NIGHT EXPRESSLY DISCLAIMS THAT ANY CONTENT ON THE SITE AND ATN APP PROVIDED TO YOU BY ACCESS THE NIGHT WILL BE DELIVERED FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PERSON BY WAY OF INFINGEMENT. FURTHER, YOU AGREE TO INDEMNFIY, DEFEND, AND HOLD ACCESS THE NIGHT HARMLESS WITH RESPECT TO ANY AND ALL CLAIMS OF ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SITE, ATN APP, CONTENT, AND ANY THIRD PARTY CONTENT, EVEN THOUGH CAUSED BY ACCESS THE NIGHT'S OWN NEGLIGENCE. ACCESS THE NIGHT DISCLAIMS ANY WARRANTIES THAT THE SITE AND ATN APP WILL BE FREE OF ANY VIRUSES, TROJANS, MALWARE OR OTHER HARMFUL COMPONENTS. ACCESS THE NIGHT EXPRESSLY DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SITE, ATN APP, CONTENT AND ANY THIRD PARTY CONTENT. The Content and any Third Party Content is not promised or guaranteed to be accurate, current, or complete, and the Site and ATN App may contain technical inaccuracies or errors. ACCESS THE NIGHT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR UPDATING OR VERIFYING THE ACCURACY OR COMPLETENESS OF THE CONTENT AND THIRD PARTY CONTENT CONTAINED ON THE SITE AND ATN APP. Accordingly, you should take steps to confirm the accuracy and completeness of all Content and Third Party Content before making any decision with respect to any products and services or other matters pertaining to the Site, ATN App, Access the Night, or any Vendors. You further understand and agree that if you download the ATN App and/or otherwise obtain Content and/or Third Party Content, you do so at your own risk, and you will be solely responsible for any and all damages arising from, related to, or resulting from such use, including but not limited to loss of data or damage to your mobile devices and computer systems, EVEN THOUGH CAUSED OR ALLEGED TO BE CAUSED BY THE NEGLIGENCE OR FAULT OF ACCESS THE NIGHT, OR ANYONE CLAIMING BY, THROUGH OR UNDER ACCESS THE NIGHT. Access the Night provides no assurance that it will resolve any reported problems concerning your use of the Site, ATN App, Content, or any Third Party Content, even if Access the Night takes steps to resolve any such reported problems. Access the Night does not represent or warrant to you that the Site, ATN App, Content, and/or Third Party Content will meet your requirements or that your use of the Site, ATN App, Content, and/or any Third Party Content will be uninterrupted, timely, secure, accurate, up to date, or reliable. Notwithstanding anything to the contrary contained herein, Access the Night does not exclude or limit any warranties for losses which may not be lawfully excluded or limited by applicable law. Some jurisdictions do not permit the exclusion of certain warranties or conditions or the exclusion of liability for loss or damage as set forth herein. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you and our liability with respect to all of the foregoing will be the maximum extent permitted by law in your jurisdiction.
Privacy Statement; Collection of Personal Information
Use of Personal Information
The personal information that Access the Night collects will be used to deliver Access the Night's services, answer customer service requests, update you on new products and services, provide you with service and support, and to provide other business services to you. Access the Night contracts with other individuals and companies (including Vendors), in order to provide you with its services. Access the Night provides these individuals and companies with only those portions of your personal information which Access the Night deems necessary to provide you with requested products and services. Access the Night may also disclose some of your personal information to financial institutions, government agencies, or shipping companies in order provide products and services. The Site and ATN App may contain links to other websites of Vendors and other third party providers. Access the Night is not responsible for the content, security or privacy practices employed by other websites linked to the Site and ATN App.
Access To and Accuracy of Your Information
Access the Night strives to accurately record your personal information provided on the Site and ATN App. To protect your privacy, Access the Night may take reasonable steps to verify your identity, such as requiring the use of a user ID and password, before granting access to your data. In order to review and/or change the personal information that you have provided to Access the Night, you may contact Access the Night by telephone or email at the contact information provided on the Site.
Unfortunately, no data transmission over the Internet can be guaranteed to be 100 percent secure. As a result, while we will attempt to protect your personal information, Access the Night cannot ensure or warrant the security of any information you transmit to us or any information provided online, and you do so at your own risk. Access the Night will not be liable for disclosures of your personal information due to errors in transmission or unauthorized acts of third parties. Once we receive your transmission, we will use commercially reasonable efforts to ensure its security on our systems by making reasonable efforts to protect the information. Any information provided to Access the Night is treated with reasonable care and discretion.
Termination of Use
You agree that Access the Night may, in its sole discretion, at any time, terminate or limit your access or use of the Site, ATN App, and Content. You agree that Access the Night shall not be liable to you or any third party for any termination or limitation of your access and/or use of the Site, ATN App and Content.
Access The Night uses the Foursquare® application programming interface but is not endorsed or certified by Foursquare Labs, Inc.
Vendor Account Terms
Access the Night provides the ATN App, a mobile device application, to consumers and to Vendors, through which businesses may promote their goods and services to consumers. By accessing and using the ATN App through your online account (your "Vendor Account"), you agree to use, access and manage your Vendor Account according to the terms and conditions set forth herein (the “Account Terms”). If at any time you do not agree with the terms and conditions set forth in this Agreement, as amended from time to time, then you must immediately stop accessing, using and maintaining your Vendor Account and you must notify Access the Night in writing that you desire to terminate your Vendor Account.
Access the Night Vendor Account
The monthly fee for maintaining a Vendor Account is $100.00 per month (the "Monthly Fee"). In order to use Access the Night's services through a Vendor Account, you are required to provide current and accurate contact and other information as part of the registration process, will provide Access the Night with a valid credit card or bank account information through which Access the Night may automatically charge you the Monthly Fee, and will be required to update such information on a regular basis. Your Vendor Account is an account on the Site that provides you with access to the ATN App that will enable you to upload information concerning specials, promotions, and other Content to the ATN App in order to facilitate your provision of goods and services to consumers. You are responsible for maintaining the confidentiality of your user account password, and are solely responsible for all activity by and through your Vendor Account. You agree to immediately notify Access the Night of any unauthorized use of your password or Vendor Account or any other breach of security with respect to your Vendor Account. Access the Night is not and will not be liable for any loss or damage arising from your failure to comply with the Terms and Conditions or this Account Terms. Access the Night reserves the right, with or without cause, to terminate your Vendor Account or interrupt your use thereof, at any time without notice. Access the Night may, in its sole discretion, offer certain optional features or functionalities as a part of your Vendor Account. If you choose to use such optional features or functionalities, you may be required to agree to separate terms and conditions specific to those features or functionalities that will be disclosed and available at the time you elect any such option. By creating a Vendor Account, you represent and warrant to Access the Night that you are over the age of eighteen, and have full power, capacity and authority to legally bind the yourself (or an entity which you represent) to the Terms and Conditions and this Account Terms.
The Content Management System (the "CMS") is the section of your Vendor Account where you may access your business profile; review information concerning specials, promotions, discounts, deals and events you have offered (collectively "Promotions"), and create, upload launch, promote, manage, edit, update and terminate your Promotions. The CMS will be accessible via the ATN Application, through the use of a user name and password which you will supply upon registration. Within your Vendor Account profile, you can add or edit information about your business including locations, social media links, email lists, pictures, and addresses.
Creation of Offers
If you elect to create a Promotion, you must define the conditions of, and supply the content and images to describe and illustrate, the Promotion. Access the Night has no obligation to accept or promote any Promotion submitted through your Vendor Account. You are responsible and liable for all Promotion content and terms, and for Access the Night's or any purchaser's or holder’s use or reliance thereon. In creating your Promotion, you may not: (a) offer to sell any goods or services on terms or in a manner that is prohibited from being offered or advertised on the terms on which you are making them available; (b) include any content that violates or infringes in any way upon the rights of others; (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; or (d) offer to sell any goods or services which require permitting or licensing which you do not possess. Access the Night reserves the right to remove a Promotion from the ATN App in its sole and absolute discretion. Access the Night reserves the right to remove any Promotion from the ATN App which Access the Night determines may confuse or mislead consumers, and may terminate your Vendor Account in the event of such a determination, in its sole discretion.
Marketing of Promotions
By submitting a Promotion, you are authorizing Access the Night to market the Promotion using any method, through any medium, that Access the Night deems appropriate in its sole discretion, including e-mail, mobile applications, push notifications, and any other type of electronic interface or distribution channel owned, controlled, operated or accessible by Access the Night. Access the Night reserves the right, but has no obligation, to promote the Promotion through its affiliates and third party business partners from time to time. Access the Night will promote your Promotion to consumers based on geographic or other geolocational data but will determine the consumers to whom your Promotion is actually promoted and made available in its sole discretion.
Responsibility for Promotions
You acknowledge that you are the exclusive seller of your Promotion and are responsible and liable for: (a) making your Promotion available through the ATN App; (b) fulfilling your Promotions with all consumers; and (c) supplying all goods and/or services specified in the Promotion.
Grant of License
You hereby grant Access the Night a non-exclusive, worldwide, transferable and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other content or materials that you provide to Access the Night in your Vendor Account, on the ATN App, or otherwise used to describe your Promotion (“your Content”) in any and all media or formats in connection with Access the Night’s fulfillment of its rights and obligations under this Account Terms, including the promotion and distribution of Promotions.
This Agreement commences on the date on which you first access the Vendor Portal through your Vendor Account, and will remain in effect until your Vendor Account is terminated by you or Access the Night. Access the Night may terminate this Agreement and suspend your access to the Vendor Account immediately if you breach any term of this Agreement.
Representations and Warranties
You represent and warrant to Access the Night that: (a) your Content, your representations about your business, and your Content, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right, or right of privacy or publicity of any third party; (b) you hold all necessary regulatory and authorization documents, if any, required to offer any Promotion; (c) you will provide the goods and services made available through any Promotion consistent with industry best practices; (d) you have all rights necessary to grant the licenses set forth in this Account Terms; and (e) you have the power and authority to enter into and be legally bound by the terms of this Agreement and perform your obligations hereunder.
Compliance with Law
You will comply with any and all state, federal and local laws, rules regulations, and orders (collectively “Laws”). Access the Night shall have no responsibility to ensure your compliance with any Laws.
Health and Safety
You represent and warrant that all good and services provided in connection with any Promotion are safe and comply with all applicable local, state and federal laws regarding health, safety, fire, and hygiene standards (collectively, “Health Laws”). At Access the Night’s request, you will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing your facility(ies)' compliance with Health Laws. You shall ensure that your facilities and operations remain in compliance with all applicable Health Laws during the term of this Account Terms. Access the Night reserves the right to immediately terminate this Agreement and your Vendor Account, and refuse to promote any Promotion if Access the Night believes you are not in compliance with any Health Laws.
If any Promotion features goods, services, or brands that you do not exclusively own, you hereby represent and warrant that you have previously obtained all rights, permissions, and authorizations necessary to provide and use such goods, services or brands as part of a Promotion, and to grant the rights to your Content granted under this Account Terms. Prior to offering a Promotion in which you intend to offer goods, services or brands that you do not exclusively own, you must provide Access the Night with letters of authorization or other documentation evidencing such rights and permissions (“Authorization Documents”). Access the Night shall have no obligation to promote any Promotion until it has received Authorization Documents it considers to be satisfactory, in its sole discretion. You must immediately notify Access the Night if, at any time during the term of the Account Terms, you no longer have the rights and permissions evidenced in any Authorization Documents.
If any Promotion features goods, services or brands that require licenses or approvals from governmental authorities or are otherwise subject to regulatory authorizations, you hereby represent and warrant that, prior to offering any such Promotion, you have all obtained all governmental licenses, approvals, and authorizations necessary to provide the goods, services or brands included in such Promotion. You shall provide Access the Night with copies of licenses, proof of authorization or other appropriate documentation evidencing such regulatory permissions (“Regulatory Documents”) prior to offering any such Promotion. Access the Night shall have no obligation to promote a Promotion until it has received Regulatory Documents it considers to be satisfactory, in its sole discretion. You must immediately notify Access the Night if, at any time during the term of the Account Terms, you no longer have the rights and permissions evidenced in the Regulatory Documents.
Intellectual Property Rights
You acknowledge that Access the Night owns all right, title, and interest, including all intellectual property rights, in the Site, ATN App, Content, and any content, data, software, technology, tools, or methods used by Access the Night to develop, promote, market, sell, or distribute Promotions and otherwise perform its obligations under this Agreement (collectively the "Access the Night IP"). With respect to any Promotion, you may use Access the Night’s name, trademarks, and logos solely for the purpose of notifying consumers that the Promotion is offered through the Site, ATN App. Notwithstanding the foregoing, you shall not use or display the Access the Night IP in any manner that states or implies that Access the Night has endorsed or approved a Promotion or your business. Any use of Access the Night IP must comply with any Access the Night usage guidelines posted on the Site from time to time. All goodwill and improved reputation in respect of and associated with the Access the Night IP shall inure to the sole benefit of Access the Night. Nothing contained in this Agreement or in respect of your use of the Site and the ATN App grants you any right, license, title or interest in or to any Access the Night IP, and you shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the Access the Night IP without the express written consent of Access the Night. You shall not translate, reverse engineer, decompile or disassemble the Access the Night IP
You acknowledge that Access the Night owns all data collected by, or on behalf of, Access the Night pursuant to this Account Terms, including all information and data of consumers who download and use the ATN App (”Customer Data”). Access the Night will provide you with limited Customer Data for the purpose of you determining the characteristics of the individuals who purchase your goods and services as a result of their use of the ATN App. You and your Partners shall use commercially reasonable efforts to protect the security of Customer Data and comply with all local, state and federal laws relating to the processing of such Customer Data. If you become aware of, or suspect, any unauthorized access to or use of Customer Data, you shall immediately notify Access the Night, and shall cooperate with Access the Night in the investigation of such breach and the mitigation of any damages. You shall bear all resulting costs and expenses incurred by Access the Night to comply with applicable data breach notification laws.
Electronic Communications and Notices
You hereby: (a) consent to receive communications from Access the Night in an electronic form; and (b) agree that all terms and conditions, Account Terms, notices, disclosures, and other communications that Access the Night provides to you electronically satisfy any legal requirement that such communications be in writing. Notices. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when: (a) delivered by electronic mail; (b) deposited in the United States mail, postage prepaid, certified mail, return receipt requested; or (c) deposited with a regional or national overnight courier service, addressed to the other Party at the following addresses:
If to you:
To the electronic mail address or physical mailing address identified in your Vendor Account
If to Access the Night:
Access the Night LLC
2100 Ross Avenue, Suite 750
Dallas, Texas 75201
Neither party shall be liable to the other party for any default or delay in the performance of its obligations under this Agreement due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond the reasonable control of such party and only for the duration of such event.
Relationship of the Parties
Nothing in this Agreement shall be deemed or construed by the parties hereto, nor by any third party, as creating a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority to bind or commit the other party in any way. Access the Night is not a vendor or co-vendor of your goods and services.
This Agreement constitutes the entire understanding between the parties relating to the matters herein, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may not be amended or modified except by mutual written agreement of the parties.
This Agreement shall be governed by and construed under the laws of the State of Texas, without regard to conflicts of law rules. Any action or proceeding arising out of or related to this Agreement shall be brought in the federal and state courts of Dallas County, Texas.
The section headings of this Agreement are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. References to a section include references to all subsections of that section.
If any provision of this Agreement should be held to be invalid, illegal, or unenforceable the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected and this Agreement shall be construed as though such invalid, illegal or unenforceable provision was not included.
One or more waivers of a breach of any provision of this Agreement by either party shall not be construed as a waiver of a subsequent breach of any provision of this agreement.
Successors and Assigns; No Third Party Beneficiaries
This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. There are no third party beneficiaries to this agreement, except as expressly set forth herein.
© 2010 Access the Night LLC, a Texas limited liability company. All rights reserved.