These
Terms of Use shall remain in full force and effect while you use the Site. WITHOUT
LIMITING ANY
OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION
AND
WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING
CERTAIN IP
ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION
FOR
BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR
OF ANY
APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR
DELETE
YOUR ACCOUNT AND
ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME,
WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate
or suspend your account for any reason, you are prohibited from registering and
creating a new account under your name, a fake or borrowed name, or the name of
any third party, even if you may be acting on behalf of the third party. In
addition to terminating or suspending your account, we reserve the right to
take appropriate legal action, including without limitation pursuing civil,
criminal, and injunctive redress.
We cannot guarantee
the Site will be available at all times. We may experience hardware, software,
or other problems or need to perform maintenance related to the Site, resulting
in interruptions, delays, or errors. We
reserve the right to change, revise, update, suspend, discontinue, or otherwise
modify the Site at any time or for any reason without notice to you. You agree that we
have no
liability
whatsoever for any loss, damage, or inconvenience caused by your inability to
access or use the Site during any downtime or discontinuance of the Site. Nothing in
these Terms
of Use will be
construed to obligate us to maintain and support the Site or to supply any
corrections, updates, or releases in connection therewith.
To
expedite resolution and control the cost of any dispute, controversy, or
claim
related to these Terms of Use (each "Dispute" and collectively, the
“Disputes”)
brought by either you or us (individually, a “Party” and collectively,
the
“Parties”), the Parties agree to first attempt to negotiate any Dispute
(except
those Disputes expressly provided below) informally for at least
thirty
(30) days before initiating arbitration. Such informal
negotiations
commence upon written notice from one Party to the other Party.
If
the
Parties are unable to resolve a Dispute through informal negotiations,
the
Dispute (except those Disputes expressly excluded below) will be finally
and
exclusively resolved through binding arbitration. YOU UNDERSTAND THAT
WITHOUT
THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY
TRIAL.
The arbitration shall be commenced and conducted under the Commercial
Arbitration Rules of the American Arbitration Association ("AAA") and,
where
appropriate, the AAA’s Supplementary Procedures for Consumer Related
Disputes
("AAA Consumer Rules"), both of which are available at the AAA
website:
www.adr.org
.
Your arbitration fees and your share of
arbitrator
compensation shall be governed by the AAA
Consumer Rules
and, where appropriate, limited by the AAA
Consumer
Rules.
The arbitration may be conducted in
person,
through the submission of documents, by
phone, or
online. The arbitrator will make a decision
in
writing, but need not provide a statement of
reasons
unless requested by either Party. The
arbitrator
must follow applicable law, and any award
may be
challenged if the arbitrator fails to do so.
Except
where otherwise required by the applicable
AAA rules
or applicable law, the arbitration will take
place
in
United States of
America
,
California
.
Except as otherwise provided herein, the
Parties may
litigate in court to compel arbitration,
stay
proceedings pending arbitration, or to
confirm,
modify, vacate, or enter judgment on the
award
entered by the arbitrator.
If
for
any reason, a Dispute proceeds in court rather than arbitration, the
Dispute
shall be commenced or prosecuted in the
state
and federal courts located
in
United
States of America,
California
, and the Parties hereby
consent
to, and waive all defenses of lack of personal jurisdiction, and forum
non
conveniens with respect to venue and jurisdiction in such
state and federal courts
. Application of the United Nations Convention on Contracts for
the
International Sale of Goods and the Uniform Computer Information
Transaction Act
(UCITA) is excluded from these Terms of Use.
In no event shall any Dispute brought by
either
Party related in any way to the Site be commenced more than
one (1) years after the cause
of
action arose.
If this provision is found to be illegal or unenforceable, then
neither
Party will elect to arbitrate any Dispute falling within that portion of
this
provision found to be illegal or unenforceable, and such Dispute shall
be
decided by a court of competent jurisdiction within the courts listed
for
jurisdiction above, and the Parties agree to submit to the personal
jurisdiction
of that court.
The
Parties agree that any arbitration shall be limited to
the
Dispute between the Parties individually. To the full
extent
permitted by law, (a) no arbitration shall be joined
with any
other proceeding; (b) there is no right or authority for
any
Dispute to be arbitrated on a class-action basis or to
utilize
class action procedures; and (c) there is no right or
authority
for any Dispute to be brought in a purported
representative
capacity on behalf of the general public or any other
persons.
Exceptions to Informal
Negotiations and Arbitration
The
Parties agree that the following Disputes are not
subject to the
above provisions concerning informal negotiations and
binding
arbitration: (a) any Disputes seeking to enforce or
protect, or
concerning the validity of, any of the intellectual
property
rights of a Party; (b) any Dispute related to, or
arising from,
allegations of theft, piracy, invasion of privacy, or
unauthorized use; and (c) any claim for injunctive
relief. If
this provision is found to be illegal or unenforceable,
then
neither Party will elect to arbitrate any Dispute
falling within
that portion of this provision found to be illegal or
unenforceable and such Dispute shall be decided by a
court of
competent jurisdiction within the courts listed for
jurisdiction
above, and the Parties agree to submit to the personal
jurisdiction of that court.
There may be
information on the Site that contains typographical errors, inaccuracies, or
omissions, including descriptions, pricing, availability, and various other
information. We reserve the right to
correct any errors, inaccuracies, or omissions and to change or update the
information on the Site at any time, without prior notice.
THE SITE IS PROVIDED
ON AN AS-IS AND AS-AVAILABLE BASIS. YOU
AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE
FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT
THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY
WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY
FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2)
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM
YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF
OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL
INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION
TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH
MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY
ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF
ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR
OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE,
OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A
THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE
APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A
PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU
AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE
PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU
SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
18. LIMITATIONS
OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR
AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST
REVENUE,
LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE
BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, OUR
LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF
THE
ACTION, WILL AT ALL TIMES BE LIMITED TO
THE
AMOUNT PAID, IF ANY, BY YOU TO US
DURING
THE six (6) mONTH
PERIOD
PRIOR TO ANY CAUSE OF ACTION ARISING
. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW
LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF
CERTAIN
DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE
DISCLAIMERS OR
LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL
RIGHTS.
You agree to
defend, indemnify, and hold us harmless, including our subsidiaries,
affiliates, and all of our respective officers, agents, partners, and
employees, from and against any loss, damage, liability, claim, or demand, including
reasonable attorneys’ fees and expenses, made by any third party due to or
arising out of:
(1) use of the Site; (2) breach of these Terms of Use; (3) any breach of your representations
and
warranties set forth in these Terms of Use; (4) your violation of the rights of a
third
party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any
other user
of the Site with whom you connected via the Site. Notwithstanding the foregoing,
we
reserve the right, at your expense, to assume the exclusive defense and control
of any
matter for which you are required to indemnify us, and you agree to cooperate,
at your
expense, with our defense of such claims. We will use reasonable efforts to
notify you
of any such claim, action, or proceeding which is subject to this
indemnification upon
becoming aware of it.
We will maintain
certain data that you transmit to the Site for the purpose of managing the
performance of the Site, as well as data relating to your use of the Site. Although
we
perform regular routine backups
of data, you are solely responsible for all data that you transmit or that
relates to any activity you have undertaken using the Site. You agree
that we shall have no liability to you for any loss or corruption of any such
data, and you hereby waive any right of action against us arising from any such
loss or corruption of such data.
21. ELECTRONIC
COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and completing
online forms constitute electronic communications. You consent to receive electronic
communications, and you agree that all agreements, notices, disclosures, and other
communications we provide to you electronically, via email and on the Site, satisfy
any
legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE
OF
ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC
DELIVERY OF
NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA
THE SITE.
You hereby waive any rights or requirements under any statutes, regulations, rules,
ordinances, or other laws in any jurisdiction which require an original signature or
delivery or retention of non-electronic records, or to payments or the granting of
credits
by any means other than electronic means.
22. CALIFORNIA
USERS AND RESIDENTS
If any complaint
with us is not satisfactorily resolved, you can contact the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N
112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916)
445-1254.
These Terms of Use and any policies or operating rules
posted by us on the Site or in respect to the Site constitute the entire agreement
and
understanding between you and us. Our failure to exercise or enforce any right or
provision
of these Terms of Use shall not operate as a waiver of such right or provision.
These Terms
of Use operate to the fullest extent permissible by law. We may assign any or all of
our
rights and obligations to others at any time. We shall not be responsible or liable
for any
loss, damage, delay, or failure to act caused by any cause beyond our reasonable
control. If
any provision or part of a provision of these Terms of Use is determined to be
unlawful,
void, or unenforceable, that provision or part of the provision is deemed severable
from
these Terms of Use and does not affect the validity and enforceability of any
remaining
provisions. There is no joint venture, partnership, employment or agency
relationship
created between you and us as a result of these Terms of Use or use of the Site. You
agree
that these Terms of Use will not be construed against us by virtue of having drafted
them.
You hereby waive any and all defenses you may have based on the electronic form of
these
Terms of Use and the lack of signing by the parties hereto to execute these Terms of
Use.
In order to resolve a complaint regarding the Site or
to receive further information regarding use of the Site, please contact us
at:
Twenty Nights, Inc
340 South Lemon Avenue
Walnut
, CA
91789
United States
Phone:
(650) 837-0165