You do not have the right to use the Application and may not accept the terms in this Agreement if:
•You're below the legal age in the country you reside in, or you're legally incompetent in any other way to form a binding agreement as intended herein;
•If you're below the legal age or you're legally incompetent in any other way to form a binding agreement as intended herein, you need to notify NightOwl app at email@example.com and present a parental or legal guardian consent prior to installing the Application and agreeing to the terms of the Agreement;
•You are prohibited from using the Application under any applicable laws, including the laws of your country of residence or from which you use the Application;
•Legal agreements with your internet or mobile service provider (etc.) prohibit you from entering agreements similar to this one by defining how you can share your internet traffic, IP address, and device resources, among other things. You're developing or have developed a competing product and plan to access the Application for the purpose of monitoring behavior, availability, performance, and/or functionality or for any other competitive purpose.
We reserve our right to alter the terms in this Agreement and/or the pricing information and method detailed in NightOwl app's website at any time. In case the Agreement is amended as described, we will post an updated version of it in our website, at which time it becomes active and binding.
In case NightOwl app alters the Agreement in a way which will be deemed material to the relations and/or obligations of the parties by NightOwl app's sole decision, we will inform you of these changes on our website or via our social media accounts and other established communication channels. If you find an amendment unacceptable, your sole and exclusive remedy is to terminate this Agreement by following the established procedure in the Agreement and by terminating your use of the Application.
As we continuously strive to improve the Application, we reserve the right to modify and/or update the Application at any time.
•WHEREAS, NightOwl app has developed an Application that enables Users to share their internet traffic via their device with NightOwl app and its Clients. The User's device becomes a gateway which allows NightOwl app to send and receive internet traffic. This traffic is used by NightOwl app and its Clients.
•WHEREAS, NightOwl app enables Users to share internet traffic by modifying their device's network settings to be used as a gateway for internet traffic. Additionally, the User's device acts as a gateway for NightOwl app's Clients, including companies that specialize in web and market research, SEO, brand protection, content delivery, cybersecurity, etc.
•WHEREAS, by installing the Application and agreeing to this Agreement, the User agrees to allow NightOwl app to monetize their internet traffic in return for using NightOwl app.
NOW, THEREFORE, considering the foregoing and the included mutual promises in this document, and for other good and valuable consideration, the reception and sufficiency of which is hereby acknowledged, both Parties hereby agree to the following:
Table of definitions
Application - the latest version of the Application made available by NightOwl app to the User pursuant to this Agreement, along with any software (source code and object code), programs, libraries, tools, APIs, files, data, Application specification, documentation, updates, upgrades, bug fixes, new releases, patches, and new versions of any of the foregoing which may be made available by NightOwl app to the User pursuant to this Agreement.
User - the individual that provides Shared traffic through their devices with NightOwl app (and/or Clients) in exchange for using the NightOwl app's functionality related to light and dark mode on MacOS.
Shared traffic - the internet traffic that the User has shared with NightOwl app (and/or Clients) through the User's device.
Clients - business Clients and associates of NightOwl app that use the Shared traffic for numerous business purposes - gathering data from the web, market analysis, talent acquisition, brand protection, etc.
By installing the Application and agreeing to the terms described in this Agreement, the User becomes a part of the NightOwl app network of Users who share their internet traffic with NightOwl app in exchange for using the NightOwl app's functionality.
Becoming a part of the NightOwl app network confirms that the User shares their internet traffic willingly with NightOwl app and Clients. Clients do not know which specific User is sharing the internet traffic they're using, nor do the User knows which Client is using their internet traffic. The Client requests traffic that can be shared from a particular country (i.e., Germany) or a specific region (i.e., Europe). NightOwl app can either grant or decline these requests based on the quantity, location, and/or functionality options of Users that engage in NightOwl app's network at that time.
In accordance with the above, this also means that it's not possible for all Users to share the exact same amount of traffic with NightOwl app and Clients. The amount of traffic a User can share depends on the demand for the User's traffic.
This also means that NightOwl app retains the right to restrict the sharing of internet traffic of certain Users in case there's a surplus of internet traffic supply from a specific location. This is done to protect the NightOwl app network from overutilization. To ensure the quality of internet traffic delivered to Clients, as well as to maximize the possible profit for Users, NightOwl app limits the number of devices per single IP address to one. NightOwl app may additionally limit the usage of certain IP address types connected to the NightOwl app network. These limitations are subject to change and are always disclosed by NightOwl app.
NightOwl app provides the Application as is. The Application is provided without any kind of warranties, expressed or implied, to the maximum extent permitted by applicable law. The User is accessing and using the Application at their own risk and is solely responsible for their eligibility to use the Application and share their internet traffic. NightOwl app disclaims any and all warranties and representations, expressed or implied. NightOwl app does not guarantee and does not promise any specific results from the use or the inability to use the Application. NightOwl app cannot guarantee that no technical malfunctions or problems with your device will not occur.
When the User is using the Application, their internet service provider's internet traffic, mobile data, and/or other related fees may apply. NightOwl app cannot be held responsible in any circumstances for Shared traffic fees or any other costs the User may incur in accordance with agreements with their internet service provider. The Application use might be prohibited or restricted by the User's service provider or applicable laws. The Application may not be compatible with all service providers' policies and regulations. The User should confirm the ability to use the Application with their service provider.
NightOwl app's website, as well as any and all information provided within the website, is provided as-is. NightOwl app disclaims any and all warranties and representations, express or implied, regarding the completeness, accuracy, reliability and/or availability of any content and/or materials published on the NightOwl app website. The User confirms they understand that NightOwl app will not be responsible for any losses, damages, or injuries resulting from displaying or using content and/or materials published on the NightOwl app website.
In addition to the User's other undertakings established in this Agreement, the User also acknowledges and agrees:
•To not use the Application if their use of the Application is illegal or would otherwise violate any applicable law, rule, or regulation.
•To accept all risks and takes complete responsibility for all activities, damages, and transfers occurring under their account, which are related to their use of the Application, including, but not limited to, sharing of the User's internet traffic.
•That the User is not allowed to reproduce, copy, trade, sell, resell, or exploit in any way for any commercial purposes the Application or any of its parts.
•To only install and use the Application on devices owned by the User and in the Internet networks legally used by the User. Installing and using the Application on a device not owned exclusively by the User or on the Internet network that the User is not legally permitted to use is forbidden and considered a breach of this Agreement.
•That in case NightOwl app becomes aware the User is using the Application in a way that violates this Agreement or any applicable law, the User agrees to immediately stop using the Application and remove it from their devices. NightOwl app preserves the right to prevent the User from accessing the Application in this case.
•That the traffic sent through a single public IP address will be distributed between devices utilizing the same IP address.
•User's failure to meet General obligations listed above or violation of General restrictions listed below may result in User's denial from all and any Application services, User's account suspension, or account removal without any notice.
Unless expressly authorized in written form by NightOwl app, the User will not directly perform nor authorize any third party to perform the following:
•Copy, license, reproduce, distribute, perform publicly, or publicly display any part of the Application, attempt to extract or reverse engineer the Application's source code, claim any ownership right, or trade, sell, resell, transfer, or exploit in any other way for unauthorized commercial purpose any of NightOwl app's property;
•Alter, modify, or create any derivative works of the Application;
•Attempt to interfere with NightOwl app's operation, disrupt any User, host, network, or try to access another User's account, or access the User's own account via any method not established in the Dashboard, website, or this Agreement;
•Attempt to cheat, misinform, defraud, mislead, or deceive NightOwl app in any way
•Upload, e-mail, post, transmit, or make available in any other way, any material containing software viruses or any other computer code, computer programs, or files created to interrupt, destroy, or limit the usability and functionality of any computer hardware, software, or telecommunications equipment;
•Falsely impersonate any person or entity, falsely state or misrepresent themselves, their age, their ability to agree with the terms stated in this Agreement, or their affiliation with any person or entity.
By accepting the terms listed in this Agreement, the User acknowledges and agrees that the Application, website, and Dashboard, including any revisions, modifications, corrections, upgrades, and/or enhancements, accompanying materials, as well as any product systems, processes, or programs, in whatever form, created by NightOwl app for the purpose of providing the Application to the User, are the property of NightOwl app or its licensors, protected under copyright laws and treaties. This property may not be used, copied, or modified in any way without prior written consent from NightOwl app. The User further acknowledges and accepts that all rights and titles, and interest in and to the website, Dashboard, Application, and any other property mentioned above, including associated intellectual property rights (hereinafter - “Intellectual property”), including but not limited to any patents (registered or pending), copyrights, texts, trade secrets, designs, or trademarks, evidenced by, embodied in, and/or in any way attached, connected, or related to the Application, Dashboard, or website, are and will remain owned exclusively by NightOwl app and/or its licensors.
This Agreement does not transfer any right or interest in NightOwl app's Intellectual property to the User, but only a limited, revocable right of usage according to the terms listed in this Agreement. No part of this Agreement constitutes a waiver of NightOwl app's Intellectual property rights under any law. To the extent the User provides feedback to NightOwl app (hereinafter - “Feedback”), NightOwl app shall have exclusive, royalty-free, worldwide, fully paid up, perpetual, irrevocable license to incorporate this Feedback into any NightOwl app's current or future products, services, or technologies, and use it for any purpose, all without compensation to the User and without the User's approval.
The User confirms they understand that the Application is provided solely for their personal, non-commercial use. Provided that the User is eligible to use the Application and agrees with the terms listed in this Agreement, the User is granted a limited, revocable, non-exclusive, and non-assignable license, without any right to sub-license, access, and use the Application, including downloading and installing a copy of the Application to the devices owned and controlled by the User, for the purpose of monetizing Shared traffic. The User may not upload or republish the Application or any of its parts on any internet, intranet, or extranet site or compile or incorporate the information in any database. NightOwl app reserves all rights to Intellectual property (including but not limited to the Application) not expressly granted to the User in this Agreement. Any use of the Application other than specifically described and authorized herein, without NightOwl app's prior written permission, is strictly prohibited and will lead to the termination of the granted license. The license is revocable without notice and with or without cause at any time.
Limitation of liability
In no event will either party be liable or responsible to each other or any other entity for any special, incidental, consequential, or indirect damages, however caused, on any theory of liability (negligence included), and notwithstanding any failure of essential purpose of any limited remedy. NightOwl app's total liability under or arising from this Agreement will be limited to $100 or to the extent permitted by applicable law.
Class action waiver
Where permitted under the applicable law, the User and NightOwl app agree that each may raise claims against the other only in their individual role and not as a plaintiff or a class member in any implied class or representative action. Unless both the User and NightOwl app agree, no judge or arbitrator may consolidate more than one person's claim or preside in any other way over any form of a class proceeding or a representative.
Governing law and dispute resolution
The laws and/or other legal acts of the United States will apply to this Agreement, its form, and interpretation. Unless an alternative dispute resolution plan is agreed between the parties. Parties agree with exclusive jurisdiction of the Courts of the United States in respect of any dispute which may arise out of or under this Agreement.
This Agreement represents the full understanding and consent between the parties regarding the subject matter hereof. It supersedes any and all previous communications, discussions, announcements, and/or previous agreements established between the parties.
“Confidential information” means all non-public material and business-related information, written or oral, whether or not it is marked as such. Confidential information may be disclosed or made available to the User, directly or indirectly, via any means of communication or observation. The User agrees that if they access confidential information, they will not copy, store, print, forward, or collect in any other way the confidential information and shall not disclose the confidential information to anyone.
This Agreement is considered commenced on the date the User confirms they accept the terms of this Agreement as described above and shall continue until termination. Both parties reserve the right to terminate this Agreement at any time. The User may terminate this Agreement by deleting their account and/or Application from their devices.
NightOwl app's failure to exercise or enforce any right or provision from this Agreement will not constitute abandonment of such right or provision in that or any other instances. If a provision of this Argument is deemed unlawful, void, or unenforceable for any reason, that provision will be considered severable from this Agreement without any effect on the validity and enforceability of any of the other provisions. The User may not resell, transfer, or assign any of their rights hereunder. Any effort to do so might result in termination of this Agreement without prior notice. Notwithstanding the foregoing, NightOwl app may assign this Agreement to any affiliate at any time with reasonable prior notice and otherwise as part of a sale of the business.