terms of use
Effective Date: June 1, 2024.
Introduction and Overview.
These Terms of Use (“Terms”) set forth a legally binding agreement between you and Nightwriter LLC (“we”, “our”, or “us”), and govern your use of any online service location that posts a link to these Terms, and all features, content, and other services that we own, control and make available through such online service location (collectively, the “Service”).
PLEASE NOTE THAT THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT. YOU MUST REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ACCESSING OR USING THE WEBSITE.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
By using the Service, you agree to these Terms, and consent to our collection, use and disclosure practices, and other activities as described in our Privacy Policy. If you do not agree and consent, discontinue use of the Service.
2. Service Use.
A. Content.
The Service contains: (i) materials and other items relating to Nightwriter LLC and its products and services, and similar items from our licensors and other third parties, including all chapters, layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Nightwriter LLC; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of Nightwriter LLC or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, Nightwriter LLC grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”) and/or print one copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in Nightwriter LLC’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
C. Restrictions.
You may not use the Service unless you are at least sixteen (16) years old.
You may not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Nightwriter LLC; (iii) harvest any information from the Service or Content; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of or any security measure used by the Service or Content; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.
D. Availability.
Nightwriter LLC may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in Nightwriter LLC’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Nightwriter LLC, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
E. Reservation of Rights.
All rights not expressly granted to you are reserved by Nightwriter LLC and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
Our Service contains content from and hyperlinks to websites, locations, platforms, and services operated and owned by third parties (“Third Party Services”). We may also integrate third party technologies into our Service and host our content on Third Party Services. These Third Party Services are not owned, controlled, or operated by us, and you acknowledge and agree that we are not responsible or liable for the information, content, products, technologies, or services on or available from such Third Party Services, or for the results to be obtained from using them. If you choose to access, transact with, or otherwise interact with any such Third Party Services, you do so at your own risk. For more information on Third Party Services, see our Privacy Policy.
3. Third Party Services.
A. Wireless Device Features.
The Service may offer features that are available to you via your wireless Device including the ability to access the Service’s features and upload content to the Service. By using the Service, you agree that Nightwriter LLC may collect information as described in our Privacy Policy, which includes information related to your use of the Services via your wireless Device, and that Nightwriter LLC may change, alter, or modify the settings or configurations on your Device in order to allow for or optimize your use of the Service. Data rates and other carrier fees may apply.
B. Location-Based Features.
If you have location-based features on your wireless Device, you acknowledge that your Device location will be tracked and shared consistent with the Privacy Policy. You can terminate location tracking by us by adjusting the permissions in your Device or uninstalling our app. Location-based features are used at your own risk and location data may not be accurate.
C. Emails.
You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us here with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Nightwriter LLC’s ongoing business relations.
4. Service Features.
5. Dispute Resolution & Agreement.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. Dispute Resolution Overview.
You and Nightwriter LLC agree that any dispute relating to your visit to, or use of, this website, the purchase of any books or other products, or otherwise related to these Terms (collectively, “Disputes”) shall be submitted to small claims court or confidential, binding arbitration, except as specified below, and shall be governed exclusively by the laws of the State of Kansas, excluding its conflict of law provisions.
B. Class Action Waiver and Agreement.
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, you and Nightwriter LLC agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration (the “Agreement”). References to “Nightwriter LLC”, “you”, “we”, and “us” in this Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates; those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises.
This Agreement is intended to be broadly interpreted. It includes, but is not limited to:
Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Kansas: (i) any dispute, controversy, or claim relating to or contesting Nightwriter LLC’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (ii) or any legal action by Nightwriter LLC against a non-consumer.
Either party may elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.
(2) Class Action and Jury Trial Waiver: You and Nightwriter LLC agree that, to the fullest extent permitted by law, each party may bring claims (whether in small claims court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding, except as specified above. This means that you and Nightwriter LLC may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Nightwriter LLC may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party, except as specified above.
Notwithstanding the foregoing, you or Nightwriter LLC may participate in a class-wide settlement.
To the fullest extent permitted by law, you and Nightwriter LLC waive any right to a jury trial.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION OR SMALL CLAIMS COURT. You expressly agree to refrain from bringing or joining any claim in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Agreement shall survive termination of this Agreement.
C. Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures.
You and Nightwriter LLC agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Nightwriter LLC must be emailed to privacy@lexynight.com (“Notice Address”). Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of this website, including whether you have created an account with or receive any emails associated with this website and/or if you have made a purchase from this website, and if so, the date(s) of the purchase(s); (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Nightwriter LLC have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
D. Arbitration Procedures.
The arbitration shall be initiated through National Arbitration and Mediation(“NAM”) and governed by NAM’s Comprehensive Dispute Resolution Rules and Procedures (“NAM Rules”). If there is a conflict between NAM Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. If you have a question about the arbitration process or to obtain a current copy of the Comprehensive Dispute Resolution Rules and Procedures and/or fee schedule, NAM’s Commercial Dept. can be contacted at (800) 358-2550 or by NAM’s website at www.namadr.com.
You and Nightwriter LLC agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in subsection (C) above, and that they are a party to the Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Agreement or whether a dispute can or must be brought in arbitration, which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable JAMS Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. For residents outside the United States, arbitration shall be initiated in Kansas. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and Nightwriter LLC and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and Nightwriter LLC agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Payment of all arbitration fees (the fees imposed by the arbitration administer, including filing, administration and arbitrator fees) will be governed by the NAM Rules.
E. Confidentiality.
Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
F. Offer of Settlement.
In any arbitration between you and Nightwriter LLC, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
G. Requirement of Individualized Relief.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND NIGHTWRITER LLC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and Nightwriter LLC agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Nightwriter LLC will be subject to this Agreement and not to any prior arbitration agreement you had with Nightwriter LLC, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Agreement amends any prior arbitration agreement you had with Nightwriter LLC, including with respect to claims that arose before this or any prior arbitration agreement.
H. Opt Out of Future Changes.
Notwithstanding any provision to the contrary, if Nightwriter LLC makes any future change to this Agreement (other than a change to the Notice Address), you may reject any such change by sending Nightwriter LLC an email to privacy@lexynight.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) and, if applicable, the username or email address associated with any potential account on the Nightwriter LLC website. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Agreement. This is not an opt out of arbitration altogether.
I. Opt-Out of Agreement to Arbitrate.
You can decline this Agreement to Arbitrate by emailing Nightwriter LLC at privacy@lexynight.com and providing the requested information as follows: (1) Your Name; (2) the URL of the Terms and Agreement to Arbitrate Disputes; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms by using the Service.
J. Severability.
If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.
A. Dispute Resolution Overview.
You and Nightwriter LLC agree that any dispute relating to your visit to, or use of, this website, the purchase of any books or other products, or otherwise related to these Terms (collectively, “Disputes”) shall be submitted to small claims court or confidential, binding arbitration, except as specified below, and shall be governed exclusively by the laws of the State of Kansas, excluding its conflict of law provisions.
B. Class Action Waiver and Agreement.
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, you and Nightwriter LLC agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration (the “Agreement”). References to “Nightwriter LLC”, “you”, “we”, and “us” in this Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates; those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises.
This Agreement is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;
- Claims that arose before this or any prior Agreement; and
- Claims for mental or emotional distress or injury not arising out of physical bodily injury.
Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Kansas: (i) any dispute, controversy, or claim relating to or contesting Nightwriter LLC’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (ii) or any legal action by Nightwriter LLC against a non-consumer.
Either party may elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.
(2) Class Action and Jury Trial Waiver: You and Nightwriter LLC agree that, to the fullest extent permitted by law, each party may bring claims (whether in small claims court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding, except as specified above. This means that you and Nightwriter LLC may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Nightwriter LLC may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party, except as specified above.
Notwithstanding the foregoing, you or Nightwriter LLC may participate in a class-wide settlement.
To the fullest extent permitted by law, you and Nightwriter LLC waive any right to a jury trial.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION OR SMALL CLAIMS COURT. You expressly agree to refrain from bringing or joining any claim in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Agreement shall survive termination of this Agreement.
C. Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures.
You and Nightwriter LLC agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Nightwriter LLC must be emailed to privacy@lexynight.com (“Notice Address”). Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of this website, including whether you have created an account with or receive any emails associated with this website and/or if you have made a purchase from this website, and if so, the date(s) of the purchase(s); (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Nightwriter LLC have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
D. Arbitration Procedures.
The arbitration shall be initiated through National Arbitration and Mediation(“NAM”) and governed by NAM’s Comprehensive Dispute Resolution Rules and Procedures (“NAM Rules”). If there is a conflict between NAM Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. If you have a question about the arbitration process or to obtain a current copy of the Comprehensive Dispute Resolution Rules and Procedures and/or fee schedule, NAM’s Commercial Dept. can be contacted at (800) 358-2550 or by NAM’s website at www.namadr.com.
You and Nightwriter LLC agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in subsection (C) above, and that they are a party to the Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Agreement or whether a dispute can or must be brought in arbitration, which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable JAMS Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. For residents outside the United States, arbitration shall be initiated in Kansas. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and Nightwriter LLC and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and Nightwriter LLC agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Payment of all arbitration fees (the fees imposed by the arbitration administer, including filing, administration and arbitrator fees) will be governed by the NAM Rules.
E. Confidentiality.
Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
F. Offer of Settlement.
In any arbitration between you and Nightwriter LLC, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
G. Requirement of Individualized Relief.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND NIGHTWRITER LLC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and Nightwriter LLC agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Nightwriter LLC will be subject to this Agreement and not to any prior arbitration agreement you had with Nightwriter LLC, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Agreement amends any prior arbitration agreement you had with Nightwriter LLC, including with respect to claims that arose before this or any prior arbitration agreement.
H. Opt Out of Future Changes.
Notwithstanding any provision to the contrary, if Nightwriter LLC makes any future change to this Agreement (other than a change to the Notice Address), you may reject any such change by sending Nightwriter LLC an email to privacy@lexynight.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) and, if applicable, the username or email address associated with any potential account on the Nightwriter LLC website. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Agreement. This is not an opt out of arbitration altogether.
I. Opt-Out of Agreement to Arbitrate.
You can decline this Agreement to Arbitrate by emailing Nightwriter LLC at privacy@lexynight.com and providing the requested information as follows: (1) Your Name; (2) the URL of the Terms and Agreement to Arbitrate Disputes; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms by using the Service.
J. Severability.
If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.
THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER NIGHTWRITER LLC NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "NIGHTWRITER LLC PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM NIGHTWRITER LLC INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
6. Disclaimer of Representations and Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE NIGHTWRITER LLC PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM NIGHTWRITER LLC INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
7. Limitations of Our Liability.
You agree to defend, indemnify and hold harmless the Nightwriter LLC Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your use or misuse of the Service; (iii) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (iv) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (v) your use of a Third Party Service; or (vi) any misrepresentation made by you. Nightwriter LLC reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Nightwriter LLC’s defense of any claim. You will not in any event settle any claim without the prior written consent of Nightwriter LLC.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
8. Indemnification.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY NIGHTWRITER LLC OR A LICENSOR OF NIGHTWRITER LLC.
9. Waiver of Injunctive or other Equitable Relief.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
10. Updates to Terms.
A. Consent or Approval.
No Nightwriter LLC consent or approval may be deemed to have been granted by Nightwriter LLC without being in writing and signed by an officer of Nightwriter LLC.
B. Survival.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), Copyright Infringement, Customer Support, Third Party Services, Service Features, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
C. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Nightwriter LLC may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Nightwriter LLC.
D. Complete Agreement; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Nightwriter LLC in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
E. International Issues.
You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
F. Investigations; Cooperation with Law Enforcement.
Nightwriter LLC reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Nightwriter LLC may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
G. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
11.General Provisions.
