Terms
Terms of Service
Last Updated: 02/14/2024.
Welcome to Night Flight Plus (+) and Night Flight, which is owned and operated by Night Flight Inc. (collectively, “Night Flight Plus,” “we,” “us,” or “our”), which provides our website accessible at nightflightplus.com and nightflight.com (together, the "Site") through which users can view films, television programs, and original Night Flight TV Episodes (the "Services"). Please read the following important terms and conditions (“Terms of Use”) carefully before using our Services as they affect your legal rights including, but not limited to, waivers of rights, limitation of liability and your indemnity to us. These Terms of Use and all policies referenced in this document or elsewhere on the Site, including our Privacy Policy (located at https://www.nightflightplus.com/privacy_policy) , which are incorporated herein by reference, govern your access to and use of the Site and Services.
YOUR USE OF THE SITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THE FOLLOWING TERMS OF USE AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN OUR PRIVACY POLICY. IF YOU DO NOT ACCEPT THESE TERMS OF USE OR THE TERMS OF OUR PRIVACY POLICY, DO NOT USE THE WEBSITE. PLEASE NOTE THAT THESE TERMS OF USE SET FORTH IMPORTANT DETAILS ABOUT YOUR RELATIONSHIP WITH NIGHT FLIGHT PLUS, INCLUDING THE RIGHTS YOU GRANT TO US, RESTRICTIONS ON HOW YOU CAN USE THIS SITE, AND AN AGREEMENT TO RESOLVE DISPUTES WITHOUT RESORT TO CLASS ACTION LITIGATION OR A JURY TRIAL.
MANDATORY INFORMAL PRE-SUIT DISPUTE RESOLUTION AND CLASS ACTION WAIVER: PLEASE NOTE THAT THESE TERMS OF USE REQUIRE THAT DISPUTES BE RESOLVED THROUGH MANDATORY INFORMAL PRE-SUIT DISPUTE RESOLUTION, PRECEDENT TO FILING ANY LAWSUIT, THAT YOU WAIVE ANY RIGHT TO A JURY TRIAL, AND THAT YOU WAIVE ANY RIGHT TO BRING CLASS ACTIONS AGAINST US. PLEASE REVIEW THESE TERMS OF USE FOR COMPLETE DETAILS REGARDING THE DISPUTE RESOLUTION PROCESS.
These Terms of Use are a legal agreement between you and Night Flight Plus and apply to you whether you are a Night Flight Plus Member (defined below) or a visitor just browsing the Site (collectively, "Night Flight Plus Users," “you,” “your”). These Terms of Use limit Night Flight Plus's liability and obligations to you, grant us certain rights, and allow us to change, suspend, or terminate your access to and use of the Site and Services.
YOU UNDERSTAND THAT BY USING THE SITE, SERVICES OR YOUR NIGHT FLIGHT PLUS ACCOUNT OR BY POSTING ANY CONTENT ON THE SITE OR VIA THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS OF USE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU AGREE TO THESE TERMS OF USE ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS OF USE AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS.
Eligibility and Registration
In order to access certain features of the Site and Services, and to post any content on the Site or via the Services, you will have to create a Night Flight Plus account and become a Night Flight Plus member ("Night Flight Plus Member"). To become a Night Flight Plus Member you must be at least 13 years of age. When you register with Night Flight Plus and set up your Night Flight Plus account, you must provide Night Flight Plus with accurate and complete information. You agree to promptly update your Night Flight Plus account information with any new information that may affect the operation of your Night Flight Plus account. You authorize Night Flight Plus, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Night Flight Plus account information. Our Privacy Policy contains information about our policies and procedures regarding the collection, use and disclosure of information we receive from Night Flight Plus Users. You will not use false identities or impersonate any other person or use a username or password that you are not authorized to use. Night Flight Plus reserves the right to require you to change your username for any reason and may do so at any time. You are responsible for safeguarding and maintaining the confidentiality of your username, password and corresponding Night Flight Plus account information. You agree not to disclose your password to anyone. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Night Flight Plus account, whether or not you have authorized such activities or actions. You agree to immediately notify Night Flight Plus of any unauthorized use of your username, password or Night Flight Plus account.
Fees and Billing
Night Flight Plus Members may be able to access and/or purchase certain premium content ("Premium Content") through the Site or Services in a few different ways including: (i) paying a monthly or yearly subscription fee for access to all Premium Content for the applicable time period ("Subscription Fee"); or (ii) paying a one-time fee to stream or download certain Premium Content for a limited or unlimited viewing ("Transactional Fee"). Fees are refundable in Night Flight Plus's sole discretion. There is no prorated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid (if any), as of termination. You hereby authorize Night Flight Plus to collect fees by charging the credit card you provide to us as part of your Night Flight Plus account information.
By providing a credit card or other payment method accepted by Night Flight Plus for your Subscription Fee, you are expressly agreeing that we are authorized to charge you a Subscription Fee, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of your subscription. If you want to use a different payment service than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your payment information by logging in on the Site and clicking on “Account” under your name. When you provide a payment method to access a subscription, including in connection with a free trial offer, if offered, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is a standard practice. We do not charge you in connection with this authorization hold. If your payment method expires and you do not edit your payment method information or cancel your account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts.
As used in these Terms, "billing" shall indicate either a charge or debit, as applicable, against your payment method. The Subscription Fee will be billed at the beginning of your subscription or expiration of your free trial period, if any, whichever is earlier, and on each monthly or yearly renewal date thereafter, as applicable, unless and until you cancel your subscription or account, or service is otherwise suspended or discontinued pursuant to these Terms of Use. To see the commencement date for your next renewal period, log in on the Site and click on “Account” under your name.
We automatically bill you each month or year, as applicable, on the calendar day corresponding to the commencement of your subscription (each such month, a "Monthly Period" or “Yearly Period”). In the event your Monthly Period subscription began on a day not contained in a given month, we bill your payment method on the last day of such month. For example, if you became a Monthly Period paying subscriber on January 31, your payment method would next be billed on February 28. If you change your payment method, this could result in changing the calendar day upon which you are billed. You acknowledge that the amount billed each Monthly Period or Yearly Period may vary due to promotional offers, changes in your subscription, and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts. If Night Flight Plus changes the Subscription Fee or other charges for your subscription, we will give you advance notice of these changes by email.
Your subscription will continue in effect on a month-to-month or year-to-year basis unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these Terms of Use. You must cancel your subscription before your monthly or yearly renewal date in order to avoid the next billing. We will bill the Monthly Period or Yearly Period Subscription Fee plus any applicable taxes to the payment method you provide to us during registration (or to a different payment method if you change your account information). If you cancel your subscription, cancellation will be effective at the end of the current Monthly Period or Yearly Period - this means that you will have continued access to your subscription for the remainder of that period, but you will not receive a refund. You can cancel your subscription by logging into your Night Flight Plus Account on the Site and clicking "Cancel Subscription."
Third Party Platforms
If you have accessed Night Flight Plus from a third party platform, please note that the Third Party is not responsible for Night Flight Plus or its content and such the Third Party has no obligation to provide support and maintenance with respect to the Night Flight Plus. The terms of your subscription and billing may also be governed in addition by the separate policies and terms of use applicable to such Third Party platform or store.
Proprietary Rights and Licenses
(a) Definitions. Certain content and materials are made available through the Site and Services, including the following (collectively, the “Content”):
"Night Flight Plus Content" means, collectively, the text, data, graphics, images, Night Flight Plus trademarks and logos and other content (including Licensed Content) made available through the Site and Services, excluding User Submissions.
"Licensed Content" means any content (including any audio or video content) provided to Night Flight Plus by its third party content partners (which may include Content or “download to rent” or "download to own" content) made available through the Site and Services.
"User Submissions" means, collectively, the text, data, communications, bulletin board messages, chat, graphics, images, photos, audio or video files and other content and information which Night Flight Plus Members post, upload and otherwise submit to the Site or Services, including, without limitation, in their profile page, excluding Comments and Feedback (as defined herein).
(b) User Submissions. You retain all rights in your User Submissions. However, by uploading, posting, submitting or otherwise transmitting any User Submissions on or to the Site or Services, you hereby grant to Night Flight Plus a non-exclusive, worldwide, royalty-free, sub-licensable, perpetual and irrevocable right and license to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform and transmit your User Submissions in connection with the Services and Night Flight Plus's (and its successors) business including, without limitation, for promotion and redistributing part or all of the Services (and derivative works thereof), in any media formats and through any media channels. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Night Flight Plus. You acknowledge and agree that your posting of User Submissions will comply with our Copyright and IP Policy as set forth in Section 4 below. You acknowledge and agree that Night Flight Plus may, at its option, reclassify or recategorize any User Submissions and establish limits concerning User Submissions, including, without limitation, the maximum number of days that User Submissions will remain available via the Services or on the Site, the maximum size of any files that may be stored on or uploaded to the Site or Services and the maximum disk space that may be allotted to you for the storage of User Submissions on Night Flight Plus's servers. Night Flight Plus will have no responsibility or liability for maintaining copies of User Submissions on our servers, and you are solely responsible for creating back-ups of your User Submissions.
(c) Night Flight Plus Content. (i) Night Flight Plus and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, Services, Night Flight Plus Content and any other content made available through the Site or Services contained therein, other than your User Submissions. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, Night Flight Plus Content, any other content made available through the Site or Services or related products and services, and except as explicitly described herein, you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, Services, Night Flight Plus Content or any other content made available through the Site or Services (other than your User Submissions).
(d) Reminder Regarding Content. For the avoidance of doubt with respect to any Content that you purchase or access via the Site or Service, such content is only made available for personal and non-commercial purposes. The delivery of any Content to you neither transfers any commercial or promotional use rights in the content to you nor does it constitute a grant or waiver of any rights of the copyright owners in any audio or video content, sound recording, underlying musical composition, or artwork embodied in the content.
(e) Disclaimer. Night Flight Plus does not guarantee that any Content will be made available through the Site or Services, continuously or at all. WHILE NIGHT FLIGHT PLUS IS UNDER NO OBLIGATION TO DO SO, NIGHT FLIGHT PLUS RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM THE SITE OR SERVICES WITHOUT NOTICE, AND FOR ANY REASON NIGHT FLIGHT PLUS DEEMS SUFFICIENT. Night Flight Plus does not have any obligation to monitor the User Submissions that are uploaded, posted, submitted or otherwise transmitted using the Site or Services, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or anything said, depicted or written by Night Flight Plus Members, including, without limitation, any information obtained by using the Site or Services. Night Flight Plus does not endorse any User Submissions or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Night Flight Plus with respect thereto.
Copyrighted Materials
You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.
If you know or suspect that any of the materials on the Site have been used or copied in a way that constitutes copyright infringement, please send notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The designated agent for notice of copyright infringement claims may be reached as follows: The Law Office of Allen Jacobi 11077 Biscayne Boulevard Suite 200 Miami, Florida 33161 (305) 893-5644 allen@allenjacobilaw.com
The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed. All other inquiries, such as questions related to items available for purchase on the Site and requests or concerns regarding improper content, will not receive a response through this process.
Night Flight Plus may terminate the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders.
Termination or Suspension of the Site or Services & Modification of these Terms of Use
Night Flight Plus reserves the right in its sole discretion, at any time, to modify, discontinue or terminate the Site or Services or to modify or terminate these Terms of Use without advance notice. Modifications to these Terms of Use or any policies will be posted on the Site or made in compliance with any notice requirements set forth in these Terms of Use. If any modification is not acceptable to you, your only recourse is to cease using the Site and Services. By continuing to use the Site or Services after Night Flight Plus has posted any modifications on the Site or provided any legally required notices, you accept and agree to be bound by the modifications. Without limiting other remedies, Night Flight Plus may at any time suspend or terminate your Night Flight Plus account and refuse to provide access to the Site or Services. In addition, Night Flight Plus may notify authorities or take any actions it deems appropriate, without notice to you, if Night Flight Plus suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Use or any policies or rules established by Night Flight Plus; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harassment, abuse or disruption for you, Night Flight Plus Users, Night Flight Plus or any other third parties or the Site or Services. You may terminate your Night Flight Plus account at any time and for any reason by selecting this option on your account information page. Upon any termination by a Night Flight Plus Member, the related account will no longer be accessible. After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Use will immediately cease. Night Flight Plus will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE SITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Night Flight Plus will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party. Any suspension, termination or cancellation will not affect your obligations to Night Flight Plus under these Terms of Use (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
Interactions between Night Flight Plus Users
You are solely responsible for your interactions (including any disputes) with other Night Flight Plus Users. You understand that Night Flight Plus does not in any way screen Night Flight Plus Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services and disclosing personal information to other Night Flight Plus Users. You agree to take reasonable precautions in all interactions with other Night Flight Plus Users, particularly if you decide to meet a Night Flight Plus User offline, or in person. Your use of the Site, Services, and any Content made available through the Site or Services is at your sole risk and discretion and Night Flight Plus hereby disclaims any and all liability to you or any third party relating thereto. Night Flight Plus reserves the right to contact Night Flight Plus Members, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Use. You will cooperate fully with Night Flight Plus to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting authorized Night Flight Plus representatives access to any password-protected portions of your Night Flight Plus account.
Obligations for Night Flight Plus Users
The Site and Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site or Services: (i) Upload, post, submit or otherwise transmit any User Submissions to which you do not have the lawful right to copy, transmit and display (including any User Submissions that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Submission); (ii) Upload, post, submit or otherwise transmit any User Submissions for which you do not have the consent or permission of each identifiable person in the User Submissions to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Submission and such consent or permission is necessary; or (iii) Upload, post, submit or otherwise transmit any User Submissions that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) Upload, post, submit or otherwise transmit any User Submissions that are unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains any pornography, erotica, child pornography or child erotica, is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech or is otherwise objectionable in the opinion of Night Flight Plus; (v) Circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any content; (vi) Use any meta tags or other hidden text or metadata utilizing a Night Flight Plus trademark or logo, URL or product name; (vii) Upload, post, submit or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation; (viii) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information; (ix) Upload, post, submit or otherwise transmit any User Submissions that contain software viruses or any other computer code, files, or programs designed to (a) interrupt, destroy or limit the functionality of any computer software; or (b) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the Site; (x) Upload, post, submit or otherwise transmit any User Submissions that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Submissions that is unrelated to the immediate, aesthetic nature of the User Submissions; (xi) Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available at the Site, servers or networks connected to the Site, Services or the technical delivery systems of Night Flight Plus's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services; (xii) Attempt to probe, scan or test the vulnerability of any Night Flight Plus system or network or breach or impair or circumvent any security or authentication measures protecting the Site or Services; (xiii) Attempt to or actually decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services; (xiv) Attempt to or actually access, search or meta-search the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Night Flight Plus or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera), including without limitation any software that sends queries to the Site to determine how a website or web page ranks; (xv) Collect or store personal data about other Night Flight Plus Users without their express permission; Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud; (xvi) Use the Site or Services in any manner not permitted by these Terms of Use; or (xvii) Encourage or instruct any other individual to do any of the foregoing or to violate any term of these Terms of Use.
Sweepstakes and Contests
(a) Night Flight Plus Promotions. Night Flight Plus may operate sweepstakes, contests and similar promotions (collectively, "Promotions") through the Site. You should carefully review the rules (e.g., the "Official Rules") of each Promotion in which you participate through the Site, as they may contain additional important information about Night Flight Plus's rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.
Ratings and Comments and Feedback
Comments. You can rate and make comments about content made available through the Site or Services ("Comments"). Night Flight Plus advises you to exercise caution and good judgment when leaving such Comments. Once you complete and submit your Comments to the Site or Services you will not be able to go back and edit your Comments. You should also be aware that you could be held legally responsible for damages to someone's reputation if your Comments are deemed to be defamatory. Night Flight Plus may, but is under no obligation to, monitor or censor Comments and disclaims any and all liability relating thereto. Notwithstanding the foregoing, Night Flight Plus does reserve the right, in its sole discretion, to remove any Comments that it deems to be improper, inappropriate or inconsistent with the online activities that are permitted under these Terms of Use.
Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services ("Feedback"). You may submit Feedback via the Contact Us page. You acknowledge and agree that all Comments and all Feedback will be the sole and exclusive property of Night Flight Plus and you hereby assign and agree to assign all rights, title and interest you have in such Comments and Feedback to Night Flight Plus together with all intellectual property rights therein.
Indemnification
You agree to defend, indemnify and hold Night Flight Plus and Night Flight and its affiliates, subsidiaries and distribution partners and their respective officers, directors, employees and/or agents harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with: (i) your access to or use of the Site, Services, Night Flight Plus Content, or User Submissions; (ii) your violation of these Terms of Use; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that any content you posted to the Site or via the Services (including without limitation your User Submissions) caused damage to a third party, including without limitation claims that your User Submissions are infringing.
Disclaimer
THE SITE, SERVICES, AND CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. NIGHT FLIGHT PLUS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES, AND CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, NIGHT FLIGHT PLUS MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE, SERVICES, NIGHT FLIGHT PLUS CONTENT OR ANY OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL NIGHT FLIGHT PLUS OR ITS AFFILIATES, SUBSIDIARIES, PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE, SERVICES, OR CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES INCLUDING, WITHOUT LIMITATION, INJURY OR DAMAGES RESULTING FROM THE CONDUCT OF ANY NIGHT FLIGHT PLUS USER, ONLINE OR OFFLINE, WHETHER OR NOT NIGHT FLIGHT PLUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NIGHT FLIGHT PLUS'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF USE WILL NOT EXCEED $50. NIGHT FLIGHT PLUS WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATING TO THE SITE, SERVICES OR THE SCHEDULED OR UNSCHEDULED SERVICE INTERRUPTIONS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Force Majeure
Night Flight Plus will not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, failure of the internet or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Night Flight Plus infrastructure or connectivity to the internet or failure at an Night Flight Plus co-location facility (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Night Flight Plus will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and for such further period of time that Night Flight Plus may reasonably require to recover from the effects of such Force Majeure Event.
Relationship of the Parties
Notwithstanding any provision hereof, for all purposes of these Terms of Use each party will be independent and act independently and not as a contractor, partner, joint venture, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract.
Notice; Consent to Electronic Notice
You consent to the use of (a) electronic means to complete these Terms of Use and to deliver any notices pursuant to these Terms of Use and (b) electronic records to store information related to these Terms of Use or your use of the Site or Services. Any notice or other communication to be given hereunder will be in writing and given (x) by Night Flight Plus via email (in each case to the address that you provide to register your account), (y) a posting on the Site or (z) by you via email to info@nightflight.com, with a copy to admin@nightflightplus.com or to such other addresses as Night Flight Plus may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
Links to other Websites
The Site or Services may provide links to websites other than NightFlightPlus.com. Such links are provided for reference only, and Night Flight Plus neither controls such websites nor endorses any of the material on any such websites or any association with their operators. Night Flight Plus is not responsible for the activities or such sites, and has no liability to you for any harm, injuries or losses you might suffer as a result of using or accessing such websites.
Dispute Resolution and Class Action Waiver
THE PROCEDURES AND OTHER TERMS SET FORTH IN THIS SECTION APPLY TO ANY AND ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND NIGHT FLIGHT PLUS OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES, REGARDLESS OF WHEN SUCH CLAIM AROSE (EACH, A “CLAIM”), INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF OR RELATING TO THE SITE; THE USE OR ACCESS THEREOF; THESE TERMS OF USE; THE SERVICES; OUR ADVERTISING; AND ANY OTHER PRODUCTS, SERVICES, MATERIALS, PROGRAMS OR OTHER FEATURES OFFERED, ADVERTISED, MARKETED, PROVIDED AND/OR SOLD BY US.
A. Mandatory Information Pre-Suit Dispute Resolution
Night Flight Plus values our customers and seeks to resolve disputes informally where possible. Before filing any lawsuit relating to a Claim, you agree to first send a detailed notice (“Notice”) to Night Flight Plus by email at nightflightplus@gmail.com. Your Notice must contain all of the following information: (1) your full name; (2) your address; (3) your telephone number; (4) your email address; (5) information sufficient for Night Flight Plus to identify any transaction and/or account at issue (e.g., your account number, subscription confirmation communication, etc.); and (6) a detailed description of your Claim(s), the nature and basis of your Claim(s), and the nature and basis of the relief you are seeking with a calculation for it. You must personally sign this Notice.
Likewise, Night Flight Plus agrees that if we have a dispute with you, we will first send a detailed Notice to your e-mail address on file with us. Night Flight Plus’s Notice will likewise set forth (1) information sufficient for you to identify any transaction at issue, and (2) a detailed description of our dispute, the nature and basis of our claim(s), and the nature and basis of the relief we are seeking with a calculation for it.
You and Night Flight Plus agree to negotiate in good faith, for a period of at least 60 days from the date of the Notice, in an effort to swiftly resolve it to your satisfaction without the need for a formal proceeding. Should Night Flight Plus request a telephone conference with you in an effort to resolve your dispute as part of this informal process, you agree to personally participate (with your counsel if you are represented). Compliance with and completion of this mandatory informal dispute resolution process is a condition precedent to filing any lawsuit. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this process. A court shall have the authority to enjoin the filing of any lawsuit concerning a Claim without first providing a Notice or otherwise participating in good faith in this informal dispute resolution process.
B. No Class Actions or Jury Trials
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL CLAIMS WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION OR REPRESENTATIVE ACTION. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS/CONSUMERS OR BRING OR PARTICIPATE IN, AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, ANY LAWSUIT OR OTHER DISPUTE RESOLUTION PROCEDURE. YOU AND WE EXPRESSLY WAIVE THEIR RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
ADDITIONALLY, YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT YOU OR WE HAVE TO A JURY TRIAL.
Miscellaneous
In the event that any provision in these Terms of Use is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of these Terms of Use will not be deemed a waiver of such right or provision. You may not assign or transfer these Terms of Use (by operation of law or otherwise) without the prior written consent of Night Flight Plus and any prohibited assignment will be null and void. Night Flight Plus may assign these Terms of Use or any rights hereunder without your consent. These Terms of Use will be governed by and interpreted in accordance with the laws of the State of Florida excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under these Terms of Use will be brought exclusively in courts located in Miami, Florida and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. You agree that these Terms of Use and the rules, restrictions and policies contained herein, and Night Flight Plus's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Night Flight Plus. These Terms of Use together with the rules and policies of Night Flight Plus incorporated herein by reference constitute the entire agreement between Night Flight Plus and you with respect to the subject matter of these Terms of Use.
Questions
If you have questions about these Terms of Use or would like to request a copy of these Terms of Use or any other records relating to these Terms of Use or your use of the Site and Services, please contact Night Flight Plus by using our Contact Page, email us at nightflightplus@gmail.com or call 310-714-0800.
Last Updated: 02/14/2024.
Welcome to Night Flight Plus (+) and Night Flight, which is owned and operated by Night Flight Inc. (collectively, “Night Flight Plus,” “we,” “us,” or “our”), which provides our website accessible at nightflightplus.com and nightflight.com (together, the "Site") through which users can view films, television programs, and original Night Flight TV Episodes (the "Services"). Please read the following important terms and conditions (“Terms of Use”) carefully before using our Services as they affect your legal rights including, but not limited to, waivers of rights, limitation of liability and your indemnity to us. These Terms of Use and all policies referenced in this document or elsewhere on the Site, including our Privacy Policy (located at https://www.nightflightplus.com/privacy_policy) , which are incorporated herein by reference, govern your access to and use of the Site and Services.
YOUR USE OF THE SITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THE FOLLOWING TERMS OF USE AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN OUR PRIVACY POLICY. IF YOU DO NOT ACCEPT THESE TERMS OF USE OR THE TERMS OF OUR PRIVACY POLICY, DO NOT USE THE WEBSITE. PLEASE NOTE THAT THESE TERMS OF USE SET FORTH IMPORTANT DETAILS ABOUT YOUR RELATIONSHIP WITH NIGHT FLIGHT PLUS, INCLUDING THE RIGHTS YOU GRANT TO US, RESTRICTIONS ON HOW YOU CAN USE THIS SITE, AND AN AGREEMENT TO RESOLVE DISPUTES WITHOUT RESORT TO CLASS ACTION LITIGATION OR A JURY TRIAL.
MANDATORY INFORMAL PRE-SUIT DISPUTE RESOLUTION AND CLASS ACTION WAIVER: PLEASE NOTE THAT THESE TERMS OF USE REQUIRE THAT DISPUTES BE RESOLVED THROUGH MANDATORY INFORMAL PRE-SUIT DISPUTE RESOLUTION, PRECEDENT TO FILING ANY LAWSUIT, THAT YOU WAIVE ANY RIGHT TO A JURY TRIAL, AND THAT YOU WAIVE ANY RIGHT TO BRING CLASS ACTIONS AGAINST US. PLEASE REVIEW THESE TERMS OF USE FOR COMPLETE DETAILS REGARDING THE DISPUTE RESOLUTION PROCESS.
These Terms of Use are a legal agreement between you and Night Flight Plus and apply to you whether you are a Night Flight Plus Member (defined below) or a visitor just browsing the Site (collectively, "Night Flight Plus Users," “you,” “your”). These Terms of Use limit Night Flight Plus's liability and obligations to you, grant us certain rights, and allow us to change, suspend, or terminate your access to and use of the Site and Services.
YOU UNDERSTAND THAT BY USING THE SITE, SERVICES OR YOUR NIGHT FLIGHT PLUS ACCOUNT OR BY POSTING ANY CONTENT ON THE SITE OR VIA THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS OF USE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU AGREE TO THESE TERMS OF USE ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS OF USE AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS.
Eligibility and Registration
In order to access certain features of the Site and Services, and to post any content on the Site or via the Services, you will have to create a Night Flight Plus account and become a Night Flight Plus member ("Night Flight Plus Member"). To become a Night Flight Plus Member you must be at least 13 years of age. When you register with Night Flight Plus and set up your Night Flight Plus account, you must provide Night Flight Plus with accurate and complete information. You agree to promptly update your Night Flight Plus account information with any new information that may affect the operation of your Night Flight Plus account. You authorize Night Flight Plus, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Night Flight Plus account information. Our Privacy Policy contains information about our policies and procedures regarding the collection, use and disclosure of information we receive from Night Flight Plus Users. You will not use false identities or impersonate any other person or use a username or password that you are not authorized to use. Night Flight Plus reserves the right to require you to change your username for any reason and may do so at any time. You are responsible for safeguarding and maintaining the confidentiality of your username, password and corresponding Night Flight Plus account information. You agree not to disclose your password to anyone. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Night Flight Plus account, whether or not you have authorized such activities or actions. You agree to immediately notify Night Flight Plus of any unauthorized use of your username, password or Night Flight Plus account.
Fees and Billing
Night Flight Plus Members may be able to access and/or purchase certain premium content ("Premium Content") through the Site or Services in a few different ways including: (i) paying a monthly or yearly subscription fee for access to all Premium Content for the applicable time period ("Subscription Fee"); or (ii) paying a one-time fee to stream or download certain Premium Content for a limited or unlimited viewing ("Transactional Fee"). Fees are refundable in Night Flight Plus's sole discretion. There is no prorated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid (if any), as of termination. You hereby authorize Night Flight Plus to collect fees by charging the credit card you provide to us as part of your Night Flight Plus account information.
By providing a credit card or other payment method accepted by Night Flight Plus for your Subscription Fee, you are expressly agreeing that we are authorized to charge you a Subscription Fee, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of your subscription. If you want to use a different payment service than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your payment information by logging in on the Site and clicking on “Account” under your name. When you provide a payment method to access a subscription, including in connection with a free trial offer, if offered, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is a standard practice. We do not charge you in connection with this authorization hold. If your payment method expires and you do not edit your payment method information or cancel your account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts.
As used in these Terms, "billing" shall indicate either a charge or debit, as applicable, against your payment method. The Subscription Fee will be billed at the beginning of your subscription or expiration of your free trial period, if any, whichever is earlier, and on each monthly or yearly renewal date thereafter, as applicable, unless and until you cancel your subscription or account, or service is otherwise suspended or discontinued pursuant to these Terms of Use. To see the commencement date for your next renewal period, log in on the Site and click on “Account” under your name.
We automatically bill you each month or year, as applicable, on the calendar day corresponding to the commencement of your subscription (each such month, a "Monthly Period" or “Yearly Period”). In the event your Monthly Period subscription began on a day not contained in a given month, we bill your payment method on the last day of such month. For example, if you became a Monthly Period paying subscriber on January 31, your payment method would next be billed on February 28. If you change your payment method, this could result in changing the calendar day upon which you are billed. You acknowledge that the amount billed each Monthly Period or Yearly Period may vary due to promotional offers, changes in your subscription, and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts. If Night Flight Plus changes the Subscription Fee or other charges for your subscription, we will give you advance notice of these changes by email.
Your subscription will continue in effect on a month-to-month or year-to-year basis unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these Terms of Use. You must cancel your subscription before your monthly or yearly renewal date in order to avoid the next billing. We will bill the Monthly Period or Yearly Period Subscription Fee plus any applicable taxes to the payment method you provide to us during registration (or to a different payment method if you change your account information). If you cancel your subscription, cancellation will be effective at the end of the current Monthly Period or Yearly Period - this means that you will have continued access to your subscription for the remainder of that period, but you will not receive a refund. You can cancel your subscription by logging into your Night Flight Plus Account on the Site and clicking "Cancel Subscription."
Third Party Platforms
If you have accessed Night Flight Plus from a third party platform, please note that the Third Party is not responsible for Night Flight Plus or its content and such the Third Party has no obligation to provide support and maintenance with respect to the Night Flight Plus. The terms of your subscription and billing may also be governed in addition by the separate policies and terms of use applicable to such Third Party platform or store.
Proprietary Rights and Licenses
(a) Definitions. Certain content and materials are made available through the Site and Services, including the following (collectively, the “Content”):
"Night Flight Plus Content" means, collectively, the text, data, graphics, images, Night Flight Plus trademarks and logos and other content (including Licensed Content) made available through the Site and Services, excluding User Submissions.
"Licensed Content" means any content (including any audio or video content) provided to Night Flight Plus by its third party content partners (which may include Content or “download to rent” or "download to own" content) made available through the Site and Services.
"User Submissions" means, collectively, the text, data, communications, bulletin board messages, chat, graphics, images, photos, audio or video files and other content and information which Night Flight Plus Members post, upload and otherwise submit to the Site or Services, including, without limitation, in their profile page, excluding Comments and Feedback (as defined herein).
(b) User Submissions. You retain all rights in your User Submissions. However, by uploading, posting, submitting or otherwise transmitting any User Submissions on or to the Site or Services, you hereby grant to Night Flight Plus a non-exclusive, worldwide, royalty-free, sub-licensable, perpetual and irrevocable right and license to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform and transmit your User Submissions in connection with the Services and Night Flight Plus's (and its successors) business including, without limitation, for promotion and redistributing part or all of the Services (and derivative works thereof), in any media formats and through any media channels. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Night Flight Plus. You acknowledge and agree that your posting of User Submissions will comply with our Copyright and IP Policy as set forth in Section 4 below. You acknowledge and agree that Night Flight Plus may, at its option, reclassify or recategorize any User Submissions and establish limits concerning User Submissions, including, without limitation, the maximum number of days that User Submissions will remain available via the Services or on the Site, the maximum size of any files that may be stored on or uploaded to the Site or Services and the maximum disk space that may be allotted to you for the storage of User Submissions on Night Flight Plus's servers. Night Flight Plus will have no responsibility or liability for maintaining copies of User Submissions on our servers, and you are solely responsible for creating back-ups of your User Submissions.
(c) Night Flight Plus Content. (i) Night Flight Plus and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, Services, Night Flight Plus Content and any other content made available through the Site or Services contained therein, other than your User Submissions. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, Night Flight Plus Content, any other content made available through the Site or Services or related products and services, and except as explicitly described herein, you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, Services, Night Flight Plus Content or any other content made available through the Site or Services (other than your User Submissions).
(d) Reminder Regarding Content. For the avoidance of doubt with respect to any Content that you purchase or access via the Site or Service, such content is only made available for personal and non-commercial purposes. The delivery of any Content to you neither transfers any commercial or promotional use rights in the content to you nor does it constitute a grant or waiver of any rights of the copyright owners in any audio or video content, sound recording, underlying musical composition, or artwork embodied in the content.
(e) Disclaimer. Night Flight Plus does not guarantee that any Content will be made available through the Site or Services, continuously or at all. WHILE NIGHT FLIGHT PLUS IS UNDER NO OBLIGATION TO DO SO, NIGHT FLIGHT PLUS RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM THE SITE OR SERVICES WITHOUT NOTICE, AND FOR ANY REASON NIGHT FLIGHT PLUS DEEMS SUFFICIENT. Night Flight Plus does not have any obligation to monitor the User Submissions that are uploaded, posted, submitted or otherwise transmitted using the Site or Services, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or anything said, depicted or written by Night Flight Plus Members, including, without limitation, any information obtained by using the Site or Services. Night Flight Plus does not endorse any User Submissions or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Night Flight Plus with respect thereto.
Copyrighted Materials
You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.
If you know or suspect that any of the materials on the Site have been used or copied in a way that constitutes copyright infringement, please send notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The designated agent for notice of copyright infringement claims may be reached as follows: The Law Office of Allen Jacobi 11077 Biscayne Boulevard Suite 200 Miami, Florida 33161 (305) 893-5644 allen@allenjacobilaw.com
The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed. All other inquiries, such as questions related to items available for purchase on the Site and requests or concerns regarding improper content, will not receive a response through this process.
Night Flight Plus may terminate the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders.
Termination or Suspension of the Site or Services & Modification of these Terms of Use
Night Flight Plus reserves the right in its sole discretion, at any time, to modify, discontinue or terminate the Site or Services or to modify or terminate these Terms of Use without advance notice. Modifications to these Terms of Use or any policies will be posted on the Site or made in compliance with any notice requirements set forth in these Terms of Use. If any modification is not acceptable to you, your only recourse is to cease using the Site and Services. By continuing to use the Site or Services after Night Flight Plus has posted any modifications on the Site or provided any legally required notices, you accept and agree to be bound by the modifications. Without limiting other remedies, Night Flight Plus may at any time suspend or terminate your Night Flight Plus account and refuse to provide access to the Site or Services. In addition, Night Flight Plus may notify authorities or take any actions it deems appropriate, without notice to you, if Night Flight Plus suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Use or any policies or rules established by Night Flight Plus; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harassment, abuse or disruption for you, Night Flight Plus Users, Night Flight Plus or any other third parties or the Site or Services. You may terminate your Night Flight Plus account at any time and for any reason by selecting this option on your account information page. Upon any termination by a Night Flight Plus Member, the related account will no longer be accessible. After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Use will immediately cease. Night Flight Plus will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE SITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Night Flight Plus will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party. Any suspension, termination or cancellation will not affect your obligations to Night Flight Plus under these Terms of Use (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
Interactions between Night Flight Plus Users
You are solely responsible for your interactions (including any disputes) with other Night Flight Plus Users. You understand that Night Flight Plus does not in any way screen Night Flight Plus Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services and disclosing personal information to other Night Flight Plus Users. You agree to take reasonable precautions in all interactions with other Night Flight Plus Users, particularly if you decide to meet a Night Flight Plus User offline, or in person. Your use of the Site, Services, and any Content made available through the Site or Services is at your sole risk and discretion and Night Flight Plus hereby disclaims any and all liability to you or any third party relating thereto. Night Flight Plus reserves the right to contact Night Flight Plus Members, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Use. You will cooperate fully with Night Flight Plus to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting authorized Night Flight Plus representatives access to any password-protected portions of your Night Flight Plus account.
Obligations for Night Flight Plus Users
The Site and Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site or Services: (i) Upload, post, submit or otherwise transmit any User Submissions to which you do not have the lawful right to copy, transmit and display (including any User Submissions that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Submission); (ii) Upload, post, submit or otherwise transmit any User Submissions for which you do not have the consent or permission of each identifiable person in the User Submissions to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Submission and such consent or permission is necessary; or (iii) Upload, post, submit or otherwise transmit any User Submissions that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) Upload, post, submit or otherwise transmit any User Submissions that are unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains any pornography, erotica, child pornography or child erotica, is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech or is otherwise objectionable in the opinion of Night Flight Plus; (v) Circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any content; (vi) Use any meta tags or other hidden text or metadata utilizing a Night Flight Plus trademark or logo, URL or product name; (vii) Upload, post, submit or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation; (viii) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information; (ix) Upload, post, submit or otherwise transmit any User Submissions that contain software viruses or any other computer code, files, or programs designed to (a) interrupt, destroy or limit the functionality of any computer software; or (b) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the Site; (x) Upload, post, submit or otherwise transmit any User Submissions that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Submissions that is unrelated to the immediate, aesthetic nature of the User Submissions; (xi) Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available at the Site, servers or networks connected to the Site, Services or the technical delivery systems of Night Flight Plus's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services; (xii) Attempt to probe, scan or test the vulnerability of any Night Flight Plus system or network or breach or impair or circumvent any security or authentication measures protecting the Site or Services; (xiii) Attempt to or actually decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services; (xiv) Attempt to or actually access, search or meta-search the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Night Flight Plus or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera), including without limitation any software that sends queries to the Site to determine how a website or web page ranks; (xv) Collect or store personal data about other Night Flight Plus Users without their express permission; Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud; (xvi) Use the Site or Services in any manner not permitted by these Terms of Use; or (xvii) Encourage or instruct any other individual to do any of the foregoing or to violate any term of these Terms of Use.
Sweepstakes and Contests
(a) Night Flight Plus Promotions. Night Flight Plus may operate sweepstakes, contests and similar promotions (collectively, "Promotions") through the Site. You should carefully review the rules (e.g., the "Official Rules") of each Promotion in which you participate through the Site, as they may contain additional important information about Night Flight Plus's rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.
Ratings and Comments and Feedback
Comments. You can rate and make comments about content made available through the Site or Services ("Comments"). Night Flight Plus advises you to exercise caution and good judgment when leaving such Comments. Once you complete and submit your Comments to the Site or Services you will not be able to go back and edit your Comments. You should also be aware that you could be held legally responsible for damages to someone's reputation if your Comments are deemed to be defamatory. Night Flight Plus may, but is under no obligation to, monitor or censor Comments and disclaims any and all liability relating thereto. Notwithstanding the foregoing, Night Flight Plus does reserve the right, in its sole discretion, to remove any Comments that it deems to be improper, inappropriate or inconsistent with the online activities that are permitted under these Terms of Use.
Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services ("Feedback"). You may submit Feedback via the Contact Us page. You acknowledge and agree that all Comments and all Feedback will be the sole and exclusive property of Night Flight Plus and you hereby assign and agree to assign all rights, title and interest you have in such Comments and Feedback to Night Flight Plus together with all intellectual property rights therein.
Indemnification
You agree to defend, indemnify and hold Night Flight Plus and Night Flight and its affiliates, subsidiaries and distribution partners and their respective officers, directors, employees and/or agents harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with: (i) your access to or use of the Site, Services, Night Flight Plus Content, or User Submissions; (ii) your violation of these Terms of Use; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that any content you posted to the Site or via the Services (including without limitation your User Submissions) caused damage to a third party, including without limitation claims that your User Submissions are infringing.
Disclaimer
THE SITE, SERVICES, AND CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. NIGHT FLIGHT PLUS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES, AND CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, NIGHT FLIGHT PLUS MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE, SERVICES, NIGHT FLIGHT PLUS CONTENT OR ANY OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL NIGHT FLIGHT PLUS OR ITS AFFILIATES, SUBSIDIARIES, PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE, SERVICES, OR CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES INCLUDING, WITHOUT LIMITATION, INJURY OR DAMAGES RESULTING FROM THE CONDUCT OF ANY NIGHT FLIGHT PLUS USER, ONLINE OR OFFLINE, WHETHER OR NOT NIGHT FLIGHT PLUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NIGHT FLIGHT PLUS'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF USE WILL NOT EXCEED $50. NIGHT FLIGHT PLUS WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATING TO THE SITE, SERVICES OR THE SCHEDULED OR UNSCHEDULED SERVICE INTERRUPTIONS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Force Majeure
Night Flight Plus will not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, failure of the internet or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Night Flight Plus infrastructure or connectivity to the internet or failure at an Night Flight Plus co-location facility (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Night Flight Plus will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and for such further period of time that Night Flight Plus may reasonably require to recover from the effects of such Force Majeure Event.
Relationship of the Parties
Notwithstanding any provision hereof, for all purposes of these Terms of Use each party will be independent and act independently and not as a contractor, partner, joint venture, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract.
Notice; Consent to Electronic Notice
You consent to the use of (a) electronic means to complete these Terms of Use and to deliver any notices pursuant to these Terms of Use and (b) electronic records to store information related to these Terms of Use or your use of the Site or Services. Any notice or other communication to be given hereunder will be in writing and given (x) by Night Flight Plus via email (in each case to the address that you provide to register your account), (y) a posting on the Site or (z) by you via email to info@nightflight.com, with a copy to admin@nightflightplus.com or to such other addresses as Night Flight Plus may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
Links to other Websites
The Site or Services may provide links to websites other than NightFlightPlus.com. Such links are provided for reference only, and Night Flight Plus neither controls such websites nor endorses any of the material on any such websites or any association with their operators. Night Flight Plus is not responsible for the activities or such sites, and has no liability to you for any harm, injuries or losses you might suffer as a result of using or accessing such websites.
Dispute Resolution and Class Action Waiver
THE PROCEDURES AND OTHER TERMS SET FORTH IN THIS SECTION APPLY TO ANY AND ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND NIGHT FLIGHT PLUS OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES, REGARDLESS OF WHEN SUCH CLAIM AROSE (EACH, A “CLAIM”), INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF OR RELATING TO THE SITE; THE USE OR ACCESS THEREOF; THESE TERMS OF USE; THE SERVICES; OUR ADVERTISING; AND ANY OTHER PRODUCTS, SERVICES, MATERIALS, PROGRAMS OR OTHER FEATURES OFFERED, ADVERTISED, MARKETED, PROVIDED AND/OR SOLD BY US.
A. Mandatory Information Pre-Suit Dispute Resolution
Night Flight Plus values our customers and seeks to resolve disputes informally where possible. Before filing any lawsuit relating to a Claim, you agree to first send a detailed notice (“Notice”) to Night Flight Plus by email at nightflightplus@gmail.com. Your Notice must contain all of the following information: (1) your full name; (2) your address; (3) your telephone number; (4) your email address; (5) information sufficient for Night Flight Plus to identify any transaction and/or account at issue (e.g., your account number, subscription confirmation communication, etc.); and (6) a detailed description of your Claim(s), the nature and basis of your Claim(s), and the nature and basis of the relief you are seeking with a calculation for it. You must personally sign this Notice.
Likewise, Night Flight Plus agrees that if we have a dispute with you, we will first send a detailed Notice to your e-mail address on file with us. Night Flight Plus’s Notice will likewise set forth (1) information sufficient for you to identify any transaction at issue, and (2) a detailed description of our dispute, the nature and basis of our claim(s), and the nature and basis of the relief we are seeking with a calculation for it.
You and Night Flight Plus agree to negotiate in good faith, for a period of at least 60 days from the date of the Notice, in an effort to swiftly resolve it to your satisfaction without the need for a formal proceeding. Should Night Flight Plus request a telephone conference with you in an effort to resolve your dispute as part of this informal process, you agree to personally participate (with your counsel if you are represented). Compliance with and completion of this mandatory informal dispute resolution process is a condition precedent to filing any lawsuit. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this process. A court shall have the authority to enjoin the filing of any lawsuit concerning a Claim without first providing a Notice or otherwise participating in good faith in this informal dispute resolution process.
B. No Class Actions or Jury Trials
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL CLAIMS WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION OR REPRESENTATIVE ACTION. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS/CONSUMERS OR BRING OR PARTICIPATE IN, AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, ANY LAWSUIT OR OTHER DISPUTE RESOLUTION PROCEDURE. YOU AND WE EXPRESSLY WAIVE THEIR RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
ADDITIONALLY, YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT YOU OR WE HAVE TO A JURY TRIAL.
Miscellaneous
In the event that any provision in these Terms of Use is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of these Terms of Use will not be deemed a waiver of such right or provision. You may not assign or transfer these Terms of Use (by operation of law or otherwise) without the prior written consent of Night Flight Plus and any prohibited assignment will be null and void. Night Flight Plus may assign these Terms of Use or any rights hereunder without your consent. These Terms of Use will be governed by and interpreted in accordance with the laws of the State of Florida excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under these Terms of Use will be brought exclusively in courts located in Miami, Florida and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. You agree that these Terms of Use and the rules, restrictions and policies contained herein, and Night Flight Plus's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Night Flight Plus. These Terms of Use together with the rules and policies of Night Flight Plus incorporated herein by reference constitute the entire agreement between Night Flight Plus and you with respect to the subject matter of these Terms of Use.
Questions
If you have questions about these Terms of Use or would like to request a copy of these Terms of Use or any other records relating to these Terms of Use or your use of the Site and Services, please contact Night Flight Plus by using our Contact Page, email us at nightflightplus@gmail.com or call 310-714-0800.