It is important that you carefully read and understand the terms and conditions of this Agreement. By using the Website, you agree to be bound by this Agreement. If you do not agree to these terms and conditions, please do not use the Website or any of the Information or Services. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
We reserve the right at any time, with or without cause, to:
Permitted Use of Services and Information
The services made available on, by or through the Website, which include or may include, without limitation, Nei8ht Designs registration, marketplace for third-party products and services, ideabooks, message boards and involvement in Nei8ht Designs events (collectively, the “Services”), as well as any information provided on, by or through the Website or as part of or in connection with the Services or otherwise, including but not limited to data, text, graphics, designs, logos, images, audio/visual materials, links and references (collectively, the “Information”), are provided for personal use only and not for any for-profit or commercial activities or purpose or for resale, except as expressly permitted herein. Without the written consent of Nei8ht Designs, no Information or any other Nei8ht Designs materials or property may be copied, reproduced, displayed, republished, downloaded, posted, digitized, translated, modified, transmitted, distributed or commercially exploited in any way, except as expressly permitted herein.
Nei8ht Designs permits you to view and print a reasonable number of copies of web pages located on the Website for your own personal use, but not for any for-profit or commercial purpose or for resale; provided that (a) you retain all trademark, copyright, and other proprietary notices contained in the original materials, (b) you provide attribution to Nei8ht Designs, (c) the material is printed in its entirety without modification, reformatting or adaptation of any kind, and (d) any such copies are subject to the terms and conditions of this Agreement and remain the property of Nei8ht Designs. You understand and agree that you may not authorize any Information to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any third party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of the Information. You agree to advise Nei8ht Designs promptly of any such unauthorized use of which you are aware. Failure to abide by these conditions will immediately terminate this permission and may result in the infringement of the copyrights and/or trademarks and other proprietary rights of Nei8ht Designs or others.
Home improvement professionals may elect to register with Nei8ht Designs as a professional and create a professional profile on Nei8ht Designs. Subject to and conditioned on compliance with all of the terms of this Agreement, such users are permitted to use the professional account/profile features offered by Nei8ht Designs to promote their business. All such Nei8ht Designs professional features are subject to discontinuance or change at any time. All of the terms and conditions of this Agreement apply to your use of any such professional account and profile, including without limitation, maintaining profile information, uploading or other posting of Content, posting of Reviews, use of Nei8ht Designs buttons, links and widgets, and indemnification obligations.
Postings and Other Submissions
As part of your use of the Website, you may participate in certain ideabooks, message boards, member communications and/or other public forums. Your participation is voluntary; however, by choosing to create ideabooks, post photos or comments, send any messages, submit any ideas or feedback, or otherwise participate in any Nei8ht Designs forum, you acknowledge and agree that any postings, messages, text, photos, audio/visual works, information, suggestions, feedback, reviews or content provided by you (collectively, “Content”) may be viewed by the general public and will not be treated as private, proprietary or confidential, and you authorize us and our affiliates, licensees and sub-licensees, without compensation to you or others, to copy, adapt, create derivative works of, reproduce, incorporate, distribute, publicly display or otherwise use or exploit such Content throughout the world in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights in such Content, and such permission shall be perpetual and may not be revoked for any reason. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Content posted or provided by you.
Nei8ht Designs acknowledges and agrees that you, or your licensors as applicable, retain ownership of any and all copyrights in the Content, subject to the non-exclusive rights granted to Nei8ht Designs in the paragraph above, and that no ownership of such copyrights is transferred to Nei8ht Designs under these terms. Further, with respect to Content in the form of photos, and subject to Nei8ht Designs product and user experience considerations (a) Nei8ht Designs will use commercially reasonable efforts to maintain the attribution of such photos as submitted by you, and (b) Nei8ht Designs will not license or sublicense to third parties individual photo Content or collections of photo Content submitted by you, except in each case for Nei8ht Designs Business Purposes. “Nei8ht Designs Business Purposes” means any use in connection with a Nei8ht Designs-branded or co-branded website, application, publication or service, or any use which advertises, markets or promotes Nei8ht Designs, or its affiliates.
By posting or providing any Content on the Website, you represent and warrant to Nei8ht Designs that you own or have the right to use and permit us to use and license such Content in the manner stated in this Agreement. By way of example and not limitation, if you post or otherwise provide a photograph which includes an image of any person, you need to first obtain permission or a release from such person appearing in the photograph to use their image and permit us to use and license it as stated in this Agreement and you must be the owner or licensee of the copyright in the photograph, with the right to permit us to use it as stated in this Agreement. By way of further example and not limitation, if you post or otherwise provide a photograph of a pictorial, graphic, sculptural or architectural work that is protected by copyright, you need to first obtain permission or a release from the owner of the copyright in such work to reproduce and adapt their work and permit us to use it as stated in this Agreement and you must be the owner or licensee of the copyright in the photograph, with the right to permit us to use it as stated in this Agreement.
Nei8ht Designs may enable you to post ratings or reviews of vendors, service providers and/or their products or services on the Website (your “Reviews”). Reviews are considered Content. You may not post any reviews about a vendor, service provider or any of their products or services if you are (a) an employee, contractor, officer or director of the vendor and/or service provider; (b) an employee, contractor, officer or director of a competitor of the vendor and/or service provider; or (c) related to the vendor and/or service provider in any way, including blood, adoption or by marriage. By posting a Review, you acknowledge and agree that such Content:
You agree not to post or provide any Content that belongs to any person other than yourself or that contains the name, voice or likeness of any person other than yourself unless you first obtain permission to do so, and to grant to us the rights granted in this agreement, from that person.
If you identify yourself by name or provide a picture or audio or video recording of yourself, you further authorize us and our affiliates, licensees and sub-licensees, without compensation to you or others, to reproduce, print, publish and disseminate in any format or media (whether now know or hereafter created) your name, voice and likeness throughout the world, and such permission shall be perpetual and cannot be revoked for any reason.
You further agree that we may use the posted or provided Content in any manner that we deem appropriate or necessary. We reserve the right to edit or abridge any Content for any reason, and to edit, refuse to post or remove any Content submitted by you or others. We cannot and do not guarantee that we will post all Content submitted or that such content will not be offensive, defamatory or objectionable. Although we reserve the right to remove without notice any Content for any reason, we have no obligation to delete Content that you personally may find objectionable or offensive. We do not control in real time the Content posted via the Services and as such do not guarantee the accuracy, integrity or quality of such Content. In addition to other disclaimers found in this Agreement, we do not endorse or make any warranties or representations with respect to the accuracy, completeness or timeliness of any Content posted on the Website.
Third-Party Products and Services
You may be provided the opportunity to purchase products and services offered and sold by third parties (“Products”) through the Services. The information provided for any Product listing is provided by Nei8ht Designs third-party vendors, and, while we require vendors to provide complete, accurate and non- misleading Product information, we do not represent, warrant or guarantee that such Product descriptions are accurate, complete, reliable, current, or error-free, and we are not responsible for, and disclaim any liability arising from or relating to, such Product listing information. All purchases of Products made by you through the Services are a direct sale and purchase between you and the applicable vendor. Nei8ht Designs is not a party to such transaction, and only facilitates the transaction between you and the vendor by providing a marketplace for the marketing, offering and sale of Products. Payments for Products transacted through the Service will be remitted to the vendor, and the vendor will be solely responsible for fulfilling and shipping your order, providing related customer support and warranty service and processing returns and exchanges. The Services will facilitate your communication with the vendor for the purpose of making return, exchange or warranty requests or making claims for non-delivery, damaged goods or items not as described in accordance with any applicable terms or policies in the Product listing. In addition, the Services may alert you to any Product issues or recalls of which the vendor notifies Nei8ht Designs. Nei8ht Designs does not provide any warranty on any of the Products, whether express or implied, and does not assume, and hereby disclaims, any responsibility or liability for the actions or inactions of the third-party vendors of such Products, or for the Products offered, sold or provided by, any third party through the Service.
Descriptions or images of, or references to, third-party Products or publications on the Website do not imply our endorsement of such Products and publications, and we are not responsible for, and disclaim any endorsement of, any such Product or publication.
Reviews are solely the opinions of the users that post them and none of the Reviews contain or reflect any opinions or views of Nei8ht Designs.
Acceptable Use Policy
You agree not to use the Information, Services or the Website to take any action or actions that:
Improper use of the Information, Services and Website may result in termination of your access to and use of the Website, and/or civil or criminal liabilities.
The Website is owned and operated by Nei8ht Designs and its licensors, and the Information and Services (and any intellectual property and other rights relating thereto) are and will remain the property of Nei8ht Designs and its licensors and suppliers. The Information and Services are protected by international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. Except as set forth in this Agreement, you may not copy, reproduce, modify, adapt, translate, republish, upload, post, transmit, distribute, sub-license, sell, reverse engineer, decompile, or disassemble any part of the Website or any Service or Information without our prior written permission. The Information, Website, and Services may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by Nei8ht Designs or, if so indicated in writing by Nei8ht Designs, its licensors or suppliers. Use of the Website or any Services or Information for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Website or any Services or Information.
The trademarks, logos, and service marks displayed on the Website (collectively, the “Trademarks”) are the registered and unregistered trademarks of Nei8ht Designs, Nei8ht Designs licensors and suppliers, and/or others. Nei8ht Designs® is a registered trademark of Nei8ht Designs. Nothing contained in this Agreement or the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark(s) without the express written permission of Nei8ht Designs, Nei8ht Designs licensors or suppliers, or the third party owner of any such Trademark, except as set forth in the following paragraph.
Nei8ht Designs Buttons, Links and Widgets
You may use the Nei8ht Designs buttons, links and widgets displayed on the ‘Buttons and Badges’ section of this Website provided that (a) such buttons, links and widgets link only to the Website; (b) you do not modify such buttons, links, widgets or associated code in any manner, (c) you do not use any such buttons, links, widgets in any manner which implies or suggests that Nei8ht Designs operates, endorses, sponsors or recommends the website on which such buttons, links and widgets are used, and (d) the use of such buttons, links and widgets, and the website on which such buttons, links and widgets are used do not violate the Nei8ht Designs acceptable use policy stated above. You acknowledge and agree that all rights in and to the Nei8ht Designs trademarks are our exclusive property, and any goodwill generated by your use of any Nei8ht Designs trademark will inure to our exclusive benefit. You will not take any action that is in conflict with our rights in or ownership of any Nei8ht Designs trademark. We retain the right to revoke the permission to use such buttons, links and widgets at any time for any reason.
No Use by Children Under 13
You hereby affirm that you are over the age of 12, as this Website is not intended for children under 13. If you are under 13 years of age, then you may not use the Website. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
Claims of Copyright or Trademark Infringement
The Digital Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under copyright law. Nei8ht Designs also reviews claims of trademark infringement. If you believe in good faith that materials hosted by Nei8ht Designs infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed (or if multiple copyrighted works or trademarks located on the Website are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Nei8ht Designs to locate the material on the Website; (d) the name, address, telephone number, and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that Nei8ht Designs will not respond to complaints that do not meet these requirements. If Nei8ht Designs determines that the materials alleged to infringe your copyright or trademark rights do not require removal, Nei8ht Designs will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (a) your name, address, and telephone number; (b) the source of the content that was removed; (c) a statement under penalty of perjury that you have a good faith belief that the content was removed in error; (d) a statement that you consent to the jurisdiction of District Court for the judicial district in which your address is located, for any judicial district in which Nei8ht Designs may be found, and that you will accept service of process from the person who provided the original complaint; and (e) a physical or electronic signature (for example, typing your full name).
Term & Termination
This Agreement is effective from the date that you first access the Website or submit any information to Nei8ht Designs, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Nei8ht Designs may immediately terminate this Agreement, and/or your access to and use of the Website, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. This Agreement will also terminate automatically if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Website shall immediately cease, and you shall destroy all copies of information that you have obtained from the Website, whether made under the terms of this Agreement or otherwise. All disclaimers and all limitations of liability and all Nei8ht Designs rights of ownership shall survive any termination.
We reserve the right at any time and from time to time to modify, discontinue, temporarily or permanently, the Website, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate Nei8ht Designs to maintain and support the Website, or any part or portion thereof, during the term of this Agreement.
THE WEBSITE, INCLUDING BUT NOT LIMITED TO THE INFORMATION AND SERVICES, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE INFORMATION AND WEBSITE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE THAT THE WEBSITE, OR YOUR USE OF THE WEBSITE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE WEBSITE, OR ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THE WEBSITE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF THE WEBSITE EITHER IN TERMS OF ITS COMPATIBILITY WITH HARDWARE OR OTHER SOFTWARE OR EQUIPMENT, AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE AND/OR SERVICES AND INFORMATION AND YOUR RELIANCE THEREON.
NEI8HT DESIGNS MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY THIRD-PARTY SELLERS ON THE WEBSITE, AND NEI8HT DESIGNS SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY THIRD-PARTY SELLER IN CONNECTION WITH SUCH OFFERS OR SALES.
Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER NEI8HT DESIGNS NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE WEBSITE, INFORMATION, SERVICES AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THIS WEBSITE, THE INFORMATION, SERVICES, OR ANY LINKED WEBSITE IS TO STOP USING THE WEBSITE, SERVICE, OR LINKED WEBSITE, AS APPLICABLE. NEITHER NEI8HT DESIGNS NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF (1) ANY INACCURACY, INCOMPLETENESS OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS OR SUBMISSIONS PROVIDED OR POSTED ON THE WEBSITE BY THIRD PARTIES OR (2) YOUR HIRING OR ENGAGEMENT OF, OR ASSOCIATION WITH, ANY THIRD PARTY ADVERTISING OR OFFERING PRODUCTS OR SERVICES THROUGH THE WEBSITE.
You agree to fully indemnify, defend, and hold Nei8ht Designs, our licensors, suppliers, agents, successors, and assigns and our and their directors, officers, employees, consultants, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your breach of this Agreement, including but not limited to the Acceptable Use Policy; (b) any allegation that any materials you submit to us or transmit to the Website infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Website or other websites to which the Website is linked; and/or (d) your negligence or willful misconduct.
Nei8ht Designs makes no representation that the Website operates (or is legally permitted to operate) in all geographic areas, or that the Information, Website, or Services are appropriate or available for use in other locations. Accessing the Website from territories where the Website or any content or functionality of the Website or portion thereof is illegal is expressly prohibited. If you choose to access the Website, you agree and acknowledge that you do so on your own initiative and at your own risk and that you are solely responsible for compliance with all applicable laws.
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by Nei8ht Designs as provided herein or otherwise by written instrument signed by Nei8ht Designs. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegatable, or sublicensable by you except with Nei8ht Designs prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Nei8ht Designs may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
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