The Official Nightbirde Store

0

Your Cart is Empty

Terms of service

Last Updated: 2/16/2023


1. DEFINITIONS & AGREEMENT. “We” “Us” and/or “Our”, collectively or in combination, refers to Nightbirde LLC (“Nightbirde”) who is the operator of this website store (“site”, website”, “webstore” and/or “web store”). Use of the information and tools on this website are conditioned upon the User’s acceptance of all terms, provisions, and policies as stated herein.


2. E-COMMERCE PLATFORM. Nightbirde has engaged the services of Shopify to host and provide the e-commerce platform that allows Nightbirde to sell its products and services online.


3. REVIEW & METHOD OF ACCEPTANCE. The Terms of Service should be reviewed carefully before accessing or using our website. By visiting, accessing, and/or using the Nightbirde site and/ or making a purchase and/or receiving goods or services from Nightbirde, you engage in our “Service” and agree to be bound by the following terms, provisions, and conditions (“Terms of Service”, “Terms”, “Provisions”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. Said Terms of Service apply to all who access and/or use the Nightbirde site, including but not limited to browsers, vendors, customers, merchants, and/ or contributors of content.


4. NON-ACCEPTANCE. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. To the extent that said Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service and the method by which the offer may be accepted.


5. UPDATED FEATURES. Any and all new and/or updated features or tools added to the store in the future are also subject to said Terms of Service. Users can review the most current version of the Terms of Service at any time. Nightbirde reserves the right to update, change, and/or replace any part of said Terms of Service by posting updates and/or changes to the Nightbirde store website. The User bears sole responsibility for reviewing this page for any changes and the User bears any and all risk for failing to do so. The User’s use and/or access to the website following the posting of any said changes constitutes full acceptance of said changes.


6. AGE OF CONSENT; BREACH. By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state, province and/or country of residence; or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site. User may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). User shall not transmit any worms, viruses, or any code that may cause damage of any kind. A breach or violation of any of the Terms will result in an immediate termination of your Services.


7. RIGHT TO REFUSE SERVICE. Nightbirde reserves the right to refuse service to anyone for any reason at any time. User understands that your content (except credit card and debit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

8. NON-REPRODUCTION. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.


9. HEADINGS. The descriptive headings in this agreement are included for convenience only and will not limit or otherwise affect these Terms.


10. INFORMATION DISCLAIMER. Nightbirde is not responsible if information made available on this site is inaccurate, incomplete, or not current. The information on this site is general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or timelier sources of information. User assumes all risk of any and all reliance on the information on this site. Nightbirde reserves the right to modify the contents of this site at any time, but Nightbirde has no obligation to update any information. You agree that it is your responsibility to monitor changes to our site. Prices for our products are subject to change without notice.


11. MODIFICATION OF SERVICE. Nightbirde reserves the right at any time to modify or discontinue all or part of the Service without notice at any time.
12. DISCLAIMER OF LIABILITY. Nightbirde shall not be liable to you or to any third-party for any modification, price change, suspension, or discontinuance of the Service.


13. AVAILABILITY & QUANTITIES. The availability and quantities of certain products or services may be limited and subject to return or exchange only according to our Return Policy. Nightbirde reserves the right, to discontinue, to limit the sales and/or quantities of our products or Services to any person, geographic region, or jurisdiction. All descriptions of products or product pricing are subject to change at anytime without notice.


14. SCREEN COLORS & IMAGES. Nightbirde has made every effort to display as accurately as possible the colors and images of products that appear at the store, but cannot guarantee that User’s computer monitor's display of any color will accurately match the product once you have received it.


15. VOID WHERE PROHIBTED BY LAW. Any offer by Nightbirde to sell a product or service that happens to be prohibited by law if sold to a certain person, or shipped to a certain jurisdiction, shall be automatically void.


16. CANCELLATION OF AN ORDER. Nightbirde reserves the right to cancel any order and issue a refund. Nightbirde has sole discretion to limit quantities purchased per person, per household, per order, or based upon any other criteria. Said limits may include orders placed under the same customer account, the same credit card, or orders using the same billing or shipping address. Nightbirde may limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.


17. ACCURATE USER INFORMATION. User shall provide current, complete, and accurate purchase and account information for all purchases. User shall promptly update their account information, including email address, credit card numbers and expiration dates.


18. THIRD PARTY TOOLS DISCLAIMER. Nightbirde may provide User with access to third-party tools, apps, websites, links and/or software (“tools”) which Nightbirde does not control or monitor. Nightbirde makes no representation or warranties regarding benefits or potential risks of said tools. User assumes all risk of regarding the use of said tools”as is” without any warranties, representations or conditions of any kind and without any endorsement. Nightbirde shall have no liability whatsoever relating to use of said tools.


19. THIRD PARTY WEBSITES DISCLAIMER. Certain content, products and services available via our Service may include materials from third-parties. Third-party links on this site may direct you to third-party websites that are not affiliated with us. Nightbirde are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. Nightbirde shall not be liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. User is advised to review carefully said third-party's policies and practices prior to engaging in any transaction. Complaints, claims, or questions regarding third-party products should be directed to the respective third-party.


20. FUTURE SERVICES. Without notice, Nightbirde may, in the future, offer new services or features through the website including, the release of new tools and resources. All said new features and/or services shall also be subject to these Terms of Service.


21. COMMENTS & SUBMISSIONS. If, at Nightbirde’s request, you send certain specific submissions (for example contest entries) or without a request from Nightbirde you voluntarily send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium said comments that you forward to us. Nightbirde is and shall be under no obligation to maintain any comments in confidence; to pay compensation for any comments; or to respond to any comments.


22. REMOVAL OF CONTENT. Nightbirde may, but has no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.


23. USER COMMENTS. User agree that User’s comments will not violate any right of any third-party, including copyright, trademark, privacy, personality, name image and likeness, or any other personal right, property right, or proprietary right. User further agrees that User’s comments will not contain libelous, slanderous, defamatory, or otherwise unlawful, abusive or obscene material, or contain any computer virus, nefarious coding, or other malware that could in any way affect the operation of the Service or any related website. User may not use a false email address, pretend to be someone other than yourself, or otherwise mislead Nightbirde or third-parties as to the origin of User’s comments. User is solely responsible for any comments User makes and their attendant accuracy. Nightbirde accepts no responsibility and/or assume no liability whatsoever for any and all comments that may be posted by User or by any third-party.


24. USER INFORMATION & PRIVACY POLICY. User’s submission of personal information is governed by our Privacy Policy which can be accessed and reviewed on the Nightbirde store website.


25. INADVERTENT ERRORS & OMISSIONS. Occasionally there may be information on our site or in the Service that contains inadvertent typographical errors, inaccuracies, or omissions that may relate to product descriptions, colors, pricing, promotions, offers, product shipping charges, transit times and availability. Nightbirde reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice including after the order is submitted.


26. NON-RELIANCE ON UPDATES & AMENDMENTS. Except as required by law, Nightbirde has no obligation to update, amend, or clarify information in the Service or on any related website, including without limitation, pricing information. Therefore, User should not rely upon any particular update, modification, or refresh date in the Service or on any related website as an indication that all information in the aforementioned has been modified or updated.


27. SITE USE PROHIBITIONS. In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. Nightbirde reserves the right to terminate use of the Service or any related website for violating any of the aforementioned prohibited uses.


28. DISCLAIMER OF NON-INTERRUPTION & WARRANTY. Nightbirde does not guarantee, represent, or warrant that use of our service will be uninterrupted, timely, secure, or error-free; and further disclaims any and all warranties regarding the accuracy or reliability of any results obtained. User agrees that we may remove the service for unspecified periods of time or cancel at any time, without notice to you. User expressly agrees that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are, except as expressly stated by Nightbirde, provided 'as is' ‘where is’ and 'as available' for use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.


29. DISCLAIMER OF LIABILITY, CLAIMS & DAMAGES. In no case shall Nightbirde, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers, or licensors incur liability for any injury, loss, claim; or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.


30. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Nightbirde and our parent(s), subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.


31. SEVERABILITY. In the event that any provision of these Terms of Service is determined to be unlawful, null, void, or unenforceable, said provision shall nonetheless be enforceable to the fullest extent permitted by law. The unenforceable portion shall be deemed to be severed from these Terms of Service which shall not affect the validity and enforceability of the remaining provisions.


32. OBLIGATIONS SURVIVE TERMINATION. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.


33. TERMINATION BY USER. These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying Nightbirde in writing that you no longer wish to use our Services, or when you cease using the Nightbirde site.


34. TERMINATION BY NIGHTBIRDE. If, in our sole judgment, we reasonably believe that you have failed to comply with any provision of these Terms of Service, we may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to all or part of our Services.


35. NON-WAIVER. The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.


36. MERGER. These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).


37. CONTROLLING LAW. These Terms of Service and any separate agreements shall be governed by Ohio law and any legal action shall be commenced in Ohio.


38. UPDATES TO TERMS OF SERVICE. User may review the most current version of the Terms of Service at any time on the Nightbirde store website. Nightbirde reserves the right, at our exclusive discretion, to modify, delete, or replace any part of these Terms of Service by posting updates and changes to our website. The User is fully responsible to review the Nightbirde store website for changes. User’s continued use of, or access to, our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.


39. INQUIRIES. Please direct inquires to Mitch@ZanesvilleLawyer.com or Mitchell Marczewski, Marczewski Law Offices LLC, 1020 Maple Ave., Zanesville OH 43701