Terms of Conditions and Service
Specifically, these terms constitute a legal contract (the “Agreement”) between you and Nestio Inc. ("Nestio", “we” or “us”) that govern your use of Nestio’s websites (including nestio.com, nestiolistings.com, and urbanapt.com, the “Sites”), applications, and related application programming interface (which may also include data made available in JSON format via HTTP, a data feed in XML format via HTTP and/or any data powering an embedded widget, collectively, the “API”) and any related applications and features offered via the Sites or API, collectively, the “Services”).
By downloading, accessing, browsing or using any part of the Services, you are agreeing to the terms of this Agreement. If you do not agree to all the terms and conditions of this Agreement, you do not have any right to access or use the Services.
IMPORTANT LEGAL ITEMS
If agreed to specifically (as further set forth herein), the Services may include certain website development and deployment elements. Your access to any such elements, together with any deliverable and additional Services provided therewith (together the, “Website Services”) is subject to the additional terms and conditions set forth at the end of these terms. Please see “WEBSITE SERVICES ADDENDUM”.
Your access to and use of Nestio’s API and all Services provided therewith (together the, “API Services”) is subject to the additional terms and conditions set forth at the end of these terms. Please see “API SERVICES ADDENDUM”.
We sincerely hope to resolve any issues that may arise directly with you, to your satisfaction. However, if necessary, this Agreement (i) requires all matters to be settled by binding, individual arbitration or via small claims court and (ii) includes a waiver of certain rights, including the ability to form class actions. Please see “Dispute Resolution; Arbitration, No Class Actions” for more.
Updates to These Terms
Age and Consent Requirement s
You must be at least 18 years old to enter into this Agreement and to use the Services. By using the Services, you represent that you (i) have read, understood and agree to be bound by this Agreement and (ii) are at least 18 years old.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this agreement, in which case the terms “you” or “your” shall refer to such entity. All references in the Agreement to “access” or “use” (or similar phrase) by you are deemed to include access or use by such affiliate or third party, and you acknowledge and agree that a breach by such party of any provision of this Agreement shall be deemed a breach by you.
The Services connect property management companies, landlords and owners with real estate brokers, agents and potential renters, and facilitate information management, communications and other interaction between all parties involved in the marketing, management, rental and sale of real property. Certain elements of the Services may only be accessible via use of our API and/or via the agreement to additional Order Form terms.
The Services are primarily intended for use by property management companies, landlords and owners, real estate brokers, agents and potential renters and we may offer different tiers of Services, including at different price points and with different features and functionality, to our varying user base. We may also offer geographically distinct or limited versions of the Services.
The Services that you sign up and register for will be the only version of the Services that you are entitled to access.
Access to the Services
Subject to the terms and conditions of this Agreement and in some cases, your agreement to an applicable Order Form, Nestio may provide the Services, which are selected by you, solely for your own use, and not for the use or benefit of any third party. Certain subsets of the Services may require that you be a member in good standing of certain trade groups, and you will not be allowed to access the subset that requires trade group membership unless you can prove that you are a member in good standing.
You may only access and use the Services, including but not limited to any Content and/or End User Information (each as later defined herein) for the Permitted Purpose and otherwise solely as permitted under the terms of this Agreement. As used herein and unless you otherwise receive our express written consent in any case, the “Permitted Purpose” means if you are a property management company, landlord and owner, real estate broker, or agent for the managing, leasing and marketing of your inventory and/or solely to search and locate available listings and to communicate with property management companies, landlords and owners with real estate brokers, agents and/or potential renters. If you access Website Services or API Services or any other specific Services set forth in an Order Form, your Permitted Purpose may be expanded or otherwise further delineated thereon.
Registration and Security
As a condition to using the Services, you must have a connected device that meets our then-current operating requirements. Additional requirements may be applicable for additional services, such as the API Services. You may also be required to create a Services account and provide certain registration information to us. You agree that any information that you provide to us (at registration or otherwise) will be accurate, complete, and that you will keep it up to date. Your failure to do so will constitute a breach of this Agreement, which may result in termination of your access to and use of the Services. You agree to immediately notify us of any suspected unauthorized use of your account or any breach of your account’s or the Service’s security. We may refuse Service membership or access to anyone.
You are responsible for maintaining the confidentiality of your Nestio password and account and for all activities that occur in connection with these.
As a condition to using certain of the Services, you may be required to meet certain occupational or industry criteria. Nestio may limit the use of Nestio Listings to property management companies, landlords and owners, real estate brokers, agents and potential renters, and other individuals and entities involved in the business of renting and selling real property. Nestio may require license information and employment verification from some users.
You irrevocably authorize Nestio to disclose your personally identifiable information at the request of any state, federal or other governmental agency or in response to any judicial process (including, without limitation, a subpoena).
Nestio may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature or Content. Nestio may restrict your access to parts or all of the Services without notice or liability. If at any time you do not agree to these terms and conditions, you must terminate your use of the Services. You will still remain liable for any obligations incurred or charges accrued on or before the date of termination.
You certify to Nestio that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the Services and access the Site.
While Nestio intends to make the Services available on a twenty-four hours a day, seven days a week basis, there will be occasions when the Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure service providers or other backend components, of telecommunications links and equipment or other circumstances outside of Nestio’s reasonable control. Nestio intends to take reasonable steps to minimize such disruption where practically possible, at Nestio’s discretion. However, Nestio will not be liable in any event to you or any other party for any suspension, modification, discontinuance or lack of availability of the Site, the Services, Nestio Content or Your User Content (each as defined herein), your Nestio Site (as defined herein) and/or the API.
Certain aspects of the Services may be made available to you for free. However, we do not guarantee to offer or maintain any free Services tiers and we may add charges to existing tiers at any time upon notice.
When you order any paid Services, the fee terms will be presented to you within the Services, prior to your purchase. At that time, we may communicate additional terms relating to your purchase. Any such terms will become a part of this Agreement. If you do not agree to any such term, your only remedy is not to complete the order. All amounts due will be paid in US Dollars. Any pricing terms that are presented to you on your Order Form may have been rounded up or down to the nearest whole dollar numbers for display purposes. In that case, your actual charges may reflect a slightly higher or lower actual amount that will in no case be more than 99 cents higher or lower than the price that was presented to you on your Order Form. We may change our then-current pricing at any time via notice on the Site, email or other communication to you. However, we will not increase pricing for any Services that you are currently receiving unless we provide notice to you via email with an option for you to opt-out and cancel your membership.
- Automatic Renewal. Most of our Services, including our data and marketing platforms, Website Services and API Services are subscription-based and automatically renew until either party terminates. This means that (i) we will automatically charge you a recurring membership fee for the period stated during your purchase path or in your Order Form and (ii) your subscription membership will automatically renew, for the same period as the initial term, unless you notify us in writing, at least thirty (30) days prior to the then-current termination date. Unless your online purchase path or Order Form states a specific term (such as annual), your subscription Services will be monthly and will continue, on a monthly basis, until you terminate and you will be charged automatically on the monthly anniversary of the start of your Services.
- Pricing; Automatic Increases. Your initial subscription Services will be charged as set forth in your Order Form. Upon the automatic renewal of any term of Services that is at least 12 months and upon any subsequent 12-month renewal period, we may automatically (without advance notice to you) increase the price of your subscription Services by up to 10% of the prior rate (excluding any taxes) for your renewal term. You hereby agree to any such increase as a condition to our allowing your membership to renew. Any such increase will be communicated to you after you have renewed but you can always contact us prior to your membership expiration date to find out what, if any, mandatory pricing increase will be attached to your subscription renewal.
- Other Membership Changes. In addition to our automatic price increases, we may seek to further increase your subscription pricing or otherwise change your subscription terms but in that case, we will notify you and you may decline to accept such change and terminate your membership.
- Non-Renewal Notice. You can send us your non-renewal notice for your subscription membership by emailing us at email@example.com at least thirty days prior to your membership expiration.
Your Order Form or online purchase path will state whether your Services will be payable automatically or via an invoicing process.
- Automatic Billing. For automatic billing, by providing a credit card or other payment method that we accept, you authorize us (or our third party payment processor) to charge your payment method for the total amount of any order made to your Services account. We may issue a charge authorization after you place your order and charge you at a later point and/or we may charge you immediately upon purchase. If your payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be refused, suspended or cancelled. If you want to change or update your payment information, when you make your next purchase, you can choose to add a new card or payment method and swap it at that time. You may also contact our customer care at firstname.lastname@example.org.
- Invoiced Billing. For Services billed via invoice, unless we expressly agree otherwise on your Order Form, your payment will be due within seven (7) calendar days of the invoice date. You may also contact our billing department at email@example.com.
Any fees payable hereunder are not refundable and you will remain liable for any obligations incurred or charges accrued before your Services are terminated. Further, you will not be permitted to re-activate a terminated Services account if you have any outstanding, owed payment obligations, until you repay such obligations (see “Termination”).
Taxes; Other Charges
Our posted prices exclude all banking fees, taxes, levies, duties or other like amounts that may be assessed by taxing authorities or any other governmental entity arising as a result of the provision of Services by Nestio to you under this Agreement (excluding only United States income taxes imposed on Nestio). Any such taxes or other charges may be added to your total charges and will be payable by you. In the event you are required to withhold any portion of the Services fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify Nestio for any liability resulting from your failure to make (or accurately make) such withholdings, and (ii) Nestio reserves the right to adjust the pricing of the Services so that you are responsible for payment to Nestio of the full amount of the Services, net of any such withholdings. We will communicate any such charges on your invoice, when they become due and payable. If you do not agree to any taxes or other specifically added charges added to your order, do not confirm the order and complete the purchase. For any subscription Services, if you do not agree to any changes in such added charges, your only remedy is to cancel your membership.
All content provided or presented to you via the Services (“Content”) shall consist of Nestio Content and User Content, as defined herein.
Any content, data or other information provided or otherwise made available to you via the Services and all other content, data and information collected by Nestio through the Nestio Services shall be “Nestio Content”. Nestio Content will include, but not be limited to, any real estate listing information. For ownership purposes, Nestio Content is separate from your User Content (as defined below).
You acknowledge and agree that, as between you and Nestio, Nestio owns all right, title and interest in the Nestio Content (including, to the extent that any User Content is included therein as described below).
Subject to the limitations and other terms and conditions of this Agreement and solely for the Permitted Purpose, you may use the Nestio Content as part of your use of the Services (see also “Our License To You” below).
Your User Content
Nestio reserves the right to remove any User Content from the Site and the Services at any time, for any reason or for no reason at all. All information transmitted through the Services is the sole responsibility of the person from whom such information originated. Nestio cannot guarantee the identity of other users with whom you interact in the course of using the Services. Nestio does not assume liability for any User Content, including any property listings posted on the Services. You are responsible for all User Content posted under your username. If you believe User Content residing on the Site or the Services infringes a copyright, please contact us at the address listed below.
Any feedback relating to the Services, including but not limited to, questions, comments or suggestions about the Services, (“Feedback”) submitted to Nestio shall become the property of Nestio, and you hereby assign any and all rights in the Feedback to Nestio as consideration for access to the Services. Nestio will not be required to treat any Feedback as confidential, and will not be liable for any ideas or incur any liability as a result of any similarities that may appear in our future Services or operations.
Your Privacy and Security Commitments
You shall implement and maintain reasonable administrative, technical and physical safeguards against the destruction, loss, alteration or unauthorized disclosure of Personal Information.
Incident Management and Data Breach Response. You shall maintain reasonable and appropriate security incident response policies and procedures. To the extent that you utilize the Website Services, the API Services or any other aspect of the Services to capture and store Personal Information, you shall promptly notify (but not later than twenty-four (24) hours after discovery or as required by law or regulation) Nestio in the event that you become aware of known or suspected unauthorized and/or unlawful access to, acquisition or processing of Personal Information whether in electronic or hard-copy form, or interference with system operations in an information system whether between or among your subsidiaries and affiliates, subcontractors or any other person or entity acting on behalf of you (“Data Breach”). You shall (i) investigate and remediate the effects of the Data Breach, and, (ii) if expressly requested in writing by Nestio, notify data subjects and/or regulators of the Data Breach. Nestio shall have the right to participate in any investigation or analysis relating to a Data Breach with your full cooperation. You shall bear the costs and expenses (including attorneys’ and investigators’ fees and expenses) associated with a Data Breach, including any costs or expenses of (1) providing notices of a Data Breach to affected individuals, and to state, federal, and/or foreign regulatory bodies, and (2) remedying and otherwise mitigating any potential damage or harm arising from the Data Breach, as required by applicable laws or regulations or reasonably prudent under the circumstances. Notwithstanding anything to the contrary, you shall be fully liable for such costs and expenses notwithstanding any limitation or disclaimer of liability.
Data Scraping. You will not and you will not permit any party to scrape or otherwise access any Nestio Content (or subset thereof) from your site and services. If you are aware that any party is doing, seeking or attempting to scrape or otherwise access any Nestio Content in a manner that is not exactly as authorized hereunder, you agree to immediately notify Nestio in writing.
Our Licenses to You
The Services are licensed, not sold, to you for use only under the terms of this Agreement. This license granted to you is limited to a non-exclusive, non-transferable, limited license to use the Services for the Permitted Purpose during the term of the Agreement. The terms of the license will govern any upgrades provided by us that replace and/or supplement the original version of the Services, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Nestio Content – Your Limited Rights, Restrictions and Limitations
Nestio hereby grants to you during the term of the Agreement, a non-exclusive, non-transferable, revocable, limited, royalty-free (except for any charges and fees that may apply) license, in each case, solely if and only as may be authorized by your Order Form, to (i) if allowed by your Order Form, display all Nestio Content within your internal database and print and/or transmit Nestio Content electronically and/or (ii) if allowed by your Order Form, display certain Nestio Content, on your website and/or public-facing mobile applications.
In all cases, you will not (i) use any Nestio Content in a manner that is not contemplated and expressly authorized by your Order Form, (ii) copy or store any significant portion of the Nestio Content in any form or create derivative works of the Nestio Content; (iii) modify Nestio Content, except solely to the extent necessary to fit the format and “look and feel” of the Services on your platform on which the Nestio Content is displayed; (iv) use the Nestio Content in a manner that violates any applicable laws or regulations; or (v) use the Nestio Content in combination with any third party content or data (excluding your User Content, as permitted hereunder), for any commercial purpose or in any manner not expressly approved by Nestio in writing.
Solely if and only as may be authorized by your Order Form, Nestio hereby grants to you during the term of the Agreement, a non-exclusive, revocable, worldwide, fully paid up, royalty-free license to publicly display the Nestio Marks as part of your use of the Services where Nestio Content is displayed or delivered, subject to Nestio’s prior written approval in each instance. You must comply with any branding guidelines that Nestio may provide to you from time to time, and shall prominently display Nestio Marks on all components of Your Services (e.g., purchased applications or services) that presents or delivers any content, data or other information provided or otherwise made available to you under this Agreement. If Nestio objects to your use of any Nestio Mark at any time, you will promptly comply with Nestio’s requests for changes or removal, and you will promptly replace any removed use with a corrected one supplied by Nestio where necessary to comply with the terms of this Agreement. All use of the Nestio Marks by or on behalf of you and all goodwill arising therefrom will inure to the sole benefit of Nestio.
Open Source Software
Certain items of software that comprise part of the Services platform may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms of any applicable end user license for the Open Source Software. If required by any such license, Nestio makes such Open Source Software, and Nestio’s modifications to that Open Source Software, available by written request.
Rights Reserved. Except as expressly set forth herein, you are not granted any other rights in or to the API, the Nestio Content, the Nestio Marks, or any other intellectual property owned or licensed by Nestio. All rights not expressly granted herein are reserved
Your Licenses to Us
You hereby do and shall grant Nestio a perpetual, non-exclusive, worldwide, royalty-free, transferable, sublicensable right to use, modify, reproduce, distribute, prepare derivative works of, display, publish, perform and otherwise fully exploit such User Content (including all related intellectual property rights) in any media format and through any media channel and to allow others to do so. You also hereby do and shall grant each user of the Services a perpetual, nonexclusive license to use your User Content as permitted through the functionality of the Services and under this Agreement. You warrant, represent and agree that you have the right to grant Nestio the licenses set forth above; and the posting of your User Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content you posted to or through the Services.
To the extent that we need to utilize any of your trademarks, service marks, logos or branding (“Your Marks”), as part of our provision of Services to you (such as, via an API Services or Website Services integration), you hereby grant to us, during the term of the Agreement, a royalty-free, fully paid-up, worldwide, right to use your Marks, solely as part of and pursuant to the foregoing. The foregoing license is also applicable to our use of Your Marks in any of our marketing or promotional materials and Site and, solely in that capacity, will be extended beyond the term of the Agreement.
To maximize our ability to successfully provide the Services to you, you agree to:
- display the Services on your site and/or application as they are provided to you and pursuant to any instructions and guidelines provided in or in conjunction with your Order Form, without alteration other than basic sizing unless we expressly approve;
- provide such materials or information as Nestio may reasonably request to carry out the Nestio Services in a timely manner and ensure that the foregoing is complete, current and accurate; and
- obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to your business and/or Your Services.
You hereby represent and warrant that (i) you have full power and authority to enter into this Agreement and to grant the licenses granted to us, (ii) you will comply with all applicable governmental rules, laws, policies and regulations in connection with Your Services and your performance under this Agreement; (iii) your performance of this Agreement will not violate, conflict with, interfere with, result in a breach of, or constitute a default under any other agreement to which you are a party; and (iii) any site or application where you use the Service will not violate any intellectual property rights or other rights of any third party. In addition, to the extent that we condition your access to any Services upon your membership in a trade group or licensed profession, you hereby represent and warrant to us that you will have a valid membership, license or other qualification (your “Qualification”) and that you will maintain such Qualification in good standing, during the Term. You further agree that if your Qualification lapses for any reason during the Term, you will cease to use the Services with no refund of any amounts paid and no cessation of your obligation to continue to pay any subscription or other amounts that still may become due during the Term of your Services. You agree that if we become aware of any lapse in your Qualification, we may cease to provide Services to you until we are satisfied that your Qualification has been renewed, provided that we may continue to charge you for previously committed Services during such time.
You agree that if you contribute property listings to the Services, you will use reasonable efforts to ensure that all information you provide is accurate and up-to-date. You represent, warrant and agree that you will not contribute any User Content that (a) infringes or violates any copyright or trademark or trade secret of another party, (b) infringes any intellectual property right or the privacy or publicity rights of another, (c) is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party, (d) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with any system, data or information, or (e) remains posted after you have been notified that such User Content violates any of sections (a) to (d) of this sentence.
Restrictions; Prohibited Uses and Behaviors
You understand and hereby acknowledge and agree that you may not and warrant that you will not (nor will you permit any third party to) do any of the following:
- use the Services, any Nestio Content, or any analysis from or derived from the same to create or aid any business that is competitive with the Services; nor may you attempt to do any of the same with any third party or via any means.
- separately extract and provide or otherwise use data elements from the Nestio Content to enhance your data or the data files of third parties;
- post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain password, account, or private information from any Nestio or Nestio Listings user.
- except with respect to any of your authorized employees or contractors (only if you have paid for their access) who may only use it on your company’s behalf for the Permitted Purpose, sell, distribute, publish, display, license or transfer Nestio Content with others.
- use any part of the Site, the API or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run automated scripts or bots on the Site, the API or through the Services, nor will you use the Site or Services to send spam.
- modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Nestio Content, software, materials, or Services in whole or in part.
- interfere with, modify or disable any features, functionality or security controls of the Services, the Site and/or the API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for any of the foregoing,
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, the Site, the API or any software, documentation in any way through any medium or otherwise use any of the Services, Site or API in such a manner so that the Services, Site or API or any element thereof appear to be part of your or a third party’s website (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law).
- transmit any viruses, malware, Trojan horses, time bombs, or any other similar harmful software via or in connection with the Services, the API or the Site or otherwise.
- embed the Services within your or a third party website in a manner that violates any of our guidelines and/or that is designed to make it appear that you are the provider and owner of the Services.
- use the Services and/or the API in a manner that violates any applicable laws, regulations or rights of individuals, including but not limited to intellectual property rights and privacy rights; and/or
- create or disclose metrics about, or perform any statistical analysis of, the API, Nestio Content, and/or Nestio Services for competitive purposes; and/or
- cache (in excess of 48 hours), collect, compile, store, transfer or utilize Nestio Content or any other data derived from Nestio, Nestio’s computer system(s) or database(s).
You further agree not to use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to (i) discover, access, acquire, copy, index or monitor any portion of the Services, the API or the Site or any Nestio Content or end user information, or (ii) aggregate, consolidate or otherwise arrange, display or make available Nestio Content in combination with your or any third party content, for any commercial purpose or in any manner that is not the Permitted Purpose or otherwise not expressly approved by Nestio in writing.
No Warranty; Disclaimers
Nestio has no special relationship with or fiduciary duty to you. You acknowledge that Nestio has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Nestio from all liability for your having acquired or not acquired Content through the Services. Nestio is neither an agent of nor is connected with any individual or business with which users interact through the Services. Nestio does not control any entity with which you may interact through the Services, and accepts no responsibility or liability for any act, omission or Content posted on the Services by any such entity. You hereby waive any and all legal or equitable rights or remedies you have or may have against Nestio with respect to acts and omissions by such entities. Nestio makes no representations or warranties concerning any property listed on the Services, and is not liable or responsible for any property you encounter through the Services.
The Services may contain, or direct you to sites containing, information that some people may find inappropriate. Nestio makes no representations concerning any Content contained in or accessed through the Services, and Nestio will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Nestio makes reasonable efforts to require users who post property listings or other Content on the Services to ensure that such Content is as accurate and up-to-date as reasonably possible. However, pricing, availability and other information related to properties may change rapidly, so Content on the Services may be inaccurate or outdated.
THE SERVICES, CONTENT, API, SITE AND ANY NESTIO SITE, OR SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
TO THE FULLEST EXTENT ALLOWED BY LAW, NESTIO DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL OR SERVICES PROVIDED THROUGH THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT NESTIO IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SERVICES; (2) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA RESULTING FROM THE UPLOAD, DOWNLOAD OR STORAGE OF CONTENT ON THE SERVICES; (4) THE INABILITY TO ACCESS OR RETRIEVE ANY CONTENT FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM; (5) CONTENT POSTED IN ANY COMMUNITY AREA OF THE SERVICES; AND (6) ANY USER’S VISIT TO, INTERACTION WITH OR TRANSACTION OF BUSINESS WITH AN INDIVIDUAL OR BUSINESS ENCOUNTERED THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY HOSTING COMPANY OR OTHER VENDOR THAT WE INTRODUCE YOU TO IN RELATION TO THE WEBSITE SERVICES.
Third Party Sites and Services
Users of Nestio may gain access from the Services to third party sites on the Internet. Third party sites or services are not within the supervision or control of Nestio. Nestio makes no representations or warranties about any third party site or resource, and does not endorse the products or services offered by third parties. Nestio disclaims all responsibility and liability for content on third party websites. Any transactions or activity between you and any third party site or resource are solely between you and the applicable third party. You hereby irrevocably waive any claim against Nestio with respect to third party content. Third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with Nestio. If you transact business with a third party you encounter through the Services, you agree such third party may share details of your transactions with them with Nestio.
You will indemnify and hold Nestio and any of its affiliates, their directors, officers, employees, investors, agents, and representatives harmless from and against all damages, losses, and expenses of any kind, (including reasonable legal costs and fees), from any claim, action or demand or arising out of (i) your access to or use of the Services and/or in relation to any activity you undertake as part of or resulting from your use of the Services, (ii) your use of any Content, (iii) your violation of this Agreement, or your infringement, or the infringement by any third party using your registration information, of any intellectual property or other right of any person or entity.
LIMITATION OF LIABILITY.
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES (TO THE EXTENT APPLICABLE, UNINSTALLING ANY SOFTWARE, API OR OTHER INTEGRATED ELEMENTS).
IN NO EVENT SHALL NESTIO, ITS AFFILIATES, AND ANY OF THEIR DIRECTORS, OFFICERS, INVESTORS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, USER CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR POSTING CONTENT.
NESTIO’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF $100 USD OR THE AGGREGATE AMOUNT(S) PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE NESTIO’S (INCLUDING ITS AFFILIATES AND THEIR INVESTORS, OFFICERS, DIRECTORS AND EMPLOYEES) SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
NO PERSON ACTING ON NESTIO’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, "INDUCEMENT") NOT EXPRESSED HEREIN. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.
Waiver of Subrogation
You waive any rights your insurance company may have to be reimbursed by Nestio or its representatives for money paid to you or on your behalf.
You acknowledge and agree that the terms of your Order Form, any other negotiations that we may enter into with you, any product feedback that you provide and any non-public product roadmaps or other information that we provide to you will be our confidential information. During and after the Term of this Agreement, you will not use (except for performance of this Agreement) or disclose any such confidential information to any party without our prior written consent and you will protect such information from public disclosure. You may, however, disclose any such confidential information only to those employees, advisors and agents of yours who have a need to know such information (and only to the extent necessary) in support of your business and who are bound by confidentiality and non-disclosure obligations at least as protective as those set forth herein.
In the case of any Services that are provided to you without charge, either party may terminate the Services at any time by notifying the other party by any means. We may take up to thirty (30) days to process your termination notice.
In the case of Services provided for charge, except as may be set forth otherwise in any Addendum hereto or in any Order Form, Nestio may terminate this Agreement for convenience, at any time and without penalty, by providing written mail or email notice your last provided physical address or email. You may not terminate prior to the expiration of the term of your paid for Services. As a reminder, any subscription services will automatically renew, unless you provide a written notice of termination to us at least thirty (30) days prior your subscription expiration date (see “Subscription Services”).
In all cases, Nestio may also terminate or suspend any and all Services immediately, without prior notice or liability, for any or no reason, including without limitation if Nestio has a good faith belief that you have (i) breached any of the terms or conditions of this Agreement; (ii)repeatedly or purposefully posted inaccurate or outdated User Information; or (iii) failed to honor appointments booked using the Services. Upon any termination, your right to use the Services and access Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
Upon termination of this Agreement for any reason (i) all licenses granted to you hereunder shall automatically terminate and you will (i) remove any of the Services implemented on your properties, (ii) delete any Nestio Content and Nestio Marks from the same and from your possession and (iii), to the extent applicable, you will either return to Nestio, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Nestio Confidential Information in your possession; and upon request you will promptly certify in writing to Nestio that such actions have been taken.
Following any termination of Services, you will remain liable for any obligations incurred or charges accrued prior to the termination. As stated earlier, you will not be permitted to re-activate any terminated Services account (or open a new account) if you or anyone under your control still has a delinquent prior Services account.
Upon termination, we may, but will not be obligated to continue to store any our User Content and other data relating to your account.
Dispute Resolution; Governing Law; Venue
You and Nestio agree that any dispute, claim or controversy arising out of or relating in any way to the Services, this Agreement and any Order Form or other agreement or understanding entered into between you and Nestio will be determined by binding arbitration (or, if we deem the amount to be small enough in small claims court, at our choosing). You agree that, by agreeing this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Nestio are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your use of or membership to the Services.
To seek arbitration or to file a small claim court action against Nestio, you must first send to Nestio, by certified mail, a written notice of your claim, including a description of the basis for the claim and the relief being sought, to: General Counsel, Nestio, Inc., 150 West 22nd Street, New York, NY 10011. If we initiate arbitration, we will send a similar written notice to the email address used for your Services account. Following either party’s receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. However, if the parties cannot reach an agreement to resolve the claim within 30 days after the notice is received, you or Nestio may commence an arbitration proceeding (or, at our discretion if we think the matter is small enough, file a claim in small claims court.)
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless the parties agree otherwise, any arbitration hearings will take place in New York, NY.
Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
YOU AND NESTIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
YOU AND NESTIO FURTHER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES OR THE APPLICABLE STATUTE OF LIMITATIONS PERIOD. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by the state and federal courts located in the State of New York. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.
Publicity. You may promote your receipt of the Services, including talking to traditional and online media and your users about your Services, so long as you do so truthfully and without implying that your Services are created or endorsed by Nestio, unless otherwise agreed in writing by Nestio. You may not issue any formal press release without Nestio’s prior written consent. Nestio reserves the right to make public statements and issue promotional materials regarding Your Services and/or the relationship formed by this Agreement without your consent.
Non-Disparagement. Neither Party shall make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other party, its employees, directors, shareholders, clients, consultants and officers. The parties to this Agreement acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients
Relationship of the Parties. The Parties are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement and/or any Order Form will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between the you and Nestio that could result in the imposition of liability to any third party upon one party for any act or omission of the other.
Force Majeure. Nestio shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Nestio’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. You may not assign any of your rights or obligations under this Agreement without Nestio’s prior written consent. Nestio may assign its rights or obligations under this Agreement at any time. Any attempted assignment, transfer or delegation in contravention of this section shall be null and void. Any authorized assignment, delegation or transfer shall inure to the benefit of each party’s respective successor and assigns.
Attorneys’ Fees. If any proceeding is brought by either us or you to enforce or interpret any provision of this Agreement, the substantially prevailing party in such proceeding shall be entitled to recover, in addition to all other relief arising out of this Agreement, such party's reasonable attorneys' and other experts' fees and expenses.
No Third Party Beneficiaries. You and Nestio agree that there are no intended third party beneficiaries of this Agreement.
Notices. Any notice in writing required or permitted by this Agreement will be deemed given (i) when delivered by hand, (ii) on the next business day after being sent by a reputable overnight courier service for next business day delivery, or (iii) on the third business day after being sent by prepaid United States mail, return receipt requested, in each case to the applicable party at the address specified in the first paragraph of this Agreement.
Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in a manner that complies with applicable law. The remainder of this Agreement, if capable of performance, will remain in full force and effect.
Entire Agreement and Amendments. This Agreement, together with any applicable Order Form (if applicable) constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, agreements and understandings (oral or written) between the Parties with respect thereto. If there is a conflict between this Agreement and any governing Order the Order Form shall govern.
Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a Party to the breach of or departure from any provision of this Agreement, shall in any event be binding on or effective against such Party unless it be in writing and signed by such Party, and then such waiver shall be effective only in the specific instance and for the purpose for which it is given.
Notice. Any notice that is required or permitted by this Agreement shall be in writing, in the English language and shall be emailed, if to Nestio, to firstname.lastname@example.org, or if to you, to the email or physical address last associated with your account. You may also deliver notices, to Nestio, Inc., 150 West 22nd Street, Floor 8, New York, NY 10011 Attn: Legal. You hereby consent to receiving any notices relevant to the Services or this Agreement by email without requiring a handwritten signature for such notice to be effective.
Copyright 2017 Nestio, Inc. All rights reserved.
LAST UPDATED: June 15, 2017
WEBSITE SERVICES ADDENDUM
Website Services typically include the development, deployment and continued hosting of a Nestio-powered website that will reside at a domain that you provide and be integrated with other elements of the Services (your “Nestio Site”). The Nestio Site will be created by Nestio, leveraging a Nestio website template that can be customized with your branding, as set forth herein and in your applicable Order Form. All additional elements relating to your Nestio Site structure and the development timeline and corresponding commitments needed from you will be set forth in your Order Form.
Nestio Charges. Website Services are billed on a recurring, subscription basis (see “Subscription Billing” herein) but may include additional upfront charges or other costs, depending upon your customization and implementation. The cost specifically applicable to your Website Services will be as set forth on your Order Form.
Site Hosting. Nestio may utilize a third-party provider to host your Nestio Site. We may manage your hosting directly with such provider or we may require that you create a direct account with the provider. In all cases, we will use reasonable efforts to select a high quality provider but you agree that we will not be responsible for hosting outages or failures of the third party provider
Site Operations. You will be responsible for maintaining your site domain and any other costs and expenses associated with managing and operating your Nestio Site.
Certain areas of the Nestio Site templates permit branding customization. For clarity, no other branding customization will be facilitated by Nestio. In addition, you acknowledge and agree that we include and require that you maintain certain Nestio co-branding (such as “Powered by Nestio”) on areas of the Nestio Site. You expressly agree not to interfere with or remove any such Nestio co-branding from your Nestio Site and you will comply with any guidelines that we may provide in that respect. You will procure your site domain and provide Nestio with necessary access tools. You will also provide any branding and related creative assets requested by Nestio, as need for Nestio to complete the site template(s). The foregoing will include but may not necessarily be limited elements of text/web copy, high resolution graphics/photos/designs, a logo, and other artwork and information. You agree to review work, provide feedback and approval in a timely and reasonable manner when requested and otherwise in accordance with any schedule(s) set out in the Order Form.
Guarantees, License and Limitations.
You hereby guarantee to Nestio that all elements of any text, trademarks, or other artwork and information that you provide to us or any of our partners for inclusion in the Nestio Site are either owned by you, or that you have a valid license and permission to allow us to use them and include them within the Nestio Site, as permitted hereunder. You hereby grant to Nestio a royalty-free, worldwide, unrestricted right to use such contents through the relationship of the contract for the purpose of providing the Services. Nestio hereby grants to you a license to access, use and display your Nestio Site and any related site template tools that we make available to you, solely through the relationship of the contract set forth on your Order Form, unless terminated earlier in accordance with this Agreement. You hereby acknowledge and agree that Nestio owns and will retain ownership to all code and any site copy that is not provided directly by you and the unique combination of these elements that constitutes a complete design of the the Nestio Site templates that we provide to you. You have no right to resell, license or otherwise transfer any aspect of a Nestio Site or Nestio Site template and understand that your right to access, use and display any of the same will end when your license is terminated as set forth above. Nestio makes no represenations, warranties or guarantees, of any kinds, that your Nestio Site and any functionality, including any elements of the Services contained therein will always be available or error-free and you agree that Nestio will not be liable to your or any third party for damages of any kind, including but not limited to lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate your Nestio Site or any element of it.
Post Termination; Ownership.
Following any termination of the Website Services, you understand that, except with respect to any of Your Marks, Nestio will retain ownership to all aspects of the Nestio Site design, UI and any content contained thereon and you will be prohibited from utilizing any of the same after the Term. Nestio will use reasonable efforts to maintain and store all core assets that it contributed to the Nestio Site for up to 180 days after contract termination, at which point all assets may be destroyed. You agree to store any of your own creative assets and/or any data that you may derive from your operation of the Nestio Site (solely as otherwise permitted in this Agreement) safely as Nestio is not required to keep or store any of the same.
API SERVICES ADDENDUM
These additional terms supplement the terms of the Agreement and specifically relate to your use of Nestio’s API, including but not limited to any XML data feed, any data transferred in JSON format via HTTP and any other data or information transferred via the API. All additional elements relating to your access to and use of the API will be set forth in your Order Form.
Nestio will assign you a unique key to access and employ the API (the “API Key”). The API Key enables you to access and use the API on a nonexclusive basis. All calls to the API made by Your Services must include the unique API Key. You must keep the API Key confidential. You are solely responsible for all uses of the API under the API Key. You will not employ scripting mechanisms or otherwise programmatically register and/or attempt to generate API Keys. In addition, you must provide accurate contact information as requested by Nestio in connection with Your Services and request for an API Key, and you agree to promptly notify Nestio in writing of any changes in such information.
Additional License to You
Subject to the terms and conditions of the Agreement and the supplementary terms of this API Services Addendum, Nestio hereby grants to you during the Term, a revocable, limited, non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free (subject to any agreed to fees) license to (i) access and use the API solely for the purposes of developing, testing, displaying, and distributing the Services for the Permitted Purpose to your customers; and (ii) use, reproduce, distribute, and transmit Nestio Content solely to the extent necessary to format, display and make it available to your customers through your site and services that are made available in the United States of America. If Nestio believes, in its sole discretion, that any provision of the Agreement has been violated by you, the licenses granted to you herein may be temporarily or permanently revoked, with or without notice.
In addition to all of the other restrictions and obligations set forth in this Agreement relative to the Services generally, you agree to comply with any instructions and guidelines provided to you by Nestio in conjunction with the API, as they may be updated from time to time.
Nestio will provide a tracking script that needs to be fired, providing Nestio's listing ID, each time the 'detail' view of a provided listing is viewed, both on any internal systems used by Company, and on any public facing webpages or applications where listings are displayed.
For any listings that are contacted through your system, you must provide Nestio a record of the Nestio listing ID via a JSON feed updated no less than daily for the contacted listing, the time of contact, and the type of contact. We may require additional reasonable cooperation from you to facilitate your use of our data via the API as contemplated herein.
If requested by Nestio, you must provide Nestio with valid (and updated) user logins to (i) all systems and products required to feed your User Data to the Nestio API, specifically for Nestio’s use of the same as part of the Services described herein, and (ii) any system or service which you will be pushing any Nestio Content to or using or storing any Nestio Content within.
If any affiliate or third party accesses or uses the API on your behalf (which you will not allow without our express permission), you are responsible for ensuring such third party complies with the provisions of the Agreement at all times while accessing or using the API or any Nestio Content.
Your fees for accessing the API will be as set forth in your Order Form.
Service Commitments; Disclaimers
Absent any exigent circumstances, we will deliver the API via the JSON feed within five (5) business days of the effective date set forth on your Order Form.
Nestio represents and warrants to you that it shall perform the API Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, NESTIO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE API SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ALL OF THE DISCLAIMERS OTHERWISE SET FORTH IN THE AGREEMENT RELATIVE TO NESTIO’S PROIVSION OF THE SERVICES GENERALLY SHALL ALSO APPLY TO THE API SERVICES.
You may submit inaccuracy reports by emailing email@example.com and Nestio will respond within one (1) business day. Unless otherwise expressly agreed between the parties in writing, this Agreement does not entitle you to any support for the API. You are solely responsible for providing all support and technical assistance to end users of your sites, products and services. You acknowledge and agree that Nestio has no obligation to provide support or technical assistance to the users of your sites, products and services and you shall not represent to any such users that Nestio will provide such support. You agree to use commercially reasonable efforts to provide reasonable support to users of your own sites, products and services.