These Terms of Use were last updated on June 14, 2022.
By
accessing andusing guesstlist.co (the “Marketplace”), you are agreeing to be legallybound by these Terms of
Use, individually, on behalf of your organization, andon behalf of all users accessing and using the
Marketplace through yourcompany’s account (“Authorized Users”).
The Marketplace allows you, as a property owner, licensor, owner,
franchisor, asset manager, landlord, vendor and/or lessor, to list your leasable properties (the “Properties”)
on the Marketplace so that Guesst can identify and connect you with merchants, tenants, licensees, occupiers,
franchisees, vendors, and lessees (“Merchants”) to lease space from you. You agree to provide to Guesst any
information requested by Guesst that is necessary to the operation of the Marketplace and the listing of the
Properties, including without limitation providing such information about the Properties (including without
limitation location, square footage, demographics, annual base rent, taxes, fees and photographs of the
Properties) as may be necessary for Guesst to list the Properties on the Marketplace.
Guesst
will assess Merchants using the Marketplace and provide you with information about Merchants that Guesst
believes may be an appropriate tenant at your Properties (the “Services”). If you and Merchant enter
into an agreement by which Merchant leases space from you at your Property (a “Trial Agreement”), such Trial
Agreement shall have a term of three (3) months and any rent paid thereunder shall be calculated as a
percentage of Merchant’s profits at the Property (“Percentage Rent”). Following the expiration of the
term of the Trial Agreement, any lease, rental agreement, license agreement, franchise agreement or vendor
agreement entered into by you and Merchant shall be negotiated outside the Marketplace and Guesst shall have
no role, obligation or liability with respect to such negotiation.
In the event that you have entered
into any other agreement with Guesst regarding the provision of additional services (the “Guesst Service
Agreement”) and there is a conflict between the terms of the Guesst Service Agreement and these Terms of Use,
the terms of the Guesst Service Agreement shall control.
When you accept these Terms of Use, you
acknowledge and agree that each time you add a Property or Authorized User, you reaffirm your acceptance of
these Terms of Use.
Guesst may change any term in these Terms of Use at any time. The changes will appear in these Terms of Use, and your use of the Marketplace after any changes have been posted will constitute your agreement to the modified Terms of Use and all of the changes. Your continued use of the Marketplace after such changes are posted will constitute your acceptance of these changes. Therefore, you should read these Terms of Use each time you access the Marketplace, before you begin using the Marketplace. You may print a copy of these Terms of Use for your reference. You may not use the Marketplace for any unlawful purpose or any purpose not approved by Guesst.
As a condition to your use of these services, you expressly agree that
you and your Authorized Users will not use the Marketplace or other Internet services provided by Guesst for
any purpose that is unlawful or prohibited by these terms, conditions, and notices. You agree to abide
by all applicable local, state, national, and international laws and regulations and are solely responsible
for all acts or omissions that occur under your member name, including the content of your transmissions and
the accuracy of such content.
Any unauthorized commercial use by you or by your Authorized Users of the
Marketplace, Guesst’s servers or Internet infrastructure, or its related services, or the resale of its
related services, is expressly prohibited. Without Guesst’s prior written consent, you and your
Authorized Users may not reproduce, distribute, modify, create or display derivative works based on, re-post
or otherwise use the content of the Marketplace. Nothing contained in these Terms of Use shall be
construed as conceding any license or right under any copyright or other intellectual property right.
You
and your Authorized Users will not use any device, software or routine to interfere or attempt to interfere
with the proper working of the Marketplace or take any action that imposes an unreasonable or
disproportionately large load on Guesst’s infrastructure as determined by Guesst in its sole discretion.
You will receive a password and account designation upon completing the
Guesst registration process and becoming a registered user. You may also create “Profiles” under your
account for other Authorized Users. Your passwords are the property of Guesst and for security reasons
must not be disclosed to any other party except for Authorized Users under your account. You are
responsible for maintaining the confidentiality of your password and account and for all activities that occur
under your password or account (including the activities of Authorized Users under your account), such as
uploading any data about the Properties. You acknowledge and agree that uploading any false, misleading,
or misrepresentative data is a violation of these Terms of Use, which shall give Guesst the right to terminate
your account.
You agree to: (a) immediately notify Guesst of any unauthorized use of your password,
your account or any other breach of security; and (b) ensure that you exit from your account at the end of
each session. Guesst cannot and will not be liable for any loss or damage arising from your failure to
comply with this Section. You grant Guesst and all other persons and entities involved in the operation
of the Marketplace the right to transmit, monitor, retrieve, store and use your information in connection with
the operation of the Marketplace in accordance with these Terms of Use.
As a condition of your participation in the Marketplace, you agree that you will use www.dashboard.guesst.co (the “Guesst Platform”) to perform the following actions under your Trial Agreement and the term of any subsequent agreement entered into between you and Merchant for a lease, rental agreement, license agreement, franchise agreement or vendor agreement (a) calculate payments; (b) share documentation; (c) receive rent payments; and (d) manage certain other aspects of your business. You agree to accept the Guesst Platform Terms of Use and Privacy Policy when you create an account on the Guesst Platform, as set forth in the Guesst Platform Terms of Use.
To provide you with Guesst’s services [and services that Guesst provides
to third parties in connection with your use of the Marketplace], Guesst collects information about you.
Guesst may incorporate data received from you through the Marketplace, including, but not limited to,
information about your Properties, into anonymized, aggregated data. By using the Marketplace, and
accepting these Terms of Use, you acknowledge and agree that Guesst may sell and disclose to third parties,
data received from you regarding the Properties in anonymized and/or aggregated form.
[BY
AGREEING TO THESE TERMS OF SERVICE, YOU HEREBY ATTEST THAT YOUR ORGANIZATION IS AWARE OF AND COMPLIANT WITH
ANY APPLICABLE REQUIREMENTS OF RELEVANT PRIVACY LAW, INCLUDING, BUT NOT LIMITED TO, THE CALIFORNIA CONSUMER
PRIVACY ACT OF 2018, AS AMENDED, AND THE GENERAL DATA PROTECTION REGULATION (GDPR).]
Your use of and any browsing on the Marketplace and related Internet
services are at your risk. Neither Guesst nor any other party involved in creating, producing, or
delivering the Marketplace, including, but not limited to, Shopify, is liable for any direct, indirect,
incidental, consequential or punitive damages arising out of your access to, or use of, the Marketplace or
related services. Guesst does not guarantee that the functional aspects of the Marketplace will be
uninterrupted or error-free or that the Marketplace or the server that provides it are free of viruses or
other harmful components. Everything on the Marketplace is provided to you “AS IS” WITHOUT WARRANTY OF
ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FOR EXAMPLE, INFORMATION ON THE MARKETPLACE MAY
NOT BE CURRENT, OR COMPLETE WHEN YOU VISIT THE MARKETPLACE AND IT MAY CONTAIN ERRORS AND INACCURACIES. ADDITIONALLY,
WE DO NOT MAKE ANY COMMITMENTS OF THE MARKETPLACE’S FUNCTIONALITY, AVAILABLITY, RELIABLITY OR ABILITY TO MEET
YOUR NEEDS.
Guesst does not warrant that the Services will be uninterrupted, timely or secure.
Guesst
shall not be liable in any manner for the sufficiency or correctness as to form, manner and execution, or
validity of any information collected by Guesst or by Shopify, including information provided by Merchant, nor
as to the identity, authority, or right of any person providing the same, and Guesst’s duties to you shall be
limited to those set forth in these Terms of Use.
Guesst also assumes no responsibility and shall not
be liable for any damages to, or viruses that may infect, your computer equipment or other property on
account of your access to, use of, or browsing in the Marketplace (or related services) or your downloading of
any materials, drawings, data, text, images, video, or audio from the Marketplace.
Guesst is not
responsible for any information or data distribution by Merchants, including your use of the Marketplace or
listing of specific Properties on the Marketplace, or by any other recipients of data via the Marketplace
approved by a Merchant.
These Terms of Use are effective until terminated by Guesst. If
you are dissatisfied with any portion of the service, or with any of these Terms of Use, your sole and
exclusive remedy is to terminate your use of the Marketplace or your Guesst Service Agreement, if
applicable.
Notwithstanding the foregoing, the payment of any fees owed to Guesst prior to or upon
termination shall be governed by the terms of the Guesst Service Agreement, if applicable.
The Marketplace is the property of Guesst or its licensors, and is
protected by copyright and other intellectual property laws. The Marketplace may be used only for your
business purposes. You agree not to copy, reproduce, modify, display, perform, publish, translate, or
create derivative works based upon the Marketplace.
“GuesstList” is a trademark of Guesst
in the United States. Guesst’s trademarks may not be used in connection with any product or service
which is not Guesst’s, in any manner likely to cause confusion among customers or in any way that disparages
or discredits Guesst. Other trademarks that appear on the Marketplace are the property of their
respective owners.
If you have any questions, comments, or concerns about these Terms of Use, the Marketplace, or our products, in general, please contact us at: Guesst Software LLC, 8 Wright Street, Westport, Connecticut 06880-3100, E-mail: info@guesst.co.
You agree to indemnify and hold harmless each of Guesst, Shopify, each of their affiliates, officers, directors, members, managers, and employees, from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Marketplace, the violation of these Terms of Use by you, or the infringement by you of any intellectual property or other right of any person or entity. Notwithstanding the foregoing, Guesst reserves the right to assume at its expense the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to fully cooperate with Guesst in asserting any available defense.
The software and documentation available on the Marketplace are “commercial items,” as that term is defined in 48 C.F.R. 2.101 (October 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (September 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227.7202-4 (June 1995), all U.S. government end users acquire the software and documentation with only those rights set forth herein.
Your use of the Marketplace, and any related legal action, shall be governed by the laws of the State of New York, without regard to conflict of laws principles. The sole jurisdiction and venue for any litigation arising out of your use of or inquiries to the Marketplace shall be an appropriate federal or state court located in the State of New York.
No waiver of any of these Terms of Use shall be deemed a further or
continuing waiver of such term or condition or any other term or condition.
If any provision in these
Terms of Use is invalid or unenforceable under applicable law, the remaining provisions will continue in full
force and effect, and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable
provision that most closely matches the intent of the original provision.
All rights not
expressly granted herein are hereby reserved. These Terms of Use and the Privacy Policy are the entire
and final agreement regarding the Marketplace, and supersede any prior or contemporaneous communications
between Guesst and you with respect to the use of the Marketplace.
