These Terms of Use were last updated on December 13, 2022.
By
accessing and using guesstlist.co (the “Marketplace”), you are agreeing to be legally bound by these Terms of
Use, individually, on behalf of your organization, and on behalf of all users accessing and using the Guesst
Platform through your company’s account (“Profile Users”).
The Marketplace allows you, as a tenant, licensee, occupier, franchisee,
vendor, and/or lessee, to search for leasable properties (the “Properties”) listed on the Marketplace by
property owners, licensors, owners, franchisors, asset managers, landlords, lessors, and vendors (“Landlords”)
to lease such Properties. You agree to provide Guesst with any information requested by Guesst that is
necessary (a) to the operation of the Marketplace and (b) for Guesst to assign you to a Marketplace
Coordinator and for such Marketplace Coordinators to provide you with appropriate Properties (the “Services”),
including without limitation providing information about Merchant’s business, space needs, and financials.
If
you and Landlord enter into an agreement by which you lease space from Landlord at a 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 your 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 Landlord shall be negotiated outside the Marketplace and Guesst shall
have no role, obligation or liability with respect to such negotiation.
When you accept these Terms of
Use, you acknowledge and agree that each time you add a business, space need or Profile 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 Profile 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 through
the services provided by the Marketplace.
Any unauthorized commercial use by you or by your Profile
Users of the Marketplace, Guesst’s servers or Internet infrastructure, or its related services, or the resale
of its related services, is expressly prohibited. You and your Profile 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 Profile 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 Profile Users. Your passwords are the property of Guesst and for security reasons must
not be disclosed to any other party except for authorized Profile 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 Profile Users under your account), such as
providing any information about your business or space needs. 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 the 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 Landlord for a lease,
rental agreement, license agreement, franchise agreement or vendor agreement (a) calculate payments; (b) share
documentation; (c) remit 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 services], Guesst collects information about you.
[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 in 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 Landlords,
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 point of sale equipment, 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 Landlords, including
your use of the Marketplace or interest in specific Properties on the Marketplace, or by any other recipients
of data via the Marketplace approved by a Landlord.
By your acceptance of these Terms of Use, you
hereby release Landlord and any other Approved Recipient from any and all claims, liabilities, losses,
actions, suits or proceedings at law or in equity, or other expenses, fees, or charges of any character or
nature, which you may incur or with which you may be threatened arising from your use of the Marketplace.
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 discontinue using the Marketplace.
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.
