Landlord Terms of Use

Introduction

By accessing and using http://dashboard.guesst.co, www.dashboard.guesst.co, and/or the Guesst Platform (the “Sharing Platform”), 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 Sharing Platform through your company’s account (“Profile Users”).

1. General

Guesst’s Sharing Platform allows you, as a property owner, licensor, owner, franchisor, asset manager, landlord, lessor, vendor and/or investor, to receive selected data from your tenants, licensees, occupiers, franchisees, vendors, lessees, and borrowers (“Data Providers”) so you can calculate payments from your Data Providers; share documentation with your Data Providers; and manage certain other aspects of your business. By the terms of your lease, license or other agreement (your “Agreement”) with your Data Provider, you agree to upload to the Sharing Platform the formulae used to calculate certain sums owed to you by Data Provider under your Agreement. You agree to provide to Guesst any information requested by Guesst that is necessary to the operation of the Sharing Platform and the calculation of amounts owed to you by Data Provider, including without limitation providing such information about the leased premises (the “Premises”) (including without limitation taxes and fees) as may be necessary for Guesst to calculate the Percentage Rent from the Net Sales. The terms “Percentage Rent” and “Net Sales” shall have the meanings given to such terms in your Agreement.

Notwithstanding anything in these Terms of Use, in no event shall these Terms of Use supersede the terms of your Agreement. In the event of a conflict between the calculation of Tenant’s Net Sales or the Percentage Rent by the Sharing Platform and the calculation of Tenant’s Net Sales or the Percentage Rent pursuant to your Agreement, the calculation pursuant to your Agreement shall prevail.

In the event that you have entered into any other agreement with Guesst regarding the provision of 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 Data Provider, Premises, or Profile User, you reaffirm your acceptance of these Terms of Use.

2. Modifications to 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 Sharing Platform 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 Sharing Platform 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 Sharing Platform, before you begin using the Sharing Platform. You may print a copy of these Terms of Use for your reference. You may not use the Sharing Platform for any unlawful purpose or any purpose not approved by Guesst.

3. User Conduct

As a condition to your use of these services, you expressly agree that you and your Profile Users will not use this Sharing Platform 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 Sharing Platform.

Any unauthorized commercial use by you or by your Profile Users of this Sharing Platform, 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 Profile Users may not reproduce, distribute, modify, create or display derivative works based on, re-post or otherwise use the content of this Sharing Platform. 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 this Sharing Platform or take any action that imposes an unreasonable or disproportionately large load on Guesst’s infrastructure as determined by Guesst in its sole discretion.

4. Member Account, Password and Security

You will create 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 uploading any sales data, returns or discount data. 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 Sharing Platform the right to transmit, monitor, retrieve, store and use your information in connection with the operation of the Sharing Platform in accordance with these Terms of Use.

5. Reporting Sales Via Sharing Platform

You acknowledge and agree that, except (i) as required pursuant to applicable laws and regulations and (ii) with respect to information which is or becomes publicly known otherwise han through a breach of this paragraph, Guesst is not authorized to disclose to you any of your Data Providers’ proprietary information or their customers’ proprietary information or operations at the Premises, including without limitation personally identifiable information of your Data Providers’ customers and employees, and any other transactioninformation except as necessary to calculate amounts owed to you under your Agreement and as follows: (a) daily number of transactions; (b) average size of transactions; and (c) sales by product category. Further, you acknowledge and agree that, except (i) as required pursuant to applicable laws and regulations and (ii) with respect to information which is or becomes publicly known otherwise than through a breach of this paragraph, Guesst is not authorized to disclose to your Data Providers any information or data about your other Data Providers transmitting data to you via the Sharing Platform. Notwithstanding the foregoing sentence, Guesst shall have the rights to use anonymized and aggregated data described in Section 6 of these Terms of Use.

6. Privacy

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. Guesst may incorporate data (i) received from you through the Sharing Platform, including, but not limited to, the formulae used to calculate amounts owed to you by Data Providers under the terms of their Agreements, and (ii) from purchases made at your Premises, into anonymized, aggregated data. By using the Sharing Platform, and accepting these Terms of Use, you acknowledge and agree that Guesst may sell and disclose to third parties, data received from you and from Data Providers at or regarding the Premises 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).

7. Disclaimers / Limitation of Liability

Your use of and any browsing in this Sharing Platform and related Internet services are at your risk. Neither Guesst nor any other party involved in creating, producing, or delivering this Sharing Platform is liable for any direct, indirect, incidental, consequential or punitive damages arising out of your access to, or use of, this Sharing Platform or related services. Guesst does not guarantee that the functional aspects of this Sharing Platform will be uninterrupted or error-free or that this Sharing Platform or the server that provides it are free of viruses or other harmful components. Everything on this Sharing Platform 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 THIS SHARING PLATFORM MAY NOT BE CURRENT, OR COMPLETE WHEN YOU VISIT THE SHARING PLATFORM AND IT MAY CONTAIN ERRORS AND INACCURACIES. ADDITIONALLY, WE DO NOT MAKE ANY COMMITMENTS OF THE SHARING PLATFORM’S FUNCTIONALITY, AVAILABLITY, RELIABLITY OR ALBITY 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, nor as to the identity, authority, or right of any person executing 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 this Sharing Platform (or related services) or your downloading of any materials, drawings, data, text, images, video, or audio from this Sharing Platform. Guesst is not responsible for any data distribution by your Data Providers or by any other recipients of data via the Sharing Platform that your Data Provider approves.

8. Termination

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 Guesst Service Agreement.

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.

9. Copyright and Trademarks

The Sharing Platform is the property of Guesst or its licensors, and is protected by copyright and other intellectual property laws. This Sharing Platform may be used only for your business purposes pursuant to the terms of the Guesst Service Agreement. You agree not to copy, reproduce, modify, display, perform, publish, translate, or create derivative works based upon the Sharing Platform.

“Guesst Software” and “Guesst” are trademarks 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 Sharing Platform are the property of their respective owners.

10. Questions/Comments/Concerns

If you have any questions, comments, or concerns about these Terms of Use, this Sharing Platform, or our products, in general, please contact us at:

Guesst Software LLC
8 Wright Street
Westport, Connecticut 06880-3100
E-mail: info@guesst.co

11. Indemnification

You agree to indemnify and hold harmless each of Guesst, its 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 this Sharing Platform, 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.

12. U.S. Government End Users

The software and documentation available on this Sharing Platform 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.

13. Governing Law and Jurisdiction

Your use of this Sharing Platform, 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 Sharing Platform shall be an appropriate federal or state court located in the State of New York.

14. Additional Legal Terms

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 this Sharing Platform, and supersede any prior or contemporaneous communications between Guesst and you with respect to the use of the Sharing Platform.