Last Updated: July 9, 2025
By signing the Order Schedule which incorporates these Terms and Conditions, Broker (as defined in the Order Schedule) agrees to be bound by these Terms and Conditions (together with the Order Schedule, the “Agreement”). Capitalized terms not defined herein will have the meaning set forth in the Order Schedule. Unless the context clearly shows otherwise, NestHub and Broker are collectively referred to below as the “parties”, and each, individually, as a “party”. The parties agree as follows:
1. Access to the Services
1.1 Services. Subject to Broker’s compliance with this Agreement, Broker may access and use the products and services specified in the Order Schedule (collectively the “Services”) during the Term (defined below) solely for its internal business use and may grant access to the Services for the amount of Users identified on the Order Schedule. “User” means Broker’s employees, contractors, and Agents, and others who are authorized by Broker to access and use the Services via unique Login Credentials (defined below). “Agents” are independent real estate agents who have contractual relationships with Broker. “Clients” are individuals who have a client relationship with an Agent. Login Credentials are solely for the use of, and may be accessed solely by, Broker and its Agents and their Clients, and may not be shared amongst Agents or Clients or with any other third party unless expressly authorized in writing by NestHub.
1.2 Accounts. Broker will appoint one or more administrators who will have responsibility for the assignment and management of Users’ Accounts. Broker will be solely responsible for providing the login and password information established for an Account that is used to access the Services (“ Login Credentials ”) and choosing the Users. Broker is responsible for any use of the Services via the Login Credentials, other than use by NestHub personnel. “Account” means any account created by or on behalf of Broker, including accounts created by or for any User, to access or use the Services. Broker is responsible for the activity of its Users in connection with the Services, including but not limited to uploading Business Customer Information and Submitted Data into the Services. Broker will use the Services in compliance with all Applicable Laws and its applicable internal and published policies.
1.3 End User Agreement. Prior to obtaining access to or use of the Services, each Agent must electronically agree to NestHub’s standard Terms of Use located at www.NestHub.ai (“End User Agreement”), which permits the Agent to view and indicate agreement with the license terms prior to registering his/her Login Credentials.
1.4 Licensor Content. Some of the content that is made available through the Services is licensed to NestHub (“Licensor Content”) by third parties including, without limitation, local multiple listing services (collectively, the “Licensors”). Licensor Content is the sole property and responsibility of such Licensors, and the use of such Licensor Content may be subject to Broker and Agent entering into, and complying with, agreements with such applicable Licensors. Broker represents and warrants to NestHub that Broker has entered into agreements with Licensors for Broker’s use of the Licensor Content, and that Broker will maintain and comply with such agreements in force throughout the Term.
2. Intellectual Property; Data; Feedback
2.1 NestHub IP. Except for the licenses granted herein, Broker acknowledges that it has no right, title, or interest in or to the Services, NestHub Marks (as defined below) or any of the Service’s content. NestHub and its licensors own and reserve all right, title, and interest in and to all intellectual property rights embodied in or related to the Services, NestHub Marks, or any of its content (“NestHub IP”), except for Business Customer Information and Submitted Data.
2.2 Broker Information; Business Customer Information. While accessing and using the Services, Broker will submit or give NestHub access to certain electronic data and information related to Broker and its business, including information relating to its employees, contractors, and Agents that NestHub collects and processes in order to provide Broker Services (collectively, “Broker Information”). In addition, in accessing or using the Services, Broker will submit or give NestHub access to certain electronic data and information related to Broker’s, its organizations, and/or its Agent’s Clients that Broker collects and processes in providing the Services to its Clients (collectively, “Business Customer Information ”).
(i) Broker hereby grants NestHub a non-exclusive, royalty-free right to access, use, copy, distribute, perform, display and process Broker Information and Business Customer Information during the Term to: (a) provide and improve the Services, including to prevent or address service or technical problems; (b) perform other activities at Broker’s direction or request, including processing initiated by Broker through Broker’s use of the Services; or (c) as compelled by Applicable Law. Subject to the foregoing license, Broker and its Agents retain all right, title and interest in and to all Business Customer Information.
(ii) NestHub processes Business Customer Information to perform the Services on Broker’s behalf. Broker is the “controller” or “business”, as defined under applicable law, with respect to Business Customer Information. Broker, on its behalf and its
Agents’ behalf, represents, warrants, and covenants that (a) Broker has the right and obtained all necessary permissions and consents to use and submit the Business Customer Information in connection with the Services, and (b) Broker have delivered, and will deliver, any notices or disclosures required under applicable law or regulations for us to process Business Customer Information in connection with the Services.
2.3 Submitted Data. Broker is solely responsible for all content that it, its Agents (including any Account administrator and Users), provide through the Services, to NestHub, or from Third-Party Services (collectively, “Submitted Data”). Broker retains ownership of Submitted Data. However, in addition to any other rights granted to NestHub under this Agreement, by providing Submitted Data through the Services, Broker grants NestHub and its licensors and providers all necessary rights and licenses in and to Submitted Data necessary for NestHub to provide Broker access to and use of the Services and otherwise perform its obligations described in this Agreement. Broker represents and warrants to NestHub that neither Submitted Data nor the use of Submitted Data by NestHub as permitted will: (a) violate this Agreement or any applicable laws, rules, or regulations; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of the intellectual property rights or other rights of any third party; (d) be illegal in any way or advocate illegal activity; (e) be false, misleading, or inaccurate; or (f) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. NestHub is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any Submitted Data. Broker represents and warrants to NestHub that Broker has all rights, permissions, and consents necessary to grant NestHub each of the foregoing rights set forth in this Section.
2.4 Aggregated Data. In addition to the above, Broker hereby grants NestHub a non-exclusive royalty-free license to use the Business Customer Data and/or Submitted Data: in aggregate or de-identified form (the resulting data, “Aggregated Data”) for the purpose of providing, developing, improving, and/or reporting on the Services, for data analytics, to develop new products or services, and/or any other purpose not prohibited by applicable law. Broker hereby further grants NestHub a non-exclusive, royalty-free, perpetual, irrevocable, transferable license to use, reproduce, distribute, publicly display, publicly perform, and create derivative works from the Aggregated Data for NestHub’s business and other purposes, in such a manner that neither Broker nor any User can be identified from such data.
2.5 Data Security. NestHub will maintain reasonable administrative, physical, and technical safeguards that are designed to prevent unauthorized access, use or disclosure of Business Customer Information and Submitted Data.
2.6 Feedback. Broker hereby grants to NestHub a nonexclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid-up license to use and otherwise practice any suggestions, ideas, enhancement requests, feedback, or recommendations that Broker provides to NestHub about the Services.
3. Fees and Payment
3.1 Fees. Broker will pay NestHub all fees specified in each Order Schedule (collectively, “Fees”) within thirty (30) days of the date of the invoice issued by NestHub, unless a different period is specified in the applicable Order Schedule . Payment obligations are non-cancelable, and Fees paid to NestHub are non-refundable. The Fees do not include taxes. Broker will pay all taxes, levies and duties associated with this Agreement, other than taxes based on NestHub’s income.
3.2 Late Payment. Any amount due under this Agreement that remains unpaid after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of 5% per month or the maximum rate permitted by law, calculated from the date such amount was due until the date that payment is received. NestHub may suspend access to the Services, with thirty (30) days’ written notice, if Broker fails to make any payments when due; and Fees will continue to accrue during any such suspension.
4. Acceptable Use
Except as otherwise expressly permitted in this Agreement, Broker will not (and will not permit its Agents or any other third party it can control to), directly or indirectly:
(a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the limited extent Applicable Laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party, other than Clients and Agents; (e) remove or otherwise alter any proprietary notices or labels from the Services, or any portion thereof; (f) modify or extend the Services; (g) separately use any portion of any Service apart from Broker’s use of such Service as a whole; (h) contaminate, incorporate, integrate, link or bundle any portion of the Services with any software code governed by open source, community source, freeware, shareware, or other public license or distribution model software; (i) use the Services to build an
application or product that is competitive with any NestHub product or service; (j) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (k) bypass any security measures used to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Broker will not make any representations or warranties regarding the Services except as expressly authorized by NestHub in writing.
5. Branding
5.1 Broker Brands. During the Term, Broker hereby grants to NestHub a non-exclusive license to use, display and reproduce the Broker’s logos, trade names, trademarks, service marks and trade dress, in connection with providing the Services to Broker. NestHub will comply with Broker’s written trademark usage guidelines provided to NestHub.
5.2 Trademark License. Subject to your continuing compliance with your obligations under this Agreement, NestHub hereby grants you a non-exclusive, limited, right during the term this Agreement to display the NESTHUB mark, the NestHub logo and any other NestHub product or service names, logos or slogans contained or used in connection with the Services (“NestHub Marks”), solely in connection with your right to market the Services to and train Users. You will immediately change or discontinue any use of any NestHub Marks as requested by NestHub. NestHub has the right, at all reasonable times, to inspect the manner in which you use the NestHub Marks and the quality of any goods and services associated therewith. You will not use any NestHub Marks in a way that implies you are an employee, branch, or affiliate of NestHub, or in an entity name. You will not take or encourage any action during or after the term of this Agreement that will in any way impair the rights of NestHub in and to the NestHub Marks or the goodwill inherent therein. Your use of the NestHub Marks and all goodwill therein inures solely to the benefit of NestHub.
6. Term; Termination
6.1 Term. Unless provided otherwise in an Order Schedule, each Order Schedule will remain in effect for the initial term specified in such Order Schedule (or, if no such initial term is specified, for one year) (“Initial Term”) and will automatically renew for consecutive one-year terms unless a party provides written notice of non-renewal at least thirty (30) days prior to any renewal, of each such Order Schedule. Any Fees changes applicable to a renewal term will be negotiated by the parties and memorialized in an Order Schedule. The Initial Term and any subsequent renewals are collectively the “ Term.”
6.2 Termination. A party may terminate this Agreement (including any Order Schedules) if the other party materially breaches this Agreement, and such breach continues for a period of thirty (30) days after the non-breaching party has provided the breaching party written notice thereof.
6.3 Suspension. NestHub may suspend Broker’s Account, any of its or its Users’ Login Credentials and its and their use of the Services if (a) Broker’s account is more than thirty (30) days past due, or (b) Broker’s or its Users’ use of the Services results in (or is reasonably likely to result in) (i) damage to or material degradation of the Services that interferes with NestHub’s ability to provide access to the Services to other customers and/or (ii) Broker’s violation of this Agreement; if: (x) NestHub uses reasonable good faith efforts to work with Broker to resolve or mitigate the consequences of such breach in order to resolve the issue without resorting to a suspension; or (y) prior to any such suspension, NestHub uses commercially reasonable efforts to provide notice to Broker describing the nature of the breach. NestHub shall reinstate Broker’s, Agents’, and/or Clients’ passwords, accounts, or use of the Services, as applicable, if Broker cures such breach within thirty (30) days of receipt of such notice. If Broker fails to cure such breach within such cure period, NestHub may, in its sole discretion, terminate this Agreement.
6.4 Effects of Termination. In the event of any termination or expiration of this Agreement, the Services and all of Broker’s rights under this Agreement (including all Order Schedules) will immediately terminate. For a period of twelve (12) months after termination of this Agreement, NestHub will retain the Submitted Data and, upon Broker’s request, provide a copy of the Submitted Data in CSV format to Broker. At the conclusion of the 12-month period, NestHub will permanently delete the Submitted Data, other than Aggregated Data, from the Services, except to the extent NestHub is required by Applicable Law to continue storing such Submitted Data. Termination or expiration will not relieve either Party of obligations incurred prior to the effective date of the termination. The following Sections survive the expiration or termination of this Agreement: 2 (according to its terms), 3 (with respects to amounts accrued prior to expiration or termination), 6.4, 7, 8, 9, 10, 11, 12 and 13.
7. Indemnification
7.1 Broker Indemnification. Broker will defend, indemnify, and hold harmless NestHub, its affiliates, and each of its and their shareholders, officers, directors, employees, contractors, agents, partners, suppliers, representatives, Licensors and content providers (collectively, the “ NestHub Indemnitees ”) from all third-party liabilities, claims, and expenses (including reasonable attorneys’ fees and costs), to the extent arising from or related to (a) the Excluded Claims (defined in 7.2); (b) Broker’s breach of this Agreement or any breach of the End User Agreement by any Agent; (c) any allegation that the Business Customer Information or Client Content infringes, misappropriates or violates the rights of a
third party or violates Applicable Law; or (d) Broker’s intentionally wrongful conduct, recklessness, or gross negligence. NestHub reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Broker, in which event Broker shall assist and cooperate with NestHub in asserting any available defenses.
7.2 NestHub Indemnification. NestHub will defend, indemnify, and hold harmless Broker, its affiliates, and each of its and their shareholders, officers, directors, employees, contractors, agents, partners, suppliers, representatives, licensors and content providers (collectively, the “ Broker Indemnitees”), from all third-party liabilities, claims, and expenses (including reasonable attorneys’ fees and costs), to the extent arising from or related to (a) the actual or alleged infringement of such third party’s U.S. intellectual property rights by the Services or NestHub Marks; (b) NestHub’s violation of any Applicable Law ; or (c) NestHub’s intentionally wrongful conduct, recklessness, or gross negligence. NestHub will have no indemnification obligations arising from this Section 7.2(i), to the extent such claim arises from (collectively, the “Excluded Claims”): (i) the use or combination of the Services with any hardware, software, products, processes, data, or other materials not provided by NestHub, including Broker’s own systems and data or Business Customer Information or Submitted Data ; (ii) modification or alteration of the Services by anyone other than NestHub; or, (iii) Broker’s or any User’s misuse of the Services or use of the Service in excess of the rights granted in the Agreement. Broker reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by NestHub, in which event NestHub shall assist and cooperate with Broker in asserting any available defenses.
8. Representations and Warranties; Disclaimer
8.1 Mutual Warranties. Each party represents and warrants to the other party that (a) it has the right and authority to enter into this Agreement, (b) its performance of this Agreement will not violate the terms of any other agreement to which it is also a party; and (c) the person signing this Agreement on its behalf has the authority to bind such party.
8.2 Compliance. In the performance of this Agreement, each party will comply with all laws and regulations including state and federal laws and regulations, orders, and ordinances, applicable to such Party, including privacy laws and regulations governing such Party and its data privacy practices (“Applicable Law”).
8.3 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ANY LICENSOR CONTENT ARE PROVIDED“AS IS” AND “AS AVAILABLE” AND ARE WITHOUT ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE INCLUDING, BUT NOT LIMITED TO (A) THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE; (B) ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING; OR (C) AND ANY WARRANTY OF CONTINUOUS, UNINTERRUPTED OR ERROR-FREE OPERATION ALL OF WHICH ARE EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NESTHUB, AND ITS AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, PARTNERS, SUPPLIERS, REPRESENTATIVES, LICENSORS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS COMPLETELY FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL BE ACCURATE, WILL DETECT ALL MALWARE, AND/OR MEET THE REQUIREMENTS OF BROKER, AGENT(S) OR CLIENT(S). SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
8.4 Third-Party Content. NestHub may provide information about third-party products, services , activities, or events, or NestHub may allow third parties to make their content and information available on or through the Services, including Licensor Content (collectively, “Third-Party Content”). NestHub provides Third-Party Content as a service to those interested in such content. Broker’s dealings or correspondence with third parties (including Agents and Clients) and Broker’s use of or interaction with any Third-Party Content are solely between Broker and the third party. Third-Party Content is provided as-is and as-available and without warranties of any kind from Real Scout. NestHub does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and Broker’s access to and use of such Third-Party Content is at Broker’s own risk.
9. Limitation of Liability
9.1 EXCEPT FOR DAMAGES ARISING FROM THE UNAUTHORIZED USE OF THE OTHER’S INTELLECTUAL PROPERTY, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
9.2 EXCEPT FOR NESTHUB’S GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, NESTHUB’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY BROKER IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.
9.3 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE AGREED UPON COMPENSATION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE LIMITED REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10. Confidentiality
10.1 Obligation. During the Term, a party (the “disclosing party”) may provide the other party (the “receiving party”) with confidential and/or proprietary materials and information (“ Confidential Information”). All materials and information provided by the disclosing party to the receiving party and identified at the time of disclosure as “ Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party given the nature of the data and/or the circumstances surrounding disclosure, will be considered Confidential Information hereunder. The Services, terms of this Agreement, and the Submitted Data are Confidential Information. The receiving party will use reasonable care to protect the disclosing party’s Confidential Information from being disclosed to any third party other than the receiving party’s employees, affiliates, contractors, agents, or other professional advisors who need to know it and who have a legal obligation to keep it confidential, without the prior written consent of the disclosing party. The obligations in this Section 10 do not apply to any information that (a) before its disclosure to the receiving party was generally available to the public; (b) the receiving party already had knowledge of when it received the information, as evidenced by the receiving party’s written records when the disclosure occurred; (c) is or becomes publicly known through no act or omission by the receiving party after the information is disclosed to the receiving party; (d) the receiving party receives from another person or entity that, to the receiving party’s knowledge, was legally entitled to provide it to the receiving party; (e) the receiving party develops independently, as evidenced by the receiving party’s written records; or (f) a disclosing party’s authorized representative approves in writing for public disclosure.
10.2 Permitted Disclosure. Receiving party’s disclosure of Confidential Information pursuant to law or a judicial or administrative order will not be deemed to be a breach of this Agreement, if the receiving party (a) provides timely written notice of such disclosure requirement to the disclosing party (if permitted to do so under Applicable Law), and (b) reasonably cooperates, at the disclosing party’s expense, with the disclosing party’s efforts to limit the scope of such disclosure.
10.3 Return or Destruction. Upon the written request of the disclosing party during the Term or after this Agreement terminates, a receiving party will, at the disclosing party’s election, promptly return Confidential Information to the disclosing party or destroy it. As applicable and upon the disclosing party’s request, the receiving party will certify in writing to the disclosing party that it has destroyed the Confidential Information.
11. Governing Law; Dispute Resolution
Any cause of action arising out of or related to the Services or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The Agreement is governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules and without regard to the United Nations Conventions on Contracts for the International Sale of Goods . Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the JAMS Streamlined Arbitration Rules & Procedures , by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators, except that either party may bring a claim related to its intellectual property rights or enforce the confidentiality obligations of this Agreement, or seek temporary and preliminary specific performance or injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security. The substantially prevailing party in any action or proceeding to enforce rights under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties’ consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. Each party knowingly, intentionally, and voluntarily waives any present and future rights to (a) a jury trial to resolve any dispute that arises out of or relates to this Agreement; (b) consolidate or transfer any legal action with or to another legal action where a party might be entitled to a jury trial. By agreeing to these waivers, each party represents that it has had the opportunity to consult with legal counsel and understands that there may be legal consequences to these waivers.
12. Notices
All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; or the business day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the billing contacts for each party set forth on the Order Schedule. Either party may update its address set forth above by giving notice in accordance with this Section 12.
13. Miscellaneous
13.1 General. This Agreement represents the entire agreement between Broker and NestHub with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between Broker and NestHub with respect thereto. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. The terms, provisions or conditions of any purchase order or other business form or written authorization used by Broker will have no effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the party purported to be bound by such document to object to those terms, provisions, or conditions. Neither party will be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond the party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is not transferable or assignable by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, NestHub and Broker may consent, assign all or part of this Agreement to any affiliate or to any successor-in-interest to all or substantially all of such party’s business or assets pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Any attempted assignment in violation of this Section 13 will be null and void. Subject to the foregoing, this Agreement is binding upon NestHub and Broker and their permitted successors and assignees. Except as otherwise expressly provided herein, the provisions of this Agreement are for the benefit of the parties hereto and not for any other person or entity. This Agreement shall not provide any non-party with any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference hereto. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. If any provision of this Agreement is found invalid or unenforceable, the parties agree to replace the offending provision with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision and all other terms shall remain in full force and effect. Each party acknowledges that it has obtained or has been afforded the reasonable opportunity to obtain independent legal advice with respect to this Agreement and that it understands the nature and consequences of this Agreement. The headings of paragraphs and subparagraphs are intended for convenience only and should not be given any effect in construing the contents of the respective paragraphs and subparagraphs. This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms and there will be no presumption or inference against the party drafting this Agreement in construing or interpreting its provisions. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit the other party’s rights with respect to such breach or any subsequent breaches. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. A party’s execution of a facsimile or PDF copy of this Agreement will have the same force and effect as the execution of an original. In the event of a conflict among the Order Schedule and any of its exhibits, schedules or attachments and the Terms and Conditions, then the documents shall take precedence in the order stated in this sentence.
13.2 Apple Specific Terms. In addition to Broker’s agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to Broker’s use of the Services through any version of an application compatible with the iOS operating system (“App”) of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it.
Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs, or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to NestHub. The license Broker has been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by Broker, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service . In addition, Broker must comply with the terms of any third-party agreement applicable to Broker when using the App, such as Broker’s wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon Broker’s acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Broker as a third-party beneficiary thereof; notwithstanding the foregoing, NestHub’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.