Terms and Conditions of Use

Last Revised: March 01, 2017

One of nestCare’s goals is to make sure that you have the best experience possible when accessing or using our services.  In order to do that, we want to make sure you understand the “rules to live by” when accessing or using our services.  Please read the following terms and conditions carefully.  If you have any questions, please do not hesitate to contact us – we’d love to talk to you.

By using nestCARE’s products and services, you are agreeing to all the terms and conditions below.

nestCARE, Inc. and its affiliates and subsidiaries (collectively referred to throughout as “nestCARE,” “we” or “us”), offer a variety of products and services, including the nestCARE-branded websites, applications, devices, hardware, content and other technology products and services; our e-commerce websites and applications (“nestCARE Web”); and all other current and future digital products and service offerings we make available, including any products and services provided in collaboration with our partners (collectively, the “Services”).

These Terms and Conditions of Use (“Terms”) govern your access to and use of the Services. Please read the Terms carefully before using the Services, as they are a legally binding contract between you and nestCARE.

Your access and use of the Services constitutes your agreement to these Terms and our Privacy Policy, which is incorporated into the Terms. If you disagree with any part of the Terms or the Privacy Policy, then you are not permitted to use the Services. Further, by accessing and using the Services, you understand and agree that your Personal Data (as that term is defined in our Privacy Policy) and User-Generated Content (defined below) that is shared with a Service may also be shared among the entirety of nestCARE and its other Services.

Please feel free to contact us through our Support Group support@mynest.care if you have any questions or suggestions.

USING OUR SERVICES

  1. Use of the Services and Your Account

(a) You must be at least eighteen (18) years of age to use the Services.  No individual under this age limit may use the Services, provide any Personal Data to nestCARE, or otherwise submit Personal Data through the Services.  By accessing or using any Services, you represent and warrant that you are at least eighteen (18) years of age at the time of your access or use.

(b) You may need to register for a nestCARE account in order to access or use certain Services. Your account may automatically provide you access and means to use new Services that we create.

When you create an account for any of the Services, you must provide us with accurate and complete information, and keep that information up to date. Otherwise, some of the Services may not operate correctly, and we may not be able to contact you with important notices.

If you create an account, you are responsible for maintaining the confidentiality of any User-Generated Content (defined below) and all actions that take place while using your account, and you must notify our Support Group right away of any actual or suspected loss, theft, or unauthorized use of your account or account password. We are not responsible for any loss that results from unauthorized use of your username and password, with or without your knowledge.

If you are a resident of the European Union: You have the right to delete your account with us by contacting our Support Group. If you choose to permanently delete your account, the non-public Personal Data that we have associated with your account will also be deleted.

(c) Service Updates, Changes and Limitations

The Services change frequently, and their form and functionality may change without prior notice to you. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.

We may also from time to time and without prior notice to you, develop and provide updates for certain Services. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Certain portions of the Services may not properly operate if you do not install all Updates. These Updates may include updated versions of our applications, which may automatically electronically upgrade the versions used on your device, as well as updates to connected products. You expressly consent to such automatic Updates. Further, you agree that the Terms (and any additional modifications of the same) will apply to any and all Updates to the Services. We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any of the Services.

(d) Service Monitoring and Suspension

We may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content (as defined in section 3 below). We may also deactivate, terminate or suspend your account at any time: (1) if we, in our sole discretion, determine that you are or have been in violation of these Terms or the Privacy Policy, (2) if we, in our sole discretion, determine that you have created risk or possible legal exposure for nestCARE, (3) in response to requests by law enforcement or other government agencies, (4) upon discontinuance or material modification of any Services, or (5) due to unexpected technical issues or problems. We have no obligation to notify you after any such deactivation, termination or suspension.

We reserve the right, but have no obligation, to monitor any accounts and/or activities conducted through or in any way related to the Services (including inviting another individual into your network), as well as your use of or access to Location Data (as that term is defined in our Privacy Policy), Personal Data, and profiles of other nestCARE users.

(e) Security

We care about the security of our users. While we work hard to protect the security of your Personal Data, User-Generated Content, and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify our Support Group immediately of any actual or suspected breach or unauthorized access or use of your account.

(f) Consent to Receive Communications

After signing up for an account, you may receive periodic communications regarding the operations of the Services. You cannot opt out of receiving these communications while you continue to use the Services.

You may also receive periodic promotions and other offers or materials that we believe might be of interest to you.

By finding and connecting with your friends and others, you may receive electronic communications, including messages from them.

PRIVACY

  1. Privacy

(a) Your Privacy

For information about how nestCARE collects, uses, and shares your Personal Data, please review our Privacy Policy.

We take the collection, use and security of the Personal Data that our users provide to us very seriously. By using the Services you consent to the collection, use, processing, and sharing of such Personal Data (as set forth in the Privacy Policy), including the transfer of Personal Data to the United States and/or other countries for storage, processing, and use by nestCARE.

(b) Tell a Friend

If you elect to use the features in the Services to tell a friend about the Services, we will ask you to provide your friend’s email address or social media profile, which we may then use to contact your friend about the Services. We may store the information you provide, but we will not post this information publicly. You represent that you are authorized to provide any third-party contact information that you provide to us.

USE OF CONTENT

  1. Ownership and Use of Content

(a) Definitions

For purposes of these Terms, (i) the term “Content” means any creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, text, ideas, communications, replies, “likes,” comments, information, data, software, scripts, executable files, graphics, geo-data, device generated data, sensor generated data, biometrics, annotations, interactive features, designs, copyrights, trademarks, patents, sounds, applications and any intellectual property contained therein, any of which may be generated, provided, or otherwise made accessible on or through the Services; (ii) the term “User-Generated Content” means any Content that you or another nestCARE user submits, transfers, or otherwise provides to or through the use of the Services; and (iii) the term “nestCARE Content” means all Content that is not User-Generated Content.

(b) Ownership

All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services and nestCARE Content belong to nestCARE and/or its partners or applicable third parties. Each user retains ownership, responsibility for, and/or other applicable rights in the User-Generated Content that they create. Except as expressly provided in the Terms, nothing in the Terms grants you a right or license to copy, use, modify, or create derivative works from any nestCARE Content, including any content owned or controlled by any of our partners or other third parties. You agree that you will not infringe on the intellectual property rights of others in connection with the use of the Services, and represent and warrant that you have all of the necessary rights to grant nestCARE a license (described further in Section 3(d) below) for all User-Generated Content you submit in connection with the Services.

(c) Our License to You

You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), and the nestCARE Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. We grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and, solely in connection with your authorized use of the Services, the nestCARE Content, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the nestCARE Content or Services to anyone else.  This license is subject to the Terms, including our Community Guidelines (defined below) and the following:

  • nestCARE Content. Except as expressly permitted by applicable law or authorized by nestCARE, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, the Services’ software, or any nestCARE Content offered as part of the Services, in whole or in part. You may not download, copy, or save nestCARE Content, except as expressly permitted by specific guidelines and/or additional terms applicable to those Services providing for the limited-purpose download of certain nestCARE Content, and then solely for your own personal use in connection with the Services.
  • Commercial Usage of the Services. The Services are intended only for your personal, non-commercial use. You may not use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons, such as advertising sales, or otherwise undertake any endeavor aimed at deriving revenue.
  • Linking to the Services. If you would like to link to the Services on your website or application, please follow these rules: (i) any link to the Services must be a text only link clearly marked “nestCARE” (without the use of any other trademark, logo copyright or any other intellectual property asset owned or controlled by nestCARE) or in some other format directed by nestCARE, (ii) the appearance, position and other aspects of the link and the context in which the link is shown may not damage or dilute the goodwill associated with our marks, (iii) the link must “point” to the root domain name of the Services and not to other pages within the Services, (iv) the appearance, position and other attributes of the link and the context in which the link is shown may not be such as to imply any false or misleading appearance that you, your organization or entity, or any third party is sponsored by, affiliated with, or associated with nestCARE, (v) when selected, the link must display the Service on full-screen and not within a “frame” on the linking website or service, and (vi) nestCARE reserves the right to revoke its consent to the link at any time and in its sole discretion, and upon our notification to you of such revocation of consent, you agree to promptly remove the relevant link from all websites or applications in which it appears.
  • Confusion or Impersonation. Do not impersonate any person or entity, falsely claim an affiliation with any person or entity, or take any action that could imply an affiliation that does not exist or mislead any third party as to such affiliations.
  • Disruptions, Exploits, or Resource Abuse. Do not interfere with or damage operation of the Services, including through unauthorized use, disruption, automated attacks, exploitation, or abuse of our resources.
  • Automated Querying. Do not send automated queries of any sort to the systems and networks we use to provide the Services without our express written permission. “Sending automated queries” includes but is not limited to:

 ◦ using any software that sends automated queries to the systems and networks we use to provide the Services that seek data;

◦ “meta-searching” the Services and the systems and networks we use to provide the Services; and

◦ performing “offline” searches relative to the Services.

  • Unlawful Uses. You may only use the nestCARE Content and Services for legally permitted purposes. You may not use the Services or any nestCARE Content or other information displayed on or made available by the Services to stalk, harass, abuse, defame, threaten or defraud others, or otherwise for any unlawful or improper purpose, including, without limitation, any use or purpose that reflects poorly on nestCARE in nestCARE’s sole discretion.

(d) Your License to Us

When you provide User-Generated Content to nestCARE through the Services, you grant nestCARE a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), commercialize, create derivative works of, and otherwise exploit such User-Generated Content in connection with any and all Services. You acknowledge and agree that: (a) we have the right to arrange the posting of User-Generated Content in any way we desire; (b) nestCARE has no obligation to provide you with any credit when using your User-Generated Content, but if nestCARE chooses to provide you with credit, the size and placement of the credit is at our sole discretion; and (c) you are not entitled to any compensation or other payment from us in connection with the use of your User-Generated Content.

The rights you grant in this license are for the limited purposes of allowing nestCARE to operate the Services in accordance with their functionality, improve the Services, develop new Services, and to allow other users to use the Services in accordance with their intended function. Notwithstanding the above, we will not make use of any of your User-Generated Content in a manner that is inconsistent with the privacy settings you establish within the Services.

We reserve the right to monitor, remove or modify User-Generated Content for any reason and at any time, including User-Generated Content that we believe violates these Terms, the Community Guidelines, and/or our policies.

(e) Content Retention

Please keep in mind that when you make something publicly available on the Internet, it becomes practically impossible to remove all copies of it in the future.

Following termination of your account, or if you remove any User-Generated Content from the Services, we may retain your User-Generated Content for a commercially reasonable period of time for backup, archival, or audit purposes, or as otherwise required or permitted by law. Furthermore, nestCARE may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of your User-Generated Content that otherwise has been stored or shared through nestCARE. Accordingly, note that the above license to your User-Generated Content continues even if you stop using the Services. For more information, please review our Privacy Policy.

(f) Your Feedback

If you choose to submit comments, ideas or feedback, you agree that we are free to use the ideas you submit without any restriction or compensation to you. By accepting your submission, nestCARE does not waive any rights to use similar or related feedback previously known to nestCARE, developed by our employees or obtained from sources other than you. You certify and represent that the information or feedback you submit to us through the Services is not confidential or proprietary information.

(g) Trademarks

nestCARE owns or licenses all nestCARE trademarks, service marks, branding, logos, and other similar assets (the “nestCARE Trademarks”). Do not copy, imitate, modify, display or otherwise use the nestCARE Trademarks (in whole or in part) for purposes other than personal use, or in connection with any web or mobile product or service that is not authorized by nestCARE, without our prior written approval.

(h) Accuracy and Reliance on Content

We make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Content available through the Services, and we make no commitment to update such Content.

In addition, User-Generated Content are not produced by nestCARE, and should also not be relied on. User-Generated Content available in connection with the Services, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User-Generated Content originated. We do not endorse any opinions or recommendations contained in User-Generated Content. All information is provided “as is” without any representation, warranty or condition as to its accuracy or reliability.

GUIDELINES FOR OUR COMMUNITY

  1. Community Guidelines

(a) Interactive Areas

The Services often contain community features. When you post content through these features that content may become public.

Some of the Services may include reviews, discussion forums, conversation pages, blogs or other interactive areas or social features that allow you and other users to post User-Generated Content and interact with one another (“Interactive Areas”). You are solely responsible for your use of the Interactive Areas and for any User-Generated Content that you post, including the transmission, accuracy and completeness of the User-Generated Content. As the Interactive Areas are often public, you understand that your User-Generated Content may be made and remain public.

You are solely responsible for your interactions with other users, whether online or in person. We assume no responsibility or liability for any loss or damage resulting from any interaction with other users who employ the Services, individuals you meet through the Services, or individuals who find you because of Content posted on, by or through the Services. You agree to take reasonable precautions in all interactions with any individuals you interact with in connection with the Services. You are solely responsible for your involvement with any individuals you interact with in connection with the Services. nestCARE is under no obligation to become involved in any disputes between its users.

Your use of the Interactive Areas and your interaction with any other user or any User Generated Content is SOLELY AT YOUR OWN RISK.  nestCARE does have any obligation to monitor or edit any interactions or other postings in connection with the Services and you should have no expectation that nestCARE will do so.

(b) Community Guidelines

We require all users to agree to, and follow, the following rules (the “Community Guidelines”) when posting User-Generated Content and using the Services. By using the Services you agree that your User-Generated Content and use of the Interactive Areas will not violate the Community Guidelines. If you violate the Community Guidelines, we reserve the right to terminate your access to the Services.

  • No Discriminatory or Abusive Content, or Personal Attacks or Insults.

 ◦Don’t post Content that is threatening, hurtful, harassing, embarrassing, or annoying to other users.

◦No derogatory references to sex, gender, age, weight, body type, disability, ethnicity, religion, or sexual orientation, or endorsement of violence against any person or group will be permitted. This includes expressing stereotypes about any group or community.

◦ Don’t post Content that is defamatory, obscene, pornographic, offensive, hateful, inflammatory, or promoting sexually explicit material.

  • If you are participating in our forums, please stay on-topic in an existing thread, and post new threads in the appropriate forum. Taking a thread off-topic is considered hijacking. Please either contribute politely and constructively to a topic, or move on without posting.
  • Don’t use the Services in a way that harms others, including minors.
  • Don’t spam people via posts, replies, or messages.
  • Don’t advocate, promote, or assist any fraudulent or illegal act (e.g., violence, impersonation and computer misuse).
  • Don’t post or solicit Personal Data regarding or from any third party, including photographs, telephone numbers, street addresses, last names, email addresses and passwords in the Interactive Areas.
  • Don’t publicly post an email or private message.
  • Don’t post Content that is in breach of any contractual or other legal duty owed to a third party.
  • Don’t post deceptive or fraudulent links. This includes giving links misleading descriptions, putting the wrong “source” field in a post, setting misleading click-through links on images, or embedding links to interstitial or pop-up ads.
  • If you aren’t allowed to use someone else’s proprietary work or likeness (either by license or by legal exceptions and limitations such as fair use), don’t post it. In particular, if you have any reason to believe that User-Generated Content you see on the Services is infringing your copyrights or the copyrights of others, please see the Copyright/DMCA section of our Terms.
  • Don’t post Content that is likely to deceive any person or be used to impersonate any person, or to misrepresent your identity or affiliation with any person, including with nestCARE.
  • Don’t post Content that contains anything that, in nestCARE’s sole determination, is objectionable or inhibits any other person from using or enjoying the Services, or that may expose nestCARE to any harm or liability of any kind.

If we determine that you are violating the Community Guidelines or otherwise have breached the Terms, we may take actions to address the issue, including, but not limited to, terminating your right to use the Services, removing your User-Generated Content, taking legal action against you (in which case you agree that we shall recover our attorneys’ fees and our reasonable costs incurred) or disclosing information to law enforcement authorities. We reserve the right to enforce, or not enforce, these Community Guidelines in our sole discretion, and they don’t create a duty or contractual obligation for us to act in any particular manner.

(c) Objectionable User-Generated Content

While we require that all users comply with the Community Guidelines and reserve the right to monitor for violations, we ultimately cannot guarantee they will comply with the Community Guidelines or these Terms. If you believe any Content submitted to the Services violates the Community Guidelines, or if you know or suspect that someone is misusing your User-Generated Content, please report it to the Customer Support Group. By consenting to the Terms, you understand and acknowledge that when you access or otherwise use the Services:

  • You may be exposed to User-Generated Content from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User-Generated Content.
  • You may be exposed to User-Generated Content shared by others that is offensive, indecent, or otherwise objectionable.

We cannot be held responsible for any injury or harm to you resulting from objectionable User-Generated Content or another individual’s failure to comply with our Community Guidelines or these Terms.

COPYRIGHT INFORMATION

  1. Copyright/ DMCA

If you believe that User-Generated Content or nestCARE Content infringes copyright under U.S. or other national law, please notify our Copyright Agent immediately using the contact information provided herein. It is our policy to investigate any allegations of copyright infringement brought to our attention. Please provide us with the following information in your notice of a suspected copyright violation:

  • Identification of the work or material being infringed.
  • Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
  • Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
  • A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
  • A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
  • A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.

Your notice must be signed (physically or electronically) and must be addressed as follows:

Copyright Agent
c/o nestCARE, Inc.

3815 N. Brookfield Rd, #104-259
Brookfield, WI 53045
support@mynest.care

You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the individual who posted the allegedly infringing content. In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov or www.chillingeffects.org/copyright for more information about how to prepare or respond to a DMCA notice.

PRODUCTS AND SERVICES OFFERED BY OTHERS

  1. Third Party Links and Services

The Services may link to, interact with or be available on third-party services or products such as social media providers and third-party devices. If you access such third-party services or products, be aware that different terms and privacy policies may apply to your usage of such services.  nestCare is not responsible for, and does not monitor, any third-party websites, services or products that may be linked with the Services.  No such third-party websites, services or products are associated with nestCare notwithstanding that they may be accessible via link from the Services or may link to the Services.

(a) Third-Party Applications

You may be able to access certain third-party links, applications or content (“Third-Party Applications”) via accounts related to the Services. If you choose to access these Third-Party Applications, you may be requested to log-in and sync your accounts with such applications. You are in no way obligated to use any Third-Party Applications, and your access and use of such applications is entirely at your own risk. If you opt to use Third-Party Applications via your account with us, they may gain access to certain information that you have provided to us, including Personal Data, and they will use, store, and disclose such information in accordance with their individual privacy policies and terms and conditions. We have no liability or responsibility for the privacy and information security practices or other actions of any Third-Party Application that you choose to access through your accounts with us. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third-Party Application. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Applications.

(b) Third-Party Content

The Services may contain links to third-party websites, content, advertisers, services, promotions, special offers, or other events or activities (“Third-Party Content”) that are not owned or controlled by us. We do not endorse or assume any responsibility for Third-Party Content. If you access or pay for Third-Party Content, you do so at your own risk and you agree that we have no associated liability.

(c) Third Party Products

The Services may be accessed on third-party devices or other products (“Third Party Products”), and your ability to use certain features of the Services may require you to purchase Third-Party Products. While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.

YOUR MOBILE DEVICE

  1. Mobile Services

(a) Wireless Carrier and Device Considerations

To use or access our applications, you will need a compatible device. We cannot guarantee that the applications will be compatible with, or available on, your device. We do not charge for use of some basic applications; however, you may need to pay some fees to use certain premium applications or features. Further, your phone company’s normal messaging, data, and other rates and fees will still apply.

(b) Text and Mobile Messaging Express Consents

By downloading or using our applications, you expressly agree that we may communicate with you regarding transactions you have initiated on the Services or respond to your communications to us through the Services by SMS, MMS, text message or other electronic means directed to your device and that certain information about your usage of the applications may be communicated to us.

(c) Mobile Application License

We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sub-licensable, revocable license to use our applications downloaded directly from a legitimate marketplace, solely in object code format and solely for your personal use for lawful purposes. With respect to any open source or third-party code that may be incorporated in the applications, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.

(d) App Stores

If you download our applications from a third-party app store (the “App Provider”), you acknowledge and agree that:

  • The Terms are an agreement between us, and not with the App Provider. As between nestCARE and the App Provider, nestCARE is solely responsible for the applications;
  • The App Provider has no obligation to provide any maintenance and support services with respect to the applications;
  • In the event of any failure of the applications to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider may refund the purchase price for the applications to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the applications, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be, as between nestCARE and the App Provider, nestCARE’s responsibility;
  • The App Provider is not responsible for addressing any claims you have relating to the applications or your possession and use of the applications;
  • If a third party claims that an application infringes another party’s intellectual property rights, as between the App Provider and nestCARE, nestCARE will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms;
  • The App Provider and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to the applications. Upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the applications against you as a third-party beneficiary thereof; and
  • You must also comply with all applicable third-party terms of service when using the applications.

SUBSCRIPTIONS AND FEES

  1. Paid Services

If you choose to subscribe to any of our enhanced, paid Services, these are the payment and billing terms that apply. Paid Services and billing will auto-renew unless you cancel. You may cancel at any time.

(a) Payment Terms

We offer certain premium versions of the Services (the “Premium Services”) for a fee. By signing up for and using any of the Premium Services, you agree to our Terms, and any additional terms and conditions that may be provided in connection with such Premium Services. You also agree to waive your 14-day right of withdrawal to the maximum extent permitted by applicable law, so that you are able to immediately access all of the Premium Services.

The Premium Services provide you access to certain enhanced products, services, features and functionality.  By signing up for and using the Premium Services, including signing up for Free Trials of the Premium Services, you agree to pay any fees or other incurred charges that apply to the Premium Services (such as subscription fees).

When you sign up for the Premium Services, you must designate and provide information about your preferred payment method (“Payment Method”). This information must be complete and accurate, and you are responsible for keeping it up to date. You expressly authorize us to collect from your Payment Method the appropriate fees charged for the Premium Services and for any other purchases you elect to make via the Services.

You can choose to pay for the Premium Services on a monthly or annual basis. All fees due for the Premium Services are payable in advance, and will be billed automatically to the Payment Method at the start of the monthly or annual Premium Service period, as applicable. Unless otherwise stated, Premium Services will auto-renew until you elect to cancel your access to Premium Services. All purchases of Premium Services are final and non-refundable, except at our sole discretion and in accordance with the rules governing each Premium Service.

(b) Termination or Cancellation of Premium Services

If you do not pay the fees or charges due for your use of the Premium Services, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Premium Services (and may do so without notice).

You can cancel the Premium Services at any time. Once you have cancelled your Premium Service and received confirmation, no other changes can be made to your account. The cancellation of a Premium Service will go into effect at the end of your current billing cycle, and you will have the same level of access to the Premium Service through the remainder of such billing cycle.

There are no refunds for termination or cancellation of your Premium Service. If you no longer wish to subscribe to a Premium Service, it is your responsibility to cancel your Premium Service, regardless of whether or not you actively use the Premium Service.

(c) Fee Changes

To the maximum extent permitted by applicable laws, we may change our prices for Premium Services at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Premium Service and/or by sending you an email notification. If you do not wish to pay the new prices, you can cancel the applicable Premium Service prior to the change going into effect.

(d) Discount, Coupon or Gift Codes

If you have received a discount, coupon or gift code to a Premium Service, the following terms and conditions apply in addition to the terms and conditions of the specific code. To redeem a discount or coupon code, log in to the applicable Service and enter the applicable code in the purchasing process to take advantage of the relevant promotion. All discounts, gift and coupon codes can only be applied when subscribing to Premium Services, and they can only be applied to accounts that are not already subscribing to Premium Services. Discount, coupon and gift codes cannot be combined with any other cash-off price, sales, promotion or coupon. Discount, coupon and gift codes cannot be exchanged, refunded, replaced or redeemed for cash or payment of accounts. A payment method may be required to redeem a discount or coupon code. It is your own responsibility to use a discount, coupon or gift code before it expires, and expired codes cannot be refunded or extended. It is also your responsibility to terminate the Premium Service before the end of a free or discounted period if you do not want to continue with a Premium Service at the regular price. The terms and conditions of a specific discount, coupon or gift code may include additional restrictions on its use, including but not limited to the type of plan, duration of free or discounted Premium Service, coupon validity dates, and/or purchase quantities. nestCARE reserves the right to cancel discounts and coupon promotions at any time.

(e) Free Trials

We sometimes offer free trials of our Premium Services or other promotional offers (each a “Free Trial”). A Free Trial provides you access to the Premium Services for a period of time, with details specified when you sign up for the offer.

In order to sign up for a Free Trial, you may need to provide us with your preferred payment method. As soon as you submit your payment details, your Free Trial will begin. You will not be charged until the Free Trial period ends.

Unless you cancel before the end of the Free Trial, or unless otherwise stated, your access to the Premium Service will automatically continue and you will be billed the applicable fees for that Premium Service. All incurred charges are final and non-refundable, except at our sole discretion and in accordance with the rules governing each Premium Service. We may send you a reminder when your Free Trial is about to end, but we do not guarantee any such notifications. It is ultimately your responsibility to know when the Free Trial will end if you decide you do not want to become a paying Premium Services athlete after the Free Trial period.

If you decide that you do not want to become a paying Premium Services user after the Free Trial Period, you must cancel your subscription before the end of the Free Trial period. Depending on which of our Premium Services for which you have a Free Trial, you may lose access to the Premium Service as soon as you cancel or at the end of the Free Trial period. Once you have cancelled your Free Trial and received confirmation, you cannot resume the Free Trial period even if you did not use the Premium Service for the entire duration of the offer.

Premium Service features and content may change at any time, and we cannot guarantee that any specific feature or content will be available for the entire Free Trial period. The rates in effect when you sign up for the Free Trial will be the same when the Free Trial ends, unless we notify you otherwise. We reserve the right, in our absolute discretion, to modify or terminate any Free Trial offer, your access to the Premium Services during the Free Trial, or any of these terms without notice and with no liability. You may not sign up for more than one Free Trial of a given Premium Service at the same time, and we reserve the right to limit your ability to take advantage of multiple Free Trials.

SERVICES ARE NOT MEDICAL ADVICE

  1. Safety, Not Medical Advice, Accuracy, HIPAA

We provide the Services for information purposes only, and can’t be held liable if you get injured or something goes wrong.  DO NOT RELY ON ANY OF WHAT YOU MAY PERCEIVE TO BE MEDICAL INFORMATION OR ADVICE IN CONNECTION WITH THE SERVICES.  THE SERVICES DO NOT CONTAIN OR PROVIDE MEDICAL INFORMATION OR ADVICE AND NOTHING CONTAINED IN THE SERVICES CONSTITUTES OR SHOULD BE INTERPRETED AS MEDICAL ADVICE IN CONNECTION WITH ANY INDIVIDUAL.

(a) Safety First

You should consult with your healthcare provider(s) and consider the associated risks before using the Services in connection with any monitoring activity, physical activity or wellness or fitness program. By using the Services, you agree, represent and warrant that you have received consent from your physician to participate in any monitoring activity, physical activity or wellness or fitness programs, or any of the related activities made available to you in connection with the Services.  You should rely on the advice of your physician and not any information obtained in connection with the Services.  Everyone’s condition and abilities are different, and participating in such activities or programs is at your own risk. If you choose to participate in these activities or programs, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities and programs. Activities in connection with the Services may pose risks even to those who are currently in good health.

You understand and agree that we will not carry out and are not responsible for any monitoring, response, inspection, supervision, preparation, execution or conduct of any activities or programs related to or accessed or discovered via the Services.

You expressly agree that your monitoring activities, physical activates, wellness or fitness programs and certain Third-Party Activities carry certain inherent and significant risks of property damage, bodily injury, or death and that you voluntarily assume all known and unknown risks associated with these activities and programs, even if caused in whole or part by the action, inaction, or negligence of nestCARE or by the action, inaction, or negligence of others.

Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injuries or damages that are sustained from your monitoring activities, physical activities, wellness or fitness programs or your use of, or inability to use, any Services or features of the Services, including any Content or activities that you access or learn about through the Services (e.g., a Third-Party Activity), even if caused in whole or part by the action, inaction or negligence of nestCARE or by the action, inaction or negligence of others. To the maximum extent permitted by applicable law, you also expressly agree that we do not assume responsibility for any Third-Party Activity that utilizes or is promoted by or accessed via the Services.

(b) Not Medical Advice

The Content is for informational purposes only.  The Content should not be considered, or used as a substitute for, professional medical advice, diagnosis or treatment.  Neither the Services nor the Content constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment.  Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition, diagnosis and treatment.  Never disregard professional medical advice or delay in seeking it because of something you have read on or via the Services.

nestCARE does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned on or via the Services or contained in the Content.  Reliance on any information provided by nestCARE, on or via the Services or any Content is solely at your own risk. We aim to provide useful general information for our users, not professional medical advice, and not advice particularized to any individual.  You understand and agree that each individual is different and that any information that may be obtained in connection with the Services may not apply to you. The Services are not medical devices, and the data provided by them is not intended to be utilized for medical purposes and is not intended to diagnose, treat, cure or prevent any disease, ailment or injury. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical advice via the Services. All Content provided through the Services, whether provided by us or by third parties (even if they are or are claiming to be a medical professional) is not intended to be and should not be used in place of (a) the advice of your physician or other professionals, (b) a visit, call or consultation with your physician or other medical professionals, or (c) information contained on or in any product packaging or label. We are not responsible for any health problems that may result from monitoring activities, physical activities or wellness or fitness programs that you may use or learn about through the Services. Should you have any health related questions, please call or see your physician or other healthcare provider promptly. If you have an emergency, call your physician or your local emergency services immediately.

Your use of the Services does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between nestCARE and you.

(c) Accuracy

The Services are intended to provide you with information to encourage you to support your wellness. Some of the Services are aimed at tracking your biometrics.  These Services rely on sensors that track the data. The data and information provided by the or via the Services or sensors are intended to be a representation of your biometrics, but may not be completely accurate.

(d) HIPAA

You understand and agree that User-Generated Content is not protected health information, or “PHI,” as that term is defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).  As such, nestCare is not obligated to protect the privacy or confidentiality of the User-Generated Content in accordance with HIPAA.

You further understand that, while you may elect to share your User-Generated Content with third-parties, including your physician or other health care professional, nestCare does not provide any services on behalf of those individuals which involve the use of PHI.  Accordingly, nestCare will not be deemed a Business Associate to your physician or other health care professional, as that term is defined by HIPAA.  You and your physician or other health care professional are solely responsible for ensuring that communications between you and your physician takes place in a HIPAA-compliant manner.

If you are a health care professional, you agree, in addition to all of the other Terms, that nestCARE is not providing any services on your behalf that involve the use of PHI, and that nestCARE will not be deemed your Business Associate for any purpose.  You acknowledge and agree that any data provided through or via the Services may not be completely accurate and that you will not rely on any such data for the purposes of medical evaluation, diagnosis or treatment.

CHANGES AND REVISIONS

  1. Modifications to the Terms and Product-Specific Terms

(a) Updates to these Terms

nestCARE reserves the right to modify these Terms by (i) posting revised Terms on and/or through the Services, and/or (ii) providing advance notice to you of material changes to the Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on the home page of the nestCARE websites or in our applications). Modifications will not apply retroactively unless required by law.

We may sometimes ask you to review and to explicitly agree to or reject a revised version of the Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms. If you do not agree at that time, you are not permitted to use the Services. In cases where we do not ask for your explicit agreement to a modified version of the Terms, the modified version of the Terms will become effective as of the date specified in the Terms. Your use of the Services following that date constitutes your acceptance of the terms and conditions of the Terms as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.

(b) Product-Specific Terms

We may also require you to agree to additional terms, rules, policies, guidelines, or other conditions that are specific to certain Services (collectively, “Product-Specific Terms”).  In such cases, you may be required to expressly consent to Product-Specific Terms. For instance, you might need to check a box or click on a button marked “I agree.” If any of the Product-Specific Terms are different than the Terms, the Product-Specific Terms will supplement, amend, or supersede the Terms, but only with respect to the subject matter of the Product-Specific Terms.

WARRANTIES, LIMITATIONS ON LIABILITIES, & INDEMNIFICATION

  1. No Warranties

EXCEPT WHERE PROHIBITED BY LAW, nestCARE EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS BASIS. Without limiting the foregoing, you understand that, to the maximum extent permitted by applicable law, we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or any Content. To the maximum extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. Any oral or written advice provided by our agents or us does not and will not create any warranty. To the maximum extent permitted by applicable law, we also make no representations or warranties of any kind with respect to Content; User-Generated Content, in particular, is provided by and is solely the responsibility of the users providing that Content. No advice or information, whether oral or written, obtained from other users or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.

  1. Limitation of Liability

To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall nestCARE, its subsidiaries, partners or any wireless carriers be liable to you or any third party for (a) any indirect, incidental, special, reliance, exemplary, punitive, or consequential damages of any kind whatsoever; (b) loss of profits, revenue, data, use, goodwill, or other intangible losses; (c) damages relating to your access to, use of, or inability to access or use the Services; (d) damages relating to any conduct or content of any third party or athlete using the Services, including without limitation, defamatory, offensive or illegal conduct or content; and/or (e) damages in any manner relating to any Third-Party Content, Third-party Products or Third-Party Activities accessed via the Services. To the maximum extent permitted by applicable law, this limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not nestCARE has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose. To the maximum extent permitted by applicable law, the total liability of nestCARE, for any claim under these Terms, including for any implied warranties, is limited to the greater of one thousand dollars (us $1,000.00) or the amount you paid us to use the applicable Service(s) in the past twelve months.

In particular, to the extent permitted by applicable law, we are not liable for any claims arising out of (a) your use of the Services (including but not limited to your participation in any activities promoted by or accessed via the Services), (b) the use, disclosure, display, or maintenance of any user’s Personal Data and/or Location Data, (c) any other interactions with us or any other users using the Services, even if we have been advised of the possibility of such damages, or (d) other Content, information, services or goods received through or advertised on the Services or received through any links provided with the Services.

To the extent permitted by applicable law, you acknowledge and agree that we offer the Services and set the Services’ prices in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.

If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by nestCARE’s own fraud, recklessness, gross negligence or willful misconduct.

  1. Indemnification

If you are a resident of the United States or any country other than France or Germany: To the maximum extent permitted by applicable law, you agree to indemnify and hold nestCARE, its subsidiaries, suppliers and other partners harmless from any cost, damage, or liability, including accounting and attorneys’ fees, resulting from any claim or demand made by any third party due to or arising out of (a) the User-Generated Content you access or share through the Services; (b) your use of the Services, (c) your activities in connection with the Services (including, but not limited to, monitoring activities, physical activities, wellness or fitness programs and Third-Party Activities where the Services are employed), (d) your connection to the Services, (e) your violation of these Terms, (f) your use or misuse of any user’s Personal Data and Location Data, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another user in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.

If you are a resident of France or Germany: Notwithstanding the previous paragraph, you agree to indemnify and hold nestCARE, its subsidiaries, suppliers and other partners harmless from any cost, damage, or liability, including accounting and attorneys’ fees, resulting from your negligent or intentional behavior giving rise to a claim or demand made by any third party which is due to or arising out of (a) the User-Generated Content you access through the Services; (b) your violation of these Terms, (c) your use or misuse of any user’s Personal Data and Location Data, (d) any violation of the rights of any other person or entity by you, or (e) your employment of the Services to meet another athlete in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.

If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by nestCARE’s own fraud, recklessness, gross negligence or willful misconduct.

JURISDICTION & ARBITRATION

  1. Governing Law

If you are a resident of the United States or any non-European Union country: These Terms shall be governed by and construed in accordance with the laws of the State of Wisconsin and controlling U.S. federal law as applicable, without regard to its conflict of law principles.

If you are a resident of the European Union: These Terms shall be governed by and construed in accordance with Dutch law, without regard to its conflict of law principles.

  1. Disputes and Arbitration, Jurisdiction and Venue

To the maximum extent permitted by applicable law, you and nestCARE agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Services under the rules of the American Arbitration Association.

Any arbitration between you and us, to the extent necessary, will be conducted in Milwaukee, Wisconsin, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.

The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:

  • the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
  • the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
  • any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.

You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:

  • You are giving up your right to have a trial by jury;
  • You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and
  • You must file any claim within one (1) year after such claim arose or it is forever barred.

If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in Milwaukee, Wisconsin, and you and we hereby submit to the personal jurisdiction and venue of these courts.

This agreement to arbitrate will not preclude you or nestCARE from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or nestCARE from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of nestCARE’s intellectual property rights.

In the event of any litigation or arbitration arising from or related to these Terms, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees and all other related expenses incurred in such litigation or arbitration.

  1. International Terms

If you are not a United States resident and you are accessing the Services from outside the United States, you agree to transfer certain information outside your home country to us, and that you will follow all the laws that apply to you.

We provide the Services globally. Our servers and operations are, however, located in the United States, and our policies and procedures are based primarily on United States law. Because of this, the following provisions apply specifically to users located outside of the United States: (i) you consent to the transfer, storage, and processing of your information, including but not limited to User-Generated Content and any Personal Data, to and in the United States and/or other countries; (ii) if you are using the Services from a country embargoed by the United States, or are on the United States Treasury Department’s list of “Specially Designated Nationals,” you are not authorized to access or make use of the Services;  (iii) you agree to comply with all local laws, rules, and regulations including, without limitation, all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Services; and (iv) you acknowledge and agree that these Terms and the relationship between you and nestCARE shall be governed in all respects by the laws of the State of Wisconsin, United States of America, as they apply to agreements entered into and to be performed entirely within Wisconsin between Wisconsin residents, without regard to its or any conflict of law provisions. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject nestCARE or its affiliates to any registration requirement within such jurisdiction or country.

OTHER TERMS

  1. Survival

If our relationship or these Terms terminate, it will not limit any of our other rights or remedies, and any provision of these Terms that must survive in order to give proper effect to the intent and purpose of these Terms will survive termination, including without limitation Sections 3 (Ownership and Use of Content), Section 9 (Safety, Not Medical Advice, Accuracy), 11 (No Warranties), 12 (Limitations of Liability) and 13 (Indemnification).

  1. Miscellaneous

You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms or your use of the Services. The Terms and any Product-Specific Terms constitute the entire agreement between you and us with respect to your use of the Services.

Our failure to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

You may not assign, delegate, or otherwise transfer your account or your obligations under these Terms without our prior written consent. We have the right, in our sole discretion, to transfer or assign all or any part of our rights under these Terms and will have the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.

Our notice to you via email, regular mail, or notices or links displayed in connection with the Services constitutes acceptable notice to you under the Terms. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Services, then it will be considered received twenty-four hours after it is first displayed.

TALK TO US

  1. Contact Us

If you have any feedback, questions or comments about the Services, please contact our Support Group by email, by phone at 1-877-769-6783, or by mail at: nestCARE, 3815 N. Brookfield Rd, Suite 104-259, Brookfield, WI 53045 (USA), and include the subject as “Attn: Legal – Terms and Conditions of Use”. Please be sure to include in any email or postal mail your full name, email address, postal address, and any message.