Terms & Conditions of Sale
Welcome to the online Pro store (the "Store") provided by Nest Labs, Inc. ("Nest"). Your purchase of products ("Products") from the Store constitutes your agreement to be bound by these Terms & Conditions of Sale ("Terms & Conditions") and any additional terms we provide, including but not limited to our Terms of Service.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS & CONDITIONS, YOU SHOULD NOT PURCHASE THE PRODUCTS.
We reserve the right to change these Terms & Conditions at any time, so please review the Terms & Conditions each time prior to making a purchase from the Store. Every time you order Products from Nest, the Terms & Conditions in force at that time will apply between you and Nest. If you have any questions regarding these Terms & Conditions, you can contact Nest.
The Store is for wholesale supply to Nest Pros.
Please read these terms carefully. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please follow the instructions in the Dispute Resolution and Arbitration section below if you wish to opt out of this provision. You may have certain additional legal rights. The disclaimers, exclusions, and limitations of liability under these Terms & Conditions will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties, including exclusions relating to products or services that are faulty or not as described, or the exclusion or limitation of incidental or consequential damages or other rights. For a full description of your legal rights you should refer to the laws applicable in your country or jurisdiction. Nothing in these Terms & Conditions will affect those other legal rights.
Although the Store is accessible worldwide, the Products offered on the Store are not designed and tested for use in all countries. If you choose to access the Store and/or use the Products outside the United States and Canada (each, a "Target Country"), as applicable, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Store and the Products are not designed for use in a non-Target Country and some or all of the features of the Store and Products may not work or be appropriate for use in such a country. To the extent permissible by law, Nest accepts no responsibility or liability for any damage or loss caused by your access or use of the Store and Products in a non-Target Country.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other equipment in the home (e.g., ensuring that the heating, ventilation and air conditioning ("HVAC") system is compatible with the Nest Learning ThermostatTM). You are solely responsible for determining the compatibility of the Products with other equipment in the home, and you accept that lack of compatibility is not a valid claim under the warranty provided with the Products.
Your placement of an order does not create a contract for sale but is an offer to Nest to purchase the Product subject to these Terms & Conditions.
Nest may accept your offer to purchase Products subject to these Terms & Conditions. At that time, Nest will capture payment on the payment card you provided and ship your Product. Nest may obtain an additional authorization from your payment card company to confirm necessary funds are available to purchase the Products requested.
Nest reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.
By providing a credit card or other payment method accepted by Nest, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change or update payment information associated with your Nest account, you can do so at any time by logging into your account and editing your payment information.
4. Availability and Pricing.
All Products offered on the Store are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Products without prior notice. Prices for the Products are subject to change at any time but such changes will not affect any order for Products you have already placed.
5. Sales Tax.
Depending on the order, Nest calculates and charges sales tax in accordance with applicable laws.
6. Title and Risk of Loss Transfer.
Title and risk of loss for Products purchased from the Store passes to the purchaser at the time of delivery by Nest.
7. Shipping and Delivery.
Prices for the Products do not include shipping costs, which are calculated at checkout. Our delivery charges and methods are as described on the Store website from time to time. In the United States, we offer three methods of shipment: Next Day, Second Day and Ground. In Canada, we offer two methods of shipment: UPS Express and UPS Ground. The estimated arrival or delivery date is not a guaranteed delivery date for your order.
The Products available on the Store have been designed, marketed and sold for use by residents of the United States and Canada, as applicable. All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in English/Spanish (U.S.) and English/French (Canada). The Products available on the Store are not intended for use outside of the United States and Canada, as applicable. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you break any such law.
There may be laws in the jurisdiction that you install a particular Product applicable to where and how to install that Product. You should check that you are in compliance with all relevant laws in your jurisdiction. Nest is not responsible for any injury or damage caused by your installation.
9. Returns Allowance Process.
(a) Returns Allowance
(i) In exchange for Nest providing a “Returns Allowance” for Products purchased by you, you agree to the following process with respect to all Product returns by Customers received by you. Google will provide a Returns Allowance of 1% of the purchase price. The purchase price you pay for Products includes this Returns Allowance discount.
(ii) Customers may return Products (the “Customer Returned Units”) to you and receive either a new Product or a refund of the amount the Customer paid you for the Product. Nest may redirect Customers who have purchased Products through your channel or from another Authorized Reseller back to point of purchase for processing any Customer returns (save for claims by Customers under any Product warranty provided by Nest directly to Customers). You will not direct any Customer returns to Nest.
(iii) If the Customer Returned Unit is not in its original, unopened packaging (an “Open Unit”), you will securely store the Customer Returned Unit until it is securely transported to Nest’s designated returns service provider (the “Nest Service Provider”) for recycling and disposal.
(iv) You will not repair or resell the Open Units.
(v) If the applicable Customer Returned Unit remains in its original, unopened packaging, you will resell such Customer Returned Units. You will not return any Customer Returned Units to the Nest Service Provider that are in their original, unopened packaging.
Upon your request, Nest will provide the address, contact and location of the Nest Service Provider in the region for you to return the Open Units.
(i) You are solely responsible for securely collecting, storing, and delivering the Open Units to the Nest Service Provider DDP (Incoterms, 2010).
(ii) You will comply with Nest’s standard return merchandise authorization (“RMA”) process, as provided to you by Nest.
(iii) You will consolidate all returns by serial number and will ship to the Nest Service Provider, following guidelines in the RMA. Any Products sent outside the RMA process will be returned to you at your expense.
(iv) You will provide a pre-alert to the Nest Service Provider at least twenty-four (24) hours before each authorized Product return.
(v) You will cover any applicable shipping fees incurred for shipment of returned Product to the Nest Service Provider.
(c) Sole Remedy
Nest will not issue any credit or make any payment to you for any Open Units returned by Customers. The Returns Allowance provided by Nest is your sole remedy for any Open Units returned by Customers and is provided in lieu of all warranties and obligations given by Nest related to the Products.
(i) Upon Nest’s request, you will provide Nest with certification signed by an authorized employee certifying that Open Units which have been returned by Customers in the most recent calendar quarter had been collected, stored, and delivered in accordance with these Terms & Conditions.
(ii) During the term of this Product Exhibit and for a period of one (1) year following its termination or expiry, you will (and will ensure that your affiliates and any third parties acting on your behalf will), upon Nest’s request, provide evidence reasonably satisfactory to Nest of your compliance with these Terms & Conditions.
(e) Liquidated Damages
For each Open Unit that you do not return in accordance with these Terms & Conditions (each, a “Mishandled Open Unit”), you agree to pay Nest, as liquidated damages not a penalty, an amount equal to the greater of: (a) the costs and fees associated with Nest’s investigation regarding your unauthorized storage or transportation of the Mishandled Open Units; or (b) an amount equal to 10% of the Purchase Price for any Products paid by you in the twelve month period before the unauthorized treatment of the Mishandled Open Unit. The parties agree that these damages are not punitive and are intended to be a reasonable estimate of the damages suffered by Nest in the event of non-compliance. The foregoing damages will be in addition to any other remedies Nest may have in law or in equity.
10. Dispute Resolution and Arbitration PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Arbitration. Nest and you agree to arbitrate all disputes and claims that arise from or relating to these Terms & Conditions or your use of the Products in any way, except for claims arising from bodily injury. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
- claims arising out of or relating to any aspect of the relationship between us that is created by or involves these Terms & Conditions and/or your use of the Products, regardless of the legal theory;
- claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;
- claims that arose before you accepted these Terms & Conditions (such as claims related to disclosures or the marketing of the Products or the process for seeking approval to use the Products and/or Subscription Services);
- claims that may arise after the termination of your use of the Products or any agreement between us; and
- claims brought by or against our respective subsidiaries, parent companies, members, affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities, you, and Nest.
This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Nest may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.
You agree that, by entering into this agreement, we are each waiving the right to a trial by jury or to participate in a class or representative action. These Terms & Conditions are evidence of this transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
(b) Notice of disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Nest should be sent to: Nest Legal Department; 1600 Amphitheatre Parkway Mountain View, California 94043, USA.
Nest will send notice to you at the e‑mail and/or mailing addresses associated with your account. Your notice to Nest must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or we may commence arbitration.
(c) Arbitration procedures. The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1‑800‑778‑7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Nest Products. If the value of your claim is $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider but is not bound by rulings in other arbitrations between Nest and Nest users. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.
(d) Costs of arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1‑800‑778‑7879). Nest will pay all AAA filing, administrative, and arbitrator fees for any arbitration that Nest commences. If you provided Nest with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is $75,000 or less, Nest will pay your share of any such AAA fees. If the value of your claim exceeds $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires Nest to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Nest for amounts that Nest paid on your behalf.
(e) No class arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND NEST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(f) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this section 10, you must notify Nest in writing within 30 days of the date that you first accept these Terms & Conditions (unless a longer period is required by applicable law). Your written notification must be mailed to Nest at the following address: Nest Legal Department, 1600 Amphitheatre Parkway Mountain View, California 94043, USA. Subject to section 10(g) below, if you do not notify Nest in accordance with this section 10(f), you agree to be bound by the arbitration and class-action waiver provisions of these Terms & Conditions, including such provisions in any Terms & Conditions revised after the date of your first acceptance. Such notification must include: (a) your name, (b) the email address associated with your Nest account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Nest through arbitration. This notification affects these Terms & Conditions only; if you previously entered into other arbitration agreements with Nest or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms & Conditions shall not affect the other arbitration agreements between you and Nest.
(g) Future changes to arbitration provision. If Nest makes any changes to the Dispute Resolutions and Arbitration section of these Terms & Conditions (other than a change to the address at which Nest will receive notices of dispute, opt-out notices, or rejections of future changes to the Dispute Resolution and Arbitration section), you may reject any such change by sending us written notice within 30 days of the change to Nest Legal Department, 1600 Amphitheatre Parkway Mountain View, California 94043, USA. It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration section of these Terms & Conditions if you had properly opted out of the arbitration and class-action waiver provisions in this section 10 within the first 30 days after you first accepted these Terms & Conditions. If you have not properly opted out of the arbitration and class-action waiver provisions in this section 10, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
11. Warranties, Disclaimers and Indemnity.
AS FAR AS PERMITTED BY APPLICABLE LAW, THE STORE, AND ALL CONTENT AVAILABLE ON THE STORE, IS PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL PRODUCTS AND SERVICES PURCHASED THROUGH THE STORE ARE PROVIDED ON AN “AS-IS” BASIS UNLESS OTHERWISE STATED IN THE END USER WARRANTY INCLUDED WITH A PRODUCT.
You install any Products at your own discretion and risk. You will be solely responsible for (and Nest and its affiliates disclaim) any and all loss, liability or damages resulting from your use or installation of a Product, including damage or loss to HVAC systems, plumbing, homes, Products, other peripherals connected to the Product, computers, mobile devices, and all other items and pets in the home. Unless explicitly promising a "guarantee," Nest does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of a Product or any feature of it. Actual energy savings and monetary benefits vary with factors beyond Nest’s control or knowledge.
Nest gives no warranty regarding the life of the batteries used in a Product. Actual battery life may vary depending on a number of factors, including the configuration and usage of a Product.
12. Limitation of Liability.
Nothing in these Terms & Conditions and in particular within this "Limitation of Liability" section shall attempt to exclude or limit liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) NEST OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF NEST OR SUCH AFFILIATE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) NEST’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO NEST OR NEST’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR SIX (6)MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. NEST AND ITS AFFILIATES DISCLAIM ALL LIABILITY OF ANY KIND OF NEST’S AND ITS AFFILIATES’ LICENSORS AND SUPPLIERS.
13. Data Protection.
14. Electronic Communications.
You are communicating with Nest electronically when you use the Store or send email to Nest. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order in the Store, we collect and store your email address. From that point forward, your email address is used to send you information about Nest’s products and services unless you opt-out of such emails using the opt-out link in the emails.
Nest may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Nest account, hard copy, or posting of such notice on the Nest website. Nest is not responsible for any automatic filtering you or your network provider may apply to email notifications. Nest recommends that you add @nestlabs.com and @google.com URLs to your email address book to help ensure you receive email notifications from Nest.
16. Force Majeure.
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
17. Protection of Confidentiality and Intellectual Property Rights.
Nest may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
If any part of these Terms & Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed not to form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms & Conditions will remain in full force and effect.
The obligations in Sections 10 through 21 will survive any expiration or termination of these Terms.
Failure or delay by us to enforce any these Terms & Conditions will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
21. Governing Law and Jurisdiction.
These Terms & Conditions are governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Santa Clara County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
End of Terms and Conditions