Pro Sales Terms
Terms & Conditions of Sale
Welcome to the online Pro store (the "Store") provided by Nest Labs (Europe) Ltd. ("Nest"). Your purchase of Nest hardware 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 and the terms of the Limited Warranty included in-box with any Nest Product.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR NEST 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 partners appointed as an Authorised Retailer/Reseller only, in accordance with the Selection Criteria.
You may have certain legal rights in accordance with the laws applicable in your country or jurisdiction. 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 in 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 Kingdom, Ireland, France, Belgium, Germany, Austria, Switzerland, Italy, Spain, the Netherlands, Denmark, Sweden, Norway or Finland (each, a "Target Country"), or if you use a Store or Product in a Target Country where that particular, Store or Product has not been made available by Nest (as applicable), you do so on your own initiative, you are solely responsible for complying with the applicable local laws in your country, and you understand and accept that 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. Nest also accepts no responsibility or liability for any damage or loss caused by your use of Products not available in a Target Country Store if you intend on using the Product in this 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 Thermostat). Nest is not 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 theProducts.
Your placement of anorder 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 authorisation from your payment card company to confirm the 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 authorised to use the designated payment method and that you authorise 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 these changes will not affect any order for Products you have already placed.
5. Sales Tax (also known as VAT).
Depending on the order, Nest calculates and charges sales tax in accordance with the applicable laws.
6. Title Transfer.
Title for Products purchased from the Store passes to the purchaser at the time of delivery by Nest to the freight carrier but Nest and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.
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. We offer Standard 3-5 day delivery only. The estimated arrival or delivery date is not a guaranteed delivery date for your order. Refused deliveries will be returned to our warehouse. It may take up to 45 days for the returned items to be identified as refused and processed for a refund (although this does not affect your rights under paragraph 9 below).
The Products available in the specific Target Country Store have been designed, marketed and sold for use by residents of The United Kingdom, Ireland, France, Belgium, Germany, Austria, Switzerland, Italy, Spain, the Netherlands, Denmark, Norway, Sweden, or Finland AS APPLICABLE. All safety warnings, information, instructions, packaging, in-box materials, mobile apps and support services are provided only in English, French, Dutch, German, Spanish and Italian. In other Target Countries, the Store, packaging, in-box materials, mobile apps and support services may not be available in local language. The Products available on the Store are not intended for use outside the United Kingdom, Ireland, France, Belgium, Germany, Austria, Switzerland, Italy, Spain, the Netherlands, Denmark, Norway, Sweden or Finland 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 in which 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.
The provisions set out below sets out Your sole and exclusive remedy for remorse returns and faulty and defective Products.
“Defect” means, with respect to a Product, a defect or fault that materially impairs the functionality of that Product, and “Defective” shall be construed accordingly. “Opened Unit” means any Products (or any component thereof), including remorse returns or open box, which are not still in their original, undamaged and unopened packaging
For each unit of Product purchased by You, Nest will pay You a returns allowance as part of the Purchase Price (the “Returns Allowance”).
You agree that, given the nature and pricing of the Products, the Returns Allowance is in lieu of all warranties and conditions given by Nest relating to the Product. Accordingly:
a) You shall not return any Products to Nest for any reason unless expressly permitted by Nest; and
b) Nest shall have no liability to You as a result of, or in connection with, any defect in or return of the Products and Your sole remedy (and Nest’s sole liability) in respect of any Product Defect or return shall be the Returns Allowance.
Treatment of Opened Units
You will in respect of all Opened Units:
a) where the Product has functionality to enable a “factory reset” perform a “factory reset” or if Nest notifies You that Nest has in place a technical process to remove all data from Opened Units, implement such process in respect of all Opened Units; and
b) destroy all Opened Units in accordance with the following:
(i) ensure that Opened Units are kept secure until they are destroyed;
(ii) carry out such destruction and any associated, transportation, storage and disposal (including of all associated waste) in compliance with all applicable laws and regulations, including applicable e-waste and environmental standards;
(iii) comply with all applicable laws and regulations with respect to personal data that You process and any Opened Unit in Your possession, custody or control;
(iv) within ten (10) calendar days of the end of each calendar quarter, provide Nest a report identifying all Opened Units including their applicable serial number; and
(v) at Nest’s request, provide Nest a certificate signed by a You evidencing destruction, transportation, storage and disposal of Opened Units in accordance with the provisions of this clause.
You will upon Nest’s request, provide evidence satisfactory to Nest of Your compliance with this clause.
(a) Contact Nest First. If a dispute arises between you and Nest, our goal is to learn about and address your concerns. You agree that you will notify Nest about any dispute you have with Nest regarding these Terms & Conditions by contacting Nest.
(b) 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.
11. Warranties,Disclaimers and Indemnity
As far as permitted by applicable law and without affecting your statutory rights, 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 purchased through the Store are provided on an "as-is" basis unless otherwise noted in the Limited Warranty included with a Product. With respect to Nest Products, you may choose whether to make a claim under these Terms & Conditions or the Limited Warranty or both, but you may not recover twice in respect of the same loss. To initiate a return under the Limited Warranty for your Nest Product, you should contact Nest.
You install any Products at your own discretion and risk. You will be solely responsible for (and Nest disclaims) 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 them. 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.
You will defend and indemnify Nest, its affiliates, and their respective directors, officers, and employees against all settlement amounts approved by You and any liabilities, damages, losses, costs, fees (including legal fees), and expenses in connection with any third-party claim or legal proceeding (including action by a government authority) to the extent arising from :
(a) Your breach of warranty, negligence, willful misconduct, fraud, misrepresentation, or violation of applicable laws;
(b) any property damage, personal injury, or death related to Your performance of installation services;
(c) any breach of this Agreement or applicable laws and regulations;
Nest will tender sole control of the indemnified portion of the legal proceeding to You provided that:
(a) Nest has the right to approve controlling counsel, such approval not to be unreasonably withheld (and which approval may be withheld or withdrawn if there is a conflict of interest);
(b) Nest may appoint its own non-controlling counsel; and
(c) any settlement requiring Nest to admit liability, pay money, or take (or refrain from taking) any action, will require Nest’s prior written consent.
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 ITS AFFILIATES 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 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 the 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.
Notwithstanding the foregoing, 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 to not 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 of 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 Irish law. A contract for the purchase of Products through the Store and any dispute or claim arising out of or in connection with it will be governed by Irish law. The courts of Ireland will have non-exclusive jurisdiction. You also may have the right under relevant consumer protection laws to bring proceedings in your country of residence.