Welcome to Nestorhawk, a virtual community of online businesses with tools geared towards offering services for sellers including: Operating Your Own Store; utilizing our Hybrid Mobile Applications; Assisted Marketing.
THIS NESTORHAWK AGREEMENT (THE "AGREEMENT") CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND NESTORHAWK. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS & CONDITIONS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY FOR EACH COUNTRY FOR WHICH YOU REGISTER OR ELECT TO USE A SERVICE (IN EACH CASE, THE "ELECTED COUNTRY").
As used in this Agreement, "we," "us," and "Nestorhawk" means the applicable Nestorhawk Contracting Party and any of its applicable Affiliates, and "you" means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates.
Capitalized terms have the meanings given to them in this Agreement. If there is any conflict between these General Terms and the applicable Service Terms and Program Policies, the General Terms will govern and the applicable Service Terms will prevail over the Program Policies.
As used in this Agreement, "we," "us," and "Nestorhawk" means the applicable Nestorhawk Contracting Party and
any of its applicable Affiliates, and "you" means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement. If there is any conflict between these General Terms and the applicable Service Terms and Program Policies, the General Terms will govern and the applicable Service Terms will prevail over the Program Policies.
Service Fee Payments; Receipt of Sales Proceeds
Fee details are described in the applicable Service Terms and Program Policies. You are responsible for all of your expenses in connection with this Agreement. To use a Service, you must provide us with valid credit card information from a credit card or credit cards acceptable by Nestorhawk ("Your Credit Card") as well as valid bank account information for a bank account or bank accounts acceptable by Nestorhawk (conditions for acceptance may be modified or discontinued by us at any time without notice) ("Your Bank Account"). You will use only a name you are authorized to use in connection with a Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in subscription fees, reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Nestorhawk or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Nestorhawk third parties persist. For any amounts that we determine you owe us, we may
1. Charge Your Credit Card or any other payment instrument you provide to us;
2. Offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you;
3. Invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt;
4. Reverse any credits to Your Bank Account; or
5. Collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you.
Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in US dollars as it relates to your monthly/ yearly subscription to Nestorhawk, and all payments contemplated by this Agreement will be made in the specified currency.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Nestorhawk or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because the Nestorhawk Site or Service is unavailable following the commencement of a transaction.
Term and Termination
The term of this Agreement will start on the date of your completed registration for use of a Service and continue until terminated by us or you as provided below. You may at any time terminate your use of any Service immediately on notice to us via Nestorhawk Platform, email, the Contact Us form, or similar means. We may terminate your use of any Services or terminate this Agreement for convenience with 30 days’ advance notice. We may suspend or terminate your use of any Services immediately if we determine that,
you have materially breached the Agreement and failed to cure within 7 days of a cure notice unless your breach exposes us to liability toward a third party, in which case we are entitled to reduce, or waive, the aforementioned cure period at our reasonable discretion;
your account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity; or
your use of the Services has harmed, or our controls identify that it might harm, other sellers, customers, or Nestorhawk’s legitimate interests. We will promptly notify you of any such termination or suspension via email or similar means including Nestorhawk Platform, indicating the reason and any options to appeal, except where we have reason to believe that providing this information will hinder the investigation or prevention of deceptive, fraudulent, or illegal activity, or will enable you to circumvent our safeguards. On termination of this Agreement, all related rights and obligations under this Agreement immediately terminate, except that
you will remain responsible for performing all of your obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination
You grant us a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative intellectual property rights to use any and all of Your Materials for the Services or other Nestorhawk product or service, and to sublicense the foregoing rights to our Affiliates and operators of Nestorhawk Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Materials (provided you are unable to do so using standard functionality made available to you via the applicable Nestorhawk Site or Service); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under International copyright law, referential use under trademark law, or valid license from a third party).
Each party represents and warrants that:
1. If it is a business, it is duly organized, validly existing and in good standing under the Laws of the country in which the business is registered and that you are registering for the Service(s) within such country;
2. It has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights, licenses, and authorizations in this Agreement;
3. Any information provided or made available by one party to the other party or its Affiliates is at all times accurate and complete;
4. It is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, Union or its member states, or other applicable government authority; and
5. It will comply with all applicable Laws in performance of its obligations and exercise of its rights under this Agreement.
Your indemnification obligations. You will defend, indemnify, and hold harmless Nestorhawk and by extension NestorBird Ltd. and our officers, directors, employees, and agents, against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to (a) your non-compliance with applicable Laws; (b) Your Products, including the offer, sale, fulfillment, refund, cancellation, return, or adjustments thereof, Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death (to the extent the injury or death is not caused by Nestorhawk), or property damage related thereto; (c) Your Taxes and duties or the collection, payment, or failure to collect or pay Your Taxes or duties, or the failure to meet tax registration obligations or duties; or (d) actual or alleged breach of any representations you have made.
Nestorhawk’s indemnification obligations. Nestorhawk will defend, indemnify, and hold harmless you and your officers, directors, employees, and agents against any third-party Claim arising from or related to: (a) Nestorhawk’s non-compliance with applicable Laws; or (b) allegations that the operation of an Nestorhawk Site infringes or misappropriations that third party’s intellectual property rights.
Process. If any indemnified Claim might adversely affect us, we may, to the extent permitted by applicable Law, voluntarily intervene in the proceedings at our expense. No party may consent to the entry of any judgment or enter into any settlement of an indemnified Claim without the prior written consent of the other party, which may not be unreasonably withheld; except that a party may settle any claim that is exclusively directed at and exclusively affects that party.
Disclaimer & General Release
1. THE NESTORHAWK SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE NESTORHAWK SITES, THE SERVICES, AND STORE OWNERS AT YOUR OWN RISK. EXCEPT THOSE SET FORTH IN SECTION 5 ABOVE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM:
2. ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT;
3. IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND
4. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE NESTORHAWK SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
5. BECAUSE NESTORHAWK IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES NESTORHAWK (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Limitation of Liability
We WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF NESTORHAWK HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO NESTORHAWK IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
Each store owner will at their own discretion offer up certificates of insurance to their customers. Nestorhawk does not require that insurance be presented by store owners, nor does Nestorhawk recommend that this is done. The offering or the lack thereof is at the sole discretion of the owners of their respective stores.
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that Nestorhawk automatically calculates, collects, or remits taxes on your behalf according to applicable law;. You agree to and will comply with the Tax policies.
NESTORHAWK STORE OWNER SERVICE TERMS
Your Product Listings and Orders
Products and Product Information. You will provide accurate and complete Required Product Information for each product or service that you offer through Nestorhawk and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on Nestorhawk comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on Nestorhawk; or provide any URL Marks for use, or request that any URL Marks be used, on Nestorhawk. If you offer a product for sale on an Nestorhawk that requires a warning you will provide us with such warning in the manner specified in our Program Policies, (b) agree that our display of a Warning on a product detail page is confirmation of our receipt of that warning, and (c) will only revise or remove a Warning for a product when the prior warning is no longer legally required.
Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on Nestorhawk, and conduct merchandising and promote Your Products in accordance with the Agreement (including via the Nestorhawk Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable Nestorhawk Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Nestorhawk may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the applicable Nestorhawk Site.
Shipping and Handling Charges. For Your Products ordered by customers on or through Nestorhawk you will determine the shipping and handling charges subject to our Program Policies and standard functionality.
PRODUCT EXPIRATION POLICY
EXPIRATION DATES ON PRODUCTS
Before listing expiration-dated inventory, ensure that you adhere to the policies and requirements below. Failure to comply may result in removal of your listings or deactivation of your Nestorhawk selling account.
Nestorhawk considers any product with a shelf life, or that loses effectiveness with time, to be subject to expiration, even if an expiration date is not indicated on the product packaging.
Products subject to expiration include but are not limited to:
· Any product that has an expiration date printed on the product or its packaging.
· Consumable products such as potato chips, tea leaves, and nutritional supplements, whether for human or animal consumption.
· Topical products such as skin creams, soaps, shampoos, hair sprays, and cosmetics that are intended for human or animal use.
· Cleaning products such as disinfectant wipes, cleaning sprays and solutions, and detergents.
· Products that include components that can expire, such as a coffee machine that is sold bundled with coffee.
Prepping expiration-dated products
Expiration-dated products must be fully enclosed and sealed in packaging suitable for shipping. Expiration-dated products that require additional prep, such as poly-bagging or bubble wrap, must have labels with expiration dates applied to the outside of the product prep or packaging.
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