Terms of Services v.20
Nesto is provided by Nesto Inc, Ontario Mortgage Brokerage licence number 13044
Version 2.0 posted and effective as of 12-02-2021
These terms of services (or “Terms” for short) are a legal contract between you and Nesto Inc. (Nesto Inc. will be referred to using “we”, “us”, and “our”). These terms govern your access to and use of Nesto’s website (“Site”). Together, the Site and any services rendered or made available through the Site will be referred to as the “Services”.
Please read this document carefully, since it affects your legal rights (including limitations of liability and disclaimers of warranty). By clicking onto the webpages beyond the Site’s homepage but prior to using our Services, it will constitute your acceptance of these Terms. By clicking “I Agree” to start the Services, you will enter a binding legal contract, whether or not you complete a transaction with us and whether or not you complete your transaction on the Site or through other channels, such as by phone, email or otherwise will constitute your acceptance of these Terms. If you do not agree with these terms, or if you lack the capacity or authority to agree to these terms, do not browse the Site, or otherwise access or use the Services.
1. Changes to these Terms
We may amend any part of these Terms by adding, deleting, or varying their content. These amendments may be made from time-to-time in our discretion.
We will provide you with notice of the proposed amendment by posting an amended version of these Terms with a new version number, and a pop-up window directing you to the new version. We will include a link to the previous version of the terms beneath the new version number. The amendments will take effect 30 days after the date on which the amended version is posted. Prior to that date, the previous version of the Terms will continue to apply.
If you disagree with any amendments, you may terminate these Terms by ceasing to use the Services at any time within the 30-day notice period. If the amendment increases your obligations under these Terms, or decreases our obligations under these Terms, then you can also cancel in the 30 days after the amendments take effect. There will be no cost or penalty for doing so. If you do not cease using the Services during that time, then by your continued use, you are considered to have accepted the proposed amendments. Additionally, if you begin using the Services again, you are considered to have accepted the amendments then in effect.
For clarity, the termination of these Terms pursuant to the previous paragraph will not affect any contracts that you have concluded with third-party financial institutions, nor will it affect any other contract you have concluded with Nesto such as those related to financial products or services.
You represent and warrant that you are over the age of 18. We do not allow individuals under the age of 18 to use our Services. If you are a minor, please refrain from using our Services.
3. nesto’s Role in Providing Services and in Related Transactions
To get the most out of the Services, it is important to understand our role in providing the Services.
When we provide information about mortgages or other financial products or services that are not tagged or identified as being offered by Nesto, including approval criteria and interest rates related thereto (collectively, the “Third-Party Services“), we are an information organizer and aggregator. We do not directly generate any of the information about Third-Party Services you see on the Site, and instead this information is provided to us by third parties (generally financial institutions). This information may be inaccurate or incomplete through no fault of ours (for example, because the financial institution has changed its interest rate but has not yet told us about the change). When this happens, your ability to use the Services may be compromised through no fault of ours, and we cannot accept any responsibility for any problems or damages which might occur in relation with such Third-Party Services.
The Site is not a substitute for actual legal, investment or professional advice from a licensed competent individual in their field of expertise. The information and services offered on this Site is provided with the understanding that Nesto is not engaged in rendering legal or other professional services or advice. Your use of the Site is subject to the additional disclaimers and caveats that may appear throughout the Site.
If you decide to conclude or obtain a Third-Party Service through the Site, you will be dealing with third-party financial institutions. Your conclusion of a mortgage, transaction or financial product is not governed by these Terms and will be the subject of a separate contract with Nesto, to the extent such products are identified or tagged as being offered by Nesto. Similarly, these Terms do not govern any Third-Party Services, which are the subject of distinct contracts with the concerned third-party financial institution and may also be the subject of an additional contract with us. For additional information and legal rules related to the conclusion of mortgages or the purchases of goods and services which you located through the Site, please see section 4 below.
4. Purchase of Financial Products and Services Through the App
The Services include brokerage services, which means that we, Nesto, do not offer all mortgages ourselves. Instead, we may act as a mortgage broker. This means that we may only help you to find Third-Party Services (which are, for clarity, offered by third parties), to select a Third-Party Service that you qualify for, and then we put you in touch with the third-party financial institution which offers that mortgage so that you can sign a distinct contract with it. We also provide advice and facilitation services.
In our role as a broker, we are helping both sides to the transaction. Just as we provide you with services and information, we also provide services and information to the financial institutions. Our role is not to favour the interests of either side, but to help both sides reach a win-win outcome.
The final decision about whether your qualify for a given Third-Party Service will be made by the third-party financial institution, and we have no control over this decision nor do we have any liability resulting from such.
We are not a party to your contract with the third-party financial institutions. As such, we cannot accept any responsibility for problems arising from or related to these Third-Party Services, third-party contracts nor any other third-party services (including websites or apps) which are used in the process.
Additionally, before we can forward your offer to a third-party financial institution, you will be required to sign a distinct contract with us, Nesto, that confirms your serious intent to conclude a mortgage with the third party institution, and which may contain other terms and conditions. That contract is between you and Nesto alone, and does not involve the third-party financial institution.
You will be required to create an account in order to use the Services. You must use current and accurate information to create your account. You are limited to a single account, and cannot create multiple accounts, either under your own name or the names of others.
Your account is intended for your use only, and you must not share your log-in credentials with others, nor allow others to access your account. You agree that you are responsible for the confidentiality of your account credentials, and for any activity resulting from the use of your account. You agree to make reasonable efforts to prevent unauthorized access to, or use of our Services. You may not share your account and password, allow third parties to use your account nor assist anyone who is not a registered user to gain access to the Services. You agree to notify us if you become aware of any unauthorized use of your login credentials and to change your password immediately using the built-in functionalities made available to you. If you forget your password, you are responsible for obtaining a new password by following the “reset password” instructions.
6. Acceptable Use Policy
We strive for complete transparency in our dealings with you. We expect the same level of respect in return. This principle is embodied in our acceptable use policy for the Services.
When you upload documents or other information as part of the Services, the following acceptable use policy applies: (i) the copy uploaded must be a true and accurate copy of the original document, (ii) the original document from which the copy/scan was made must be authentic and valid; (iii) the documents must not create a misleading impression of your financial and other circumstances, whether by omission or otherwise; (iv) you must not knowingly upload inaccurate, outdated, or incomplete documents; (v) you must not knowingly upload documents which contain illegal or infringing content, or which you do not have the right to use and copy.
When you use the Services, the following acceptable use policy applies. You must not:
- include any Site content in or with any product or service that you or others affiliated or related to you put out;
- copy any Site content onto your own or any other web site or application;
- use the Site in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse, the Site’s system resources, accounts, servers, networks, affiliated or linked sites, connected to or accessible through the Site (including uploading, posting or otherwise transmitting on the Site computer viruses, Trojan horses, worms or other files or computer programs which are potentially harmful, disruptive or destructive or that may impose an unreasonable or disproportionately large load on the Site’s infrastructure; or using any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from the Site or the Content in whole or in part);
- use the Site or its content in any manner that infringes upon the legal rights of any other person (including privacy and personality rights, copyright, moral rights, and other intellectual property rights), that is unlawful, that violates any right of Nesto, its partners, licensors, content providers, service providers or contractors, that is prohibited in the Terms (including by accessing the Site from any location where such access may be illegal or prohibited), that is unethical, indecent, offensive, defamatory, derogatory, fraudulent, deceptive, harmful, abusive, threatening, vulgar, profane, pornographic, obscene, sexually explicit, sexist, racist, hateful, offensive, harassing, invasive of the privacy rights of others, that is otherwise objectionable or which does not respect the legal rights and interests of others;
- use the Site or its content in any data matching or data mining, including the collection or use of information about other users or distributors (including their e-mail addresses) without their consent;
- post or submit any materials to the Site which would violate any of the restrictions set out in the Terms;
- “mirror” any content of the Site on any other server; and
- use the Site in any manner that may: (A) dilute or depreciate the name and reputation of Nesto, any Marks (as defined herein), partners, licensors, content providers, service providers or contractors thereof, as applicable; (B) interfere with any other persons’ use and enjoyment of the Site or of the Internet generally; (C) result in the circumvention or breach of any user authentication, password, security or control measures regarding the Site or any other internet resource or computer system; (D) conceal or misrepresent the author or origin of any messages or communication, or that impersonate any person, or that falsely state or otherwise misrepresent an affiliation with any other person, including any Nesto Representative; or (E) disclose images of any person or private information about any person (such as names, telephone numbers, e-mail addresses, postal addresses, social insurance or other security number) without that person’s permission.
When interacting with brokers or other employees (via the Services or otherwise) you must maintain the same level of honesty and candour. You must not knowingly or recklessly mislead them about relevant facts and must proactively provide all relevant information of which you are aware.
If we have your consent to do so in accordance with applicable law, whether implied or explicit, you may be contacted by Nesto, its identified partner(s) or their respective representatives by telephone (on a recorded line), automated calling, pre-recorded calling, text message, email, fax, telephone or any means, but you may opt-out from such communications at any time.
In the event you no longer want to receive communications from Nesto or its partners, you can opt-out by clicking or typing (as the case may be) the unsubscribe mechanism provided in the course of written communications, or by telling us that you do not want to be called again, in the case of verbal communications. We will attempt to address your request immediately, but it may take up to 10 days for us to process an opt-out request. Please note that we may still need to contact you for legitimate business reasons such as servicing of your loan or other non-marketing purposes.
8. Privacy and Confidentiality
When you use our Services, you may have access to confidential information about Nesto or other entities, such as the financials, strategic and business information. Confidential information is any information which should be confidential in nature, and which is not publicly available. You may not use or disclose such confidential information except for the purposes of you using the Services.
9. Intellectual Property
“Intellectual Property” means any and all proprietary rights provided under patent law, copyright law (registered and unregistered copyrights and unpublished work of authorship), trademark law, design patents or industrial design law, or any other common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law or know-how generally, or the expression or use of such ideas, and any rights or claims in the foregoing.
You agree and acknowledge that the Services are Nesto’s Intellectual Property, and the content may be protected by copyright owned by Nesto or its licensors. You may not copy the content of our Services or use our trademarks without our written authorization. More specifically, certain names, words, titles, phrases, logos, icons, graphics or designs in the Site, including without limitation Nesto, the Nesto logo, constitute trade-marks, trade-names, trade dress and/or associated products and services of Nesto, its partners, any licensor, content provider, service provider or contractor of Nesto or any other third party (collectively the “Marks”) and may be protected in Canada or elsewhere and their display on the Site does not convey or create any licence or other rights in the Marks. Any use of any of the Marks, in whole or in part, that are accessible via the Site without prior written authorization of Nesto or such third party is strictly prohibited. You may not register domain names that correspond to the Marks.
You may make suggestions, enhancement requests, recommendations or other feedback regarding the Services (“Feedback”). However, if you do so, you agree and understand that we own all rights (including moral rights), titles and interests to the Feedback. You hereby assign to us, without limitation of any kind, all rights, titles and interests therein, and we hereby accept such assignment.
10. Disclaimer of Warranties
NOT APPLICABLE TO QUEBEC CONSUMERS
WE HEREBY EXCLUDE ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING THE APP, SITE AND THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND INCLUDING ANY REPRESENTATION, CONDITION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOTABLY, AND WITHOUT LIMITING THE GENERALITY OF THE PRECEDING PARAGRAPH, WE DO NOT GUARANTEE ANY PARTICULAR LEVEL OF UP-TIME OR AVAILABILITY OF THE SERVICES. THE SERVICES MAY BECOME UNAVAILABLE FOR MANY REASONS, INCLUDING SCHEDULED AND UNSCHEDULED MAINTENANCE BY US.
11. Limitation of Liability
NOT APPLICABLE TO QUEBEC CONSUMERS
WITH THE EXCEPTION OF INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE, WE SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY OR RELATED THE SERVICES, OUR ACTIONS OR INACTIONS, OR THESE TERMS (INCLUDING THE BREACH OF THESE TERMS). THIS LIMITATION OF LIABILITY SHALL APPLY TO ALL DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPERTY, PRIVACY, STATUTE, OR OTHERWISE.
NOTABLY, AND WITHOUT LIMITING THE GENERALITY OF THE PRECEDING PARAGRAPH, WE SHALL NOT BE LIABLE FOR ANY LOST TIME, LOSS OF ENJOYMENT, LOSS OF DATA, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LEGAL FEES AND LITIGATION EXPENSES, HOWSOEVER CAUSED.
If you use the Services for commercial or non-consumer purposes, you agree to indemnify and hold harmless us and our officers, directors, employees, agents, and affiliated companies against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including reasonable legal and accounting fees related to your use or misuse of the Services, or to your breach of these Terms.
a) Termination without Cause
We may terminate these Terms without cause and without prior notice if we choose to discontinue the Services in whole or in part. We may also terminate these Terms if you violate the acceptable use policy in section 6 or otherwise materially breach these Terms.
You may terminate these Terms without cause at any time by ceasing to use the Services. If you begin using the Services again, these Terms will apply.
Sections 2, 4, 6, 7, 8, 9, 10, 11, 12 (if applicable to you), 13(b), and 14 will survive the termination of these Terms regardless of reason, and shall continue to bind both you and us.
Additionally, the termination of these Terms by either of us will not affect any contracts that you have concluded with third-party financial institutions, nor will it affect any other contract you have concluded with us.
a) Governing law
NOT APPLICABLE TO QUEBEC CONSUMERS
These Terms are governed exclusively by the domestic laws of Ontario and the federal laws of Canada applicable therein. The International Sale of Goods Act, RSO 1990, c I.10 or any similar legislation, does not apply to these Terms.
b) Resolution of Complaints
We are committed to customer satisfaction, so if you have a problem or dispute, please let us know and we will try to resolve your concerns. But if we are unsuccessful in doing so within 60 days of your complaint, either of us may pursue dispute resolution as explained in the following two sections.
c) Dispute Resolution
NOT APPLICABLE TO QUEBEC CONSUMERS
All litigation arising from or related to these Terms, or the Services shall be submitted to the exclusive jurisdiction of the courts of Ontario sitting in Toronto.
d) Jury Trial Waiver
All disputes (whether or not subject to arbitration) arising from or relating to these Terms or the Services shall be determined by a judge-alone trial. You and us irrevocably waive any right to a trial by jury which might exist.
You may not assign any of your rights arising under these Terms without our written consent.
f) Status of the Parties
These Terms do not create any relationship of employment, partnership, agency/mandate, trust, franchise, or joint venture. As explained above, we are merely a broker. We do not ourselves offer mortgage financing, nor do we act as agent for either you or the financial institution that you may sign mortgages with. You are not directly contracting with us to provide mortgages or financing.
These Terms can only be amended or suspended by following the procedure set out in section 1, above. No other amendment or suspension is valid, nor can any purported waiver be set up against us unless the waiver follows the procedure for an amendment set out in section 1.
h) Entire Agreement
These Terms (as amended from time to time) constitute the entire agreement between you and us regarding the Services. These Terms (and any amendments) replace and supersede any previous or existing agreement, contract, understanding, or representation regarding the Services.
For clarity, despite this Entire Agreement section, your purchases of financial products or services will be subject to separate agreements with us and with third parties.
General inquiries may be sent to the following coordinates:
2100-2200 Stanley Street