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Latest update: 2nd September 2021
These terms of use (the “Terms of Use“) govern the use of the Website and the Application (as defined below) and are entered into by and between:
and
The User and EPV are hereinafter together referred to as the “Parties” and individually as a “Party”.
These Terms of Use complement the Privacy Policy.
The User may contact EPV during business hours at the following e-mail address [info@estating.com] or by mail to EPV’s registered office.
Some of those clauses included in the Terms of Use only apply to the User when he/she is a Consumer. These clauses are specifically highlighted.
Account means user account created by the User via registration on the Application and enabling him/her to access and use the Services on the Application.
Affiliate means any entity which directly or indirectly controls, is controlled by or is under common control with EPV.
Anti-Corruption Laws means all (national and international) applicable anti-corruption, anti-bribery, and anti-money laundering laws and regulations.
Application means the application provided by EPV either via mobile application downloaded with App Store or Google Play or via the web browser application app.estating.com.
Confidential Information relating to a Party means any information (verbal, visual or written) relating to the disclosing Party (Disclosing Party) that is not generally known outside of this Party and acquired directly or indirectly by another Party (the Receiving Party) during the conclusion or in the course of the performance of these Terms of Use, including, where appropriate and without limitation, information relating to the Disclosing Party’s intellectual property, research, technology and know-how, business plans, licenses, data, patent disclosures, patent applications, structures, models, techniques, processes, compositions, compounds, third party confidential information, software, algorithms, current and future products and services, business and financial information, client or shareholder information, procurement requirements, manufacturing, business forecasts, marketing information, the list of distributors, information concerning accounts or funds managed, as well as any information that has been labelled or identified as “Confidential” or that the Receiving Party ought reasonably to have known was confidential at the time of disclosure. User Content is not deemed to be Confidential Information to the extent that it does not allow the identification of the User or any of the User’s clients.
Consumer means any natural person who acts for purposes that do not fall within the scope of his commercial, industrial, artisanal or liberal activity according to the Luxembourg Consumer Code (Code de la Consommation).
Date of Acceptance means the date on which the User has accepted the Terms of Use pursuant to article 3, in Luxembourg local time.
Intellectual Property Rights mean all intellectual property rights in, to and in relation to (i) the Website and the Application ) and (ii) data made available through the Website and/or the Application, in particular but without limitation any present or future ideas and rights to inventions (whether or not patentable or reduced to practice), patents, all copyright and author’s rights and rights in software (including without limitation moral rights, as well as the rights of reproduction, distribution, communication to the public, renting and lending), trademarks (whether registered and unregistered), service marks, brand names, product names, logos, slogans, trade names, company names and reputation, domain names, database right, rights in confidential and/or proprietary information (including without limitation know-how and trade secrets), rights in software (including without limitation algorithms, APIs, source, executable and object code, apparatus, circuit designs and assemblies), network configurations and architectures, concepts, marketing and development plans, methods and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. For the avoidance of doubt, Intellectual Property Rights also includes any programming fixes, updates, upgrades, modifications, enhancements, improvements, configurations, extensions, additions and derivative works of the foregoing and related documentation.
Personal Data means information relating to an identified or identifiable natural person, pursuant to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the GDPR).
Privacy Policy means EPV’s privacy policy available at https://www.estating.com/privacy-policy.
Professional means any natural or legal person, whether public or private, who acts, including through another person acting in his/her name or on his/her behalf, for the purposes falling within the scope of his/her commercial, industrial activity, artisanal or liberal, according to the Luxembourg Consumer Code (Code de la Consommation).
Services means the provision of the Application enabling the offering of a global digital marketplace for real estate properties, connecting investors and sellers via fractional ownership protected inside the regulated financial system.
User means a Consumer or a Professional, independently of his/her quality of investor, property seller, financial assistant, and other function, who uses the Website and/or the Application.
User Content means any data and/or information in the form of text, image, video, audio, 3D-files or any another format provided by the User to be shown or published on his/her Account and/or on the Platform.
User ID means the personal username used for identification by the User and his/her Account on the Application and the password protecting the access to the Account.
Website means the website of EPV accessible via the link www.estating.com.
The User should read these Terms of Use carefully before using the Website and/or the Application.
As regards the Website, by the sole use of the Website, you acknowledge and agree to have read, understood, and agreed to be bound by the Terms of Use without limitation or reservation.
In view of the use of the Application, by clicking on the “I have read, understood and accepted the Terms of Use” button, the User acknowledges and agrees to have read, understood and agreed to be bound by the Terms of Use without any limitation or reservation.
In case the User disagrees with the Terms of Use, he/she shall not consult and/or use the Application, Website, or any of the Services provided.
In order to access the Application and benefit from the Services, the User must register on the Website by creating an Account that will be protected by a personal username and password (i.e. the User ID).
To create an Account and use the Application, the User agrees to provide true, accurate, up-to-date, and complete information during the registration process, and to notify EPV immediately of any changes thereof, in order for the registration data to be truthful, accurate, complete, and up-to-date at all times.
The User acknowledges that his/her Account is strictly personal and that he/she may not create more than one Account to access and/or use the Website and/or the Application, either with the same User ID or with a different User ID.
The User is liable for all access and use of the Application made with his/her User ID and is responsible for taking all appropriate measures to keep his/her User ID confidential.
Furthermore, the User undertakes to take all appropriate measures to prevent harmful agents or components from entering his/her or our systems and to prevent any unauthorized or unlawful or infringing access or use of the Website and/or Application through his/her User ID.
The User agrees not to give access to his/her Account to any third party.
EPV may not be held liable for any unauthorized or unlawful or infringing access or use of the Website and/or Application through a User ID.
Additionally, the User shall not:
In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, we reserve the right to suspend or terminate the Terms of Use with immediate effect and/or your use of the Website and/or the Application in accordance with Clause 15.
The Website and the Application are made available on an “as is” basis.
EPV does not warrant that the Website and the Application will operate error-free or in an uninterrupted manner or that the Website and the Application content shall meet the User’s requirements or expectations or that it will fit any particular purpose.
The content accessed through use of the Website and the Application is provided for general information only and is not intended to be used as the sole basis for any decision. It is not intended to amount to advice (of any nature) on which you should rely. As a Professional, you are liable for any action on the basis of content accessed through use of the Website and/or Application.
EPV makes reasonable commercial efforts to ensure content accessible through the Website, the Application, or the Services is up to date and accurate. However, because EPV obtains the content from a number of different sources (including information provided by you) we do not endorse, support, represent, warrant, or guarantee the completeness, truthfulness, accuracy, or reliability of any content accessed or accessible using the Services. You understand that by using the Services, you may be exposed to content that might be inaccurate or deceptive.
If you do become aware of any inaccurate or incorrect content accessed or accessible using the Services (in particular pertaining to yourself or other individuals) please let us know at [data.protection@estating.com] and we will use our reasonable endeavors to investigate your concern and, where appropriate and possible, correct inaccurate data.
We assume no responsibility for the content of websites linked on the Website and/or Application. Such links should not be interpreted as endorsement by us of those linked websites and we will not be liable for any loss or damage that may arise from your use of them.
In no event shall we be liable to you for any loss or damage (whether direct or indirect), including but not limited to loss of profits or revenue or data, resulting from any business interruption, any loss of anticipated savings, any loss of goodwill, opportunity or reputation, arising under or in connection with: (i) use of, or inability to use the Website or the Application; or (ii) use of or reliance on any Data accessed via the Website or the Application.
We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Website and/or Application, or on any website linked to the Website and/or Application.
Nothing in the Terms of Use shall be construed as excluding or limiting our liability in case of gross negligence or willful misconduct, or any liability which cannot be excluded or limited under applicable law.
Security and confidentiality issues have been taken into account by EPV when developing the Website and the Application. In case the information available on the Website and/or the Application and/or the data transmitted by or to the User would, despite the technical protection measures implemented by EPV, be intercepted, decrypted, transmitted to or used by any third party, altered, modified or deleted, EPV declines any liability in relation to direct or indirect consequences which would result therefrom for the User.
EPV declines any liability in relation to the direct or indirect consequences:
(a) of problems relating to the accessibility or availability of the Website and/or the Application for reasons beyond the control of EPV; and
(b) of problems relating to the incompatibility of the Website and/or the Application with the User’s IT equipment, its configuration, its Internet connection, or in case of incapacity of the User’s equipment to retrieve the information available on the Website and/or the Application in an appropriate manner and/or to transmit the information relating to the User; and
(c) of any damages caused to the User’s hardware or software configuration, as well as of any loss of data resulting from the use or the inability to use the Website and/or the Application; and
(d) of the use of electronic communication means (including but not limited to e-mail) for purposes of communication between EPV and the User which would contain computer viruses or be intercepted or altered by third parties.
The User accepts that any use of the Website and the Application will be under his/her own responsibility.
EPV reserves the right to modify the Website and/or the Application, to modify or delete any information available on the Website and/or Application or to cease its publication at any time.
EPV will in no event be held liable for any direct or indirect damages resulting from the use of the Website and/or the Application or of information available on the Website and/or the Application, in particular, any operating, financial or commercial loss or loss of programs and/or of data, in particular in the User’s information system.
EPV shall use reasonable efforts to ensure that maintenance of the Website and the Application, which may require interruption of your access to the Website and/or the Application or any material part of it, shall not be performed during business hours provided that we may interrupt access to the Services at any time to perform essential emergency maintenance.
During maintenance periods, we may, at our discretion, upgrade versions, install error corrections and apply patches to the Website or the Application or any part of it.
Should the Website or the Application include a defect, you may at any time file error reports by contacting our helpdesk at [info@estating.com].
The Website and the Application may include software, data, and information provided to us by third parties, and therefore the correction of errors and resolution of defects and other problems may require third party action and not be entirely within our control. We may not be liable for any negative consequences that may arise from third-party software.
9.1 EPV Intellectual Property Rights
Subject to the limited rights expressly granted to the User in clause 9.2 below, the User expressly acknowledges and agrees that we hold and reserve all of our Intellectual Property Rights as defined.
EPV hereby grants the User a limited, non-exclusive, revocable, non-sublicensable, and non-transferable right to access and use the Intellectual Property Rights for the sole and exclusive purpose of accessing and using the Website or the Application under the conditions set forth in the Terms of Use. All rights not expressly granted to you under the Terms of Use are reserved by us (and/or our licensors).
You agree that the Website or the Application and the Intellectual Property Rights are EPV’s sole property or, where appropriate, the property of EPV’s licensor and that you will not (without express written consent from EPV):
(i) create derivative works incorporating any of the elements of, or based on, the Intellectual Property Rights except to the extent such derivative works are an essential technical or management function of your use of the Platform and Services;
(ii) reproduce the Intellectual Property Rights, sell or assign, license or disclose or otherwise transfer or make available the Intellectual Property Rights in any form to any third party;
(iii) remove or alter any proprietary notices or marks on the Website or the Application; or
(iv) copy, distribute, communicate, modify, translate, reuse, disassemble, decompile, reverse compile, reverse engineer, frame, mirror, or otherwise access in any way the source codes of any of the Intellectual Property Rights or any portion thereof except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation or the Terms of Use.
You must not under any circumstances (i) use information or content from the Website or the Application to build a database for resale, or for access by, you or any third party in competition with us; (ii) authorize or, by failure to exercise commercially reasonable efforts to protect information from the Platform, permit such information to be made available in any way to a third party, including any third party that resells data in competition with us.
9.2 Right of reference and use of the logo
You hereby expressly grant us the right to reference your trade name or the name of your company in marketing, sales, financial, and public relations materials and other communications, including for business development purposes, solely to identify you as an EPV client.
You hereby expressly grant us with a non-exclusive, royalty-free, license to use your companies’ logo(s) in our company’s advertising, literature, and websites solely in connection with the marketing and promotion of the Website and/or the Application, worldwide and for the duration of the Terms of Use.
We shall not be entitled to use your trade name or logo or your company’s name or logo otherwise than as expressly stated herein, without your prior written permission.
During and in the context of the use of the Website or the Application, the Parties may access, use or interact with third-party services.
These Terms of Use do not apply to third-party services, of which the uses are governed by their respective terms and policies.
In the event that you are notified by a third party that such party claims rights in the Website or the Application or that the use of the Website or the Application infringes the rights of such third party, you will immediately notify us and at our request immediately cease to use the Website or the Application.
You will defend, indemnify and hold us (including our directors and employees) harmless from and against any liability, costs (including without limitation any legal or other professional costs), expenses, losses, damages (including any direct, indirect or consequential losses, loss of profit, loss of business opportunity, loss of reputation), interest and penalties suffered or incurred by us arising from or in any way related to (i) your use of the Website and/or the Application (except to the extent such claims arise directly from our breach of applicable law); and/or (ii) your breach of the Terms of Use.
In the context of the use of the Platform, each Party agrees and undertakes to respect and comply with all the Anti-Corruption Laws applicable.
Each Party warrants that it has taken reasonable measures to ensure that itself, its directors, officers, employees, agents, subcontractors, or any other third party under its control or influence, comply with all of the Anti-Corruption Laws applicable.
Each Party undertakes to comply, without undue delay, with all reasonable requests made by the other Party in the context of its compliance to the Anti-Corruption Laws (including but not limited to the performance of KYC checks), and to promptly report to the other Party any activity, request or demand received for any undue financial or another advantage in the context of the use of the Platform, and to take the appropriate steps in regards to the Anti-Corruption Laws.
If a Party brings evidence that the other Party has been engaging in material or several repeated breaches of the Anti-Corruption Laws it will notify the latter Party accordingly and require such Party to take the necessary remedial action in a reasonable time and to inform it about such action if the applicable laws and regulations so permit.
Any proven and serious breach of or non-compliance with the provisions of this article by each Party are cause for immediate termination without notice, without prejudice of any outstanding obligations from the Party in breach or non-compliance, it being understood that all amounts or obligations contractually due at the time of suspension or termination of the use of the Platform will remain due and payable, as far as permitted by Luxembourg law.
The Parties acknowledge that they each might receive or have access to Confidential Information from the other Party, and agree to provide all reasonable efforts to keep the information confidential and to prevent it from being accessed by unauthorized persons.
The Parties agree not to disclose the Confidential Information to any other person of their staff or affiliated person unless strictly necessary within the context of the execution of these Terms of Use. The Parties will ensure that each recipient of the Confidential Information in accordance with this provision complies with the Terms of Use.
The Receiving Party may not without permission of the Disclosing Party release any Confidential Information to any person or entity, other than, on a “need to know” basis in the scope of its rights and obligations under these Terms of Use, to its personnel or members of management or to its accountants, attorneys, sub-contractors and other professional advisers, all of whom are to be bound by confidentiality obligations not less strict than those set out herein.
The confidentiality obligations set out in this clause does not apply to information that:
(i) at the time of disclosure is generally known or publicly available, or after disclosure becomes generally known or publicly available through no fault of the Receiving Party; or that
(ii) the Receiving Party rightfully obtained from a third party that is entitled to disclose the information and that is not under a confidentiality obligation to the Disclosing party in respect of such information.
Each Party must preserve the confidentiality of Confidential Information with the same level of protection it uses to protect its own confidential information but in no case any less than reasonable care.
This clause stays in effect for five years after termination of these Terms of Use.
The User should review EPV’s Website Privacy Policy to understand how and why User data is processed by EPV. The User is informed that Estating Property Vault S.A is the data controller.
In the event that the User processes any Personal Data for his/her own use in the context of his/her access or use of the Website and/or Application, the User acknowledges that he/she acts as an independent controller, within the meaning of the GDPR for said Personal Data, and undertakes to comply with the GDPR at all times.
15.1 Term
The Terms of Use will be in force, in principle, for an indefinite period from the Date of Acceptance.
15.2 Termination
The Parties may terminate the Terms of Use at any time and for any reason. Termination of the Terms of Use (or of any element of it) will not affect any rights, obligations, or liabilities of either Party which have accrued before termination (or which are expressly stated in the Terms of Use to continue to have effect beyond termination). Your entitlement and license to use the Website and the Application will cease on termination of the Terms of Use and you must completely delete all electronic copies of all or part of the Website and the Application or of the Services resident in your systems or elsewhere.
We may terminate these Terms of Use, without reason and without recourse to the courts, by written notice sent to the User via e-mail. The Terms of Use must then be terminated following thirty (30) calendar days’ notice as from the date of said written notice.
The User may terminate the Terms of Use at any time, without reason, by deleting his or her Account or by addressing a request by email at the following address: [data.protection@estating.com]. We will revert to you shortly and terminate your Account accordingly. Termination will be effective ten (10) calendar days from the date of your request.
If the User is a Consumer, the User acknowledges that, within the 14 days after the Date of Acceptance of the Terms of Use, the User has the right to withdraw from the Terms of Use by simple written request (email or mail) to EPV.
In the event of material breach of the Terms of Use, EPV is entitled to suspend the User’s Account, remove the concerned User Content or terminate the Terms of Use with immediate effect as from the date of notification of such breach by us to the User, without recourse to the courts (de plein droit). The User expressly acknowledges and agrees that any violation by the User of Our Intellectual Property Rights, any infringement by the User of the rights of any third party while accessing and/or using the Platform or the Services, or the applicable Anti-Corruption Laws, or any dissemination of User Content that is related to or promotes illegal, illicit or immoral activities will constitute a material breach of the Terms of Use.
15.3 Consequences of termination
In the event of termination for any reason, the User acknowledges that we will be entitled to delete the User-related Account and any User Content and that as such, the User may no longer access the Website and/or the Application.
Until the end of the notice of termination period, the User may retrieve and download the documents and User Content made accessible through the Account. The User acknowledges that after the termination becomes effective, we have no obligation whatsoever to provide the User with a copy of any data, including the User Content that may no longer be accessible to the User as a result of the termination of the Terms of Use.
15.4 Amendment of the Terms of Use
We reserve the right, at any time and at our sole discretion, to amend the provisions of the Terms of Use or to change, suspend or discontinue the Website, the Application or the related Services (or any part thereof). We may also impose limits on certain features and Services or restrict your access to parts or all of the Website or the Application without notice or liability.
You will be informed of any modification of the Terms of Use via an appropriate method of information, such as e-mail, and will be deemed to have accepted any of these modifications in the event you continue accessing or using the Website or the Application after thirty (30) calendar days as from the date of our notification of the modification without having terminated the Terms of Use in the conditions set out in clause 15 above. The Terms of Use, as modified, will then be applicable to the access and use of the Platform.
If you do not wish to be bound by any modification of the Terms of Use, you undertake to immediately delete your Account and stop accessing and using the Website and the Application.
16.1 Notices
General notices, demands, and requests of the User to us will be made at the following e-mail address: [info@estating.com]. Notices, demands, and requests related to the Terms of Use or the Privacy Policy will be made at the e-mail address: [data.protection@estating.com].
16.2 Entire agreement
The Terms of Use and other applicable contracts concluded between the Parties represents the entire agreement between the Parties relating to the exact subject matter hereof and supersedes all prior agreements, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer, agent, employee or representative of either of the Parties as well as applicable non-mandatory local laws and international regulations.
16.3 Force Majeure
Neither Party will be responsible or liable for any failure to perform its obligations due to proven causes beyond its reasonable control, including but not limited to acts of God, war, riots, terrorist acts, embargoes, acts of military authorities, fires, floods, earthquakes, accidents, strikes, pandemics, failure of any communications services for the duration of any such circumstances or cause.
16.4 Assignment
We are entitled to assign, transfer or otherwise sub-contract any or all of our rights or obligations under the Terms of Use to a third party. In case of sub-contracting, we will remain responsible for the acts and omissions of the sub-contractor to the same extent as if it had carried out the obligations itself pursuant to the Terms of Use.
16.5 Severability
If any provision of the Terms of Use is held to be invalid or unenforceable in whole or in part by the competent courts, then such provision must be construed, as closely as possible, to reflect the intentions of the invalid or unenforceable provision and the validity of the other provisions of the Terms of Use will not be affected thereby.
16.6 No agency
Nothing in the Terms of Use will be construed as creating a partnership or joint venture of any kind between the Parties or as constituting either Party as the agent of the other Party for any purpose whatsoever and neither Party will have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose.
The Terms of Use and any dispute or claim arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with Luxembourg law.
The Parties irrevocably agree that the courts of the city of Luxembourg, Grand Duchy of Luxembourg, will have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Terms of Use or its subject matter or formation.
