These terms and conditions, including all appendices, exhibits and attachments (“Terms and Conditions”) are incorporated by reference into and made part of the Business Services Agreement. The Business Services Agreement governs Customer's access to and use of the services and forms a binding contract between ZNest and Customer. Capitalized terms have the definitions set forth herein.

CUSTOMER ACCEPTS THIS AGREEMENT AND AGREES TO ITS TERMS BY: (A) CLICKING A BOX INDICATING ACCEPTANCE; (B) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; (C) LICENSING SERVICES VIA THE SITE; (D) REGISTERING FOR A COMPLIMENTARY LICENSE; OR (E) ACCESSING AND/OR OTHERWISE USING ANY SERVICES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY.

THIS AGREEMENT CONTAINS DISPUTE RESOLUTION PROVISIONS THAT REQUIRE, WITH LIMITED EXCEPTIONS, BINDING ARBITRATION AND WAIVER OF JURY TRIALS.

CUSTOMER SHALL NOT ACCESS OR USE ANY SERVICES IF CUSTOMER DOES NOT AGREE WITH, OR IS OTHERWISE UNABLE TO BE BOUND BY, THESE TERMS AND CONDITIONS.

ZNest's direct competitors are prohibited from accessing and/or using the Services, except with ZNest's prior written consent.

This Agreement is effective as of the date of Customer's accepting this Agreement as set forth above (the “Effective Date”). For clarity, if Customer registers for and/or is otherwise granted access to ZNest's products and/or services (a) as part of a free trial or (b) free of charge (each, a “Complimentary License”), the applicable provisions of this Agreement will also govern such Complimentary License.

ZNest reserves the right to revise these Terms and Conditions at any time in ZNest's sole discretion. Any such revised terms will be made available via the Site with the date of last update, effective immediately, and additional notice may be provided to Customer via email and/or by other means. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER'S (OR ANY USER'S) CONTINUED ACCESS TO AND/OR USE OF THE SITE, SERVICES IN ANY WAY THEREAFTER REPRESENTS CUSTOMER'S ACCEPTANCE OF AND AGREEMENT WITH SUCH REVISED TERMS.

1. DEFINITIONS

   • "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” (including “controlled by” and “under common control with”) for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

   • “Agreement” means the Business Services Agreement, which Business Services Agreement is comprised of these Terms and Conditions and each Order Form, which is incorporated therein by reference.

   • “Anonymized Data” has the meaning set forth in Section 4 of these Terms and Conditions.

   • “Complimentary License” has the meaning set forth in the preamble hereof.

   • “Customer” means (a) in the case of an individual accepting this Agreement on his or her own behalf, such individual, or (b) in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.

   • “Customer Content” means data, information, images and/or other digital media made available by or on behalf of Customer, its Affiliates and/or Users to the Services and/or to ZNest in connection with the Services. Customer Content includes Customer Data, but does not include Anonymized Data.

   • “Customer Data” means factual information, data, images and/or other digital media pertaining to Facilities (including the number of beds or units, location, leasing information, exterior and interior images, etc.) that is inputted, uploaded or otherwise made available to ZNest via Customer's account in connection with the Services. Customer Data does not include (a) residents' documentation or personal information, nor (b) Anonymized Data.

   • “Envelope” means each electronic record containing one or more electronic documents that Customer may send to a recipient to sign through a third party electronic signature provider. An Envelope may have one signer or many signers and may contain information such as envelope statuses (e.g., sent, delivered, completed, voided), information about the sender and delivery procedure.

   • “Facility” means each assisted living facility, independent living facility, memory care facility, nursing home and/or other similar facility or entity in the senior care industry that is associated with Customer's account.

   • “Order Form” means an ordering document and/or online order, as applicable, specifying the Services to be provided hereunder and associated business terms, which document is entered into between, or online order is otherwise agreed to by, Customer and ZNest, including any addenda, exhibits and/or supplements thereto.

   • “Services” means products and services that are provided by or on behalf of ZNest to Customer through ZNest's website (available at www.znest.com and related domains) and mobile applications (together, the “Site”), pursuant to an Order Form.

   • “Subscription Effective Date” means, with respect to each Order Form, the earlier of (a) the execution date of such Order Form, and (b) the date on which any Services are first made available to Customer pursuant to such Order Form.

   • “Subscription Term” has the meaning set forth in Section 9.1(a) of these Terms and Conditions.

   • “Terms and Conditions” has the meaning set forth above.

   • “User” means, each individual (a) who is authorized by Customer to access and/or use the Services on behalf of Customer and/or Customer's Affiliates, and/or (b) to whom Customer (or, when applicable, ZNest at Customer's request) has supplied a user identification and password for use on behalf of Customer and/or Customer's Affiliates. Users may include, for example, employees, consultants, contractors and agents of Customer, Customer's Affiliates and third parties with which Customer transacts business.

   • “ZNest” means ZNest Seniors, Inc.

2. SERVICES

   • 2.1 General.

     Subject to the terms and conditions set forth herein, ZNest will:
     1. (a) make the applicable Services available to Customer pursuant to this Agreement;
     2. (b) use commercially reasonable efforts to provide Customer with ZNest´&apos´s standard support for the Services; and
     3. (c) use commercially reasonable precautions to prevent unauthorized access to or unauthorized use of the Customer Content.
     Customer acknowledges that (a) ZNest may make enhancements, updates, or modifications to the Services from time to time and (b) content made available via the Services (including forms and templates made available via the Document Library) are provided “As-Is”.

   • 2.2 Authorized Use. (a) License to Customer. Subject to the terms and conditions of this Agreement, ZNest grants Customer and its Users a limited, non-exclusive, non-transferable, non-sublicensable (except as provided herein) right to access and use the Services solely during the Subscription Term, solely for Customer's and its Affiliates' business purposes. Customer agrees that its agreement to the terms herein is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ZNest regarding future functionality or features. (b) License to ZNest. Customer grants to ZNest and its Affiliates a worldwide, non-exclusive, perpetual, royalty free license to use, host, copy, modify, distribute, store, link, display, reproduce and/or transmit all or part of the Customer Data throughout the world and also sublicense all or part of the Customer Data and such foregoing rights and licenses, in each case, in connection with the Services.

   • 2.3 Complimentary Licenses. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, COMPLIMENTARY LICENSES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ZNEST SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO COMPLIMENTARY LICENSES; NOTWITHSTANDING THE FOREGOING, IF SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, ZNEST'S LIABILITY WITH RESPECT TO COMPLIMENTARY LICENSES SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (USD$100.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ZNEST FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE SERVICES PURSUANT TO A COMPLIMENTARY LICENSE, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER

   • 2.4 Customer Responsibilities. Customer will (a) be responsible and fully liable for (i) all uses of the Services via Customer's (and Users') accounts, with or without Customer's knowledge or consent, (ii) its Affiliates' and Users' compliance with this Agreement, and (iii) Users' use of Customer Content with the Services, (b) be responsible for maintaining the security of Customer's credentials and files, use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify ZNest promptly of any such unauthorized access or use, and (c) use Services only in accordance with this Agreement (including each Order Form), Policies, and applicable laws and government regulations. Any use of the Services in breach of the foregoing via Customer's account that in ZNest's judgment threatens the security, integrity or availability of the Site and/or Services, may result in ZNest's immediate suspension Customer's access to the same, provided that ZNest will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension

   • 2.5 Usage Restrictions. The Services shall not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Customer will not, and will not allow its Users or others to: (a) make the Services available to anyone other than Customer or Users, or use the Services for the benefit of anyone other than Customer, in each case, unless expressly permitted in this Agreement, (b) sell, resell, license, sublicense, distribute, rent or lease the Services or, or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) use the Services to access, copy or use any ZNest intellectual property, except as expressly permitted under this Agreement, (h) modify, copy, or create derivative works of the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, (j) disassemble, reverse engineer, or decompile the Services, or (k) access the Services to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Services, (iii) copy any ideas, features, functions or graphics of the Services, or (iv) determine whether the Services are within the scope of any patent.

   • 2.6 Third-Party Services. In the event Customer accesses and/or uses third-party services via the Services pursuant to this Agreement (“Third-Party Services”), Customer acknowledges and agrees that (a) Customer's use of such Third-Party Services is also subject to such third-party service provider's terms and conditions (collectively, “Third-Party Terms”), (b) Customer will use Third-Party Services in accordance with this Agreement and applicable Third-Party Terms, and (c) such third-party service providers and ZNest may have access to Customer Content in connection with the provision of such Third-Party Services. The Third-Party Services and corresponding terms and conditions in effect as of May 9, 2023 are available at: (a) with respect to the Payment Processor, Stripe, Inc., stripe.com/legal, (b) with respect to the E-Sign Provider, SignNow, signnow.com/terms, and (c) with respect to cloud document storage, Amazon Web Services, aws.amazon.com/legal/. ZNest is not responsible for or liable for the content or behavior of any Third-Party Services and Customer agrees to indemnify and hold ZNest harmless from any liability caused by Customer's access and/or use of such Third-Party Services. ZNest reserves the right to change third-party service providers from time to time at ZNest's sole discretion

3. FEES AMD PAYMENT

   • 3.1 Fees. Customer will pay to ZNest the fees set forth on Exhibit I (unless otherwise specified in an Order Form), in accordance with the terms set forth herein. Payment obligations are non-cancelable and fees paid are non-refundable.

   • 3.2 Invoicing and Payment. If Customer pays fees via credit card, Customer will provide ZNest with valid and up-to-date credit card information and make payment through ZNest's third-party payment processor (“Payment Processor”), currently Stripe, Inc. Customer authorizes Payment Processor to charge such credit card for all fees due hereunder, including fees in respect of Services. All payment for fees shall be made in advance, whether monthly or as otherwise set forth in the applicable Order Form. If an Order Form specifies that payment will be by a method other than a credit card, ZNest will invoice Customer in advance, and payment for such invoice shall be due within ten (10) days of the invoice date. Customer shall provide complete and accurate billing and contact information to ZNest and notify ZNest of any changes to such information.

   • 3.3 Taxes. All payments required under this Agreement shall be made free and clear and without deduction for any and all applicable taxes, levies, VAT, and other governmental assessments (collectively, “Taxes”). Customer will pay or reimburse ZNest for any Taxes which ZNest is required by law to collect.

   • 3.4 Suspension of Service. If any charge owing by Customer under this Agreement is overdue or Customer's payment cannot be processed, ZNest may, without limiting its other rights and remedies, suspend Customer's access to the Services until such amounts are paid in full, provided that, other than for customers paying by credit card whose payment has been declined, ZNest will give Customer at least ten (10) days' prior notice that Customer's account is overdue.

4. PROPRIETARY RIGHTS

   • As between the parties, Customer owns all right, title and interest in and to the Customer Content, including all of their related intellectual property rights. ZNest may retain and use anonymous, aggregated data and information related to Customer and Customer's use of the Site and/or Services (“Anonymized Data”), provided that Anonymized Data does not identify any individual or entity. ZNest reserves the right to use Anonymized Data for any purpose and to disclose Anonymized Data to third parties without restriction. As between the parties, ZNest owns all right, title and interest in and to the Site and Services (including Anonymized Data), and all of their related intellectual property rights, and improvements, modifications, enhancements and all derivative works of the Services. No rights are granted to Customer hereunder other than as expressly set forth herein. In the event Customer provides any suggestions, ideas or feedback to ZNest regarding any ZNest products or services (collectively, “Feedback”), Customer agrees that ZNest owns all right, title and interest in and to such Feedback and may use Feedback for any purpose, without any monetary or other compensation

5. CONFIDENTIALITY.

   • In connection with this Agreement, a party or its Affiliates, employees, professional advisors, contractors, service providers and/or auditors (“Representatives”) (each, a “Discloser”) may provide Confidential Information to the other party or its Representatives (“Recipient”). “Confidential Information” means non-public and proprietary information of the disclosing party or its Affiliates, in any form, that is designated as “confidential” or that a reasonable person would understand to be confidential, including business, financial, technology and product information of the disclosing party and/or its Affiliates. “Confidential Information” does not include information that: (a) is or becomes publicly known without breach of this Agreement; (b) is known to Recipient or is in Recipient's possession prior to disclosure by the Discloser; (c) is received from a third party without obligation of confidentiality; or (d) was independently developed without use or reference to the Confidential Information. Confidential Information is provided “As-Is” without any warranties of any kind. Recipient will, and will cause its Representatives to: (a) hold Discloser's Confidential Information in strict confidence, using no less than a reasonable degree of care; (b) use such Confidential Information only as needed for the purpose of the business relationship between the parties; (c) promptly notify Discloser of any unauthorized access, use, or disclosure of any Confidential Information; and (d) not disclose such Confidential Information to any third party, other than Recipient's Representatives who have a need to know and who are bound by confidentiality obligations that are no less protective than those set forth herein. Recipient will be liable to Discloser for any failure by any of the Recipient's Representatives to comply with the applicable obligations set forth in this Agreement. Notwithstanding anything in this section to the contrary, if disclosure of Discloser's Confidential Information is required by applicable law, regulation or court order, (a) Recipient will, to the extent permitted by applicable law, promptly notify Discloser and cooperate (at Discloser's expense) with Discloser's efforts to seek a protective order or other appropriate remedy, and (b) Recipient may disclose only that portion of the Confidential Information that Recipient is so required to disclose, in the reasonable judgment of its counsel. The parties agree that a breach of this section may cause irreparable injury to the non-breaching party for which monetary damages would not provide an adequate remedy. Accordingly, the parties further agree that in the event of such a breach or threatened breach, the non-breaching party shall be entitled to seek immediate injunctive relief to prevent or stop such breach, in addition to other equitable and legal remedies such non-breaching party may have against the breaching party. Upon expiration or termination of this Agreement, or upon Discloser's written request, Recipient shall (and shall cause its Representatives to) promptly return or destroy Discloser's Confidential Information, except that Recipient may retain one (1) archival copy of Confidential Information as may be required by regulatory, legal or record retention requirements, provided that any retained Confidential Information remains subject to the confidentiality obligations set forth herein compensation.

6. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

   • 6.1 Mutual. Each party represents and warrants to the other party that: (a) it has the right, power and authority to enter into and perform the obligations of this Agreement; and (b) each person executing this Agreement on behalf of such party has the authority to do so and to bind such party without further act or authorization.
   • 6.2 Customer. Customer represents and warrants that: (a) Customer owns, or it has and will continue to have, all necessary rights, licenses, clearances and other authorizations of any kind to make available to ZNest and permit ZNest to use Customer Content as contemplated herein; (b) the registration data and related information provided in connection with Customer's account is and will remain true and correct at all times; (c) Customer will not use the Site and/or Services in violation of this Agreement or any terms incorporated herein; and (d) Customer will only use the Site and Services in compliance with all applicable laws. Customer agrees that Customer (and Customer's Affiliates) (i) does not offer, advertise, sell, or lease illegal products and/or services, (ii) will not use the Site and Services for other business activities aside from the Site and Services' intended purpose, (iii) will not, and will not authorize or induce any other party to offer incentives of any kind (e.g., discounts, freebies, deals, etc.) in exchange for the posting of reviews of Customer's business on the Site, or to prevent or remove reviews, and that ZNest may publicly notify consumers about such incentives and other attempts to obtain, prevent, or remove reviews, (iv) will not, and will not authorize or induce any other party to attempt to generate automated, fraudulent, or otherwise invalid ad impressions, inquiries, conversions, ad clicks, or other actions, and (v) will not use any automated means or form of scraping or data extraction to access, query or otherwise collect data or content from the Site.
   • 6.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ZNEST DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. ZNEST AND ITS SERVICE PROVIDERS AND LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) THE SERVICES AND/OR THIRD-PARTY SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (B) THE SERVICES AND/OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.

7. INDEMNIFICATION.

   • Customer agrees to indemnify, defend and hold harmless ZNest, its affiliates, officers, agents, employees and partners from and against any unaffiliated third party claim or demand, including attorneys' fees, arising out of or relating to: (a) Customer's use of the Site and/or Services (including any actions taken by a third party using Customer's account) in violation of this Agreement, any Policies, or applicable law; and (b) infringement or misappropriation of any third party intellectual property or other proprietary rights based on ZNest's use of any Customer Content made available to ZNest hereunder. With respect to each such claim or demand: (i) ZNest shall provide prompt written notice to Customer of such claim, (ii) Customer shall retain the unconditional option to control the defense and related settlement of any such claim, provided that Customer shall not enter into any judgment or settle any claim without ZNest's prior written consent, which may not be unreasonably withheld; and (iii) ZNest shall provide Customer with reasonable assistance (at Customer's expense) in connection with such claim.

8. LIMITATION OF LIABILITY.

   • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ZNEST OR ITS AFFILIATES BE LIABLE FOR ANY, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREUNDER, REGARDLESS OF THE LEGAL THEORY, INCLUDING TORT, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, EVEN IF CUSTOMER HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY. EXCEPT WITH RESPECT TO ZNEST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT UNDER THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ZNEST OR ITS AFFILIATED PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE GREATER OF: (A) FIFTY UNITED STATES DOLLARS (USD $50.00) AND (B) ANY FEES PAID OR PAYABLE TO ZNEST, PURSUANT TO THE ORDER FORM UNDER WHICH THE LIABILITY ARISES, IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE THAT THE RELATED CLAIM OR DEMAND IS FIRST ASSERTED.

9. TERM AND TERMINATION.

   • 9.1 Term. This Agreement commences on the Effective Date and, unless terminated earlier pursuant to the terms of this Agreement, shall remain in effect so long as there is an Order Form in effect between the parties. (a) Subscription Term. Except as otherwise set forth in an Order Form, the term of each Order Form shall commence on the applicable Subscription Effective Date and continue for the greatest of: (i) one (1) month, (ii) the term specified on such Order Form and (iii) the term set forth at znest.com/business (“Initial Subscription Term”), unless terminated earlier as set forth herein. The Order Form will automatically renew for successive one (1) month periods (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. The pricing and fees for each Renewal Subscription Term shall be equal to the pricing and fee amounts set forth at znest.com/business at the time of each such renewal (excluding any discounts and/or free periods, if any), subject to ZNest's right to change pricing and fees as set forth in Exhibit I.
   • 9.2 Termination. Either party may terminate this Agreement upon written notice to the other party if such other party materially breaches this Agreement and does not cure such breach within thirty (30) days (ten (10) days in the case of nonpayment) of receipt of notice thereof. Either party may also terminate this Agreement immediately upon written notice to the other party if such other party (a) becomes or is declared insolvent, or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership,liquidation, assignment or other forms of relief for debtors or for the benefit of creditors that is not dismissed within thirty (30) days.

   • 9.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, Customer will pay all outstanding amounts owing to Znest as of the date of such expiration or termination. Customer shall not be entitled to any refunds, regardless of termination date. All provisions of this Agreement that expressly or by their nature should survive termination shall survive any expiration or termination of this Agreement.

10. DISPUTE RESOLUTION

    • 10.1 Governing Law; Venue; Attorneys Fees. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Nevada and to the jurisdiction of the United States District Court for the District of Clark County for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement that is not subject to arbitration pursuant to Section 10.3 hereof, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Nevada or the United States District Court for the District of Clark County, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. The prevailing party shall be entitled to reasonable attorney's fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
    • 10.2 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL
    • 10.3 Any unresolved controversy or claim arising out of or relating to this Agreement, except as (i) otherwise provided in this Agreement, or (ii) any such controversies or claims arising out of either party's intellectual property rights for which a provisional remedy or equitable relief is sought, shall be submitted to final and binding arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the American Arbitration Association (the “AAA”), then by one arbitrator having reasonable experience in corporate finance transactions of the type provided for in this Agreement and who is chosen by the AAA. The arbitration shall take place in Clark County, NV, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the Nevada Code of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings.

11. GENERAL PROVISIONS

    • 11.1 Entire Agreement; Order of Precedence. This Agreement, including its exhibits and the Order Form(s) (each of which is incorporated herein), is the entire agreement between ZNest and Customer regarding the subject matter herein and supersedes all prior and contemporaneous agreements, communications, proposals and representations, written or oral. In the event of any inconsistency between the terms herein and the terms of an Order Form, the Order Form will prevail, but only as limited to the specific provision that conflicts with these Terms and Conditions. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
    • 11.2 Relationship of the Parties; Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. There are no third-party beneficiaries under this Agreement.
    • 11.3 Waiver; Severability. No failure or delay by either party in exercising any right under this Agreement will constitute waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
    • 11.4 Assignment. Customer may not assign or transfer any of its rights or obligations hereunder, whether by operation of law or otherwise.
    • 11.5 Force Majeure. Except for Customer's payment obligations hereunder, neither party shall be liable for a failure to perform any obligation under this Agreement to the extent such failure is due to a force majeure event (including acts of God, natural disasters, war, civil disturbance, governmental action, strike, and other causes beyond such party's reasonable control). The party affected by the force majeure event shall provide notice to the other party and will use commercially reasonable efforts to resume performance as soon as practicable.
    • 11.6 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
    • 11.7 Export Compliance. The Site and Services may be subject to export laws and regulations of the United States and other jurisdictions. ZNest and Customer each represents that it is not located or organized in any country or territory subject to U.S. export restrictions and it is not designated as a prohibited or restricted entity by any U.S. government agency with respect to U.S. export transactions.
    • 11.8 Publicity. ZNest may identify Customer (including via use of Customer's logo) as a user of the Services via the Site and in presentations, press releases, investor communications, customer lists and other promotional materials that may be shared with third parties.
    • 11.9 Notice. Except as otherwise expressly provided for herein, all notices under this Agreement shall be in writing and deemed delivered the earlier of: (a) actual receipt; (b) upon delivery by a nationally recognized overnight express courier or by certified or registered mail, in each case, receipt requested; or (c) when received via email, which may be shown by confirmation of delivery, in each case, to the receiving party's notice address set forth below (or to such other address as specified by a party by giving notice in accordance with this section). Notices to ZNest shall be sent via email to bkim@ZNest.com. Notices to Customer shall be addressed to the address provided by Customer via Customer's account or in the applicable Order Form.

1. Monthly Minimum Fee

   Except as otherwise set forth in the applicable Order Form, Customer shall pay to ZNest a recurring, non-refundable monthly fee for each Facility equal to the lesser of: (a) ninety-nine United States dollars (USD$99); and (b) the aggregate amount due for such month in respect of such Facility (“Monthly Minimum Fee”), which amount shall be calculated based on each such Facility's Effective Capacity and facility type as set forth below (or via znest.com/business):

   Type	Premium	Basic
   IL	$1.99 u/mo	$0
   AL	$2.99 b/mo	$0
   MC	$2.99 b/mo	$0

   By way of example, in a given month, if Customer has solely two (2) Facilities as follows: (a) an independent living facility with an Effective Capacity of thirty (30) units; and (b) a memory care facility with an Effective Capacity of seventy (70) beds; then the Monthly Minimum Fee due in respect of each such Facility shall be equal to USD$59.70 (USD$1.99 x 30 units) and USD$99, respectively, and the total Monthly Minimum Fees due to ZNest for such month shall be equal to one hundred fifty-eight United States dollars and seventy United States cents (USD$158.70).

   ZNest reserves the right to change fees and pricing with thirty (30) days' prior written notice to Customer.

   “Effective Capacity” means, with respect to each Facility, such Facility's Initial Capacity; provided that each time the aggregate number of beds or units in Facility increases or decreases during a Subscription Term, (a) Customer shall promptly (but in no case later than ten (10) days thereafter) update the Capacity for the corresponding Facility via Customer's account to reflect such Facility's then current Capacity (“Capacity Update”), and (b) from and after the corresponding Capacity Update Effective Date, such Facility's Effective Capacity shall be equal to the Capacity as of such Capacity Update Effective Date. “Capacity” means (a) with respect to each Facility that is an independent living facility, the aggregate number of units in such facility, and (b) with respect to each Facility that is an assisted living facility or memory care facility, the aggregate number of beds in such facility. “Initial Capacity” means, with respect to each Facility, such Facility's Capacity as specified in Customer's account, as of the later of (a) the Subscription Effective Date, and (b) the date on which such facility is added to Customer's account. “Capacity Update Effective Date” means, with respect to each Capacity Update, the Sunday immediately following the corresponding Capacity Update. For clarity, (a) if the date on which a Facility is added to Customer's

2. Other Changes

   1. 2.1 Third-party payment processing fees: If Customer uses Payment Processor's products and/or services via the Services for payments due to Customer (e.g., payments from Customer's clients and/or residents), Payment Processor may charge, and Customer is fully responsible for, third-party payment processing fees.
   2. 2.2 Envelope fees: ZNest provides Customer with access to Envelopes via ZNest's third party electronic signature provider (“E-Sign Provider”), currently SignNow. The Monthly Minimum Fee above includes a maximum number of monthly Envelopes equal to Customer's Capacity as of the first day of the applicable month. Additional Envelopes in excess of such Capacity may be requested for a fee of $1.50 per each such additional Envelope.