SNFlist Terms and Conditions

1. License; Authorized Users

a. Subject to the terms and conditions of this Consent Agreement (“Agreement”), SNFList LLC (“SNFList”) grants to Customer hereunder a limited, nonexclusive, nontransferable, non-sublicensable license to use SNFList’s web-based business intelligence via a Customer-provided Internet connection solely for Customer’s internal business purposes (the “Service”) during the term described in a subscription, and any updates thereto.

b. Authorized Users; User IDs.

i. Access to the Service will be limited solely to Authorized Users for whom subscriptions to the Service have been purchased pursuant to a subscription order. “Authorized Users” means employees who are authorized by Customer to use the Service solely on behalf and for the benefit of Customer, who have been supplied user identifications and passwords to Customer by SNFList, and who have accepted SNFList’s Terms of Use as defined below. Authorized Users may only access the Service solely for Customer’s internal business purposes. Customer will assign each Authorized User a unique account name (“User ID”) and password for access to and use of the Service. Customer is solely liable for ensuring the security and confidentiality of all Authorized User IDs and passwords and any use of the Service under a User ID or password will be deemed as performed by Customer. Customer shall notify SNFList immediately of any suspected disclosure, theft, loss or unauthorized use of any User ID or password.

ii. Customer agrees to instruct each Authorized User of all restrictions and obligations applicable to Customer’s and its Authorized Users’ use of the Service hereunder, and is solely liable for all acts and omissions of any Authorized User.

c. Affiliates. Affiliates of Customer may purchase and use Authorized User subscriptions subject to the terms of this Agreement; provided that both Customer and the applicable Affiliate shall each be, and remain fully responsible for, complying with all obligations hereunder relating to such use. “Affiliate” means any entity which is owned or Controlled by, or is under common ownership or Control with, another entity. “Control” means direct or indirect ownership or control of 50% or more of the voting interests of the subject entity.

2. Restrictions; Use of Service

SNFList retains exclusive ownership of the Service, SNFList Data, and related deliverables and all worldwide intellectual property rights therein. Customer shall not assign, sublicense, transfer, or resell the Service or related deliverables to any third-party nor allow any third-party to access or use the Service, except as expressly provided herein. Customer will immediately notify SNFList if Customer becomes aware of any violation of the terms of this Agreement. SNFList may take remedial action in the event of violation of the terms of this Agreement in its sole discretion, including but not limited to suspension of the Service hereunder or termination of this Agreement. Appropriate Use. Customer shall ensure that Customer and its Authorized Users do not (i) cause to be placed any worms, viruses or programming routines that interfere, damage, corrupt, surreptitiously intercept or expropriate the Service or any system, data or personal information of SNFList or any third party; or (ii) violate any federal, state or local laws or regulations.

3. Term

The term of this Agreement begins on the date the subscription order begins (the “Effective Date”) and continues until the expiration or termination of any and all subscription orders (the “Term”). Customer’s access to and ability to use the Service and related deliverables commences upon receipt of the applicable Customer payment(s) specified in the applicable subscription order and continues for the term specified on the applicable subscription order (the “Initial Term”) unless earlier terminated pursuant to the Agreement.

4. Fees

Subscription-based Service fees, and any Additional Services fees (collectively, “Fees”) shall be outlined in each subscription order. All Fees are payable in full, without deduction or setoff, upon receipt of invoice or as otherwise indicated in the applicable invoice (the “Due Date”). The mode for payment of fees may change from time to time at the absolute discretion of SNFList. Fee disputes must be submitted in writing within 30 days of the Due Date. Fees are net of all sales, use, or other taxes or duties (other than taxes based on the income of SNFList). Customer shall indemnify and hold SNFList harmless from and against any such taxes.

5. Confidentiality

a. Confidential Information. As used herein, “Confidential Information” means all confidential information of either party disclosed by the disclosing party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in all subscription orders hereunder), business and marketing plans, technology and technical information, product designs, and business processes. SNFList IP is deemed Confidential Information under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any confidentiality obligation owed to the Disclosing Party; (ii) was known by the Receiving Party prior to disclosure by the Disclosing Party with breach of confidentiality obligations, as evidenced by Receiving Party’s written files and records; (iii) is obtained by Receiving Party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by Receiving Party without breach of any obligation owed to Disclosing Party and without use of or reference to any of Disclosing Party’s Confidential Information, as shown by competent evidence.

b. Confidentiality Obligations. Each Receiving Party shall use commercially reasonable efforts to avoid the unauthorized disclosure or unauthorized use of any Confidential Information of the Disclosing Party. Each party agrees to protect the confidentiality of the Confidential Information of the other party with the same degree of care with which it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Except as otherwise provided hereunder, neither party shall use or disclose the other party’s confidential or proprietary information, including SNFList IP, for any purpose beyond the scope of this Agreement. Each party will be entitled to enforce its rights pursuant to this section by seeking appropriate equitable relief including temporary restraining order and injunction.

c. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6. Proprietary Rights

Customer hereby grants to SNFList a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual right and license to use, modify, disclose and/or incorporate into the Service (and any other products, applications, and services of SNFList) any ideas, suggestions, enhancements, recommendations, or other feedback provided by Customer, its Affiliates and/or its Authorized Users (collectively, “Feedback”). Feedback, even if designated as confidential, shall not create any confidentiality obligations hereunder for SNFList. SNFList reserves all rights, title, and interests in and to the Service and SNFList Data, including without limitation all derivative works or customizations thereof, whether made for or at the direction of Customer, and all intellectual property and proprietary rights therein (collectively, “SNFList IP”).

7. Warranty and Disclaimer

Each party represents and warrants that it has the legal power to enter into this Agreement. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” SNFLIST DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, RESULTS, TITLE, NONINFRINGEMENT, SECURITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SNFLIST MAKES NO WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE SERVICE, AND SNFLIST SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH INFORMATION OR RESULTS. THE PORTION OF THE INFORMATION PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE SERVICE THAT HAS BEEN OBTAINED FROM PUBLIC SOURCES IS BELIEVED TO BE RELIABLE BUT MAY NOT NECESSARILY BE COMPLETE, NOR DOES SNFLIST GUARANTEE THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.

8. Mutual Indemnification

a. Indemnification by SNFList. Subject to this Agreement, SNFList shall indemnify and defend Customer from and against any claim of infringement upon the intellectual property rights of a third party (“Infringement Claim”), provided that the obligations of SNFList in this Section 8(a) are subject to the conditions that (i) Customer promptly gives written notice of the Infringement Claim to SNFList; (ii) SNFList has sole control of the defense and all negotiation for any settlement or compromise of the Infringement Claim; and (iii) Customer provides to SNFList, at SNFList’s cost, all reasonable assistance. SNFList shall have no obligations pursuant to this Section 8(a) if the alleged infringement arises as a result of (a) the combination, operation, or use of the Service with third party software, services or other products or materials not furnished by SNFList; or (b) the modification of the Service or use of the Service in violation of this Agreement or applicable law. In the event of such an Infringement Claim or threat thereof, SNFList may, in its sole discretion, obtain a license for the infringing part of the Service; remove, replace, or alter the infringing part of the Service (so long as such removal or alteration does not materially affect the functionality of the Service) or terminate this Agreement. This Section 8(a) states the entire obligation and liability of SNFList, and the exclusive remedy of Customer, with respect to indemnification.

b. Indemnification by Customer. Customer shall defend, indemnify and hold SNFList harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any claim, action, suit or proceeding made or brought by a third party against SNFList (each, a “Third-Party Claim”) arising out of or related to (i) the Customer Data or (ii) Customer’s, its Affiliates’, or any Authorized User’s use of the Service or the results obtained therefrom or breach of applicable law; provided, that SNFList (a) promptly gives written notice of the Third-Party Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Third-Party Claim (provided that Customer shall not settle any Third-Party Claim unless it unconditionally releases SNFList of all liability for monetary damages); and (c) provides to Customer, at Customer’s cost, all reasonable assistance in connection therewith.

9. Limitation of Liability

a. NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOST PROFITS, HOWEVER CAUSED, WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, EVEN IF SUCH PARTY COULD REASONABLY HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES.

b. IN NO EVENT SHALL SNFLIST’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SUBSCRIPTION ORDERS, WHETHER INCURRED WITH RESPECT TO ONE CLAIM, OR CUMULATIVELY INCURRED FROM MULTIPLE RELATED OR UNRELATED CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO THE LICENSE FEES PAID BY CUSTOMER IN THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE FIRST CLAIM BROUGHT HEREUNDER.

c. Exceptions. Notwithstanding the foregoing, no limitation of liability set forth in this Section 9 shall apply to: (i) any liability arising out of or in connection with claims arising under gross negligence, willful misconduct, or fraud; (ii) any breach or violation of Section 1; (iii) Customer’s indemnification obligations under Section 8; and (iv) any fees or amounts due and owing hereunder pursuant to Section 4.

d. Essential Basis of the Bargain. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties. Absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement (including without limitation the economic terms) would be substantially different.

10. Termination

a. Suspension. SNFList may suspend Customer’s access to the Service if Customer fails to timely pay any amount due. Fees shall continue to accrue during any such suspension. In the event SNFList reasonably believes in good faith that any Authorized User has violated any provision of this Agreement, Customer shall suspend such Authorized User’s access and use of the Service immediately upon written notice (including by email) to Customer containing an explanation of such violation. In the event Customer knows or has reason to know or suspect that an Authorized User has violated a provision of this Agreement, Customer shall immediately provide written notice thereof to SNFList and promptly suspend, or allow SNFList to suspend, such Authorized User’s access and use of the Service.

b. Termination. Either party may terminate this Agreement (i) following the other party’s failure to cure a material breach, of the Agreement, including but not limited to violation of the Terms of Use, within thirty (30) days after written notice thereof; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. SNFList may terminate this Agreement for material breach if Customer fails to timely pay any amount due and such non-payment is not cured within a reasonable amount of time, as determined by the absolute discretion of SNFList.

c. Effect of Termination. Upon any termination of this Agreement or an Order, the rights and licenses granted to Customer and any of its Authorized Users shall immediately terminate and each party shall (i) immediately discontinue all use of the other party’s Confidential Information; (ii) return to the other party or, at the other party’s option, destroy or delete, all copies of such party’s Confidential Information then in its possession; and (iii) promptly pay all amounts due and owing hereunder. Upon termination of this Agreement, Customer shall have no further access to the Service or any data contained or provided therein. Customer shall not be relieved from its obligations to pay SNFList amounts due under any Order executed prior to the date of termination. Fees paid prior to the termination date are non-refundable.

11. General Provisions

a. Entire Agreement. This Agreement, any subscription orders, addenda, and any other documents or communication(s), if applicable, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum, subscription order, or other document or communication(s), if applicable, the terms of this Agreement shall prevail. No amendment of this Agreement or any subscription order or addenda shall be effective unless in writing and signed by both parties.

b. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, without regard to its conflicts of laws rules. EACH PARTY WAIVES ITS RIGHTS TO A JURY TRIAL. No action, regardless of form, may be brought by Customer hereunder more than one (1) year after the date such claim arose.

c. The parties are independent contractors. This Agreement shall not be construed to create any partnership, joint venture, or agency relationship between the parties.

d. Neither party may assign its rights and obligations under this Agreement without prior written approval of the other; provided, however, that (i) either party may assign this Agreement to an Affiliate of such party or to any successor to or purchaser of all or substantially all of such party’s business or assets upon written notice to the other party; and (ii) SNFList may subcontract its obligations hereunder to third-party service providers or subcontractors, provided that SNFList will remain responsible for the obligations performed by any such subcontractors to the same extent as if such obligations were performed by SNFList hereunder.

e. All notices under this Agreement will be in writing and sent by certified mail or email to the Authorized User or other contact information provided by the Customer, either via postal or electronic mail. All such notices will be effective upon delivery.

f. Force Majeure. Except as otherwise expressly provided in this Agreement, neither party shall be liable for any failure to perform its obligations under this Agreement, other than payment obligations, due to a cause beyond its reasonable control or if such failure arises, directly or indirectly, out of any Acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (except those primarily involving SNFList employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within SNFList’s possession or reasonable control, denial of service attacks, incompatibility of Customer’s equipment or software with the Service, acts or omissions of vendors or suppliers, or transportation and telecommunications difficulties (a “Force Majeure Event”).

g. No waiver of a breach or default or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right hereunder or shall constitute a waiver of another subsequent default or establish a course of dealing for purposes of modifying this Agreement. Except as expressly stated herein, the remedies provided herein are cumulative, and are in addition to, and not exclusive of, any other remedies of a party at law or in equity. The captions of this Agreement are for convenience only.

h. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

i. Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.

j. Equitable Relief. In the event Customer or any of its Authorized Users breaches or threatens to breach any provision of this Agreement, SNFList shall have the right, in addition to any other remedies available to it, to seek injunctive or other equitable relief to enjoin such acts, without posting of bond or showing of actual damages, it being specifically acknowledged by the parties that any other available remedies are inadequate.

k. Survival. The provisions of Sections 2, 4, 5, 6, 8, 9, and this Section 11 shall survive the expiration or termination of this Agreement for any reason.