MEMBERSHIP AGREEMENT

 

THIS MEMBERSHIP AGREEMENT (the “Agreement”) is made effective as of the date of acceptance, (hereinafter referred to as the “Effective Date”), by and between you, whose address is listed in the application submitted to Nestive, LLC, (hereinafter referred to as the “Owner”); and NESTIVE, LLC, a Tennessee limited liability company (hereinafter referred to as “Nestive”), regarding certain property located at the address listed in the application form (hereinafter referred to as the “Home, and sometimes referred to as the “Property”).

 

RECITALS

WHEREAS, Owner owns the Home referenced in Section 1 below, and desires to contract for maintenance and management of said Home; andWHEREAS, Nestive provides the maintenance and management services, and has agreed to provide those services for the Owner on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, undertakings and conditions set forth below, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

ARTICLE 1 AGREEMENT

Section 1.1 Agreement.  This Agreement consists of the terms and conditions set forth in the sections captioned by numbered article designations (“Articles”) and the following appendices, which are incorporated and made part this Agreement by this reference and are included in any reference to this Agreement.

Appendix A - Scope of Services

If the terms and conditions of the Articles of this Agreement vary or are inconsistent with any portion of the Appendix, the terms of the Articles this Agreement shall control and be given priority, and the provisions of the Appendices shall be subject to the terms of the Articles.  This Agreement contains the entire agreement between the parties and supersedes all prior agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.  Neither party will be bound by or be deemed to have made any representations, warranties, commitments or other undertakings with respect to the subject matter of this Agreement that are not contained in this Agreement.

Section 1.1 Effective Date and Term.  This Agreement shall last for a period of one (1) year, commencing from the Effective Date, and shall govern the rights and obligations of the parties from and after the Effective Date and shall expire 365 calendar days from the Effective Date (hereinafter referred to as the “Expiration Date”).  

Section 1.2 Relationship of the Parties.  Nestive has been retained by Owner as property manager to provide Services to the Home on behalf of Owner.  Neither Nestive nor any of its employees, subcontractors or agents shall be deemed to have any other status, except that Nestive is the agent of Owner to the limited extent that this Agreement expressly grants Nestive the authority to act on behalf of Owner.  It is also understood and agreed that all work, services, and opinions provided by any Vendor are expressly those of the Vendor, and in no way represent the opinions, recommendations, or work of Nestive.

Section 1.3 Representatives.  Owner shall designate a representative (“Designated Representative”) to act on its behalf in overseeing the performance of this Agreement.  Designated Representatives shall be the primary means for communication and all other interactions between Owner and Nestive that are required under this Agreement.  Designated Representatives shall have the power and authority to bind their respective principals under the terms of this Agreement, with any required internal corporate approvals with respect to such authority being the responsibility of each representative to obtain from his or her principal.

ARTICLE 2 DEFINITIONS

Section 2.1 Definitions.  Unless otherwise required by the context in which a defined term appears, the following terms shall have the meanings specified in this Article 2.  Terms that are defined in other Articles shall have the meanings given to them in those Articles.

Bankruptcy” means a situation in which: (i) a party’s actions under applicable debtor relief laws demonstrate an inability to pay its debts as they mature or a need for protection from its creditors; (ii) a court of competent jurisdiction approves a petition filed against a party, which petition sought relief for the party’s creditors, and the action of the court remains in effect for an aggregated period of sixty (60) days (whether or not consecutive); (iii) a party admits in writing its inability to pay its debts as they mature; (iv) a party gives notice to any person or entity of its current (or pending) insolvency or suspension of operations; or (v) a party makes an assignment for the benefit of creditors or takes other similar action for the protection or benefit of its creditors.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required to close in the United States.

Force Majeure Event” means an event, condition or circumstance beyond the reasonable control of, and not due to the fault or negligence of, the party affected, and which could not have been avoided by due diligence and use of reasonable efforts, which prevents the performance by such affected party of its obligations hereunder; provided, that a “Force Majeure Event” shall not be deemed to have occurred or to be continuing unless the party claiming Force Majeure complies with the requirements of Section 12.2 (Force Majeure).  Subject to the foregoing, “Force Majeure Event” shall include, as to either party, explosion and fire (in either case to the extent not attributable to the negligence of the affected party), flood, earthquake, storm or other natural calamity or act of God, strike or other labor dispute, war, insurrection or riot, actions or failures to act by governmental entities or officials, failure to obtain governmental permits or approvals (despite timely application therefor and due diligence) and changes in laws, rules, regulations, orders or ordinances affecting operation of the Project, which events were not pending on the date of this Agreement.

Services” has the meaning set forth in Article 3.1.

Vendor” means all home service technicians conducting repairs, services, or assessments at the Owner’s Home.

ARTICLE 3 SERVICES

Section 3.1 Scope of Services.  As agent for Owner, Nestive shall exercise disclosure, confidentiality, reasonable care and diligence, and full accounting of its services (the “Services”).  Nestive shall provide to Owner the Services set forth in this Agreement.

Section 3.2 Standards for Performance of the Services.  Nestive shall perform the Services required under this Agreement, including those set forth in Appendix A, in a prudent, reasonable, and efficient manner.  Nestive shall use all reasonable efforts to optimize the useful life of the Home and to minimize Reimbursable Costs or other unavailability.

Section 3.3 Nestive’s Personnel Standards.  Nestive shall provide as reasonably necessary all labor and professional, supervisory and managerial personnel as are required to perform the Services.  Such personnel shall be qualified to perform the duties to which they are assigned and shall meet any requirements for personnel under this Agreement.  All individuals employed by Nestive to perform the Services shall be employees of Nestive, or any subcontractor hired to perform such Services, and their working hours, rates of compensation and all other matters relating to their employment shall be determined solely by Nestive.  With respect to labor matters, hiring personnel, and employment policies, Nestive shall comply with all applicable laws.  Nestive shall also act in a reasonable manner that is consistent with the intent and purpose of this Agreement and with Nestive’s acknowledgment (hereby given) that Nestive has no authority to enter into any contracts with respect to labor matters that purport to bind or otherwise obligate Owner.  No subcontractor or vendor will be considered an employee of Nestive, and any relationship thereof is strictly based as an independent contractor only.

Section 3.4 Compliance.  Nestive shall comply with all laws applicable to the operation, maintenance and management of this Agreement and the performance of the Services.  Owner shall assist Nestive in applying for and obtaining, all necessary permits, licenses and approvals (and renewals of the same) required to allow Nestive to do business or perform the Services in the jurisdictions where the Services are to be performed.  Nestive shall provide reasonably necessary assistance to Owner to secure permits, licenses, and approvals (and renewals of the same) which Owner is required to obtain from or file with any governmental agency regarding this Agreement.  Nestive shall also file such reports, notices, and other communications as may be required by any governmental agency regarding Home.

Section 3.5 Operating Records and Reports.  Nestive shall maintain the Home operating logs, records, and reports in electronic digital media only, which document the operation and maintenance of the Home.  Nestive shall provide Owner reasonably necessary assistance in connection with Owner's compliance with any reporting requirements, applicable laws or any other agreement to which Owner is a party relating to Home.  Such assistance shall include providing reports, records, logs and other information that Owner may reasonably request from Nestive regarding the Home or its operation.

Section 3.6 No Liens or Encumbrances.  Nestive shall maintain the Home free and clear of all liens and encumbrances resulting from any action of Nestive or work done at the request of Nestive, except for such liens or encumbrances that result directly from nonpayment by Owner of amounts due and owing to Nestive under this Agreement.

Section 3.7 No Action.  Except where such action is expressly permitted by this Agreement, Nestive shall not take any action that would cause a default under any agreement.

Section 3.8 Action in Extraordinary Circumstances.  In the event that:

(A)Nestive has been notified that the Home or major Home equipment has suffered an unplanned outage or sustained damage; and (B)Nestive has made reasonable, but unsuccessful, efforts to notify and communicate with Owner regarding such occurrence in accordance with the terms of this Agreement,then Nestive shall:

(i)take all reasonable, good-faith remedies to prevent or to mitigate further unplanned outage or damage, and

(ii)continue to make reasonable attempts to notify and communicate with Owner regarding the occurrence and the remedial action.

 

ARTICLE 4 REPRESENTATIONS AND WARRANTIES

Section 4.1 No Rental Property.  Owner warrants and represents to Nestive that the Home is not used as rental property, and that no rents are collected in association with said Home.

Section 4.2 Single Family Residence.  Owner warrants and represents to Nestive that the Home is a [single-family, detached residence, a single condominium unit, or a single townhome unit].  Owner warrants and represents to Nestive that the Home is not a duplex, tri-plex, or other multi-unit structure for which the Owner is the legal owner or has controlling ownership interest over more than one (1) unit.

Section 4.3 Nestive Warranty.  Nestive shall provide its Services and meet its obligations under this Agreement in a timely and workmanlike manner.  Nestive shall not be liable for any such warranties, or for any defects or damage caused by such equipment, material or services (other than the Services) described within this Agreement.  [Limit warranties to Nestive employees (insurance underwriting)].

 

ARTICLE 5 COMPENSATION AND PAYMENT

Section 5.1 Management Fee.  For the Term of this Agreement, Owner shall pay to Nestive the sum of   $300.00 (“Management Fee”) for Services provided under this Agreement.  

Section 5.2 Payments and Payment Options.  As compensation to Nestive for performance of the Services hereunder, Owner shall pay Nestive a non-refundable Management Fee upon execution of this Agreement pursuant to the terms of this Section.  Nestive offers the following payment options for payment of the Management Fee as follows:      $25.00    per month; or     $300.00 per year.

Section 5.3 Vendor Completion.  Once Vendor has completed any repairs, inspections, Services or assessments for Home, Owner shall execute a completed work order confirming acceptance of the Vendor’s work.  Upon deliverance by Nestive to Owner of any invoice for Vendor’s completed work via email communication and/or U.S. Mail, at the address listed in this Agreement, Owner will remit payment directly to Nestive immediately upon receipt.  Customer may opt to maintain payment information on file with Nestive.  Should customer opt to allow Nestive to maintain payment, a signed work authorization shall constitute authority to charge the customer for work performed.  

 

ARTICLE 6 TERMINATION AND DEFAULT

Section 6.1 Immediate Termination by Owner.  Subject to the terms of this Agreement, Owner may terminate this Agreement immediately: (i) upon the Bankruptcy of Nestive; or (ii) upon the occurrence of a Force Majeure Event that is not remedied within one hundred twenty (120) days of its initial occurrence.

Section 6.2 Termination upon Notice by Owner.  Subject to the terms of this Agreement, Owner may terminate this Agreement upon ten (10) days prior written notice to Nestive in the event that:  (i) Nestive violates, or consents to a violation of, any laws applicable to the Services, where the violation has or may have a material adverse effect on the maintenance or operation of the Services or Owner's interest, and Nestive does not cure such violation within thirty (30) days (or, if not curable within thirty (30) days, within such period of time as is reasonably necessary, but in no event more than ninety (90) days, provided Nestive diligently commences and pursues such cure and indemnifies Owner for all related costs, of whatever kind), or (ii) of a material breach by Nestive in the performance of the Services, if Nestive does not cure such breach within thirty (30) days from the date of Nestive’s receipt of notice from Owner demanding cure (or, if not curable within thirty (30) days, within such period of time as is reasonably necessary, but in no event more than ninety (90) days, provided Nestive diligently commences and pursues such cure and indemnifies Owner for all related costs, of whatever kind).

Section 6.3 Other Termination upon Notice By Owner.  Subject to the terms of this Agreement, Owner may terminate this Agreement upon sixty (60) days’ prior written notice to Nestive, upon the occurrence of:  (a) a sale or transfer by Owner of its rights in the Home or a sale or transfer of all or substantially all of the assets of or interests in Owner, (b) a determination by Owner that it does not wish to extend this Agreement.

Section 6.4 Termination by Nestive.  Subject to the terms of this Agreement, Nestive may terminate this Agreement for cause upon fifteen (15) days’ prior written notice to Owner in the event of:  (i) Owner's Bankruptcy; (ii) failure to make a required payment when due; (iii) the subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or governmental agency; or (iv) Owner's failure to perform in a timely manner any of its material obligations under this Agreement and such failure is not cured within thirty (30) days of Owner's receipt of a notice from Nestive demanding cure (or, if not curable within thirty (30) days, within such period of time as is reasonably necessary, but in no event more than ninety (90) days, provided that Owner diligently commences and continues to pursue such cure).

Section 6.5 Default.  If any party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party.  This notice shall describe with sufficient detail the nature of the default.  The party receiving such notice shall have fifteen (15) days from the effective date of such notice to cure the default(s).  Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.

ARTICLE 7 INSURANCE

Section 7.1 Coverage.

General Liability Insurance.  Nestive shall maintain general liability insurance coverage on an occurrence basis against claims for personal injury (including bodily injury and death) and property damage. Workers’ Compensation Insurance.  Nestive shall maintain workers’ compensation insurance as required by applicable laws, including employers’ liability insurance for all employees of Nestive.

 

ARTICLE 8 INDEMNIFICATION AND LIABILITIES

Section 8.1 Indemnification.

a.                   Indemnification by Nestive.  Nestive shall indemnify, defend and hold harmless Owner from and against any and all claims arising out of or in any way connected with, but only to the extent of, any gross negligence, fraud or willful misconduct of Nestive or anyone acting on Nestive’s behalf or under its instructions, in connection with this Agreement and Nestive’s obligations thereunder.  Any costs or expenses incurred by Nestive pursuant to its indemnity obligations under this Section 8.1(a), including the cost of deductibles with respect to the insurance maintained by Nestive pursuant to Article 7 or losses in excess of such insurance coverage, shall not constitute a reimbursable cost under this Agreement.

b.                   Indemnification by Owner.  Owner shall indemnify, defend and hold harmless Nestive, its officers, directors, employees, agents, Affiliates and representatives (the “Nestive Indemnified Parties”) from and against any and all claims (in whatever form and to the fullest extent permitted by law) arising out of or in any way connected with, but only to the extent of, any gross negligence, fraud or willful misconduct of Owner or anyone acting on Owner's behalf or under its instructions (other than Nestive and its Vendors, and any employee or agent of the foregoing), in connection with this Agreement and Owner's obligations thereunder.

c.                    Consequential Damages.  Notwithstanding any provision in this Agreement to the contrary, Nestive and Owner each agree not to assert against the other any claim, demand or suit for consequential, incidental, indirect or special damages arising from any aspect of the performance or nonperformance of the other party or any third-party engaged by such other party under this Agreement, and each party hereto waives any such claim, demand or suit against the other in connection with this Agreement

d.                   Survival.  The parties further agree that the waivers and disclaimers of liability, indemnities, releases from liability, and limitations on liability expressed in this Agreement shall survive termination or expiration of this Agreement, and shall apply at all times (unless otherwise expressly indicated), regardless of fault, negligence, strict liability, or breach of warranty of the party indemnified, released or whose liabilities are limited, and shall extend to the members, partners, principals, officers, employees, controlling persons, executives, directors, agents, authorized representatives, and affiliates of such party.

e.                    Exclusivity.  The provisions of this Agreement constitute Nestive's and Owner's exclusive liability, respectively, to each other, and Nestive's and Owner's exclusive remedy, respectively, with respect to the Services to be performed hereunder, and Owner hereby releases Nestive performing Services hereunder, and Nestive hereby releases Owner performing its obligations hereunder, from any further liability.

Section 8.2 Liability.  

(a)Nestive is not responsible or liable in any manner for personal injury to any person or for loss or damage to any person's real or personal property resulting from any act or omission not caused by Nestive’s negligence, including but not limited to injuries or damages caused by: - add confidentiality clause as to private information and notice to owner that vendor will have certain access – third party disclosure (I)Vendors who are requested and authorized by Owner to access the property; (II) Work, repairs, services, or assessments provided by Vendors and Vendors’ representatives; (III)Acts of third parties (i.e., vandalism, theft, or other criminal acts); (IV)Negligence of Owner; (V)A dangerous condition or environmental condition at the Home; or (VI)The Home’s noncompliance with any laws or ordinance. (b)Owner agrees to protect, defend, and indemnify and hold harmless Nestive for any damage, costs, attorney’s fees, and expenses that: (I)Are caused by Owner; or (II)Arise from Owner’s failure to disclose any material or relevant information regarding the Home. (c)Owner is responsible and liable for all contracts and obligations such as, but not limited to, maintenance, service, repair, or assessment related to the Home entered into before or during this Agreement by Owner or by Nestive’s authority under this Agreement.

 

ARTICLE 9. DOCUMENTS AND DATA

Section 9.1 Documents.  All materials and documents prepared or developed by Nestive, its employees, representatives or contractors in connection with this Agreement or performance of the Services, including all manuals, data, drawings, plans, specifications, reports and accounts, are the property of Nestive, and Owner or its representatives shall not use such materials and documents for any purpose other than pursuant to this Agreement with Nestive’s prior written approval.  Nestive may use any data collected from Owner records for marketing and/or research.

Section 9.2 Proprietary Information.  Where materials or documents prepared or developed by Nestive or its agents, employees, representatives or contractors contain proprietary information, systems, techniques, or know-how acquired from third parties by Nestive or others acting on its behalf, such persons or entities shall retain all rights to use or dispose of such information, provided, however, that Owner shall have the right to the same to the extent necessary pursuant to the Terms of this Agreement.

 

ARTICLE 10 CONFIDENTIALITY

Section 10.1 Confidentiality of Nestive.  Nestive and its employees, agents, Vendors, or representatives will reasonably protect the personal and confidential information of Owner and treat such information as strictly confidential.  Nestive will only share information with Vendors and other related parties to satisfy the obligations under this Agreement.  This provision will continue to be effective after the termination of this Agreement.

Section 10.2 Confidentiality of Owner.  Owner and/or its representatives will not at any time or in any manner, either directly or indirectly divulge, disclose, or communicate in any manner, any information that is proprietary to Nestive.  Owner and/or its representatives will protect such information and treat it as strictly confidential.  This provision will continue to be effective after the termination of this Agreement.

 

ARTICLE 11 RESOLUTION OF DISPUTES

Section 11.1 Resolution through Discussions.  If any dispute or difference of any kind (“Dispute”) arises between Nestive and Owner in connection with, or arising out of, this Agreement, Nestive and Owner, within thirty (30) days of the initial Dispute, shall attempt to settle such Dispute in the first instance through discussions.  The designated representatives of Nestive and Owner shall promptly confer and exert their best efforts in good faith to reach a reasonable and equitable resolution of such Dispute.  If the representatives are unable to resolve the Dispute within five (5) business days, the Dispute shall be referred within two (2) business days of the lapse of the five (5) business day period to the responsible senior management of each party for resolution.  Neither party shall seek any other means of resolving any Dispute arising in connection with this Agreement until the responsible senior management of Nestive and Owner have had at least five (5) business days to resolve the Dispute following referral of the Dispute to them.  If the parties are unable to resolve the Dispute using the procedure described in this section, either party may deliver notice to the other party of its intent to submit the Dispute to arbitration (“Arbitration Notice”).  The Arbitration Notice shall include the specific issues concerning the Dispute which must be resolved by the arbitration.

Section 11.2 Arbitration.  Any Dispute arising out of, or in connection with, this Agreement and not settled by the procedure prescribed in Section 11.1, shall (regardless of the nature of the Dispute) be finally settled in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association.  The parties shall select a mutually-acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement.  In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two (2) arbitrators in turn shall select a third (3rd) arbitrator, all three (3) of whom shall preside jointly over the matter.  The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties.  All documents, materials, and information in the possession of each party that are in any way relevant to the Dispute shall be made available to the other party for review and copying no later than thirty (30) days after the Arbitration Notice is served.  The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages.  The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration.  The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction.  The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law.  During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

Section 11.3 Continued Performance.  During the pendency of any arbitration, Nestive and Owner shall continue to perform their obligations under this Agreement.

 

ARTICLE 12 MISCELLANEOUS PROVISIONS

Section 12.1 Assignment.  Neither Owner nor Nestive may assign its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that this Agreement may be assigned by Owner without such prior consent to any successor of Owner, to a person or entity acquiring all or substantially all of the Home, or to a Lender or any purchaser of the Home upon the exercise of remedies by a Lender.  Nestive hereby consents to the assignment by Owner of a security interest in this Agreement to Lenders.  Nestive further agrees to execute documentation to evidence such consent reasonably required by a Lender.  Nestive recognizes that such consent may grant certain rights to such Lenders, which shall be fully described in the consent documents.

Section 12.2 Force Majeure.  If either Owner or Nestive is rendered wholly or partially unable to perform its obligations under this Agreement (other than payment obligations) due to a Force Majeure Event, the party affected by such Force Majeure Event shall be excused from whatever performance is impaired by such Force Majeure Event, provided that the affected party promptly, upon learning of such Force Majeure Event and ascertaining that it will affect its performance hereunder, (i) promptly gives notice to the other party stating the nature of the Force Majeure Event, its anticipated duration, and any action being taken to avoid or minimize its effect and (ii) uses its reasonable commercial efforts to remedy its inability to perform..  The suspension of performance shall be of no greater scope and no longer duration than that which is necessary.  No obligations of either party which arose before the occurrence causing the suspension of performance and which could and should have been fully performed before such occurrence shall be excused as a result of such occurrence.  The burden of proof shall be on the party asserting excuse from performance due to a Force Majeure Event.

Section 12.3 Amendments.  No amendments or modifications of this Agreement shall be valid unless evidenced in writing and signed by duly authorized representatives of both parties.

Section 12.4 Survival.  Notwithstanding any provisions herein to the contrary, the obligations set forth in this Agreement, and the limitations of liabilities set forth in Article 10, shall survive in full force despite the expiration or termination of this Agreement.

Section 12.5 No Waiver.  It is understood and agreed that any delay, waiver or omission by Owner or Nestive with respect to enforcement of required performance by the other under this Agreement shall not be construed to be a waiver by Owner or Nestive of any subsequent breach or default of the same or other required performance on the part of Owner or Nestive.

Section 12.6 Notices.  All notices and other communications (collectively “Notices”) required or permitted under this Agreement shall be in writing and shall be given to each party at its address or facsimile number set forth in this Section 12.6 or at such other address or facsimile number as hereafter specified as provided in this Section 12.6.  All Notices shall be (i) delivered personally or (ii) sent by facsimile, electronic mail, telegraph, registered or certified mail (return receipt requested and postage prepaid), or (iii) sent by a nationally recognized overnight courier service.  Notices shall be deemed to be given (A) when transmitted if sent by facsimile, electronic mail, or telegraph (provided the transmittal is confirmed), or (B) upon receipt by the intended recipient if given by any other means.  Notices shall be sent to the following addresses:

Nestive

PO Box 40984

Nashville, TN 37204

               

Section 12.7 Representations and Warranties.  Each party represents and warrants to the other party that: (A)such party has the full power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated hereby; (B) to the best of such party's knowledge, the execution, delivery and performance by such party of this Agreement, does not and will not materially conflict with any legal, contractual, or organizational requirement of such party; and (C) to the best of such party's knowledge, the execution, delivery and performance by such party of this Agreement, does not and will not materially conflict with any legal, contractual, or organizational requirement of such party; and (D) there are no pending or threatened legal, administrative, or other proceedings that if adversely determined, could reasonably be expected to have a material adverse effect on such party's ability to perform its obligations under this Agreement.

Section 12.8 Counterparts.  The parties may execute this Agreement in counterparts, which shall, in the aggregate, when signed by both parties constitute one instrument.  Thereafter, each counterpart shall be deemed an original instrument.

Section 12.9 Governing Law.  This Agreement shall be construed in accordance with the laws of the State of Tennessee.

Section 12.10 Severability.  If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable.  If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.

Section 12.11 Captions.  Titles or captions of Sections contained in this Agreement are inserted as a matter of convenience and for reference, and do not affect the scope or meaning of this Agreement or the intent of any provision hereof.

Section 12.12 Dollar Amounts.  All amounts of money in this Agreement are denominated in the currency of United States Dollars.

Section 12.13 Entire Agreement.  This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement.  This Agreement supersedes any prior written or oral agreements between the parties regarding the Home.

APPENDIX A SCOPE OF SERVICES

Nestive shall perform the following Services required under this Agreement

I.                        Emergency Response and Home Service Booking

A.  Nestive will make available to Owner a customer service representative twenty-four (24) hours per day, three hundred sixty-five (365) days per year to assist in the scheduling of home repair, maintenance, and mitigation services.

II.                        Home Management Records

A.  For the term of this Agreement, Nestive will provide Owner access to Nestive’s online platform to manage documents related to their home service requests, payment invoices, and schedule repairs.  If this Agreement is not renewed by either party, access to the documentation and records contained within the platform shall be made available to Owner for one hundred eighty (180) calendar days following the termination of this Agreement.

III.                        Annual Home Inspection

A.  During the Term of this Agreement, Nestive will conduct one (1) complete inspection of the Home and relevant systems.  Should the Owner change the address of the Home through the purchase of a new residence, or request any additional home inspection services from Nestive, the cost of the Home inspection shall be Two Hundred Fifty and No/100 Dollars ($250.00).

IV.                        Bi-Annual System Servicing

A.  During the Term of this Agreement, Nestive will conduct and pay for two (2) service inspections of the heating, air and plumbing systems to be serviced by appointed Nestive Vendors.  In order to schedule such services, Nestive will make approximately two (2) attempts to schedule with Owner in the first six (6) calendar months of the Term of this Agreement, and two (2) attempts to schedule with Owner in the second six (6) months of the Term of this Agreement.  Any repair and/or replacement of heating, air, and/or plumbing matters shall be agreeable to terms between the Owner and Vendor.  Should the Owner fail to respond to Nestive’s attempts to schedule the Services or fail to meet the appropriate Vendor at the time mutually-agreed upon between Owner and Nestive, Owner shall forfeit the service inspection paid by Nestive for the appropriate six (6) month servicing window.  This forfeiture shall not void the Owner’s or Nestive’s remaining duties under this Agreement.  Nestive is not a licensed contractor.  

V.                        Vacation Monitoring

A.  During the Term of this Agreement, Owner may request from Nestive up to four (4) occasions, requests to conduct security surveillance and inspection of the Home while Owner is out of town (“Vacation Monitoring”).  Upon such security surveillance and inspection requests, should Nestive discover an emergency condition or breach of security of the Home during said Vacation Monitoring, Owner hereby authorizes Nestive to act as Owner’s agent to secure the Home, mitigate damages to the Home, and hire appropriate Vendors to remediate any damage to Home pursuant to such security breach or emergency condition.  Additionally, during any Vacation Monitoring period if Owner is notified of an emergency or security breach at the Home outside of the four (4) designated Vacation Monitoring inspections, Owner may direct Nestive to respond as Owner’s agent in order to secure the Home, mitigate damages to the Home, and hire appropriate Vendors in order to remediate damages to Home.  Any repairs for damages shall be agreeable to terms between the Owner and Vendor.  After the four (4) designated Vacation Monitoring inspections, Owner may request additional inspections at a cost of Twenty-Five and No/100 Dollars ($25.00) per occasion.

VI.            Quarterly Maintenance Plan

A.      The maintenance items shall be at the discretion of Nestive Management. Owner may request a copy of the maintenance items from Nestive at any given time.