Destiny Template SaaS Agreement current 2021 V2 - US.pdf

© 2021 DESTINY SOLUTIONS INC. All Rights Reserved. Confidential Page 1 of 23

THIS AGREEMENT is made between Destiny Solutions Inc., a company with its principal place of business at 40 Holly Street, Toronto, Ontario, Canada, M4S 3C3 (“Destiny”), and Board of Regents of the University of Wisconsin System, University of Wisconsin-Shared Services (“Customer”) with its principal place of business at 780 Regent Street, Madison, WI 53703

This agreement consists of this signature page and the following appendixes and exhibit (collectively the “Agreement”):

Appendix 5 - General Terms and Conditions

Capitalized terms not otherwise defined in the body of the Agreement, shall have the meaning ascribed to them in Section 11 of Appendix 5.

The effective date of this Agreement is _______________ (“Effective Date”).

Subject to the payment of the Fees by Customer, Destiny shall perform the Services in accordance with the terms hereof and the policies and procedures in relation to the Service, which are established by Destiny from time to time.

This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the parties.

Except as expressly provided in this Agreement, there are no representations, warranties, conditions, other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect this Agreement.

This Agreement may be executed in any number of counterparts, including facsimile, PDF, and other electronic copies, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the Parties.

IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be duly executed by an officer authorized in that behalf as of and with effect on the Effective Date.

______________ DESTINY SOLUTIONS INC.

per: per:

Name: Name:

Title: Title:

Date: Date:

per:

Name:

Title:

Date:

DocuSign Envelope ID: 0F95BACD-B5D6-4ABD-9EE6-6EE7BCD4FA88

Peter DeVries

President and COO

3/11/2021 | 12:04 PM PST

Procurement Specialist

Mike Morris

3/15/2021 | 7:18 AM CDT

3/15/2021 | 7:18 AM CDT

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APPENDIX 5

GENERAL TERMS AND CONDITIONS

1. THE SYSTEM

(a) Provision and Access to the System: Destiny shall operate and maintain the System in accordance with

Appendix 2 of this Agreement. Access to the System is through a secure connection over the public Internet.

Customer acknowledges and agrees that Destiny is not responsible or liable for any communication over the public Internet or any failure to deliver communication to and from the System on a timely basis.

(b) Required and Infrastructure Changes: From time to time, it will be necessary for Destiny to perform maintenance on the System. Such maintenance includes routine maintenance to ensure the continued provision of the Services through the continued operation of the System or upgrading, updating or enhancing the System. Destiny shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the System to Customer. Destiny may, at any time, with or without notice to Customer: (i) make changes that are necessary to comply with applicable safety, security or other statutory requirements or orders from applicable governmental authorities; (ii) supplement or make changes to its user documentation and to its rules of operations, access procedures, security and privacy procedures and policies; and (iii) change the components, type and location of the System; provided that any such changes do not impair the provision of the Services.

(c) Software Revisions: Destiny reserves the right to modify, revise, upgrade, replace, or reconfigure the

Software features and functions at any time, provided that for those revisions that will materially affect System functionality Destiny will give Customer at least ninety (90) calendar days' advance notice of such revision.

(d) Destiny’s Ownership: Customer acknowledges and agrees that Destiny owns all worldwide right, title and interest, including all intellectual property rights, in and to: (i) the System; (ii) Software: (iii) User Documentation; and (iv) any modifications, enhancements, upgrades, updates or customization to any of the foregoing. Customer does not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the licenses granted herein.

2. USE OF SERVICES

(a) Grant by Destiny: For the duration of the Term, Destiny grants to Customer a non-exclusive, non-transferable, revocable right, for Customer's internal business purposes to access the System in accordance with the security protocols as set out herein for the purpose of:

(i) using the Software identified in Appendix 1 subject to the Use Rights associated with such

Software;

(ii) viewing and displaying the User Documentation; and

(iii) uploading, processing, viewing, displaying, using and downloading Customer Data to and from the

System.

(b) Authorized Users: Customer shall be responsible and liable for the actions and omissions of each

Authorized User and their compliance of the provisions of this Agreement.

(c) Support: Destiny shall provide support to Customer and its Authorized Users in accordance with the provisions set out in Appendix 2 to this Agreement.

(d) Reservation of Rights: Any rights not granted herein are strictly reserved by Destiny. Customer shall not

(i) permit any Person other than Authorized Users to use the System; (ii) process or permit to be processed

DocuSign Envelope ID: 0F95BACD-B5D6-4ABD-9EE6-6EE7BCD4FA88

© 2021 DESTINY SOLUTIONS INC. All Rights Reserved. Confidential Page 15 of 23 any data other than Customer Data; and (iii) itself or permit others to, reverse engineer, decompile, disassemble or translate the Software or any other software used by Destiny to deliver the Services, or otherwise attempt to view, display or print such software, including the Software's, source code. Destiny may monitor Customer’s use of the System and Software, including compiling reports evidencing Customer’s usage thereof, gather statistics, track aggregated data, and satisfy any support requirements, provided such monitoring does not unreasonably interfere with Customer’s use of the System.

(e) Prohibited Activities: Customer shall not:

(i) use the Services for improper or unlawful purposes or in contravention of Customer’s own policies and regulatory requirements;

(ii) include, or knowingly allow others to include, any Objectionable Content or introduce Viruses to the

System and shall institute such security procedures and safeguards as Customer deems necessary to prevent the posting, uploading or inclusion of any Objectionable Content or Viruses to the System;

(iii) intercept or attempt to intercept any messages transmitted to and from the System that are not intended for Customer or any of its Authorized Users;

(iv) take any action that may damage, disable, overburden, or impair the System or attempt to circumvent, disable, damage or impair the System’s security features; or

(v) remove any copyright or other proprietary rights notice on the Software or the User Documentation or any copies thereof.

(f) Viruses: If Destiny, in its absolute discretion, forms the view that any Customer Data or any other information or files uploaded by Customer or any of its Authorized Users contains or includes a Virus, Destiny may remove such Customer Data, information or file from the System and take such other action as Destiny deems necessary to protect the integrity and operation of the Services, System and the Software. Any costs associated with such removal may be charged by Destiny to Customer. Destiny shall notify Customer of its actions under this Section as soon as reasonably possible.

3. SECURITY AND CUSTOMER DATA

(a) Security: Destiny agrees to protect the privacy and security Customer Data according to all applicable laws and regulations, by commercially-acceptable standards, and no less rigorously than it protects its own confidential information, but in no case less than reasonable care. Destiny shall implement and maintain reasonable safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access or use of the System. Customer acknowledges and agrees that notwithstanding such safeguards and controls, such methods and procedures may not prevent unauthorized electronic intruders to access the System through the Internet or through other form of electronic communication. If such unauthorized electronic intruders are able to bypass Destiny's safeguards and controls, such unauthorized electronic intruder may change, delete or otherwise corrupt the contents and data contained in the System. Except for the maintenance of appropriate safeguards and controls, which are designed to frustrate access from unauthorized electronic intruders, Destiny shall not be liable to Customer, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.

(b) PCI Compliance: Destiny represents that, as of the Effective Date, it retains appropriate PCI-DSS and PA-

DSS certifications and will provide periodic notification of ongoing certification renewals.

(c) Authentication IDs: Customer shall control and maintain the security of all Authentication IDs. Customer shall be solely responsible for all instructions, commitments and other actions or communications taken under any of Its Authentication IDs. Customer shall promptly report to Destiny any errors or irregularities

© 2021 DESTINY SOLUTIONS INC. All Rights Reserved. Confidential Page 16 of 23 in the Service or the System or any unauthorized use of any part thereof and inform Destiny immediately if any Authentication ID becomes known to any third person who is not authorized to possess such password.

Customer hereby indemnifies and holds harmless Destiny from any actions, claims, suits, proceeding or damages made against Destiny from a third person as a result of any use of Customer's Authentication IDs, whether or not such use is authorized by Customer.

(d) Customer Data: Customer acknowledges and agrees that Destiny: (i) will not be responsible for the accuracy, completeness or adequacy of any Customer Data or the results generated from any Customer Data uploaded to the System and processed by the Software; (ii) has no control over any Customer Data or the results therefrom; and (iii) does not purport to monitor Customer Data.

(e) Customer’s Ownership: Destiny acknowledges and agrees that all worldwide right, title and interest including, all intellectual property rights in and to the Customer Data shall be the exclusive property of Customer. Destiny does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data, other than the license granted herein.

(f) Compliance with Privacy Laws: Destiny will comply with applicable privacy laws, including the Family

Educational Rights and Privacy Act (“FERPA”) and the Health Insurance Portability and Accountability Act (“HIPAA”) and the data security standards set out therein regarding personally identifiable information contained within Customer Data. To the extent that Destiny has access to “Education Records”, it is deemed a “school official” as each of these terms is defined in FERPA.

(g) Data Breach: Destiny has implemented and shall maintain a program for managing unauthorized disclosure or exposure of Customer Data stored by or accessible through the Services (“Data Breaches”). Both Customer and Destiny shall take reasonable steps to prevent unauthorized access to the System. Each party shall notify the other immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said Data Breach.

(h) Use of Customer Data: Destiny may use Customer Data for the sole purposes of: (i) providing the Services to Customer; and (ii) on an aggregated and anonymous basis for System analytics and improvement.

Destiny may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Destiny shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4. SUSPENSION AND TERMINATION

(a) Suspension of Services: Destiny may suspend Customer's and each of its Authorized Users' right to receive the Services and access and use of the Software if, in consultation with Customer, it has been determined that a Customer Authorized user, or other party has undermined or attempted to undermine, the security or integrity of the System.

(b) Customer’s Right of Termination for Breach by Destiny: Subject to Section 4(d) and 4(e) of this Appendix, Customer may terminate this Agreement and the rights granted hereunder, if Destiny breaches any material provision of this Agreement and such breach continues for a period of thirty (30) Business Days after delivery of a written notice by Customer requiring Destiny to correct such failure.

(c) Destiny’s Right of Termination for Breach by Customer: Subject to Sections 4(d) and 4(e) of this Appendix.

Destiny may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Customer:

(i) fails to pay in full any Fees owing by it under this Agreement by the due date thereof or breaches any other material provision of this Agreement and such failure or breach continues for a period of thirty (30) Business Days after delivery of a written notice by Destiny requiring Customer to correct such failure or breach; or

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(ii) infringes the intellectual property rights of Destiny.

(d) Effect of Termination: Upon the termination of this Agreement for any reason:

(i) Destiny shall submit to Customer any Customer Data contained in the System in the form of an encrypted database backup file within ten (10) Business Days of the effective date of termination;

(ii) Customer shall immediately discontinue use of the System, Software and User Documentation and

Destiny shall discontinue the provision of the Services;

(iii) Customer shall pay to Destiny the full amount of all Fees payable hereunder outstanding as of the effective date of termination, if any, whether invoiced or not and any other monies owing to Destiny;

and

(iv) within fifteen (15) Business Days from the effective date of termination and subject to Destiny’s back-up policies, each Party will return to the other Party, or confirm destruction, of all Confidential Information of the other Party which is then in its possession or control.

(e) Survival of Covenants: Notwithstanding the termination or expiration of this Agreement for any reason, the covenants set out in this Section 4(e) and in Sections 1(d), 3(e), 4(d), 5, 6(c), 7, 9, 10(a), 10(c) and 11 of this Appendix shall survive any such termination or expiration.

5. CONFIDENTIAL INFORMATION

Each Party acknowledges that Confidential Information consists of confidential and proprietary information.

Except as required by law, each Party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third party other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement. In the event that any Party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, such Party agrees, to the extent permitted by applicable law, to (i) immediately notify the other Party of the existence, terms and circumstances surrounding such a request; (ii) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and (iii) if disclosure of such information is required, permit the other Party to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed information as the other Party designates.

The foregoing provision of Confidential Information Sections will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement pursuant to the order or requirement of a court, administrative agency, Wisconsin Open Records Law or other governmental body.

6. WARRANTIES

(a) Software Warranties: Destiny hereby warrants to Customer that during the Term the Software will substantially operate in accordance with, and have the functions set out in, the User Documentation.

(b) Remedy: For any breach of the above warranty, Customer’s exclusive remedy and Destiny’s entire liability and sole obligation is to correct the defects in the Software that caused the breach of the above warranty in accordance with the terms set out in Appendix 2 to this Agreement.

(c) Exclusion of Other Warranties: EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, © 2021 DESTINY SOLUTIONS INC. All Rights Reserved. Confidential Page 19 of 23

THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RELATION TO THE

SERVICES, SYSTEM, SOFTWARE OR USER DOCUMENTATION THAT ARE THE SUBJECT MATTER

OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE

QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT THE

SERVICES, SYSTEM OR SOFTWARE WILL MEET CUSTOMER’S NEEDS OR WILL BE AVAILABLE

FOR USE AT ANY PARTICULAR TIME OR WILL BE ERROR FREE.

7. INDEMNIFICATION

(a) Destiny’s Indemnity: Destiny shall defend at its own expense any claim, proceeding or suit brought against

Customer , its affiliates, directors, officers, employees and agents, by a third person (referred to as a “Claim”) to the extent such Claim alleges that the Software furnished hereunder infringes any U.S. or Canadian copyright, valid registered patent or trademark of a third person, and will indemnify and pay all damages which by final judgment or settlement may be assessed against Customer on account of such Claim, provided that Destiny is given:

(i) prompt written notice of the Claim or of any allegations or circumstances known to Customer which could result in a Claim;

(ii) reasonable information and assistance from Customer, at Destiny’s expense, which Destiny may require to defend the Claim;

(iii) sole control of the defense of the Claim, and all negotiations for its settlement or compromise thereof; and

(iv) that the alleged infringement does not result from any non-permitted uses, alterations, modifications or enhancements carried out by Customer or on its behalf by a third person.

If such Claim has occurred, or in Destiny’s opinion is likely to occur, Customer agrees to permit Destiny, at Destiny’s option and expense, either to procure for Customer the right to continue using the Service, including the System and Software, or to replace or modify the Software so that it becomes non-infringing without substantial loss of functionality, or if none of the foregoing alternatives is reasonably available and at Destiny’s discretion, require the Customer to discontinue use of the Services, including the System and Software and Destiny shall issue a refund to Customer for the remaining pro-rata portion of any pre-payments corresponding to the current Term Subscription Fees. The foregoing states the entire obligations and liabilities of Destiny with respect to any infringement of intellectual property rights of any third person.

8. INSURANCE

Destiny shall maintain, at Destiny's sole expense, the following insurance coverages and limits:

(i) Commercial General Liability Insurance with limits of liability not less than $3,500,000 CA per occurrence and in the aggregate, including liability coverage for bodily injury or property damage;

(ii) Professional Liability insurance including Errors and Omissions Insurance with limits of liability not less than $3,500,000 CA per occurrence and in the aggregate; and

(iii) Cyber Liability insurance with limits of liability not less than $3,500,000 CA per occurrence and in the aggregate.

Destiny's insurance shall be primary, and any applicable insurance maintained by Customer shall be excess and non-contributing.

9. LIMITATION OF LIABILITY

(a) Consequential Damages: IN NO EVENT SHALL DESTINY, OR ANY OF ITS EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR

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PUNITIVE DAMAGES OR FOR ANY LOST REVENUE, LOST PROFITS, EVEN IF ADVISED IN ADVANCE

OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

(b) Limitation of Direct Damages: SUBJECT TO SECTION 9(c) OF THIS APPENDIX, IN RESPECT OF ANY

CLAIM, DEMAND OR ACTION BY CUSTOMER AGAINST DESTINY OR ANY OF ITS EMPLOYEES,

DIRECTORS, OFFICERS, OR AGENTS WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE,

INCLUDING A BREACH BY DESTINY OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT

(WHETHER OR NOT A FUNDAMENTAL BREACH), OR DAMAGES RESULTING FROM DESTINY’S

NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER’S EXCLUSIVE REMEDY SHALL BE TO

RECEIVE FROM DESTINY PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM

AGGREGATE AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO DESTINY IN THE TWELVE

(12) MONTHS PRECEDING THE EVENT THAT CAUSED THE CLAIM, DEMAND OR ACTION UNDER

THE CATEGORY OF SUBSCRIPTION FEES.

(c) Exception: NOTWITHSTANDING SECTION 9(b) ABOVE, THE LIMITATION SET OUT THEREIN SHALL

NOT APPLY TO ANY DATA BREACH CAUSED BY DESTINY’S GROSS NEGLIGENCE, IN WHICH CASE

CUSTOMER’S EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM DESTINY PAYMENT FOR

ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO FIVE MILLION

DOLLARS ($5,000,000 CA).

10. MISCELLANEOUS

(a) Governing Law: This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the State of Wisconsin, USA. The Parties hereto agree to submit to the jurisdiction of the courts of the State of Wisconsin, USA and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.

(b) Modifications: This Agreement may be modified only upon written agreement by the Parties hereto.

(c) Severability: In the event that any provision (or any portion of a provision) of this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision (or portion of a provision) had never been contained herein in regards to that particular jurisdiction.

(d) Assignment: Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either Party in whole or in part without the prior written consent of the other Party, except that either Party may assign this Agreement with all of its obligations and rights to an Affiliate or to an entity which acquires all or substantially all of the assets and business of the Party by merger, sale of assets, sale of stock, operation of law or otherwise.

(e) No Agency: Nothing herein shall be deemed to constitute either Party as an agent, representative or employee of the other Party, or both Parties as joint venturers or partners for any purpose. Each Party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other Party. Neither Party will have the authority or right to represent nor obligate the other Party in any way.

(f) Destiny Brand Protection: The logo "Powered by Destiny One", with embedded link to Destiny Solutions website, will appear in appropriate visible locations within the Software including Login pages.

(g) Customer List: Destiny is permitted to list the Customer's logo and name within a customer list composed of other Destiny customers

(h) Force Majeure: No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or

© 2021 DESTINY SOLUTIONS INC. All Rights Reserved. Confidential Page 20 of 23 other causes beyond the performing party’s reasonable control provided that written notice of delay (including anticipated duration of the delay) shall be given by the affected Party to the other Party within ten

(10) days of the affected Party first becoming aware of such event.

(i) No Waiver: Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this

11. Definitions:

In this Agreement, the following terms shall have the following meanings:

“Authentication ID” means a security mechanism by which an Authorized User identifies herself or himself to the System and gains access thereto, which security mechanism may include user identification, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by Destiny from time to time.

“Authorized User” means any company or individual, including Customer’s employees, agents, clients, consumers, students or instructors, who Customer has authorized to access and use the Services.

“Anniversary Date” has the meaning ascribed to it in Section 1 of Appendix 1 to this Agreement.

“Business Day” means any calendar day except for Saturday or Sunday or any statutory holiday observed in the Province of Ontario.

“Change Request” means any document detailing Customer service requests or Software customizations, along with pricing, that requires approval in writing by both parties.

“Confidential Information” means this Agreement; all data and information relating to the business and management of either Party, including Customer Data; the Software, including its design, ideas embodied therein, models and databases; and marketing, financial or personnel data of a Party, provided, however, that Confidential Information shall not include any data or information which:

(i) is or becomes publicly available through no fault of the Party to whom disclosure is made;

(ii) is disclosed to a Party by a third party under no obligation of confidentiality to the other Party; or

(iii) is further disclosed with the prior written consent of the disclosing Party.

“Customer Data” means any data, content, and information in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s clients.

“Customer’s Point of Contact” has the meaning ascribed to it in Section 2(c)(i) of Appendix 2.

“Fees” means collectively the Service Fees, Subscription Fees, and any Other Fees, where “Service Fees”, “Subscription Fees”, and any “Other Fees” are set out in Appendix 1 to this Agreement.

“Hours of Support” means between the hours of 9:00 a.m. and 8 p.m. Eastern Time (standard or daylight, as the case may be) on Business Days. Hours of support for Severity 1 issues (out of service) are 24 hours a day, 7 days per week.

“Objectionable Content” means content that infringes any applicable laws, regulations or third person’s rights, and content which is in breach of any person’s intellectual property rights.

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“person” means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, governmental authority or other entity or organization and includes any successor to any of the foregoing.

“Resolution” has the meaning ascribed to it in Section 1(f)(iv) of Appendix 2.

“Service” means collectively the services to be provided by Destiny to Customer as described and set out in this Agreement.

“SLA” – means Destiny’s standard service level agreement as defined in Appendix 2

“Software” means the software, modules, tools, and other features provisioned and made available to Customer set out in Appendix 1 to this Agreement.

“Statement of Work (SOW)” is a document detailing Customer service requests or Software customizations that contains schedule, roles and responsibilities, and other project-based information and requires approval in writing by both parties.

“System” means collectively: (i) the Software; and (ii) the computer server that houses the Software and those devices and peripherals physically located with such server located behind Destiny’s border router, which is used to establish connectivity from the System to the public Internet.

“Term” means collectively the Initial Term and any Renewal Term; where the “Initial Term” and any “Renewal Term” are set out and defined in Appendix 1 to this Agreement.

“User Documentation” means online help and any additional materials published by Destiny with respect to System functionality.

“Use Rights” means the parameters by which Customer may use the Software set out in Appendix 1 to this

“Virus” means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it may automatically spread to other computer users; the term ‘Virus’ will also be deemed to include worms, cancelbots, trojan horses, harmful contaminants (whether self-replicating or not) and nuisance causing or otherwise harmful applets.