HomeMy WebLinkAboutDestiny Software Inc.0
SOFTWARE AS A SERVICE (SAAS) AGREEMENT
EFFECTIVE DATE:
PARTIES:
I. Destiny Sofhvare Inc. ( "Supplier "), of 19724 166 °i Ave NE, Woodinville,
Washington 98072; Mailing address: PO Box 827, Woodinville, WA 98072 and
2. City of Auburn, Washington (`Customer') of 25 W Main Street, Auburn,
WA 98001
BACKGROUND:
(A) The Supplier has developed certain software applications and platforms which it
makes available to subscribers via the internet on a pay- per -use basis for the purpose
of agenda and workflow management.
(R) The Customer wishes to use the Supplier's service in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for
the Supplier's service subject to the terms and conditions of this agreement.
AGREED'rERMS:
Definitions. In this Agreement the following words and phrases shall have the
following respective meanings, unless the context otherwise requires:
Authorized Users: those employees, agents and independent contractors of the
Customer who are authorized by the Customer to use the Services and the
Documentation, as further described in clause 2.2(d).
Business Day: any day which is not a Saturday, Sunday or public holiday in the U.S.
Change of Control: the direct or indirect acquisition of either the majority of the
voting stock, or of alh or substantially all, of the assets, of a party by another entity in
a single transaction or a series of transactions.
Confidential Information: information that is proprietary or confidential and is
either clearly labelled as such or identified as Confidential Information in clause 10.5.
Customer Data: the data inputted by the Customer, Authorized Users, or the
Supplier on the Customer's behalf for the purpose of using the Services or facilitating
the Customer's use of the Services.
Documentation: the document made available to the Customer by the Supplier from
time to time which sets out a description of the Services and the user instructions for
the Services.
Effective Date: the date of this agreement.
Initial Subscription Term: the initial term of this agreement as set out in Schedule
2.
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Normal Business Hours: 8.00 am to 5.00 pill local PST time, each Business Day
Renewal Period: the period described in clause 13.1
Services: the subscription services provided by the Supplier to the Customer under
this agreement via the website assigned to the Customer by the Supplier, or any other
website notified to the Customer by the Supplier from time to time, as more
particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the
Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for
the User Subscriptions. as set out in paragraph I of Schedule I .
Subscription Term: has the meaning given in clause 13.1.
Support Services Policy: the Supplier's policy for providing support in relation to
the Services as made available at the website assigned to the Customer by the
Supplier, or such other website address as may be notified to the Customer from time
to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to
clause 8.1 which entitle Authorized Users to access and use the Services and the
Documentation in accordance with this agreement.
Virus: any thing or device (including any software, code, file or program) which
may: prevent, impair or otherwise adversely affect the operation of any computer
software. hardware or network, any telecomnuinications service, equipment or
network or any other service or device; prevent, impair or otherwise adversely affect
access to or the operation of any program or data, including the reliability of any
program or data (whether by re- arranging, altering or erasing the program or data in
whole or pan or otherwise); or adversely affect the user experience, including worms,
trojan horses, viruses and other similar things or devices.
1.1 A reference to writing or written includes faxes but not c -mail.
2. USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause
3.3 and clause 8. 1, the restrictions set out in this clause 2 and the other terms and
conditions of this agreement, the Supplier hereby grants to the Customer a non-
exclusive, non - transferable right to permit the Authorized Users to use the Services
and the Documentation during the Subscription Term solely for the Customer's
internal business operations.
2.2 In relation to the Authorized Users, the Customer undertakes that:
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(a) the maximum number of Authorized Users that it authorizes to access and
use the Services and the Documentation shall not exceed the number of
User Subscriptions it has purchased from time to time;
(h) it will not allow or suffer any User Subscription to be used by more than
one individual Authorized User unless it has been reassigned in its entirety
to another individual Authorized User, in which case the prior Authorized
User shall no longer have any right to access or use the Services and /or
Documentation;
(c) each Authorized User shall keep a secure password for their use of the
Services and Documentation and that each Authorized User shall keep their
password confidential;
(d) it shall maintain, within the security administration portion of the
application, an up to date list of current Authorized Users and promptly
remove anv unAuthorized Users:
(e) it shall permit the Supplier to audit the Services in order to establish the
name of-each Authorized User. Such audit may be conducted no more than
once per quarter, at the Supplier's expense, and this right shall be exercised
with reasonable prior notice, in such a manner as not to substantially
interfere with the Customer's normal conduct of business;
(1) if any of the audits referred to in clause 2.2(c) reveal that any password has
been provided to any individual who is not an Authorized User, then
without prejudice to the Supplier's other rights, the Customer shall promptly
disable such passwords and the Supplier shall not issue any new passwords
to any such individual; and
(g) if any of the audits referred to in clause 2.2(e)reveal that the Customer has
underpaid Subscription Fees to the Supplier, the Customer shall pay to the
Supplier an amount equal to such underpayment as calculated in accordance
with the prices set out in paragraph 1 of Schedule 1 within [10] Business
Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses or any
material during the course of its use of-the Services that:
(a) is unlawful harmful, threatening, defamatory, obscene, infringing.
harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(c) is discriminatory based on race, gender, colour, religious belief, sexual
orientation, disability, or any other illegal activity: or
(t) causes damage or injury to any person or property:
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and the Supplier reserves the right, without liability to the Customer, to disable the
Customer's access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of
exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement,
attempt to copy, modify, duplicate, create derivative works from.
frame, mirror, republish, download, display, transmit, or distribute
all or any portion of the Software and /or Documentation (as
applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or
Otherwise reduce to human - perceivable form all or any part of the
Software; or
(b) access all or any part of the Services and Documentation in order to build a
product or service which competes with the Services and /or the
Documentation; or
(c) use the Services and /or Documentation to provide services to third parties;
m'
(d) subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute,
display, disclose, or otherwise commercially exploit, or otherwise make the
Services and /or Documentation available to any third party except the
Authorized Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services
and /or Documentation, other than as provided under this clause 2; and
2.5 The Customer shall use all reasonable endeavours to prevent any unAuthorized
access to, or use Of the Services and /or the Documentation and, in the event of any
such unAuthorized access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall
not be considered granted to any subsidiary or holding company of the Customer.
3. ADDITIONAL USER SUI3SCIZI V] [ONS
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any
Subscription Term, purchase additional User Subscriptions in excess of the number
set out in paragraph 1 of Schedule I and the Supplier shall grant access to the
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Services and the Documentation to such additional Authorized Users in accordance
with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall
notify the Supplier in writing. "fhe Supplier shall evaluate such request for additional
User Subscriptions and respond to the Customer with approval or disapproval of the
request [(such approval not to be unreasonably withheld)].
3.3 If the Supplier approves the Customer's request to purchase additional User
Subscriptions, the Customer shall; within 30 days of the date of the Suppliers
invoice, pay to the Supplier the relevant fees for such additional User Subscriptions
as set out in paragraph I of Schedule I and, if such additional User Subscriptions are
purchased by the Customer part way through the Initial Subscription Term or any
Renewal Period (as applicable), such fees shall be pro -rated for the remainder of the
Initial Subscription Term or then current Renewal Period (as applicable).
4. SERVICNS
4.1 The Supplier shall, during the Subscription Term, provide the Services and make
available the Documentation to the Customer on and subject to the terms of this
agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services
available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10:00
pm to 2:00 am PST time]; and
(b) unscheduled maintenance performed outside Normal Business Hours,
provided that the Supplier has used reasonable endeavours to give the
Customer at least 6 Normal Business Hours' notice in advance.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer,
provide the Customer with the Supplier's standard customer support services during
Normal Business Hours in accordance with the Supplier's Support Services Policy in
effect at the time that the Services are provided. The Supplier may amend the
Support Services Policy in its sole and absolute discretion from time to time. The
Customer may purchase enhanced support services separately at the Supplier's then
current rates.
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5. CUSTOMER DATA
5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data
and shall have sole responsibility for the legality, reliability, integrity. accuracy and
quality of the Customer Data.
5.2 The Supplier shall follow its archiving procedures for Customer Data. In the event of
any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall
be for the Supplier to use reasonable commercial endeavours to restore the lost or
damaged Customer Data from the latest back -up of' such Customer Data maintained
by the Supplier in accordance with the archiving procedure. The Supplier shall not be
responsible for any loss. destruction, alteration or disclosure of Customer Data caused
by any third party (except those third parties sub - contracted by the Supplier to
Pei form services related to Customer Data maintenance and back -up).
5.3 The Supplier shall, in providing the Services, comply with its Privacy and Security
Policy relating to the privacy and security of the Customer Data available at the
website assigned to the Customer by the Supplier, or such other website address as
may be notified to the Customer from time to time, as such document may be
amended from time to time by the Supplier in its sole discretion.
5.4 If the Supplier processes any personal data on the Customer's behalf when
performing its obligations under this agreement, the parties record their intention that
the Customer shall be the data controller and the Supplier shall be a data processor
and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be
transferred or stored outside the state where the Customer and the
Authorized Users are located in order to cant' out the Services and the
Suppliers other obligations under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the
relevant personal data to the Supplier so that the Supplier may lawfully use,
process and transfer the personal data in accordance with this agreement on
the Customer's behalf;
(c) the Customer shall ensure that the relevant third parties have been informed
of, and have given their consent to, such use, processing, and transfer as
required by all applicable data protection legislation:
(d) the Supplier shall process the.personal data only in accordance with the
terms of this agreement and any lawful instructions reasonably given by the
Customer from time to time; and
(e) each party shall take appropriate technical and organizational measures
against unAuthorized or unlawful processing of the personal data or its
accidental loss, destruction or damage.
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6. SUPPLIER'S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed substantially in
accordance with the Documentation and with reasonable skill and care.
62 The undertaking at clause 6.1 shall not apply to the extent of any non - conformance
which is caused by use of the Services contrary to the Supplier's instructions, or
modification or alteration of the Services by any party other than the Supplier or the
Supplier's duly Authorized contractors or agents. If the Services do not conform with
the foregoing undertaking, Supplier will, at its expense, use all reasonable
commercial endeavours to correct any such non - conformance promptly, or provide
the Customer with an alternative means of accomplishing the desired performance.
Such correction or substitution constitutes the Customer's sole and exclusive remedy
for any breach of the undertaking set out in clause 6.1. Notwithstanding the
foregoing, the Supplier:
(a) does not warrant that the Customer's use of the Services will be
uninterrupted or error -free; nor that the Services, Documentation and /or the
information obtained by the Customer through the Services will meet the
Customer's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or
damage resulting from the transfer of data over communications networks
and facilities. including the internet, and the Customer acknowledges that
the Services and Documentation may be subject to limitations, delays and
other problems inherent in the use of such communications facilities.
6.3 The Supplier warrants that it has and will maintain all necessary licences, consents,
and permissions necessary for the performance of its obligations under this
agreement.
7. CUSTOMER'S OBI..IGATIONS
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co- operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the
Supplier,
in order to render the Services, including but not limited to Customer Data,
security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities
under this agreement;
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(c) carry out all other Customer responsibilities set out in this agreement in a
timely and efficient manner. In the event of any delays in the Customer's
provision of such assistance as agreed by the parties, the Supplier may
adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users use the Services and the Documentation in
accordance with the terms and conditions of this agreement and shall be
responsible for any Authorized User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions
necessary for the Supplier, its contractors and agents to perform their
obligations under this agreement, including without limitation the Services;
(1) ensure that its network and systems comply with the relevant specifications
provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections
and telecommunications links from its systems to the Supplier's data
centres, and all problems, conditions, delays, delivery failures and all other
loss or damage arising from or relating to the Customer's network
connections or telecommwiications links or caused by the internet.
8. C11ARGES AND PA \'DIE \'T
8.1 The Customer shall pay the Subscription Fees to the Supplier for the User
Subscriptions in accordance with this clause 8 and Schedule I.
8.2 The Customer shall on the Effective Date provide to the Supplier approved purchase
order information acceptable to the Supplier and any other relevant valid, up -to -date
and complete contact and billing details and, if the Customer provides:
(a) its approved purchase order information to the Supplier, the Supplier shall
invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of
the Initial Subscription Term; and
(ii) subject to clause 13.1, at least 30 days prior to each anniversary of
the Effective Date for the Subscription Fees payable in respect of
the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of
such invoice.
8.3 If the Supplier has not received payment within [30 days] after the due date. and
without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer's
password, account and access to all or part of the Services and the Supplier
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shall be under no obligation to provide any or all of the Services while the
invoice(s) concerned remain unpaid; and
(b) interest shall acave on such due amounts at an annual rate equal to 10%
commencing on the due date and continuing until fully paid, whether before
or after judgment.
8.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in U.S. dollars
(b) are, subject to clause I2.4(b), non - cancellable and non - refundable;
(c) are exclusive of state and local taxes (if applicable), which shall be added to
the Supplier's invoice(s) at the appropriate rate.
8.5 If, at any time while using the Services, the Customer exceeds the amount of disk
storage space specified in Schedule I, the Supplier shall charge the Customer, and the
Customer shall pay the Supplier's then current excess data storage fees. The
Supplier's excess data storage fees current as at the Effective Date are set out in
Schedule I.
8.6 The Supplier shall be entitled to modify the Subscription Pees, the fees payable in
respect of the additional User Subscriptions purchased pursuant to clause 3.3 and /or
the excess storage fees payable pursuant to clause 8.5 at the start of each Renewal
Period upon 90 days' prior notice to the Customer and Schedule 1 shall be deemed to
have been amended accordingly.
9. PRO I'M ErARY121G 11TS
9.1 The Customer acknowledges and agrees that the Supplier and /or its licensors own all
intellectual property rights in the Services and the Documentation. Except as
expressly staled herein, this agreement does not grant the Customer any rights'to, or
in, patents, copyrights. database rights, trade secrets, trade names, trade marks
(whether registered or unregistered), or any other rights or licences in respect of the
Services or the Documentation.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the
Documentation that are necessary to grant all the rights it purports to grant under, and
in accordance with, the terms of this agreement.
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10. COY4 IDt3NtIAI IY
10.1 Each party may be given access to Confidential Information from the other party in
order to perform its obligations under this agreement. A party's Confidential
Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the
receiving party:
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without
restriction on disclosure;
(d) is independently developed by the receiving party, which independent
development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or
by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless
required by law, not make the other's Confidential Information available to any third
party, or use the other's Confidential Information for any purpose other than the
implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential
Information to which it has access is not disclosed or distributed by its employees or
agents in violation of the terms of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of
Confidential Information caused by any third party.
10.5 The Customer acknowledges that details of the Services, and the results of any
performance tests of the Services, constitute the Supplier's Confidential Information.
10.6 The Supplier acknowledges that the Customer Data is the Confidential Information of
the Customer.
10.7 Washington's Public Records Act. Supplier acknowledges that customer is subject to
Chapter 42.56 of the Revised Code of Washington "Public Records Act." As such,
customer may receive requests for documents related to this Agreement, which
documents may contain Confidential Information. Notwithstanding any other
provision of this Section 10.7, if Customer receives a request for documents that may
apply to the Software Products, Customer will notify Supplier of the request. Supplier
shall have ten (10) calendar days after Customer sends notification to obtain an
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injunction preventing Customer from releasing the documents. Supplier agrees that if
a court of competent jurisdiction orders Customer to release the documents, and to
pay penalties, costs, or attorney's fees based on Supplier's assertion of an exemption
to the Public Records Act. Supplier will reimburse Customer in full.
10.8 This clause 10 shall survive termination of this agreement, however arising.
II. INDEMNITY
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims,
actions, proceedings, losses, damages, expenses and costs (including without
limitation court costs and reasonable legal fees) arising out of or in connection with
the Customer's use of the Services and /or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co- operation to the Customer in the
defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 The Supplier shall, subject to clause 1 1.5, defend the Customer, its officers, directors
and employees against any claim that the Services or Documentation infringes any
United States patent effective as of the Effective Date, copyright, trade mark,
database right or right of confidentiality, and shall indemnify the Customer for any
amounts awarded against the Customer in judgment or settlement of such claims,
provided that
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co- operation to the Supplier in the
defence and settlement of such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim
11.3 In the defence or settlement of any claim, the Supplier may procure the right for the
Customer to continue using the Services, replace or modify the Services so that they
become non- infringing or, if such remedies are not reasonably available, terminate
this agreement on 2 Business Days' notice to the Customer without any additional
liability or obligation to pay liquidated damages or other additional costs to the
Customer.
11.4 In no event shall the Supplier, its employees, agents and sub - contractors be liable to
the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the
Supplier; or
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(b) the Customer's use of the Services or Documentation in a manner contrary
to the instructions given to the Customer by the Supplier; or
(c) the Customer's use of the Services or Documentation after notice of the
alleged or actual infringement fi'om the Supplier or any appropriate
authority.
11.5 The foregoing states the CuSlomel''S sole and exclusive rights and remedies, and the
Supplier's (including the Supplier's employees', agents' and sub - contractors') entire
obligations and liability, for infringement of any patent, copyright, trade mark,
database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 Subject to the provisions of clause I I this clause 12 sets out the entire financial
liability of the Supplier (including any liability for the acts or omissions of its
employees. agents and sub - contractors) to the Customer in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Services and Documentation or any
part ofthcm;arid
(c) any representation, statement or tortiOlis act or omission (including
negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained fi'om the use
of the Services and the Documentation by the Customer, and for
conclusions drawn from such use. The Supplier shall have no liability for
any damage caused by errors or omissions in any information, instructions
or scripts provided to the Supplier by the Customer in connection with the
Services, or any actions taken by the Supplier at the Customer's direction;
(b) all warranties, representations, conditions and all other terns of any kind
whatsoever implied by statute or common law are, to the fullest extent
permitted by applicable law, excluded firm this agreement; and
(c) the Services and the Documentation are provided to the Customer on an "as
is" basis.
12.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
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(a) the Supplier shall not be liable whether in tort (including for negligence or
breach of statutory duty), contract, misrepresentation, restitution or
otherwise for any loss of profits, loss of business, depletion of goodwill
and /or similar losses or loss or corruption of data or information, or pure
economic loss, or for any special, indirect or consequential loss, costs,
damages, charges or expenses however arising under this agreement; and
(b) the Supplier's total aggregate liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation, restitution or otherwise,
arising in connection with the performance or contemplated performance of
this agreement shall be limited to the total Subscription Fees paid for the
User Subscriptions during the 12 months immediately preceding the date on
which the claim arose.
13. TERM AN'DTERMINATION
13.1 This agreement shall, unless otherwise terminated as provided in this clause 13,
commence on the Effective Date and shall continue for the Initial Subscription Tenn
and, thereafter, this agreement shall be automatically renewed for successive periods
of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least [60
days] before the end of the Initial Subscription Term or any Renewal
Period, in which case this agreement shall terminate upon the expiry of the
applicable Initial Subscription Term or Renewal Period: or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall
constitute the Subscription Term.
132 Without prejudice to any other rights or remedies to which the parties may be
entitled, either pan may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this
agreement and (if such a breach is remediable) fails to remedy that breach
within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other
party, or circumstances arise which entitle a court of competent jurisdiction
to make a winding -up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the
affairs, business and property of the other party, or documents are filed with
a court of competent jurisdiction for the appointment of an administrator of
the other party, or notice of intention to appoint an administrator is given b }'
the other party or its directors: or
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(d) a receiver is appointed of any of the other party's assets or undertaking, or if
circumstances arise which entitle a court of competent jurisdiction or a
creditor to appoint a receiver or manager of the other party, or if any other
person takes possession of or sells the other party's assets; or
(c) the other party makes any arrangement or composition with its creditors, or
makes an application to a court of competent jurisdiction for the protection
of its creditors in any way; or
(t) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party; or
(h) the other party takes or suffers any similar or analogous action in any
jurisdiction in Consequence of debt.
13.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate
(b) each party shall return and make no further use of any equipment, property.
Documentation and other items (and all copies of them) belonging to the
other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data
in its possession unless the Supplier receives, no later than ten days after the
effective date of the termination of this agreement, a written request for the
delivery to the Customer of the then most recent back -up of the Customer
Data. The Supplier shall use reasonable commercial endeavours to deliver
the back -up to the Customer within 30 days of its receipt of such a written
request, provided that the Customer has, at that time, paid all fees and
charges outstanding at and resulting from termination (whether or not due at
the date of termination). The Customer shall pay all reasonable expenses
incurred by the Supplier in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after
termination of any provision expressly stated to survive or implicitly
surviving termination, shall not be aftecled or prejudiced.
13.4 NON - APPROPRIATION OF FUNDS: If sufficient funds are not appropriated or
allocated for payment under this Agreement for any future fiscal period, the Customer
will not be obligated to make payments for Services or amounts incurred after the end
of the current fiscal period, and this Agreement will terminate upon the completion of
all remaining Services for which funds are allocated. No penalty or expense shall
accrue to the Customer in the event this provision applies.
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14. Fo12Ct, NIMEURE
The Supplier shall have no liability to the Customer under this agreement if it is
prevented from or delayed in performing its obligations under this agreement, or from
carrying on its business, by acts, events, omissions or accidents beyond its reasonable
control, including, without limitation, strikes, lock -outs or other industrial disputes
(whether involving the workforce of the Supplier or any other party), failure of a
utility service or transport or telecommunications network, act of God, war, riot, civil
commotion, malicious damage, compliance with any law or governmental order, rule,
regulation or direction, accident, breakdown of plant or machinery, tire, flood, storm
or default of suppliers or sub - contractors, provided that the Customer is notified of
such an event and its expected duration.
15. WAIVER
15.1 A waiver of any right under this agreement is only effective if it is in writing and it
applies only to the party to whom the waiver is addressed and to the circumstances
for which it is given.
152 Unless specifically provided otherwise, rights arising under this agreement are
cumulative and do not exclude rights provided by law.
16. SEVERANCE.
16.1 If any provision (or part of a provision) of this agreement is found by any court or
administrative body of competent jurisdiction to be invalid. unenforceable or illegal.
the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal
if some part of it were deleted, the provision shall apply with whatever modification
is necessary to give effect to the commercial intention of the parties.
17. ENTIRE.AC12EEMENI
17.1 This agreement, and any documents referred to in it, constitute the whole agreement
between the parties and supersede any previous arrangement, understanding or
agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it
does not rely on any undertaking, promise, assurance, statement, representation,
warranty or understanding (whether in writing or not) of any person (whether party to
this agreement or not) relating to the subject matter of this agreement, other than as
expressly set out in this agreement.
Page 15 of 18
18. ASSIGNMLN'T
18.1 The Customer shall not, without the prior written consent of the Supplier, assign,
transfer, charge, sub - contract or deal in any other manner with all or any of its rights
or obligations under this agreement.
18.2 The Supplier may at any time assign, transfer, charge, sub - contract or deal in any
other manner with all or any of its rights or obligations under this agreement.
19. NO PARTN'F,12S1 I I POR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership
between the parties, or authorize either party to act as agent for the other, and neither
party shall have the authority to act in the name or on behalf of or otherwise to bind
the other in any way (including, but not limited to, the making of any representation
or warranty, the assumption of any obligation or liability and the exercise of any right
or power).
20. THIRD PARTY 121GIITS
This agreement does not confer any rights on any person or party (other than the
parties to this agreement and, where applicable, their successors and permitted
assigns).
21. NOTICES
21.1 Any notice required to be given under this agreement shall be in writing and shall be
delivered by hand or sent by pre -paid first -class post or recorded delivery post to the
other party at its address set out in this agreement, or such other address as may have
been notified by that party for such purposes, or sent by fax to the other party's fax
number as set out in this agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or
if delivery is not in business hours, at 9 am on the first business day following
delivery). A correctly addressed notice sent by pre -paid first -class post or recorded
delivery post shall be deemed to have been received at the time at which it would
have been delivered in the normal course of post. A notice sent by fax shall be
deemed to have been received at the time of transmission (as shown by the timed
printout obtained by the sender).
Page 16 of 18
22. GOVERNING LANVAND J U RISDIC "PION
22.1 This agreement and any disputes or claims arising out of or in connection with it or
its subject matter or formation (including non - contractual disputes or claims) are
governed by, and construed in accordance with the laws of the State of Washington.
22.2 This agreement, including its payment obligation, is performable in King County
Washington and venue for all actions in connection with this Agreement shall lie
esClusivcly in King County Washington.
This agreement has been entered into on the date stated at the beginning of it.
Auburn, Washington
Per:
Name: phi/ $p�u5
Title: Y,5
S /14/1y 1
Page 17 of IS
Destiny Software Inc.
Per: , bQ ,. \I—A-
Name: Dean Dickinson
Title: Vice President
Schedule 1 - Subscription Fees
1. SUBSCRIPTION FEES -CTS SrrE LICENSE: /UNLIMITED USE:Rs
The Subscription Pees shall amount to a total of $3,000 per subscription term.
Subsequent terms may be adjusted upward based on the average usage of the previous
terms and estimated number of Users — subject to a maximum increase of 10% per
year.
2. BILLING TERNIS
50% down, 30% at implementation and 20% upon completion and acceptance
3. SE:1'UP AND TRAINING
Setup and Initial Training fees shall amount to a total one time charge of $1,000.
Program Administration training is provided online.. Optional Onsite User training is
5300 per day. I
4. DISK S "FORAGE, ALLOCATION
The amount of disk storage allocated to Customer during the term of the agreement is
I OGB.
(Estimated Customer disk storage is approximately I GB per year)
5. EXCESS STORAGE FEES
Disk Storage in excess of IOGB will be subject to Supplier's excess storage fees
(current as at the Effective Date) as set out below:
1 NIB To 200 \16 -
$10 /NION IA
201 NIB'1'0 500IB-
$20 /MON "TI]
501 MB "1'0 1 GB -
$50 /MONTI I
EACH AWL 500NIB-
$10 /MONTH
SCHEDULE 2 - SUBSCRIPTION TERM
Initial Subscription Term: (I year)
Page 18 of 18