These Terms and Conditions are included and incorporated into the Master Services and License Agreement (which is referred to, collectively with these Terms and Conditions, as the “Agreement”) between Destini and Client. Destini and Client are each a “Party” to this Agreement and, collectively, the “Parties”.

1. Services.
   1. Scope of Services. Subject to the terms and conditions of this Agreement, Destini shall provide the Locator Service as specifically set forth in Exhibit A. Destini may agree to provide additional services to Client after the Effective Date by both Parties executing an additional Exhibit specifying the additional services. All Exhibits to this Agreement are part of this Agreement and if there is any conflict between an Exhibit and the Agreement, the terms set forth in the Exhibit will govern.
   2. Implementation and Customization Services. Destini will perform only those implementation services set forth on Exhibit A (“Implementation Services”) in order to integrate the Locator Service with Client websites. Client will fully cooperate with Destini and its technical personnel in a timely manner to enable Destini to complete the Implementation Services. Client will direct a subdomain configured as directed by Destini to a server address supplied to Client by Destini. Any additional customization services (the “Customization Services”) requested by Client that go beyond the scope of the Implementation Services will be set forth in a written statement of work executed by both Parties and attached to this Agreement as an Exhibit.
   3. Changes to Locator Service. During the Term, Destini may make (i) minor modifications to the Locator Service to fix bugs and correct errors and (ii) minor enhancements to the features of the Locator Service (“Modifications”), and Destini will provide such Modifications to Client at no additional cost.  However, in the event Destini adds features or functionality to the Locator Service (“System Additions”), Destini may offer such System Additions to Client for additional fees as determined by Destini.  If Client agrees to purchase System Additions from Destini, then Client and Destini will enter into a new Exhibit to reflect the inclusion of such System Additions.  Destini will at all times during the term of this Agreement continue to support Modifications for the original version of the Locator Service.
   4. Support Services. Destini will provide support services to Client during normal business hours at no additional charge.

2. Payments.
   1. Fees and Payment Terms. During the term, Client will pay Destini the fees set forth on Exhibit A and any other Exhibit. Payments of all invoices are due within thirty (30) days following the date of invoice.  All payments of fees are non-refundable, unless otherwise provided in this Agreement. Invoices not paid when due will be subject to a late fee calculated from the due date at a rate equal to the lower of (i) 1.5% per month or (ii) the highest amount permissible by applicable law. Client will be responsible for any costs incurred by Destini to collect late payments, including reasonable attorney’s fees. Client is responsible for payment of all sales, use, value-added and similar taxes and surcharges lawfully levied against or upon the services, excluding taxes based on Destini’s net income or for which Client has provided a valid exemption certificate. Destini may modify the fees payable by Client under an Exhibit during any renewal term if Destini provides notice of such fee increase at least sixty (60) days prior to the expiration of the then-current term of the Exhibit.  Upon each renewal, Destini will invoice Client for the annual license fee.
   2. First Year Fees. Destini will invoice Client upon the execution of the relevant Exhibit for an amount equal to fifty percent (50%) of the fees for the first year of the Locator Service (including annual fees and fees for Implementation Services and Customization Services set forth in Exhibit A). Destini will invoice Client for the remaining fifty percent (50%) of fees for the first year of the Locator Service forty-five (45) days after the start date indicated on the Exhibit.
   3. Annual Fees. Destini will invoice Client for all annual fees set forth in Exhibit A annually on the anniversary of the start date indicated on the Exhibit.

3. Client Obligations.
   1. Use of Client Content. Client will promptly provide Destini with copies of all Client Content necessary for Destini to perform Implementation Services and Customization Services or to provide the Locator Service.  “Client Content” means any proprietary content and materials of any kind, including trademarks, domain names, logos, and copyrighted material, that Client provides to Destini to complete the Implementation Services and Customization Services and to facilitate Destini’s provision of the Locator Service. Client hereby grants to Destini a non-exclusive, worldwide, royalty-free and fully-paid license (with the right to sublicense to Destini’s subcontractors) to use, reproduce, distribute, create derivative works of, modify, perform, display the Client Content only as necessary for Destini to deliver the Locator Service and perform its obligations under this Agreement. Client warrants that the Client Content, when used as authorized in this Agreement, does not infringe or violate the intellectual and/or proprietary rights of any third party.
   2. Service Use Guidelines. Client will use the Locator Service solely within the scope of the license granted Client hereunder and will not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or make available to any third party the Locator Service, (ii) interfere with or disrupt the integrity or performance of the Locator Service or the data contained therein, (iii) attempt to reverse engineer or gain unauthorized access to the Locator Service or related systems, networks, or source code, (iv) use the data provided in the Locator Service for any purpose other than in connection with the Locator Service, or (v) attempt to determine the hierarchy of attributes assigned to products, copy such hierarchy or copy or use such attributes except in connection with the Locator Service.  Client will (1) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content, and (2) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Locator Service, and promptly notify Destini of any such unauthorized access or use.  Client further agrees to provide Destini with reasonable access to Client’s websites in order to respond to Client’s requests for technical support.

4. Termination.
   1. Termination for Breach. Either Party may terminate this Agreement immediately if the other Party has materially breached any term of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching Party specifying the nature of the breach.  If Client terminates for Destini’s breach, Destini will provide a pro-rated refund of any annual license fee (based on the number of full and partial months Client receives the Locator Service) paid for Locator Services not delivered as of the date of termination.
   2. Suspension and Termination. Destini may suspend the Locator Service if Client has not paid any invoiced amount when due.  In addition, if Destini is unable either to secure or retain the connections or license privileges necessary for the transmission of the Locator Service, or if Destini is unable to provide the Locator Service due to the inability of third parties to provide data, goods or services necessary for the delivery of the Locator Service, Destini’s obligations hereunder will be suspended, or, at Destini’s option, this Agreement may be terminated by Destini and Destini will provide a pro-rated refund of any annual license fee (based on the number of full and partial months Client receives the Locator Service) paid for Locator Services not delivered during the suspended period or as of the date of termination.
   3. Survival. The “Confidential Information”, “Proprietary Rights”, “Enforcement”, “Disclaimer of Warranties”, “Limitation on Liability” and “General” sections of this Agreement will survive any termination or expiration of this Agreement.

5. Confidential Information.
   1. Each Party will treat as confidential all Confidential Information received from the other Party, will not use such Confidential Information except as expressly permitted under this Agreement or in connection with providing Locator Services under this Agreement, and will not cause or permit its employees, officers and affiliates to reveal, disclose or otherwise make available such Confidential Information to any third party, except as expressly permitted under this Agreement. The receiving Party will use at least the same degree of care which it uses to prevent the disclosure of its own confidential information, but in no event with less than reasonable care, to prevent the disclosure of Confidential Information of the disclosing Party. The receiving Party may disclose Confidential Information to the extent required pursuant to a court order or by operation of law, provided that to the extent legally permissible the receiving Party will promptly notify the disclosing Party in writing prior to making any such disclosure and cooperate with the disclosing Party at disclosing Party’s expense in taking such action disclosing Party deems necessary to protect the Confidential Information.
   2. “Confidential Information” means (i) the terms and conditions of this Agreement, (ii) all documentation related to the Locator Service and all information regarding the performance of the Locator Service (including availability, uptime, and performance benchmarks), and (iii) any other information disclosed by a Party to the other Party, either directly or through a third party, in any form, which is designated as “Confidential,” “Proprietary” or some similar designation or which should reasonably be considered to be confidential given the nature of the information or the circumstances of its disclosure. Confidential Information does not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available through no breach of this Agreement; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party; or (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information

6. Proprietary Rights. As between Destini and Client, Destini will own all right, title, and interest in and to the Locator Service and the hardware and software used to provide the Locator Service (including, without limitation, any and all Modifications, System Improvements, customizations, modifications, adaptations, derivative works, inventions and improvements that may be developed as a result of the Implementation Services and Customization Services), the documentation for the Locator Service, Destini’s Confidential Information, all data, text, images, sounds, video, and content made available by Destini through the Locator Service (“Destini Content”), and all intellectual property rights related thereto. As between Client and Destini, Client will own all right, title, and interest in and to the Client Content, Client’s Confidential Information, and all intellectual property rights related thereto.

7. Enforcement. The Parties acknowledge and agree that each Party would lack an adequate remedy at law and would suffer irreparable injury if Section 3.b. or Section 5 of this Agreement are violated. In the event of any violation or imminent violation of such sections by a Party or any of its employees, contractors or agents, the other Party will be entitled to injunctive relief without having to prove irreparable injury, lack of an adequate remedy at law, posting bond or waiving any other rights or remedies. If Client is shown to have breached Section 3.b. or Section 5 of this Agreement, Client will reimburse Destini for all expenses (including without limitation attorneys’ fees and expenses of investigation) incurred by Destini in enforcing its rights under this Agreement.

8. Indemnification. Destini will indemnify, defend and hold harmless Client and its officers, directors, employees and agents from and against any and all loss, liability, cost, damages and expense, including attorneys’ fees, which arise out of or are related to third party claims that the Locator Service or Destini Content infringe upon the intellectual property rights of any third party; provided that Client must give prompt written notice via certified mail to Destini of any request for indemnification and Destini will control the defense of any such claim. Client agrees that if the Locator Service or Destini Content infringe or are alleged to infringe upon any third party intellectual property rights, Destini at its sole option may (i) obtain at Destini’s expense the right for Client to continue such use of the Locator Service or Destini Content, (ii) modify the Locator Service or Destini Content in such a way that the Locator Service or Destini Content are substantially similar but Client’s use of the modified the Locator Service or Destini Content does not infringe upon any third party intellectual property rights, or (iii) require Client to stop using the Locator Service or Destini Content that may be infringing and refund a pro rata portion of the fees (based on the number of full and partial months Client receives the Locator Service) paid with respect to use of such Locator Service or Destini Content.

9. Disclaimer of Warranties. DESTINI DISCLAIMS, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY LICENSORS, AND CLIENT WAIVES, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, TIMELINESS OF DELIVERY OR SECURITY. ALL LOCATOR SERVICES AND DESTINI CONTENT IS PROVIDED BY DESTINI ON AN “AS IS” AND “AS AVAILABLE” BASIS. DESTINI, ON ITS OWN BEHALF AND ON BEHALF OF THIRD PARTY LICENSORS, DOES NOT WARRANT THAT THE LOCATOR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

10. Limitations on Liability. EXCEPT FOR LIABILITY ARISING OUT OF A BREACH OF SECTION 3.b. or 5 of this Agreement, NEITHER PARTY NOR ANY THIRD PARTY LICENSORS, SERVICE PROVIDERS OR SUPPLIERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DESTINI’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO DESTINI BY CLIENT PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING SUCH CLAIM.

11. General.
    1. Authority. Each Party represents and warrants that it has full power and authority to enter into this Agreement and to carry out its obligations hereunder.
    2. Publicity and Marketing. Except as contemplated by this Agreement, neither Party will use the name or logo of the other Party in news releases, advertising or otherwise without the prior approval of such other Party; provided, however, that Destini may, during the Term, include Client and Client’s logo(s) on its customer lists (both online and offline). The user interface of the Locator Service will display the verbiage “Powered by Destini Locators,” which will be a hyperlink to the Destini Locator website.
    3. Governing Law. This Agreement and the Parties’ respective rights and duties will be interpreted and governed in accordance with the laws of the State of Illinois, regardless of its choice of law principles. Any and all claims arising from this Agreement will be brought either in the state or federal courts located in Cook County, Illinois, and each Party consents to the jurisdiction of such courts.
    4. Email Marketing and Newsletter.  Client agrees to “opt in” to receive email marketing and newsletters from Destini. Destini will not provide Client’s contact information to any third party for use in marketing third party products and services to Client. Client will have the ability to “opt out” of receiving email marketing and newsletters from Destini at any time, either through the “unsubscribe link” found in the footer of all emails or by calling the Destini support department.
    5. Assignment. Client may not assign this Agreement without the prior written consent of Destini. Any attempted assignment in violation of this provision will be null and void. All terms and conditions of this Agreement will be binding on and inure to the benefit of the permitted successors and assigns of the Parties.
    6. Entire Agreement. This Agreement constitutes the entire understanding between the Parties regarding the subject matter of this Agreement and supersedes any previous communications, representations or agreements, whether written or oral. No changes or modifications of any of the terms or conditions of this Agreement will be valid or binding on either Party unless in writing and signed by an authorized representative of each Party.
    7. Force Majeure. Destini will not be liable for any loss, damage or delay resulting from any cause beyond its reasonable control, including, without limitation: fire; flood; action or decree of civil or military authority; insurrection; act of war; threatened or actual terrorism or bioterrorism; or embargo.
    8. Notices. Notices hereunder must be in writing and given to the other Party by in-hand delivery, by first class mail, postage prepaid, or by air courier to the mailing address set forth above or to such other address as either Party may designate, or by e-mail with receipt confirmed. Notices will be effective when received.
    9. Status of Parties. This Agreement will not be construed as creating a joint venture, partnership, agency or any other similar relationship between Destini and Client, and neither Party will have any authority to bind or make commitments on behalf of the other.