Professional Services Agreement

PLEASE READ THIS PSA CAREFULLY. 

1.     Definitions

Each is a “Party” and collectively will
be “Parties”.

WHEREAS,
Visibility and Customer are parties to a Subscription or License Agreement for software
products developed by Visibility Software (“Software”);

WHEREAS,
the Customer desires to retain Visibility to provide certain services with
respect to the Software and Visibility desires to provide such services.

NOW, THEREFORE, in consideration of
the mutual promises and covenants contained therein, the Parties hereby agree
as follows:

2.     Services.  Visibility shall provide services with
respect to the Software to Customer as provided below (the “Services”):

a.     Statements of Work. The initial Statement of Work for the
Implementation of the Cyber Recruiter and Cyber Train are automatically executed
via the Order Form.  For each additional project,
assignment, or task requested by Customer, Visibility and Customer shall
execute a separate statement of work (“SOW”). 
Each SOW shall expire upon the completion of the services under the SOW.  Each SOW shall become part of this Agreement
by this reference when executed by authorized representatives of Customer and
Visibility and shall include:  (a) a
detailed description of each Party’s respective responsibilities; (b) an
estimated performance schedule; and (c) the deliverables, if any.  A SOW may only be amended or modified by a
written document signed by authorized representatives of the Parties. 

b.     Visibility’s Performance. 
Visibility shall determine the manner and means by which the Services
are to be performed.

c.    Customer Duties. 
Customer shall perform such duties and tasks designated in the SOW to
facilitate Visibility’s performance of the Services outlined there under.  Customer shall provide Visibility with supervised
access to software via a supervised remote connection during Customer’s normal
business hours and as required by Visibility in order to facilitate
Visibility’s performance of the Services outlined in each SOW.

d.    Data and Information. 
Customer shall make available in a timely manner at no charge to
Visibility all technical data, computer facilities, programs, files,
documentation, test data, sample output, or other information and resources reasonably
required by Visibility for the performance of the Services.  Customer shall be responsible for, and
assumes the risk of any problems resulting from, the content, accuracy,
completeness and consistency of all such data, materials, and information
supplied by Customer.

e.     Primary Contact Person. 
Each Party shall appoint, in writing, an employee or agent of such Party
to act as the Contact Person for all communication between the Parties related
to the Services.  The Contact Person
shall be responsible for monitoring the status of the Services and shall
schedule regular meetings with both technical and management personnel of each
Party to review the status of the Services.

3.      Fees,
Expenses, and Payments.

a.     Fees and Expenses.  
For the Services performed under an SOW, Customer shall:  (a) pay Visibility in accordance with each
SOW or at the then current Visibility standard rates, whichever is applicable;
and (b) reimburse Visibility for all reasonable and necessary travel and living
expenses Visibility incurs while performing such Services.

b.    Billing and Interest.  Visibility shall bill in accordance to
Statement of Work. Payment is due upon receipt. 
Interest shall accrue on any amounts not paid within thirty (30) days of
the date of the invoice at a rate equal to the lesser of the maximum rate
allowed by law or one and one-half percent (1.5%) per month, until such amount
is paid in full.

c.     Sales Taxes. 
Customer shall pay all sales, use, value-added, excise, or similar taxes
imposed as a result of the Services provided to Customer hereunder, excluding
any taxes based upon Visibility’s income.

4.      Confidential
Information.  Except as required
by law, neither Party shall provide, disclose, or otherwise make available to
any third party any of the disclosing Party’s confidential information during
the term of this Agreement and for a period of five (5) years following the
date of this Agreement.

5.      Express Warranty & Exclusive
Remedy. 
Visibility warrants
that it shall perform the Services in a professional and workmanlike
manner.  Visibility’s sole obligation and
Customer’s exclusive remedy with respect to this warranty is for Visibility to
re-perform any work not in compliance with this warranty which is brought to
the attention of Visibility by written notice within thirty (30) days after
such Services were performed.  The remedy set forth in this Section 5 is Visibility’s sole
obligation, and CUSTOMER’S sole and exclusive remedy, for any breach of this
warranty or for any other breach of this agreement or for any other liability
relating to this agreement.

6.      Disclaimers
of Warranties.  THE EXPRESS WARRANTY IN
SECTION 5 IS IN LIEU OF ALL
OTHER WARRANTIES, AND VISIBILITY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING
FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.

7.   Limitation
Of Liability And Remedies.  In no event shall
Visibility be liable for any consequential, indirect, EXEmplary, special,
punitive, or incidental damages, OR FOR any lost data or confidential
information, lost profits OR costs of procurement of substitute goods or
services, or business interruption arising from or relating to this agreement
OR the sERVICES.  Visibility’s total
cumulative liability in connection with this agreement AND the SERVICES sHALL
not exceed the amount paid to Visibility UNDER THIS AGREEMENT DURING THE SIX
(6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. 

8.   Ownership,
Use and Support of Work Product. 

a.    “Intellectual Property
Rights”
or “IPR” means any and all right,
title and interest in and to intellectual property and proprietary rights that
are recognized in any country or jurisdiction, including without limitation
patent rights (including without limitation patent applications and disclosures),
know-how, inventions, (whether or not patentable), copyright rights, moral
rights, trade or service marks, trade dress, mask works, rights of priority,
and trade secret rights, and all improvements, derivative works, and
modifications thereto.

b.     Customer Ownership.  Visibility acknowledges and agrees that Customer
retains ownership of, and will continue to retain ownership of any IPR in and
to all materials or data that is provided by Customer (“Customer Property”) to
enable or assist Visibility in performing the Services.

c.     Visibility Ownership.  Customer acknowledges and agrees that Visibility
retains ownership of, and will continue to retain ownership of all IPR in and
to any materials, software, technology or data existing as of the Date Executed
and used by Visibility in connection with performance of the Services (“Visibility
Property”).  Customer also acknowledges
and agrees that Visibility shall own all IPR in and to all inventions,
improvements, works of authorship and other innovations of any kind (including,
without limitation, any modifications, derivative works, enhancements or
improvements to the Visibility Property) that Visibility or its subcontractors
may make, conceive, develop or reduce to practice, alone or jointly with
others, in the course of performing, or as a result of, the Services
(collectively, the “Work Product”).  Customer
further agrees that the Work Product is not “work(s) for hire”, and to the
extent that the Work Product qualifies as work(s) for hire under applicable
law, or are otherwise subject to any claim of ownership by Customer, Customer
hereby assigns to Visibility, its successors and assigns, all right, title and
interest in and to all IPR to the Work Product (other than Customer Property),
and in and to all related proprietary rights thereof.

d.     Customer License to Use
Work Product.  Visibility grants to Customer a worldwide,
perpetual, non-exclusive, non-transferable, royalty-free license and right to
use, reproduce, modify, display, perform, and prepare derivative works of any Visibility
Property or Work Product contained in the Deliverables for Customer’s internal
business purposes, for use in conjunction with Customer’s use of the Visibility
Software licensed to Customer under the separate Subscription Agreement between
the Parties, subject to Customer’s payment for the Services rendered under this
Agreement.  However, if Customer does not
pay the fees set forth herein, or does not execute, or is in breach of, the
Agreement, then at any time, at the request of Visibility, Customer shall
return the Visibility Property and Work Product to Visibility, including all
copies thereof, on any media so embodied, developed or prepared by Visibility
hereunder.  Upon Visibility’s request, Customer
shall so certify same to Visibility in writing.

e.     License to Customer
Property.  Customer hereby grants to Visibility its
subsidiaries and affiliates, under all of Customer’s IPR, a royalty-free,
irrevocable, worldwide, non-exclusive license to the Customer Property, to use,
reproduce, create modifications, translations, improvements and derivative
works of, distribute, perform, and display such Customer Property for the sole
purpose of performing the Services herein. 
In addition, to the extent Visibility incorporates the Customer Property
into the Work Product, Customer hereby grants to Visibility, its subsidiaries
and affiliates, under all of its IPR, a royalty-free, irrevocable, worldwide,
non-exclusive license to such incorporated Customer Property (and any
modifications or improvements thereto made during the term or after) to use,
reproduce, create improvements, modifications, translations and derivative
works of, distribute, sublicense, perform, and display any such incorporated Customer
Property, during the term and after.

f.      Third Party Technology.  Unless otherwise specified expressly in any
Statement of Work, Customer shall be solely responsible for obtaining any third-party
rights, including without limitation any third-party software licenses,
necessary to utilize the Work Product.

g.     Maintenance and Support.  Customer agrees that Visibility shall be
under no obligation to maintain or support any Work Product, except as provided
under separate agreement.  Visibility is
not responsible for obsolescence of any Work Product that may result from
changes in Customer’s requirements or modifications or updates to any
associated products or services used with the Work Product.

8.      Term and Cancellation. 

a.   Term &
Cancellation.  Unless earlier terminated as set forth
herein, this Agreement shall commence on the Date Executed and continue for a
term of [one (1)] year.  This Agreement shall be automatically
extended for additional terms of one (1) year unless either Party gives the
other Party written notice of non-renewal at least thirty (30) days before the
expiration of the then current term.  The
initial term and renewal terms are collectively referred to as “Term.” 

b.  Survival.  Sections 4 (Confidential
Information), 5 (Express Warranty
& Exclusive Remedy), 6 (Disclaimers of
Warranties), 7 (Limitation of
Liability and Remedies), 8 (Ownership of Work
Product), and 11 (General Provisions),
shall survive the expiration, 
termination, or cancellation of this Agreement for any reason. 

9.     Separate Agreements.  All Services provided hereunder are separate
from any obligations under any software licenses, subscriptions and/or
technical support agreements between the Parties.  Customer understands and agrees that this
Agreement is a separate and independent contractual obligation.  Customer shall not withhold payments that are
due and payable under this Agreement because of any issue involving any
software license or technical support agreement with Visibility. 

10.  General Provisions. 

a.   Assignment. Neither Party may
assign or transfer any of its rights under this Agreement, voluntarily,
involuntarily, or by operation of law, or in any other manner, without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld.  Any purported
assignment or transfer of rights in violation of this section is null and
void.  Notwithstanding the foregoing,
each Party shall have the right to assign this Agreement to any successor to
substantially all of its business or assets to which this Agreement relates,
whether by merger, sale of assets, sale of stock, reorganization, or
otherwise.  Subject to the foregoing,
this Agreement is binding upon, inures to the benefit of and is enforceable by
the Parties and their respective successors and assigns.

b.     Complete Agreement; Severability. This Agreement,
including any exhibits, attachments and addenda, constitutes the complete
agreement between the Parties with respect to its subject matter and supersedes
all prior or contemporaneous discussions, representations, and proposals,
written or oral, with respect to the subject matters discussed herein. If any
provision of this Agreement is held by a court of competent jurisdiction to be
unenforceable, such provision shall be changed and interpreted to accomplish
the objectives of such provision to the greatest extent possible under
applicable law and the remaining provisions of this Agreement shall continue in
full force and effect.

c.     Governing Law &
Venue.  The laws of the State of South Carolina
(without giving effect to its conflicts of law principles) govern all matters
arising out of or relating to this Agreement and all of the transactions it
contemplates, including without limitation, its validity, interpretation,
construction, performance, and enforcement.  Each Party hereby consents to the
exclusive jurisdiction and venue of the state courts sitting in Newberry County,
South Carolina or the federal courts in Columbia, State of South Carolina to
resolve any disputes arising out of or relating to this Agreement.

d.     In General.  (a)
This Agreement may be executed in counterparts and by electronic signature. Fax
signatures will be acceptable as originals. (b) The Services and any deliverables
are comprised of “commercial items”, “commercial computer software”, and
“commercial computer software documentation” as such terms are as defined in
FAR 2.101 and DFARS 252.227-7014(a)(1). 
(c) Any notice by either Party under this Agreement must be given in
writing and be delivered in person, or by nationally recognized courier with a
tracking system, or by express or certified mail, return receipt requested, to
the other Party at its address specified in this Agreement.  (d) All fees paid under this Agreement are
non-refundable, except as otherwise expressly provided herein.  (e) No term or condition contained in Customer’s
purchase order or similar document will apply unless specifically agreed to by Visibility
in writing, even if Visibility has accepted the order set forth in such
purchase order, and all such terms or conditions are otherwise hereby expressly
rejected by Visibility.  (f) Neither Party
shall be liable for any delays resulting from circumstances or causes beyond
its reasonable control, including, without limitation, fire or other casualty,
act of God, strike or labor dispute, war or other violence, or any law, order
or requirement of any governmental agency or authority.