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Posted: June 7, 2004

Technical Support Agreement for SkillFusion Software Suite

This Agreement for Technical Support Services (the "Agreement") is made by and between IntegraSoft, Inc., a Georgia corporation with an office at 2380 Buford Drive, Suite 106 - PMB 425, Lawrenceville, GA 30043 ("Provider") and Customer (the "Customer") identified in the electronic order form submitted on behalf of the Customer (the "Order Form").

Technical Support Services:
In exchange for the pre-payment of Support Fees, Provider agrees to provide technical support services to the Customer in connection with its use of an authorized version of the SkillFusion� Development Engine and companion systems developed by Provider, (collectively the "SkillFusion Software Suite").
1. The SkillFusion Software Suite is identified on the Downloads page http://www.skillfusion.com/download of the SkillFusion Website (the "SkillFusion Web Site"), and excludes other third party modifications, programs, and add-ons;
2. "Provider's Description of Services" http://www.skillfusion.com/support as described on Support page of the SkillFusion Website;
3. "Provider's Description of Support Fees" http://www.skillfusion.com/supportfees as described on Support Fees page of the SkillFusion Website.
Scope of Services:
Provider offers different levels of technical support services. The scope of services provided to Customer is subject to (a) the level of support ("Support Level") selected by Customer in the Order Form; (b) the type of support ("Support Type") selected by Customer in the Order Form; and (c) Provider's Description of Services.
Compensation:
Before the commencement of any term of this Agreement, Customer shall remit a one-time payment to Provider in exchange for the provision of technical support services (the "Support Fee") during that term.
1. The amount of the Support Fee for the initial term of this Agreement shall be equal to the amount set forth in Provider's Description of Support Fees for the Support Level and Support Type selected by the Customer on the date that the Customer submitted the Order Form.
2. The amount of the Support Fee for any subsequent term of this Agreement shall be equal to the amount set forth in Provider's Description of Support Fees for the Support Level and Support Type selected by the Customer, thirty (30) days prior to the commencement of such subsequent term.
3. No services shall be provided to Customer by Provider until payment has been received for the applicable term.
4. Customer shall reimburse Provider the amount of any and all direct expenses (travel, hotel, meals, telephone and modem, teleconference, mail and/or shipping costs, and other expenses) incurred by Provider in the course of providing support services, provided that the expenses were incurred with the Customer's prior approval. Customer shall reimburse Provider within thirty (30) days after Provider issues an invoice for said expenses. Provider reserves the right to require prepayment of all or part of projected expenses.
Procedures for Support Services:
Customer and Provider will implement the following procedures for Customer to request and Provider to provide technical support services.
1. Customer shall supply written support requests, using either the web-based support tracking system in use by Provider if requested or email otherwise.
2. If the Customer's Support Level and Support Type include telephone support, then the customer may supply initial support requests via telephone.
3. Customer shall provide to Provider all data that is relevant for resolving each support request, even if the request was made by telephone. Relevant data may include, but is not limited to, model files, design documentation, software source code files, database dumps, log files, program scripts, descriptions of the hardware, software, and operating system environments, examples of inputs and expected and actual outputs, and examples of use cases that may cause an unexpected result.
4. Priority levels: To assist Provider in allocating resources appropriately, Customer shall advise Provider when support requests are critically urgent. However, classification of a support request as critically urgent will not entitle Customer to support at a level higher than the Support Level and Support Type purchased by Customer.
5. Customer acknowledges that it is the sole responsibility of the Customer, at all times, including specifically during all service functions performed by Provider pursuant to this Agreement, to protect and maintain an up-to-date and restorable backup of any and all databases, files, utilities, software and other systems which Provider staff may directly access or in connection with which Provider staff may offer advice.
Support Services:
Provider will use its good faith, commercially reasonable efforts to: (a) ensure that technical support services are conducted in a professional and workmanlike manner by qualified personnel; and (b) in accordance with the applicable Support Level and Support Type purchased by Customer, attempt to diagnose any failure of the SkillFusion Software Suite to conform to written specifications and to advise Customer of appropriate remedies.

Provider is not required to provide technical support services for the following issues unless specifically agreed to in writing at the time of order.
1. Any software other than the SkillFusion Software Suite;
2. Support for customer modifications to source code of SkillFusion Development Engine-generated applications;
3. Design of any Customer application, apart from the portion of said application to be developed using the SkillFusion Software Suite;
4. Training or on-site consulting (unless the Customer's Support Level and Support Type specifically include these services);
5. Incorporation of SkillFusion Development Engine libraries or SkillFusion Development Engine-generated application libraries into other software products;
6. Direct support hours above the maximum hours per month as specified in the Provider's Description of Services for the Customer's Support Level and Support Type;
7. Patches or modifications to the source code of the SkillFusion Development Engine-generated application libraries authored by anyone other than Provider;
8. Installation, configuration, or resolution of issues or problems with the Customer's computer or networking hardware equipment, operating system, and underlying software.
Taxes:
Customer shall be responsible for payment of all taxes based on work performed or products delivered under this Agreement except for all of Provider's income taxes and employment taxes.
Non-Exclusive License to Use Corrections:
If, in the course of providing services under this Agreement, Provider creates and delivers to the Customer any software or software tools ("Corrections"), all right, title, interest, copyright, patent, and other intellectual property rights shall be retained by Provider, and the Customer shall receive a non-exclusive, royalty-free license to use such Corrections in connection with and during the term of, but subject to, its licensed use of the SkillFusion Software Suite. Provider reserves all rights, title, and interest, including all copyrights and patents, not expressly granted herein.
Disclaimer of Warranties and Limitation of Liabilities:
EXCEPT AS EXPRESSLY WARRANTED IN A VALID, SIGNED LICENSE AGREEMENT FROM PROVIDER TO CUSTOMER, PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SKILLFUSION SOFTWARE SUITE, CORRECTIONS, AND THE SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT WARRANT THAT ITS ADVICE OR PROGRAMMING ON BEHALF OF CUSTOMER WILL BE ERROR FREE.

UNDER NO CIRCUMSTANCES SHALL PROVIDER BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR PROVIDER HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM SUCH PROVIDER'S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY PROVISION OF THIS AGREEMENT OR THE USE OF THE SOFTWARE BY CUSTOMER (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, DEATH, BODILY INJURY, DAMAGES TO PERSONAL PROPERTY, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.

IN NO EVENT SHALL PROVIDER BE LIABLE FOR DAMAGES IN EXCESS OF THE AMOUNTS RECEIVED BY PROVIDER UNDER THIS AGREEMENT IN THE THEN-CURRENT TERM.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Confidentiality:
1. In connection with any information marked confidential or identified to the receiving party as confidential, ("Confidential Information"), both parties agree, during and after the term of this Agreement, to hold such Confidential Information in strict confidence and not to disclose it to others or use it in any way without the other party's prior written authorization.
2. The parties further agree to take all reasonable precautions to protect the confidentiality of the Confidential Information, including, without limitation, implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of the Confidential Information. However, a party may disclose Confidential Information without such authorization to an employee or agent of the party who must have such information to perform its obligations under this Agreement, provided that the employee or agent has been advised of the confidential nature of such information and is under an express written obligation to maintain such confidentiality.
3. Provider and Customer shall have no obligation to keep confidential or refrain from using any information which
  1. Was in its possession or known to it, without an obligation to keep it confidential, before such information was disclosed to it by the other party;
  2. Is or becomes public knowledge through no fault of its own;
  3. Is independently developed by or for it;
  4. Is disclosed by the other party to others without any restriction on use and disclosure; or
  5. Is or becomes lawfully available to it from a source other than the other party.
4. Customer represents and warrants to Provider that it is permitted to disclose to Provider any information which it discloses to Provider.
System Security:
If Provider is given access to the Customer's computer systems in connection with performance of support, Provider shall not intentionally violate any security measures employed by Customer and made known to Provider in writing.
Insolvency:
If either party becomes insolvent, files a bankruptcy petition, becomes the subject of an involuntary bankruptcy petition, makes a general assignment for the benefit of creditors, has a receiver appointed for its assets, or ceases to conduct business, it shall be considered in default of this Agreement. If any of these events happen to a party, it shall immediately notify the other party.
Term; Renewal; Termination of Agreement:
1. This Agreement commences on the date that the Customer submitted its Order Form. The initial term shall be the term length described in the Order Form ("Term Length").
2. This Agreement shall be automatically renewed for subsequent one (1) year periods (each a "Renewal Term") unless either of the following:
  1. Either party provides the other party with notice of its intent not to renew at least thirty (30) days prior to the expiration of the existing term;
  2. The Order Form explicitly states that the Agreement is for one (1) term only.
3. Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party or if in the case of Customer default if such breach remains uncured for a period of ten (10) days after written notice of such breach is sent to the other party. In the event of a Customer default, Customer shall pay all related court costs and expenses including, without limitation, disbursements and reasonable attorney's fees of Provider.
4. Provider may terminate this Agreement at any time and for any or no reason upon the provision of sixty (60) days written notice to the Customer, in which case Provider shall provide the Customer with a pro rata refund of the applicable Support Fee for the remainder of the months in the then-current term of the Agreement.
5. Upon termination for any reason, Provider shall prepare an invoice for Customer detailing all outstanding amounts owing for services provided and work performed by Provider up to the date of termination (the "Termination Invoice"), which Customer shall pay within thirty (30) days. In addition, upon termination for any reason, all rights and licenses granted to Customer under this Agreement shall immediately terminate.
6. The rights and obligations under the sections entitled 7, 8, 9, 14, 15, and 18 shall continue to bind the parties after termination of the Agreement as provided herein.
Assignment:
Neither party may assign or subcontract its rights or obligations under this Agreement, either in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempt to do so shall be void and of no effect. However, either party may assign without prior written consent its rights and obligations under this Agreement to a successor in interest due to the party's acquisition, merger or reorganization, and Provider may utilize subcontractors and / or employees to meet its obligations under this Agreement.
Mediation and Arbitration:
1. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order or preliminary injunction to preserve the status quo or prevent irreparable harm pending the selection and confirmation of a panel of arbitrators, and for the right of Provider to bring suit on an open account for simple monies due Provider, any dispute arising under this Agreement shall be resolved through a mediation-arbitration approach. The parties agree to first try to resolve the dispute informally with the help of a mutually agreed-upon mediator. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit their dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. In such a case, the parties agree to exclusive venue and jurisdiction in Atlanta, Georgia, U.S.A.
2. The arbitration may be conducted by one impartial arbitrator by mutual agreement or by three arbitrators if the parties are unable to agree on a single arbitrator within 30 days of first demand for arbitration. All arbitrators are to be selected from a panel per the Rules. The arbitrators shall have a background or training either in computer law, computer software technology or marketing of computer software products.
3. Upon request of a party, the arbitrators shall have the authority to permit discovery to the extent they deem appropriate. A court reporter shall record the arbitration hearing and the reporter's transcript shall be the official transcript of the proceeding. The arbitrators shall have no power to add or detract from the agreements of the parties and may not make any ruling or award that does not conform to the terms and conditions of this Agreement. The arbitrators shall have the authority to grant injunctive relief in a form substantially similar to that which would otherwise be granted by a court of law. The arbitrators shall have no authority to award punitive damages or any other damages not measured by the prevailing party's actual damages. The arbitrators shall specify the basis for any damage award and the types of damages awarded. The decision of the arbitrators shall be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either party.
4. The prevailing party in the arbitration proceedings shall be awarded reasonable attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrators shall for good cause determine otherwise.
Personnel:
Customer agrees that, without Provider's prior written consent, Customer will not, during the term of this Agreement and for a one year period after termination, employ or use the services of any person (whether as an officer, director, shareholder, partner, employee, agent, consultant or independent contractor) who was a Provider developer and who provided services to Customer on behalf of Provider during the term of this Agreement.

In the event that Customer breaches this provision, Provider shall be entitled to liquidated damages as calculated herein to compensate Provider for locating, recruiting, hiring and training a replacement person. Provider's liquidated damages shall be a sum equal to two times the gross annual compensation of the person Customer has wrongfully hired or engaged. Gross annual compensation means twelve times the wrongfully hired person's last full month's compensation from Provider including pro rata bonuses and benefits without set off for any sums due Provider. The parties agree and acknowledge that this amount is a reasonable, liquidated amount and not a penalty.
Force Majeure:
Neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.
Customer Representation:
Customer represents and warrants to Provider that it:
1. Is engaged in a lawful business enterprise;
2. Can form legally binding contracts and is authorized to enter into this Agreement;
3. Has a valid license to use the Provider Software Suite; and
4. Is in compliance with all applicable laws appropriate to its location of business and nature of work.
General Provisions:
1. Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence.
2. Modifications to Agreement: Provider reserves the right to amend this Agreement, or any attachment from time to time in its sole discretion by posting the amendment on the SkillFusion Website, and any such amendment may include material changes in Provider's support services to the Customer. Unless otherwise noted in an amendment, amendments shall automatically be deemed to take effect on the first day of the calendar month that occurs at least thirty (30) days after the date that Provider first posted the amendment. In the event that Customer objects to any such amendment, Customer may terminate this Agreement by providing Provider with written notice thereof no later than the date that the amendment takes effect, in which case Provider shall provide Customer with a pro rata refund of the applicable Support Fee for the remainder of months in the then-current term of the Agreement. Customer agrees to check the SkillFusion Website for amendments on a monthly basis.
3. Waiver: No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.
4. No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
5. Provider an Independent Contractor: The parties acknowledge that Provider will perform its obligations hereunder as an independent contractor. The manner and method of performing such obligations will be under Provider's sole control and discretion; Customer's sole interest is in the result of such services. It is also expressly understood that Provider's employees and agents, if any, are not Customer's employees or agents, and have no authority to bind Customer by contract or otherwise. Customer is not, and shall not be, a partner, agent, representative or joint venture of Provider. Customer has no authority to assume or create any obligation for or on behalf of Provider.
6. Language: Any action brought under this Agreement shall be conducted in the English language
7. Notices: All notices and other communications required or permitted under this Agreement shall be in writing, shall be delivered and addressed to Provider at the address below and to Customer at the address indicated on the Order Form, and shall be deemed effective:
  1. On the day given, if personally delivered or if sent by confirmed facsimile or electronic mail transmission, receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices;
  2. On the fifth day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail, or by reputable, expedited overnight courier.
  Either party may change its address for notice purposes upon issuance of notice thereof in accordance with this Section
  
  Provider:
  IntegraSoft, Inc.
  2380 Buford Drive
  Suite 106 - PMB 425
  Lawrenceville, GA 30043
8. Attorney Fees: If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses, in addition to any other relief to which it may be entitled.
9. Applicable Law: This Agreement will be governed by the laws of the State of Georgia without regard to its conflict of laws rules.
10. Severability: If any provision of this Agreement is held invalid, void or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted, and the balance of this Agreement shall be enforceable in accordance with its terms.
11. Headings Not Controlling: The headings in this Agreement are for reference purposes only and shall not be construed as a part of this Agreement.
Print this Agreement:
For record-keeping purposes, we encourage the Customer to print this Agreement.