In connection with the execution and delivery of a Purchase Agreement, which incorporates a Statement of Work (collectively, the "Purchase Agreement"), by and between Brainbench, Inc. ("Brainbench") and the customer executing the Purchase Agreement (the "Customer"), Brainbench has agreed to sell and provide, and the Customer has agreed to purchase and procure, certain web-based skills testing capability and other related products (the "Brainbench Products") and custom services (the "Brainbench Services") offered by Brainbench. The Purchase Agreement and these Terms and Conditions (the "Terms and Conditions" and together with the Purchase Agreement, the "Agreement") set forth the complete terms and conditions of rights and obligations of Brainbench and the Customer. The Customer has agreed and acknowledged that by executing and delivering the Purchase Agreement and procuring the Brainbench Products and Brainbench Services, it has reviewed and agreed to be bound by these Terms and Conditions.

1. Term

a. The term ("Initial Term") of the Agreement shall be one (1) year, beginning on the date of the Purchase Agreement (the "Effective Date").

b. Upon expiration of the Initial Term, the term of the Agreement may be renewed upon mutual written agreement of the parties, which shall be reflected by the execution of a new Purchase Agreement and any such renewal shall be for such mutually agreed period of time set forth in such Purchase Agreement (each, a "Renewal Term"). The Initial Term of the Agreement, together with any such Renewal Terms, is referred to herein as the "Term."

2. Products and Services

a. Brainbench Products. Effective upon the execution and delivery of the Purchase Agreement, and subject to the terms and conditions of the Agreement, Brainbench grants to the Customer a non-exclusive, non-transferable, right and license to utilize the Brainbench Products identified in the Purchase Agreement during the Term for the Customer’s skills testing and related purposes. Any other uses of the Brainbench Products are prohibited, including, but not limited to, copying, reverse engineering, merging, disassembling, decompiling, assigning, transferring, selling, publishing, sublicensing, modifying or making derivative works of all or any portion of the Brainbench Products. The Customer shall not alter or remove any copyright notice or proprietary legend contained in or on the Brainbench Products. No other license to the underlying intellectual property (including without limitation copyright law, patent law, trademark law and international treaty provisions) of the Brainbench Products is granted. For purposes of the Agreement, "reverse engineering" shall mean the examination or analysis of any software to determine its source code, structure, organization, internal design, algorithms or encryption devices.

b. Brainbench Services. Subject to the terms and conditions of the Agreement, Brainbench shall provide the Customer with the Brainbench Services identified in the Purchase Agreement during the Term.

3. Client Services Support

During the Term, Brainbench shall assign to the Customer's account a client services representative (the "Client Services Representative") who possess the training, education, experience and skill levels appropriate for the Brainbench Services to be provided. The Client Services Representative shall have overall responsibility for day-to-day management and administration of the Brainbench Services provided under the Agreement.

4. Payments to Brainbench

a. Fees. In consideration of Brainbench providing the Brainbench Products and Brainbench Services, the Customer shall pay to Brainbench the fees (the "Fees") set forth in the Purchase Agreement. Payment of the Fees shall be due based upon the terms stated in the Purchase Agreement. All amounts to be paid to Brainbench under the Agreement shall be paid in U.S. dollars by check or federal wire transfer to the account or accounts designated by Brainbench.

b. Travel Expenses. With respect to travel requested of Brainbench personnel by the Customer, the Customer shall reimburse Brainbench for all reasonable and necessary travel and travel-related expenses incurred in connection therewith. The Customer shall not be obligated to reimburse expenses for any travel by Brainbench that is neither requested nor approved in advance by the Customer.

c. Overdue Payments. Any amount owed by the Customer to Brainbench that is not paid on or before the date such amount is due will bear interest until paid at a rate equal to 1% per month or the maximum rate permitted by law, whichever is less. All periodic Fees or other charges under the Agreement are to be computed on a calendar month basis and will be prorated on a per diem basis for any partial month. If outstanding payments are overdue for a period of thirty (30) days or more, Brainbench may, at its option and in addition to and not in limitation of other remedies provided under the Agreement, cease providing the Brainbench Products and Brainbench Services. Such action shall in no way affect the Customer's liability to pay any outstanding Fees, which Fees will continue to accrue during the period that the Brainbench Products and Brainbench Services are withheld. In the event of delinquency of payment, the customer will be responsible for and agrees to pay any and all collection costs including 3rd-party collection fees.

d. Taxes. Each party shall be responsible for (i) any real or personal property taxes on property it owns or leases, (ii) franchise and similar taxes on its business, (iii) the employment taxes of its employees, (iv) taxes based on its net income, and (v) any sales, use, excise, value-added, services, consumption and other taxes and duties assessed arising in connection with the Agreement.

5. Rights in Intellectual Property

a. Brainbench Products and Technology. The Brainbench Products and the various concepts, ideas, methods, methodologies, procedures, processes, know-how and techniques, models, templates, the generalized features of the structure, sequence and organization of test content, software, hardware, user interfaces and screen designs, and software tools, utilities and routines, and logic, coherence and methods of operation of systems Brainbench has created, acquired or otherwise has rights in, and may, in connection with the performance of Brainbench Services, employ, provide, modify, create, or acquire or otherwise obtain rights in (collectively, the "Brainbench Technology"), are proprietary information, materials and technology of Brainbench and are protected under intellectual property laws, including without limitation copyright law, patent law, trademark law and international treaty provisions. Except for the license granted in Section 2 of these Terms and Conditions and the rights of the Customer expressly set forth in Section 6 of these Terms and Conditions, Brainbench shall retain sole and exclusive right, title and interest in and to the Brainbench Products and Brainbench Technology, including, without limitation, all intellectual property rights and other proprietary rights in and to the foregoing. Without limiting the foregoing in any respect, Brainbench shall have exclusive right, title and interest in and to (i) all existing test questions, test question items, certifications, assessments, reports, or other exam or test products developed by Brainbench that are offered to the general public or through exclusive contracts or agreements, (ii) all results, obtained from the general public or through exclusive contracts or agreements, that are generated from Brainbench developed test questions, test question items, certifications, assessments, reports or other exam or test products and (iii) the Brainbench Candidate Database (the "Candidate Database") and the user data populated in the Candidate Database.

b. Ownership of Brainbench Property. To the extent that Brainbench utilizes any of its property (including Brainbench Products and Brainbench Technology), in connection with the performance of Brainbench Services under the Agreement, such property shall remain the property of Brainbench, and the Customer shall acquire no right or interest in such property. Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Brainbench to provide the Brainbench Products and Brainbench Services, or any other products and services of any kind or nature whatsoever, to any person or entity as Brainbench in its sole discretion deems appropriate.

c. Outside Activities. Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Brainbench to provide the Brainbench Products and Brainbench Services, or any other products and services of any kind or nature whatsoever, to any person or entity as Brainbench in its sole discretion deems appropriate.

d. Brainbench Trademarks. During the Term, Brainbench grants to the Customer a royalty-free, non-exclusive, worldwide, limited license to use Brainbench's trademarks only in connection with the Customer's marketing, advertising, promotion, and distribution of its services and products and the promotion of itself as an online partner of Brainbench, and only in accordance with any written specifications that may be provided by Brainbench. Brainbench will retain all goodwill and all other rights in and to its trademarks. Upon request of Brainbench, the Customer shall provide appropriate attribution of the use of Brainbench's trademarks.

e. Customer Trademarks. During the Term, the Customer grants to Brainbench a royalty-free, non-exclusive, worldwide, limited license to use the Customer's trademarks only in connection with Brainbench's marketing, advertising, promotion, and distribution of its services and products and the promotion of itself as an online partner of the Customer, and only in accordance with any written specifications that may be provided by the Customer. The Customer will retain all goodwill and all other rights in and to its trademarks. Upon request of the Customer, Brainbench shall provide appropriate attribution of the use of the Customer's trademarks.

6. Data Rights, Custom Test Development and Virtual Test Center

a. Data Rights Generally. Brainbench shall have sole and exclusive rights of all user data that is provided or created by users who directly access the Brainbench web site and, or who have not directly registered with, or been referred to, Brainbench by the Customer. User data shall include, but is not limited to, user first and last name, address, email address, telephone numbers and test results, which have been obtained directly through the user's Brainbench account. Brainbench shall be solely liable for its respective use of such data.

b. Data Rights of Customer. The Customer shall have exclusive rights of all data that is either provided or created by the Customer's users who directly access the Customer's web site through the Customer's Corporate Brainbench Account with Brainbench and, or have not directly registered or been referred by Brainbench. The Customer's users shall include, but is not limited to the Customer's employees, perspective employees, association members, vendors, resellers, partners or alliance members, and visitors to the Customer's website. User data shall include, but is not limited to, user first and last name, address, email address, telephone numbers and test results, which have been obtained directly through the Customer's Brainbench Account. The Customer shall be solely liable for its respective use of such data. Brainbench will not at any time during the Term and thereafter sell, market, or distribute to third parties the names, addresses or other personally identifying data regarding users who reach the Brainbench database through the Customer's Brainench account. Brainbench may use the names, addresses or other personally identifying data regarding end-users including test results, for statistical and data aggregation purposes only.

c. Data Rights of Customer's Users. The Customer's users who obtain a Brainbench Transcript and have exam results posted to their Brainbench Transcript from the Customer's Brainbench Corporate Account shall have rights to view those exam results and their Brainbench Transcript. The Customer's users need not be employed or otherwise associated with the Customer to maintain rights to their Brainbench Transcript or posted exam results.

d. Virtual Test Center (VTC). The Customer shall have exclusive rights in and to a custom built Virtual Test Center (VTC) developed by Brainbench alone or in conjunction with the Customer pursuant to the Purchase Agreement.

e. Customer Proprietary Custom Certification. The Customer shall have exclusive rights in and to any custom built test questions, test question items, certifications, assessments, or other exam or test products developed by Brainbench alone or in conjunction with the Customer pursuant to the Purchase Agreement that is designated as a Customer Proprietary Custom Certification.

f. Brainbench Proprietary Custom Certification. Brainbench shall have exclusive rights in and to any custom built test questions, test question items, certifications, assessments, or other exam or test products developed by Brainbench alone or in conjunction with the Customer pursuant to the Purchase Agreement that is designated as a Brainbench Proprietary Custom Certification. The Customer shall not sell, re-sell, license or otherwise use the Brainbench Proprietary Custom Certification to compete with Brainbench with any other party without Brainbench's prior consent.

g. Customer's Rights to Candidate Database. The Customer has the right to access the Candidate Database for the Customer's own use. The Customer shall not copy, re-sell, distribute or allow third party access to the Candidate Database, unless the Customer is granted permission, in writing, from Brainbench to take such action.

7. Confidentiality and Non-Disclosure Obligations

A party who receives (the "Recipient") any confidential or proprietary information ("Confidential Information") of the other party (the "Disclosing Party") shall keep confidential and agrees not to disclose, divulge or reveal the Confidential Information to third parties without the prior written approval of the Disclosing Party. This obligation of confidence shall not apply to information that (i) is or becomes publicly available by other than a breach hereof (including any information filed with any governmental agency and available to the public); (ii) is not prominently designated in good faith and in writing as confidential prior to its disclosure to Recipient by the Disclosing Party; (iii) is known to or in the possession of the Recipient at the time of disclosure; (iv) thereafter becomes known to or comes into possession of the Recipient from a third party that the Recipient reasonably believes is not under any obligation of confidentiality to the Disclosing Party and is lawfully in the possession of such information; (v) is developed by the Recipient independently of any disclosures previously made by the Disclosing Party to the Recipient; (vi) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards, provided that prior to such disclosure by the Recipient the Disclosing Party is given reasonable advance notice of such order and an opportunity to object to such disclosure; or (vii) is disclosed by the Recipient in connection with any judicial or other proceeding involving the Customer and Brainbench (or any members, principals or employees of Brainbench) (whether or not such proceeding involves any third party) relating to the Brainbench Products or Brainbench Services or the Agreement.

8. Brainbench Service Level

a. Website Availability. Brainbench shall use reasonable commercial efforts to enable its server computers and related equipment to be operational, and shall cause the Brainbench website to be fully accessible from the World Wide Web to the Customer and its clients, 24 hours a day, 7 days per week, every day during the calendar year except for scheduled maintenance periods. Further, Brainbench shall use reasonable commercial efforts to provide quality performance, through communications bandwidth, computer hardware/software, and maintain reasonable response times for all transactions conducted by the Customer on Brainbench's website. Brainbench conducts regularly scheduled maintenance every month during non-peak hours. Brainbench will email the Customer a reminder prior to this maintenance. When the scheduled maintenance requires an extended downtime, Brainbench will notify the Customer, via confirmed email to the designated contact at the Customer at least 48 hours prior to such maintenance its beginning.

b. The Customer acknowledges that unforeseen technical problems and downtime and unscheduled maintenance of equipment, software and Internet access may interrupt the Customer's access to and use of the Brainbench Products and Brainbench Services. Brainbench will use reasonable efforts to notify the Customer via confirmed email to the designated contact at the Customer of such occurrences. The Customer may also contact the Brainbench Technical Support Help Desk during business hours to address any technical performance issues.

9. Mutual Representations and Warranties

Each party hereby represents and warrants that its performance of the Agreement does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to that party or binding upon that party's assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, patent or other proprietary right of any other person or entity.

10. Arbitration

In the event of any dispute between the Customer and Brainbench relating to the Agreement, or the Customer's or Brainbench's performance under the Agreement, the parties agree to attempt to settle differences through good faith negotiations and/or nonbonding mediation. If such attempts to settle differences are unsuccessful, the parties agree that such dispute shall be resolved by means of binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, by a single arbitrator if the dispute involves less than US$25,000, or before a panel of three (3) arbitrators if the amount in issue is US$25,000 or more. The parties will endeavor to ensure that the majority of the arbitrator panel represents a person(s) who has a background in information technology. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Depositions may be taken and other discovery obtained during such arbitration proceedings to the same extent as authorized in civil judicial proceedings in the Commonwealth of Virginia. The arbitrator(s) shall be limited to awarding compensatory damages and shall have no authority to award punitive, exemplary or similar type damages. Each party shall be solely responsible for the payment of such party's attorney's fees, except that the arbitrator(s) may award attorney's fees to the prevailing party.

11. Limitation of Liability

a. Limitation of Liability. IF EITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY MATTER RELATING TO OR ARISING FROM THE AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, WARRANTY, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE, THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE PARTY WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER WILL NOT EXCEED AN AMOUNT EQUAL TO ONE-THIRD OF THE ANNUAL FEES PAID TO BRAINBENCH BY THE CUSTOMER PRIOR TO THE ASSERTION OF THE CLAIM.

b. Exclusion of Certain Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO BUSINESS INTERRUPTION OR LOST PROFITS, SAVINGS, COMPETITIVE ADVANTAGE OR GOODWILL) ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM, WHETHER IN CONTRACT, WARRANTY, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES EVEN IF SUCH DAMAGES WERE FORESEEABLE.

c. Disclaimer of Warranties. THE CUSTOMER ACKNOWLEDGES THAT BRAINBENCH DOES NOT WARRANT THAT THE BRAINBENCH PRODUCTS AND BRAINBENCH SERVICES OR ACCESS THERETO WILL BE ERROR FREE, CURRENT OR UNINTERRUPTED OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THESE TERMS AND CONDITIONS, BRAINBENCH EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWEISE, WITH RESPECT TO THE BRAINBENCH PRODUCTS AND BRAINBENCH SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR USE.

12. Indemnification Provisions

a. General. Each party to the Agreement shall indemnify, defend and hold harmless the other and its officers, directors, employees, subcontractors and agents from and against any and all liabilities, expenses, including reasonable defense costs and reasonable legal fees, and claims for damages (collectively, "Losses") arising from claims by third parties, whether based in whole or in part in contract, tort, negligence, statute or otherwise, arising from any of the following:

(1) the death of or bodily injury to any employee of the Indemnified Party (as defined in Section 12(b)) to the extent caused by the negligence or willful misconduct of the Indemnifying Party (as defined in Section 12(b));

(2) the loss of or damage to real or tangible personal property (whether owned or leased) to the extent caused by the negligence or willful misconduct the Indemnifying Party; or

(3) the infringement of any trademark, trade name, service mark, copyright, patent or other proprietary right of any third party.

b. Mechanics of Indemnity. The party seeking indemnification (the "Indemnified Party") shall: (i) give the proposed indemnifier (the "Indemnifying Party") notice of the relevant claim; (ii) cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in the defense of such claim; and (iii) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party's rights or interest without the Indemnified Party's prior written approval. The Indemnified Party shall have the right to participate in the defense at its expense

13. Termination

a. Termination for Cause. Either party may, after giving at least 90 days prior written notice identifying specifically the basis for such notice and referring to this Section 13(a), terminate the Agreement for a material breach by the other party, unless the breaching party has within such 90-day period either (i) cured such breach (if such breach is curable) or (ii) made substantial progress to cure such breach (if such breach is curable) and implemented a plan that results in a cure of such breach within 120 days. Such notice shall specify the effective date of such termination.

b. Termination for Convenience. If the Customer terminates the Agreement for convenience prior to the expiration of the Term, then the Customer shall pay to Brainbench the entire amount of the Fees and for any additional work in process or work that has been completed by Brainbench, which has not been paid to Brainbench by the Customer as of the date of the termination.

c. Consequences of Termination. Upon the termination or expiration and non-renewal of the Agreement for any reason: (i) the Customer shall pay to Brainbench any unpaid Fees and other amounts due under the Agreement; (ii) each party will promptly cease any further use of the other party's trademarks; and (iii) each party will promptly return all information, documents, manuals and other materials belonging to the other party, including all Confidential Information of the other party. The rights and remedies provided for in this Section 13 are in addition to and not in lieu of any other rights or remedies a party may have under law or equity.

14. Miscellaneous

a. Force Majeure. Except for the payment of money, neither party shall be liable to the other for any delays or failure to perform resulting from circumstances or causes beyond its reasonable control, including 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. Performance time shall be considered extended for a period of time equivalent to the time lost because of any such delay.

b. Relationship of the Parties. Each of the parties is an independent contractor and neither party is, nor shall be considered to be, an employee, agent, partner, distributor or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

c. Notices. Wherever under the Agreement one party is required or permitted to give notice to the other party, such notice shall be in writing and shall be delivered personally, sent by facsimile transmission, sent by confirmed email, sent by nationally recognized express courier or sent by certified mail (return receipt requested). Any such notice shall be deemed given when actually received and shall be delivered to a party at the address for such party set forth in the Purchase Agreement. Either party may change its address for notices upon giving written notice of the change to the other party in the manner provided above.

d. Governing Law. The Agreement and all questions relating to its validity, interpretations, performance and enforcement, shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, notwithstanding any conflict-of-laws doctrines of such state or other jurisdiction to the contrary, and without the aid of any canon, custom or rule of law requiring construction against the draftsman.

e. Binding Nature of Agreement; Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. The Agreement shall not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided that Brainbench may assign the Agreement without obtaining such consent in the event of a merger or other business combination involving Brainbench or the sale of all or substantially all of Brainbench's assets.

f. Severability. If any term or provision of the Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remainder of the Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, but rather shall be enforced to the fullest extent permitted by law.

g. No Waiver. The waiver by either party of a breach or a default of any provision of the Agreement by the other party shall not be construed as a waiver of any subsequent breach of the same or any other provision.

h. Amendment. The Agreement may not be modified, changed, amended or altered except in writing, signed by the parties hereto.

i. Public Relations; Customer Announcements. Both parties agree to work towards making a joint press release announcing the nature of the Agreement, including a quote from each of the Customer and Brainbench. Brainbench will provide the Customer with a draft of the announcement within thirty (30) days of the Effective Date. The Customer also agrees to provide Brainbench with a point of contact for press referrals. Upon acceptance of major deliverables, the Customer also agrees to provide Brainbench, upon request, a testimonial quote from a corporate executive of the Customer for use in Brainbench's marketing efforts.

j. Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the parties with respect to the subject matter thereof. There are no representations, understandings or agreements relating to the Agreement that are not fully expressed in the Agreement.

k. Effective Date. These Terms and Conditions are effective as of November 2002. For Terms and Conditions on contracts executed prior to this date, please contact your sales representative.