**Exhibit 10.33**

 
| ** ** | ***TEXT  OMITTED AND FILED SEPARATELY**                    |
|------------|------------------------------------------------------------|
| ** ** | **Confidential  Treatment Requested**                      |
| ** ** | **Under  17 C.F.R. Section 200.80(B)(4), 200.83 and** |
| ** ** | **240.24b-2**                                              |

 

**FedEx Contract No. 06-0636**

 

**PROFESSIONAL SERVICES AGREEMENT**

 

THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”)is made and entered into as of the 29th day of August, 2005 (the “EffectiveDate”), by and between **FEDEX CORPORATE SERVICES,INC.** (“FedEx”), and **TIME AMERICA, INC.**(the“Contractor”).

 

**RECITALS**

 

1.             FedExdesires to engage Contractor to perform the services described in thisAgreement.

 

2.             Contractoris willing and able to perform the services for FedEx in accordance with theterms and conditions of this Agreement.

 

FOR AND IN CONSIDERATION of the mutual covenantscontained in this Agreement, FedEx and Contractor (the “Parties”) agree asfollows:

 

**ARTICLE 1**

**SCOPE OF WORK**

 

**Section 1.01. Scope of Work.**  In consideration of FedEx’s payments underthis Agreement, Contractor shall perform in accordance with the terms andconditions of this Agreement the services described in Exhibit A (the “Services”).

 

**Section 1.02. Orders by Affiliates. **Throughoutthe Term of the Agreement (as defined in Article 2 herein) and any furtherextensions thereof, if any, any Affiliate of FedEx shall have the right to makepurchases under this Agreement.  Forpurposes of this provision, the term “Affiliate”shall mean any entity that, directly or indirectly, controls, is controlled byor is under common control with FedEx, where “control” is defined as theownership of at least fifty percent (50%) of the equity or beneficial interestsof such entity, but only for so long as such control exists.  In the event of default by anAffiliate, Contractor shall look solely to the defaulting Affiliate whenpursuing any remedies and not to FedEx or any other non-defaulting Affiliatewhose rights under the Agreement shall continue uninterrupted in accordancewith the terms of this Agreement.

 

**ARTICLE 2**

**TERM**

 

**Section 2.01. Term.**

 

(a)           The termof this Agreement (the “Term”) shall commence as of the date hereof and shallexpire when the Services are completed, which shall not be later than May 31,2008 (the “Completion Date”).

 

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(b)           FedExshall have the unlimited right to terminate this Agreement before theCompletion Date by giving written notice to Contractor.  In such event, Contractor shall be entitledonly to portions of the Fee earned and Reimbursables actually incurred as ofthe effective date of termination.

 

**ARTICLE 3**

**COMPENSATION**

 

**Section 3.01. Contractor’s Fee.** For and in consideration of the Servicesprovided in accordance with this Agreement, FedEx shall pay to Contractor a fee(the “Fee”) according to the schedule set forth in Exhibit B.  In no event shall the aggregate amount ofFees payable by FedEx exceed the maximum amount specified in Exhibit B andall Services outlined in Exhibit A shall be completed within such maximumamount.

 

**Section 3.02. Reimbursable Expenses.**

 

(a)           Inaddition to the Contractor’s Fee, FedEx shall reimburse Contractor for suchreasonable and necessary expenses (“Reimbursables”) incurred by Contractor inthe performance of the Services, up to the maximum reimbursable amountspecified in Exhibit B.  Anyexpenses incurred by Contractor in excess of the maximum reimbursable amountshall not be deemed Reimbursables, and no Reimbursables claimed will be payableunless properly documented in accordance with Section 3.03.

 

(b)           Reimbursablesfor travel must be authorized by FedEx in advance, and will be paid only inaccordance with FedEx’s consultant travel policy, a copy of which policy willbe provided to Contractor upon request.

 

**Section 3.03. Invoices.** Unless otherwise provided, Contractor’s Fee and Reimbursables shall bepayable within thirty (30) days of approval by FedEx of invoices rendered byContractor for Services performed during the preceding invoice period or withinforty-five (45) days of invoice date, whichever occurs first.  Each invoice shall be accompanied by full documentationin support of the Fee and Reimbursables invoiced, as well as a time sheetprepared by Contractor and containing a statement of the number of hoursexpended by Contractor in the performance of the Services.  Each time sheet shall reference the Contract No. ofthis Agreement.  FedEx shall pay theinvoiced amount, less any appropriate deductions, subject to the maximumamounts specified in Exhibit B. Notwithstanding, no payment by FedEx shall be deemed an acceptance ofthe Services, and FedEx shall have the right to recover any amounts previouslypaid in error or to withhold monies from future payments as FedEx deemsnecessary to protect itself against charges associated with Services notperformed in accordance with this Agreement.

 

**Section 3.04. Payment of Taxes.**

 

(a)           Except asprovided in Section 3.04(b) hereof, Contractor shall bill FedEx for,and FedEx shall pay, any and all taxes, excises, duties and assessmentswhatsoever (including interest and penalties) (“Tax” or if plural, “Taxes”)arising out of the charge for the performance of the Services, in any mannerlevied, assessed or imposed by any government or subdivision or agency thereofhaving jurisdiction shall be the sole responsibility and liability ofFedEx.  Contractor and FedEx will cooperatein good faith and take such reasonable actions as are practicable to minimizeor, if possible, eliminate any such Tax.

 

(b)           FedEx’sobligations under Section 3.04(a) above shall not extend to any ofthe following:

 

(1)           taxesbased upon, measured by or with respect to the net or gross income, items oftax preference or minimum tax or excess profits, receipts, capital, franchise,net worth or conduct of business or other similarly-based taxes of Contractor;or

 

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(2)           amounts(including, but not limited to, interest and penalties) imposed on Contractorthat would not have been imposed but for the willful misconduct or grossnegligence of Contractor.

 

(c)           Contractorshall provide FedEx with an invoice separately stating the amount of thecharges related to Services and Taxes. With respect to any Tax which FedEx has assumed responsibility for underthis Section 3.04, FedEx shall either (i) pay such Tax directly tothe taxing jurisdiction, if permitted by law, (ii) pay such Tax toContractor in accordance with the payment procedures agreed to by FedEx andContractor, or (iii) provide to Contractor an exemption certificate orletter stating that the entire charge or some portion of the charge is exemptfrom any such Tax.  If payment is made inaccordance with clause (ii) above, upon written request of FedEx and atthe expense of Contractor, Contractor shall provide FedEx with evidence thatthe Tax has been remitted to the taxing jurisdiction.

 

(d)           If any Taxfor which FedEx has assumed the responsibility for payment pursuant to this Section 3.04is levied, assessed or imposed upon Contractor, Contractor shall promptly giveFedEx notice of such levy, assessment or imposition of which it has notice,whereupon FedEx shall promptly pay and discharge the same or, if permitted bylaw, shall contest such liability before payment.  If Contractor fails to notify FedEx, FedExwill be relieved of its indemnity obligation under this section withrespect to that Tax.

 

(e)           Upon thewritten request and at the expense of FedEx, Contractor shall fully cooperatewith FedEx in contesting or protesting the validity or application of any suchTax (including, but not limited to, permitting FedEx to proceed in Contractor’sname if required or permitted by law, provided, in each case, that such contestdoes not involve, or can be separated from, the contest of any Tax or issuesunrelated to the transactions described in this Agreement).  FedEx shall also have the right toparticipate in any contest conducted by Contractor with respect to a Tax orother charge indemnifiable under this Section 3.04, including withoutlimitation, the right to attend conferences with the taxing authority and theright to review submissions to the taxing authority or any court to the extentsuch contest does not involve, or can be separated from, the contest of any Taxor issues unrelated to the transactions described in this Agreement.  In the event Contractor shall receive arefund of all or any part of such Tax which FedEx has paid and discharged, theamount of such refund shall promptly be remitted to FedEx by Contractor, lessany expenses of Contractor associated with contesting the validity orapplication thereof, not previously reimbursed by FedEx.

 

**Section 3.05.Changes in Services and Compensation.**

 

(a)           FedEx mayorder extra work or make changes by altering, adding to, or deducting from theServices by entering into a mutually acceptable amendment or change order (“ChangeOrder”) with Contractor.  Servicespursuant to a valid Change Order shall be performed subject to the conditionsof this Agreement may be amended by mutual agreement in the Change Order orAmendment to this Agreement.

 

(b)           FedExalso by written instruction to Contractor may propose changes in the Servicesnot involving extra cost and not inconsistent with the purposes of the Serviceswithout execution of a Change Order, but otherwise, no extra Services shall bedone or changes made unless pursuant to a Change Order, and no claim for anaddition to the Fee, an increase in the Maximum Reimbursable Amount, or anextension of the Completion Date shall be valid unless so ordered in a signedChange Order.

 

(c)           Uponreceipt of any written request or proposal for changes from FedEx for changesin the Services or for extra work which would affect the Fee, the MaximumReimbursable Amount or the Completion Date, as contemplated by Section 3.05(a)above, Contractor shall submit a statement detailing Contractor’s proposal foraccomplishing the changes proposed by FedEx and the effect, if any, on the Fee,

 

 

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the Maximum ReimbursableAmount and the Completion Date.  If FedExaccepts Contractor’s proposal, a Change Order shall be executed by the partiesto effectuate the Services, the Fee, Maximum Reimbursable Amount and CompletionDate, as agreed.

 

**ARTICLE 4**

**CONFIDENTIALITY OF INFORMATION**

 

**Section 4.01. Confidentiality of Information. **Exceptas otherwise provided in this Agreement, the use and disclosure by one party ofthe other party’s Confidential Information shall be governed by and subject tothe terms and conditions of that certain Mutual Non-Disclosure Agreementbetween the parties dated May 23, 2003 (the “MNDA”), which is incorporatedherein by reference. As used in this Agreement, the term “Confidential Information”shall have the meaning ascribed to the term in the MNDA.  Moreover, if the Expiration Date of the MNDAas stated in Section 5 therein is earlier than the Completion Date of thisAgreement, then the Expiration Date of the MNDA shall be extended tocoterminate with the term hereof, but the obligations of confidentiality shallcontinue thereafter in accordance with the terms of the MNDA.

 

**ARTICLE 5**

**OWNERSHIP OF MATERIALS**

 

**Section 5.01.****        Ownershipof Materials.**

 

(a)           Allsoftware, computer programs, specifications, documentation, data and othermaterials provided or contributed by FedEx in connection with this Agreementand all modifications and enhancements thereto and derivatives thereof are andshall remain the sole and exclusive property of FedEx, and Contractor shallhave no right to use or disclose same except solely to the extent permittedhereunder for the benefit of FedEx.

 

(b)           Except forthe Contractor Improvements (hereinafter defined), all software, computerprograms, specifications, documentation, reports, data and other materialsoriginated and prepared by Contractor for FedEx pursuant to this Agreement,whether developed solely or jointly by employees of Contractor, or jointly byone or more employees of Contractor with one or more employees of FedEx in theperformance of the work pursuant to this Agreement (collectively, the “Deliverables”),shall be the sole and exclusive property of FedEx, free from any claim orretention of rights thereto on the part of Contractor.  Upon the expiration or other termination ofthis Agreement, Contractor shall deliver to FedEx all copies of any and allDeliverables, including without limitation, as applicable, source codes anddocumentation relating thereto.  Contractorshall have no right to disclose or use any of such Deliverables for any purposewhatsoever, and Contractor acknowledges that such Deliverables are proprietaryto FedEx, having been secretly developed for FedEx for its sole use.  Contractor hereby (i) assigns to FedExany right now held or hereafter acquired by Contractor in the Deliverablesincluding, but not limited to, any copyright, patent or other statutory orcommon law protection and (ii) agrees to assist FedEx in every proper way,at FedEx’s expense, to obtain and, from time to time, enforce any copyrights,patents or other statutory or common law protections for the Deliverables,including but not limited to, the execution of all documents necessary forFedEx to apply for and obtain such copyrights, patents and other statutory orcommon law protections and enforcing the same, together with any assignmentsthereof to FedEx.  All computer programsand documentation constituting part of the Deliverables originated anddeveloped by Contractor for FedEx under this Agreement are to be consideredworks made for hire as that term is defined in Section 101 of theCopyright Act (17 U.S.C., Section 101) and are the sole and exclusiveproperty of FedEx.

 

(c)           Allcomputer programs, products, documentation, and other materials developed andowned by Contractor prior to commencement of this Agreement and furnished toFedEx in the

 

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performance of itsobligations hereunder are and shall remain the sole property of Contractor (the“Pre-Existing Contractor Materials”). All modifications, enhancements and other improvements to thePre-Existing Contractor Materials which are developed by Contractor inconnection with its performance of the work under this Agreement (except forany newly-developed standalone code, modules, interfaces, or other originalworks of authorship which are part of the Deliverables), shall be owned solelyby Contractor (the “Contractor Improvements”).

 

(d)           Contractorshall retain all ownership right, title and interest in and to all ofContractor’s ideas, concepts, know-how, skills, methodologies, and techniques,whether possessed by Contractor prior to the commencement of this Agreement ordeveloped or refined by Contractor during the course of performance byContractor of the work under this Agreement (collectively referred to as “KnowledgeCapital”); provided, however, Contractor’s Knowledge Capital shall not include (i) anyConfidential Information of FedEx; or (ii) any ideas, concepts, know-how,skills, methodologies, or techniques which (A) are developed solely byFedEx, or (B) are unique to FedEx or its applications (i.e., unique to a FedEx business rule suchthat it is not capable of use and application by any other customer ofContractor)****and are firstdeveloped (either solely by Contractor or jointly by Contractor and FedEx) aspart of the Deliverables [all of which items in clauses (i) and (ii) ofthis subsection (d) shall be deemed to be Confidential Information ofFedEx and shall be subject to and protected by the provisions of Article 4of the Agreement].  Nothing herein shallbe deemed to grant to Contractor any license or other right to or under any ofFedEx’s copyrights, patents, trade secrets, trademarks or other proprietary orintellectual property.

 

(e)           Contractorhereby grants to FedEx a non-transferable, non-exclusive, perpetual,royalty-free, irrevocable, worldwide (subject to export restrictions forControlled Information) right and license to use, copy, modify, enhance, andmaintain (i) the Pre-Existing Contractor Materials and the ContractorImprovements for FedEx’s internal purposes, and (ii) Contractor’s KnowledgeCapital as embodied in, or to the extent necessary for its use of, thePre-Existing Contractor Materials, the Contractor Improvements and/or theDeliverables solely for FedEx’s internal purposes.  FedEx shall have the right to disclose thePre-Existing Contractor Materials and the Contractor Improvements to FedEx’sContractors, contractors and outsourcers who have a need to know, are notcompetitors of the Contractor  and whohave executed a non-disclosure agreement with FedEx that provides no lessprotection of the Contractor’s Confidential Information than the MNDA.  Notwithstanding anything in this Agreement tothe contrary, FedEx shall have no right to make for any third party or sell,rent, assign, lease or maintain any Deliverable, Software or the Prototype.

 

(f)            Contractoragrees that the obligations stated under this Article 5 shall survive theexpiration or earlier termination of this Agreement.

 

**ARTICLE 6**

**INDEMNIFICATION**

 

**Section 6.01. Contractor’s Indemnification.**  Contractor hereby releases and agrees toindemnify and hold harmless FedEx, its officers, agents and employees from anyand all liabilities, damages, losses, expenses, demands, suits, or judgments,including all attorneys’ fees, costs, and expenses incidental thereto, fordeath of or injuries to any person and for the loss of, damage to ordestruction of any property in any manner arising out of the negligent orintentional acts or omissions of Contractor, its agents, employees, orsubcontractors.  Contractor shall alsoindemnify FedEx against any liability or payment in connection with federal,state and local taxes or contributions imposed upon or required of FedEx underunemployment insurance, social security, income tax and workers’ compensationstatutes with respect to Contractor’s Services.

 

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**Section 6.02. Infringement Indemnification**.  Contractor, at its own expense, shallindemnify, defend and hold harmless FedEx, its directors, officers, employees,and agents (including their respective successors and assigns), against anyclaims based on an allegation that any deliverables created by Contractor andfurnished to FedEx in the performance of the Services, or that the use by, orsale, lease, or license to, FedEx of such deliverables delivered under thisAgreement, infringes any United States patent, copyright or other proprietaryright, and Contractor shall pay any royalties and other costs related to the settlementof such claim, and the cost and damages, including attorneys’ fees, finallyawarded as a result of any suit based on such claim, provided FedEx promptlynotifies Contractor in writing of any such claim and gives Contractor authorityand such assistance and information as is available to FedEx for the defense ofsuch claim.  Any such assistance orinformation which is furnished by FedEx at the written request of Contractorshall be at Contractor’s expense. Notwithstanding, Contractor shall not consent to any injunction decree,judgment, or settlement which would have the effect of imposing an obligationon FedEx without FedEx’s prior written consent. This indemnity obligation ofthe Contractor shall not apply to any infringement caused by: a) modificationsto any deliverable made by FedEx or anyone other than the Contractor unlesssuch modifications were authorized by the Contractor in writing; b) use of thedeliverables in combination with any product, software, information orcommunications technology or other technology not furnished by the Contractorhereunder or approved by the Contractor in writing; c) use of any deliverableafter notice from the Contractor that continued use may infringe  the intellectual property rights of others;d) any use of any deliverables after receipt of notice of infringement; or e)any infringement arising out of any information or requirement provided orspecified by FedEx.

 

**Section 6.03.  Removal of Restrictions.**  If any software, source codes, programmingdocumentation, or other materials furnished by Contractor in the performance ofthis Agreement, or the use by, or sale, lease or license to, FedEx of anysoftware, source codes, programming documentation or other materials deliveredunder this Agreement is enjoined as a result of a suit based on any claim ofinfringement of any patent, copyright or other proprietary right, Contractorshall promptly, at its option, but in no event later than thirty (30) daysafter FedEx’s use of any materials is so enjoined, either (i) negotiate alicense or other agreement with the claimant so that the software, sourcecodes, programming documentation or other materials are no longer subject tosuch injunction; (ii) modify such materials so that they becomenon-infringing, provided such modification can be accomplished withoutmaterially affecting the performance of the materials (which modification shallfurther be subject to the prior approval of FedEx); (iii) replace theinfringing material with an equivalent non-infringing material of equalperformance, characteristic and quality, subject to the prior approval ofFedEx; or (iv) refund the Fee and Reimbursables paid by FedEx for thematerials so enjoined.

 

**Section 6.04. Limitation of Liability.**  EXCEPT FOR CLAIMS OF FRAUD, GROSS NEGLIGENCE,WILLFUL MISCONDUCT OR WITH RESPECT TO A PARTY’S OBLIGATION OF CONFIDENTIALITYOR INDEMNIFICATION AS PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL FEDEX ORCONTRACTOR, AND THEIR RESPECTIVE AGENTS, REPRESENTATIVES, AND EMPLOYEES BELIABLE FOR (1) DAMAGES BASED UPON, ARISING OUT OF, RESULTING FROM OR INANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, ANYDELIVERABLE, OR OTHER ITEMS OR SERVICES IN AN AMOUNT IN EXCESS OF THE MAXIMUMFEE PAID OR DUE TO BE PAID HEREUNDER OR (2) INCIDENTAL, SPECIAL ORCONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES ORPROFITS.  THE LIMITATIONS AND EXCLUSIONSIN THIS PARAGRAPH SHALL APPLY TO ALL CLAIMS OF EVERY NATURE, KIND ANDDESCRIPTION WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY,NEGLIGENCE OR OTHER TORT.

 

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**ARTICLE 7**

**WARRANTIES**

 

**Section 7.01. Contractor’s Warranty.**

 

(a)           Withrespect to the Services, Contractor warrants to FedEx that:

 

(1)           itshall perform the Services according to the terms and conditions of thisAgreement and in conformity with accepted standards of Contractor’s profession;

 

(2)           allsoftware, source codes, programming documentation and other materials furnishedto FedEx under this Agreement do not infringe upon or violate any patent,copyright, trade secret, or any other proprietary right of any third-party;

 

(3)           allmaterials furnished and Services performed by Contractor pursuant to thisAgreement shall conform to and perform in accordance with FedEx’s requirementsas specified in the SOW attached hereto as Exhibit A; and

 

(4)           allmaterials furnished under this Agreement shall be free from defects in materialand workmanship under normal use and service when properly installed andmaintained.

 

(b)           Contractorshall, at its option, repair or replace any Deliverable that fails to conformto the requirements of this Agreement if Contractor receives notice of thenon-conformity from FedEx within ninety (90) days of its delivery byContractor, which notice shall contain a description of the nature of thenon-conformity sufficiently clear for the Contractor to identify the problemsalleged to exist and to reproduce any errors or failure of theDeliverable.  In the event a Deliverableis not capable of repair or replacement, then Contractor shall refund all feesassociated with such Deliverable. Contractor shall not be deemed or held to be obligated or accountableupon or under any warranties or guaranties, express or implied, statutory, byoperation of law, or otherwise, in any manner or form, beyond the expresswarranties set forth in this Article 7 and the remedy specified in thissub-section shall be the exclusive remedy of FedEx for warranty issues. THEPARTIES AGREE THAT ALL IMPLIED WARRANTIES ARE EXCLUDED FROM THIS AGREEMENTINCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE.

 

**Section 7.01. Additional Warranties**. In addition to the warranties set forth above, Contractor also warrantsand represents that it has legal title to transfer all materials sold to FedExpursuant to this Agreement, free and clear of any and all security interest,liens, claims, charges or encumbrances of any nature whatsoever, together withfull power and lawful authority to deliver such materials to FedEx.

 

**ARTICLE 8**

**INSURANCE**

 

**Section 8.01. Contractor’s Insurance.**  Contractor will, at its own expense, duringthe Term of this Agreement, maintain adequate coverage to insure itsliabilities under this Agreement, including but not limited to, comprehensivegeneral liability, errors and omissions, fire and theft with extended coverage,and valuable papers insurance, and fidelity bonds covering each of Contractor’semployees.

 

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**ARTICLE 9**

**RIGHT OF AUDIT**

 

**Section 9.01. FedEx’s Right of Audit.**  The Contractor shall keep full and accuraterecords of all costs incurred and items billed in connection with thisAgreement, which records shall be open to audit by FedEx, or any authorizedrepresentative of FedEx, during the course of this Agreement and until two (2) yearsafter expiration or earlier termination of this Agreement.

 

**ARTICLE 10**

**INDEPENDENT CONTRACTOR RELATIONSHIP**

 

**Section 10.01. Independent ContractorRelationship.** The Parties intend that an independent contractorrelationship will be created under this Agreement.  FedEx is interested only in the finalperformance of Contractor hereunder and the results achieved thereby, and shallnot exercise any control over the conduct of the Services or the means of performancethereof.  The employees of Contractorperforming the Services shall throughout the Term of this Agreement be deemedemployees of Contractor for all purposes, and shall not be deemed to beemployees, servants, or agents of FedEx for any purpose.  Accordingly, with respect to Contractor’semployees, Contractor shall have full responsibility for the collection andpayment of all federal, state, and local taxes or contributions imposed onContractor that are required pursuant to unemployment insurance, socialsecurity, income taxes, and workers’ compensation statutes.  Contractor shall indemnify and hold harmlessFedEx from and against any liability (including taxes, interest, and penalties)resulting from Contractor’s improper or incorrect tax reporting, withholding,remitting, etc., or from Contractor’s failure to file, collect, report or payany of the above-mentioned employment taxes.

 

 

**ARTICLE 11**

**COMPLIANCE WITH LAWS**

 

**Section 11.01.****      Compliance with Laws.**

 

(a)           Each partyagrees that it will comply with all applicable federal, state, and local laws,regulations, and codes in the performance of this Agreement, including anyapplicable laws regulating the export of Controlled Information.

 

(b)           Each partyagrees to indemnify, defend and hold harmless the other, its officers,directors and employees from and against any and all claims, losses, demands,actions, administrative proceedings, liabilities and judgments, includingreasonable attorneys’ fees and expenses, arising from its failure to complywith the provisions of this Article 11.

 

**ARTICLE 12**

**MISCELLANEOUS**

 

**Section 12.01. Other Vendors**. Subject to FedEx obligations and restrictions imposed by the MNDA, FedExreserves the right to engage the services of such other contractors andthird-party vendors who are not competitors of the Contractor as FedEx deemsnecessary, and provided that such other contractors and third-party vendorsagree to the terms of the MNDA, Contractor agrees to cooperate with any suchthird parties and to comply with all reasonable requests by FedEx to coordinateits activities with those of such other vendors.

 

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**Section 12.02.  Inspection.**  Contractor agrees that, at all times duringthe Term of this Agreement, FedEx shall have the right to make inspections ofthe Services performed by Contractor under this Agreement.  Any inspection by FedEx shall be performed soas not to unduly delay Contractor’s performance of the Services.

 

**Section 12.03. Cooperation and Assumptions**.  Notwithstanding any provision of thisAgreement to the contrary, Contractor’s performance of this Agreement in atimely manner is subject to the reasonable cooperation of FedEx in providingaccess to necessary resources, equipment, facilities, approvals and informationnecessary for the Contractor to perform.

 

**Section 12.04.****     Use of FedEx’s Name.**  Without FedEx’s prior written approval,Contractor shall not (a) refer to its selection by FedEx in anyadvertising, publicity release or sales presentation in such a manner as tostate or imply that any deliverables or Services provided hereunder areendorsed or preferred by FedEx; (b) use the name, service marks, ortrademarks of FedEx or any of its Affiliates; nor (c) release any pressreleases or other information revealing the existence of the Agreement or itsterms and conditions.  As used in this Section 12.04,the term “FedEx” shall include, without limitation, FedEx Corporation and itssubsidiaries and affiliates, both direct and indirect.  Except as may be necessary to comply with anyreporting requirements under federal or state securities law, Contractor shallnot disclose any details of this Agreement to any party except as may beauthorized in writing by an authorized officer of FedEx.

 

**Section 12.05.  Section Headings.**  All section headings and captions usedin this Agreement are purely for convenience or reference only, and shall notaffect the interpretation of this Agreement.

 

**Section 12.06.  Governing Law.**  This Agreement shall be governed by andconstrued in accordance with the laws of the State of New York, and the Partiessubmit to the jurisdiction of any appropriate court within New York foradjudication of disputes arising from this Agreement.

 

**Section 12.07.  Excused Non-Performance.**  Neither party shall be responsible for delaysor failures in performance resulting from acts beyond the control of suchparty.  Such acts shall include but notbe limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,governmental regulations superimposed after the fact, fire, communication linefailures, power failures, earthquakes, or other disasters.

 

**Section 12.08.  Assignment.**  Neither this Agreement nor any otherobligations of Contractor under this Agreement shall be assignable or delegableby Contractor without the prior written consent of FedEx.  This Agreement shall be binding upon andinure to the benefit of the parties, their respective successors, assigns andlegal representatives.

 

**Section 12.09.  Change of Control.**  In addition to such other rights as FedEx mayhave, FedEx shall have the right to immediately terminate this Agreement uponany change in the majority ownership or voting control of the capital stock,business, or assets of Contractor. Contractor shall promptly notify FedEx in writing of any such change incontrol of the Contractor.

 

**Section 12.10.  Further Assurances.**  Each party agrees that it will take suchactions, provide such documents, do such things and provide such furtherassurances as may reasonably be requested by the other party during the Term ofthis Agreement.  Contractor agrees toprovide to FedEx, from time to time, any other financial information as FedExmay reasonably request to determine Contractor’s ability to perform itsobligations under this Agreement.

 

**Section 12.11.  Exhibits.**  All exhibits described in this Agreementshall be deemed to be incorporated in and made a part of this Agreement, exceptthat if there is any inconsistency between this Agreement and the provisions ofany exhibit the provisions of this Agreement shall control.  Terms used in an exhibit and

 

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also used in this Agreement shall have the same meaning in the exhibitas in this Agreement.

 

**Section 12.12.  Modification.**  Except as otherwise provided, this Agreementshall not be modified except by written agreement signed on behalf of FedEx andthe Contractor by their respective authorized officers.

 

**Section 12.13.  Entire Agreement.**  This Agreement supersedes all priorunderstandings, representations, negotiations and correspondence between theparties, constitutes the entire agreement between them with respect to thematters described, and shall not be modified or affected by any course ofdealing, course of performance, or usage of trade.

 

**Section 12.14.  Severability.**  If any provision of this Agreement is held tobe invalid, illegal or unenforceable, the validity, legality and enforceabilityof the remaining provisions shall in no way be affected or impaired.

 

**Section 12.15.  Waiver.**  The failure of either party at any time torequire performance by the other of any provision of this Agreement shall in noway affect that party’s right to enforce such provision, nor shall the waiverby either party of any breach of any provision of this Agreement be taken or heldto be a waiver of any further breach of the same provision or any otherprovision.

 

**Section 12.16.  Survival.**  The provisions of this Agreement which bytheir nature extend beyond the expiration or earlier termination of theAgreement will survive and remain in effect until all obligations aresatisfied.  Specifically, the Contractor’sobligations to indemnify FedEx shall survive this Agreement.

 

**Section 12.17.  Notices.**  Notices given under this Agreement shall bein writing and shall be deemed to have been given and delivered when received,if sent by the United States Mail, certified or registered mail, with postageprepaid and addressed, or sent by way of FedEx Express service:

 
| If to FedEx, to:      |   | Line Haul System  Support                          |
|-----------------------|--------|----------------------------------------------------|
|                  |   | FedEx Corporate  Services, Inc.               |
|                  |   | 2955 Republican Drive,  2nd Floor                  |
|                  |   | Memphis, Tennessee  38118                          |
|                  |   | Attention: Managing  Director - IT                 |
|                  |   |                                               |
|                  |   | Project &  Engineering Support            |
|                  |   | Federal Express  Corporation                       |
|                  |   | 3620 Hacks Cross Road  Building B 2nd Floor        |
|                  |   | Memphis, TN 38125                        |
|                  |   | Attention: Managing  Director                      |
|                  |   |                                               |
| With copy to:         |   | Managing Director -  Legal Technology Transactions |
|                  |   | FedEx Corporation                                  |
|                  |   | 3620 Hacks Cross Road -  Building B, Third Floor   |
|                  |   | Memphis, Tennessee  38125                          |
|                  |   |                                               |
| and if to Contractor: |   | Time America, Inc.                            |
|                  |   | 8840 East Chaparral  Road – Suite 100    |
|                  |   | Scottsdale, Arizona  85250                         |
|                  |   | Attn: Craig Smith, CFO                             |

 

or to such other address provided to the other party by writtennotification.

 

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**Section 12.18.  Work at Site.**  When working at any of FedEx’s sites,Contractor, its agents, employees and subcontractors will comply with allreasonable safety and security (including, without limitation, data security)requirements of FedEx, including the wearing of identification badges on thesite and obtaining the prior consent of FedEx before connecting any hardware orperipheral devices to the FedEx network. In addition, Contractor acknowledges that it has no expectation ofprivacy while using FedEx’s information systems and equipment.  The foregoing exception shall not relieveFedEx of any obligations under the MNDA.

 

**Section 12.19.Validity of Agreement.**  This Agreement shall not be valid nor bindingupon FedEx unless it shall have been executed by an officer of FedEx andapproved by its Legal Department.

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to beexecuted as of the day and year first above written.

 

 
| FEDEX:                             | ** ** | CONTRACTOR:            |
|------------------------------------|------------|------------------------|
| **FEDEX CORPORATE SERVICES, INC.** | ** ** | **TIME AMERICA, INC.** |
|                               |       |                   |
|                               |       |                   |
| By:                                |       |                   | By: |
|                               |       |                   |
| Title:                             |       |                   | Title: |
|                               |       |                   |
| Printed name:                      |       |                   | Printed name: |
|                               |       |                   |
| Date:                              |       |                   | Date: |
|                                    |            |                        |  |  |  |  |

 

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**Exhibit A**

**to that certain**

**Professional Services Agreement**

**between**

**FedEx Corporate Services, Inc.(“FedEx”) and Time America, Inc. (“Contractor”)**

 

**STANDARD SERVICES PRICE LIST ANDDESCRIPTIONS**

 
| **MFG Part #** | ** ** | **DESCRIPTION** | ** ** | **COST** |
|---------------------|------------|-----------------|------------|----------|
| **68-50800**        |       | [*]             |       | [*]      |
| **68-50800**        |       | [*]             |       | [*]      |
| **68-32005**        |       | [*]             |       | [*]      |
| **69-37400**        |       | [*]             |       | [*]      |
| **68-37100**        |       | [*]             |       | [*]      |
| **68-37200**        |       | [*]             |       | [*]      |
| **68-37300**        |       | [*]             |       | [*]      |
| **68-38000**        |       | [*]             |       | [*]      |
| **68-37700**        |       | [*]             |       | [*]      |

 

 
| **SPECIFIC SERVICES** | ** ** | **DESCRIPTION** |
|-----------------------|------------|-----------------|
| [*]                   |       | [*]             |
| [*]                   |       | [*]             |
| [*]                   |       | [*]             |
| [*]                   |       | [*]             |
| [*]                   |       | [*]             |
| [*]                   |       | [*]             |
| [*]                   |       | [*]             |

 

 

**OTHER SERVICES**

 

1.     EquipmentInstallation – for the Equipment ordered under the Third Order described inFedEx Amendment No. 06-0037-001 (dated August 29, 2005) shall beprovided at a cost of $112,700.00

 

2.     Thefee for other services such as custom software configuration shall be mutuallyagreed on a per engagement basis pursuant to an amendment to this Agreement.

 

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**Exhibit B**

**to that certain**

**Professional Services Agreement**

**between**

**FedEx Corporate Services, Inc.(“FedEx”) and Time America, Inc. (“Contractor”)**

 

**INITIAL ORDER AND STATEMENT OFWORK**

 

In accordance with and subject to the terms of the ProfessionalServices Agreement dated August 29, 2005, Contractor agrees to perform thefollowing services on behalf of FedEx:

 

A.            **SOFTWARE CUSTOMIZATION SERVICES (Fee - $87,000.00) –**Withinninety (90) days of the Agreement Effective Date, Contractor will configure theSoftware to provide functional features that:

 
| [*] |
|-----|
| [*] |
| [*] |
| [*] |
| [*] |
| [*] |
| [*] |
| [*] |
| [*] |
| [*] |
| [*] |

 

A.            **TRAININGCLASSES – (Fee - $11,100.00)**

 
| **Description** | ** ** | **Unit** | ** ** | **Fee** |
|-----------------|------------|----------|------------|---------|
| [*]             |       | [*]      |       | [*]     |
| [*]             |       | [*]      |       | [*]     |
| [*]             |       | [*]      |       | [*]     |
| [*]             |       | [*]      |       | [*]     |

 

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**Exhibit C**

**to that certain**

**Professional Services Agreement**

**between**

**FedEx Corporate Services, Inc.(“FedEx”) and Time America, Inc. (“Contractor”)**

 

**INITIAL FEE, MAXIMUM REIMBURSABLEAMOUNT**

**AND PAYMENT PROCEDURE**

 

A.            **FEE.**  FedEx will pay the Contractor in currentfunds for complete performance of the Services, subject to additions anddeductions by Change Order or as otherwise provided in the Agreement, a Feeaccording to the schedule set forth below:

 

 
| **MILESTONE** | ** ** | **DESCRIPTION**                                                                                                                                                                                                                | ** ** | **FEE** | ** **    |
|---------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------|---------------|
| 1             |       | Within ten  (10) business days of Agreement execution                                                                                                                                                                     |       | $       | 43,500.00     |   |
|          |       |                                                                                                                                                                                                                           |       |    |          |
| 2             |       | Upon successful completion  of pilot program based upon  [*] units of Equipment  acquired under Equipment Purchase, License and Services Agreement  between the parties dated August      , 2005 |       | $       | 43,500.00     |   |
|          |       |                                                                                                                                                                                                                           |       |    |          |
| 3             |       | Upon completion of  Training Services                                                                                                                                                                                          |       | $       | 11,100.00     |   |
|          |       |                                                                                                                                                                                                                           |       |    |          |   |
| ** **    | ** ** | **TOTAL FEES**                                                                                                                                                                                                                 | ** ** | **$**   | **98,100.00** | ** ** |

 

In no event, however, shall the maximum amount of Feespayable by FedEx under the Agreement exceed Ninety-Eight Thousand One HundredDollars ($98,100.00) in the aggregate, unless otherwise mutually agreed to inwriting by the parties pursuant to a duly executed Change Order.

 

B.            **FEEPAYMENT PROCEDURE**.  TheFee is payable in accordance with the following procedure:

 

Subject to the provisions of Section 3.03 of theAgreement, each applicable portion of the Fee shall be payable by FedEx afterreceipt and acceptance by FedEx of the applicable corresponding deliverabledescribed in Exhibit A.

 

C.            **MAXIMUMREIMBURSABLE AMOUNT** is $16,810.00.

 

D.            **INVOICES**shall be submitted by the Contractor to the following address:

 

Line Haul SystemSupport

FedEx CorporateServices, Inc.

2955 RepublicanDrive, 2nd Floor

Memphis, Tennessee38118

Attention:  Managing Director - IT

 

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**Exhibit Dto that certainProfessional Services AgreementbetweenFedEx Corporate Services, Inc. (“FedEx”) and Time America, Inc. (“Contractor”)**

 

**CHANGE ORDER FORM**

 

Professional Services Agreement No. 06-0636

 

Change Order Date:                                                         

 
| To Contractor: | ** ** | **Time America, Inc.**                        |
|----------------|------------|----------------------------------------------------|
|           |       | **8840 East Chaparral Road – Suite 100** |
|           |       | **Scottsdale, Arizona 85250**                      |
|           |       | **Attn: Craig Smith, CFO**                         |

 

As provided in your Professional Services Agreement with FedExCorporate Services, Inc. dated as of August 29, 2005, the followingchanges in the Services are made:

 

This Change Order when signed by the Parties will have the followingeffect:

 
| a.     |   | Fee:                         |   | (increase/decrease/NA) |
|--------|--------|------------------------------|--------|------------------------|
|   |   |                         |   |                   |
| b.     |   | Maximum Reimbursable Amount: |   | (increase/decrease/NA) |
|   |   |                         |   |                   |
| c.     |   | Completion Date:             |   |                   |

 

This Change Order in no other way alters the terms and conditions ofthe Professional Services Agreement which are ratified and confirmed other thanas amended by this Change Order.

 

 

**FEDEX CORPORATE SERVICES, INC.**

 

 

By:

Printed Name:

Title:

Date:

 

 

**TIME AMERICA, INC.**

 

 

By:

Printed Name:

Title:

Date:

 

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