**Exhibit 10.26**

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**AgreementNo.                            **

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**CUSTOMERAGREEMENT**

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This Firstwave Agreement (“Agreement”) is entered into as of this                    day of                               ,2002 (the “Effective Date”) is made for the purpose of establishing arelationship whereby Extreme Logic, Inc. (“Extreme Logic”) a Georgiacorporation located at Two Concourse Parkway, Suite 500, Atlanta, GA  30328, can provide services to  Firstwave Technologies, Inc., a Georgiacorporation (“Customer” or “Firstwave”).

 

The Agreement shall be implemented through one or more Statements ofWork (defined in the attached Terms and Conditions) as may be entered into bythe parties from time to time in accordance with Section 2. This Agreementconsists of this signature page, the Terms and Conditions attached hereto andany exhibits attached hereto, such amendments as may be entered into by theparties from time to time, and Statements of Work.  In consideration of their rights and obligations under thisAgreement, and intending to be legally bound, Extreme Logic and Firstwave agreeto comply with the terms of this Agreement by signing below.

 
| **EXTREME  LOGIC INC.**                        |   | Address:                                 |                     |
|------------------------------------------------|--------|------------------------------------------|--------------------------|
|                                           |   |                                     |                     |
| Authorized Signature:                          |   |                                     | Two Concourse Parkway    |   |
|                                           |   | Suite 500                                |                     |
| Printed Name:                                  |   |                                     | Atlanta, GA   30328 |   |
| Position:                                      |   |                                     | Attention:               |   |   |
|                                           |   | Telephone: (770) 508-2600                |                     |
|                                           |   | Facsimile:    (770) 352-0664   |                     |
|                                           |   |                                     |                     |
| **FIRSTWAVE TECHNOLOGIES, INC.**               |   | Address:                                 |                     |
|                                           |   |                                     |                     |
|                                           |   | Overlook III, Suite 1000 Firstwave Name: |                     |
|                                           |   | 2859 Paces Ferry Road                    |                     |
|                                           |   | Atlanta, GA   30339                 |                     |
| Authorized Signature:                          |   |                                     |                     |   |
|                                           |   |                                     |                     |
| Printed Name:                                  |   |                                     |                     |   |
| Position:                                      |   |                                     | Attention:               |   |   |
|                                           |   | Telephone No.: (770) 431-1200            |                     |
|                                           |   | Facsimile No.:   (770) 431-1201     |                     |
|                                           |   |                                     |                     |
| **EFFECTIVE  DATE:   July 26, 2002** |   |                                     |                     |
|                                                |        |                                          |                          |  |  |  |  |  |  |  |

 

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### **Terms and Conditions**

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**1.**          **DEFINITIONS.**  As used in this Agreement and in addition to any other termsdefined herein, the following defined terms have the following meanings:

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**1.1.**      **“Content”**means any software, code, inventions, pictures,audio, video, animations, enhancements, improvements, methods, processes, improvements, works ofauthorship, work-flow methods or other material or any portions of theforegoing.

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**1.2.**      **“Deliverable”**means Content delivered to Firstwave pursuant to a Statement of Work, butspecifically excluding any Extreme Logic Components contained therein.

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**1.3.****      “Derivative Work”**means a work that is based upon one or morepreexisting works, such as a revision, modification, translation, abridgement,condensation, expansion, or any other form in which such preexisting works maybe recast, transformed, or adapted, and any additional meaning that may be setforth in the United States Copyright Act, as amended.

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**1.4****       “Extreme Logic Components”**means any Content delivered to Firstwave as part of a Deliverable that is conceivedand/or created by Extreme Logic prior to or outside the scope of a Statement ofWork.

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**1.5****       “Services”** means anyservices provided by Extreme Logic pursuant to a Statement of Work.

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**1.6****       “Statement of Work”**means the document, the form of which is attached hereto as ***Exhibit A,*** whichshall describe the scope of Services to be performed and Deliverables to bedelivered and which is executed by the parties and attached hereto.

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**1.7****       “Territory”** meansworldwide.

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**2.****          SERVICES.**

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**2.1.****      Services.**

 

(a)     Extreme Logic will provide the Services toFirstwave specified in a Statement of Work. Each Statement of Work shall be successively numbered (e.g., 1, 2, 3,etc.).

 

(b)     Any Services performed pursuant toStatements of Work either prior to or at the time of the execution of thisAgreement shall be governed by the terms and conditions of this Agreement tothe same extent and with the same effect as if the Services had been performedafter the execution of this Agreement.

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**2.2.****      Services Commitment.**  Firstwave agrees to pay Extreme Logic aminimum Fee (excluding taxes and reimbursable expenses) of $80,000 per monthfor five months (the “Monthly Fee Requirement”), beginning August 1, 2002, fora total of $400,000, or $400,000 total services, whichever comes first in Fees(the “Total Fee Requirement”).  TheMonthly Fee Requirement and Total Fee Requirement shall be dependent uponExtreme Logic’s provision of a sufficient number of technically competentpersonnel to provide the Services requested by Firstwave during the five monthperiod beginning August 1, 2002.  Allinvoices for Services provided by Extreme Logic and paid by Firstwave shall beapplied against the Monthly Fee Requirement and the Total Fee Requirement.

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**2.3.****      Additional Services.** Any services performed by Extreme Logic uponrequest by Firstwave which are outside the scope of any Services described onan applicable Statement of Work shall be governed by the terms and conditionsof this Agreement  and will be billed toFirstwave at Extreme Logic’s then current time and materials rates.  Such additional Services paid for byFirstwave will also be included in the amount applied against the Monthly FeeRequirement and the Total Fee Requirement.

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**2.4.****      Change Orders. **Any material modifications to aStatement of Work (including without limitation modifications to the fees,specifications or project plan) shall be made by written change order, the formof which is attached as *Exhibit A-1,* executed by both parties tothis Agreement (a “Change Order”).  EachChange Order complying with this section shall be deemed to be an amendment tothe applicable Statement of Work and will become part of this Agreement.

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**2.5.****      Cooperation**.  Firstwave shall cooperate and provideinformation as is reasonably necessary for the timely completion of theServices. To the extent set forth on an applicable Statement of Work, Firstwavealso agrees to fulfill those responsibilities designated thereon. The partiesacknowledge that Extreme Logic’s performance hereunder is contingent onFirstwave’s timely and effective performance of its responsibilities and itstimely decisions and approvals.  To theextent required in any Statement(s) of Work, Firstwave shall be responsible forproviding Extreme Logic with access to Firstwave’s facilities, software andsystems and data, information, office space and support materials as reasonablyrequired by Extreme Logic to perform its duties hereunder (collectively,“Firstwave Materials”). Firstwave warrants that it owns or has acquired rightsto all proprietary interests in the Firstwave Materials necessary for ExtremeLogic to perform the Services hereunder. Firstwave agrees to produce evidenceof such rights and licenses upon the reasonable request of Extreme Logic.

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**2.6.****      Project Control. **Extreme Logic has the sole right andobligation to supervise, manage, contract, direct, procure, perform, or causeto be performed all Services to be performed by Extreme Logic hereunder unlessotherwise provided herein or in a Statement of Work.****Extreme Logic shall endeavorto honor a request for a specific consultant, subject to staffing or schedulingconsiderations; however, Extreme Logic shall determine the assignment of itspersonnel. In the event Firstwave requests replacement of any individual orconsultant based on such individual’s or consultant’s inability to reasonablyperform the Services required hereunder by Firstwave, Extreme Logic shallendeavor to replace such individual or consultant in a timely manner. Wheneveron the Firstwave’s premises Extreme Logic shall obey all written policiesregarding conduct required by the Firstwave. In recognition that Extreme Logic personnel performing under thisAgreement may perform similar services for others, this Agreement shall not preventExtreme Logic from providing services or developing materials that may beperceived as competitive with those developed or provided hereunder, subject toExtreme Logic’s confidentiality obligations hereunder.

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**3.****          ACCEPTANCE.**

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**3.1 Evaluation. **For a period beginning upon delivery of a Deliverableand (i) in the case of an Interim Deliverable (defined below), ending no laterthan 5:00 p.m. local time in Atlanta, Georgia on the third (3rd)business day following delivery (“Interim Evaluation Period”) or (ii) in thecase of the Final Deliverable (defined below), ending no later than 5:00 p.m.local time in Atlanta, Georgia on the tenth (10th) business dayfollowing delivery (“Final Evaluation Period”), Firstwave shall diligentlyevaluate each Deliverable delivered by Extreme Logic to determine whether theDeliverable contains the features, and is capable of performing the operations,that are specifically set forth in the specifications to which the parties havemutually agreed in writing with respect to such Deliverable (“Specifications”).  Extreme Logic may observe or participate inany evaluation by Firstwave. For purposes hereof, (x) “Interim Deliverable”means a Deliverable delivered to Firstwave pursuant to an interim deliverymilestone set forth in a Statement of Work or Change Order, (y) “FinalDeliverable” means the Deliverable delivered to Firstwave pursuant to the finaldelivery milestone set forth in a Statement of Work or Change Order, and (z)“Acceptance Period” means either the Interim Evaluation Period or the FinalEvaluation Period, as applicable, provided Extreme Logic has delivered writtennotice (email notice will suffice) of the delivery of the respectiveDeliverable to the CEO and CFO of Firstwave. The parties may extend the applicable Acceptance Period in a writingassigned by both parties.

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**3.2 Acceptance.** Prior to the termination of the applicable Acceptance Period, Firstwavewill notify Extreme Logic in writing either (a) of its acceptance of theDeliverable (“Acceptance”), or (b) if Firstwave reasonably determines there isany failure of the Deliverable to conform to the Specifications (a“Nonconformity”), of the specific Nonconformity(ies) of the Deliverable.  If a notice of Nonconformity is delivered,Extreme Logic shall then promptly use its commercially reasonable efforts tocorrect all Nonconformities and deliver such corrected Deliverable toFirstwave.  Upon delivery thereof,Firstwave shall have an additional Interim Acceptance Period or FinalAcceptance Period, as applicable, to reevaluate the Deliverable to determine ifthe Nonconformities have been corrected. If the Nonconformities have not beencorrected, Firstwave will have the option of (i) giving Extreme Logic a newnotice of Nonconformity as described in 3.2(b) above, or (ii) accepting theDeliverable as-is. In the event Extreme Logic is unable to correct theNonconformities after multiple attempts, then Firstwave, as its sole remedy andin its sole discretion, may either (i) accept the Deliverable “AS IS”, orreceive a refund of all fees applicable to the defective Deliverable.  The acceptance process and applicableremedies described in this Section shall be Firstwave’s sole remedy for anyNonconformance or any breach of the warranty contained in Section 7.2.  “Acceptance” shall be deemed to haveoccurred the earlier to occur of the following: (x) delivery of writtenAcceptance by Firstwave; (y) the end of the Acceptance Period, if no notice tothe contrary is received by Extreme Logic during such Acceptance Period; or (z)the date the Deliverable is commercially distributed by Firstwave to its enduser(s).

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**4.****          COMPENSATION.**

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**4.1.****      Fees and Expenses**.Firstwave agrees to pay all fees as set forth in the applicable Statement ofWork (“Fees”). Such Fees shall be offset against the Monthly Fee Requirementspecified in Section 2.2; in the event Extreme Logic incurs Service Fees inexcess of the Monthly Fee Requirement, Firstwave shall pay such additional Feeamount in accordance with the terms hereof. Firstwave

 

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shall also payexpenses incurred by Extreme Logic in the performance of Services which shallinclude, without limitation, reasonable travel expenses (includingtransportation, lodging, and meals) and the cost of any courier services,photocopying, facsimile, transmissions, communications charges, telephonecalls, and other expenses (collectively, “Expenses”).  Unless otherwise indicated on the payment schedule on a Statementof Work, Extreme Logic shall submit itemized statements to Firstwave weekly andsuch invoices shall be due thirty (30) days from the date of receipt byFirstwave.  A late fee shall be chargedby Extreme Logic on overdue accounts and any other amounts not paid to ExtremeLogic as provided under this Agreement at the rate of one and one-half percent(1-1⁄2%) per month or the maximum amount allowed by law, whichever is less,commencing forty-five (45) days after the due date of the invoice.  In addition, Extreme Logic, at its soleoption, may suspend performance of any and all Services without liabilitytherefor if payment upon any valid and uncontested invoice is not received fromFirstwave prior to or upon its due date.

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**4.2.****      Taxes.**  The Fees, Expenses and all other amounts dueto Extreme Logic as set forth in this Agreement are net amounts to be receivedby Extreme Logic, exclusive of all taxes, duties, and assessments, and are notsubject to offset or reduction because of any costs, expenses, taxes, duties,withholdings, or assessments, incurred by Firstwave or imposed on Extreme Logicin the performance of this Agreement or otherwise due as a result of thisAgreement.  This paragraph shall notapply to taxes based solely on Extreme Logic’s income.

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**5.****          ALLOCATION OF RIGHTS.**

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**5.1.****      Rights in Deliverables**.  Unless otherwise expressly set forth in aStatement of Work and subject to Firstwave’s payment of the applicable Fees,Firstwave shall own all rights in and to the Deliverables including all Contentcomprising such Deliverable, including, without limitation, any patent,copyright, trademark, trade secret or any other intellectual property rightsassociated therewith.  Any DerivativeWork of the Deliverables or new or improved idea, design, concept, or otherinvention made or developed solely by Firstwave or permitted third parties forFirstwave in the course of utilizing or adapting the Deliverables or shall beowned exclusively by Firstwave.

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**5.2.****      Rights in the Extreme LogicComponents**.  The Extreme LogicComponents and all rights therein including without limitation any patent,copyright, trademark, trade secret or any other intellectual property rightsassociated with the Extreme Logic Components shall be owned exclusively byExtreme Logic.  Firstwave shall have noclaim of ownership in any of the patent, copyright, trademark, trade secret, orany other intellectual property right in the Extreme Logic Components.

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**5.3.****      License to the Extreme LogicComponents**. Subject to the terms and conditions of this Agreement, ExtremeLogic hereby grants Firstwave in perpetuity a royalty-free, nonexclusive licensewithin the Territory to copy, distribute, transmit, display, perform, createderivative works, and otherwise commercially exploit the Extreme LogicComponents, in whole or in part, solely in conjunction with the Deliverables inwhich they are included.

 

Extreme Logicreserves all rights not expressly granted herein.  Firstwave may use the Extreme Logic Components only as set forthabove and except as set forth above. Without limiting the foregoing, in no event shall Firstwave, to theextent source code is not provided, decompile, reverse assemble, reverseengineer or otherwise obtain the source code to the Extreme Logic Components,or permit any third party to do the same, except to the extent otherwisepermitted by law.

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**5.4.****      Third Party Materials.**  Firstwave agrees that Extreme Logic does notand will not provide any third party software, hardware or other equipmentwhich may be required to run, operate or maintain the Deliverables.  Firstwave is solely responsible forobtaining and licensing all third party software, hardware and equipment fromthe applicable third parties.

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**6.****          CONFIDENTIALITY.**

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**6.1.****      Definitions**.  In the performance of this Agreement, eitherparty may disclose to the other certain Proprietary Information. For thepurposes of this Agreement, (a) “Proprietary Information” means Trade Secretsand Confidential Information that are clearly marked or identified in writingat the time of delivery as being either a Trade Secret or ConfidentialInformation; (b) “Trade Secrets” means trade secrets as defined under Georgialaw; and (c) “Confidential Information” means information that is of value toits owner and is treated as confidential other than Trade Secrets. ProprietaryInformation may include, without limitation, all information of a disclosingparty regarding its customers and their accounts, all financial information,business plans, customer lists, procedures, formulas, discoveries, inventions,improvements, innovations, concepts and ideas. Notwithstanding anything in this Section 6.1, Extreme Logic Componentsshall in all cases be considered Proprietary Information of Extreme Logic andidentified as such in writing when disclosed.

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**6.2.****      Nondisclosure**.  Both parties acknowledge and agree that theProprietary Information shall remain the sole and exclusive property of thedisclosing party or a third party providing such information to the disclosingparty. The receiving party agrees to hold the Proprietary Information disclosedby the other party in strictest confidence and not to, directly or indirectly,copy, use, reproduce, distribute, manufacture, duplicate, reveal, report,publish, disclose, cause to be disclosed, or otherwise transfer the ProprietaryInformation for any purpose whatsoever other than as expressly provided by thisAgreement.  The disclosure of theProprietary Information does not confer upon the receiving party any license,interest, or rights of any kind in or to the Proprietary Information, except asexpressly provided under this Agreement. Subject to the terms set forth herein, (a) the receiving party shall usethe Proprietary Information of the disclosing party only as necessary tofulfill its obligations and exercise its rights under this Agreement, and (b)shall disclose Proprietary Information to only those employees, subconsultants,advisors and agents who are bound by written confidentiality obligationsapplicable to such Proprietary Information that are consistent with and no lessstringent than those required of the receiving party pursuant to thisAgreement, and (c) shall not otherwise disclose the Proprietary Information toa third party without the written consent of the disclosing party. Thereceiving party shall protect the Proprietary Information of the disclosingparty with the same degree of protection and care the receiving party uses toprotect its own Proprietary Information, but in no event less than reasonablecare.  With regard to Trade Secrets, theobligations in this Section shall continue for so long as such informationconstitutes a Trade Secret under applicable law.  With regard to Confidential Information, the obligations in thisSection shall continue for the term of this Agreement and for a period of two(2) years thereafter.

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**6.3.****      Exclusions**.  Nothing in this Section shall prohibit orlimit the receiving party’s use of information if (i) at the time of disclosurehereunder such information is generally available to the public; (ii) afterdisclosure hereunder such information becomes generally available to thepublic, except through breach of this Agreement by the receiving party; (iii)the receiving party can demonstrate such information was in its possessionprior to the time of disclosure by the disclosing party; (iv) the informationbecomes available to the receiving party from a third party which is notlegally prohibited from disclosing such information; (v) the receiving partycan demonstrate the information was developed by or for it independentlywithout the use of such information; (vi) disclosure is required underapplicable law or regulation; or (vii) such information consists of informationin non-tangible form, including ideas, concepts, know-how or techniques, whichis retained in the mind of a person or persons who has had access to theProprietary Information, and who has made no effort to refresh his or herrecollection in anticipation of or in conjunction with the use thereof(“residuals”). Neither party shall have any obligation to limit or restrict theassignment of such persons or to pay royalties for any work resulting from theuse of residuals. Notwithstanding the foregoing, the term “residuals” shall notmean any information the use or creation of which would infringe the otherparty’s now existing or future copyrights or patents, nor shall this provisionbe deemed to grant to either party a license under the other party’s copyrightsor patents.

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**7.****          REPRESENTATIONS ANDWARRANTIES.**

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**7.1.****      Mutual. **Each party warrants and represents thatit has the authority to enter into this Agreement and that its performance ofthis Agreement will not violate any agreement by which it is bound.

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**7.2.****      Services. **Extreme Logic warrants to Firstwave thatthe Services with respect to each Deliverable will be performed in aprofessional and workmanlike manner.

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**7.3.****      Disclaimer.** Otherthan as expressly set forth above, Extreme Logic does not make any express orimplied warranties, conditions, or representations to Firstwave or any otherparty with respect to the Services, Extreme Logic Components, Deliverables orotherwise regarding this Agreement, whether oral or written, express, impliedor statutory.  Without limiting theforegoing, any implied warranty or condition of merchantability or fitness fora particular purpose is expressly excluded and disclaimed. Withoutlimiting the foregoing, Extreme Logic does not warrant that the Deliverableswill be uninterrupted or error-free. Firstwave acknowledges and agrees that ithas had the opportunity to periodically review the Deliverables and uponAcceptance of each such Deliverable, hereby acknowledges such Deliverable meetsFirstwave’s requirements.

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**8.****          LIMITATION OFLIABILITY. **Both parties acknowledge and agree that in no event shall eitherparty or any of their respective officers, directors, employees, shareholders,agents or representatives be liable to the other party, any of its affiliatesor any other party for any special, indirect, incidental, exemplary or 

 

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consequential damages or loss of goodwill inany way arising from or relating to this Agreement or resulting from the use ofor inability to use the Deliverables or the performance or non-performance ofany Services, including the failure of essential purpose, even if the partieshave been notified of the possibility or likelihood of such damages occurring.in no event will either party’s liability for any damages, the other party everexceed the amount of Fees paid or payable by Firstwave to Extreme Logic withrespect to the Statement of Work under which the claim for damages is made.

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**9.****          TERM AND TERMINATION.**

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**9.1.****      Term.**  The term of this Agreement shall commence onthe Effective Date and continue until terminated in accordance with thisSection 9.

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**9.2.****      Termination of IndividualStatement of Work**.  In the eventthat either party hereto materially defaults in the performance of any of itsduties or obligations under a Statement of Work (except for a default inpayment to Extreme Logic as provided below) and does not substantially curesuch default, or commence a cure, within thirty (30) days after being givenwritten notice specifying the default, then the non-defaulting party may, bygiven written notice thereof to the defaulting party, terminate the Statementof Work as of a date specified in such notice of termination.  Termination of a Statement of Work for causeshall have no effect upon any other Statements of Work that may be in effectunder this Agreement.

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**9.3.****      Termination for Cause*.* **Either party may terminate thisAgreement at any time upon giving written notice as follows:

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(a)****Inthe event that the other party fails to discharge any obligations or remedy anydefault under this Agreement for a period of thirty (30) days after thenotifying party has given the other party written notice specifying suchfailure or default, and such failure or default is not cured during this thirty(30) day period or such longer period of time as may be agreed upon by theparties in writing.

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**9.4.****      Termination for Nonpayment**.  Notwithstanding the foregoing, in the eventthat Firstwave defaults in the payment when due of any amount due to ExtremeLogic hereunder and does not cure such default within forty-five (45) days ofdue date of invoice, then Extreme Logic may, by giving written notice thereofto Firstwave, terminate the Agreement or Statement of Work as of a datespecified in such notice of termination.

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**9.5.****      Termination Upon Completionof all Statements of Work.**  If thereare no outstanding Statements of Work under which Services are still beingprovided by Extreme Logic to Firstwave, upon thirty (30) days written notice tothe other, either party may terminate this Agreement as of the date specifiedin such notice of termination.

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**9.6****      ****Termination by Firstwave. **Firstwave may elect, by so notifying Extreme Logic, to terminate theServices provided under any Statement of Work and/or this Agreement (i) in theevent of a material breach by Extreme Logic to perform Services as specified inSections 9.2 or 9.3, or (ii) by delivering written notice thirty (30) daysprior to the effective termination date. Firstwave shall pay Extreme Logic for all Services performed by ExtremeLogic prior to the termination date. Upon any termination of this Agreement by Firstwave other than asprovided under Sections 9.2 (if breach of the applicable Statement of Worksubstantially impairs the overall value of the Agreement to Firstwave) or 9.3, thenany unpaid balance of the Total Fee Requirement shall accelerate and becomeimmediately due and payable.

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**9.7****       Post-TerminationObligations.** If Extreme Logic terminates this Agreement pursuant to 9.3 or9.4, then any unpaid balance of the Total Fee Requirement shall accelerate andbecome immediately due and payable. Upon termination or expiration of this Agreement for any reason, (a)Firstwave shall pay Extreme Logic for all Services performed by Extreme Logicprior to the date of termination; (b) each party shall immediately return tothe other all such Proprietary Information and other property of the otherparty (except for any Deliverables for which payment has been received andDerivative Works thereof) and all copies thereof and shall provide the otherparty with a signed written statement certifying compliance with the foregoing;and (c) the provisions of Sections 3-7, 7.3, 8-11, 13 and 14 shall continue infull force and effect, as well as any other provisions of this Agreement whichby their terms are deemed to survive termination hereof.

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**10.****       DISPUTE RESOLUTION ANDARBITRATION.**  In the event of a dispute that is notsettled between the project managers for the parties, then the parties shallescalate the dispute to resolution by the immediate superiors of such projectmanagers. If the dispute is not resolved after following these procedures, bothparties agree to submit to binding arbitration.  In such case, both parties agree to the appointment of three (3)arbitrators, with one arbitrator selected by each party and the third selectedby the American Arbitration Association (“AAA”).  The arbitration shall be conducted in Atlanta, Georgia inaccordance with the rules, regulations and procedures of the AAA, and thedecision of the arbitration panel shall be final and binding on both parties.Notwithstanding the foregoing, either party may apply to any court of competentjurisdiction for injunctive or other equitable relief as may be necessary toprotect such party’s intellectual property rights and Proprietary Information.

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**11.****       NONSOLICITATION. **Neither party will, for a period equalto the earlier of (i) one (1) year after a person has ceased to work for theother party or (ii) the term  of thisAgreement and one (1) year thereafter, hire or, directly or indirectly,contract with or solicit, for itself or any third party, any person employed bythe other party to leave the applicable employment or to provide, independentlyor with others, similar services unless prior written authorization is obtainedfrom the other party.  In addition,unless otherwise agreed in writing, should either party hire an employee of theother party (the “Former Employee”) in violation of this Section 11, the hiringparty shall pay the other party a placement fee amounting to the FormerEmployee’s salary and benefits for the prior twelve (12) month period.

 

**12.****       COMPLIANCE WITH LAWS.**

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**12.1.****    General.**  Firstwave will strictly comply with allapplicable laws and regulations relating in any way to the use of theDeliverables, and will not use the Deliverables in a way that violates therights of any third party, including, without limitation, any rights of privacyor publicity.

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**12.2.****    Export Compliance**. Firstwaveacknowledges and agrees that the Deliverables and technical data received fromExtreme Logic may be subject to export or import controls. Without limiting thegenerality of Section 12.1 Firstwave agrees (a) to comply with any and allapplicable laws, regulations, and rulings on exportation and importationregarding its use of the Deliverables and (b) that the Deliverables (or anytechnical information related to Extreme Logic’s products) shall not beexported or re-exported (i) to any countries included in prohibited CountryGroups of the U.S. Export Administration Regulations or as otherwise prohibitedunder such regulations at the time of export or re-export; (ii) to nationalcitizens of such prohibited Country Groups; or (iii) in violation of this Agreement.

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**13.****       GENERAL PROVISIONS.**

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**13.1.****    Relationship of Parties.**  Extreme Logic is an independent provider ofinformation technology services, and this Agreement shall not be construed tocreate any employment relationship, partnership, joint venture or agencyrelationship or to authorize any party to enter into any commitment oragreement binding on the other party. Firstwave shall have the sole and full responsibility for determiningits business requirements and that the Specifications in the Statement of Workwill meet its needs.  Extreme Logicshall bear sole responsibility for payment of compensation to itspersonnel.  Extreme Logic shall pay,report and be responsible for all personnel assigned to Firstwave’s Services,federal and state income tax withholding, social security taxes, unemploymentinsurance, health or disability insurance, retirement benefits, or otherwelfare or pension benefits, if any, applicable to such personnel as employeesof Extreme Logic.  Extreme Logic shalldefend, indemnify, and hold harmless Firstwave, its officers, directors,employees and agents, from and against any claims, liabilities or expensesrelating to such compensation, tax, insurance or other benefits.  Notwithstanding any other workers’compensation or insurance policies maintained by Firstwave, Extreme Logic shallprocure and maintain workers’ compensation coverage sufficient to meet thestatutory requirements of every jurisdiction in which Extreme Logic’s personnelare engaged in providing Services for Firstwave.

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**13.2.****    Binding Effect. **This Agreement shall be binding upon andinure to the benefit of the parties, their legal representatives, permittedtransferees, successors, and assigns as permitted by this Agreement.

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**13.3.****    Assignment.** This Agreement and all rights and obligationsmay not be assigned in whole or in part by either party without the priorwritten consent of the other, except that this Agreement may be assigned byeither party without consent to another entity in connection with (i) a reorganization,merger, consolidation, acquisition or other restructuring involving all orsubstantially all of the voting securities and/or assets of such party, or (ii)a sale of stock or other equity interest of such party in connection with apublic placement offering, excluding the Restricted Entities identified in theSource Code License Agreement executed on even date herewith.  In the event Extreme Logic desires to assignany rights or obligations hereunder to any of the Restricted Entities, ExtremeLogic shall first obtain the written consent of an authorized representative ofFirstwave.

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**13.4.****    Force Majeure.**  Except for any payment obligationshereunder, neither Extreme Logic nor Firstwave shall be liable for failure toperform any of its respective obligations hereunder if such failure is causedby an event outside its

 

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reasonablecontrol, including, but not limited to, an act of God, war, or naturaldisaster.

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**13.5.****    Remedies.**  Both parties acknowledge that Sections 5 and12 and each provision in this Agreement providing for the protection of eachparty’s copyrights, Proprietary Information and other proprietary rights arematerial to this Agreement.  Bothparties agree that any threatened or actual breach of Sections 5 or 12 andtheir respective copyrights, Proprietary Information or other proprietaryrights by the other party shall constitute immediate, irreparable harm forwhich monetary damages are an inadequate remedy and for which equitableremedies may be awarded by a court of competent jurisdiction. Unless otherwisestated in this Agreement, all remedies provided for in this Agreement shall becumulative and in addition to, and not in lieu of, any other remedies availableto either party, whether at law or in equity or otherwise.

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**13.6.****    No Waiver.** No delay or failure in exercising any righthereunder and no partial or single exercise thereof shall be deemed toconstitute a waiver of such right or any other rights hereunder.  No consent to a breach of any express orimplied term of this Agreement shall constitute a consent to any prior orsubsequent breach.

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**13.7.****    Severability. **If any provision hereof is declaredinvalid by a court of competent jurisdiction, such provision shall beineffective only to the extent of such invalidity, so that the remainder ofthat provision and all remaining provisions of this Agreement shall be validand enforceable to the fullest extent permitted by applicable law. Should anyprovision of this Agreement require judicial interpretation, the parties agreethat the court interpreting or construing the same shall not apply apresumption that the terms of this Agreement shall be more strictly construedagainst one party than against another because the parties participated equallyin preparing and negotiating this Agreement.

** **

**13.8.****    Notices.**All noticesrequired by or relating to this Agreement shall be in writing and shall be sentto the parties to this Agreement at their addresses set forth herein or to suchother address as either party may substitute by written notice to the other,delivered in person or by recognized courier. All notices shall be deemed delivered upon the earlier of actual receiptor three (3) days after deposit of such notice, properly addressed, postage prepaid,with such recognized courier.

** **

**13.9.****    Governing Law.** This Agreement shall be governed by andconstrued in accordance with the laws of the State of Georgia, USA, withoutregard to its rules regarding conflict of laws.

** **

**13.10.    ****Entire Agreement.** This Agreement and the Statement(s) of Work attached hereto andthe Wildcat Matrix document attached hereto represent the entire understanding between the parties hereto withrespect to the subject matter set forth herein, and supersede all negotiations,agreements, contracts, commitments and understandings, both verbal and writtenbetween Extreme Logic and Firstwave.  Nomodifications, additions, or amendments to this Agreement shall be effectiveunless made in writing as an addendum to this Agreement and signed by dulyauthorized representatives of the parties. If a purchase order or similar document is required by Firstwave, theparties agree that it will not contain any additional terms and that if thereare any such terms they will not become a part of the Agreement between theparties. Once signed, both parties agree any reproduction of this Agreementmade by reliable means (for example, photocopy or facsimile) is an originalunless prohibited by local law.

** **

**13.11.    ****Control**. If there is any difference between the terms and conditions of anyStatement of Work attached hereto and any portion of this Agreement, the termsof this Agreement shall control unless expressly superceded in the terms of theapplicable Statement of Work.

# ** **

**14.****       INDEMNIFICATION.**

 

(a)   ExtremeLogic shall indemnify and hold Firstwave harmless against any damages, cost andexpenses arising out of any suit, claim, or proceeding (collectively referredto as a “Claim”) alleging that the Services, Extreme Logic Components orDeliverables infringes a third party’s patent, copyright, trademark or tradesecret enforceable in the U.S. (via treaty or otherwise), provided that (i)Firstwave promptly notifies Extreme Logic in writing of any such Claim; (ii)Firstwave gives Extreme Logic sole authority, at its expense, to direct andcontrol all defense, settlement or compromise negotiations; (iii) Firstwaveprovides Extreme Logic with full information and assistance that may bereasonably required to defend any such Claim. Extreme Logic shall have no obligation or liability with respect to anyClaim based upon (i) any Services, Extreme Logic Components or Deliverableswhich has been altered, modified or revised by any party other than ExtremeLogic where such alteration, modification or revision is an integral part ofthe alleged infringement, (ii) the combination, operation or use of anyServices, Extreme Logic Components or Deliverables with products not furnishedby Extreme Logic when such combination is part of any allegedly infringingprocess and without such combination there would be no alleged infringement, or(iii) for patent claims, infringing Deliverables created by Extreme Logicpursuant to Firstwave’s express requirements.

 

(b)   If theServices, Extreme Logic Components or Deliverables become, or in ExtremeLogic’s opinion is likely to become, the subject of a Claim, Extreme Logic may(i) procure for Firstwave the right to continue using the same, or (ii) provideFirstwave a replacement or modification thereof that is non-infringing andcontains materially similar functionality. If neither of the foregoing alternatives is reasonably available toExtreme Logic, then Extreme Logic may terminate this Agreement upon thirty (30)days written notice to Firstwave, and Extreme Logic shall refund the feesreceived by Extreme Logic attributable to the infringing Services, ExtremeLogic Components or Deliverables. Section 14 (a) and (b) states the entireliability of Extreme Logic with respect to indemnification for patent,trademark, copyright and trade secret infringement for the Services, ExtremeLogic Components or Deliverables.

 

5

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**ExhibitA**

**Formof Statement of Work**

** **

**STATEMENTOF WORK NO.       **

 

Agreement No                                

 

ThisStatement of Work is attached to and made a part of the Firstwave Agreement(“Agreement”) between Extreme Logic, Inc. (“Extreme Logic”) and the Firstwaveindicated below (“Firstwave”). Except as specifically stated herein, eachcapitalized term used in this Statement of Work shall have the same meaning asis assigned to it in the Agreement.

** **

**A. SERVICES**

 

A.1. **Services To Be Performed**:

 

a.        Consulting Services.

 

b.         Development Services.

 

c.         Integration Services.

 

d.         Other Services.

 

e.         Firstwave Responsibilities.

 

A.2. **Commencement and Termination Dates**:

 

a.         Commencement.

 

b.         Expiration.

 

A.3. **Deliverables**:

 

a.        General.

 

b.         Estimated Milestone Delivery Dates.

 

c.         Territory.

** **

**B. COMPENSATION**

 

B.1. **Rates**: 

 

B.2. **Payment Terms**(if different from Section3.1 of the Agreement):  

 

 

INWITNESS WHEREOF, the parties have caused their duly authorized representativesto execute this Statement of Work as of the date last set forth below.

 
| Firstwave (Full Legal  Name): |   |   | Extreme Logic: **Extreme  Logic, Inc.** |
|-------------------------------|--------|--------|-----------------------------------------|
| By:                           |   |   | By:                                     |   |
| Printed Name:                 |   |   | Printed Name:                           |   |
| Title:                        |   |   | Title:                                  |   |
| Date:                         |   |   | Date:                                   |   |
|                               |        |        |                                         |  |  |  |  |  |  |  |  |  |

 

ii

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**Exhibit A-1**

**Form Change Order**

 

Agreement No                                

 

**CHANGE ORDER**

**TO**

**FIRSTWAVE AGREEMENT STATEMENT OF WORK**

 

Change Order No.         to Statement of Work No.         between **ExtremeLogic, Inc.** (“Extreme Logic”)and                                     (“Firstwave”).

 

Firstwave or Extreme Logic shall complete Section 1.  Extreme Logic shall complete the remainderof the Change Order, except for the approval/rejection portion, which shall becompleted by Firstwave in its sole discretion. Each section may be as long or short as the circumstances require.  Additional pages may be attached asnecessary. Except as specifically stated herein, each capitalized term used inthis Change Order shall have the same meaning as is assigned to it in theFirstwave Agreement executed between the parties or the applicable Statement ofWork.

 

1.             Describe changes,modifications, or additions to the Services.

 

2.                                       Modifications,clarifications or supplements by Extreme Logic or Firstwave to description ofdesired changes or additions requested in Section 1 above, if any.

 

3.                                       Necessity,availability and assignment of requisite Extreme Logic personnel and/orresources to make requested modification or additions.

 

4.                                       Impacton costs, delivery schedule, and other requirements.

 

(a)           Changes in costs:

 

(b)           Changes in delivery schedule:

 

(c)           Changes to any other requirements:

 

Change Order Is:

 

          Approved and Accepted                                                 Rejected

 
| Firstwave (Full Legal  Name): |   |   | Extreme Logic: **Extreme  Logic, Inc.** |
|-------------------------------|--------|--------|-----------------------------------------|
| By:                           |   |   | By:                                     |   |
| Printed Name:                 |   |   | Printed Name:                           |   |
| Title:                        |   |   | Title:                                  |   |
| Date:                         |   |   | Date:                                   |   |
|                               |        |        |                                         |  |  |  |  |  |  |  |  |  |  |  |

 

iii

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**WILDCAT MATRIX DOCUMENT**

 

 

For claritypurposes, the functionality marked as “supported” is the only functionalitysupported by the Software (as defined in the Source Code License Agreementexecuted between the parties).

 

 

[Please seeattached]

 

iv

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**EXTREMELOGIC**

**SOURCECODE LICENSE AGREEMENT**

 

 

ThisSource Code License Agreement (“Agreement”) is effective as of July 26, 2002(“Effective Date”) by and between Extreme Logic Inc., a Georgia corporation(“Extreme Logic”), and Firstwave Technologies, Inc., a Georgia corporation(“Firstwave”).

** **

**A.            Agreement. **ThisAgreement consists of this Signature Page, the attached Terms and Conditions,and the attached Exhibits.  In additionto terms defined elsewhere in this Agreement, capitalized terms shall have themeanings set forth in “Definitions” Section of the Terms and Conditions.

 

**B.            Software Components. **The License granted in this Agreement is for thesoftware components  in object andsource code forms as described on the attached Software Exhibit (the“Software”).

 

**C.            Fees.**  The Fee forthe Software License contained herein is $500,000 payable as follows: $250,000on execution of this Agreement, and $250,000 on or before October 30, 2002.

 

THIS AGREEMENT, INCLUDING THE ATTACHED TERMSAND CONDITIONS, AND EXTREME LOGIC’S WILDCAT FRAMEWORK MATRIX (attached hereto;the “Wildcat Document”) ARE THE COMPLETE AND ENTIRE UNDERSTANDING OF THEPARTIES REGARDING THIS AGREEMENT.

 

**IN WITNESS WHEREOF,**Firstwave and Extreme Logic have caused thisAgreement to be executed by their duly authorized representatives.

** **

** **
| **Extreme  Logic, Inc.**  |   | **Firstwave  Technologies, Inc.** |
|---------------------------|--------|-----------------------------------|
|                      |   |                              |
| Two Concourse Parkway     |   | Overlook III, Suite 1000          |
| Suite 500                 |   | 2859 Paces Ferry Road             |
| Atlanta, GA   30328  |   | Atlanta, GA  30339           |
|                      |   |                              |
|                      |   |                              |
| **Signature**             |   | **Signature**                     |
|                      |   |                              |
|                      |   |                              |
| **Print  Name and Title** |   | **Print  Name and Title**         |
|                      |   |                              |
|                      |   |                              |
|                      |   |                              |
| **Date**                  |   | **Date**                          |

 

**CONFIDENTIAL**

 

1

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**TERMS AND CONDITIONS TO SOURCE CODE LICENSE AGREEMENT**

 

 

# **1.  SoftwareLicense Grant.** During the term and subject to the terms andcondition of this Agreement including, without limitation, Firstwave’s payment of the applicable Fees, Extreme Logic grants Firstwave anonexclusive, world-wide, non-transferable license (“License”) to:

 

(i) install, operate andcopy the Software solely in order to carry out the activities permitted underthis Agreement;

 

(ii) modify, enhance andotherwise prepare Derivative Works based on the Software;

 

(iii) market, publiclydisplay, demonstrate, sublicense to End Users, duplicate and distribute theSoftware (in object code form) and Derivative Works to End Users and otherwisecommercially exploit the same in any manner (except as otherwise providedherein);

 

(iv) provide the Softwarein source code form to those End Users who require the Software source codesolely for the purposes of customizing and maintaining the Software object codefor their internal use and which they licensed from Firstwave;

 

(v) place the Softwaresource code in escrow as may be reasonably required by End Users andFirstwave’s resellers;

 

(vi) use the Software tosupport End Users and development purposes;

 

(vii) subject to therestrictions set forth elsewhere in this Agreement, authorize Firstwave’semployees, contractors and resellers to do any of the foregoing on Firstwave’sbehalf provided they agree in writing to be bound by the Confidentiality andother provisions of this Agreement protecting Extreme Logic’s rights; and

 

(viii)  to appoint resellers for products containingthe Software, subject to the terms hereof.

 

# **2.  Ownership;Reservation of Rights; Exclusions.**

# ** **

# **(a)  All Software are licensed and not sold byExtreme Logic and, except as expressly set forth in this Agreement, allownership rights, including Intellectual Property Rights, in and to theSoftware (and all copies thereof) shall remain in and be the sole property ofExtreme Logic.**

 

(b)  All ownership rights,including Intellectual Property Rights, in and to the Derivative Works preparedby or for Firstwave shall solely vest in and be the property of Firstwave.

 

(c)  The ownership rights,including Intellectual Property Rights, in and to the Derivative Works preparedjointly by the parties or by Extreme Logic for Firstwave shall solely vest inand be the property of Firstwave  unlessotherwise stated in a services or other written agreement between the parties.

 

(d)  The parties hereto grant norights hereunder by implication, estoppel or otherwise, except for thoseexpressly granted herein; the parties retain and reserve any and all rights notexpressly granted herein.  No rights orlicenses in either party’s trademarks are granted under this Agreement.

 

(e)  Firstwave agrees to causeall Software End Users to execute an end user license agreement (“EULA”) as acondition for granting them a license or sublicense.  The EULA shall grant to End Users a limited license or sublicenseto use the Software for the internal business purposes of such End Users.  The EULA shall prohibit End Users fromreverse engineering, disassembling, or decompiling the Software.

 

(f)  Subject to the furtherrestrictions set forth in Section 3(c) below, Firstwave may disclose orotherwise provide access to the Software source code to  a third party software or computerconsultant provided that such person or entity has agreed in writing to bebound by the confidentiality and other provisions of the Agreement protectingExtreme Logic’s rights.

 

**3. Delivery of Software; Semi-Exclusivity.**

 

(a)  Extreme Logic will promptlydeliver the Software to Firstwave on a CD (including all source code) uponreceipt of Firstwave’s payment of the applicable Fees.

 

(b)  Subject to Firstwave’s fullpayment of the applicable Fees, for a period of twenty-four  (24) months from the Effective Date, ExtremeLogic agrees not to enter into a substantially similar license agreementinvolving the Software with the entities set forth in the attached RestrictedEntities Exhibit  (collectively the“Restricted Entities”).  The foregoingsentence shall not prohibit Extreme Logic from performing services to theRestricted Entities in any manner unless otherwise agreed by the parties inwriting.

 

(c)  For a period of twelve (12)months from the Effective Date, Firstwave agrees not to provide access to thesource code for the Software to any third party contractor that providesservices competitive to Extreme Logic unless pre-approved in writing by ExtremeLogic, with such approval not to be unreasonably withheld.

 

**4. Fees and Payment; CareCentric Credit.**

 

(a)           Firstwave agrees topay all Fees as set on the Signature Page. Except as expressly set forth in this Agreement, all Fees arenon-refundable in nature.

 

(b)           For each dollaractually paid by CareCentric, Inc. by September 30, 2002 for a source codelicense for the Software, Extreme Logic will issue Firstwave a correspondingcredit for any payments hereunder.

 

(c)           Any amounts payablehereunder which remain unpaid more than 45 days after the due date shall besubject to a late charge equal to one and one half percent (1.5%) per monthfrom the due date until such amount is paid.

 

(d)           All Fees areexclusive of any taxes, assessments or duties that may be assessed upon theSoftware or License granted under this Agreement.  Such taxes do not include taxes based upon Extreme Logic’sincome.

 

# **5.  Confidentiality.**

## ** **

5.1    The parties acknowledge that in the performance of thisAgreement each party may disclose to the other party ProprietaryInformation.  Each party shall useProprietary Information of the other party only for the purposes of this Agreement and,except as set forth in this Agreement, shall not disclose such ProprietaryInformation to any third party, without the other party’s prior writtenconsent. The disclosure of the Proprietary Information hereunder does notconfer any license, interest, or rights of any kind in the Proprietary Informationto the receiving party, except as provided under this Agreement.  The receiving party shall protect theProprietary Information with the same degree of protection and care it uses toprotect its own ProprietaryInformation, but in no event less than reasonable care.  With regard to Trade Secrets, theobligations in this Section shall continue for so long as such informationcontinues to be a Trade Secret.  Withregard to Confidential Information, the obligations in this Section shallcontinue for the term of this Agreement and for two (2) years thereafter. Eachparty shall be responsible for any breach of this Agreement by its contractorsand shall obtain confidentiality agreements with such contractors consistentherewith.

 

5.2    Nothing in this Section shall prohibit or limit the useof information (i) if at the time of disclosure hereunder such information isgenerally available to the public; (ii) if after disclosure hereunder suchinformation becomesgenerally available to the public, except through breach of this Agreement;(iii) if the receiving party can demonstrate such information was in itspossession prior to the time of disclosure and was not acquired directly orindirectly from the other party or its affiliates; (iv) if the information becomesavailable to the receiving party from a third party which is not legallyprohibited from disclosing such information, provided such information was notacquired directly or indirectly from the disclosing party or its affiliates; and (v)to the extent such information is required to be disclosed by applicable law orregulation.

 

5.3    For the purposes of this Agreement, (i) “ProprietaryInformation”

 

2

----

 

means TradeSecrets and Confidential Information; (ii) “Trade Secrets” means trade secretsas defined under Georgia law, and (iii) “Confidential Information” meansinformation that is of value to its owner and is treated as confidential otherthan Trade Secrets.  Without limiting the foregoing, all pricinginformation contained in this Agreement shall constitute ProprietaryInformation.  Without limiting theforegoing, the Software shall be considered Extreme Logic’s ProprietaryInformation.

 

5.4           Except as otherwise agreedby the parties in writing, neither party shall disclose the terms or existenceof this Agreement except (i) as required by applicable law or regulation, (ii)to its employees, agents and business associates with a need to know suchterms, or (iii)in connection with a potential merger or sale of all or substantially all ofits assets; provided that the receiving party agrees in writing to be bound bythe restrictions of this Agreement.

 

**6. Warranties; Limitations.**

 

(a)           Extreme Logic warrants to Firstwavethat it is the owner of the Software and has the right to grant the Licensegranted herein and the Software does not and shall not infringe any thirdparty’s Intellectual Property Rights. Firstwave’s sole remedy and Extreme Logic’s sole liability for anybreach of this warranty shall be the remedies set forth in Section 15 below.

 

(b)           The parties agree and acknowledgethat the Software is comprised of software code components, is not astand-alone application, and has no applicable documentation.  EXCEPT AS SET FORTH IN Section 6(a), EXTREMELOGIC DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS ANDCONDITIONS WITH RESPECT TO THE SOFTWARE, PROVIDED HEREUNDER OR OTHERWISEREGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.

 

# **7.  Limitationof Liability.**

 

(a)           Except as expressly set forth in thisSection and the indemnification provided in Section 15, neither party or theirrespective officers, directors, employees, shareholders, agents, licensors,resellers or representatives shall be liable for any incidental, indirect,special, exemplary or consequential damages that may arise out of or in connectionwith this Agreement and even if the parties have been notified of thepossibility or likelihood of such damages occurring, regardless if such damagesare based in contract, tort, warranty, negligence, strict liability, productsliability or otherwise.

 

(b)           Except as expressly set forth in thisSection and the indemnification provided in Section 15, in no event will thetotal liability of ExtremeLogic for any damages incurred by Firstwave ever exceed the Feesactually paid by Firstwave to Extreme Logicunder this Agreement, regardless of the form of action, whether based incontract, tort, warranty, negligence, strict liability, products liability orotherwise.

 

(c)           Except as expressly set forth in thisSection, in no event will the total liability of Firstwave for any damagesincurred by ExtremeLogic ever exceed the amount of Fees payable to Extreme Logic under this Agreement, regardless of the form ofaction, whether based in contract, tort, warranty, negligence, strictliability, products liability or otherwise.

 

(d)           The limitations of sub-sections (a) –(c) of this “Limitation of Liability” Section shall not apply to (i) any breachof the “Confidentiality” Section of this Agreement by either party, (ii) anybreach of the “Software License” (Section 1) of this Agreement; or (iii) anyviolation of either party’s Intellectual Property Rights and the relatedindemnification provision.

# ** **

# **8.  Term andTermination.**

 

(a)  This Agreement shall be effective as of theEffective Date and shall remain in effect until terminated as provided in thisSection.

 

(b)  In addition and without prejudice to anyother remedies, the parties shall have the right to terminate this Agreement asprovided below:

 

(i)            if the other party commits amaterial breach of this Agreement and such breach remains uncured thirty(30)  days after written notice of suchbreach is delivered to the other party or such longer period as may be agreedupon in writing by the parties.

 

**9. Effect of Termination.**  (a) From and after any termination of this Agreement:

 

(i)              subject to the terms hereof,Sections 2, 4–9, 11, 14 and 15.  survivethe termination of this Agreement and remain binding upon and for the benefitof the parties, their successors (including without limitation successors bymerger) and permitted assigns;

 

(ii)             rights of termination are withoutprejudice to any remedies available to the parties under this Agreement forbreach, at law or in equity;

 

(iii)            if Extreme Logic terminates thisAgreement pursuant to Section 8(b), all Fees that are due and payable shallsurvive termination of this Agreement and remain payable in accordance with theterms hereof;

 

(iv)            if Firstwave terminates thisAgreement pursuant to Section 8(b), no further Fees shall be due or payablehereunder;

 

(v)             all End User sublicense granted byFirstwave pursuant to the terms hereof shall survive termination;

 

(vi)            the License rights granted inSection 1(iii) shall terminate but all other License rights shall remain infull force and effect.

 

# **10.  Intentionally Left Blank.**

# ** **

**11. Dispute Resolution.**  This Agreement shall be exclusively construed, governed andenforced under the laws of the U.S. and the State of Georgia (without regard torules governing conflict of laws). The parties agree that the United NationsConvention on Contracts for the International Sale of Goods shall not apply inany respect to this Agreement or the parties. The exclusive venue for any dispute related to this Agreement shall bein a court of competent jurisdiction located in the State of Georgia.

# ** **

# **12.  NoSoftware Support Services.**

 

The parties acknowledge and agree thatExtreme Logic has no obligation to provide any the support ormaintenance services or updates to the Software after the Effective Date,unless otherwise agreed in writing by the parties.

# ** **

**13. Third Party Materials.**

** **

Firstwave agrees that Extreme Logic does not and will not provide anythird party software, hardware or other equipment which may be required toutilize the Software.

 

**14. Miscellaneous. **Notwithstandingthe contentof either party’s purchase order, invoice or any similar document or recordrelating to the subject matter of this Agreement, the terms of this Agreementshall govern and any conflicting, inconsistent, or additional terms containedin such documents shallbe null and void.  All communicationsrequired or otherwise provided under this Agreement shall be in writing andshall be deemed given when delivered (i) by hand, (ii) by registered orcertified mail, postage prepaid, return receipt requested; (iii) by anationally recognized overnight courier service to the address set forth on theSignature Page and addressed to the president, with a copy to Chief FinancialOfficer for each party.  Neither partymay assign its rights, duties or the License under this Agreementwithout the prior written consent of the other party; provided that eitherparty may freely assign this Agreement in conjunction with a sale of all orsubstantially all its assets, a merger or similar transaction.  Any assignment in violation of this Sectionshall be void and of no effect. This Agreement shall be binding upon and inureto the benefit of the parties and their successors and permitted assigns.Headings of particular Sections are inserted only for convenience and are notto be used todefine, limit or construe the scope of any term or provision of thisAgreement.  The relationship of theparties hereto shall be that of independent contractors. Nothing herein shallbe construed to create any partnership, joint venture, agency, or similarrelationship or to subject the parties to any implied duties or obligationsrespecting the conduct of their affairs that are not expressly statedherein.  Should any provision of thisAgreement require judicial interpretation, the parties agree that the courtinterpreting or construing the same shall not apply a presumption that theterms of this Agreement shall be more strictly construed against one party thanagainst another.  This Agreement may beexecuted in one or more counterparts, each of which shall for all purposes be deemedto be an original and all of which shall constitute the same instrument. Incase any one or more of the provisions of this Agreement should be invalid,illegal or unenforceable in any respect, the validity, legality and enforceability ofthe remaining provisions contained herein shall not in any way be affected orimpaired thereby. This Agreement constitutes the entire agreement between theparties concerning the subject matter hereof and supersedes all written or oralprior agreementsor understandings with respect thereto. No modification, extension or waiver of or under this Agreement shall bevalid unless made

 

3

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in writingand signed by an authorized representative of the party sought to be chargedtherewith.  No written waiver shallconstitute, or be construed as, a waiver of any other obligation or conditionof this Agreement.  Neither party shallbe liable for loss or damage resulting from any cause beyond its reasonablecontrol.  Except as may be expressly setforth herein, no provision of this Agreement shall be construed to provide orcreate any third party beneficiary right or any other right of any kind in anythird party.  The Exhibits attached tothis Agreement orsubsequently added hereto by mutual written consent of the parties areincorporated into this Agreement for all purposes.

 

**15. Intellectual Property Indemnification.**  Extreme Logic will defend, indemnify andhold harmless the Firstwave against claims that the Software infringes thirdparty’s Intellectual Property Right that is enforceable in the U.S.(via treatyor otherwise).  If Extreme Logic determinesthat the affected Software is likely to or if the Software is determined in acourt of competent jurisdiction to infringe an Intellectual Property Right thatis enforceable in the U.S. (via treaty or otherwise), Extreme Logic, usingshall use commercially reasonable efforts, to either:  (a) first, replace such affected Software; (b) second, modifysuch affected Software to make it non–infringing; or (c) if, options (a)and (b) are not reasonably available despite Extreme Logic’s commerciallyreasonable efforts,  then Extreme Logicmay require the return of such affected portion of the Software and terminationof all rights thereto from Firstwave, in which case Extreme Logic  agrees to refund a pro rata portion of thelicense fees paid by Firstwave for the affected portion of the Software.  This right of indemnification set forth inthis section only applies if: (i) Firstwave provides Extreme Logic notice ofsuch claim or cause of action upon which Firstwave intends to base a claim ofindemnification hereunder within thirty (30) days of Firstwave’s receipt of theclaim or cause of action, (ii) Extreme Logic is given sole control of thedefense and all related settlement negotiations relating to such claim oraction, and (iii) Firstwave provides reasonable assistance and cooperation atExtreme Logic’s reasonable expense to enable Extreme Logic  to defend the action or claimhereunder.  Extreme Logic has no obligationto Firstwave under this section if (A) the claim is based on either changes ormodifications to the Software made by Firstwave, or its combination, operationor use with any product, software, data, or apparatus not provided, specifiedor approved in writing by Extreme Logic. This section states Extreme Logic ‘sentire liability and Firstwave’s exclusive remedy for any claim of infringement.

 

**16.          Definitions.**  In addition to other terms defined elsewherein this Agreement, the following terms shall have the following meanings:

 

(a)   **“DerivativeWorks”** shall have the meaning set forth in the United StatesCopyright Act, as amended.

 

(b)     **“End User”**means persons or entities (other than assignees) that receive any licenses,sublicenses, or any other rights from Firstwave, directly or indirectly, in orto the Software or Derivative Works.

 

(c)   **“Fees”** means all fees payable by Firstwaveto Extreme Logic and identified on the Signature Page under this Agreement inU.S. currency.

 

(d)   **“Intellectual Property Rights”**means allrights under patent, copyright, trade secret, trademark, confidentialinformation, or other property right.

 

(e)   **“License(s)”** mean all license(s) granted toFirstwave by Extreme Logic under this Agreement.

 

4

----

 

**SOFTWARE EXHIBIT**

 

 

The Software iscomposed of the following software components (all third party software is theresponsibility of Firstwave):

 

ProcessDesigner

 

**The process designer is a visio-based tool processdevelopment tool. It consists of a specific stencil which contains basicshapes:**

 

Other types of nodes can be defined. The tool willsave out the process by transforming the process into an XML document, whichthen in turn is stored into a normalized SQL2000 database.

 

ProcessEngine (.NET)

 

**The Engine is capable of lifting a workflow out of thedatabase, load the node-corresponding code (method) and “run” the process. Theengine will take special action based on the node-type it encounters:**

 

SystemServices

 

•                  **Securitycomponent (.NET)**

 

**TheSecurity Services component provides a simple interface to perform encryptionand Base64 encoding of strings.  Also,it provides a secured dictionary that can contain either encrypted or cleartext entries, this feature is utilized by the Configuration Servicescomponent.  Finally, the SecurityServices component provides a facility to detect information about a userincluding supervisor, groups and roles from either an XML file or Active Directorysecurity provider.**

 

•                  **Loggingservices component (.NET)**

Logging services provides the ability to write traceand error information to specified logging repositories.  These repositories include the outputdebugging facility, the event log or an MQ Series queue.

 

•                  **Configurationservices component (.NET)**

The configuration services component enhances theMicrosoft.Net configuration facility to allow configuration entries to beseparated on a per client basis. Default configuration entries can be overridden for a specific clients,if desired.  Additionally, entries canbe encrypted in the configuration files for an extra level of security.  Configuration entries are simple name/valuepairs that allow the value to be clear text or encrypted and Base64 encoded.

 

•                  **Contextservices component (.NET)**

Context Services provides a runtime access to callchain context information.   It providesa wrapper for other consumers (E.g. Logging Services, Configuration Services orbusiness methods) to have access to the context information.  Consumers have the ability to create thecontext information and request individual context fields.  A key, called the ContextMoniker, is passedfrom method to method enabling access to any individual or set of contextfields by providing the ContextMoniker to Context Services through a simplefunction call.

 

•                  **Cachingservices component (.NET)**

Caching services simply wraps the Microsoft.NetSystem.Web.Caching.Cache class to ensure it is available in both the Webenvironment and a stand-alone application environment.

 

.NET Profilerfor applications (.NET)

 

 

XML storedprocedure code generator

 

5

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Code generation utility for use with SQL Server 2000 to createSELECT...FOR XML EXPLICIT (and AUTO) stored procedures based on a database’stable names, field names, and foreign keys. A utility will generate C# DAL codefrom XML metadata.

 

Generated C#DAL code from XML Metadata

 

6

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**RESTRICTED ENTITIES EXHIBIT**

 

 

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Email:      JanePa@amdocs.com

 

Applix, Inc.

Applix iEnterprise v. 8.3

289 Turnpike Road

Westboro, MA 01581

Toll:        (800) 8AP-PLIX

Tel:         (508) 870-0300

Fax:         (508) 366-2278

Contact: Sheila Van Batenburg

Email:      SvanBatenburg@applix.com

 

Ardexus Corporation

Ardexus MODE v. 2.2b

6300 Northwest Drive

Mississauga, Ontario L4V 1J7 Canada

Toll:        (800) ARD-EXUS

Tel:         (905) 673-5668

Fax:         (905) 673-7948

Contact: Jakub Danielak

Email:      J_Danielak@ardexus.com

 

Connect-Care, LLC

Connect-Care v. 7.0

11545 Wills Road, Suite 102

Atlanta, GA 30004

Toll:        (800) 680-6292

Tel:         (678) 250-5007

Fax:         (770) 752-8141

Contact: Thomas Fallucco

Email:      Tfallucco@connect-care.com

 

E.piphany, Inc.

E.piphany E.5

1900 South Norfolk Street, Suite 310

San Mateo, CA 94403

Toll:        (877) 764-4163

Tel:         (650) 356-3800

Fax:         (650) 356-3801

Contact: Catherine Lochead

Email:      Catherine.Lochead@epiphany.com

 

FrontRange Solutions, Inc.

Goldmine FrontOffice v. .5

1125 Kelly Johnson Blvd

Colorado Springs, CO 80920

Toll:        (800) 776-7889

Tel:         (719) 531-5007

Fax:         (719) 536-0620

Contact: Lynne Dolan

Email:      Lynne.Dolan@frontrange.com

 

Industri Matematik Abalon AB

Abalon CRM 2001 SP6

305 Fellowship Road, Suite 200

Mount Laurel, NJ 08054

Toll:        (800) 259-0751

Tel:         (856) 793-4400

Fax:         (856) 793-4401

Contact: Henrik Hoglund

Email:      Hehg@im.se

 

7

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Interact Commerce Corporation

SalesLogix v. 5.2

8800 N. Gainey Center Drive, Suite 200

Scottsdale, AZ 85258

Toll:        (800) 643-6400

Tel:         (480) 368-3700

Fax:         (480) 368-3799

Contact: Kristina Ford

Email:      kford@interact.com

 

J.D. Edwards & Company

J.D. Edwards CRM v. 1.0

One Technology Way

Denver, CO 80237

Toll:        (800) 727-5333

Tel:         (303) 334-4000

Fax:         (303) 334-4141

Contact: Diana Sherman-Palmer

Email:      Diana_Sherman-Palmer@jdedwards.com

 

Oncontact Software Corporation

Client Management Software 5.0

W67 N222 Evergreen Blvd Suite 212

Cedarburg, WI 53012

Toll:        (800) 886-0866

Tel:         (262) 375-6555

Fax:         (262) 375-4422

Contact: Tim Vertz

Email:      Timv@oncontact.com

 

ONYX Software

ONYX Enterprise 2001

3180 139th Avenue SE, Suite 500

Bellevue, WA 98005-4091

Toll:        (888) ASK-ONYX

Tel:         (425) 451-8060

Fax:         (425) 990-3343

Contact: David Mojo

Email:      info@onyx.com

 

Optima Technologies, Inc.

ExSellence v. 4.0

1110 Northchase Parkway, Suite 250

 Marietta, GA 30067

Toll:        (800) 821-SELL

Tel:         (770) 951-1161

Fax:         (770) 951-1376

Contact: Christina Schaeffer

Email:      sales@optima-tech.com

 

Oracle Corporation

Oracle CRM Suite 11i v. 5.5

500 Oracle Parkway

Redwood Shores, CA 94065

Toll:        (800) ORA-CLEl

Tel:         (650) 506-7000

Fax:         (650) 506-7200

Contact: Deborah Bosch

Email:      Deborah.Bosch@oracle.com

 

PeopleSoft, Inc.

PeopleSoft 8.1 CRM

4460 Hacienda Drive

Pleasanton, CA 94588-8618

Toll:        (800) 380-SOFT

Tel:         (925) 694-3000

Fax:         (925) 694-4444

Contact: John Grozier

Email:      John_Grozier@peoplesoft.com

Pivotal Corporation

Pivotal eRelationship

10210 NE Points Drive Bldg 3

Kirkland, WA 98033

 

8

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Toll:        (888) PIV-OTAL

Tel:         (425) 897-6992

Fax:         (425) 897-8402

Contact: Jacqueline Voci

Email:      jvoci@pivotal.com

 

Point Information Systems, Ltd.

e-point 5.2

Embassy House, Herbert Park

Ballsbridge, Dublin 4 Ireland

Tel:         353-1-602-0100

Fax:         353-1-602-0101

Contact: Cathal Grogan

Email:      info@pointinfo.com

 

Powercerv Corporation

Powercerv CRM v. 9.0

400 North Ashley Drive

Tampa, FL 33602

Tel:         (813) 226-2600

Fax:         (813) 222-0886

Contact: Bill Walker

Email:      Bill.Walker@powercerv.com

 

Salesforce.com

Salesforce.com

The Landmark @ One market

San Francisco, CA 94115

Toll:        (800) NOSOFTWARE

Tel:         (415) 901-7000

Fax:         (415) 901-7090

Contact: Kari Moe

Email:      Kmoe@salesforce.com

 

Salespage Technologies, Inc.

SalesPage open.space 3.5

227 North Rose Street

Kalamazoo, MI 49007

Tel:         (614) 567-7400

Fax:         (614) 567-7427

Contact: Michael Pessetti

Email:      sales@salespage.com

 

 

SAP AMERICA, Inc.

mySAP CRM 3.0

3999 West Chester Pike

Newtown Square, PA 19073

Toll:        (800) 872-1727

Tel:         (610) 661-1000

Fax:         (610) 355-3106

Contact: Jon Wurfl

Email:      Jon.wurfl@sap.com

 

Saratoga Systems, Inc.

iAvenue 6.0

900 E. Hamilton Avenue

Campbell, CA 95008

Tel:         (408) 558-9600

Fax:         (408) 558-9690

Contact: Don Wszolek

Email:      Info@saratogasystems.com

 

Siebel Systems, Inc.

Siebel 7

2207 Bridgepointe Parkway

San Mateo, Ca 94404

Toll:        (800) 647-4300

Tel:         (650) 295-5000

Fax:         (650) 295-5111

Contact: Brian Groves

Email:      bgroves@siebel.com

 

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Software Innovation, Inc.

Enterprise SalesMaker v. 6.4

330 bay Street Suite 200

Toronto, Ontario, Canada M5H 2S8

Toll:        (866) SOFTINN

Tel:         (416) 368-3000

Fax:         9416) 368-3600

Contact: Scott O’Neill

Email:      Info@software-innovation.com

 

Staffware PLC

Staffware process Suite v. 9.0

202 E. Border, Suite 300

Arlington, TX 76010

Toll:        (800) 766-7355

Tel:         (817) 277-3000

Fax:         (817) 274-6700

Contact: Randy Davis

Email:      info@staffware.com

 

StayinFront, Inc.

Visual Elk v. 8.1

107 Little Falls Road

Fairfield, NJ 07004

Toll:        (800) 422-4520

Tel:         (973) 461-4800

Fax:         (973) 461-4801

Contact: Ken Arbadji

Email:      sales@stayinfront.com

 

TriVium Systems, Inc.

SimpleRM v.2.1

3305 NW Aloclek Drive, Suite 200

Hillsboro, OR 97124

Tel:         (503) 439-9338

Fax:         (503) 439-1526

Contact: Mohit Mahendra

Email: Info@triviumsys.com

 

Update.com software AG

Marketing. Manger 5.0

Operngasse 17-21

A-1040 Wien, Austria

Tel:         +43-1-878-55

Fax:         43-1-878-55-200

Contact: Nicholas Poeschl

Email:      Nick.poeschl@update.com

 

UpShot.com

UpShot

1161 San Antonio Road

Mountain View, CA 94043

Toll:        (888) 700=8774

Tel:         (6500 623-2200

Fax:         (6500 965-1996

Contact: Julie Choi

Email:      Info@upshot.com

 

Worldtrak Corporation

Worldtrak v. 5.3

9330 James Avenue South’Bloomington, MN 55431

Toll:        (888) 814-2880

Tel:         (952) 346-0200

Fax:         (952) 346-0047

Contact: Sandy Schueller

Email:      postmaster@worldtrak.com

 

10

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**WILDCAT DOCUMENT**

 

 

For claritypurposes, the functionality marked as “supported” is the only functionalitysupported by the Software as set forth in the Wildcat Document.

 

 

[Please seeattached]

 

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