Exhibit 10.26




 




Agreement

No.                            




 




CUSTOMER

AGREEMENT




 




This Firstwave Agreement (“Agreement”) is entered into as of this

                    

day of                               ,

2002 (the “Effective Date”) is made for the purpose of establishing a

relationship whereby Extreme Logic, Inc. (“Extreme Logic”) a Georgia

corporation located at Two Concourse Parkway, Suite 500, Atlanta, GA  30328, can provide services to  Firstwave Technologies, Inc., a Georgia

corporation (“Customer” or “Firstwave”).




 




The Agreement shall be implemented through one or more Statements of

Work (defined in the attached Terms and Conditions) as may be entered into by

the parties from time to time in accordance with Section 2. This Agreement

consists of this signature page, the Terms and Conditions attached hereto and

any exhibits attached hereto, such amendments as may be entered into by the

parties from time to time, and Statements of Work.  In consideration of their rights and obligations under this

Agreement, and intending to be legally bound, Extreme Logic and Firstwave agree

to 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




 




1.          DEFINITIONS.  As used in this Agreement and in addition to any other terms

defined herein, the following defined terms have the following meanings:




 




1.1.      “Content” means any software, code, inventions, pictures,

audio, video, animations, enhancements, improvements, methods, processes, improvements, works of

authorship, work-flow methods or other material or any portions of the

foregoing.




 




1.2.      “Deliverable”

means Content delivered to Firstwave pursuant to a Statement of Work, but

specifically excluding any Extreme Logic Components contained therein.




 




1.3.      “Derivative Work” means a work that is based upon one or more

preexisting works, such as a revision, modification, translation, abridgement,

condensation, expansion, or any other form in which such preexisting works may

be recast, transformed, or adapted, and any additional meaning that may be set

forth in the United States Copyright Act, as amended.




 




1.4       “Extreme Logic Components”

means any Content delivered to Firstwave as part of a Deliverable that is conceived

and/or created by Extreme Logic prior to or outside the scope of a Statement of

Work.




 




1.5       “Services” means any

services provided by Extreme Logic pursuant to a Statement of Work.




 




1.6       “Statement of Work”

means the document, the form of which is attached hereto as Exhibit A, which

shall describe the scope of Services to be performed and Deliverables to be

delivered and which is executed by the parties and attached hereto.




 




1.7       “Territory” means

worldwide.




 




2.          SERVICES.




 




2.1.      Services.




 




(a)     Extreme Logic will provide the Services to

Firstwave 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 to

Statements of Work either prior to or at the time of the execution of this

Agreement shall be governed by the terms and conditions of this Agreement to

the same extent and with the same effect as if the Services had been performed

after the execution of this Agreement.




 




2.2.      Services Commitment.  Firstwave agrees to pay Extreme Logic a

minimum Fee (excluding taxes and reimbursable expenses) of $80,000 per month

for five months (the “Monthly Fee Requirement”), beginning August 1, 2002, for

a total of $400,000, or $400,000 total services, whichever comes first in Fees

(the “Total Fee Requirement”).  The

Monthly Fee Requirement and Total Fee Requirement shall be dependent upon

Extreme Logic’s provision of a sufficient number of technically competent

personnel to provide the Services requested by Firstwave during the five month

period beginning August 1, 2002.  All

invoices for Services provided by Extreme Logic and paid by Firstwave shall be

applied against the Monthly Fee Requirement and the Total Fee Requirement.




 




2.3.      Additional Services.  Any services performed by Extreme Logic upon

request by Firstwave which are outside the scope of any Services described on

an applicable Statement of Work shall be governed by the terms and conditions

of this Agreement  and will be billed to

Firstwave at Extreme Logic’s then current time and materials rates.  Such additional Services paid for by

Firstwave will also be included in the amount applied against the Monthly Fee

Requirement and the Total Fee Requirement.




 




2.4.      Change Orders.  Any material modifications to a

Statement of Work (including without limitation modifications to the fees,

specifications or project plan) shall be made by written change order, the form

of which is attached as Exhibit A-1, executed by both parties to

this Agreement (a “Change Order”).  Each

Change Order complying with this section shall be deemed to be an amendment to

the applicable Statement of Work and will become part of this Agreement.




 




2.5.      Cooperation.  Firstwave shall cooperate and provide

information as is reasonably necessary for the timely completion of the

Services. To the extent set forth on an applicable Statement of Work, Firstwave

also agrees to fulfill those responsibilities designated thereon. The parties

acknowledge that Extreme Logic’s performance hereunder is contingent on

Firstwave’s timely and effective performance of its responsibilities and its

timely decisions and approvals.  To the

extent required in any Statement(s) of Work, Firstwave shall be responsible for

providing Extreme Logic with access to Firstwave’s facilities, software and

systems and data, information, office space and support materials as reasonably

required by Extreme Logic to perform its duties hereunder (collectively,

“Firstwave Materials”). Firstwave warrants that it owns or has acquired rights

to all proprietary interests in the Firstwave Materials necessary for Extreme

Logic to perform the Services hereunder. Firstwave agrees to produce evidence

of such rights and licenses upon the reasonable request of Extreme Logic.




 




2.6.      Project Control.  Extreme Logic has the sole right and

obligation to supervise, manage, contract, direct, procure, perform, or cause

to be performed all Services to be performed by Extreme Logic hereunder unless

otherwise provided herein or in a Statement of Work.  Extreme Logic shall endeavor

to honor a request for a specific consultant, subject to staffing or scheduling

considerations; however, Extreme Logic shall determine the assignment of its

personnel. In the event Firstwave requests replacement of any individual or

consultant based on such individual’s or consultant’s inability to reasonably

perform the Services required hereunder by Firstwave, Extreme Logic shall

endeavor to replace such individual or consultant in a timely manner. Whenever

on the Firstwave’s premises Extreme Logic shall obey all written policies

regarding conduct required by the Firstwave. 

In recognition that Extreme Logic personnel performing under this

Agreement may perform similar services for others, this Agreement shall not prevent

Extreme Logic from providing services or developing materials that may be

perceived as competitive with those developed or provided hereunder, subject to

Extreme Logic’s confidentiality obligations hereunder.




 




3.          ACCEPTANCE.




 




3.1 Evaluation.  For a period beginning upon delivery of a Deliverable

and (i) in the case of an Interim Deliverable (defined below), ending no later

than 5:00 p.m. local time in Atlanta, Georgia on the third (3rd)

business day following delivery (“Interim Evaluation Period”) or (ii) in the

case of the Final Deliverable (defined below), ending no later than 5:00 p.m.

local time in Atlanta, Georgia on the tenth (10th) business day

following delivery (“Final Evaluation Period”), Firstwave shall diligently

evaluate each Deliverable delivered by Extreme Logic to determine whether the

Deliverable contains the features, and is capable of performing the operations,

that are specifically set forth in the specifications to which the parties have

mutually agreed in writing with respect to such Deliverable (“Specifications”).  Extreme Logic may observe or participate in

any evaluation by Firstwave. For purposes hereof, (x) “Interim Deliverable”

means a Deliverable delivered to Firstwave pursuant to an interim delivery

milestone set forth in a Statement of Work or Change Order, (y) “Final

Deliverable” means the Deliverable delivered to Firstwave pursuant to the final

delivery milestone set forth in a Statement of Work or Change Order, and (z)

“Acceptance Period” means either the Interim Evaluation Period or the Final

Evaluation Period, as applicable, provided Extreme Logic has delivered written

notice (email notice will suffice) of the delivery of the respective

Deliverable to the CEO and CFO of Firstwave. 

The parties may extend the applicable Acceptance Period in a writing

assigned by both parties.




 




3.2 Acceptance. 

Prior to the termination of the applicable Acceptance Period, Firstwave

will notify Extreme Logic in writing either (a) of its acceptance of the

Deliverable (“Acceptance”), or (b) if Firstwave reasonably determines there is

any 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 to

correct all Nonconformities and deliver such corrected Deliverable to

Firstwave.  Upon delivery thereof,

Firstwave shall have an additional Interim Acceptance Period or Final

Acceptance Period, as applicable, to reevaluate the Deliverable to determine if

the Nonconformities have been corrected. If the Nonconformities have not been

corrected, Firstwave will have the option of (i) giving Extreme Logic a new

notice of Nonconformity as described in 3.2(b) above, or (ii) accepting the

Deliverable as-is. In the event Extreme Logic is unable to correct the

Nonconformities after multiple attempts, then Firstwave, as its sole remedy and

in its sole discretion, may either (i) accept the Deliverable “AS IS”, or

receive a refund of all fees applicable to the defective Deliverable.  The acceptance process and applicable

remedies described in this Section shall be Firstwave’s sole remedy for any

Nonconformance or any breach of the warranty contained in Section 7.2.  “Acceptance” shall be deemed to have

occurred the earlier to occur of the following: (x) delivery of written

Acceptance by Firstwave; (y) the end of the Acceptance Period, if no notice to

the contrary is received by Extreme Logic during such Acceptance Period; or (z)

the date the Deliverable is commercially distributed by Firstwave to its end

user(s).




 




4.          COMPENSATION.




 




4.1.      Fees and Expenses.

Firstwave agrees to pay all fees as set forth in the applicable Statement of

Work (“Fees”). Such Fees shall be offset against the Monthly Fee Requirement

specified in Section 2.2; in the event Extreme Logic incurs Service Fees in

excess of the Monthly Fee Requirement, Firstwave shall pay such additional Fee

amount in accordance with the terms hereof. 

Firstwave




 




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shall also pay

expenses incurred by Extreme Logic in the performance of Services which shall

include, without limitation, reasonable travel expenses (including

transportation, lodging, and meals) and the cost of any courier services,

photocopying, facsimile, transmissions, communications charges, telephone

calls, and other expenses (collectively, “Expenses”).  Unless otherwise indicated on the payment schedule on a Statement

of Work, Extreme Logic shall submit itemized statements to Firstwave weekly and

such invoices shall be due thirty (30) days from the date of receipt by

Firstwave.  A late fee shall be charged

by Extreme Logic on overdue accounts and any other amounts not paid to Extreme

Logic 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 sole

option, may suspend performance of any and all Services without liability

therefor if payment upon any valid and uncontested invoice is not received from

Firstwave prior to or upon its due date.




 




4.2.      Taxes.  The Fees, Expenses and all other amounts due

to Extreme Logic as set forth in this Agreement are net amounts to be received

by Extreme Logic, exclusive of all taxes, duties, and assessments, and are not

subject to offset or reduction because of any costs, expenses, taxes, duties,

withholdings, or assessments, incurred by Firstwave or imposed on Extreme Logic

in the performance of this Agreement or otherwise due as a result of this

Agreement.  This paragraph shall not

apply to taxes based solely on Extreme Logic’s income.




 




5.          ALLOCATION OF RIGHTS.




 




5.1.      Rights in Deliverables.  Unless otherwise expressly set forth in a

Statement of Work and subject to Firstwave’s payment of the applicable Fees,

Firstwave shall own all rights in and to the Deliverables including all Content

comprising such Deliverable, including, without limitation, any patent,

copyright, trademark, trade secret or any other intellectual property rights

associated therewith.  Any Derivative

Work of the Deliverables or new or improved idea, design, concept, or other

invention made or developed solely by Firstwave or permitted third parties for

Firstwave in the course of utilizing or adapting the Deliverables or shall be

owned exclusively by Firstwave.




 




5.2.      Rights in the Extreme Logic

Components.  The Extreme Logic

Components and all rights therein including without limitation any patent,

copyright, trademark, trade secret or any other intellectual property rights

associated with the Extreme Logic Components shall be owned exclusively by

Extreme Logic.  Firstwave shall have no

claim of ownership in any of the patent, copyright, trademark, trade secret, or

any other intellectual property right in the Extreme Logic Components.




 




5.3.      License to the Extreme Logic

Components. Subject to the terms and conditions of this Agreement, Extreme

Logic hereby grants Firstwave in perpetuity a royalty-free, nonexclusive license

within the Territory to copy, distribute, transmit, display, perform, create

derivative works, and otherwise commercially exploit the Extreme Logic

Components, in whole or in part, solely in conjunction with the Deliverables in

which they are included.




 




Extreme Logic

reserves all rights not expressly granted herein.  Firstwave may use the Extreme Logic Components only as set forth

above and except as set forth above. 

Without limiting the foregoing, in no event shall Firstwave, to the

extent source code is not provided, decompile, reverse assemble, reverse

engineer or otherwise obtain the source code to the Extreme Logic Components,

or permit any third party to do the same, except to the extent otherwise

permitted by law.




 




5.4.      Third Party Materials.  Firstwave agrees that Extreme Logic does not

and will not provide any third party software, hardware or other equipment

which may be required to run, operate or maintain the Deliverables.  Firstwave is solely responsible for

obtaining and licensing all third party software, hardware and equipment from

the applicable third parties.




 




6.          CONFIDENTIALITY.




 




6.1.      Definitions.  In the performance of this Agreement, either

party may disclose to the other certain Proprietary Information. For the

purposes of this Agreement, (a) “Proprietary Information” means Trade Secrets

and Confidential Information that are clearly marked or identified in writing

at the time of delivery as being either a Trade Secret or Confidential

Information; (b) “Trade Secrets” means trade secrets as defined under Georgia

law; and (c) “Confidential Information” means information that is of value to

its owner and is treated as confidential other than Trade Secrets. Proprietary

Information may include, without limitation, all information of a disclosing

party 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 Components

shall in all cases be considered Proprietary Information of Extreme Logic and

identified as such in writing when disclosed.




 




6.2.      Nondisclosure.  Both parties acknowledge and agree that the

Proprietary Information shall remain the sole and exclusive property of the

disclosing party or a third party providing such information to the disclosing

party. The receiving party agrees to hold the Proprietary Information disclosed

by 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 Proprietary

Information for any purpose whatsoever other than as expressly provided by this

Agreement.  The disclosure of the

Proprietary Information does not confer upon the receiving party any license,

interest, or rights of any kind in or to the Proprietary Information, except as

expressly provided under this Agreement. 

Subject to the terms set forth herein, (a) the receiving party shall use

the Proprietary Information of the disclosing party only as necessary to

fulfill 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 obligations

applicable to such Proprietary Information that are consistent with and no less

stringent than those required of the receiving party pursuant to this

Agreement, and (c) shall not otherwise disclose the Proprietary Information to

a third party without the written consent of the disclosing party. The

receiving party shall protect the Proprietary Information of the disclosing

party with the same degree of protection and care the receiving party uses to

protect its own Proprietary Information, but in no event less than reasonable

care.  With regard to Trade Secrets, the

obligations in this Section shall continue for so long as such information

constitutes a Trade Secret under applicable law.  With regard to Confidential Information, the obligations in this

Section shall continue for the term of this Agreement and for a period of two

(2) years thereafter.




 




6.3.      Exclusions.  Nothing in this Section shall prohibit or

limit the receiving party’s use of information if (i) at the time of disclosure

hereunder such information is generally available to the public; (ii) after

disclosure hereunder such information becomes generally available to the

public, except through breach of this Agreement by the receiving party; (iii)

the receiving party can demonstrate such information was in its possession

prior to the time of disclosure by the disclosing party; (iv) the information

becomes available to the receiving party from a third party which is not

legally prohibited from disclosing such information; (v) the receiving party

can demonstrate the information was developed by or for it independently

without the use of such information; (vi) disclosure is required under

applicable law or regulation; or (vii) such information consists of information

in non-tangible form, including ideas, concepts, know-how or techniques, which

is retained in the mind of a person or persons who has had access to the

Proprietary Information, and who has made no effort to refresh his or her

recollection in anticipation of or in conjunction with the use thereof

(“residuals”). Neither party shall have any obligation to limit or restrict the

assignment of such persons or to pay royalties for any work resulting from the

use of residuals. Notwithstanding the foregoing, the term “residuals” shall not

mean any information the use or creation of which would infringe the other

party’s now existing or future copyrights or patents, nor shall this provision

be deemed to grant to either party a license under the other party’s copyrights

or patents.




 




7.          REPRESENTATIONS AND

WARRANTIES.




 




7.1.      Mutual.  Each party warrants and represents that

it has the authority to enter into this Agreement and that its performance of

this Agreement will not violate any agreement by which it is bound.




 




7.2.      Services.  Extreme Logic warrants to Firstwave that

the Services with respect to each Deliverable will be performed in a

professional and workmanlike manner.




 




7.3.      Disclaimer.   Other

than as expressly set forth above, Extreme Logic does not make any express or

implied warranties, conditions, or representations to Firstwave or any other

party with respect to the Services, Extreme Logic Components, Deliverables or

otherwise regarding this Agreement, whether oral or written, express, implied

or statutory.  Without limiting the

foregoing, any implied warranty or condition of merchantability or fitness for

a particular purpose is expressly excluded and disclaimed. Without

limiting the foregoing, Extreme Logic does not warrant that the Deliverables

will be uninterrupted or error-free. Firstwave acknowledges and agrees that it

has had the opportunity to periodically review the Deliverables and upon

Acceptance of each such Deliverable, hereby acknowledges such Deliverable meets

Firstwave’s requirements.




 




8.          LIMITATION OF

LIABILITY.  Both parties acknowledge and agree that in no event shall either

party or any of their respective officers, directors, employees, shareholders,

agents or representatives be liable to the other party, any of its affiliates

or any other party for any special, indirect, incidental, exemplary or 




 




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consequential damages or loss of goodwill in

any way arising from or relating to this Agreement or resulting from the use of

or inability to use the Deliverables or the performance or non-performance of

any Services, including the failure of essential purpose, even if the parties

have 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 ever

exceed the amount of Fees paid or payable by Firstwave to Extreme Logic with

respect to the Statement of Work under which the claim for damages is made.




 




9.          TERM AND TERMINATION.




 




9.1.      Term.  The term of this Agreement shall commence on

the Effective Date and continue until terminated in accordance with this

Section 9.




 




9.2.      Termination of Individual

Statement of Work.  In the event

that either party hereto materially defaults in the performance of any of its

duties or obligations under a Statement of Work (except for a default in

payment to Extreme Logic as provided below) and does not substantially cure

such default, or commence a cure, within thirty (30) days after being given

written notice specifying the default, then the non-defaulting party may, by

given written notice thereof to the defaulting party, terminate the Statement

of Work as of a date specified in such notice of termination.  Termination of a Statement of Work for cause

shall have no effect upon any other Statements of Work that may be in effect

under this Agreement.




 




9.3.      Termination for Cause.  Either party may terminate this

Agreement at any time upon giving written notice as follows:




 




(a)  In

the event that the other party fails to discharge any obligations or remedy any

default under this Agreement for a period of thirty (30) days after the

notifying party has given the other party written notice specifying such

failure 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 the

parties in writing.




 




9.4.      Termination for Nonpayment.  Notwithstanding the foregoing, in the event

that Firstwave defaults in the payment when due of any amount due to Extreme

Logic hereunder and does not cure such default within forty-five (45) days of

due date of invoice, then Extreme Logic may, by giving written notice thereof

to Firstwave, terminate the Agreement or Statement of Work as of a date

specified in such notice of termination.




 




9.5.      Termination Upon Completion

of all Statements of Work.  If there

are no outstanding Statements of Work under which Services are still being

provided by Extreme Logic to Firstwave, upon thirty (30) days written notice to

the other, either party may terminate this Agreement as of the date specified

in such notice of termination.




 




9.6       Termination by Firstwave.  Firstwave may elect, by so notifying Extreme Logic, to terminate the

Services provided under any Statement of Work and/or this Agreement (i) in the

event of a material breach by Extreme Logic to perform Services as specified in

Sections 9.2 or 9.3, or (ii) by delivering written notice thirty (30) days

prior to the effective termination date. 

Firstwave shall pay Extreme Logic for all Services performed by Extreme

Logic prior to the termination date. 

Upon any termination of this Agreement by Firstwave other than as

provided under Sections 9.2 (if breach of the applicable Statement of Work

substantially impairs the overall value of the Agreement to Firstwave) or 9.3, then

any unpaid balance of the Total Fee Requirement shall accelerate and become

immediately due and payable.




 




9.7       Post-Termination

Obligations. If Extreme Logic terminates this Agreement pursuant to 9.3 or

9.4, then any unpaid balance of the Total Fee Requirement shall accelerate and

become 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 Logic

prior to the date of termination; (b) each party shall immediately return to

the other all such Proprietary Information and other property of the other

party (except for any Deliverables for which payment has been received and

Derivative Works thereof) and all copies thereof and shall provide the other

party 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 in

full force and effect, as well as any other provisions of this Agreement which

by their terms are deemed to survive termination hereof.




 




10.       DISPUTE RESOLUTION AND

ARBITRATION.  In the event of a dispute that is not

settled between the project managers for the parties, then the parties shall

escalate the dispute to resolution by the immediate superiors of such project

managers. If the dispute is not resolved after following these procedures, both

parties 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 selected

by the American Arbitration Association (“AAA”).  The arbitration shall be conducted in Atlanta, Georgia in

accordance with the rules, regulations and procedures of the AAA, and the

decision of the arbitration panel shall be final and binding on both parties.

Notwithstanding the foregoing, either party may apply to any court of competent

jurisdiction for injunctive or other equitable relief as may be necessary to

protect such party’s intellectual property rights and Proprietary Information.




 




11.       NONSOLICITATION.  Neither party will, for a period equal

to the earlier of (i) one (1) year after a person has ceased to work for the

other party or (ii) the term  of this

Agreement and one (1) year thereafter, hire or, directly or indirectly,

contract with or solicit, for itself or any third party, any person employed by

the other party to leave the applicable employment or to provide, independently

or with others, similar services unless prior written authorization is obtained

from the other party.  In addition,

unless otherwise agreed in writing, should either party hire an employee of the

other party (the “Former Employee”) in violation of this Section 11, the hiring

party shall pay the other party a placement fee amounting to the Former

Employee’s salary and benefits for the prior twelve (12) month period.




 




12.       COMPLIANCE WITH LAWS.




 




12.1.    General.  Firstwave will strictly comply with all

applicable laws and regulations relating in any way to the use of the

Deliverables, and will not use the Deliverables in a way that violates the

rights of any third party, including, without limitation, any rights of privacy

or publicity.




 




12.2.    Export Compliance. Firstwave

acknowledges and agrees that the Deliverables and technical data received from

Extreme Logic may be subject to export or import controls. Without limiting the

generality of Section 12.1 Firstwave agrees (a) to comply with any and all

applicable laws, regulations, and rulings on exportation and importation

regarding its use of the Deliverables and (b) that the Deliverables (or any

technical information related to Extreme Logic’s products) shall not be

exported or re-exported (i) to any countries included in prohibited Country

Groups of the U.S. Export Administration Regulations or as otherwise prohibited

under such regulations at the time of export or re-export; (ii) to national

citizens of such prohibited Country Groups; or (iii) in violation of this Agreement.




 




13.       GENERAL PROVISIONS.




 




13.1.    Relationship of Parties.  Extreme Logic is an independent provider of

information technology services, and this Agreement shall not be construed to

create any employment relationship, partnership, joint venture or agency

relationship or to authorize any party to enter into any commitment or

agreement binding on the other party. 

Firstwave shall have the sole and full responsibility for determining

its business requirements and that the Specifications in the Statement of Work

will meet its needs.  Extreme Logic

shall bear sole responsibility for payment of compensation to its

personnel.  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, unemployment

insurance, health or disability insurance, retirement benefits, or other

welfare or pension benefits, if any, applicable to such personnel as employees

of Extreme Logic.  Extreme Logic shall

defend, indemnify, and hold harmless Firstwave, its officers, directors,

employees and agents, from and against any claims, liabilities or expenses

relating to such compensation, tax, insurance or other benefits.  Notwithstanding any other workers’

compensation or insurance policies maintained by Firstwave, Extreme Logic shall

procure and maintain workers’ compensation coverage sufficient to meet the

statutory requirements of every jurisdiction in which Extreme Logic’s personnel

are engaged in providing Services for Firstwave.




 




13.2.    Binding Effect.  This Agreement shall be binding upon and

inure to the benefit of the parties, their legal representatives, permitted

transferees, successors, and assigns as permitted by this Agreement.




 




13.3.    Assignment.  This Agreement and all rights and obligations

may not be assigned in whole or in part by either party without the prior

written consent of the other, except that this Agreement may be assigned by

either party without consent to another entity in connection with (i) a reorganization,

merger, consolidation, acquisition or other restructuring involving all or

substantially 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 a

public placement offering, excluding the Restricted Entities identified in the

Source Code License Agreement executed on even date herewith.  In the event Extreme Logic desires to assign

any rights or obligations hereunder to any of the Restricted Entities, Extreme

Logic shall first obtain the written consent of an authorized representative of

Firstwave.




 




13.4.    Force Majeure.  Except for any payment obligations

hereunder, neither Extreme Logic nor Firstwave shall be liable for failure to

perform any of its respective obligations hereunder if such failure is caused

by an event outside its




 




4





























 




reasonable

control, including, but not limited to, an act of God, war, or natural

disaster.




 




13.5.    Remedies.  Both parties acknowledge that Sections 5 and

12 and each provision in this Agreement providing for the protection of each

party’s copyrights, Proprietary Information and other proprietary rights are

material to this Agreement.  Both

parties agree that any threatened or actual breach of Sections 5 or 12 and

their respective copyrights, Proprietary Information or other proprietary

rights by the other party shall constitute immediate, irreparable harm for

which monetary damages are an inadequate remedy and for which equitable

remedies may be awarded by a court of competent jurisdiction. Unless otherwise

stated in this Agreement, all remedies provided for in this Agreement shall be

cumulative and in addition to, and not in lieu of, any other remedies available

to either party, whether at law or in equity or otherwise.




 




13.6.    No Waiver.  No delay or failure in exercising any right

hereunder and no partial or single exercise thereof shall be deemed to

constitute a waiver of such right or any other rights hereunder.  No consent to a breach of any express or

implied term of this Agreement shall constitute a consent to any prior or

subsequent breach.




 




13.7.    Severability.  If any provision hereof is declared

invalid by a court of competent jurisdiction, such provision shall be

ineffective only to the extent of such invalidity, so that the remainder of

that provision and all remaining provisions of this Agreement shall be valid

and enforceable to the fullest extent permitted by applicable law. Should any

provision of this Agreement require judicial interpretation, the parties agree

that the court interpreting or construing the same shall not apply a

presumption that the terms of this Agreement shall be more strictly construed

against one party than against another because the parties participated equally

in preparing and negotiating this Agreement.




 




13.8.    Notices. All notices

required by or relating to this Agreement shall be in writing and shall be sent

to the parties to this Agreement at their addresses set forth herein or to such

other 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 receipt

or 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 and

construed in accordance with the laws of the State of Georgia, USA, without

regard to its rules regarding conflict of laws.




 




13.10.     Entire Agreement.  This Agreement and the Statement(s) of Work attached hereto and

the Wildcat Matrix document attached hereto 

represent the entire understanding between the parties hereto with

respect to the subject matter set forth herein, and supersede all negotiations,

agreements, contracts, commitments and understandings, both verbal and written

between Extreme Logic and Firstwave.  No

modifications, additions, or amendments to this Agreement shall be effective

unless made in writing as an addendum to this Agreement and signed by duly

authorized representatives of the parties. 

If a purchase order or similar document is required by Firstwave, the

parties agree that it will not contain any additional terms and that if there

are any such terms they will not become a part of the Agreement between the

parties. Once signed, both parties agree any reproduction of this Agreement

made by reliable means (for example, photocopy or facsimile) is an original

unless prohibited by local law.




 




13.11.     Control. 

If there is any difference between the terms and conditions of any

Statement of Work attached hereto and any portion of this Agreement, the terms

of this Agreement shall control unless expressly superceded in the terms of the

applicable Statement of Work.




 




14.       INDEMNIFICATION.




 




(a)   Extreme

Logic shall indemnify and hold Firstwave harmless against any damages, cost and

expenses arising out of any suit, claim, or proceeding (collectively referred

to as a “Claim”) alleging that the Services, Extreme Logic Components or

Deliverables infringes a third party’s patent, copyright, trademark or trade

secret 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 and

control all defense, settlement or compromise negotiations; (iii) Firstwave

provides Extreme Logic with full information and assistance that may be

reasonably required to defend any such Claim. 

Extreme Logic shall have no obligation or liability with respect to any

Claim based upon (i) any Services, Extreme Logic Components or Deliverables

which has been altered, modified or revised by any party other than Extreme

Logic where such alteration, modification or revision is an integral part of

the alleged infringement, (ii) the combination, operation or use of any

Services, Extreme Logic Components or Deliverables with products not furnished

by Extreme Logic when such combination is part of any allegedly infringing

process and without such combination there would be no alleged infringement, or

(iii) for patent claims, infringing Deliverables created by Extreme Logic

pursuant to Firstwave’s express requirements.




 




(b)   If the

Services, Extreme Logic Components or Deliverables become, or in Extreme

Logic’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) provide

Firstwave a replacement or modification thereof that is non-infringing and

contains materially similar functionality. 

If neither of the foregoing alternatives is reasonably available to

Extreme Logic, then Extreme Logic may terminate this Agreement upon thirty (30)

days written notice to Firstwave, and Extreme Logic shall refund the fees

received by Extreme Logic attributable to the infringing Services, Extreme

Logic Components or Deliverables. Section 14 (a) and (b) states the entire

liability of Extreme Logic with respect to indemnification for patent,

trademark, copyright and trade secret infringement for the Services, Extreme

Logic Components or Deliverables.




 




5





























 




Exhibit

A




Form

of Statement of Work




 




STATEMENT

OF WORK NO.       




 




Agreement No

                                




 




This

Statement of Work is attached to and made a part of the Firstwave Agreement

(“Agreement”) between Extreme Logic, Inc. (“Extreme Logic”) and the Firstwave

indicated below (“Firstwave”). Except as specifically stated herein, each

capitalized term used in this Statement of Work shall have the same meaning as

is 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 Section

3.1 of the Agreement):  




 




 




IN

WITNESS WHEREOF, the parties have caused their duly authorized representatives

to 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





























 




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 Extreme

Logic, Inc. (“Extreme Logic”)

and                                     (“Firstwave”).




 




Firstwave or Extreme Logic shall complete Section 1.  Extreme Logic shall complete the remainder

of the Change Order, except for the approval/rejection portion, which shall be

completed by Firstwave in its sole discretion. 

Each section may be as long or short as the circumstances require.  Additional pages may be attached as

necessary. Except as specifically stated herein, each capitalized term used in

this Change Order shall have the same meaning as is assigned to it in the

Firstwave Agreement executed between the parties or the applicable Statement of

Work.




 




1.             Describe changes,

modifications, or additions to the Services.




 




2.                                       Modifications,

clarifications or supplements by Extreme Logic or Firstwave to description of

desired changes or additions requested in Section 1 above, if any.




 




3.                                       Necessity,

availability and assignment of requisite Extreme Logic personnel and/or

resources to make requested modification or additions.




 




4.                                       Impact

on 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





























 




WILDCAT MATRIX DOCUMENT




 




 




For clarity

purposes, the functionality marked as “supported” is the only functionality

supported by the Software (as defined in the Source Code License Agreement

executed between the parties).




 




 




[Please see

attached]




 




iv





























 




EXTREME

LOGIC




SOURCE

CODE LICENSE AGREEMENT




 




 




This

Source 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.  This

Agreement consists of this Signature Page, the attached Terms and Conditions,

and the attached Exhibits.  In addition

to terms defined elsewhere in this Agreement, capitalized terms shall have the

meanings set forth in “Definitions” Section of the Terms and Conditions.




 




B.            Software Components.  The License granted in this Agreement is for the

software components  in object and

source code forms as described on the attached Software Exhibit (the

“Software”).




 




C.            Fees.  The Fee for

the Software License contained herein is $500,000 payable as follows: $250,000

on execution of this Agreement, and $250,000 on or before October 30, 2002.




 




THIS AGREEMENT, INCLUDING THE ATTACHED TERMS

AND CONDITIONS, AND EXTREME LOGIC’S WILDCAT FRAMEWORK MATRIX (attached hereto;

the “Wildcat Document”) ARE THE COMPLETE AND ENTIRE UNDERSTANDING OF THE

PARTIES REGARDING THIS AGREEMENT.




 




IN WITNESS WHEREOF, Firstwave and Extreme Logic have caused this

Agreement 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





























 




TERMS AND CONDITIONS TO SOURCE CODE LICENSE AGREEMENT




 




 




1.  Software

License Grant. 

During the term and subject to the terms and

condition of this Agreement including, without limitation, Firstwave’s payment of the applicable Fees, Extreme Logic grants Firstwave a

nonexclusive, world-wide, non-transferable license (“License”) to:




 




(i) install, operate and

copy the Software solely in order to carry out the activities permitted under

this Agreement;




 




(ii) modify, enhance and

otherwise prepare Derivative Works based on the Software;




 




(iii) market, publicly

display, demonstrate, sublicense to End Users, duplicate and distribute the

Software (in object code form) and Derivative Works to End Users and otherwise

commercially exploit the same in any manner (except as otherwise provided

herein);




 




(iv) provide the Software

in source code form to those End Users who require the Software source code

solely for the purposes of customizing and maintaining the Software object code

for their internal use and which they licensed from Firstwave;




 




(v) place the Software

source code in escrow as may be reasonably required by End Users and

Firstwave’s resellers;




 




(vi) use the Software to

support End Users and development purposes;




 




(vii) subject to the

restrictions set forth elsewhere in this Agreement, authorize Firstwave’s

employees, contractors and resellers to do any of the foregoing on Firstwave’s

behalf provided they agree in writing to be bound by the Confidentiality and

other provisions of this Agreement protecting Extreme Logic’s rights; and




 




(viii)  to appoint resellers for products containing

the Software, subject to the terms hereof.




 




2.  Ownership;

Reservation of Rights; Exclusions.




 




(a)  All Software are licensed and not sold by

Extreme Logic and, except as expressly set forth in this Agreement, all

ownership rights, including Intellectual Property Rights, in and to the

Software (and all copies thereof) shall remain in and be the sole property of

Extreme Logic.




 




(b)  All ownership rights,

including Intellectual Property Rights, in and to the Derivative Works prepared

by 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 prepared

jointly by the parties or by Extreme Logic for Firstwave shall solely vest in

and be the property of Firstwave  unless

otherwise stated in a services or other written agreement between the parties.




 




(d)  The parties hereto grant no

rights hereunder by implication, estoppel or otherwise, except for those

expressly granted herein; the parties retain and reserve any and all rights not

expressly granted herein.  No rights or

licenses in either party’s trademarks are granted under this Agreement.




 




(e)  Firstwave agrees to cause

all Software End Users to execute an end user license agreement (“EULA”) as a

condition for granting them a license or sublicense.  The EULA shall grant to End Users a limited license or sublicense

to use the Software for the internal business purposes of such End Users.  The EULA shall prohibit End Users from

reverse engineering, disassembling, or decompiling the Software.




 




(f)  Subject to the further

restrictions set forth in Section 3(c) below, Firstwave may disclose or

otherwise provide access to the Software source code to  a third party software or computer

consultant provided that such person or entity has agreed in writing to be

bound by the confidentiality and other provisions of the Agreement protecting

Extreme Logic’s rights.




 




3. 

Delivery of Software; Semi-Exclusivity.




 




(a)  Extreme Logic will promptly

deliver the Software to Firstwave on a CD (including all source code) upon

receipt of Firstwave’s payment of the applicable Fees.




 




(b)  Subject to Firstwave’s full

payment of the applicable Fees, for a period of twenty-four  (24) months from the Effective Date, Extreme

Logic agrees not to enter into a substantially similar license agreement

involving the Software with the entities set forth in the attached Restricted

Entities Exhibit  (collectively the

“Restricted Entities”).  The foregoing

sentence shall not prohibit Extreme Logic from performing services to the

Restricted Entities in any manner unless otherwise agreed by the parties in

writing.




 




(c)  For a period of twelve (12)

months from the Effective Date, Firstwave agrees not to provide access to the

source code for the Software to any third party contractor that provides

services competitive to Extreme Logic unless pre-approved in writing by Extreme

Logic, with such approval not to be unreasonably withheld.




 




4. 

Fees and Payment; CareCentric Credit.




 




(a)           Firstwave agrees to

pay all Fees as set on the Signature Page. 

Except as expressly set forth in this Agreement, all Fees are

non-refundable in nature.




 




(b)           For each dollar

actually paid by CareCentric, Inc. by September 30, 2002 for a source code

license for the Software, Extreme Logic will issue Firstwave a corresponding

credit for any payments hereunder.




 




(c)           Any amounts payable

hereunder which remain unpaid more than 45 days after the due date shall be

subject to a late charge equal to one and one half percent (1.5%) per month

from the due date until such amount is paid.




 




(d)           All Fees are

exclusive of any taxes, assessments or duties that may be assessed upon the

Software or License granted under this Agreement.  Such taxes do not include taxes based upon Extreme Logic’s

income.




 




5.  Confidentiality.




 




5.1    The parties acknowledge that in the performance of this

Agreement each party may disclose to the other party Proprietary

Information.  Each party shall use

Proprietary Information of the other party only for the purposes of this Agreement and,

except as set forth in this Agreement, shall not disclose such Proprietary

Information to any third party, without the other party’s prior written

consent. The disclosure of the Proprietary Information hereunder does not

confer any license, interest, or rights of any kind in the Proprietary Information

to the receiving party, except as provided under this Agreement.  The receiving party shall protect the

Proprietary Information with the same degree of protection and care it uses to

protect its own Proprietary

Information, but in no event less than reasonable care.  With regard to Trade Secrets, the

obligations in this Section shall continue for so long as such information

continues to be a Trade Secret.  With

regard to Confidential Information, the obligations in this Section shall

continue for the term of this Agreement and for two (2) years thereafter. Each

party shall be responsible for any breach of this Agreement by its contractors

and shall obtain confidentiality agreements with such contractors consistent

herewith.




 




5.2    Nothing in this Section shall prohibit or limit the use

of information (i) if at the time of disclosure hereunder such information is

generally available to the public; (ii) if after disclosure hereunder such

information becomes

generally available to the public, except through breach of this Agreement;

(iii) if the receiving party can demonstrate such information was in its

possession prior to the time of disclosure and was not acquired directly or

indirectly from the other party or its affiliates; (iv) if the information becomes

available to the receiving party from a third party which is not legally

prohibited from disclosing such information, provided such information was not

acquired 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 or

regulation.




 




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

Information”




 




2





























 




means Trade

Secrets and Confidential Information; (ii) “Trade Secrets” means trade secrets

as defined under Georgia law, and (iii) “Confidential Information” means

information that is of value to its owner and is treated as confidential other

than Trade Secrets.  Without limiting the foregoing, all pricing

information contained in this Agreement shall constitute Proprietary

Information.  Without limiting the

foregoing, the Software shall be considered Extreme Logic’s Proprietary

Information.




 




5.4           Except as otherwise agreed

by the parties in writing, neither party shall disclose the terms or existence

of this Agreement except (i) as required by applicable law or regulation, (ii)

to its employees, agents and business associates with a need to know such

terms, or (iii)

in connection with a potential merger or sale of all or substantially all of

its assets; provided that the receiving party agrees in writing to be bound by

the restrictions of this Agreement.




 




6. Warranties; Limitations.




 




(a)           Extreme Logic warrants to Firstwave

that it is the owner of the Software and has the right to grant the License

granted herein and the Software does not and shall not infringe any third

party’s Intellectual Property Rights. 

Firstwave’s sole remedy and Extreme Logic’s sole liability for any

breach of this warranty shall be the remedies set forth in Section 15 below.




 




(b)           The parties agree and acknowledge

that the Software is comprised of software code components, is not a

stand-alone application, and has no applicable documentation.  EXCEPT AS SET FORTH IN Section 6(a), EXTREME

LOGIC DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND

CONDITIONS WITH RESPECT TO THE SOFTWARE, PROVIDED HEREUNDER OR OTHERWISE

REGARDING 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.  Limitation

of Liability.




 




(a)           Except as expressly set forth in this

Section and the indemnification provided in Section 15, neither party or their

respective 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 connection

with this Agreement and even if the parties have been notified of the

possibility or likelihood of such damages occurring, regardless if such damages

are based in contract, tort, warranty, negligence, strict liability, products

liability or otherwise.




 




(b)           Except as expressly set forth in this

Section and the indemnification provided in Section 15, in no event will the

total liability of Extreme

Logic for any damages incurred by Firstwave ever exceed the Fees

actually paid by Firstwave to Extreme Logic

under this Agreement, regardless of the form of action, whether based in

contract, tort, warranty, negligence, strict liability, products liability or

otherwise.




 




(c)           Except as expressly set forth in this

Section, in no event will the total liability of Firstwave for any damages

incurred by Extreme

Logic ever exceed the amount of Fees payable to Extreme Logic under this Agreement, regardless of the form of

action, whether based in contract, tort, warranty, negligence, strict

liability, products liability or otherwise.




 




(d)           The limitations of sub-sections (a) –

(c) of this “Limitation of Liability” Section shall not apply to (i) any breach

of the “Confidentiality” Section of this Agreement by either party, (ii) any

breach of the “Software License” (Section 1) of this Agreement; or (iii) any

violation of either party’s Intellectual Property Rights and the related

indemnification provision.




 




8.  Term and

Termination.




 




(a)  This Agreement shall be effective as of the

Effective Date and shall remain in effect until terminated as provided in this

Section.




 




(b)  In addition and without prejudice to any

other remedies, the parties shall have the right to terminate this Agreement as

provided below:




 




(i)            if the other party commits a

material breach of this Agreement and such breach remains uncured thirty

(30)  days after written notice of such

breach is delivered to the other party or such longer period as may be agreed

upon 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.  survive

the termination of this Agreement and remain binding upon and for the benefit

of the parties, their successors (including without limitation successors by

merger) and permitted assigns;




 




(ii)             rights of termination are without

prejudice to any remedies available to the parties under this Agreement for

breach, at law or in equity;




 




(iii)            if Extreme Logic terminates this

Agreement pursuant to Section 8(b), all Fees that are due and payable shall

survive termination of this Agreement and remain payable in accordance with the

terms hereof;




 




(iv)            if Firstwave terminates this

Agreement pursuant to Section 8(b), no further Fees shall be due or payable

hereunder;




 




(v)             all End User sublicense granted by

Firstwave pursuant to the terms hereof shall survive termination;




 




(vi)            the License rights granted in

Section 1(iii) shall terminate but all other License rights shall remain in

full force and effect.




 




10.  Intentionally Left Blank.




 




11. 

Dispute Resolution.  This Agreement shall be exclusively construed, governed and

enforced under the laws of the U.S. and the State of Georgia (without regard to

rules governing conflict of laws). The parties agree that the United Nations

Convention on Contracts for the International Sale of Goods shall not apply in

any respect to this Agreement or the parties. 

The exclusive venue for any dispute related to this Agreement shall be

in a court of competent jurisdiction located in the State of Georgia.




 




12.  No

Software Support Services.




 




The parties acknowledge and agree that

Extreme Logic has no obligation to provide any the support or

maintenance 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 any

third party software, hardware or other equipment which may be required to

utilize the Software.




 




14. 

Miscellaneous.  Notwithstanding

the content

of either party’s purchase order, invoice or any similar document or record

relating to the subject matter of this Agreement, the terms of this Agreement

shall govern and any conflicting, inconsistent, or additional terms contained

in such documents shall

be null and void.  All communications

required or otherwise provided under this Agreement shall be in writing and

shall be deemed given when delivered (i) by hand, (ii) by registered or

certified mail, postage prepaid, return receipt requested; (iii) by a

nationally recognized overnight courier service to the address set forth on the

Signature Page and addressed to the president, with a copy to Chief Financial

Officer for each party.  Neither party

may assign its rights, duties or the License under this Agreement

without the prior written consent of the other party; provided that either

party may freely assign this Agreement in conjunction with a sale of all or

substantially all its assets, a merger or similar transaction.  Any assignment in violation of this Section

shall be void and of no effect. This Agreement shall be binding upon and inure

to the benefit of the parties and their successors and permitted assigns.

Headings of particular Sections are inserted only for convenience and are not

to be used to

define, limit or construe the scope of any term or provision of this

Agreement.  The relationship of the

parties hereto shall be that of independent contractors. Nothing herein shall

be construed to create any partnership, joint venture, agency, or similar

relationship or to subject the parties to any implied duties or obligations

respecting the conduct of their affairs that are not expressly stated

herein.  Should any provision of this

Agreement require judicial interpretation, the parties agree that the court

interpreting or construing the same shall not apply a presumption that the

terms of this Agreement shall be more strictly construed against one party than

against another.  This Agreement may be

executed in one or more counterparts, each of which shall for all purposes be deemed

to be an original and all of which shall constitute the same instrument. In

case any one or more of the provisions of this Agreement should be invalid,

illegal or unenforceable in any respect, the validity, legality and enforceability of

the remaining provisions contained herein shall not in any way be affected or

impaired thereby. This Agreement constitutes the entire agreement between the

parties concerning the subject matter hereof and supersedes all written or oral

prior agreements

or understandings with respect thereto. 

No modification, extension or waiver of or under this Agreement shall be

valid unless made




 




3





























 




in writing

and signed by an authorized representative of the party sought to be charged

therewith.  No written waiver shall

constitute, or be construed as, a waiver of any other obligation or condition

of this Agreement.  Neither party shall

be liable for loss or damage resulting from any cause beyond its reasonable

control.  Except as may be expressly set

forth herein, no provision of this Agreement shall be construed to provide or

create any third party beneficiary right or any other right of any kind in any

third party.  The Exhibits attached to

this Agreement or

subsequently added hereto by mutual written consent of the parties are

incorporated into this Agreement for all purposes.




 




15. 

Intellectual Property Indemnification.  Extreme Logic will defend, indemnify and

hold harmless the Firstwave against claims that the Software infringes third

party’s Intellectual Property Right that is enforceable in the U.S.(via treaty

or otherwise).  If Extreme Logic determines

that the affected Software is likely to or if the Software is determined in a

court of competent jurisdiction to infringe an Intellectual Property Right that

is enforceable in the U.S. (via treaty or otherwise), Extreme Logic, using

shall use commercially reasonable efforts, to either:  (a) first, replace such affected Software; (b) second, modify

such affected Software to make it non–infringing; or (c) if, options (a)

and (b) are not reasonably available despite Extreme Logic’s commercially

reasonable efforts,  then Extreme Logic

may require the return of such affected portion of the Software and termination

of all rights thereto from Firstwave, in which case Extreme Logic  agrees to refund a pro rata portion of the

license fees paid by Firstwave for the affected portion of the Software.  This right of indemnification set forth in

this section only applies if: (i) Firstwave provides Extreme Logic notice of

such claim or cause of action upon which Firstwave intends to base a claim of

indemnification hereunder within thirty (30) days of Firstwave’s receipt of the

claim or cause of action, (ii) Extreme Logic is given sole control of the

defense and all related settlement negotiations relating to such claim or

action, and (iii) Firstwave provides reasonable assistance and cooperation at

Extreme Logic’s reasonable expense to enable Extreme Logic  to defend the action or claim

hereunder.  Extreme Logic has no obligation

to Firstwave under this section if (A) the claim is based on either changes or

modifications to the Software made by Firstwave, or its combination, operation

or use with any product, software, data, or apparatus not provided, specified

or approved in writing by Extreme Logic. This section states Extreme Logic ‘s

entire liability and Firstwave’s exclusive remedy for any claim of infringement.




 




16.          Definitions.  In addition to other terms defined elsewhere

in this Agreement, the following terms shall have the following meanings:




 




(a)   “Derivative

Works” shall have the meaning set forth in the United States

Copyright 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 or

to the Software or Derivative Works.




 




(c)    “Fees” means all fees payable by Firstwave

to Extreme Logic and identified on the Signature Page under this Agreement in

U.S. currency.




 




(d)   “Intellectual Property Rights” means all

rights under patent, copyright, trade secret, trademark, confidential

information, or other property right.




 




(e)   “License(s)” mean all license(s) granted to

Firstwave by Extreme Logic under this Agreement.




 




4





























 




SOFTWARE EXHIBIT




 




 




The Software is

composed of the following software components (all third party software is the

responsibility of Firstwave):




 




Process

Designer




 




The process designer is a visio-based tool process

development tool. It consists of a specific stencil which contains basic

shapes:




 




Other types of nodes can be defined. The tool will

save out the process by transforming the process into an XML document, which

then in turn is stored into a normalized SQL2000 database.




 




Process

Engine (.NET)




 




The Engine is capable of lifting a workflow out of the

database, load the node-corresponding code (method) and “run” the process. The

engine will take special action based on the node-type it encounters:




 




System

Services




 




•                  Security

component (.NET)




 




The

Security Services component provides a simple interface to perform encryption

and Base64 encoding of strings.  Also,

it provides a secured dictionary that can contain either encrypted or clear

text entries, this feature is utilized by the Configuration Services

component.  Finally, the Security

Services component provides a facility to detect information about a user

including supervisor, groups and roles from either an XML file or Active Directory

security provider.




 




•                  Logging

services component (.NET)




Logging services provides the ability to write trace

and error information to specified logging repositories.  These repositories include the output

debugging facility, the event log or an MQ Series queue.




 




•                  Configuration

services component (.NET)




The configuration services component enhances the

Microsoft.Net configuration facility to allow configuration entries to be

separated on a per client basis. 

Default configuration entries can be overridden for a specific clients,

if desired.  Additionally, entries can

be encrypted in the configuration files for an extra level of security.  Configuration entries are simple name/value

pairs that allow the value to be clear text or encrypted and Base64 encoded.




 




•                  Context

services component (.NET)




Context Services provides a runtime access to call

chain context information.   It provides

a wrapper for other consumers (E.g. Logging Services, Configuration Services or

business methods) to have access to the context information.  Consumers have the ability to create the

context information and request individual context fields.  A key, called the ContextMoniker, is passed

from method to method enabling access to any individual or set of context

fields by providing the ContextMoniker to Context Services through a simple

function call.




 




•                  Caching

services component (.NET)




Caching services simply wraps the Microsoft.Net

System.Web.Caching.Cache class to ensure it is available in both the Web

environment and a stand-alone application environment.




 




.NET Profiler

for applications (.NET)




 




 




XML stored

procedure code generator




 




5





























 




Code generation utility for use with SQL Server 2000 to create

SELECT...FOR XML EXPLICIT (and AUTO) stored procedures based on a database’s

table names, field names, and foreign keys. A utility will generate C# DAL code

from XML metadata.




 




Generated C#

DAL code from XML Metadata




 




6





























 




RESTRICTED ENTITIES EXHIBIT




 




 




Amdocs Limited




Amdocs ClarifyCRM eFrontOffice v. 10.2




2570 Orchard Parkway




San Hose, CA 95131




Toll:        (800) 733-8182




Tel:         (408) 965-7816




Fax:         (408) 965-4653




Contact: Jane Paolucci




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





























 




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





























 




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




 




9





























 




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





























 




WILDCAT DOCUMENT




 




 




For clarity

purposes, the functionality marked as “supported” is the only functionality

supported by the Software as set forth in the Wildcat Document.




 




 




[Please see

attached]




 




11