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EXHIBIT 10.2    
  


"CONFIDENTIAL TREATMENT

REQUESTED UNDER 17 C.F.R. SS. 200.80

(B)(4), 200.83 AND 230.406"  



Commercially

Confidential  




THE FOOTBALL ASSOCIATION LIMITED  


 

-and-  


 

FIRSTWAVE TECHNOLOGIES UK LTD  


 

SOFTWARE DEVELOPMENT AND LICENCE AGREEMENT  





  
 

    TABLE OF CONTENTS    
  



	1.	 	INTERPRETATION	 	1
	2.	 	THE FA RESPONSIBILITIES	 	1
	3.	 	FIRSTWAVE SERVICES	 	2
	4.	 	DELIVERY OF SOFTWARE TO THE FA	 	2
	5.	 	OWNERSHIP AND SOURCE CODE	 	3
	 	 	5.1	 	Ownership of Intellectual Property Rights	 	3
	 	 	5.2	 	Source Code Escrow	 	3
	 	 	5.3	 	Release of FIRSTWAVE Escrow Materials	 	3
	 	 	5.4	 	Limited Licence to FIRSTWAVE Escrow Materials	 	4
	 	 	5.5	 	Confidentiality of FIRSTWAVE Escrow Materials	 	4
	6.	 	CHARGES AND OTHER FINANCIAL PROVISIONS	 	4
	 	 	6.1	 	Charges to The FA	 	4
	 	 	6.2	 	VAT	 	4
	 	 	6.3	 	CLAS Royalty Payments	 	5
	 	 	6.4	 	CLAS Royalty Payment Terms	 	5
	 	 	6.5	 	Audit Rights	 	5
	7.	 	WARRANTIES	 	5
	 	 	7.1	 	Provision of Services	 	5
	 	 	7.2	 	Personal Data	 	6
	 	 	7.3	 	Authority and Approval	 	6
	 	 	7.4	 	Third Party Software	 	7
	 	 	7.5	 	Exclusion of Warranties	 	7
	8.	 	REMEDIES AND LIABILITIES	 	7
	 	 	8.1	 	IPR Indemnity	 	7
	 	 	8.2	 	Remedies Cumulative	 	8
	 	 	8.3	 	Waiver	 	8
	 	 	8.4	 	Limits of Liability	 	8
	 	 	8.5	 	Force Majeure	 	9
	9.	 	TERMINATION	 	9
	 	 	9.1	 	Grounds for Early Termination	 	9
	 	 	9.2	 	Breach	 	10
	 	 	9.3	 	Change of Control	 	10
	 	 	9.4	 	Accrued Rights and Remedies	 	10
	 	 	9.5	 	Effect of Termination	 	10
	 	 	9.6	 	Survival of Obligations	 	11
	10.	 	MISCELLANEOUS	 	11
	 	 	10.1	 	MEDIATION	 	11
	 	 	10.2	 	Confidentiality	 	11
	 	 	10.3	 	Publicity	 	12
	 	 	10.4	 	Insurance	 	13
	 	 	10.5	 	Communications	 	13
	 	 	10.6	 	Amendments	 	13
	 	 	10.7	 	Transfer, Subcontracting, Role of a Prime Contractor	 	13
	 	 	10.8	 	Further Assurance	 	14
	 	 	10.9	 	Severability	 	14
	 	 	10.1	0	Governing Law and Jurisdiction	 	14
	 	 	10.1	1	Entire Agreement	 	14
	 	 	10.1	2	Relationship of the Parties	 	14
	 	 	10.1	3	Third Party Rights	 	14
	 	 	10.1	4	No Poaching	 	14
	SCHEDULE 1	 	16
	 	 	DEFINITIONS	 	16
	SCHEDULE 2	 	19
	 	 	THE SERVICES	 	19
	SCHEDULE 3	 	20
	 	 	ACCEPTANCE PROCEDURES	 	20
	SCHEDULE 4	 	22
	 	 	CLAS DELIVERABLES	 	22
	SCHEDULE 5	 	23
	 	 	FIRSTWAVE SOFTWARE LICENSE AGREEMENT	 	23









   THIS AGREEMENT is made the 23 day of December 2002 


BETWEEN:


	(1)
	THE FOOTBALL ASSOCIATION LIMITED, company number 77797 whose registered office is at 25 Soho Square, London, W1D 4FA
("The FA"); and



	(2)
	FIRSTWAVE TECHNOLOGIES UK LIMITED company number 3531967 whose registered office is at The Pavilion, 1 Atwell Place, Thames
Ditton, Surrey KT7 0NF ("FIRSTWAVE"). 



RECITALS:



	(A)
	On
2nd September 2002, The FA and FIRSTWAVE entered into an agreement for FIRSTWAVE to license certain software (the "Licensed Program") to The FA, to implement
and support this software and to train users of the software (the "Software Licence Agreement", attached hereto as Schedule 5 and incorporated herein by reference).



	(B)
	Since
September, with input and assistance from The FA, FIRSTWAVE have provided The FA with professional services to analyse the requirements for County and League Administration
Systems (CLAS) and have designed a solution documented in the CLAS Specification.



	(C)
	FIRSTWAVE
will develop the CLAS software in accordance with the terms set out below. 




OPERATIVE PROVISIONS:  


1.    INTERPRETATION  


        1.1  In
this Agreement: 



        1.1.1    the
terms and expressions set out in Schedule 1 or as may be defined in Schedule 5 shall have the meanings set out there; 


        1.1.2    the
masculine shall include the feminine and the neuter, and person shall mean corporation, partnership, firm, unincorporated association and natural person; and 


        1.1.3    the
singular shall include the plural and vice versa. 




        1.2  A
reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or
instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof. 



        1.3  Headings
are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement. 


        1.4  References
in this Agreement to Recitals, Clauses, Schedules, and Paragraphs are, unless otherwise provided, references to the recitals, clauses and Schedules of this
Agreement and to the paragraphs of the Schedules to this Agreement. 


        1.5  In
the event and to the extent only of any conflict or inconsistency between the provisions of this Agreement and the provisions of any document referred to or
referenced in this Agreement, the provisions of this Agreement shall prevail. 


2.    THE FA RESPONSIBILITIES  


        From the date of this Agreement, The FA shall: 



          2.1.    cooperate
with FIRSTWAVE in refining the CLAS Specification for the development, testing, implementation and training of The FA staff to Use CLAS; 



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          2.2.    provide
all necessary information and materials reasonably required by FIRSTWAVE to enable FIRSTWAVE staff to deliver the Services by the Delivery Date; 


          2.3.    respond
promptly to FIRSTWAVE's reasonable request for input and assistance as may be required to deliver the Services by the Delivery Date; 



          2.4.    remit
payment of Charges in accordance with the terms of this Agreement. 




        The
FA acknowledges that timely completion of CLAS will be, in part, determined by The FA's assistance and performance of its obligations and failure to respond to FIRSTWAVE's request
for reasonable input and assistance may be deemed a Default by The FA and may result in the delay of FIRSTWAVE's performance of its Services hereunder. The parties acknowledge that the CLAS
Specification defines a mutually agreeable reporting, escalation and resolution process to address such Defaults. To the extent that FIRSTWAVE's performance of its Services is delayed due to The FA's
Default, then FIRSTWAVE shall not be deemed to be in default and the Delivery Date may be modified to reflect such delay without imposing any penalty on FIRSTWAVE. 


3.    FIRSTWAVE SERVICES  


        3.1  From
the date of this Agreement, and in consideration of the Charges to be paid by The FA, FIRSTWAVE shall perform: 



        3.1.1    the
Development Services, and the Training and Implementation Services, until the Acceptance Date or Termination; and 


        3.1.2    the
Technical Support Services until 31st December 2003. 


in
each case in accordance with the Service Levels set out in Schedule 2. 




        3.2  In
addition to The FA's Licence for the use of the Licensed Programs in accordance with the terms and conditions of the Software Licence Agreement (Schedule 5),
on the Acceptance Date and after FIRSTWAVE's receipt of payment in full for all Charges from The FA, FIRSTWAVE shall grant The FA a non-exclusive, irrevocable, royalty free, licence in
perpetuity, with power to sub-license (1) subcontractors providing services to The FA, and (2) holding companies, affiliated entities and affiliated individuals established
in England for football purposes which are either responsible directly or indirectly for the business activities of The FA, to Use CLAS (together with the Source Code for CLAS) and updates thereto
subject to the terms and conditions of this Agreement. 


        3.3    Changes to CLAS Specifications    


        Any
material changes to the CLAS Specification requested by The FA after execution of this Agreement must be requested by The FA in writing. The parties will utilise the escalation
process described in the CLAS Specification to review the change order request, determine the impact of the requested change on the project, including possible revisions to the CLAS Specification,
change in the Delivery Date and, if appropriate, FIRSTWAVE will reassess the cost of the estimated professional services to undertake such change request. No changes will be undertaken until such time
as the parties have mutually agreed in writing on the expected impact of the change request on the Delivery Date and the additional expense, if any, to implement such change request. 



4.    DELIVERY OF SOFTWARE TO THE FA  


        4.1  FIRSTWAVE
shall deliver a copy of CLAS to The FA in accordance with Schedule 4. The parties specifically agree and acknowledge that time is of the essence in
relation to the Delivery Date. 


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5.    OWNERSHIP AND SOURCE CODE  


        5.1    Ownership of Intellectual Property Rights    


        The
FA agrees that all legal and beneficial ownership of all Intellectual Property Rights in CLAS and the CLAS Documentation, including but not limited to any and all Derivative Works
and updates thereto, shall vest in FIRSTWAVE upon their creation and be the sole and exclusive property of FIRSTWAVE. To the extent that such Intellectual Property Rights do not automatically vest in
FIRSTWAVE, The FA hereby assigns to FIRSTWAVE, including by way of future assignment, all rights, title and interest in such Intellectual Property Rights. The FA will execute and procure that its
agents, servants, employees and contractors execute any additional documents reasonably necessary to vest ownership in FIRSTWAVE or to assist FIRSTWAVE in the application for or registration of such
Intellectual Property Rights. 


        5.2    Source Code Escrow    


        During
the term of this Agreement, FIRSTWAVE agrees that it will maintain a copy of the Source Code for CLAS and the eMarketing and eSales Licensed Programs in usable and accessible
format, along with other necessary documentation associated with such software (the "FIRSTWAVE Escrow Material") in escrow with FIRSTWAVE's Escrow Agent on the basis of the Escrow Agent's standard
"multi-licensee" escrow agreement. Upon the parties' execution of this Agreement and the appropriate escrow agreement among the parties, FIRSTWAVE shall not remove, limit, restrict or in any way
inhibit The FA's access to the FIRSTWAVE Escrow Material following an Authorizing Event, as herein defined, without the prior mutual agreement of the parties. 


        The
FA shall be entitled to receipt of a copy of the Firstwave Escrow Material upon the occurrence of any of the following events (an "Authorizing Event"): 



        5.2.1    FIRSTWAVE
terminates all or substantially all of its ongoing business operations relating to the subject of this Agreement; or 



        5.2.2    FIRSTWAVE
passes a resolution or a court of competent jurisdiction makes an order that FIRSTWAVE be wound up otherwise than for the purpose of bona fide reconstruction
or amalgamation, or a receiver, manager or administrator on behalf of a creditor is appointed in respect of FIRSTWAVE's business or any part thereof, or circumstances arise which entitle a court of
competent jurisdiction or a creditor to appoint a receiver, manager or administrator or which entitle the court otherwise than for the purpose of bona fide reconstruction or amalgamation to make a
winding up order, or FIRSTWAVE is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or FIRSTWAVE is affected in any jurisdiction other than England and Wales
by any matter of substantially similar effect to any of the matters referred to above; or 



        5.2.3    FIRSTWAVE
fails to provide Technical Support Services for CLAS as specified in this Agreement and such failure is not cured within forty-five
(45) days from and after the date written notice is received by FIRSTWAVE from The FA of such failure; or 


        5.2.4    Following
Acceptance of CLAS during the term of this Agreement, The FA delivers ninety (90) days' written notice of Termination of the Technical Support
Services hereunder to FIRSTWAVE and advises FIRSTWAVE of its intent to obtain a copy of the FIRSTWAVE Escrow Materials. 




        5.3    Release of FIRSTWAVE Escrow Materials    


        Upon
the occurrence of an Authorizing Event, Escrow Agent shall release, pursuant to the terms of the escrow agreement, a copy of the FIRSTWAVE Escrow Materials to The FA. 


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        5.4    Limited Licence to FIRSTWAVE Escrow Materials    


        The
use of the FIRSTWAVE Escrow Material subsequent to any Authorizing Event shall be limited solely to The FA and to contractors providing services to The FA and shall be for the sole
purpose of providing The FA with full use of CLAS and the eMarketing and eSales Licensed Programs as contemplated under this Agreement. The costs relating to the escrow agreement shall be paid for by
The FA. Reasonable costs, if any, relating to obtaining access to the FIRSTWAVE Escrow Material following an Authorizing Event shall be paid by The FA. FIRSTWAVE grants to The FA and to contractors
providing services to The FA a nonexclusive, nontransferable, limited licence to use the Source Code form of FIRSTWAVE eMarketing and eSales Licensed Programs to prepare Derivative Works of CLAS as
originally contemplated by this Agreement. 


        For
the avoidance of doubt, FIRSTWAVE's obligation to place Source Code relating to CLAS in escrow and the limited licence grant is without prejudice to its obligations in
Schedule 4 to provide such Source Code and to the full licence granted in respect of CLAS at Clause 3.2. 


        5.5    Confidentiality of FIRSTWAVE Escrow Materials    



        The
FA shall maintain in confidence all FIRSTWAVE Escrow Materials, including but not limited to the Source Code for FIRSTWAVE's Licensed Programs released to The FA pursuant to this
Clause. The FA shall use at least the same degree of care and other security measures as it uses to protect its own confidential technical information in order to guard against any use or disclosure
of such information that is not necessary for The FA to utilise the Escrow Materials. The FA further agrees not to disclose such information to anyone other than employees and contractors who have a
need to know or obtain access to such information in order to perform their duties and who are bound to protect such information as confidential. 


6.    CHARGES AND OTHER FINANCIAL PROVISIONS  


        6.1    Charges to The FA    



        6.1.1    In
consideration of FIRSTWAVE granting the Licences and providing the Services, The FA shall pay to FIRSTWAVE: 



        6.1.1.1    A
non-refundable amount of [++++++++++++++++++++++ (£+++++++)] payable as follows: 



        (A)    [+++++++++++++++++++++++++++++++++++++++++
(£+++++++)] on signature of this Agreement; and 


        (B)    [+++++++++++++++++++++++++++++++++++++
(£+++++++)] on or before March 31st, 2003; and 




        6.1.1.2    [+++++++++++++++++++++++++++++++++++++++++++++++++++++++
(£+++++++)] for the Development Services for CLAS on the Acceptance
Date. 




        6.1.2    The
FA shall, subject to receipt of invoice, pay the Charges (i) in respect of Clause 6.1.1.1(A) above within thirty (30) days of signature of
this Agreement, and (ii) in respect of Clause 6.1.1.1(B) above on or before March 31st, 2003. 




        6.2    VAT    



        6.2.1    The
Charges are stated exclusive of VAT. 


        6.2.2    The
FA shall pay the Value Added Tax on the Charges at the rates and in the manner prescribed by the law from time to time subject to the production by FIRSTWAVE of a
valid tax invoice giving the requisite details of the taxable supply. 



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        6.3    CLAS Royalty Payments    


        In
the event FIRSTWAVE markets, licenses and delivers CLAS or Derivative Works of CLAS to another legal entity in the Sports Vertical, and receives licence fee payments for such
implementation, FIRSTWAVE shall pay to The FA, during the two (2) year period immediately following the Acceptance Date of CLAS by The FA (the "CLAS Royalty Term") an amount equal to
[++++++++percent (++%)] of the Net Revenue received by FIRSTWAVE during the CLAS Royalty Term up to a maximum of
[+++++++++++pounds+(£+++++++++)] (hereinafter the "CLAS Royalty Payment"). For the avoidance of doubt, FIRSTWAVE's obligation to pay the CLAS Royalty Payment shall
terminate upon the expiration of the CLAS Royalty Term. 


        For
purposes hereof, "Sports Vertical" means any legal entity using CLAS or Derivative Works of CLAS for the management of sporting associations or performance of sporting events as its
primary business; and "Net Revenue" means the net licence fees received by FIRSTWAVE for licences granted to third parties to Use CLAS or Derivative Works of CLAS, exclusive of development services,
training and implementation services, technical support services, professional service fees, any other service fees or any taxes related thereto. FIRSTWAVE agrees to allocate fees paid by such third
parties in good faith in a way that does not unfairly reduce the amount of such fees that are allocable to licences for CLAS or Derivative Works of CLAS. Failure by The FA to accept CLAS and pay all
Charges specified in Clause 6.1 to FIRSTWAVE renders this Clause null and void. 


        6.4    CLAS Royalty Payment Terms    


        The
CLAS Royalty Payment for FIRSTWAVE's distribution and licensing of CLAS or Derivative Works of CLAS shall become due thirty (30) days after the conclusion of each calendar
quarter during which FIRSTWAVE has received payment for CLAS software or Derivative Works of CLAS less adjustments for returns. FIRSTWAVE shall furnish The FA with an accounting statement of the CLAS
royalties earned for such calendar quarter together with payment for any amount of royalty shown thereby to be due to The FA. 


        6.5    Audit Rights    


        FIRSTWAVE
will maintain full, accurate relevant records to support payments made to The FA. The records will be retained and made available for one (1) year from the date of the
related payment. If The FA requests, FIRSTWAVE will make these records available either to The FA or to an independent certified public accountant mutually agreeable and compensated (other than on a
contingency basis) by The FA. FIRSTWAVE may remove details of customer names from the records where this is required to protect customer confidentiality. The FA's request will be in writing and The FA
will provide FIRSTWAVE sixty (60) days' prior notice, and will not occur more than once each year. The audit will be conducted during normal business hours at FIRSTWAVE's office and in such a
manner as not to interfere with FIRSTWAVE's normal business activities. Such audit shall be at The FA's expense unless the audit reveals that CLAS Royalty Payments due hereunder have been under-
reported, in which case FIRSTWAVE shall bear the reasonable costs of the audit and promptly pay such under-reported amount to The FA. Any auditor will sign FIRSTWAVE's reasonable confidentiality
agreement. 


7.    WARRANTIES  


        7.1    Provision of Services    



        7.1.1    FIRSTWAVE
warrants to The FA that during the term of this Agreement: 



        7.1.1.1    the
Services shall be performed by appropriately experienced, qualified and trained personnel with all reasonable skill, care and diligence; and 




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        7.1.1.2    it
shall discharge its obligations under this Agreement with all reasonable skill, care and diligence including but not limited to good industry practice; and 


        7.1.1.3    the
CLAS will substantially conform to the CLAS Specification; 




        7.1.2    The
FA warrants to FIRSTWAVE that during the term of this Agreement and while The FA subscribes to FIRSTWAVE's Technical Support Services, The FA will not alter,
modify or change the CLAS software as delivered to The FA by FIRSTWAVE without promptly delivering a copy of all alterations, modifications and changes, in all forms, to FIRSTWAVE to enable FIRSTWAVE
to provide Technical Support Services. The FA acknowledges and agrees that breach of this warranty may mean that FIRSTWAVE cannot provide effective Technical Support Services and such inability to
provide Technical Support Services shall not be deemed a Default by Firstwave nor entitle The FA to certain remedies provided herein. Notwithstanding the foregoing, FIRSTWAVE shall deliver to The FA
any and all updates to CLAS made by FIRSTWAVE in the normal course of maintaining FIRSTWAVE Licensed Programs or as may be modified for another entity using CLAS, provided such Derivative Works are
subsequently incorporated into FIRSTWAVE's standard software. The Licences granted to The FA under Clause 3.2 shall be extended to cover such updates. 




        7.2    Personal Data    



        7.2.1    FIRSTWAVE's
attention is hereby drawn to the Data Protection Act 1998 and to Directive 95/46/EC of the European Parliament and any legislation and/or regulations
implementing them or made in pursuance of them (all referred to together as the "Data Protection Requirements"). 


          7.2.2    FIRSTWAVE
and The FA each warrant that they will duly observe all their obligations under the Data Protection Requirements which arise in connection with this
Agreement. 


          7.2.3    In
particular, as required by Schedule I, Part II of the Data Protection Act 1998, FIRSTWAVE shall; 



              7.2.3.1    in
respect of personal data supplied to it by The FA, only carry out processing (as defined by the Data Protection Act 1998) of that personal data on The FA's
instructions from time to time; and 


              7.2.3.2    comply
with the obligations set out in the seventh principle of Schedule I in respect of all processing carried out on behalf of The FA. 





        7.3    Authority and Approval    



        Each
of The FA and FIRSTWAVE warrants to the other party that: 


          7.3.1    it
has full capacity and authority and all necessary licences, permits and consents to enter into and to perform this Agreement; 


          7.3.2    this
Agreement is executed by a duly authorised representative; and 


          7.3.3    the
execution and delivery of this Agreement, and its performance of its obligations will not: 



              7.3.3.1    result
in a breach of any provision of its memorandum or articles of association; or 


              7.3.3.2    result
in a breach of or constitute a default under any instrument or agreement to which it is a party or by which it is bound; or 




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              7.3.3.3    result
in a breach of any order, judgement or decree of any court to which it is a party or by which it is bound. 





        7.4    Third Party Software    



        FIRSTWAVE
warrants that The FA does not require licences in respect of Third Party Software in order to Use CLAS as currently defined in the CLAS Specification. Notwithstanding the
foregoing, The FA acknowledges that mutually agreed upon changes or updates to CLAS may require the need for
Third Party Software which will be notified to The FA by FIRSTWAVE to the extent it becomes aware of the same. FIRSTWAVE warrants that, to the extent the need for Third Party Software arises, it will
use its best endeavours to procure for The FA a licence to use the Third Party Software. Any such licence to The FA will be in accordance with the licence granted to FIRSTWAVE only where The FA does
not enter into a direct licence with the relevant third party. Any charges incurred as a result of the Third Party Software becoming necessary will be mutually agreed in advance and in writing by the
parties hereto. 




        7.5    Exclusion of Warranties  



        Except
as expressly stated in this Agreement, all warranties, conditions and other terms (including without limitation, terms as to merchantability, fitness for purpose and description),
whether express or implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law. 




8.    REMEDIES AND LIABILITIES  


        8.1    IPR Indemnity    



          8.1.1    FIRSTWAVE
shall indemnify The FA against all claims, demands, actions, costs, expenses (including but not limited to reasonable legal costs and disbursements on a
solicitor and client basis), losses and damages finally awarded by a court of competent jurisdiction or agreed to by FIRSTWAVE in settlement arising out of or in connection with any infringement or
alleged infringement (including but not limited to the defence of such alleged infringement) by CLAS or the CLAS Documentation (other than documentation relating to Third Party Software and Third
Party Agreements) of the Intellectual Property Rights of a third party worldwide. 


          8.1.2    If
CLAS or the CLAS Documentation becomes or are likely to become the subject of such a claim, The FA shall permit FIRSTWAVE, at FIRSTWAVE's option and expense, to
procure for The FA the right to continue using CLAS and/or the CLAS Documentation, or to replace or modify them so that they are noninfringing, without adversely affecting their functionality or
performance so that they continue to comply with the CLAS Specifications. This indemnity does not cover infringement claims based on or arising from: 



              8.1.2.1    modifications
of CLAS or the CLAS Documentation unless such modification was done with FIRSTWAVE's prior written approval, if infringement would have been avoided
without such modification; 


              8.1.2.2    the
combination, operation, or use of CLAS with programs, data equipment, or other items or products not supplied or specified by FIRSTWAVE, if infringement would
have been avoided without such combination, operation, or use; 



              8.1.2.3
The FA-required designs and specifications, but only to the extent that the infringement results from a departure from FIRSTWAVE's own design specifications for
CLAS; or 


              8.1.2.4    the
failure by The FA to use a modified version of CLAS and/or CLAS Documentation proposed by FIRSTWAVE in accordance with Clause 8.1.2, the use of which
would have avoided the infringement. 




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          8.1.3    The
FA shall indemnify FIRSTWAVE against all claims, demands, actions, costs, expenses (including but not limited to reasonable legal costs and disbursements on a
solicitor and client basis), losses and damages finally awarded by a court of competent jurisdiction, or agreed to by The FA in settlement, arising out of or in connection with any infringement or
alleged infringement (including but not limited to the defence of such alleged infringement) by any FA Confidential Information or other materials or information delivered or made available to
FIRSTWAVE by The FA for use in connection with the design or development of CLAS or the CLAS Documentation. 


          8.1.4    The
foregoing indemnification by FIRSTWAVE and The FA shall be conditional upon: 



              8.1.4.1    Each
party shall promptly, notify the other in writing if any claim or demand is made or action bought against it for infringement or alleged infringement which may
lead to a claim for indemnity hereunder; 


              8.1.4.2    The
indemnifying party shall at its own expense conduct any resulting litigation and the indemnified party hereby agrees to grant to the indemnifying party
exclusive control of any such litigation and negotiations; 


              8.1.4.3    Each
party shall at the request and expense of the indemnifying party afford to such indemnifying party all reasonable assistance for the purpose of contesting any
claim or demand made or action brought against The FA or FIRSTWAVE to which Clause 8.1.1 may apply. 




          8.1.5    Neither
party shall make any admissions which may be prejudicial to the defence or settlement of any claim, demand or action to which Clause 8.1 may apply. 



          8.1.6    The
foregoing states the entire liability of the parties with regard to the infringement of any Intellectual Property Rights in connection with the other party's
Confidential Information, CLAS and the CLAS Documentation. 




        8.2    Remedies Cumulative    



        Except
as otherwise expressly provided in this Agreement, all remedies available to FIRSTWAVE or The FA for breach of this Agreement are cumulative and may be exercised concurrently or
separately and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. 




        8.3    Waiver    



          8.3.1    The
failure of either party to insist upon strict performance of any provision of this Agreement, or the failure of either party to exercise any right or remedy to
which it is entitled under this Agreement, shall not constitute a waiver and shall not reduce the obligations established by this Agreement. 


          8.3.2    A
waiver of any Default shall not constitute a waiver of any subsequent Default. 


          8.3.3    No
waiver of any of the provisions of this Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing in
accordance with the provisions of Clause 10.5. 




        8.4    Limits of Liability    



          8.4.1    Neither
party excludes or limits liability to the other party: 



              8.4.1.1    for
death or personal injury caused by that party's negligence or the negligence of its employees or agents; 


              8.4.1.2    for
fraudulent misrepresentations; 




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              8.4.1.3    for
any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or 


              8.4.1.4    to
pay sums properly due and owing to the other in the course of normal performance of this Agreement. 




          8.4.2    Nothing
in this Clause shall be taken as limiting the liability of either party in respect of the following Clauses: 8.1 (IPR Indemnity) and 10.2 (Confidentiality). 


          8.4.3    Subject
always to Clauses 8.4.1 and 8.4.2 the aggregate liability of each party to the other under or in connection with this Agreement shall not exceed one hundred
percent (100%) of the Charges actually paid or received. 


          8.4.4    Subject
always to Clause 8.4.1, in no event shall either party be liable to the other for: 



              8.4.4.1    loss
of profits, business, revenue, goodwill, anticipated savings, management time, sales, turnover, damage to reputation, contracts, or customers; 


              8.4.4.2    losses
or liabilities under or in relation to any other contract. 




          8.4.5    Subject
always to Clause 8.4.1, in no event shall either party be liable to the other for indirect or consequential loss or damage. 



          8.4.6    The
parties agree that any order for specific performance made in connection with this Agreement in respect of either party shall be subject to the financial
limitations set out in Clause 8.4.3. 


          8.4.7    The
parties agree that should any limitation or provision contained in this Clause be held to be invalid under any applicable statute or rules of law it shall to that
extent be deemed omitted but if any
party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein. 




        8.5    Force Majeure    



          8.5.1    Any
act, event, omission, happening or non-happening will only be considered Force Majeure if it is not attributable to the willful act, neglect or
failure to take reasonable precautions of the affected party, its servants, agents or employees. 


          8.5.2    If
the performance of this Agreement by either party is prevented, hindered or delayed by reason of any Force Majeure event, both parties shall be entitled to a
reasonable extension of time, subject to there being no entitlement to any additional costs incurred as a result of the delay nor any relief from Charges due during the delay (unless payment of
Charges is prevented by the Force Majeure event) and provided that the party so delayed notifies the other party in writing without undue delay. 




9.    TERMINATION  


        9.1    Grounds for Early Termination    



        Each
party may at any time by notice in writing terminate this Agreement as from the date specified in such notice if the other party passes a resolution, or the Court makes an order
that such party be wound up otherwise than for the purpose of a bona fide reconstruction or amalgamation, or a receiver, manager or administrator on behalf of a creditor is appointed in respect of the
business or any part thereof of such party, or circumstances arise which entitle the Court or a creditor to appoint a receiver, manager or administrator or which entitle the Court, otherwise than for
the purpose of a bona fide reconstruction or amalgamation, to make a winding-up order, or such party is unable to pay its debts within the meaning of Section 123 of the Insolvency
Act 1986 or any similar event occurs under the law of any other jurisdiction. 



9





 

        9.2    Breach    



          9.2.1    The
FA may at any time by notice in writing terminate this Agreement in whole or in part as from the date specified in such notice if FIRSTWAVE is in Default of any
material obligation under this Agreement and: 



              9.2.1.1    the
Default is capable of remedy and FIRSTWAVE shall have failed to remedy the Default within thirty (30) days (or such other reasonable period as may be
agreed by the parties) of FIRSTWAVE's receipt of written notice specifying the Default and requiring its remedy; or 


              9.2.1.2    the
Default is not capable of remedy provided that (1) a Default shall not be treated as incapable of remedy within the meaning of Clause 9.2.1.1
merely because it has already occurred and (2) FIRSTWAVE shall not be considered to be in Default under this Agreement to the extent that the Default is caused by The FA. 




          9.2.2    FIRSTWAVE
may at any time suspend performance of FIRSTWAVE Services or terminate this Agreement in whole or in part as from the date specified in such notice where
The FA is in Default of any material obligation under this Agreement, including The FA's failure to pay Charges due and payable under this Agreement and: 



              9.2.2.1    The
FA shall have failed to remedy such Default within fourteen (14) days (or such other reasonable period as may be agreed by the parties) of notice to The
FA specifying the Default and requiring its remedy; and 


              9.2.2.2    In
the event of failure to pay Charges, such Charges shall not be the subject of any bona fide dispute between the parties. 


        In
the event payment of any invoice for Charges is outstanding beyond the due date, for each thirty day period, FIRSTWAVE shall reduce the CLAS Royalty Payment (as specified in
Clause 6.3) payable to The FA by [+++percent+(+%)] up to a reduction of such payments to zero. In the event FIRSTWAVE elects to terminate this Agreement as a result of
The FA's failure to remedy such Default, FIRSTWAVE shall retain all monies paid to it under the terms of this Agreement. This right to retain monies shall be without prejudice to any right of The FA
to recover damages for breach of this Agreement, subject always to the limits of liability in Clause 8.4. 





        9.3    Change of Control    



        The
F.A shall have the right to terminate where there is a change of control of FIRSTWAVE, as defined by Section 416 of the Income and Corporation Taxes Act 1988, provided that
The FA: 


          9.3.1    May
only exercise this right for three (3) Months after the change of control; and 


          9.3.2    May
not exercise this right where The FA has agreed in advance in writing to the particular change of control (such agreement not to be unreasonably withheld or
delayed) and such change of control takes place as proposed. 




        9.4    Accrued Rights and Remedies    



        The
termination of this Agreement shall not prejudice or affect any claim, right, action or remedy which shall have accrued or shall thereafter accrue to either party. 




        9.5    Effect of Termination    



        In
the event that this Agreement is terminated each party shall return to the other party all property belonging to the other party then in its possession, including all Confidential
Information of the other party. 



10







   
        9.6    Survival of Obligations    



        Following
the termination of this Agreement after Acceptance as provided for herein, neither party shall have any further obligation or right with respect to the other party under this
Agreement except as set forth in this Clause 9.6 and in the following additional Clauses (and any relevant Schedules (or part thereof) referred to in such Clauses): 



	  1	 	—	 	Interpretation
	

  3.2	
 	

—	
 	

Licence grant
	

  5	
 	

—	
 	

Ownership and Source Code
	

  8.1	
 	

—	
 	

IPR Indemnity
	

  8.4	
 	

—	
 	

Limits of Liability
	

  8.2	
 	

—	
 	

Accrued Rights and Remedies
	

10.2	
 	

—	
 	

Confidentiality
	

10.3	
 	

—	
 	

Publicity
	

10.5	
 	

—	
 	

Communications
	

10.10	
 	

—	
 	

Governing Law and Jurisdiction
	

10.14	
 	

—	
 	

No Poaching
	

Schedule 1 — Definitions.






10.  MISCELLANEOUS  


        10.1    Mediation    



          10.1.1    All
disputes between The FA and FIRSTWAVE arising out of or in connection with this Agreement shall be referred to the President and Chief Executive Officer of
FIRSTWAVE and the Chief Executive of The FA for resolution. 



          10.1.2    If
the dispute cannot be resolved by the relevant parties' representatives within a maximum of fourteen (14) days after referral to them the parties may, by
agreement, attempt to settle the dispute in accordance with the CEDR Model Mediation Procedure. 


        10.1.3    Any
mediation will take place not later than thirty (30) days after the parties have agreed to mediation. If there is any issue on the conduct of the mediation
upon which the parties cannot agree within seven (7) days of commencing the mediation, then CEDR will, at the request of either party, decide the issue for the parties, having consulted with
them. 




        10.2    Confidentiality    



        10.2.1    Each
party acknowledges that any Confidential Information obtained from or relating to the other party, its agents or contractors is the property of that party. 


        10.2.2    Each
party hereby undertakes that: 



        10.2.2.1    it
shall only use Confidential Information for the purposes of this Agreement; 



        10.2.2.2    it
shall not disclose any Confidential Information during the term of this Agreement and for a period of three (3) years after termination to any third party
without the prior written consent of the other party; and 




11





 





        10.2.2.3    it
shall take all necessary precautions to ensure that all Confidential Information is treated as confidential and not disclosed (save as aforesaid) or used other
than for the purposes of this Agreement by its employees, servants, agents or Subcontractors. 




        10.2.3    FIRSTWAVE
further undertakes that it shall not use any FA Confidential Information to develop or market league or country administration or website software for
football. Notwithstanding the foregoing, The FA acknowledges and agrees that the CLAS programs may be marketed and distributed by FIRSTWAVE to its customers and prospective customers. 



        10.2.4    The
provisions of Clauses 10.2.1 and 10.2.2 shall not apply to any information which: 



        10.2.4.1    is
or becomes public knowledge other than by breach of this Clause; 


        10.2.4.2    is
in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; 


        10.2.4.3    is
received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or 


        10.2.4.4    is
independently developed without access to the Confidential Information. 




        10.2.5    Nothing
in this Clause shall be deemed or construed to prevent either party from disclosing any Confidential Information obtained from the other party to any
consultant, contractor or other person engaged by such party in connection herewith, provided that the disclosing party shall have obtained from the consultant, contractor or other person a signed
confidentiality undertaking on substantially the same terms as are contained in this Clause 10.1. 



        10.2.6    Nothing
in this Clause shall be deemed or construed to prevent either party from disclosing any Confidential Information obtained from the disclosing party which is
disclosed by either party in the discharge of its obligation to supply information for parliamentary, governmental, judicial or other administrative or regulatory purposes provided such disclosure is,
wherever possible and lawful, made only after consultation with the other party and taking into account its reasonable requirements as to its timing, contents, and manner of disclosure of such
Confidential Information. 




        10.3    Publicity    



        10.3.1    The
FA shall not make any press announcements or publicise the contents or facts of this Agreement in any way, unless this has been approved in advance by FIRSTWAVE.
FIRSTWAVE shall not unreasonably withhold or delay its approval. Nothing in this Clause 10.3.1 shall restrict The FA from making press announcements or publicising CLAS in any way, provided
that The FA shall not mention FIRSTWAVE or its involvement in CLAS. 


        10.3.2    FIRSTWAVE
shall not make any press announcements or publicise the contents or facts of this Agreement in any way, unless this has been approved in advance by The FA
The FA shall not unreasonably withhold or delay its approval. Notwithstanding the foregoing, (i) prior to Acceptance of CLAS, FIRSTWAVE may verbally identify The FA as its customer and only
discuss the general scope of Services provided hereunder; and (ii) following Acceptance, nothing in this Clause 10.3.2 shall restrict FIRSTWAVE from creating a case study for prior
approval by The FA of the CLAS implementation, and (iii) any publicity undertaken by FIRSTWAVE shall limit the information disclosed regarding The FA to identifying The FA as a customer and
user of CLAS on the condition that further publicity is only permitted with the prior approval of The FA, which shall not be unreasonably withheld or delayed. 


        10.3.3    Both
parties shall use best efforts to ensure the observance of the provisions of Clause 10.3 by all their respective employees, agents, consultants,
contractors and Subcontractors. 



12





 





        10.4    Insurance    


        Each
party shall maintain adequate levels of insurance in respect of its liabilities under or in connection with this Agreement. 


        10.5    Communications    



        10.5.1    No
communications from either party to the other shall have any validity under this Agreement unless made in writing and delivered in accordance with
Clause 10.5.2 below. 


        10.5.2    Any
notice whatsoever which either party hereto is required or authorised by this Agreement to give or make to the other shall be given or made either by post in a
prepaid letter, or by hand delivery or facsimile transmission or E-mail. Where a notice or other communication is sent by facsimile transmission or E-mail, it shall not be
valid unless confirmed by post in a prepaid letter addressed to such other party in the manner specified in Clause 10.5.3 and if that letter is not returned as being undelivered within seven
(7) days, that notice or communication shall be deemed for the purposes of this Agreement to have been given or made after two (2) days, for a letter, four (4) hours for facsimile
transmission or E-mail, and on the day of delivery for a hand delivery. 



        10.5.3    For
purposes of Clause 10.5.2, the address of The FA shall be: 



The
Football Association Limited

25 Soho Square

London

W1D 4FA 




FAO:
Andrew Halstead;



Of
FIRSTWAVE shall be: 



Firstwave
Technologies UK Limited

The Pavilion

1 Atwell Place

Thames Ditton, Surrey KT7 0NF

Attention: Russell Loarridge





With
a copy to: 



Firstwave
Technologies, Inc.

Suite 1000, Overlook III

2859 Paces Ferry Road

Atlanta, Georgia 30339

USA

Attention: Judi Vitale.






        10.6    Amendments    


        No
amendment to the provisions of the Agreement shall be effective unless made by a written instrument signed by authorised representatives of both parties which expressly purports to
amend this Agreement and which expressly refers to the Clause or Schedule so amended. 


        10.7    Transfer, Subcontracting, Role of a Prime Contractor    


        This
Agreement is personal to FIRSTWAVE. FIRSTWAVE shall not assign, novate, or otherwise dispose of this Agreement or any part thereof without the previous consent in writing of The FA.
The FA acknowledges and agrees that FIRSTWAVE may employ the services of a third party subcontractor for purposes of completing the Services hereunder. 


13





 



        10.8    Further Assurance    


        Both
parties shall at their own expense promptly: 



        10.8.1    execute
all documents and do all acts and things reasonably required by the other party to give effect to the terms of this Agreement; and 



        10.8.2    within
such time limits as are reasonable within the circumstances provide all accurate information, documentation and assistance and access to staff and other
resources reasonably requested by the other party to enable that other party to fulfil its obligations hereunder. 




        10.9    Severability    


        If
any provision of this Agreement is held by any court of competent jurisdiction, or becomes due to any applicable statute or rule of law, invalid, illegal or unenforceable for any
reason, such provision shall be severed from this Agreement and the remainder of the provisions hereof shall continue in full force and effect as if the invalid, illegal or unenforceable provision had
been eliminated from this Agreement. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the parties shall immediately commence
good faith negotiations to remedy such invalidity. However, if the parties fail to complete such negotiations within a reasonable period of time, this Agreement shall terminate without further
liability to either party. 


        10.10    Governing Law and Jurisdiction    



        This
Agreement shall be considered as a contract made in England and Wales and according to the laws of England and Wales, and shall be subject to the non-exclusive
jurisdiction of the High Court of England and Wales, to which the parties hereby submit. 


        10.11    Entire Agreement    


        This
Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and, save as may be expressly referred to or referenced in the
Agreement, supersedes all prior representations, agreements, negotiations or understandings with respect to the Agreement, whether oral or in writing, other than any fraudulent or negligent
misrepresentation made by either party 


        10.12    Relationship of the Parties    


        The
parties acknowledge and agree that this Agreement shall not constitute, create or otherwise give effect to an agency relationship, a joint venture, pooling arrangement or partnership
and that neither party shall have the right to bind the other without the other's prior written consent. 


        10.13    Third Party Rights    


        No
person, other than the parties to this Agreement, shall have any right to enforce any of the provisions contained herein pursuant to the Contracts (Rights of Third Parties) Act 1999. 


        10.14    No Poaching    



        For
the term of this Agreement and for the period of six (6) months thereafter, without the prior written consent of the other party, neither party shall either directly or
indirectly solicit or entice away (or seek or attempt to entice away) from the employment of the other party any person employed (or any person who has been so employed in the preceding six
(6) months) by such other party in the provision or receipt of the Services. For the avoidance of doubt, this Clause shall not apply to unsolicited responses by employees to general recruitment
advertising. 


14





 



        IN WITNESS WHEREOF this Agreement has been executed on behalf of the parties as follows: 



	Signed for and on behalf of The FA
	

By	
 	

/s/ ANDREW HALSTEAD

	Name	 	Andrew Halstead

	Title	 	CIO

	Date	 	      

	

Signed for and on behalf of FIRSTWAVE
	

By	
 	

/s/ RUSSELL LOARRIDGE

	Name	 	Russell Loarridge

	Title	 	VP of UK Operations

	Date	 	      





15






  



 
 

SCHEDULE 1
  Definitions
  (Clause 1.1)    
  


The
expression set out below shall have the meanings ascribed thereto: 


"Acceptance"
means in accordance with the procedures in Schedule 3: 



	(a)
	the
FA's delivery to FIRSTWAVE of written notice of acceptance of the CLAS; or



	(b)
	The
FA's failure to deliver to FIRSTWAVE written notice, within fourteen (14) working days of FIRSTWAVE notifying The FA that CLAS is ready for testing, that CLAS does not
substantially conform to the CLAS Specification; or



	(c)
	the
Expert determines that CLAS conforms substantially to the CLAS Specification; or



	(d)
	The
FA's commencement of productive or commercial use of CLAS. 




"Acceptance
Date" means the date on which Acceptance of CLAS occurs. 


"Agreement"
means the Clauses and Schedules of this Agreement. 


"CLAS"
means (1) the jointly designed and developed new technology, and (2) the customisations to FIRSTWAVE's eMarketing and eSales Licensed Programs to develop the county and league
administration software functionality delivered by FIRSTWAVE to The FA so as to meet the CLAS Specification, but expressly excluding Firstwave's Licensed Programs upon which such CLAS may be based or
incorporated therein solely owned by FIRSTWAVE. 


"CLAS
Documentation" means all final and draft specifications, system and technical architecture for CLAS, all CLAS systems analysis and design documents, database schemas, test scripts and results,
programming quality standards, instructional and operational documentation, training materials, data and data conversion routines, and all full privilege passwords for CLAS. 


"CLAS
Specification" means the detailed functional, performance, operational characteristics, and acceptance test procedures for CLAS developed by FIRSTWAVE and The FA and described or included in
documents referred to in a written document, version 1.2, dated 19th December 2002 and initialled by the parties for identification purposes and referred to as the Project
Initiation Document. 


"Charges"
means the charges payable hereunder by The FA as set out in Clause 6.1 and any other fees or expenses which the parties mutually agree may be payable hereunder. 


"Confidential
Information" means all information designated as such by either party in writing together with all other information which relates to the business, affairs, products, developments, trade
secrets, know-how, personnel, customers and suppliers of either party, or information which may reasonably be regarded as the confidential information of the disclosing party. 



"Default"
means any material breach of the obligations of either party (including but not limited to fundamental breach or breach of a fundamental term or failure to remit payment in accordance with
the terms hereof) or any material act or omission or gross negligence by either party, its employees, agents or subcontractors in connection with or in relation to the subject matter of this Agreement
and in respect of which such party is liable to the other. 


"Defect"
means a material nonconformance of CLAS to the CLAS Specification. 


"Delivery
Date" means the 30th April 2003 or (1) such other date as may be mutually agreed upon by the parties or (2) as extended as a result of delay of Services (to the extent
caused by The FA's Default) or by Force Majeure. 


16





 



"Derivative
Works" means a work that is based on one or more preexisting works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in
which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright
infringement. 


"Development
Services" means the Services set out at paragraph of Schedule 2. 


"Escrow
Agent" means the National Computing Centre Limited. 


"Expert"
means a mutually acceptable IT professional knowledgeable in the field of customer relationship management software and the utilization of application software programs in the football
industry. 


"Force
Majeure" means any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental regulations, fire, flood, or any disaster or an industrial dispute affecting a third party for which a substitute third party is
not reasonably available. 


"Intellectual
Property Rights" means patents, trade marks, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright, database rights, know-how,
trade or business names and other similar rights or obligations whether registerable or not in any country (including but not limited to the United Kingdom). 


"Licence"
means the rights granted by FIRSTWAVE to The FA: (i) to Use the Licensed Program(s) pursuant to the terms and conditions of the Software Licence Agreement; and (ii) to Use CLAS
and the CLAS Documentation upon Acceptance thereof by The FA pursuant to the terms and conditions of this Agreement. 



"Licensed
Program(s)" shall have the meaning ascribed to it in the FIRSTWAVE Software Licence Agreement attached hereto as Schedule 5 and all updates thereto. 


"Service
Levels" means the levels of Service defined in Schedule 2. 


"Services"
means all the services to be performed by FIRSTWAVE under this Agreement as detailed in Schedule 2. 


"Source
Code" means the programs, documentation and materials, in a form intelligible to trained programmers and capable of being translated into object code for operation on computer equipment
through compilation, and accompanied by documentation, including flowcharts, schematics describing data flows, data structures and control logic of the CLAS software programs and FIRSTWAVE's
eMarketing and eSales Licensed Programs in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify such programs. 


"Subcontract"
means any contract or agreement or proposed contract or agreement between FIRSTWAVE and any third party whereby that third party agrees to provide to FIRSTWAVE the Services or any
material part thereof or services fundamentally necessary for the provision of the Services or any part thereof. For the avoidance of doubt, the term "Subcontract" shall not be regarded as including
any contract or agreement between FIRSTWAVE and any third party for the provision of equipment or software, facilities or services necessary for the general discharge of FIRSTWAVE's business or any
agreement between FIRSTWAVE and any third party for the provision of Third Party Software. 


"Technical
Support Services" means the Services set out in paragraph 4 of Schedule 2. 


"Termination"
of this Agreement includes its expiry by effluxion of time and any early termination of this Agreement in accordance with the provisions hereof. 


17





 



"Third
Party Software" means all software in which the Intellectual Property Rights are owned by a third party. 


"Training
and Implementation Services" means the services set out at paragraph 3 of Schedule 2. 


"Use"
means The FA's right to load, execute, store, transmit, display, copy (for the purposes of loading, execution, storage, transmission or display) or otherwise to utilise or modify software. 


"Value
Added Tax" means value added tax, sales tax, turnover tax or any similar tax. 



"Working
Day" means Monday to Friday inclusive and excludes statutory bank holidays in England and Wales. 


18






  



 
 

SCHEDULE 2
  The Services
  (Clause 3)    
  


Introduction  


	1.
	This
Schedule sets out details of the Services that FIRSTWAVE shall provide and the Service Levels associated with the Services. 




Development Services  


	2.
	FIRSTWAVE
shall develop and deliver CLAS by the Delivery Date. The provisions of Schedule 3 shall apply to such acceptance testing. 



Training and Implementation Services  


	3.
	FIRSTWAVE
shall provide Training and Implementation Services as set out in the CLAS Specification. 





Technical Support Services  


	4.
	FIRSTWAVE
Technical Support provides support services to all customers who have a current support maintenance agreement with Firstwave. Standard support services are provided from
8:30 a.m. until 5:30 p.m. GMT Monday to Friday. 



Under
maintenance coverage, Licensee is entitled to software and documentation updates, as they are made available. 


To
ensure proper control and maintenance of applications, Firstwave requires that Licensee appoint one or more "system administrators" to interact with Firstwave Technical Support. This will maximize
the amount of benefit your organisation receives and will ensure consistent and reliable communication. 



Each
customer issue is assigned to a Technical Support Representative who is primarily responsible for diagnosing and resolving the issue. The Technical Support Representative is also accountable for
ensuring that the customer is regularly informed of the status of the issue. Throughout the process, the Technical Support Representative has direct and immediate access to senior level support and
development personnel to accurately diagnose and resolve issues. 


Licensee
assigns a priority to each issue. This priority code helps Firstwave to understand the impact this issue has on Licensee's organisation. Firstwave's goal is to return the initial calls on all
Priority 2, 3 and 4 issues within one hour. If the issue is reported as a Priority 1, the issue is immediately assigned to a Technical Support Representative. 



Firstwave
products feature Online Technical Support after hours and emergency support through a voice pager system. Technical assistance provided outside regular business hours such as nights,
weekends or holidays, can be provided for an additional fee. 



19






  



 
 

SCHEDULE 3
  Acceptance Procedures    
  


	1.
	The
FA shall be entitled to test any or all of the CLAS software delivered pursuant to this Agreement in order to determine whether such CLAS software meets the applicable CLAS
Specification and all other provisions of this Agreement. The FA may engage a third party to conduct acceptance tests on its behalf, provided that any such third party enters into a confidentiality
agreement, as required by Clause 10.2.5. The FA shall conduct acceptance tests within fourteen (14) working days of FIRSTWAVE notifying it that the CLAS software is ready for testing.



	2.
	The
FA shall notify FIRSTWAVE of the outcome of any acceptance tests, in particular whether the CLAS software has passed acceptance testing, and of any Defects identified during the
tests.



	3
	FIRSTWAVE
shall be entitled to a period not exceeding fourteen (14) working days, unless a longer period of time is mutually agreed upon, in which to rectify the CLAS software so
as to ensure that it meets the CLAS Specification and all other provisions of this Agreement. On the expiry of this period, or upon FIRSTWAVE's earlier notification that it has successfully rectified
the Defects, the procedures in paragraphs 1 and 2 above shall be repeated.



	4.
	If
the CLAS software has not been accepted by the end of the acceptance testing period and any repeat acceptance testing period, The FA shall have the right either:



	4.1
	to
accept the CLAS software, notwithstanding any Defects; or



	4.2
	to
refer the mater to the Expert for final determination as to whether the CLAS software performs substantially in accordance with the applicable CLAS Specification in all material
respects. 






In
the event The FA permits FIRSTWAVE to continue to rectify any Defects, for each thirty (30) days that such Defect has not been remedied, on the thirty-first day following such time period,
an additional one percent (1%) shall be added to the CLAS Royalty Payment to be paid by FIRSTWAVE to The FA, provided the Defects are remedied and Acceptance occurs. The parties acknowledge that,
where applicable, this increase in royalty rate shall be The FA's sole financial remedy for the delay in Acceptance and is a genuine pre-estimate of the loss suffered by The FA as a result
of such delay. 



	5.
	As
soon as the Expert has accepted the appointment, the parties shall each submit a written report to it (copied to each other). The parties may submit any written replies that they
wish to make to the Expert (copied to each other) within seven (7) days.



	6.
	The
parties will afford the Expert all necessary assistance which it requires to consider the dispute, including, but not limited to, full access to any documentation relating to the
CLAS software.



	7.
	The
Expert shall be instructed to deliver its determination to the parties within seen (7) days after the submission of written reports.



	8.
	The
Expert's decision shall be final and binding and, except in the event of a manifest error, not subject to appeal.



	9.
	The
Expert shall have the same powers to require a party to produce documents or information to him and the other party as an arbitrator and each party shall in any event supply to the
Expert such information that it has and is material to the matter and which it could be required to produce on disclosure pursuant to the Supreme Court Practice in proceedings in the Courts of England
and Wales. The parties shall require the Expert to enter into a confidentiality agreement with them in respect of the documents or information received. 


20





 
	10.
	FIRSTWAVE
shall meet the Expert's fees in the event that the Expert concludes that the CLAS software does not perform substantially in accordance with the CLAS Specification in all
material respects. The FA shall meet the Expert's fees in the event that the Expert concludes that the CLAS software does perform substantially in accordance with the CLAS Specification in all
material respects.



	11.
	Upon
Acceptance or Expert's conclusion that the CLAS does perform substantially in accordance with the CLAS Specifications, the balance of the Charges shall become immediately due and
payable by The FA to FIRSTWAVE. 


21






  



 
 

SCHEDULE 4
  CLAS Deliverables
  (Clause 4)    
  


1.    Delivery of CLAS  


        1.1  On
the Delivery Date, FIRSTWAVE shall: 



        1.1.1    provide
to The FA and The FA shall accept one copy of the object code of CLAS; and 


        1.1.2    provide
to The FA and The FA shall accept the CLAS Documentation. 




        1.2  On
the Acceptance Date, FIRSTWAVE shall: 



        1.2.1    provide
to The FA and The FA shall accept one copy of the Source Code and the object code of CLAS; and 


        1.2.2    provide
to The FA and The FA shall accept an updated copy of the CLAS Documentation. 




        1.3  FIRSTWAVE
shall deliver these items to The FA, in electronic form whenever possible, to The FA's intranet (ICE) or else on paper to 25 Soho Square, London. 


22






  



 
 

SCHEDULE 5
  FIRSTWAVE Software License Agreement
  (Recitals (A))    
  


23









QuickLinks



EXHIBIT 10.2


TABLE OF CONTENTS



SCHEDULE 1 Definitions (Clause 1.1)


SCHEDULE 2 The Services (Clause 3)



SCHEDULE 3 Acceptance Procedures


SCHEDULE 4 CLAS Deliverables (Clause 4)



SCHEDULE 5 FIRSTWAVE Software License Agreement (Recitals (A))