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Exhibit 10.3
WEB SITE DEVELOPMENT AND SUPPORT AGREEMENT
THIS WEB SITE DEVELOPMENT AND SUPPORT AGREEMENT (the "Agreement")
is made and entered into as of the 27th day of October, 1999 (the "Effective
Date"), by and between INTERACTIVE XXX-XX.XXX, INC., with offices at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000-000, Xxxxxxx, Xxxxxxx 00000 ("ICE"), and K.TEK
SYSTEMS, INC., with offices at 00000 X.X. Xxxxxxx 00 X., Xxxx Xxxxxx, Xxxxxxx
00000 ("Developer").
1. WEB SITE DEVELOPMENT.
1.1 Pursuant to the terms and conditions of this Agreement,
Developer shall assist in developing a web-based, on-line continuing education
system for providing the delivery of online course content, testing, and
results for ICE (The "Web Site"). In particular, Developer shall furnish all
back-end functionality components for developing that Web Site (including only
the database design and structure, visual basic programmed components, and the
active service pages connectively to and from the database via a standard web
browser) that satisfy the specifications and requirements included on Schedule
A (the "Developer Components"). ICE acknowledges that ICE has hired another
contractor to develop the front-end functionality components for developing the
Web Site (including without limitation the site design and all user interface
components deemed separate from the Developer Components), and that Developer
is not responsible for developing or delivering those components.
1.1.1 Developer shall ensure that the Developer
Components of the Web Site will not inhibit the availability of the Web Site to
permitted individuals and/or access devices, as specified and designated by ICE,
to or from which information, graphic or other images, sounds, data and/or any
other digital or electronic content or materials may be perceived, accessed,
transmitted or utilized. Without limiting the generality of the foregoing, the
Web Site will be accessible through the World Wide Web which is a portion of the
interconnected computer, communications and information network commonly
referred to as the "Internet."
1.2 ICE acknowledges that the development of the Web Site will be
undertaken jointly by Developer and certain ICE representatives and other
independent contractors (collectively, "Non-Developer Personnel"). ICE shall
ensure that all Non-Developer Personnel involved in the development of the Web
Site perform their respective duties in a professional and timely manner and in
a manner that does not adversely affect or delay the performance by Developer
of its obligations under this Agreement. Additionally, ICE acknowledges that
Developer will develop the Web Site using pre-existing collateral and text to
be provided by ICE. ICE assumes full responsibility for the conceptual
organization of that content and the delivery of those materials on a timely
basis.
1.3 During the development process, Developer agrees to submit to
ICE, screen shots and other items which Developer has completed in accordance
with ICE's requirements during the development process (each, a "deliverable")
for review. This process is intended to facilitate ICE's ability to review the
items being developed in an efficient and timely manner and provide feedback to
enable Developer to refine and correct, if necessary, any portions of the Web
Site, prior to the date for satisfactory completion set forth in Section 1.2
above.
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1.4 The parties acknowledge that during development of each
deliverable and the Web Site, changes and/or refinements may be appropriate or
necessary to satisfy ICE's objectives, but which may deviate from the
descriptions, specifications and requirements specified in Schedule A. All
changes, including without limitation changes which may have an impact on the
schedule for completion, the development, implementation, any charges, fees or
prices (including maintenance and support), the functionality or other material
aspects of the Web Site or this Agreement, must be fully documented in writing
and signed by both parties in order to be effective ("Change Order"). Unless a
Change Order is mutually agreed upon and signed by both parties, the scope of
work and the obligations and requirements under this Agreement shall remain
unchanged.
2. WORKING RELATIONSHIP.
2.1 Each party shall designate a project manager to act as the
principal point of interface between Developer and ICE for the development,
delivery, installation and implementation of the Web Site. The project managers
will be responsible for coordinating the work effort, liaising with necessary
internal staff and resolving any issues that may arise. For purposes of this
Agreement, ICE designates Xxxx Love to serve as its project manager, and
Developer appoints Xxx During to serve as its project manager. Either party may
change its project manager at any time by written notice to the other party.
Each party's project manager shall have express authority to act on behalf of
the party with respect to all aspects of this Agreement.
2.2 Every week during the Web Site development process, Developer
will submit to ICE brief status reports summarizing Developer's activities in
sufficient detail to allow the Developer and ICE project managers to effectively
and meaningfully monitor the progress of the work. If either party requests,
the other party shall participate in conference calls and status meetings to
review the status of project activities.
2.3 Developer is an independent contractor and its personnel are
not ICE employees or agents for federal tax purposes or any other purposes
whatsoever and are not entitled to any ICE employee benefits. Developer assumes
sole and full responsibility for the acts of its employees and representatives,
and Developer and its personnel have no authority to make commitments, enter
into contracts on behalf of, bind or otherwise obligate ICE in any manner
whatsoever. Likewise, ICE assumes sole and full responsibility for the acts of
its employees, representatives, and all Non-Developer Personnel, and ICE and
the Non-Developer Personnel shall have no authority to make commitments, enter
into contracts on behalf of, bind, or otherwise obligate Developer in any
manner whatsoever. Developer is solely responsible for the compensation of its
personnel assigned to perform services hereunder, as well as the payment of
worker's compensation, disability and any other benefits, unemployment and
other insurance and for withholding social security, income and other taxes for
its employees and independent contractors. ICE is solely responsible for the
compensation of all Non-Developer Personnel assigned to perform services or
provide goods in connection with the development of the Web Site, as well as
the payment of all workers' compensation, disability, and any other benefits,
unemployment and other insurance and for withholding social security, income,
and other taxes payable with respect to the Non-Developer Personnel.
2.4 Nothing in this Agreement shall be deemed to constitute,
create, or otherwise give effect to a joint venture, partnership or business
entity of any kind, nor shall anything in this
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Agreement be deemed to constitute either one party the agent of the other.
Neither Developer nor ICE shall be or become liable or bound by any
representation, act or omission whatsoever of the other and the rights and
obligations of the parties shall be limited to those set forth herein.
3. ACCEPTANCE TESTING.
3.1 When the Web Site has been fully developed and completed by
Developer in accordance with the specifications and requirements of ICE set
forth in Schedule A and is in good working order, ready for productive use and
availability to third party access, Developer will notify ICE in writing and
Developer shall begin acceptance testing as described in this Article 3. The
parties acknowledge that completion of the Web Site will also depend extensively
on the timely performance of services and full cooperation by other contractors
involved in the development of the Web Site and by ICE personnel involved in
the development of the Web Site.
3.2 The acceptance test will be designed and conducted by
Developer for the purpose of demonstrating that the Developer Components of the
Web Site conform to and perform in accordance with ICE's requirements as set
forth in Schedule A (as modified from time to time by written agreement of ICE
and Developer) and any other specifications and documentation prepared by
Developer hereunder. The acceptance test will be conducted by Developer and
sample input, transactions and/or information, representative of ICE's
requirements, transactions, operations, functions and activities, shall be
utilized for the acceptance test. ICE shall provide to Developer on demand all
sample input, transactions and/or information, representative of ICE's
requirements, transactions, operations, functions and activities, that are to
be utilized for the acceptance test.
3.3 Developer shall conduct an acceptance test promptly upon
completion of the Web Site and in any event not later than two days after the
completion of the Web Site (the "Initial Test"). If it determines that the Web
Site has successfully passed the Initial Test, Developer shall immediately
notify ICE in writing. If it determines that the Web Site has not successfully
passed the Initial Test, ICE shall notify Developer in writing within ten
calendar days after the conclusion of the Initial Test specifying in reasonable
detail in what respects the Web Site has failed to perform and/or conform to
Schedule A. ICE's failure to provide the foregoing notice during that ten-day
period shall constitute ICE's Acceptance (defined below) of the Web Site. If
the Web Site does not pass the Initial Test, Developer shall promptly correct
any deficiencies disclosed by the test. For purposes of this Agreement,
"Acceptance" shall mean ICE's actual or deemed acceptance of the Developer
Components of the Web Site.
3.4 In the event the Web Site fails the Initial Test, Developer
shall conduct succeeding acceptance tests. If the Web Site passes any
succeeding acceptance tests, Developer shall immediately notify ICE in writing.
If the Web Site fails three acceptance tests (including the Initial Test), ICE
shall have the option of either (a) terminating this Agreement (i) upon payment
to Developer of the Development Fee incurred through the date of the
termination in the event that such failure is not attributable to Developer, or
(ii) without further liability or obligation of any kind to and obtaining a
refund of all the fees previously paid to Developer by ICE hereunder, in the
event that such failure is attributable to Developer, or (b) of continuing the
acceptance testing until the Web Site has successfully passed, with ICE's
option to terminate pursuant to clause 3.4(a) remaining available during any
such continuation; provided however, if ICE elects to continue acceptance
testing the Web Site more than three times, ICE shall pay to
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Developer all hourly fees of Developer through the date of that election for
which Developer has not already been paid (notwithstanding the provisions of
section 5.1(d)) before Developer will have any duty to continue modifying and
testing the Web Site.
4. OWNERSHIP RIGHTS.
4.1 The Developer Components and all related materials provided or
developed by Developer shall remain the sole and exclusive property of Developer
until the Development Fee and other amounts due and payable to Developer under
this Agreement as of Acceptance have been paid in full. Effective upon receipt
of all amounts due under this Agreement as of the effective date of Acceptance,
Developer assigns and transfers to ICE all of its right, title, and interest
in, to, and under the Web Site and the computer code, programs and documentation
developed or created hereunder (including source code and object code) and all
forms, images and text viewable on the Internet, any HTML or XTML elements
relating thereto, designs, products, drawings, documentation, information,
deliverables and other materials made and developed in connection with this
Agreement and the development and the ongoing maintenance and support of the
Web Site, whether as individual items or a combination of components (the
"Custom Materials"). Upon receipt of all amounts due to Developer under this
Agreement as of the Acceptance, the Custom Materials shall be deemed to be
"works made for hire" made in the course of services rendered under this
Agreement; provided, however, that if and to the extent title to any Custom
Materials does not vest in ICE as contemplated hereunder or is not covered by
any statute clearly vesting title in ICE, then the Developer hereby agrees to
irrevocably assign all right, title and interest therein to ICE once ICE has
met all of its obligations under this Agreement. Upon payment of all amounts
due to Developer under this Agreement as of Acceptance, ICE has the sole right
to obtain, hold and renew in its own name and for its own benefit, any and all
patents, copyrights, registrations and other similar protections in the Custom
Materials and Developer will cooperate with ICE and execute all documents
necessary to enable ICE to perfect, preserve, register and record its rights
therein. Upon payment of all amounts due to Developer under this Agreement as
of Acceptance, Developer irrevocably waives and relinquishes any so-called
"moral rights" in and to the Custom Materials, which shall not be construed to
prohibit the Customer Materials from being acknowledged as having been
developed by Developer for ICE.
4.1.1 Upon receipt of all amounts due to it under this
Agreement (regardless of whether ICE elects to complete the Web Site), Developer
shall, immediately upon request or upon the completion of the Web Site and/or
the termination or expiration of this Agreement, turn over to ICE any and all
such Custom Materials and any ICE documents, information and/or other materials
held by or on behalf of Developer in whatever form or media, together with all
copies thereof.
4.2 It is acknowledged that any and all ICE corporate identifiers,
brand names, marks, artwork, logos, graphics, video, text, data and other
materials supplied by or on behalf of ICE in connection with this Agreement, as
well as the domain name or names assigned to the Web Site (the "ICE Content")
and all rights with respect thereto, shall remain the sole and exclusive
property of ICE.
4.3 Nothing contained in this Agreement shall be deemed to
transfer, convey or assign to ICE any of Developer's rights in any processes,
procedures, software, information or other intellectual property which was
previously owned by Developer, prior to the provision of
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the Custom Materials and services furnished hereunder and/or created
independently and without reference to any materials or information of ICE
("Pre-Existing Works"); provided, however, that if and to the extent any
Pre-Existing Works are or have been provided to ICE as part of the development
of the Custom Materials and Web Site hosting project contemplated by this
Agreement, Developer hereby grants to ICE a royalty-free, irrevocable,
worldwide, perpetual license in and to such Pre-Existing Works owned by
Developer, to use same in conjunction with the Custom Materials. Each such
License includes the right to make and keep copies of each such Pre-Existing
Work for backup and archival purposes. Developer further agrees that ICE shall
have the right to enhance, modify and/or adapt any such Pre-Existing Works and
associated documentation and materials provided to ICE hereunder and may
create and use derivative works within the scope of the license granted
hereunder and may use and combine such Pre-Existing Works with other programs
and/or materials. In the event of any termination by ICE as a result of a
material breach of this Agreement by Developer and upon payment of all amounts
due to Developer under this Agreement, ICE shall, effective as of the date of
such termination, continue to have a license to use such Pre-Existing Works
and associated documentation and other items related thereto, without further
charge or fee, but otherwise subject to and in accordance with the provisions
of this Agreement.
5. COMPENSATION.
5.1 In consideration for the development, testing, implementation
and establishment of the Developer Components of the Web Site, ICE shall pay to
Developer a fee based on Developer's hourly rate (the "Hourly Rate") and the
number of hours of work provided by Developer for those activities (the
"Development Fee"). From the effective date of this Agreement through January
31, 2000, Developer's Hourly Rate will be $150 per man hour worked. Thereafter,
Developer's Hourly Rate will increase in accordance with its standard
practices. ICE shall pay the Development Fee as follows: (a) $12,187.50 on or
before the date of this Agreement: (b) $ 12,187.50 on or before November 3,
1999; (c) $12,187.50 on or before November 12, 1999; and (d) the balance of the
Development Fee upon Acceptance of the Web Site as described in Article 3
above. For any other work requested by ICE, ICE shall pay to Developer a fee
based on the number of hours of work provided at the Hourly Rate; provided,
however, that prior to the commencement by Developer of any such other work,
ICE shall approve orally or in writing Developer's written estimate of the
number of hours required to complete any such request.
5.2 Payment of the Development Fee is due on the dates specified
in sections 3.4 and 5.1, and a late charge of 1-1/2% per month is payable on
demand on any installment of the Development Fee that is not paid within 10
calendar days after it is due.
Payment of every invoice issued by Developer for non-development
services is due in full upon receipt, and a late charge of 1-1/2% per month is
payable on demand on any invoice balance that is not paid within 10 calendar
days after the date of the invoice. ICE shall pay all amounts due to Developer
under this Agreement in cash or by bank or corporate check and in United States
dollars. Developer reserves the right to suspend (without notice or penalty)
its services if any amount owed to it is not paid in full when due. If
collection action becomes necessary, ICE shall pay all costs and expenses
incurred by Developer in collecting any amount owed to Developer, including
legal fees incurred before and after demand or the commencement of a legal
proceeding, whether incurred pursuant to trial, appellate, mediation,
arbitration, bankruptcy, or judgment-execution proceedings.
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5.3 Notwithstanding anything in this Agreement to the contrary,
Developer is not obligated under this Agreement to purchase or provide any
hardware or software to ICE. If, during the term of this Agreement, the parties
determine that hardware or software is required to complete the Web Site or
the Custom Materials, ICE shall arrange for the purchase of those items
directly and shall pay all costs associated with the procurement and purchase
of those items. With respect to additional services and out of pocket expenses
approved in advance by ICE, unless otherwise mutually agreed upon, Developer
may invoice ICE monthly after such services are rendered or expenses incurred,
accompanying such invoices with documentation adequate for ICE to review and
reasonably approve.
5.4 Pursuant to ICE's request, Developer previously estimated that
the Development Fee for the Developer Components of the Web Site as described
in Schedule A will be $48,750.00. Nevertheless, ICE acknowledges that the total
Development Fee for the Developer Components of the Web Site is difficult to
estimate with any reasonable degree of accuracy because so much of the required
work is affected by events and actions beyond Developer's control; provided,
however, that any fees in excess of $48,750 shall require the prior written
approval of ICE which approval shall not be unreasonably withheld. The
Development Fee ultimately could exceed $48,750.00. Accordingly, that estimate
does not constitute a fixed, maximum, or guaranteed Development Fee. The actual
fee could be more depending on the amount of work needed or requested by ICE.
Moreover, unless Developer agrees in writing to perform a particular service
for a fixed fee payable in advance, all budgets and estimates provided by
Developer pursuant to this Agreement are subject to unforeseeable events and
circumstances and do not constitute fixed, maximum, or guaranteed fees for the
work to be provided.
5.5 Regardless of whether this Agreement is terminated, ICE shall
remain liable to Developer for all services provided by Developer through the
effective date of the termination. The provisions of sections 5.1 through 5.5
of this Agreement will survive the expiration or termination of this Agreement.
6. WARRANTIES.
6.1 Developer represents and warrants that: (a) Developer is a
corporation organized, existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) the execution, delivery, and performance
of this Agreement have been duly authorized by all requisite action of
Developer will not conflict with its bylaws or articles of incorporation, will
not constitute a breach or violation of, or a default under, or require any
consent under, any contract, agreement, indenture, instrument, mortgage, lease,
promissory note, or other commitment, or any decree, judgment, order, or other
edict to which Developer is a party or any of its property is subject, or
violate any local, state, federal, or foreign law, rule, policy, statute, or
regulation; (c) this Agreement is a valid, binding, and effective and
enforceable obligation of Developer; (d) the Developer Components of the Web
Site, including, without limitation, the Custom Materials, will be designed,
developed, and will operate at the time delivered to ICE (but before publicly
displayed or launched) in conformance with the terms and conditions of this
Agreement, including, but not limited to Schedule A; (e) all services to be
provided by Developer under this Agreement will be performed and rendered by
qualified personnel in a professional manner; (f) Developer has full authority
to provide the services and deliver the Custom Materials and that Developer
will comply with any and all federal, state and local laws
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and regulations applicable to or associated with the performance of its
obligations under this Agreement; (g) at the time delivered to ICE (but before
publicly displayed or launched) neither the Developer Components of the Web
Site, nor Custom Materials, nor any component thereof shall contain any
malicious or unauthorized instructions (including, without limitation, so
called "computer viruses", "worms", "trap" or "back doors" or "Trojan horses")
or any other instructions, codes, programs or materials which could improperly,
wrongfully and/or without authorization, interfere with the operation or the
use of same; and (h) at the time delivered to ICE (but before publicly
displayed or launched) neither the Developer Components of the Web Site, nor
Custom Materials, nor any component thereof, shall be incorrect, invalid or
materially adversely affected in any manner based on a change in date, year,
century or otherwise and that, if applicable, shall include date data century
recognition, calculations which accommodate same century and multi-century date
values and formulae, as well as date data interfaces (to application and
operating system software, as applicable) that reflect the correct century.
6.2 ICE warrants, covenants, and represents to Developer; (a) ICE
is a corporation organized, existing, and in good standing under the laws of
the State of Delaware; (b) the execution, delivery, and performance of this
Agreement have been duly authorized by all requisite action of ICE, will not
conflict with its bylaws or articles of incorporation, will not constitute a
breach or violation of, or a default under, or require any consent under, any
contract, agreement, indenture, instrument, mortgage, lease, promissory note,
or other commitment, or any decree, judgment, order, or other edict to which
ICE is a party or any of its property is subject, or violate any local, state,
federal, or foreign law, rule, policy, statute, or regulation; (c) this
Agreement is a valid, binding, and effective and enforceable obligation of ICE;
(d) ICE has trained personnel who are capable of assisting with the development
of the Web Site and with launching, operating, and maintaining the Web Site;
(e) ICE will provide in a timely manner, all software, hardware, materials,
personnel, contractors, and other materials and personnel requested by
Developer to assist with the development of the Web Site and Custom Materials,
including without limitation all materials to be included on the Web Site; (f)
ICE will provide in a timely manner all input requested by Developer with
respect to the Web Site and Custom Materials; (g) ICE shall provide timely
feedback on all work in progress on an ongoing basis, including scheduled
review dates; and (h) upon completion of the Web Site, ICE shall complete,
execute, and return to Developer the Web Site Approval Form attached to this
Agreement as Schedule B.
6.2 EXCEPT AS SPECIFICALLY SET FORTH ABOVE, NONE OF THE PARTIES HERETO
MAKE ANY OTHER OR DIFFERENT REPRESENTATIONS OR WARRANTIES TO THE OTHER, WHETHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. INDEMNITY.
7.1 Developer, at its sole cost and expense, will defend and/or
handle any claim or action against ICE for: (i) actual or alleged infringement
of any patent, copyright, intellectual or industrial property right or any
other similar right (including, but not limited to, misappropriation of trade
secrets) based on the Developer Components of the Web Site, Custom Materials,
any deliverables, information, materials and/or any items furnished by
Developer or the use and operation thereof (but excluding any data,
information, and images provided by ICE or any Non-Developer Personnel to
Developer for use on the Web Site, for which Developer assumes no
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responsibility or liability); and (ii) Developer's violation of or
non-compliance with any law or regulation governing the performance of its
obligations hereunder. Developer shall indemnify, defend, and hold harmless
ICE, its officers, directors, shareholders, agents, employees, contractors, and
their respective successors, assigns and heirs, against and from any and all
liability, loss, cost, injury, damage, and expense (including but not limited
to reasonable attorney's fees and expenses) of any kind whatsoever arising out
of, on account of, or related to a material breach of any representation or
warranty of Developer, the material breach by Developer of any provision of
this Agreement, all actual or alleged infringement of any patent, copyright,
intellectual or industrial property right or any other similar right
(including, but not limited to, misappropriation of trade secrets) based on
Custom Materials provided by Developer, Developer's violation of or
non-compliance with any law or regulation governing the performance of its
obligations hereunder, or any loss, theft, or misappropriation of property
arising from an act or omission of Developer or its agents, officers,
directors, employees, shareholders, or representatives. ICE will give Developer
prompt notice of any such claim or action and copies of all papers served upon
or received by ICE relating to same. The Developer shall have the right to
conduct the defense of any such claim or action, consistent with ICE's rights
hereunder, and all negotiations for its settlement or compromise; provided,
however, that ICE may, at its own expense, participate in such defense or
negotiations to protect its own interests.
7.2 ICE shall indemnify, defend, and hold harmless Developer, its
officers, directors, shareholders, agents, employees, contractors, and their
respective successors, assigns and heirs, against and from any and all
liability, loss, cost, injury, damage, and expense (including but not limited
to reasonable attorney's fees and expenses) of any kind whatsoever arising out
of, on account of, or related to ICE's use or operation of the Web Site, a
breach of any representation or warranty of ICE, the breach by ICE of any
provision of this Agreement, all actual or alleged infringement of any patent,
copyright, intellectual or industrial property right or any other similar right
(including, but not limited to, misappropriation of trade secrets) based on
materials provided by ICE for use in the Web Site, Custom Materials, or any
deliverables, ICE's violation of or non-compliance with any law or regulation
governing the performance of its obligations hereunder, or any loss, theft, or
misappropriation of property arising from an act or omission of ICE or its
agents, officers, directors, employees, shareholders, or representatives.
Developer will give ICE prompt notice of any such claim or action and copies of
all papers served upon or received by Developer relating to same. ICE shall
have the right to conduct the defense of any such claim or action, consistent
with Developer's rights hereunder, and all negotiations for its settlement or
compromise; provided, however, that Developer may, at its own expense,
participate in such defense or negotiations to protect its own interests.
The indemnities provided by this Section 7 shall survive the
expiration or termination of this Agreement.
8. Non-Solicitation.
8.1 During the term of this Agreement and for a period of five
years after the expiration or termination of this Agreement, neither party
shall, directly or indirectly, in any capacity, either for itself or on behalf
of any other person, do any of the following: (a) hire, recruit, or offer to
hire any person who either is or was an agent, officer, director, employee,
shareholder, or independent contractor of the other party (the "Non-Soliciting
Party"), at any time during the term of this Agreement or offer, induce,
recruit, solicit, influence, or attempt to influence any agent,
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officer, director, employee, shareholder, or independent contractor of the
Non-Soliciting Party to terminate her or his service with the non-soliciting
party for the purpose of working for the Soliciting party or any other person,
whether or not a competitor of the Non-Soliciting Party; or (b) persuade or
attempt to persuade any agent, vendor, supplier, customer, insurance company,
independent contractor, or other person who has a business or professional
relationship with Non-Soliciting Party to cease to do business with the
Non-Soliciting Party, reduce the amount of business that it historically has
done with the Non-Soliciting Party, or otherwise adversely alter its business
or professional relationship with the Non-Soliciting Party.
The parties stipulate that a breach by either party (the "Breaching
Party") of any of the covenants in this Section and Section 9 will diminish the
value of the other party (the "Non-Breaching Party") and will cause irreparable
and continuing injury to the Non-Breaching Party for which an adequate legal
remedy will not exist. Accordingly, the parties stipulate that, if either party
breaches any of the covenants in this Section or Section 9 and fails to cure
the breach to the reasonable satisfaction of the Non-Breaching Parry within ten
days after the Non-Breaching Party gives it notice of the breach, the
Non-Breaching Party will be entitled to the following remedies, without
excluding any other available remedy; (i) entry by a court having jurisdiction
of an order granting specific performance or temporary injunctive relief, upon
the posting of any requisite bond and the filing with the court of an
appropriate pleading and affidavit specifying each obligation breached by the
Breaching Party, but without proof of actual monetary damage or an inadequate
remedy at law; (ii) if a court having jurisdiction determines for any reason
that the Non-Breaching Party is not entitled to injunctive relief, the recovery
from the Breaching Party of all profit, remuneration, or other consideration
that the Breaching Party gains from breaching the covenant; and (iii)
reimbursement from the Breaching Parry of all costs incurred by the
Non-Breaching Party in enforcing the covenant or otherwise defending or
prosecuting any mediation, arbitration, or litigation arising out of the
covenant. The Non-Breaching Party may exercise any of the foregoing remedies
concurrently, independently, or successively.
The covenants on the part of ICE and Developer in this Section and
Section 9 shall survive the expiration or termination of this Agreement and the
termination of any other agreements between ICE and Developer.
9. CONFIDENTIAL INFORMATION.
9.1 ICE Confidential Information. In the course of performing
services pursuant to this Agreement, Developer may obtain or be given access to
certain confidential and/or proprietary data, records, materials, information
and trade secrets relating to publications, financial reports, business
operations, strategic plans and other confidential, proprietary, sensitive
and/or trade secret information of ICE, its employees, clients, suppliers,
customers and/or other entities (the "ICE Confidential Information"). The ICE
Confidential Information is of a highly sensitive nature, representing special,
valuable and unique commercial assets, and its disclosure and/or unauthorized
or improper use would be materially damaging to said entities. Developer and
its employees and agents will hold in strict confidence and trust all ICE
Confidential Information. Developer will not, directly or indirectly, disclose
any of the ICE Confidential Information or make it available to any third parry
or use it for its benefit or the benefit of any third party unless specific
written authorization is received from ICE, Developer agrees not to make copies
of any ICE Confidential Information except as required in the course of
performing services hereunder. Developer will not disclose the ICE Confidential
Information to any of its employees or agents, except those with a "need to
know" for the sole purpose of
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performing services hereunder and then, only to the extent required. Developers
agrees to apply at least the same degree of care in safeguarding the ICE
Confidential Information that it uses to protect its own most valuable
proprietary information and material against any unauthorized or unlawful use,
disclosure, dissemination or copying.
9.2 Developer Confidential Information. During the term of this
Agreement, ICE may obtain or be given access to certain confidential and/or
proprietary data, records, materials, information and trade secrets relating to
publications, financial reports, business operations, strategic plans,
intellectual property (including without limitation all patents, trademarks,
trade names, service marks, and copyrighted materials, all ideas, methods,
concepts, inventions, and advertising and promotional materials of Developer),
and other confidential, proprietary, sensitive and/or trade secret information
of Developer, its employees, clients, suppliers, customers and/or other
entities (the "Developer Confidential Information." The Developer Confidential
Information is of a highly sensitive nature, representing special, valuable and
unique commercial assets, and it disclosure and/or unauthorized or improper use
would be materially damaging to said entities. ICE and its employees and agents
will hold in strict confidence and trust all Developer Confidential
Information. ICE will not, directly or indirectly, disclose any of the
Developer Confidential Information or make it available to any third party or
use it for its benefit or the benefit of any third party unless specific
written authorization is received from Developer. ICE agrees not to make copies
of any Developer Confidential Information except as required in the course of
assisting Developer in providing services hereunder, ICE will not disclose the
Developer Confidential Information to any of its employees or Agents, except
those with a "need to know" for the sole purpose of assisting Developer in
providing the services hereunder and then, only to the extent required. ICE
agrees to apply at least the same degree of care in safeguarding the Developer
Confidential Information that it uses to protect its own most valuable
proprietary information and material against any unauthorized or unlawful use,
disclosure, dissemination or copying.
10. TERMINATION OF PROJECT PROPOSAL AGREEMENT.
10.1 THE parties hereby agree that certain Project Proposal
Agreement, dated as of October 26, 1999, entered into between World Health CME,
on behalf of ICE, and Developer shall be terminated in its entirety and shall
be of no further force and effect.
11. GENERAL
11.1 Term & Termination: This Agreement shall commence as of the
date first written above and shall continue in full force and effect thereafter
unless and until terminated as permitted hereunder. Either party may terminate
this Agreement upon at least thirty (30) calendar days' advance written notice
to the other party. If one party materially breaches any provision of this
Agreement, the other party may (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) terminate this Agreement
by giving the other party at least twenty (20) calendar days' written notice;
provided, however, that such termination shall not be effective if the party in
breach has cured the breach of which it has been notified prior to the
expiration of said twenty (20) days. This Agreement may be terminated by either
party immediately by providing written notice to the other party upon the
occurrence of any of the following events: (i) if the other parry ceases to do
business, or otherwise terminates its business operations or if there is a
material change in control of the other party (other than a merger of ICE with
Corpas Investments, Inc.; or (ii) if the other party becomes insolvent or seeks
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protection under any bankruptcy, receivership, trust deed, creditors
arrangement, composition or comparable proceeding, or if any such proceeding is
instituted against the other party (and not dismissed within 30 calendar days).
11.2 Limitation of Liability: EXCEPT AS OTHERWISE PROVIDED HEREIN,
IN NO EVENT WILL EITHER PARTY BE LIABLE, TO THE OTHER OR TO ANY THIRD PARTY,
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR
THE DEVELOPMENT OR USE OF THE WEB SITE OR CUSTOM MATERIALS, REGARDLESS OF THE
FORM OF ACTION OR THE BASIS OF THE CLAIM (WHETHER FOR BREACH OF CONTRACT,
BREACH OF WARRANTY, STRICT TORT, NEGLIGENCE, OR OTHERWISE) OR WHETHER OR NOT
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING
WITHOUT LIMITATION LOSS OF PROFITS OR DATA, LOSS OF SAVINGS OR REVENUE, LOSS OF
USE OF THE WEB SITE, COST OF ANY SUBSTITUTE PROPERTY, DOWNTIME, THE CLAIMS OF
THIRD PARTY CUSTOMERS OF ICE, AND DAMAGE TO PROPERTY). DEVELOPER IS NOT LIABLE
FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE LIABILITY OF
EITHER PARTY (IF ANY) ARISING OUT OF THIS AGREEMENT OR RELATING TO THE WEB SITE
OR CUSTOM MATERIALS (INCLUDING WITHOUT LIMITATION SECTION 7 OF THIS AGREEMENT)
SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY ICE TO DEVELOPER PURSUANT TO
THIS AGREEMENT. THE LIMITATIONS PROVIDED BY THIS SECTION 11.2 SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR ANY LIMITED OR EXCLUSIVE
REMEDY.
11.3 Excusable Delay: Except with respect to payment obligations,
neither party will be liable to the other for any delay or failure to perform
its obligations under this Agreement due to causes beyond its control and
without its fault or negligence.
11.4 Assignment: Except in connection with a merger, sale,
transfer, conveyance, acquisition or other corporate reorganization or change in
control or ownership relating to all or any material portion of its stock,
assets, operations or business, neither parry may assign, transfer or
subcontract this Agreement and/or any rights and/or obligations hereunder,
without the advance written consent of the other and any attempt to do so shall
be void.
11.5 Notices: Notices shall be in writing and delivered personally,
mailed, first class mail, postage prepaid, or sent by electronic or other means
that provides for confirmation of receipt, to the addresses of the parties
indicated in the first paragraph of this Agreement, or to any other address or
addressee requested by written notice. All notices shall be deemed given on the
date delivered or when placed in the mail or when confirmation is received, as
specified herein.
11.6 Advertising: Neither party will disclose the specific terms of
this Agreement, or use the other party's and/or any of its customers' names or
marks, or refer to the other party or any of its customers in any advertising,
publicity releases or marketing or similar written communication, without the
other party's prior written approval, which it shall not unreasonably withhold.
Notwithstanding the foregoing, Developer may indicate to third parties that it
jointly developed the Web Site without obtaining ICE's prior written approval.
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11.7 Governing Law & Interpretation: This Agreement shall be
construed and enforced under the substantive laws of the State of Florida,
without regard to its conflict of laws provisions. Headings are solely for
reference and shall not affect the meaning of any terms. If any part of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions
will be unimpaired. In addition, if any one or more of the provisions contained
in this Agreement shall for any reason in any jurisdiction be held excessively
broad as to time, duration, geographical scope, activity or subject, it shall
be construed, by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law of such jurisdiction as it shall then
appear. No modification, course of conduct, amendment, supplement to or waiver
of this Agreement or any provisions hereof shall be binding upon the parties
unless made in writing and duly signed by both parties. At no time shall a
failure or delay in enforcing any provisions, exercising any option or
requiring performance, be construed to be a waiver.
The parties (a) consent to the personal jurisdiction of the state and
federal courts having jurisdiction over Hillsborough County, Florida, (b)
stipulate that the proper, exclusive, and convenient venues for all legal
proceedings arising out of this Agreement are Hillsborough County, Florida, for
state court proceedings, and the Middle District of Florida for federal court
proceedings, and (c) waive any defense, whether asserted by motion or pleading,
that Hillsborough County, Florida, or the Middle District of Florida are
improper or inconvenient venues, The provisions of this section shall survive
the expiration or termination of this Agreement.
11.8 Entirety: All schedules referred to in this Agreement are
incorporated into and constitute a part of this Agreement as if fully set forth
herein. This Agreement and the Schedules attached to it constitute the entire
agreement between the parties and supersede all previous agreements, promises,
proposals, representations, understandings and negotiations, whether written or
oral, between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Web Site
Development and Support Agreement as of the day and year first above written.
INTERACTIVE XXX-XX.XXX, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
-----------------------------------
[Print]
Title: President
----------------------------------
K.TEK SYSTEMS, INC.
By: /s/ Xxxxxx X. Ducing
-------------------------------------
Name: Xxxxxx X. Ducing
-----------------------------------
[Print]
Title: Vice President
----------------------------------
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Schedule A
SPECIFICATIONS AND REQUIREMENTS FOR WEB SITE
- Membership Interface:
The primary entry point for the site, this will control new member
registrations, existing membership authentications, and notices to membership
and entry/exit to the email list serves. Functionality includes new membership
profiles (a primary table source), main site entry via .asp authentication
methods and the ability to sign up for one or more list serves. The design of
this site includes a basic membership registration form, authentication login
via .asp and SQL and a list serve signup form with high code commenting.
- Data Collection:
This section includes an information request form and the access point for
various online surveys that can either be calculated for raw outcome or stored
and referenced via a weighted schema output. One generic information request
form and one survey of the client's choice (10 questions) is included with the
ability to generate survey reports via Crystal Reports Web Server. The
information request form will be archived in a client table with the request
sent to an email address.
- Resource Query:
This area includes a FAQ database, product review section and a news articles
section with most data accessed via dynamic query to the database. This site
includes one 10-question FAQ database (indexed and searchable), one product
review section with one product and one news article in the articles section.
- Classroom:
Section that includes area for download of curriculum which
can be in text, MS Word, PDF, audio, or video format. Interfacing Microsoft
"Active Streaming" capabilities within the site to allow for a conversion of
digital voice and video content to enable "streaming" over the Internet. This
includes the conversion of one audio and one video track for proof of concept.
Also, a testing center with one multiple choice test that is graded with a
place where members can view there testing history such as test results and
listing of all tests that were taken.
- Personal Web:
Web template design to allow site creation and design (within template
guidelines) by members. It will allow for the inclusion of basic graphics
(supplied by members.) It includes the basic web creation template.
- Commerce:
This area offers an online catalog with the ability to purchase via "shopping
cart" technology and use credit card authorization. It includes an catalog with
3 initial items and the implementation of the purchasing interface for
promotional purposes.
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- Administrative Interface:
The second "heart" of this site, it includes templates to update various
portions of SQL data and site design.
- SQL Database Modeling & Design
A-2
