CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.25
iLEARN DEVELOPMENT AND INTERACTIVE SERVICES AGREEMENT
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This iLearn Development and Interactive Services Agreement (the
"Agreement") is made and entered into this 17th day of June, 1998, by and
between iXL, Inc., a Delaware corporation ("iXL"), and Endeavor Technologies,
Inc., a Georgia corporation ("Endeavor").
RECITALS
WHEREAS, Endeavor desires to retain iXL to provide interactive services
using iXL's proprietary software iLearn (defined below) in developing:
A. A knowledge management system or engine for on-line Web-MD training that
will include an administration/tracking system (the "Knowledge Management
System"); and
B. Content for multimedia, on-line training courses for healthcare
professionals (the "Web-MD Courses") as described in more detail herein;
and
WHEREAS, iXL is willing to provide such services on the terms described
herein and in performing such services will:
A. Refine and develop a content integration system (the "iLearn Content
Integration System") that will allow iXL to process and convert a large
number of courses relatively quickly for use in a multimedia format on
engines similar to the Knowledge Management System; and
B. Develop certain generic production templates that will be used with the
iLearn Content Integration System (the "iLearn Templates") in processing or
converting existing course content; and
WHEREAS, iXL, with input from Endeavor, will develop a graphic design for
the iLearn Templates for use by Endeavor with the Knowledge Management System
(the "Web-MD Template Design");
NOW, THEREFORE, in consideration of the mutual covenants and benefits
described in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, capitalized terms shall have
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the following meanings:
"CHANGE ORDER" is defined in Section 3 below and shall be substantially in
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the form attached hereto as Exhibit A.
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"CODE" means computer programming/formatting code or operating instructions
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either previously developed by iXL or developed pursuant to this Agreement
and used in connection with iLearn, used to create any portion of the
Custom Works, incorporated into a Custom Work, or used to operate a Custom
Work or a Web Server in connection with a Custom Work (such as, for
example, HTML, Perl, C, C++, Java, Java Script, UNIX Shell, Visual Basic
Script, and VRML code). Code shall include (a) any files necessary to make
forms, check-boxes, and similar functions and underlying technology or
components, such as animation templates, interface programs which link
multimedia and other programs, customized graphics manipulation engines,
and menu utilities, whether in database form or dynamically driven; (b)
navigational elements, including buttons, graphics, synchronization
gateways, links, PERL and CGI scripts; (c) configuration profiles; (d) tags
or code added to templates in order for them to be used; (e) tags that
assign relational attributes to data elements allowing such elements to be
used as "smart content"; (f) dynamic content calls embedded in the HTML;
(g) all code related to the administrative, tracking, and other functions
of the Knowledge Management System; and (h) all source code related to any
of the items described in the proceeding clauses (a) through (f) or
otherwise related to iLearn.
"CONTENT" means all graphics, photographic images, marks, logos, data,
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text, and information provided by Endeavor or any party other than iXL, in
connection with the Web-MD Courses. "Content" for the purposes of this
Agreement will not include any Code.
"CUSTOM WORKS" shall mean (a) the Knowledge Management System (excluding
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all Code developed by iXL that relates to the administrative, tracking, and
other functions of the Knowledge Management System); (b) the Content of the
finished multimedia form of the Web-MD Courses produced by iXL under this
Agreement; and (c) the graphic design for the Web-MD Template Design.
"DELIVERABLES" means each form of (a) the Custom Works described as being
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designed hereunder; and (b) the Physician Web Sites described as being made
available to Physicians in the "Project Timetable and Deliverables
Schedule" in the Statement of Work. "Deliverables" for purposes of this
Agreement will not include any Third Party Software, Web Browsers, or
hardware.
"ENDEAVOR MARKS" mean any and all trademarks, logos, or similar matters
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relating to Endeavor or Web-MD provided by Endeavor or its agents to iXL
for use in any Custom Works or otherwise hereunder.
"ERROR" means any error, problem, or defect resulting from: (a) an
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incorrect functioning of Code that affects the functionality of a
Deliverable; or (b) any failure of a Deliverable to meet the specifications
in the Statement of Work or the Phase I Engineering Requirements Document
to be developed thereunder.
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"FINAL DELIVERABLE" means the final version of any Custom Work that will be
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delivered to Endeavor after successful completion of iXL's final testing
and quality assurance procedures.
"iLEARN" means iXL's proprietary software for multimedia on-line learning,
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course development, and management and shall include (a) iXL's Content
Integration System; (b) the iXL Templates to be developed hereunder; and
(c) all Code related to the administration, tracking, and other functions
of the Knowledge Management System.
"iLEARN CONTENT INTEGRATION SYSTEM" is defined in the recitals of this
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Agreement.
"iLEARN TEMPLATES" are defined in the recitals of this Agreement.
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"INTERNET" means the world-wide network of computers which provide access
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to the World Wide Web.
"KNOWLEDGE MANAGEMENT SYSTEM" is defined in the recitals of this Agreement.
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"PERMITTED USES" shall mean use by Endeavor in providing on-line training
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to health care professionals through (a) use and modification of the
Knowledge Management System, including making it available on the Internet
to such health care professionals; (b) use, display, copying, and
modification of the Web-MD courses; and (c) use of any other courses
developed by other parties for Endeavor for health care professionals
consistent with the terms of this Agreement. iXL will use reasonable
commercial efforts to effect a strategic alliance between Endeavor and the
Thomson Corporation ("Thomson") or terms that are reasonably acceptable to
Endeavor. Endeavor will keep iXL advised of the progress of the
relationships with Thomson and, if possible, work with iXL to develop any
educational or training content. "Permitted Uses" shall not include (i)
any use of iLearn, Code or the Knowledge Management System or (ii) at a
time when fees or other compensation due to iXL hereunder have not been
paid. "Permitted Uses" will not include any decompiling, preparation of
derivative works, or re-engineering of any portion or any version of iLearn
or Code.
"PHASE I DOCUMENT" is defined in Section 6 of this Agreement.
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"STATEMENT OF WORK" shall include Statement of Work No. 1, which is defined
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in Section 3 below, and any additional Statements of Work attached to this
Agreement with the written consent of both iXL and Endeavor.
"THIRD PARTY SOFTWARE" means any software or other material (for example, a
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standard authoring program or platform or off-the-shelf software) which is
specifically identified in the Statement of Work as being owned by a
company or individual other than iXL, will be used under this Agreement
pursuant to a license or other arrangement, and is generally available to
the public, including Endeavor, under published licensing terms.
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"WEB BROWSER" means software designed to allow interactive access to the
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World Wide Web, including Navigator, Explorer, Mosaic, MacWeb/WinWeb,
Cello, and Lynx.
"WED-MD COURSES" are defined in the recitals of this Agreement.
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"WEB-MD TEMPLATE DESIGN" is defined in the recitals of this Agreement.
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"WORLD WIDE WEB" means all of the Web Pages that are accessible to a
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typical computer user with appropriate access to the Internet using a Web
Browser.
The definitions in this section will apply to all plural and singular forms
of the defined terms used in this Agreement.
2. DEVELOPMENT AND INTERACTIVE SERVICES.
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(a) DEVELOPMENT OF CUSTOM WORKS. Endeavor hereby retains iXL to develop
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the Knowledge Management System, the graphic design for the Web-MD
Template Design, and the Web-MD Courses as described in the attached
Statement of Work. Endeavor agrees to pay iXL fees for such services
as described in the attached Statement of Work in accordance with the
payment terms set forth therein and in this Agreement.
(b) USE OF iLEARN FEATURES. In performing the services required under
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this Agreement, iXL will use iLearn, the iLearn Content Integration
System, and the iLearn Templates providing the functionality described
in the attached Statement of Work.
(c) VERTICAL MARKETS. iXL will have no obligation under State of Work
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No. 1 or the Phase I Document to be developed thereunder in connection
with adaptation of courses for vertical markets.
3. STATEMENT OF WORK; CHANGE ORDERS; ADMINISTRATION. Attached hereto as
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Exhibit B is a more detailed description of the development and interactive
services to be provided hereunder ("Statement of Work No. 1"). If there is
any difference between the terms of the Statement of Work attached hereto
and any other portion of this Agreement, the terms of the Statement of Work
shall control, with the exception of Section 10(a) (concerning iXL's
ownership of iLearn, the iLearn Content Integration System, the iLearn
Templates, and Code) and Section 22 (which confirms that no joint venture,
partnership or other relationship has been created in connection with this
Agreement). In the event of a conflict between Sections 10(a) and 22 of
this Agreement and any language in a Statement of Work, Sections 10(a) and
22 of this Agreement shall control.
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Any modification to the specifications in the Statement of Work or to a
Custom Work after acceptance by Endeavor hereunder shall require execution
of a written change order by both parties to this Agreement (a "Change
Order"). Each Change Order complying with this section shall be deemed to
be an amendment to the applicable Statement of Work and will become part of
this Agreement.
In the attached Statement of Work, Endeavor and iXL have each designated a
qualified individual as project manager to serve as the point of contact
for all communications relating to the performance under this Agreement.
4. COMPENSATION; EXPENSES; INVOICES. Endeavor shall pay iXL the amounts set
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forth in the Statement of Work.
Except for amounts due upon execution of this Agreement, iXL will submit to
Endeavor invoices for the amounts payable to iXL as described herein and in
the applicable Statement of Work. Unless otherwise provided in the
applicable Statement of Work, Endeavor will pay to iXL the amount of each
invoice immediately. Invoices will be deemed to have been received on the
earlier of the date of actual receipt or five (5) days after mailing to
Endeavor. If Endeavor disputes an invoice, Endeavor is required to pay the
undisputed portion of the invoice according to the terms of this Section
and to give notice to iXL that specifies in detail the disputed items and
the reason for the dispute.
5. SOURCE OF CERTAIN MATERIALS. The Content for the Web-MD Courses and the
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Endeavor Marks used in the Custom Works or otherwise in connection with
this Agreement will be obtained and supplied by Endeavor or its agents
other than iXL.
Development and operation of the Knowledge Management System and the Web-MD
Courses may involve use of Third Party Software. Endeavor will be
responsible for payment for, and entering into appropriate licensing
agreements concerning, use of such Third Party Software unless otherwise in
the Statement of Work.
6. GENERAL SPECIFICATIONS. The initial technical specifications applicable
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hereunder appear in the attached Statement of Work and will be refined in
the Phase I Engineering Requirements Document to be developed thereunder
(the "Phase I Document").
7. METHOD OF PERFORMING SERVICES. Unless otherwise set forth in the Statement
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of Work, iXL shall determine the method, details, and means of performing
the services to be performed hereunder, subject to the standards set forth
in the Statement of Work. During the Term and thereafter, iXL shall retain
the right to perform any and all services for other clients, including
clients in the healthcare field, and Endeavor shall retain the right to
cause work of the same or a different kind to be performed by its own
personnel or other contractors.
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8. TIMETABLE. iXL and Endeavor will develop a mutually agreeable "Project
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Timetable and Deliverables Schedule" as contemplated in Section 7 in
Statement of Work No. 1 (the "Project Timetable") as soon as practicable
after execution of this Agreement.
Endeavor will provide to iXL the media elements, materials, timely
approvals, and assistance necessary for iXL to complete the Custom Works
and other services on the Project Timetable. Any delay by Endeavor in
providing materials, approvals, and assistance to iXL shall extend the
deadline for the subsequent tasks of iXL under the Project Timetable by a
period at least equal to Endeavor's delay. In addition, for any Endeavor
obligation described as time-sensitive or critical in the Statement of
Work, failure of Endeavor to meet its deadline will entitle iXL to prepare
a revised Project Timetable based on a realistic estimate of the effect of
the delay on the completion of the project, taking into account other work
scheduled by iXL.
In addition to providing progress reports and arranging project planning
meetings to the extent required under the Project Timetable, iXL agrees
that the current prototype of the Custom Works shall be accessible to
Endeavor throughout the development phase at the URL identified in the
Statement of Work.
9. DELIVERY AND ACCEPTANCE. Unless otherwise provided in the Statement of
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Work, the following provisions will apply for delivery and acceptance of
(i) the prototype, alpha and beta versions, and Final Deliverable for the
Knowledge Management System; (ii) the graphic design for the Web-MD
Template Design; and (iii) each of the Web-MD courses developed or
processed hereunder:
(a) Endeavor will accept or reject the initial version and any corrected
version within ten (10) business days of receipt, notifying iXL in
writing of the specific nature of any Error, deficiencies or
inadequacies in the initial draft. If Endeavor does not reject the
initial version or corrected version of any Deliverable in writing in
the manner and time period described herein, it will be deemed to be
accepted.
(b) If Endeavor rejects the initial version or any corrected version, iXL
shall have a period of ten (10) business days from receipt of the
written rejection to correct all Errors, deficiencies or inadequacies
specified by Endeavor and submit a revised version. Unless Endeavor
rejects the revised version in writing in the manner and time period
described in paragraph (a) above, it will be deemed to be accepted.
10. ALLOCATION OF INTELLECTUAL PROPERTY RIGHTS. The various aspects of
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ownership and rights to use iLearn, the Knowledge Management System, the
iLearn Content Integration System, the iLearn Templates, Code, the Custom
Works, the Endeavor Marks, Third Party Software, and Content of the Web-MD
Courses shall be governed by this Section 10.
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(a) RIGHTS CONCERNING iLEARN AND iLEARN FEATURES. iLearn, all Code
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relating to the administrative, tracking, and other functions of the
Knowledge Management System, the iLearn Content Integration System,
the iLearn Templates, all other Code, and all rights therein including
any patent, copyright, trademark, trade secret or any other
intellectual property right associated with iLearn, all Code relating
to the administrative, tracking, and other functions of the Knowledge
Management System, the iLearn Content Integration System, the iLearn
Templates, or Code shall be owned exclusively by iXL. Except as stated
herein, Endeavor shall have no claim of ownership in, or any patent,
copyright, trademark, trade secret, or any other intellectual property
rights in connection with, iLearn, all Code relating to the
administrative, tracking, and other functions of the Knowledge
Management System, the iLearn Content Integration System, the iLearn
Templates, or Code, except for the limited license described in
Section 10(d) below. Endeavor (ETI) retains the rights to reuse or
adopt the software. iXL and ETI agree not to give, market or license
the software to any direct competitor of either party. Both parties
will exercise reasonable commercial efforts to jointly market within
the healthcare industry.
(b) RIGHTS IN THE WORKS (WORKS FOR HIRE AND ASSIGNMENT). Subject to
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certain rights of iXL described in Sections 10(a), 10(e), and 10(g)
below, (i) the Custom Works shall constitute "works made for hire" for
Endeavor as that concept is defined in Sections 1010 and 201 of the
Copyright Act of 1976 (Title 17, United States Code); and (ii)
Endeavor shall be considered the author and shall be the copyright
owner of the Custom Works.
If any of the Custom Works does not qualify for treatment as a "work
for hire" or if iXL retains any interest in the Custom Works for any
other reason, iXL hereby grants, assigns and transfers to Endeavor,
ownership of all United States and international copyrights and all
other intellectual property rights in the Custom Works, subject to
certain rights of iXL described in Sections 10(a), 10(e), and 10(g) of
this Agreement. The ownership rights assigned under the preceding
sentence shall include all the rights of use with respect thereof
which are intended to be conferred upon Endeavor under this Agreement,
free and clear of any and all claims for royalties or other
compensation except as stated in this Agreement.
(c) RIGHTS IN CONTENT AND MARKS. Endeavor represents and warrants to iXL
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that iXL is authorized to copy, use, modify and publish as
contemplated hereunder (i) all Endeavor Content; and (ii) all Endeavor
Marks and to make derivative works using such content and marks as
contemplated hereunder. iXL acknowledges that the Endeavor Marks and
any goodwill appurtenant thereto shall be owned exclusively by
Endeavor.
(d) LIMITED LICENSE TO ENDEAVOR FOR USE OF iLEARN, iLEARN FEATURES, AND
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CODE. iXL hereby grants to Endeavor a limited, non-exclusive,
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worldwide
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license. Endeavor's limited license hereunder will allow it to use
iLearn, the iLearn Templates, and Code solely for Permitted Uses
hereunder. This limited license gives Endeavor any right to alter, add
to, subtract from, arrange, rearrange, revise, modify, change, adapt,
decompile, or re-engineer iLearn, the iLearn Templates, or any portion
of the Code or to prepare any derivative works therefrom. Endeavor
(ETI) retains the rights to reuse or adopt the software. iXL and ETI
agree not to give, market or license the software to any direct
competitor of either party. Both parties will exercise reasonable
commercial efforts to jointly market within the healthcare industry.
(e) LIMITED LICENSE TO iXL IN CONNECTION WITH ITS PERFORMANCE HEREUNDER.
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Endeavor hereby grants to iXL the limited, nonexclusive right and
license to copy, distribute, transmit, display, perform, create
derivative works, modify and otherwise use and exploit the Custom
Works, any Endeavor Content, and any Endeavor Marks provided hereunder
solely for the purposes of rendering iXL's services and as otherwise
authorized under this Agreement consistent with the Statement of Work.
Such limited right and license shall extend to no other materials and
for no other purposes.
(f) THIRD PARTY SOFTWARE. If applicable, iXL has identified in the
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Statement of Work certain Third Party Software which may be used in
connection with the Knowledge Management System or otherwise
hereunder. Except to the extent described in the Statement of Work,
iXL represents and warrants to Endeavor that there are no restrictions
or royalty terms applicable to use of such Third Party Software as
contemplated under this Agreement so long as Endeavor pays all
required license fees.
(g) NON-EXCLUSIVE ARRANGEMENT; DEVELOPMENT OF OTHER WEB SITES AND PROJECTS
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BY iXL. iXL shall retain the right to reuse or incorporate iLearn,
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the iLearn Content Integration System, the iLearn Templates, Code,
including Code developed before or after execution of this Agreement
and including, without limitation, Code used in the Knowledge
Management System for administration, tracking and other functions, in
interactive, multimedia, or other projects for other clients,
including clients in the healthcare field, provided that iXL shall use
for the benefit of other clients the engine for on-line Web-MD
training to be developed hereunder, or the Code developed therefor
after the execution of this Agreement as long as the service is not
provided for a direct competitor of Endeavor or Web-MD. iXL shall
refer any clients seeking to develop online medical training courses
to Endeavor for inclusion in and participation in Web-MD. No fees,
royalties, or other compensation will be owed by iXL to Endeavor in
connection with the right described in this paragraph.
(h) ENDEAVOR'S EXCLUSIVE RIGHTS CONCERNING CONTENT OF WEB-MD COURSES.
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Endeavor shall have the exclusive ownership of the Content of the Web-
MD Courses produced hereunder, including the right to modify, re-use,
or create
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derivative works based on such Content, subject only to iXL's limited
rights described in Sections 10(e) and 13 of this Agreement.
11. DEFENSE OF INFRINGEMENT ACTIONS. If any action, claim, suit or proceeding
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is brought against Endeavor, alleging that any of the Custom Works, iLearn
Code, or any portion thereof (other than any Endeavor Content, Endeavor
Marks, or Third Party Software) infringes on a patent, copyright,
trademark, trade secret, or other intellectual property rights of any third
party, iXL will defend such action, claim, suit or proceeding at its own
expense and shall indemnify and hold Endeavor harmless from and against all
damages, liabilities, losses, expenses and costs incurred by Endeavor
arising in connection therewith.
If any action, claim, suit or proceeding is brought against iXL, alleging
that any of the Endeavor Content or Endeavor Marks used in the Custom Works
or otherwise by iXL as permitted under this Agreement infringes on a
patent, copyright, trademark, trade secret, or other intellectual property
rights of any third party, Endeavor will defend such action, claim, suit or
proceeding at its own expense and shall indemnify and hold harmless from
and against all damages, liabilities, losses, expenses and costs incurred
by iXL or arising in connection therewith.
12. DELIVERABLES. Within ten (10) business days after Endeavor's approval of
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an item described as a Deliverable on the Statement of Work, iXL will
deliver a copy thereof or make the Deliverable available to Endeavor.
Transfer of electronic materials will be accomplished by copying them to
media to be supplied by Endeavor or by modem, FTP transfer, LapLink, or
electronic mail transfer. iXL shall maintain its back-ups and one set of
the Deliverables provided to Endeavor for a period of six (6) months after
the approval of each Final Deliverable.
13. DEMONSTRATION OF CUSTOM WORKS. In connection with the Program, (i) iXL
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may list Endeavor as a client of iXL on iXL's Web Site and in all other iXL
marketing materials; (ii) iXL will be authorized to create screen shots of
the Custom Works and incorporate those screen shots into iXL's digital and
print marketing materials; (iii) iXL will be authorized to demonstrate the
Custom Works in presentations to other or potential clients; (iv) a credit
and logo will be included on each of the Custom Works similar to "developed
by iXL" or "developed using iLearn" and (v) unless otherwise provided in
the Statement of Work, iXL may include either a URL or plain text link to
the Custom Works on iXL's web site, which may, at iXL's option include
Endeavor Marks. For the purposes of this Section 13, iXL shall include iXL,
Inc. and its affiliates. In the event that Endeavor substantially changes a
Custom Work using its own employees or a company other than iXL, Endeavor
may notify iXL that the rights under this Section 13 shall not apply to the
new version of that Custom Work.
14. CONFIDENTIAL INFORMATION. In connection with iXL's performance of its
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duties hereunder, iXL and Endeavor may gain access to certain information
concerning the business, affairs, operations, products, intellectual
property, employees or clients of the
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other party to this Agreement that is of a nonpublic, confidential, or
proprietary nature (the "Confidential Information"). Each party after
receiving such Confidential Information (in such role, the "Recipient
Company") agrees on behalf of itself and on behalf of its directors,
officers, employees, and agents (collectively, "Related Parties") that it
will (a) treat the Confidential Information as strictly confidential; (b)
use the Confidential Information solely for the purpose of performing under
this Agreement and not, directly or indirectly, for any other purpose; (c)
not disclose any Confidential Information to any person or entity (other
than its Related Parties to the extent required for performance hereunder)
without the prior written consent of the other party; and (d) not copy any
Confidential Information other than as required to perform under this
Agreement.
For purposes of this Agreement, Confidential Information shall mean
information that is maintained in confidence by the other party to this
Agreement or any of its Related Parties and that is not generally known by
persons other than the other party or its Related Parties or, if known by
any other such persons, is maintained in confidence by them. Confidential
Information shall include, without limitation, the specifications delivered
hereunder to contemplated hereby.
The restrictions in this Section 14 shall not be construed to apply to (i)
information generally available to the public, (ii) information generally
released by the other party to this Agreement without restriction; (iii)
information independently developed by a Recipient Company or its Related
Parties without reliance in any way on confidential information of the
other party to this Agreement or acquired from a third party without
similar restriction, without breach of this Agreement, and with no reason
to believe the third party has breached any similar confidentiality
agreement; or (iv) information that the other party to this Agreement
agrees in writing is approved for the use and disclosure of the Recipient
Company or its Related Parties without restriction.
Notwithstanding the foregoing restrictions, a Recipient Company and its
Related Parties may use and disclose any information to the extent required
by an order of any court or other governmental authority but only after the
other party to this Agreement has been notified in writing sufficiently in
advance of the date of compliance to permit the other party to seek
reasonable protection for such information in connection with such
disclosure.
15. NON-SOLICITATION. During the Term and for two (2) years after the
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termination of this Agreement, neither party shall directly or indirectly,
induce or attempt to induce any employee of the other party to leave the
employ thereof or hire any employee of the employing party, other than an
employee whose employment was terminated by the employing party. For
purposes of this Section 15, "party" shall include the party and its
affiliates.
16. iXL'S REPRESENTATIONS AND WARRANTIES. iXL represents and warrants to
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Endeavor that:
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(a) With the exception of any Endeavor Content or Endeavor Marks included
therein, any and all Custom Works delivered to Endeavor under this
Agreement and any and all Physician Web Sites prepared under this
Agreement will be prepared by iXL or its employees or agents on a
"work for hire" basis;
(b) With the exception of any Endeavor Content or Endeavor Marks included
therein, all Deliverables delivered to Endeavor or to Physicians
hereunder do not and will not infringe any patents, copyrights,
trademarks, or other intellectual property rights, including trade
secrets, privacy or similar rights of any person or entity, nor has
any claim of such infringement been threatened or asserted against
iXL;
(c) The Final Deliverable of the Knowledge Management System will
function, on the dates of delivery and acceptance and throughout the
Term of this Agreement with properly configured Web Browsers described
in the Statement of Work;
(d) The Custom Works accepted by Endeavor will comply with the
specifications in the "Scope of Work" section of the Statement of
Work, the Phase I Document, and any Change Orders;
(e) all services iXL performs under this Agreement will be performed in a
workmanlike manner in accordance with applicable industry standards
for development and interactive services; and
(f) iXL represents and warrants to Endeavor that the design of the
Knowledge Management System and the Web-MD Courses developed hereunder
will allow processing of 4-digit years and that their design is and
will be, accordingly, Year 2000 compliant on the server and with the
applications being used when iXL delivers those Custom Works for
acceptance hereunder. iXL does not make any representation or warranty
hereunder concerning (i) the extent to which data maintained by
Endeavor or its agents and any Endeavor Content provided for input
into, or display in connection with, the Custom Works includes 2-digit
or 4-digit years, or (ii) whether the Knowledge Management System and
the Web-MD Courses will operate in a manner that is Year 2000
compliant after any modifications are made to the Endeavor Content, to
the type of equipment on which the Knowledge Management System and the
Web-MD Courses are hosted or accessed, or to the applications used in
connection with the Knowledge Management System or the Xxxx-MD
Courses.
17. ENDEAVOR'S RESPONSIBILITIES; REPRESENTATIONS AND WARRANTIES;
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INDEMNIFICATION. Endeavor hereby agrees to take full responsibility for
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obtaining clearances and authorizations from all necessary parties in
connection with the following material to be provided to iXL for use in
connection with the Program: (i) any and all Endeavor Content; and (ii) any
and all Endeavor Marks.
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Endeavor represents and warrants to iXL that:
(a) Endeavor is fully authorized to enter into and fully able to perform
under this Agreement, to furnish the materials and to grant the rights
and licenses provided for in this Agreement, and Endeavor is not
subject to any conflicting obligations that will or might prevent
Endeavor from furnishing such materials or from granting that the
rights and licenses provided for in this Agreement.
(b) Endeavor either owns or has the right to authorize the use as
contemplated herein of the Endeavor Content and the Endeavor Marks.
Endeavor further represents and warrants that use of the Endeavor
Content and of the Endeavor Marks as contemplated hereunder does not
and will not infringe upon or violate any patent, copyright,
trademark, trade secret, or other proprietary or intellectual property
rights of any third party.
Endeavor hereby indemnifies and holds iXL harmless from any claims
that use of any such Endeavor Content or Endeavor Marks was infringing
or not authorized.
18. NO REPRESENTATIONS OR WARRANTIES RELATING TO E-COMMERCE. The parties
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acknowledge and agree that no electronic commerce features will be included
in the Phase I Document. Endeavor has made all decisions concerning whether
and how the Custom Works will operate. If Endeavor decides to add e-
commerce features under subsequent phases, Endeavor accepts the inherent
risks involved with on-line commercial transactions and the responsibility
for approving all encryption and other security measures that will be used.
iXL will not be responsible for, or have any liability in connection with,
the operation of any of the Custom Works with respect to on-line commercial
transactions and shall not have any responsibility or liability for misuse
of or failure to protect credit card or other information provided by
customers of Endeavor in connection with the Customer Works. In addition,
Endeavor assumes the risk of loss and absolves iXL of any liability due to
(a) Endeavor's offering any products for sale in connection with the Custom
Works that constitute "soft" goods, for example, telephone usage cards, for
which customers are given authorization codes that are effective with or
without physical delivery of the goods sold; or (b) Endeavor's maintaining
personal identification numbers or other authorization codes in connection
with any of the Custom Works.
19. TERM AND TERMINATION.
--------------------
Unless terminated earlier pursuant to this Article 19, the term of this
Agreement (the "Term") shall begin on the date hereof (the "Effective
Date"), continue for a one-year period after the Effective Date.
12
(a) TERMINATION FOR BREACH. In addition to such other rights and remedies
----------------------
as may be available in law or in equity, each party shall have the
right to terminate this Agreement by written notice to the other party
if the other party has materially breached any provision of this
Agreement and such breach remains uncured for a period of ninety (90)
days after written notice of such breach is received by such other
party.
(b) FORCE MAJEURE. Neither party shall be liable to the other for failure
-------------
or delay in the performance of a required obligation if such failure
or delay is caused by strike, riot, fire, flood, natural disaster, or
other similar cause which, in the exercise of prudent business
practices, is beyond such party's reasonable control, provided that
such party gives prompt written notice of such condition and resumes
its performance as soon as possible, and provided further that the
other party may terminate this Agreement if such condition continues
for a period of 180 days.
(c) EFFECT OF TERMINATION; SURVIVAL. Termination will terminate each
-------------------------------
party's obligations under this Agreement (except for the provisions
concerning allocation of intellectual property rights in Section 10,
defense of infringement actions in Section 11, demonstration of the
Custom Works and related matters in Section 13, Confidential
Information under Section 14, non-solicitation of employees under
Section 15, representations and warranties in Sections 16, 17, 18, and
23, indemnification, damages, and attorney's fees in Section 20, and
the relationship of the parties in Section 20, all of which shall
survive termination). Unless otherwise provided in the applicable
Statement of Work, upon termination by either iXL or Endeavor,
Endeavor shall be obligated to compensate iXL for all work to date,
and Endeavor shall be entitled to receive copies of all Deliverables
in existence at that point for which iXL has been fully compensated.
20. INDEMNIFICATION; DAMAGES; ATTORNEY'S FEES. Each party (the "Indemnifying
-----------------------------------------
Party") will indemnify and hold the other party and its affiliates,
officers, directors, employees, agents and representatives harmless from
and against all damages, costs, expenses, and liabilities arising as a
direct result of a breach of this Agreement by the Indemnifying Party,
including without limitation, reasonable attorneys' fees and expenses, and
provided, that, in no event shall either party's liability under this
--------
Section or under Section 11 exceed the total amount of payment due under
the Statement of Work under which Endeavor's claim is made. IN ADDITION,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE,
REGARDLESS WHETHER EITHER PARTY HAS WARNED OR BEEN WARNED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
21. NOTICE. Any notice required or permitted to be given under this Agreement
------
shall be in writing and deemed given and effective upon delivery if sent by
personal delivery or by
13
facsimile transmission or five (5) days after posting if sent by certified
United States mail, return receipt requested, with postage pre-paid and
addressed as follows:
If to iXL: iXL, Inc.
0000 Xxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxx
One Buckhead Plaza
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Endeavor: Endeavor Technologies, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
A copy to: ETI
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
22. RELATIONSHIP BETWEEN PARTIES. The parties intend that an independent
----------------------------
contractor relationship shall be created by this Agreement. Nothing in this
Agreement shall be construed as establishing a partnership, joint venture,
or employer-employee relationship between the parties.
23. EXCLUSION OF IMPLIED WARRANTIES. iXL has made certain express warranties
-------------------------------
concerning the Custom Works in the preceding sections of this Agreement.
APART FROM THE SPECIFIC WARRANTIES SET OUT HEREIN OR IN THE STATEMENT OF
WORK ATTACHED HERETO, ALL IMPLIED WARRANTIES AS TO MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR CORRESPONDENCE WITH DESCRIPTION, AND ANY OTHER
IMPLIED OR EXPRESS WARRANTIES, ARE HEREBY DISCLAIMED AND EXCLUDED WITH
RESPECT TO ALL GOODS AND SERVICES PROVIDED UNDER THIS AGREEMENT.
14
24. MISCELLANEOUS.
-------------
(A) BINDING EFFECT. This Agreement shall be binding on, inure to the
--------------
benefit of, and be enforceable by the parties and their respective
heirs, successors and valid assigns.
(B) GOVERNING LAW. This Agreement shall be governed by, construed under
-------------
and enforced in accordance with the laws of the State of Georgia.
(C) COUNTERPARTS. This Agreement may be executed in multiple counterparts
------------
and by facsimile, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(D) ASSIGNMENT. This Agreement may be assigned by either party only with
----------
the prior written consent of the other party, which shall not be
unreasonably withheld.
(E) ENTIRE AGREEMENT. This Agreement, including the attached Statement of
----------------
Work, supersedes and cancels all prior negotiations, communications,
understandings and agreements between iXL and Endeavor. No oral
agreements, before or after execution of this Agreement, shall be
binding until they are in writing and signed by an authorized officer
of both iXL and Endeavor.
(F) SEVERABILITY. In the event that any provision of this Agreement is
------------
held void or unenforceable, the entire balance of this Agreement shall
remain in full force and effect.
(G) HEADINGS. The section and subsection headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
-----------------------------------
15
IN WITNESS WHEREOF, this Agreement was executed by the parties as of the
date first written above.
iXL, Inc.
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
-----------
Title: President, iXL Learning
-----------------------
Sr. Vice President, iXL
Endeavor Technologies, Inc.
By: /s/ W. Xxxxxxx Xxxxxx
---------------------
Name: W. Xxxxxxx Xxxxxx
-----------------
Title: Chief Operating Officer
-----------------------
16
EXHIBIT A
CHANGE ORDER TO STATEMENT OF WORK NO. 1 TO
iLEARN DEVELOPMENT AND INTERACTIVE SERVICES AGREEMENT
BETWEEN iXL, INC. AND ENDEAVOR, INC.
DATED JUNE ___, 1998
(THE "STATEMENT OF WORK")
Date of this Change Order:
---------------------------------------------------
The parties agree that the Statement of Work is hereby modified as follows and
that this Change Order shall be attached as an exhibit to and incorporated in
the Statement of Work.
Resulting changes to "Project Timetable and Deliverables Schedule" in the
Statement of Work.
iXL, Inc.
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
-----------
Title: President, iXL Learning
-----------------------
Sr. Vice President, iXL
Endeavor Technologies, Inc.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
17
EXHIBIT B
STATEMENT OF WORK NO. 1
TO iLEARN DEVELOPMENT AND INTERACTIVE SERVICES AGREEMENT
BETWEEN iXL, INC. AND ENDEAVOR TECHNOLOGIES, INC.
The following is Statement of Work No. 1 (the "Statement"), made as of June ___,
1998, to the iLearn Development and Interactive Services Agreement (the
"Agreement") executed on June ___, 1998, between iXL, Inc. ("iXL") and Endeavor,
Inc. ("Endeavor"). Except as specifically stated herein, each capitalized term
used in this Statement shall have the same meaning as is assigned to it in the
Agreement.
1. GENERAL DESCRIPTION OF SERVICES AND BASIC TERMS. This agreement describes
-----------------------------------------------
the basic concept for the Endeavor on-line training and education project.
iXL will design and create online training content and provide an
administration/tracking system. While iXL's initial focus will be to
provide accredited CME/CEU courses to enhance Endeavor's healthcare service
(WebMD), iXL also proposes to provide the content management/production
templates and build online content that could be used in Endeavor's
subsequent vertical market initiatives, which are beyond the scope of work
for this Statement.
BASIC TERMS
. This pricing assumes no exclusivity for iLearn or Code which may be used
by iXL for other clients in the healthcare industry. However, Endeavor
will have exclusive rights to the on-line training content itself.
. The initial HTML text-based CME/CEU content will already be accredited.
Any additional accreditation fees required after conversion to online
multimedia courses or for obtaining accreditation for new or original
content will be paid separately by Endeavor or the content provider and
will not be considered part of iXL's compensation hereunder or affect
delivery and acceptance of Web-MD Courses hereunder.
. iXL will use reasonable commercial efforts to effect a strategic
alliance between Endeavor and the Thomson Corporation ("Thomson") on
terms that are reasonably acceptable to Endeavor. Endeavor will keep iXL
advised of the progress of its relationships with Thomson and, if
possible, work with iXL to develop any educational or training content.
. Any electronic commerce solutions required for the online sale of
educational content will be built and charged separately and are beyond
the scope of this Statement of Work.
18
. Any system development, licensing fees or maintenance costs for the
hardware, system software, or hosting of the online courses for
distribution/delivery will be the responsibility of Endeavor.
. After the initial management/tracking engine and production templates are
built, the content creation model could apply to other vertical markets
with some modification to the original engine/templates. (Such
modification goes beyond the scope of work under this Statement and will
not be included in the Phase I Document).
. Any unique Web-MD specific hardware, software or net work licenses,
equipment and support needed for development will be provided by
Endeavor.
2. PAYMENT. Subject to the terms herein and those contained in the Agreement,
-------
Endeavor agrees to pay iXL the following amounts:
(a) Upon execution of this Agreement, the up front portion of $ ***
the contract amount
(b) Seven monthly payments on remainder of the $ *** $ ***
amount (beginning on June 1, 1998, and ending with
payment on December 1, 1998)
The contract amount under this Statement was based on the following
analysis and estimates of the fixed and variable costs of this project and
performance hereunder by iXL.
------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
19
ESTIMATED FIXED COSTS TO BUILD WEB-MD
INTERFACE, iLEARN CONTENT INTEGRATION SYSTEM,
AND KNOWLEDGE MANAGEMENT SYSTEM
---------------------------------------------------------------------------------------------------
Initial Costs Annual Costs Number of
(updates, enhancements) Years
---------------------------------------------------------------------------------------------------
Design and creation of $ *** per vertical $ *** per interface 2*
Endeavor training interface
templates
---------------------------------------------------------------------------------------------------
Development of a content $ *** $ *** 2*
integration system to
standardize and streamline
the creation or conversion of
the courses to iLearn format
---------------------------------------------------------------------------------------------------
Development and licensing of $ *** $ *** 2*
knowledge management system
for tracking, testing, and
administration of training
content
---------------------------------------------------------------------------------------------------
Subtotal $ *** $ *** 2*
---------------------------------------------------------------------------------------------------
------------
* At Endeavor's option, iXL will update and enhance the Knowledge and
Management System at the fees set forth above; 2 years from the initial
agreement, Endeavor and iXL will review and possibly renegotiate these fees
for new Internet technology and playback/distribution hardware that will be
available.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
20
ESTIMATED VARIABLE COSTS
--------------------------------------------------------------------------------------------------
Source of Content
--------------------------------------------------------------------------------------------------
Design and creation of online-enabled Existing/HTML Text-based New Online Courses from
training content existing print content
(i.e. Xxxxxxx, Xxxxx, etc.)
--------------------------------------------------------------------------------------------------
- Audio, text and graphics only $ ***/hour of training $ ***/hour of training
--------------------------------------------------------------------------------------------------
- Video, audio, text, and graphics $ ***/hour of training $ ***/hour of training
--------------------------------------------------------------------------------------------------
Development of "local" online training $ ***/hour of training $ ***/hour of training
programs (iLearn Templates)
--------------------------------------------------------------------------------------------------
In exchange for the payments described above, the scope of work hereunder
shall include:
50 hours of training content in 1998, includes access to iLearn Content
Integration System and Knowledge Management System.
1998 50 hours of course content at $ ***/hour (all audio and all
conversion of existing content)
$ ***/year for converting and building new courses
$ *** for engine/template development
Subtotal: $ ***
Contract total: $ ***
3. START DATE. iXL's services shall begin on the Effective Date.
----------
4. SCOPE OF WORK. The scope and definition of services to be provided under
-------------
the Agreement and this Statement will be more clearly defined in the Phase
I engineering requirements document to be developed by iXL hereunder. At
that time, the allocation of specific resources and costs may be reassigned
with the consent of both parties to meet the terms and scope of the overall
project.
At this time, the parties have agreed on the following description of the
services and functionality to be provided hereunder:
------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
21
DETAILED DESCRIPTION OF SERVICES
iLEARN FUNCTIONALITY
The content for CME/CEU training for Web MD will be delivered using Java
Applets and Servlets, allowing for any computer, NC or Desktop, to be able
to access the online training.
The iLearn functionality that will be available to users of each of the Web
MD training courses are:
. Secure Login Environment
. Graphically branded environment
. Online driven Menu Navigator
. Content delivered via timed slides and Streaming Audio
. FAQs
. Glossary
. Threaded discussion
. Accredited Testing
. Search capabilities within the course
KNOWLEDGE MANAGEMENT SYSTEM
There are three distinct components to the future Endeavor Training system:
. The server component that stores the training content and is primarily
responsible for the management and delivery of the content
. The client component, whether browser-based, player-based or some
hybrid thereof, that serves as the user interface that the Trainee
uses for training
. A Knowledge Management System, the component that is primarily
responsible for the tracking of delivered content to the extent
defined in this document. Other responsibilities of Knowledge
Management System include validating users before they begin training
sessions, determining the training modules that are available or
mandatory for a user, etc.
The Knowledge Management System will run as a database application on a
central server. This implies that all end-users must have connectivity, and
the required level of access to the Knowledge Management System.
Endeavor subscribers may also take training from non-hospital locations,
such as their homes, by dialing in. In order to enable the transfer of
content as well tracking data between the server and client, the dial-in
user must remain connected to the Internet for the duration of the Lesson.
The Knowledge Management System administration Web content developed must
work with Netscape Navigator 3.0 and Microsoft Internet Explorer 3.02 or
greater.
22
The Knowledge Management System will capture and store CME/CEU training
information. The following information should be captured:
. Trainee ID
. Course name
. Course description
. Name of offering institution
. Date/time started
. Date/time ended
. Name of certificate or degree
. Score or grade received
. Credit hours received
. Additional comments
The Knowledge Management System will allow a standard reporting solution
for accreditation purposes for those taking the courses. In addition, it
will provide reports for content publishers and providers to monitor the
usage of their courses.
5. CONTENT AND DESIGN INPUT FROM ENDEAVOR. As soon as possible after
--------------------------------------
execution of the Agreement, Endeavor or its representatives will provide
iXL with the following:
--------------------------------------------------------------------------------------------------------------
MATERIALS TO BE PROVIDED IMMEDIATELY BY ENDEAVOR
(CONTENT, GRAPHICS, MARKS)
--------------------------------------------------------------------------------------------------------------
Specify Whether for Required Content Detailed Format Party Date Due
Knowledge Management Description Responsible
System, iLearn
Template, Web-MD
Template Design, or
Web-MD Courses
--------------------------------------------------------------------------------------------------------------
Information on volume Detail concerning Endeavor July 1, 1998
issues concurrent access
--------------------------------------------------------------------------------------------------------------
Sample of Content Most complex training Endeavor July 1, 1998
--------------------------------------------------------------------------------------------------------------
Network Topology Information on Endeavor July 1, 1998
whether it is a
controlled environment
--------------------------------------------------------------------------------------------------------------
Client Platforms All NC machines or Endeavor July 1, 1998
desktops?
--------------------------------------------------------------------------------------------------------------
Bandwidth How will content be Endeavor July 1, 1998
served?
--------------------------------------------------------------------------------------------------------------
6. THIRD PARTY SOFTWARE. Listed below are any items of software from third
--------------------
parties required for any other purpose in connection with the Program until
termination of the Agreement. Unless otherwise noted, license fees for
this software are not included in the payments to iXL under this Statement
and will be the responsibility of Endeavor:
23
Estimated license fees to be provided by iXL as soon as practicable
after execution of this Agreement.
7. PROJECT TIMETABLE AND DELIVERABLES SCHEDULE. The parties will agree on a
-------------------------------------------
mutually acceptable timetable for major milestone and completion of
Deliverables hereunder as soon as practicable after execution of the
Agreement.
8. COMPLETION DATE. iXL agrees to use all reasonable commercial efforts to
---------------
complete the Custom Works on the timetable agreed to above.
9. DELIVERABLES. "Deliverables" that will be subject to delivery and
------------
acceptance by the Endeavor under the terms of the Agreement are: (a) the
graphic design for the Web-MD Template Design; (b) the Phase I Engineering
Requirements Documents; (c) the Graphics Design, first Prototype (Alpha
version), Prototype with engineering components (Beta version), and Final
Deliverable of the Knowledge Management System; and (d) a draft and Final
Deliverable for each Web-MD Course developed hereunder.
10. DEVELOPMENT SITE. The URL for the development site which Endeavor may use
----------------
to review progress under this Statement is: [URL]
11. PROJECT CONTACTS.
----------------
iXL Project Manager:
Endeavor Project Manager:
12. SITE INDEXING. The payment to iXL under this Statement does not include
-------------
any submissions to index sites or other similar marketing services.
13. iXL'S HOURLY RATES AND OUT-OF-POCKET EXPENSES. Any work performed by iXL
---------------------------------------------
for Endeavor that is outside the Scope of Work hereunder will be paid for
by Endeavor on a time and materials basis in accordance with iXL's then
current rate card.
Endeavor further agrees to reimburse iXL for certain out-of-pocket
expenses as follows: (a) travel with the Endeavor's previous approval,
based on coach fares when available, and reasonable meals and lodging;
and (b) overnight courier and other expedited delivery costs, not to
exceed a total of $300 for all deliveries under this Statement without
prior approval of Endeavor.
24
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Statement of Work No. 1 as of the date stated
above.
iXL, Inc.
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
-----------
Title: President, iXL Learning
-----------------------
Sr. Vice President, iXL
Endeavor Technologies, Inc.
By: /s/ W. Xxxxxxx Xxxxxx
---------------------
Name: W. Xxxxxxx Xxxxxx
-----------------
Title: Chief Operating Officer
-----------------------
25
