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EXHIBIT 10.056
[IXL LOGO]
MASTER SERVICES AGREEMENT
This iXL Master Services Agreement (the "Agreement") is entered into this 7th
day of June, 1999 (the "Effective Date"), by and between iXL, Inc., a Delaware
corporation with a principal place of business at 0000 Xxxxx Xxxxxx ("iXL") and
the BioShield Technologies, Inc. identified below ("BioShield Technologies,
Inc."):
BioShield Technologies, Inc.
0000 Xxxxxxxxxxxxx Xxxx. Xxxxx X-000
Xxxxxxxx, XX 00000
000-000-0000
000-000-0000
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RECITALS
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A. iXL is a full service interactive services provider offering various
services and products including but not limited to strategic
consulting, Web development, multimedia development, custom software
development, laptop based presentation products, Web site management
applications, Web site hosting, and Web site marketing (the "iXL
Services").
B. Client desires to engage iXL to provide Client with various iXL
Services on the terms provided herein.
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth below, the parties agree as follows:
1. The Agreement and Statement(s) of Work.
1.1. Client hereby engages iXL to provide services or products as
described in a Statement of Work, which shall at a minimum
include a description of the services to be provided and the
corresponding fees (a "Statement of Work").
1.2. If there is any difference between the terms and conditions
of any 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 16.10 (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 Section 16.10
of this Agreement and any language in a Statement of Work,
Section 16.10 of this Agreement shall control.
2. Change Orders; Administration. Any modifications to the specifications
in a Statement of Work shall require execution of a written change
order by both parties to this Agreement (a "Change Order") which shall
substantially conform to the format of the document attached hereto.
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.
3. Method of Performing Services. 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
and the approval of Client, which shall not be unreasonably withheld.
iXL may, with the prior written consent of Client, engage
subcontractors to perform any of the services provided hereunder.
During the Term (defined below) and thereafter, iXL shall retain the
right to perform any and all services for other clients, and Client
shall retain the right to cause work of the same or a different kind
to be performed by its own personnel or other contractors.
4. Advertising and Credit.
Except as provided herein, no press release, announcement,
publication, or other use of the other party's insignia logos,
trademarks, tradename or service marks (collectively, the "Marks")
shall be made by either party without the other party's prior written
approval. During the term of this Agreement, iXL may list Client as a
client of iXL in all iXL marketing materials, and iXL may include
either a URL or plain text link to Client's Web site on iXL's Web
site. All use by either party of the other party's Marks will inure to
the benefit of the party owning the Marks. Upon termination of this
Agreement, neither party shall have any continuing right to use the
other party's Marks and each party shall immediately cease all such
use of the other party's Marks.
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5. Term and Termination.
5.1. Term. This Agreement shall be effective when signed by both
parties and thereafter shall remain in effect until
terminated pursuant to the provisions of this Section 5.
5.2. Termination for Cause.
5.2.1. Termination of Agreement. In the event that either
party hereto materially defaults in the performance of
any of its duties or obligations under the Agreement
(except for a default in payments to iXL) and does not
substantially cure such default within thirty (30) days
after being given written notice specifying the
default, then the non-defaulting party may, by giving
written notice thereof to the defaulting party,
terminate this Agreement as of a date specified in
such notice of termination.
5.2.2. Termination of Individual Statement of Work. In the
event that either party hereto materially defaults in
the performance of any of its duties or obligations
under a Statement of Work (except for a default in
payment to iXL) and does not substantially cure such
default within thirty (30) days after being given
written notice specifying the default, then the
non-defaulting party may, by given written notice
thereof to the defaulting party, terminate the
Statement of Work as of a date specified in such notice
of termination. Termination of a Statement of Work for
cause shall have no effect upon any other Statements of
Work that may be in effect under this Agreement.
5.3. Termination Upon Completion of all Statements of Work. If
there are no outstanding Statements of Work under which
services are still being provided by iXL to Client, upon
thirty (30) days written notice to the other, either party
may terminate this Agreement as of the date specified in such
notice of termination.
5.4. Termination for Nonpayment. In the event that Client defaults
in the payment when due of any amount due to iXL hereunder and
does not cure such default within thirty (30) days of the date
of the invoice, then iXL may, by giving written notice thereof
to Client, terminate this Agreement as of a date specified in
such notice of termination.
5.5. Termination for Insolvency. In the event that either party
hereto becomes or is declared insolvent or bankrupt, is the
subject of any proceedings relating to its liquidation,
insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of
all or substantially all of its obligations, then the other
party hereto may, by giving written notice thereof to such
party, terminate this Agreement as of a date specified in
such notice of termination.
5.6 Termination at Will. Client may, upon ten days' prior written
notice to iXL and in its sole discretion, terminate this
Agreement and all Statements of Work hereunder.
5.7. Effect of Termination. Upon termination of this Agreement,
Client shall be obligated to pay iXL for all services rendered
pursuant to any outstanding Statements of Work (to the extent
such services were rendered in conformity with this Agreement,
including without limitation Section 10.3 hereof) through the
effective date of such termination. Upon termination of a
Statement of Work, Client shall be obligated to pay iXL for
all services rendered pursuant to the Statement of Work
through the effective date of such termination. In either
such event, payment for such services shall be made in
accordance with the rates set forth in the relevant Statement
of Work, or iXL's standard published rates, whichever is less.
In the event of any termination of this Agreement or any
Statement of Work (other than a termination pursuant to
Section 5.4 hereof), (i) iXL shall promptly deliver full and
complete copies of all work product completed through the
effective date of such termination, including all work in
process; (ii) if such work product shall include any software
or other materials or data owned by iXL, such software,
materials or data shall be deemed to be licensed to Client on
a non-exclusive, perpetual, worldwide and royalty-free basis;
and (iii) iXL shall cooperate in all reasonable respects with
a transition of such work to a new vendor or to Client's
internal information systems personnel.
5.8. Survival. Termination of this Agreement by either party
pursuant to the provisions of this Section 5 shall terminate
each party's obligations under this Agreement except for the
provisions of Section 6 (Payments to iXL), Section 7
(Confidentiality), Section 9 (Client Representations and
Warranties), Section 10 (iXL Warranties), Section 11
(Exclusion of Warranties), Section 12 (Limits of Liability),
Section 13 (Indemnification), Section 14 (Non-Solicitation),
Section 16.4 (Governing Law), and Section 16.10 (Non-Agency),
all of which shall survive termination of this Agreement.
6. Payments to iXL.
6.1. Charges. For the services provided hereunder, Client shall
pay to iXL the fees in the amount and manner set forth in a
Statement of Work. All fees and expenses incurred by iXL in
the performance of the services will be billed to Client on a
monthly basis or as set forth in a Statement of Work.
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6.2. Expenses. Client will pay, or reimburse iXL for, any
out-of-pocket expenses, including, without limitation,
travel and travel-related expenses, incurred by iXL at the
request of or with the approval of Client in connection with
the performance of this Agreement. Reasonable and customary
expenses incurred by iXL, including without limitation
expenses incurred for travel, including local
transportation, lodging, meals, telephone, shipping and
duplicating, will be billed to Client at actual cost. Travel
expenses incurred by iXL personnel on behalf of Client shall
be consistent with iXL travel policy. Such travel policy is
available upon Client's request.
6.3. Taxes. Client will pay all sales, use, transfer, privilege,
excise or other taxes and all duties, whether international,
national, state or local, however designated, which are
levied or imposed by reason of the transactions contemplated
hereby; excluding, however, income taxes on profits which
may be levied against iXL.
6.4. Time of Payment. Any sum due iXL hereunder will be due and
payable within thirty (30) days after the due date of an
invoice therefor from iXL. If Client fails to pay any amount
due within thirty (30) days from the date of the invoice,
late charges may apply. In addition, failure of Client to
pay any invoiced amount within sixty (60) days after the
date of the invoice shall be deemed a material breach of
this Agreement, justifying iXL's suspension of the
performance of the Services, and shall be sufficient cause
for immediate termination of this Agreement by iXL. No
failure by iXL to request any such payment or to demand any
such performance shall be deemed a waiver by iXL of Client's
obligations hereunder or a waiver of iXL's right to
terminate this Agreement.
6.5. Legal Fees. If either party shall fail to fully perform its
obligations hereunder, such party agrees to pay, in addition
to any amount past due, plus interest accrued thereon, all
reasonable expenses incurred by the non-breaching party in
enforcing this Agreement, including, but not limited to, all
expenses of any legal proceeding related thereto and all
reasonable attorneys' fees incurred in connection therewith.
7. Confidentiality.
7.1. During the course of performance of this Agreement, each
party may disclose to the other certain confidential
information as defined in Section 7.2 below. Each party
shall hold the other party's Confidential Information in
confidence and shall use its best efforts to protect it.
Each party shall not disclose the other party's
Confidential Information to any third party, and shall use
it for the sole purpose of performing under this Agreement.
At the conclusion of this Agreement, each party shall
either return the other's Confidential Information in its
possession (including all copies) or shall, at the
disclosing party's direction, destroy the other party's
Confidential Information (including all copies) and certify
its destruction to the disclosing party.
7.2. "Confidential Information" means any information provided
by either party or prepared by either party (either oral,
written, or digital) upon review of such information,
technical data, or know-how provided to either party by the
other (including any director, officer, employee, agent, or
representative of the other) or obtained by either party
from the other (including any director, officer, employee,
agent, or representative of the other) including but not
limited to, that which relates to research, product plans,
products, services, Clients, markets, software,
developments, inventions, processes, designs, drawings,
engineering, hardware configuration information, marketing
or finances of the disclosing party.
7.3. The term "Confidential Information" shall not include any
information which: (a) is in the public domain at the time
of disclosure or enters the public domain following
disclosure through no fault of the receiving party, (b) the
receiving party can demonstrate as already in its
possession prior to disclosure hereunder or is subsequently
disclosed to the receiving party with no obligation of
confidentiality by a third party having the right to
disclose it or (c) is independently developed by the
receiving party without reference to the disclosing party's
Confidential Information.
7.4. Either party may disclose the other party's Confidential
Information upon the order of any competent court or
government agency; provided that prior to disclosure the
receiving party shall inform the other party of such order.
7.5. Each party agrees that its obligations provided in this
Section 7 are necessary and reasonable in order to protect
the disclosing party and its business, and each party
expressly agrees that monetary damages would be inadequate
to compensate the disclosing party for any breach by the
receiving party of its covenants and agreements set forth
in this Agreement. Accordingly, each party agrees and
acknowledges that any such violation or threatened
violation will cause irreparable injury to the disclosing
party and that, in addition to any other remedies that may
be available, in law, in equity or otherwise, the
disclosing party shall be entitled to obtain injunctive
relief against the threatened breach of this Agreement or
the continuation of any such breach by the receiving party,
without the necessity of proving actual damages.
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8. Advertising.
8.1. No press release, announcement, publication, or other use
of the other party's insignia logos, trademarks, tradename
or service marks (collectively, the "Marks") shall be made
by either party without the other party's prior written
approval. All use by either party of the other party's
Marks will inure to the benefit of the party owning the
Marks. Upon termination of this Agreement, neither party
shall have any continuing right to use the other party's
Marks and each party shall immediately cease all such use
of the other party's Marks.
8.2. In no event shall either party alter, remove, obscure,
erase or deface or hide from view, any copyright, trademark
or other proprietary rights notice of the other party
contained on or incorporated into any deliverable developed
hereunder.
9. Client Representations and Warranties.
9.1. Client represents and warrants that Client has full
corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby.
9.2. This Agreement has been duly and validly executed and
delivered by Client and constitutes the valid and binding
agreement of Client, enforceable against Client in
accordance with its terms.
10. iXL Warranties.
10.1. iXL represents and warrants that it has full corporate
power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
10.2. This Agreement has been duly and validly executed and
delivered by iXL and constitutes the valid and binding
Agreement of iXL, enforceable against iXL in accordance
with its terms.
10.3. iXL further represent and warrants that it will perform the
services in material conformity to the specifications set
forth in a Statement of Work contemplated hereunder in a
professional and workmanlike manner.
11. Exclusion of Warranties. APART FROM THE SPECIFIC WARRANTIES SET OUT
HEREIN OR IN A STATEMENT OF WORK ATTACHED HERETO, ALL SERVICES AND
PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS"
BASIS. NEITHER iXL NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS,
DIRECTORS, AGENTS OR LICENSORS WARRANTS THAT THE SERVICES OR PRODUCTS
PROVIDED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR
FREE, NOR DO THEY WARRANT THAT CERTAIN RESULTS MAY BE OBTAINED BY
CLIENT IN CONNECTION WITH iXL'S RENDERING OF SERVICES OR PROVISION OF
PRODUCTS HEREUNDER. iXL AND ITS AFFILIATES, EMPLOYEES, OFFICERS,
DIRECTORS, AGENTS AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR
REPRESENTATION EITHER EXPRESS OR IMPLIED REGARDING THE
MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY
SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT. iXL DOES NOT MAKE
ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY
VENDORS SUGGESTED BY iXL.
12. Limits of Liability.
12.1. NOTWITHSTANDING ANY TERM OR PROVISION CONTAINED IN THIS
AGREEMENT, IN NO EVENT WHATSOEVER SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON, FIRM OR
CORPORATION, FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR OTHER
SIMILAR TYPE OF DAMAGES, INCLUDING YET NOT LIMITED TO
DAMAGES BASED UPON LOSS OF PROFITS AND/OR LOSS OF BUSINESS
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE
PERFORMANCE THEREOF, THE USE OF THE PRODUCTS PROMISED OR
SERVICES DELIVERED PURSUANT TO THIS AGREEMENT, AND/OR A
PARTY'S ALLEGED BREACH OF THIS AGREEMENT, WHETHER OR NOT
THE OTHER PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN, OF
THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON, FIRM OR
CORPORATION, FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE THEREOF,
THE PRODUCTS OR SERVICES DELIVERED PURSUANT TO THIS
AGREEMENT, AND/OR A PARTY'S ALLEGED BREACH OF THIS
AGREEMENT, IN ANY AMOUNT OF MONEY WHICH SHALL EXCEED THE
AMOUNT OF THE FEE PAID BY CLIENT TO iXL WITH RESPECT TO THE
STATEMENT OF WORK UNDER WHICH THE CLAIM IS MADE.
12.3. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION
SHALL APPLY TO ALL CAUSES OF ACTION,
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INCLUDING, YET NOT LIMITED TO, BREACH OF CONTRACT, BREACH
OF WARRANTY, STRICT LIABILITY, NEGLIGENCE MISREPRESENTATION
AND OTHER TORTS, AND LIABILITY BASED UPON THE PROVISIONS OF
ANY PART OF THIS AGREEMENT AND ANY FEDERAL, STATE AND/OR
LOCAL LAW AND/OR ORDINANCE. THE LIMITATIONS ON LIABILITY
REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT AND NEITHER
PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT
THEIR INCLUSION. THE LIMITATIONS ON LIABILITY SET FORTH IN
THIS SECTION SHALL HAVE NO APPLICABILITY TO ANY WARRANTY OF
TITLE, OR INDEMNITY AGAINST INFRINGEMENT, SET FORTH IN ANY
STATEMENT OF WORK, OR TO ANY CLAIM OF BREACH OF ANY TERM OF
SECTION 7 HEREOF.
13. Indemnification. 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 from claims of
third parties and as a direct result of a breach of this Agreement by
the Indemnifying Party, including without limitation, reasonable
attorneys fees and expenses.
14. Non-Solicitation. During the term of this Agreement and for two (2)
years after the termination of this Agreement, a party shall not,
directly or indirectly, induce or attempt to induce any employee of
the other party to leave the employ thereof. For purposes of this
Section 14, a party shall include that party and any of its
affiliates. Both parties acknowledge that in the event that it
breaches this obligation, the non-breaching party will suffer
irreparable harm for which no adequate remedy at law exists.
15. 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 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
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Fax: 000-000-0000
Phone: 000-000-0000
With a copy to: iXL, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: T. Xxxxxxx Xxxxx, III
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Client: BioShield Technologies, Inc.
0000 Xxxxxxxxxxxxx Xxxx. Xxxxx X-000
Xxxxxxxx, XX 00000
Attn: Jacques Elfresy
Fax: 000-000-0000
Phone: 000-000-0000
With a copy to:
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Attn:
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Fax: ( )
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16. General.
16.1. Force Majeure. Neither party shall be liable to the other
for any delay or failure to perform any of the services set
forth in a Statement of Work or obligations set forth in
this Agreement due to causes beyond its reasonable control.
Performance times shall be considered extended for a period
of time equivalent to the time lost because of such delay.
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16.2. Residual Knowledge. Nothing herein shall be construed to prevent or
in any way limit iXL from using general knowledge, skill, and
expertise acquired in the performance of this Agreement in any
current or subsequent endeavors. Client shall have no interest in
such endeavors.
16.3. Assignment. This Agreement may not be assigned by Client to any other
person(s), firm(s), corporation(s) or other entities without the
prior express written approval of iXL. Any attempt by Client to
assign or transfer any of the rights, duties, or obligations of this
Agreement without iXL's written consent is void.
16.4. Governing Law. This Agreement shall be governed by and construed
solely and exclusively in accordance with the laws of the state in
which iXL's office is located, without reference to its conflicts of
law principles. Any and all disputes between the parties that cannot
be settled by mutual agreement shall be resolved solely and
exclusively in the local and federal courts located within the state
in which iXL's office is located, and Client hereby consents to the
jurisdiction of such courts and irrevocably waives any objections
thereto, including without limitation, on the basis of improper venue
or forum non conveniens.
16.5. Severability. If any of the provisions of this Agreement is or
becomes illegal, unenforceable, or invalid (in whole or in part for
any reason), the remainder of this Agreement shall remain in full
force and effect without being impaired or invalidated in any way.
16.6. Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for convenience of
reference and are not intended to explain, modify or place any
construction or limitation upon any of the provisions of this
Agreement.
16.7. Entire Agreement. No representations or statements of any kind made
by either party that are not expressly stated herein or in any
written amendment hereto shall be binding on such party. The parties
agree this Agreement, its Exhibits, and all Statements of Work
Exhibits and Change Orders thereto, shall constitute the complete and
exclusive statement of the agreement between them, and supersede all
prior or contemporaneous proposals, oral or written, and all other
communications between them relating to the subject matter hereof.
16.8. No Third-Party Beneficiaries. Nothing in this Agreement is intended
to, or shall, create any third-party beneficiaries, whether intended
or incidental, and neither party shall make any representations to
the contrary.
16.9. No Implied Waiver. No term, provision or clause of this Agreement
shall be deemed waived and no breach excused unless such waiver or
consent shall be in writing and executed by a duly authorized
representative of each party. Any consent by any party to, or waiver
of, a breach by the other, whether express or implied, shall not
constitute a consent to, waiver of, or excuse for any different or
subsequent breach.
16.10. Non-Agency. Nothing in this Agreement shall be construed to make the
parties partners, joint venturers, representatives or agents of each
other, nor shall either party so represent to any third person. The
parties hereunder are acting in performance of this Agreement as
independent contractors engaged in the operation of their own
respective businesses. A party's employees, agents or representatives
are not employees or agents of the other party and are not entitled
to any of the other party's benefits. Neither party shall be
responsible for payment of the other party's workers' compensation,
disability benefits or unemployment insurance, nor shall it be
responsible for withholding or paying employment related taxes for
the other party or its employees.
16.11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute a single agreement.
IN WITNESS WHEREOF, this Agreement was executed by the parties as of the date
first written above.
iXL Inc. BioShield Technologies, Inc.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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CHANGE ORDER FORMAT
iXL MASTER SERVICES AGREEMENT STATEMENT OF WORK CHANGE ORDER
Change Order No.____ to Statement of Work No._____
Client or iXL shall complete Question 1. iXL shall complete the remainder of
the Change Order, except for the approval/rejection portion, which shall be
completed by Client in its sole discretion. Each section may be as long or
short as the circumstances require. Additional pages may be attached as
necessary.
1. Describe changes, modifications, or additions to the
services.
These modifications were requested by: ____ Client _____ iXL
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Signature of Client Project Manager Date
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Signature of iXL Project Manager Date
2. Modifications, clarifications or supplements by iXL or
Client to description of desired changes or additions
requested in Section 1 above, if any.
3. Necessity, availability and assignment of requisite iXL
personnel and/or resources to make requested modification
or additions.
4. Impact on Costs, delivery schedule, and other requirements.
a. Changes in Costs:
b. Changes in delivery schedule:
c. Changes to any other requirements:
Change Order Is:
_____Approved and Accepted _____Rejected
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Signature of Client Project Manager Date
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Signature of iXL Project Manger Date
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EXHIBIT A
WEB SITE DEVELOPMENT AND INTERACTIVE SERVICES TERMS AND CONDITIONS
The following terms and conditions apply to Statement of Work No. 1 to the
Master Service Agreement (the "Agreement") between iXL, Inc. ("iXL") and
BioShield Technologies, Inc. ("Bioshield").
1. DEFINITIONS. For purposes of this Agreement, capitalized terms shall
have the following meaning(s):
1.1. "Client Materials" are defined in Section 2.1 below.
1.2. "Client Web Site" means the Web Site for the public
Internet or for corporate intranets or extranets to be
developed by iXL and comprised of all the Works as
described in the Statement.
1.3. "Error" means any reproducible error, problem, or defect
resulting from: (a) an incorrect functioning of the
Software that affects the functionality of the Client Web
Site in any material respect; or (b) any failure of the
Works delivered to Client hereunder to meet the
specifications in the Statement.
1.4. "Final Deliverable" means the final version of the Client
Web Site or other interactive services product that will be
delivered to Client after successful completion of a
mutually agreed upon testing plan where iXL is responsible
for verifying the technical integrity of the Client Web
Site or other interactive services product and the Client
is responsible for verifying the business function
correctness of the Client Web Site or other interactive
services product.
1.5. "Internet" means the world-wide network of computers which
provides access to the World Wide Web.
1.6. "Marks" mean the marks used on or in connection with or
associated with the Client Web Site and owned by Client.
1.7. "Software" means computer programming/formatting code or
operating instructions developed pursuant to this Agreement
and used to create any portion of Client's Web Site,
incorporated into Client's Web Site, or used to operate the
Client Web Site or a Web Server in connection with the
Client Web Site (such as, for example, HTML, Perl, C, C++,
Java, Java Script, UNIX Shell, Visual Basic Script, and
VRML code), to the extent such code or operating
instructions were (i) previously developed by iXL or (ii)
developed pursuant to this Agreement and described in a
Schedule attached hereto.
1.8. Statement. The term "Statement" shall mean Statement of
Work No. 1 to the Agreement.
1.9. "Third Party Software" means any software or other material
(for example, a standard authoring program or platform or
off-the-shelf software) which is specifically identified in
the Statement as being owned by a company or individual
other than iXL, is generally
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available to the public, including Client, under published
licensing terms, and will be used in the development of or
to display or run the Client Web Site.
1.10. "Web Browser" means software designed to allow interactive
access to the World Wide Web, including without limitation,
Navigator, Explorer, Mosaic, MacWeb/WinWeb, Cello, and
Lynx.
1.11. "Web Page" means a document or file that is formatted using
HTML and that is intended to be accessible to Internet
users with a Web Browser.
1.12. "Web Server" means a computer operated by or for Client (a)
that iXL or others use in making the Client Web Site
available on the Internet or intranet; or (b) that has a
non-live version of the Client Web Site and that is used
for making and testing content or other changes to the
Client Web Site prior to making such changes available to
the public over the Internet.
1.13. "Web Site" means a series of interconnected Web Pages which
may either be dynamically generated or may reside in a
single directory or multiple directories on a single Web
Server or multiple Web Servers.
1.14. "Works" mean the items listed as "Works to be Delivered" in
the "Project Timetable, Works Delivery and Payment
Schedule" in the Statement, each in the form that iXL has
specifically agreed to deliver that item to Client.
1.15. "World Wide Web" means all of the Web Pages that are
accessible to a typical computer user with appropriate
access to the Internet using a Web Browser.
2. SOURCE OF CERTAIN MATERIALS.
2.1. Client Marks and Materials. Client will provide a copy of
all applicable Marks and all other concepts, methods, and
materials provided by Client (with all other materials
provided by Client, its advertising agency, or Client's
other agents, including any works of authorship, the
"Client Materials").
2.2. Third Party Software. Development and use of the Client Web
Site may involve Third Party Software. Unless otherwise
specified in the Statement, iXL will be responsible for
payment for, and entering into appropriate licensing
agreements concerning Third Party Software required for the
development of the Client Web Site. Unless otherwise
specified in the Statement, the Client will be responsible
for payment for, and entering into appropriate licensing
agreements concerning use of Third Party Software required
to run and display the Client Web Site.
2.3. iXL Provided Materials. With the exception of the Client
Materials and the Third Party Software, iXL will provide
all other graphics, text, drawings, and other materials
required to produce the Client Web Site or complete any
applicable interactive services as set forth in the
Statement.
3. TIMETABLE FOR COMPLETION. iXL will provide the services and products
to prepare and complete the Client Web Site on the timetable
established in
11
the "Project Timetable, Works Delivery and Payment Schedule" in the
Statement (the "Project Timetable"). Client will provide to iXL the
Client Materials including all media elements, materials, timely
approvals, and assistance necessary for iXL to complete the Client
Web Site on the Project Timetable. Any delay by the Client 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 Client's delay. In addition,
for any Client obligation described as time-sensitive or critical in
the Statement, failure of the Client 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.
4. DELIVERY AND ACCEPTANCE. The following provisions will apply for
delivery and acceptance of the Works developed hereunder. The
standard for acceptance of the Works developed hereunder shall be
material conformity to the specifications set forth in the Statement.
4.1. Client will accept or reject the initial version and any
corrected version of each Work within thirty (30) business
days of receipt, notifying iXL in writing of the specific
nature of any Error, deficiencies or inadequacies in the
initial draft. If Client does not reject the initial draft
of any Work in writing in the manner and time period
described herein, it will be deemed to be accepted.
Notwithstanding anything to the contrary herein, Client
shall waive its right to reject any version of a Work at
such time as Client uses any portion of the Work in
productive use.
4.2. If Client rejects the initial version or any corrected
version of any Work, iXL shall have a period of seven (7)
business days from receipt of the written rejection to
correct all Errors, deficiencies or inadequacies specified
by Client and submit a revised draft.
4.3. In the event that Client and iXL cannot agree on acceptance
of, or acceptable modifications to, any Work within thirty
(30) business days following the later of (i) the date
indicated on the Project Timetable for delivery of that
Work; and (ii) the original submission of that Work to
Client, both Client and iXL shall have the option of
terminating the Statement on the terms described herein and
therein. Any such termination shall be subject to the
provisions of Section 5.7 of the Agreement.
5. ALLOCATION OF INTELLECTUAL PROPERTY RIGHTS.
5.1. RIGHTS IN THE SOFTWARE. The Software and all rights therein
including any patent, copyright, trademark, trade secret or
any other intellectual property right associated with the
Software and any source code related to the Software shall
be owned exclusively by iXL. Client shall have no claim of
ownership in any of the patent, copyright, trademark, trade
secret, or any other intellectual property right in the
Software or any source code. iXL shall retain the right to
reuse of incorporate Software whether previously developed
or developed pursuant to the Statement in other projects
for other customers.
5.2. RIGHTS IN THE WORKS (WORKS FOR HIRE AND ASSIGNMENT).
Subject to the rights of iXL in the Software described in
Sections 5.1 and with the exception of any Third Party
Software, (i) the services provided by iXL and the Works
shall constitute "works made for hire" for
12
Client, as that phrase is defined in Sections 101 and 201
of the Copyright Act of 1976 (Title 17, United States
Code), and (ii) Client shall be considered the author and
shall be the copyright owner of the Works. If any of the
Works do not qualify for treatment as "works for hire" or
if iXL retains any interest in any components of the Works
for any other reason, iXL hereby grants, assigns and
transfers to Client ownership of all United States and
international copyrights and all other intellectual
property rights in the Works, subject to certain rights of
iXL described herein, and all the rights of use with
respect thereof which are intended to be conferred under
this Section 5, free and clear of any and all claims for
royalties or other compensation except as stated in the
Statement.
5.3. RIGHTS IN THE MARKS. iXL agrees that the Marks and any
goodwill appurtenant thereto shall be owned exclusively by
Client and shall inure solely to the benefit of Client.
5.4. LIMITED LICENSE TO THE SOFTWARE. iXL hereby grants Client
in perpetuity a nonexclusive, irrevocable, perpetual and
royalty-free license throughout the universe to copy,
distribute, transmit, display, perform, create derivative
works, and otherwise use the Software in object code form,
in whole or in part, including, without limitation, the
right to add to, subtract from, arrange, rearrange, revise,
modify, change and adapt the Software and any part or
element thereof. All rights under this license shall be
exercised by the Client solely to operate, maintain,
modify, improve and make the Client Web Site or any
successor web sites available to end users. Client is
prohibited from duplicating and or distributing any
Software without the prior written consent of iXL:
provided, however that Client may copy the Software only as
needed for backup or disaster recovery procedures. All
rights in the Software not expressly granted to Client
hereunder are resumed by iXL. Without limiting the
foregoing, Client may not reverse engineer, reverse
assemble, decompile, or otherwise attempt to derive the
source code from the Software.
5.5. LIMITED LICENSE TO THE WORKS. Client 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 Works, any
Client Materials provided to iXL hereunder, and the Marks
solely for the purpose of rendering iXL's services under
the Statement. Such limited right and license shall extend
to no other materials or for any other purpose and shall
terminate automatically upon termination of the Statement
for any reason.
5.6. THIRD PARTY SOFTWARE. iXL has identified in the Statement
certain Third Party Software which may be used in the
development of (or may need to be used by Client in the
operation or modification of) the Client Web Site for which
iXL cannot grant to Client the rights set forth in Sections
5.2 and 5.4 above. Except to the extent described in a
Statement, iXL represents and warrants to Client that there
are no restrictions or royalty terms applicable to iXL's or
Client's use of such Third Party Software in making the
Client Web Site available on the Internet or in preparing
modifications of the Client Web Site to the extent
permitted hereunder.
6. DELIVERY OF WORKS. Within ten (10) business days after Client's
approval of the Final Deliverable, iXL will deliver all Works related
to the Client Web Site or other interactive services product
developed hereunder to Client. Transfer of electronic materials will
be accomplished by copying them to media to be supplied by Client or
by modem, FTP transfer, LapLink, or electronic mail transfer. iXL
shall maintain its back-ups and one set of the Works provided to
Client for a period of six (6) months after Client's approval of the
Final Deliverable.
7. DEMONSTRATION OF CLIENT WEB SITE. After Client has approved the Final
Deliverable, (i) iXL may list Client 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 home page of Client's Web
Site and incorporate those screen shots into iXL's digital and print
marketing materials; (iii) iXL will be authorized to demonstrate the
Client Web Site in presentations to current or prospective clients,
subject to the confidentiality provisions of the Agreement; (iv) a
credit and logo will be included on the bottom of the home page of
the Client Web Site similar to "created by iXL internet excellence"
which links to iXL's Web Site; and (v) iXL may include either a URL
or plain text link to the Client Web Site on iXL's Web Site. For the
purposes of this Section 7, iXL shall include iXL and its corporate
parent. In the event that the Client substantially changes the Client
Web Site using its own employees or a company other than iXL, Client
may notify iXL that the rights under this Section 7 shall no longer
apply.
8. IXL'S REPRESENTATIONS AND WARRANTIES. iXL represents and warrants to
Client that:
13
8.1. iXL is and will be the sole author of any and all Works
delivered to Client hereunder, with the exception of any
Third Party Software described in the Statement as being
used in preparing a Work;
8.2. All Works delivered to Client hereunder, excluding any
Third Party Software, 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;
8.3. The Final Deliverable accepted by Client will materially
comply with the specifications in the Statement and any
Change Orders; and
8.4. In no event whatsoever shall iXL's warranties and
representations hereunder extend or apply to any Final
Deliverables or Software modified by any party other than
iXL. Unless otherwise specified in the Statement, the Final
Deliverable will function, on the dates of delivery and
acceptance and for at least one hundred eighty (180) days
thereafter (the "Warranty Period"), with properly
configured Web Browsers and with MailServ, ListServ,
GopherServ, FTP servers, and Telnet. iXL's sole
responsibility in the event that Client discovers an Error
in the Final Deliverable during the Warranty Period, shall
be to correct such Errors, or option,if such Errors cannot
be corrected within a reasonable period of time, to refund
all Client fees paid for hereunder. All warranty claims not
made in writing within the Warranty Period shall be deemed
waived. iXL's warranty obligations are personal to Client
and may not be extended to any third party.
9. CLIENT'S REPRESENTATIONS AND WARRANTIES. Client represents and
warrants to iXL that:
9.1. Client either owns or has the right to the use (as
contemplated herein) of the Client Materials. Client
represents and warrants that the Client Materials are
either proprietary to Client or are the intellectual
property of third parties duly licensed to Client.
9.2. Client further represents and warrants that it has either
sole, exclusive title to the Client Materials or the right
to license or sub-license such Client Materials and that
such Client Materials do 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.
10. DEFENSE OF INFRINGEMENT ACTIONS.
10.1. If any action, claim, suit or proceeding is brought against
Client, alleging that the Client Web Site, the Software,
the Works, or any portion thereof (other than the Client
Materials or the Third Party Software) (the "Alleged
Infringing Material") 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 Client harmless from and against all
damages, liabilities, losses, expenses and costs, including
reasonable attorneys fees and expenses, incurred by Client
or arising in connection therewith. Client shall give iXL
prompt notice of any such claim, suit or proceeding in
writing (failure to give such notice shall not excuse iXL's
indemnity obligation hereunder, except to the extent such
failure shall materially prejudice the defense of such
claim) and give iXL full authority, control and full and
proper information and assistance (at iXL's expense) in the
defense and settlement of such claim, suit or proceeding.
iXL shall have no liability or obligation regarding any
infringement or claim which results, in whole or in part,
from any of the following: (i) Client's alteration or
modification of the Client Web Site (including any hardware
or software component contained therein); (ii) the
combination, operation, or use of the Client Web Site or
any portion thereof with equipment, software, apparatus, or
data not supplied or approved (in writing) by iXL if such
claim would have been avoided, in whole or in part, by the
use of other equipment, software, or data, whether or not
capable of achieving the same results; (iii) infringement
by a non-iXL product alone, as opposed to its combination
with items which iXL provides to Client as part of the
Client Web Site; (iv) use of superseded, altered or
allegedly infringing versions or releases of the Client Web
Site or any portion thereof if such alleged infringement
could be avoided by the use of a different version made
available by iXL; or (v) any information, design,
specification, instruction, software, data, or material not
furnished by iXL. If the Alleged Infringing Material is
finally determined by a court of competent jurisdiction to
constitute an infringement of any United States patent,
copyright or other trade secret of a third party and its
use is enjoined, iXL shall either (i) procure the right for
Client to continue to use the Alleged Infringing Material
as contemplated hereunder or (ii) replace or modify the
Alleged Infringing Material with a version thereof that is
not infringing and that satisfies the specifications in the
Statement. If iXL determines that none of these
alternatives is reasonably available, Client agrees to
return the Alleged Infringing Material to iXL within five
(5) business days of iXL's written request, iXL shall
refund all fees paid by Client in respect of such Alleged
Infringing Material, and the Statement shall then
terminate. This Section 10.1 states the entire liability of
iXL with respect to infringement of any third party
intellectual property rights by the Alleged Infringing
Material and iXL shall have no additional liability with
respect to any alleged or proven infringement.
14
10.2. If any action, claim, suit or proceeding is brought against
iXL, alleging that any of the Client Materials or Client
Web Site specifications (including, but not limited to, any
links, frames, meta-tags, or functionally equivalent
features incorporated into the Client Web Site) infringe on
a patent, copyright, trademark, trade secret, or other
intellectual property rights of any third party, Client
will defend such action, claim, suit or proceeding at its
own expense and shall indemnify and hold iXL harmless from
and against all damages, liabilities, losses, expenses and
costs, including reasonable attorneys fees and expenses,
incurred by iXL or arising in connection therewith.
Indemnification is contingent on Client being notified
promptly of such claim, suit or proceeding in writing and
is given authority, control and full and proper information
and assistance in the defense and settlement of such claim,
suit or proceeding.
10.3. The provisions of this Section 10 shall survive the
termination of the Statement.
11. NO REPRESENTATIONS OR WARRANTIES RELATING TO COMMERCE WEB SITE.
Although iXL has used its professional judgment, knowledge and
expertise in recommending various hardware and software solutions on
the Client Web Site, iXL disclaims all liability in connection with,
the operation of the Client Web Site with respect to online
commercial transactions, and shall not have any responsibility or
liability for misuse of or failure to protect credit card or other
information provided by Client's customers on the Client Web Site.
Notwithstanding the foregoing limitation, upon reasonable notice from
Client, iXL shall use reasonable efforts to correct any defects with
regard to commercial transactions capabilities of the Client Web
Site, during the term of the Statement. Client assumes the risk of
loss and absolves iXL of any liability due to (a) Client offering any
products for sale through the Client Web Site that constitute "soft"
goods, for example, telephone usage cards, for which customers are
given authorization codes by Client that are effective with or
without physical delivery of the goods sold by Client; or (b) Client
maintaining personal identification numbers or other authorization
codes in connection with the Client Web Site.
15
STATEMENT OF WORK NO. 1, PHASE I
TO THE iXL MASTER SERVICE AGREEMENT
BETWEEN IXL, INC. AND BIOSHIELD TECHNOLOGIES, INC.
The following is Statement of Work No. 1 (the "Statement"), made as of July 6,
1999, to the Master Service Agreement (the "Agreement") executed on July 6,
1999, between iXL, Inc. ("iXL") and BioShield Technologies, Inc. ("Client").
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. In addition to the work and services to
be performed by iXL pursuant to the Agreement and any other Statements of
Work existing under the Agreement, iXL shall perform services as specified
below the "Client Web Site. Such services shall be rendered in accordance
with and shall be deemed rendered pursuant to the terms and conditions of
the Agreement and the terms and conditions attached as Exhibit A to of
this Statement.
2. PAYMENT. Subject to the terms herein and those contained in the Agreement,
Client agrees to pay iXL Time and Materials in the estimated amount of
$1,890,700.
3. START DATE. iXL's services shall begin on June 8, 1999 and continue until
completion and delivery of the Client Web Site to Client or termination of
this Statement or of the Agreement.
4. SCOPE OF WORK. Bioshield Technologies vision for Allergy XxxxxXxxxx.xxx is
to be recognized as the world's leading provider of allergy products,
services, and educational information. To realize this vision requires a
thorough understanding of strategic options and successful implementation
of the best strategy. To be effective, the chosen partner must possess the
following:
- Expertise in merging business strategy and online strategies
- Experience and know-how to successfully launch a new online business
- A tightly integrated approach for realizing strategy through comprehensive
execution
- Expertise in user-centered design, creative design and engineering
implementation
The iXL Solution
iXL possesses the expertise and know-how to develop a full-functioning Allergy
XxxxxXxxxx.xxx Web site that maximizes Bioshield Technologies return on
investment. For XxxxxxxXxxxxXxxxx.xxx, we are recommending a three-stage
solution that maps to our development process (see Section 8 for details on the
process we employ). Additionally, we recommend a marketing strategy engagement
that can be completed in parallel with the development effort.
Stage I of the proposed solution is an 6-week concept engagement intended to
maximize the business opportunity and provide a conceptual framework for
further decision-making. Upon validating the concept, iXL will enter into Stage
II: high-level design and solution prototype development. Finally, upon
validating the solution prototype, we complete Stage III: deployment of the
beta version and full-release versions of the solution.
iXL also recommends a marketing strategy to bring XxxxxxxXxxxxXxxxx.xxx to
market quickly and maximize desired traffic upon release of the application.
Our strategic marketing group uses its expertise in online marketing to help
you choose the most effective programs and leverages it close relationship with
the development team to ensure the appropriate message is carried through to
the site itself.
(a) Project Specifications. Described below are details related to the
development of the Client Web Site. These details may include, but are not
limited to, information relating to proposed content, navigation, specific
features and functions, operating specifications, back-end functionality,
databases, Web Servers, and operating systems.
STAGE I -CONCEPT
Timeframe: 6 weeks
16
Estimated Cost: $ 325,650
Major Deliverables: Solution Description & Conceptual Prototype
Overview
--------
iXL believes strategy is much more than communicating to you what you already
know about your business. A valuable Internet strategy incorporates a wealth of
Web experience and tackles implementation issues within the recommendations.
What makes iXL unique?
- We think about implementation when we think about strategy
- We have a proven process which brings together our full
suite of strategic, creative, and technical expertise
- We're dedicated to the Internet
- We understand the emerging digital business models and
processes that are shaping the future of business
- We can help your business succeed in the Digital Age
iXL recommends a six week concept engagement with Bioshield Technologies: six
weeks to develop viable concepts. We have not recommended including any
business requirements, but as these needs arise we notify Bioshield of the need
and the effect on the scope of work.
Rapid Assessment
----------------
Timeframe: 3 days
Estimated Cost: $32,000 estimate includes pre and post work including
the deliverable document
Major Deliverable: Assessment of xxxxxxxxxxxxxxxxx.xxx
To kick-off this engagement, iXL will conduct a rapid three
day workshop to get a strong understanding of
xxxxxxxxxxxxxxxxx.xxx's needs since xxxxxxxxxxxxxxxxx.xxx has
already completed a valuable amount of work. To ensure, we
effectively utilize the works to date. The days will be
broken out as follows:
I. Business Requirements
II. Interface Requirements
III. Technology Requirements
Concept Determination
---------------------
Timeframe: 6 weeks
Estimated Cost: $293,650
Major Deliverable: Solution Description & Conceptual Prototype
iXL's concept determination methodology creates solution ideas that provide
crucial direction for the design and development of the release. Successful
execution of the concept phase minimizes redesign costs in future phases by
basing the solution on a sound framework. Because sites with a sound framework
go through fewer major changes over time, customers are overwhelmed less with
new releases. This consistency can:
17
- Increase customer loyalty
- Help retain market share
Concept determination brings together iXL's expertise in online strategy and
marketing, creative direction, information architecture and usability, and
technical implementation to formulate viable concepts that actualize the
proposed strategy. Each deliverable is detailed with it's purpose in the
project. During this phase the following tasks are completed:
1. CONDUCT AUDIENCE ANALYSIS
To gain an understanding of the customer segments and general goals in
order to make knowledgeable recommendations.
- Conduct Client Interviews - To gain a macro-understanding of the current
customer-base, segments, behaviors, and needs for visiting the site.
- Conduct User Assumptions Research - In the event that users are
unavailable, role-playing exercises are undertaken to provide insight
as to specific user needs.
- Measurement Analysis - To gain insight as to the current capabilities
and metrics for measurement.
2. CONDUCT TASK ANALYSIS
To gain an understanding of the specific goals and priorities that
customers come to the site to accomplish.
- Use Cases - To understand the current user needs in order to provide
clear communication as to the requirements for the upcoming software
system.
- Conduct User Interviews - To gain a qualitative understanding of
detailed user needs, goals, activities, priorities, and desires.
- Goal Composition Workshop/Exercise - To document a complete set of
understood user goals and extract a super-set of potential goals.
3. ENTERPRISE ARCHITECTURE DOCUMENT
To document an understanding of the specific technical risks to track and
most beneficial initiatives to implement them.
- Conduct Software Capabilities Review - To document an understanding
of the current and upcoming platform, architecture, and other
technical characteristics.
- Conduct Platform Limitations Review - To provide involved testing
and/or hands on review and in-depth analysis to uncover hidden risks
and issues surrounding current systems.
4. DEVELOP CREATIVE STRATEGY
To document an understanding of the specific creative and brand assets and
give visual and experiential direction for the current development.
- Client Visioning Session - To determine visual and brand assets that
maintain the corporate message and brand personality.
5. STRUCTURAL SCREEN DESIGN
To clearly document the solution from a very high level.
- Describe Solution/Vision - To give a coherent written picture of the
solution.
- Define Objectives, Expected Outcomes, Key Success Criteria, and
Critical Issues - To list all of the current known objectives and the
expected results.
- Define Solution Treatment - To document the inherent characteristics
of a successful undertaking and detail the characteristics of
success.
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- Business Use Case Model - To clearly document the business changes,
definitions, processes, roles, responsibilities, and domains affected
by the new system.
- Vocabulary of Terms - To have a set of definitions that clear any
ambiguous terms.
- Supplementary Business Specification and Business Object Model - To
provide additional and detailed information about certain business
processes and give a conceptual model.
6. ROUGH COMPS
To paint an initial picture of the software system being built.
- Rough Comps - To paint an initial picture of the software system
being built.
7. CONCEPT VALIDATION
To elicit feedback and confirm thinking and direction to date.
- Focus Group - To elicit feedback and confirm thinking and direction
to date.
8. DOCUMENT SOLUTION DESCRIPTION
To holistically document the solution and create a milestone of
completion.
iXL's creative, human factors, and technical staff work closely in this phase
to ensure that the resulting recommended solution is innovative, user-focused,
and feasible to develop and maintain. We also test the concept to validate user
acceptance. Upon completion of the concept phase, the client is given rough
comps and a solution description. These deliverables play an important role in
demonstrating to others how the strategy will be realized.
STAGE II - SOLUTION REQUIREMENTS & FUNCTIONAL PROTOTYPE
Timeframe: 6-8 weeks
Estimated Range: $480,000
Major Deliverables: Solution Requirements & Tight Comps
Solution Standards & Functional Prototype
iXL's Solution Requirements and Functional Prototype focuses upon the design of
the defined solution. Documenting the design of the solution ensures that all
components and functionality have been considered and minimizes development
errors. The end deliverable of this phase is functional prototype.
The Solution Requirements document will provide a detailed scope of work for
the development team. Once the concept has been validated from Stage I, iXL can
provide more a more precise allocation of resources and cost estimated
associated with this stage. However, iXL's experience in developing solutions
of this nature allows us to identify the following tasks that will be completed
in this stage:
1. VALIDATE COMPONENTS ANALYSIS
The components analysis will document the media-based, interface, and
interactive requirements of the system.
- Client Interview - iXL will meet with Bioshield Technologies to
discuss and document in detail the requested requirements for the
system. This meeting will address the questions and the documentation
already provided to iXL by Bioshield Technologies. Issues addressed
in this facilitated meeting will be Code, Brand, Creative,
Information
19
Architecture, Content, Design, and Navigation. This initial interview
will begin the development of three primary deliverables:
Business/User Functional Requirements; Interactive Narrative; and the
Organizational Schematic.
- Internal Components Determination Session - iXL will perform the same
task as listed in the Client Interview to determine and document the
team-driven requirements for the media-based, interface, and
interactive requirements of the systems based on information gathered
from Bioshield Technologies.
- Client Components Determination Session - iXL will conduct a workshop
with Bioshield Technologies to present the complete, harmonized
requirements. This process allows both iXL and Bioshield Technologies
the opportunity to recognize any components that perhaps were
overlooked in the client facilitated session and/or the internal iXL
team meeting.
- Components Determination Focus Group - iXL will test the defined
Business/User Functional Requirements, Interactive Narrative, and
Organizational Schematic against a focus group. iXL will use the
moderator's guide and the resulting research report to validate the
determined components.
- Requirements Attribute Document - iXL will clarify any additional or
dependent information in previous documents and gather requirement
attributes.
- Prioritize Use Cases - iXL will detail the use cases for the audience
and create the Use Case Workflow.
- Visual Linguistic/Message Studies - iXL will perform a series of
visual and linguistic studies to identify and define characteristics
desired in the development. This will allow iXL to explore and
capture various executions, document the beneficial and contrary
characteristics and prepare the requirements document.
2. CONDUCT FUNCTIONAL ANALYSIS
The functional analysis will document the engineering requirements of the
system. Within this analysis, iXL will review the business cases, business
models, and use cases with both the team and Bioshield Technologies. The
following tasks will allow iXL to prepare the functional and technical
requirements for the system:
- Determine Software/System Architecture - iXL will document the technical
architecture for development. This will involve creating the initial
document, reviewing it both with internal and Bioshield Technologies
resources, and refining the Software/System Architecture.
- Supplementary Specifications - iXL will identify and begin early
specifications of simple or risky areas, to be added to the solution
requirements document.
- Risk List and Iteration Plan - Working with the Project Manager, the
Technical Lead will begin early risk mitigation and plan reasonable
development iterations.
- Requirements Attributes Document - iXL will review the previous
documentation, update any additions and dependencies, and compose the
functional requirements attributes of the systems. This will provide
further clarification of the functional components.
20
- Design and Test Model - iXL will both write and test the code to begin
early testing of difficult or risky components. These findings will be
presented in code and test results.
3. PREPARE SOLUTION REQUIREMENTS
The Solution Requirements document will document and summarize all the software
and system requirements for the Allergy XxxxxXxxxx.xxx. The Solution
Requirements document will be comprised of Business/User Functional
Requirements and Interaction Design, User Interface Modeling and High Level
Prototype, and Architecture and Technical Requirements.
4. COMPLETE TIGHT COMPS
Tight Comps will offer Bioshield Technologies one to three final options of the
creative direction and interface layout of the system, based on the previous
conceptual prototype (rough comps) and client feedback. The objective of a
tight comp is to select the final interface design format. The work presented
during the Tight Comp stage is resolved to the stage where color palette
issues, branding and load size requirements are all known and stated.
The following tasks are associated with the completion of the tight comps:
- Client Review - iXL will elicit feedback and confirm thinking and
direction to date by reviewing the solution concept with Bioshield
Technologies and document the feedback.
- Focus Group - iXL will conduct formal focus groups to test the tight comps
against the end users of the system. iXL will prepare the facility,
procure the respondents, and create a moderator's guide with Bioshield
Technologies's input. Once completed, iXL will conduct the focus groups
and consolidate the results in a report.
- Individual Interviews - In conjunction with the focus groups, iXL will
conduct several individual interviews with users. As with the focus
groups, iXL will be responsible for procuring the respondents, creating
the moderator's guide with Bioshield Technologies's input, conducting the
interviews, and consolidating the findings in a report.
- User Testing - iXL will further assign users specific tasks to be
performed within the system, and conduct usability tests. iXL will prepare
a testing guide, procure the respondents, and create a report from these
findings.
5. PREPARE REQUIREMENTS UPDATE
Upon completion of the validation exercises, iXL will review the findings with
Bioshield Technologies and prepare updates to the solution requirements based
on the intelligence gathered.
6. SET SOLUTION STANDARDS
Setting the solution standards is a critical task to be performed before
development of the system. Once the system is fully developed, the iXL
21
Quality Assurance team will perform testing of the system based upon the
standards that were set before actual development. iXL will set solution
standards and document all of the component standards agreed to on the project
to date. To set these standards, iXL will hold several meetings both internally
and with Bioshield Technologies.
- Internal Component Standards Session - iXL will agree upon all of the
components as a team
- Internal Technical Standards Determination - iXL will agree upon al of the
technical standards as a team.
- Client Standards Determination - iXL will present Bioshield Technologies
will their agreements, and confirm the components and technical standards
with Bioshield Technologies.
7. DEVELOP FUNCTIONAL PROTOTYPE
Development of a functional prototype is designed to paint a second picture of
the software/system to be built. Bioshield Technologies will decide which of
the three functional prototypes they would like to have developed. The three
functional prototypes offer a variety of development efforts, and the decision
will depend upon how much of the system Bioshield would like to review before
development. The available prototypes include:
- High Fidelity Prototype - Create a prototype representative of the actual
deliverable in both form and function.
At the completion of this stage, the Allergy XxxxxXxxxx.xxx solution and is
ready to enter the next stage for development.
STAGE III - BETA RELEASE & FULL RELEASE
Timeframe: 12-16 weeks
Estimated Range: $1,024,000
Major Deliverables: Beta Release
Full Release
iXL has developed a series of tasks and requirements to ensure that any
developed solution meets and exceeds all client expectations. Stage III
concentrates on developing the complete solution and preparing it for release.
iXL recommends the release of the solution in two phase, beta and full, to
ensure a fully functional release to the viewing public.
Through our experience in launching solution, iXL has determined the following
tasks that will be required to launch a complete solution:
1. VALIDATE SOLUTION PROTOTYPE
The validation of the solution prototype follows similar exercises associated
with completion of the tight comps. Listed below are the tasks involved in the
validation process. Please see Complete Tight Comps in Stage II for further
detail:
- Client Review
- Third Party Review
- Focus Group
- Individual Interviews
- User Testing
22
2. PREPARE STANDARDS UPDATE
Validation of the solution prototype will flush out any standards that need to
be changed or updated. IXL will update the solutions standards document based
on the findings gathered in the validation exercises and review them with
Bioshield Technologies.
3. DEFINE SOLUTION SPECIFICATIONS
Defining the solution specifications will require a compilation of all
documents prepared to date, and holistically prepare a single document of the
solution specifications. All of the solution specifications will be reviewed
with Bioshield Technologies, updated if necessary, and finalized. The solution
specifications document will include:
- Style Guidelines - The Style Guidelines will document the reusable visual,
interface, navigational, and content components in specific detail.
- Detailed Design Specifications - This design document will record every
instance of the visual, interface, navigational, and content components in
specific detail.
- Application Design Specifications - iXL will identify and write the
specific code necessary to build the software system.
- Database Design Specifications - iXL will document the specific
application code necessary to build the database system.
4. DEVELOP CONTENT
Based on the Style Guidelines and Detailed Design Specification, iXL will
allocate an Information Architect, Art Director, Web Programmer, and Graphic
Designer to develop the content of the system.
5. DEVELOP FRONT END INTERFACE
Based on the Style Guidelines and Detailed Design Specification, iXL will
allocate an Information Architect, Art Director, Web Programmer, and Graphic
Designer to develop the front end of the system.
6. DEVELOP BACK END SYSTEMS
Based on the Application Design Specifications and Database Design
Specifications, iXL will allocate an Application Developer, Systems
Analyst/Programmer, Database Developer/Architect, Software Engineer and
Technical Lead to develop the back end engineering of the system.
7. TEST FOR QUALITY ASSURANCE
The final stage of development is the testing phase. The iXL Quality Assurance
department will test the site for spelling, broken links, browser compliance,
and any portion of the site that does not match directly up to the solution
standards document. iXL will allocate a QA Engineer, QA Technician, and QA
Tester to test the system.
23
8. RELEASE BETA SOLUTION
Once a full working version is the site has be through full testing, the site
will be launched to the identified user group.
9. VALIDATE BETA SOLUTION
To validate the beta solution, iXL will run the validation exercises described
in both the complete tight comps task in Stage II and the validate solution
prototype in Stage III. The validation exercises will include:
- Client Review
- Third Party Review
- Focus Group
10. DEFINE IMPROVEMENT PLAN
Once the feedback has been received from the beta-testing phase, iXL will
develop a plan to implement any improvements to the site that are agreed upon.
11. UPDATE SOLUTION SPECIFICATIONS
After the improvement plan is outlined, iXL will update any and all
documentation effected by the changes.
12. IMPLEMENT DEVELOPMENT CHANGES
The changes will be integrated into the site
13. TEST FOR QUALITY ASSURANCE
Let's make sure the site is still stable with all of the changes incorporated
into the site.
14. LAUNCH FULL SOLUTION
Let's get the site out!
By documenting the aforementioned tasks and following a rigorous development
methodology, iXL can confidently release all solutions and ensure client
satisfaction.
STAGE IV - MARKETING STRATEGY
Timeframe: 8 weeks
Estimated Cost: $61,050
Major Deliverables: Online Marketing & Promotion Plan
iXL's expertise in leveraging the Internet to build brand awareness and drive
significant site traffic can play a critical role XxxxxxxXxxxxXxxxx.xxx's
success. Additionally, our mechanisms for gathering customer feedback,
demographic information, and purchasing preferences can help us make decisions
that:
24
- Decrease costs in acquiring and retaining users
- Shorten marketing cycles
- Convert competitor's customers
- Increase user loyalty over time
A wide range of options exists for marketing & promotion of an online business,
as well as mining & tracking market data. There is no single, silver bullet in
a successful online marketing and promotion plan. With that in mind, our
recommended strategy includes an integrated combination of tactics, which we
continuously monitor and refine. With this approach, iXL can help
XxxxxxxXxxxxXxxxx.xxx design a flexible campaign that takes advantage of the
latest proven methods to maximize your marketing investment.
OUR ONLINE MARKETING & PROMOTION PLAN WILL INCLUDE:
- Marketing Objectives: Clear statement of agreed upon quantitative and
qualitative
- Communication Objectives
- Target Audience Identification and Analysis
- Internet Marketing & Promotion Strategy
- Internet Marketing & Promotion Tactics
- Online Advertising
- Outbound/Opt-in Email
- Search Engine Optimization
- Promotional Programs: Membership Programs, Online Events,
Contests/Sweepstakes
- Syndicated Selling Recommendations
- Creative & Messaging Strategy: Preliminary Creative Review
- Internet Media Plan
- Measurement & Tracking Recommendations
- Timeline & Detailed Budget
6. CLIENT MATERIALS. Client or its advertising agency or other
representatives will provide iXL with the following in the formats set
forth below (except for items specifically described below as being
provided by iXL):
- All current materials will be released to iXL within two weeks of the
project initiation.
iXL anticipates that the content list may change throughout the
development process. The parties agree the iXL Project Manager and Client
Project Manager can authorize reasonable changes to the content list
without execution of a Change Order, but must confirm such changes in
writing by fax or email. If the iXL Project Manager determines that the
timing or scope of requested content changes is likely to effect
contracted project costs or milestones, a Change Order is required before
the changes contemplated will be executed by iXL.
- THIRD PARTY SOFTWARE. No fees have been added into the scope of work
for the purchase of third party software for the Client Web Site. As
the fees are defined in the requirements analysis they will be
documented and presented to the client for their final decision.
7. PROJECT TIMETABLE, WORKS DELIVERY AND PAYMENT SCHEDULE. iXL has described
the major milestones, dates for delivery of Works, and corresponding
payment amounts below. Client agrees that any delay with respect to the
provision of Client Materials, approvals, or other assistance to iXL shall
extend the deadline for subsequent tasks or milestones set forth in the
table below by a period at least equal to Client's delay. In addition, for
any Client obligation described as time-sensitive or critical in this
Statement, failure of the Client 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.
25
---------------------------------------------------------------------------------------------------------------
PROJECT ESTIMATE
---------------------------------------------------------------------------------------------------------------
MILESTONE DESCRIPTION OF MILESTONE WORKS TO BE DELIVERED DATE PAYMENT
---------------- --------------------------------------- ------------------------- -------------- -------------
Kick-Off Begin Concept Phase Deliverables outlined 06/14/99 $162,825
Meeting in scope of work 50% of
phase I
---------------- --------------------------------------- ------------------------- -------------- -------------
Concept Phase Finalize Concept Phase Deliverables Deliverables outlined 07/23/99 Detailed
in scope of work Below
---------------- --------------------------------------- ------------------------- -------------- -------------
Solution Finalize Solution Requirements & Deliverables outlined 09/03/99 Detailed
Requirements & Functional Prototype Deliverables in the scope of work Below
Functional outlined in the Scope of Work
Prototype
---------------- --------------------------------------- ------------------------- -------------- -------------
Beta Release & Delivery of beta & final version and Deliverables outlined 11/29/99 Detailed
Full Release debut of the Web Site. in the scope of work Below
FINAL DELIVERABLE
---------------- --------------------------------------- ------------------------- -------------- -------------
Marketing Delivery of go to Market Strategy Deliverables outlined 09/20/99- Detailed
Strategy in the scope of work 11/12/99 Below
---------------------------------------------------------------------------------------------------------------
TOTAL ESTIMATED PRICE $ 1,890,700
---------------------------------------------------------------------------------------------------------------
8. PAYMENT SCHEDULE The client will be billed 50% of each estimated phase in
advance and will pay the remainder of that phases investment at the
completion of that phase.
9. WORKS DELIVERED TO CLIENT. Each item listed in the "Works to be Delivered"
column in the chart in above will be subject to delivery and acceptance by
the Client under the terms of the Agreement and those included in Exhibit
A. Upon iXL's request, and prior to iXL beginning work on the subsequent
Milestone, Client's Project Manager may be asked to execute a written
"Milestone/Deliverable Acknowledgement of Acceptance" indicating Client's
affirmative acceptance of a Milestone or other deliverable.
10. COMPLETION DATE. The Client Web Site is proposed for completion on
12/03/99, but is subject to change due to changes in the development
lifecycle.
11. DEVELOPMENT SITE. The URL for the development site which Client may use to
review progress under this Statement is:
xxxx://xxx.xxx.xxx.xxx/xxxxxxx/xxxxxxxxx
Username: allergies
Password: arenofun
12. IXL AND CLIENT CONTACTS.
iXL Client Manager(s) Client Project Manager(s)
Name: Xxx Xxxxxxxx Name: Jacques Elfresy
Title: Senior Sales Consultant Title: Senior Vice President
Address 1: 0000 Xxxxx Xxxxxx Address 1: 0000 Xxxxxxxxxxxxx Xxxx Xxxxx X000
Address 2: Xxxxxxx, XX 00000 Address 2: Xxxxxxxx, XX 00000
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Email: xxxxxxxxx@xxx.xxx Email:
26
15. SITE INDEXING. The payment to iXL under this Statement does not include
submitting the Web Site to index sites or other similar marketing services
except to the extent specifically described in the "Scope of Work" section
above.
16. IXL'S HOURLY RATES. iXL's standard hourly rates by category are presented
in the attached Exhibit B and will apply to any work performed in
connection with the Client Web Site that Client requests and that is not
included in the previously defined scope of work or in a Change Order:
Exhibit B iXL Rate Card(1)
--------------------------
-----------------------------------------------------------------------------------------------------------------
HOURLY DAILY
-----------------------------------------------------------------------------------------------------------------
CONSULTING GENERAL MANAGER, PRINCIPAL, SENIOR ENGAGEMENT MANAGER 350
2,800
---------------------------------------------------------------------------------------------
SENIOR CONSULTANT, ENGAGEMENT MANAGER 300
2,400
---------------------------------------------------------------------------------------------
CONSULTANT 250
2,000
---------------------------------------------------------------------------------------------
ASSOCIATE CONSULTANT, ANALYST 200
1,600
---------------------------------------------------------------------------------------------
CONSULTING COORDINATOR 175
1,400
-----------------------------------------------------------------------------------------------------------------
CLIENT DEVELOPMENT CLIENT PARTNER 275
& PROJECT 2,200
MANAGEMENT
---------------------------------------------------------------------------------------------
SENIOR PROGRAM MANAGER, TECHNICAL LEAD 250
2,000
---------------------------------------------------------------------------------------------
PROGRAM MANAGER, SENIOR PROJECT MANAGER 225
1,800
---------------------------------------------------------------------------------------------
PROJECT MANAGER, TECHNICAL PROJECT MANAGER 200
1,600
---------------------------------------------------------------------------------------------
ASSOCIATE PROJECT MANAGER/ PROJECT COORDINATOR 150
1,200
-----------------------------------------------------------------------------------------------------------------
CREATIVE SERVICES CREATIVE DIRECTOR 275
2,200
---------------------------------------------------------------------------------------------
SENIOR ART DIRECTOR 225
1,800
---------------------------------------------------------------------------------------------
ART DIRECTOR, SENIOR GRAPHIC DESIGNER 175
1,400
---------------------------------------------------------------------------------------------
GRAPHIC DESIGNER, PRODUCTION ARTIST 140
1,120
-----------------------------------------------------------------------------------------------------------------
INFORMATION INSTRUCTIONAL/INFORMATION DESIGN MANAGER, USABILITY/ COGNITIVE 275
ARCHITECT/ ENGINEERING MANAGER, HUMAN FACTORS MANAGER 2,200
INSTRUCTIONAL
DESIGNER/
USABILITY
ENGINEERING
---------------------------------------------------------------------------------------------
SENIOR USABILITY ENGINEER, SENIOR HUMAN FACTORS ENGINEER, SENIOR 225
COGNITIVE ENGINEER 1,800
---------------------------------------------------------------------------------------------
SENIOR INSTRUCTIONAL DESIGNER, SENIOR INFORMATION ARCHITECT, 200
SENIOR CONTENT DEVELOPER, USABILITY ENGINEER, HUMAN FACTORS 1,600
ENGINEER, COGNITIVE ENGINEER
---------------------------------------------------------------------------------------------
(1) Once the investment totals are reached below the iXL rates will adjust down
to the most current rate card.
27
INSTRUCTIONAL DESIGNER, INFORMATION ARCHITECT, EDITOR, CONTENT 165
DEVELOPER 1,320
-----------------------------------------------------------------------------------------------------------------
SITE DEVELOPER TECHNICAL SERVICES MANAGER, DIRECTOR SITE AUTHORING 225
1,800
---------------------------------------------------------------------------------------------
SENIOR SITE DEVELOPER/AUTHOR 200
1,600
---------------------------------------------------------------------------------------------
SITE DEVELOPER/AUTHOR II (HTML, SCRIPTING, AUTHORING) 175
1,400
---------------------------------------------------------------------------------------------
SITE DEVELOPER/AUTHOR (HTML, SCRIPTING, AUTHORING) 150
1,200
-----------------------------------------------------------------------------------------------------------------
ENGINEERING DIRECTOR APPLICATIONS DEVELOPMENT, MANAGER APPLICATIONS SYSTEMS 275
& SYSTEMS ANALYSIS AND ANALYSIS, DIRECTOR DATABASE SERVICES 2,200
---------------------------------------------------------------------------------------------
SENIOR APPLICATIONS DEVELOPER, SENIOR SYSTEMS ANALYST/ 240
PROGRAMMER, SENIOR DATABASE DEVELOPER/ARCHITECT 1,920
---------------------------------------------------------------------------------------------
APPLICATIONS DEVELOPER, SYSTEMS ANALYST/ PROGRAMMER, DATABASE 200
DEVELOPER/ARCHITECT, SENIOR SOFTWARE ENGINEER 1,600
---------------------------------------------------------------------------------------------
PROGRAMMER/ANALYST, DATABASE DEVELOPER/ARCHITECT, SOFTWARE 175
ENGINEER 1,400
-----------------------------------------------------------------------------------------------------------------
SALES ENGINEER SALES ENGINEERING MANAGER 300
2,400
---------------------------------------------------------------------------------------------
SENIOR SALES ENGINEER 275
2,200
---------------------------------------------------------------------------------------------
SALES ENGINEER 225
1,800
---------------------------------------------------------------------------------------------
ASSOCIATE SALES ENGINEER 175
1,400
-----------------------------------------------------------------------------------------------------------------
QUALITY ASSURANCE QA ENGINEER, QA MANAGER, QA DIRECTOR 225
1,800
---------------------------------------------------------------------------------------------
QA COORDINATOR, QA TECHNICIAN, QA ASSISTANT 175
1,400
---------------------------------------------------------------------------------------------
QA TESTER, QA SPECIALIST 125
1,000
-----------------------------------------------------------------------------------------------------------------
DOCUMENTATION SENIOR TECHNICAL WRITER, SENIOR COPYWRITER 200
1,600
---------------------------------------------------------------------------------------------
TECHNICAL WRITER, COPYWRITER 175
1,400
---------------------------------------------------------------------------------------------
DOCUMENTATION SPECIALIST 150
1,200
-----------------------------------------------------------------------------------------------------------------
MARKETING SERVICES VP MARKETING SERVICES, SENIOR MARKETING CONSULTANT, SENIOR MEDIA 300
CONSULTANT 2,400
---------------------------------------------------------------------------------------------
MARKETING STRATEGIST, MEDIA STRATEGIST 250
2,000
---------------------------------------------------------------------------------------------
ADVERTISING MANAGER, ACCOUNT MANAGER 225
1,800
---------------------------------------------------------------------------------------------
ADVERTISING PLANNER, ONLINE PR PLANNER, INTERACTIVE MEDIA 210
PLANNER, RESEARCHER 1,680
---------------------------------------------------------------------------------------------
ADVERTISING SPECIALIST, ONLINE PR SPECIALIST 180
1,440
-----------------------------------------------------------------------------------------------------------------
28
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. Bioshield Technologies, Inc.
By: By:
------------------------------------------ --------------------------------------------
Name: Name:
--------------------------------------- ----------------------------------------
Title: Title:
--------------------------------------- ----------------------------------------
