Exhibit 10.11
WEBSITE DEVELOPMENT AGREEMENT
THIS WEBSITE DEVELOPMENT AGREEMENT (this "Agreement"), is entered into
this 7th day of November, 2000, by and between ORION HEALTHCARE TECHNOLOGY,
INC., an Iowa corporation ("Orion"), and LILLETHORUP PRODUCTIONS, a Nebraska
corporation ("Lillethorup").
WHEREAS, Lillethorup provides computer internet services, including,
without limitation, website design, development and support services;
WHEREAS, Orion desires to engage Lillethorup for the purposes of
designing, developing and supporting a website to provide an internet platform
to customers of Orion and Orion's affiliate, CEU2000;
NOW, THEREFORE, the parties mutually agree as follows:
AGREEMENT
1. SCOPE OF AGREEMENT
Lillethorup hereby agrees to design, develop and support, including
providing maintenance for, a website (the "Website") for and at the direction of
Orion and its affiliate, CEU2000, in conformance with the terms of this
Agreement and the specifications and descriptions set forth in the Statement of
Work ("SOW") attached to this Agreement as Exhibit A and by this reference
incorporated herein.
2. TIME OF PERFORMANCE
(a) Lillethorup will design, develop and implement the Website
in three (3) general stages, as described below:
(i) DATABASE DEVELOPMENT. Lillethorup will develop
and create the database necessary to include all fields and
functions specified by Orion as set forth in the SOW;
(ii) ASP PAGES. Lillethorup will develop and create
all ASP pages necessary for proper functioning of the Website,
and will program such pages to meet the requirements of the
SOW and include all functionality and forms/form actions; and
(iii) HOME PAGE. Lillethorup will engineer the
graphic design and html and/or Flash creation of the home page
of the Website; provided, however, that such graphic design
will commence concurrent with the database development
outlined in (i) above.
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(b) Subject to force majeure as set forth in Section 5 below,
the date of completion of the Website shall be no later than February
2, 2001. The Website will be designed and developed on the following
timeline:
(i) NOVEMBER 7, 2000: Website development
commencement date;
(ii) NOVEMBER 27, 2000: Lillethorup shall provide to
Orion, for Orion's review and approval, the initial draft of
the design of the home page of the Website and the initial
draft of the Website database;
(iii) DECEMBER 1, 2000: Orion shall provide
Lillethorup with comments and revisions to the initial drafts
provided above and Lillethorup shall begin the programming of
the ASP pages;
(iv) DECEMBER 19, 2000: Lillethorup shall provide to
Orion, for Orion's review and approval, the revised design of
the home page of the Website and the revised Website database,
each of which shall incorporate the revisions and comments
provided by Orion in (iii) above;
(v) DECEMBER 20, 2000-JANUARY 1, 2001: Holiday break,
no performance by Lillethorup required during this time;
(vi) JANUARY 16, 2001: Lillethorup shall make final
draft of all components of Website available for review and
approval or comment by Orion and shall begin testing of
Website; and
(vii) FEBRUARY 2, 2001: Lillethorup shall have
completed all components of the Website and shall have made
the Website operational and available to customers and
licensees of Orion and its subsidiaries and affiliates,
including CEU2000.
3. COMPENSATION AND TERMS OF PAYMENT
Lillethorup shall be paid a fee for its services equal to $25,000,
which fee is to be paid in three equal installments as follows:
(a) $8350 to be paid upon the commencement of the design of
the Website, which shall occur on or about November 7, 2000;
(b) $8350 to be paid upon Orion's approval of the final draft
of the Website, which shall occur on or about January 16, 2001; and
(c) $8300 to be paid sixty (60) days after the completion of
the Website to Orion's satisfaction, which shall occur on or about
February 2, 2001.
Lillethorup agrees to accept the compensation described above as full
remuneration for performing all services and furnishing all staffing and
materials and other expenses called for, all as
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outlined in the SOW; and for any reasonably foreseeable difficulties which may
arise or be encountered in the execution of the services until acceptance of the
Website; and for performance by Lillethorup of all its duties and obligations
hereunder. Lillethorup agrees that no price increases shall be passed along to
Orion during the term of this Agreement; provided, however, that in the event
Orion requests additional design or development work not contemplated by this
Agreement, Lillethorup shall, prior to commencing any such additional work,
submit for Orion's approval an estimate of any additional cost.
4. PERFORMANCE DELAYS
Except as otherwise provided below or as waived in writing by Orion,
Lillethorup shall be responsible for complying with and meeting the completion
dates outlined above. In the event any completion date is missed by more than
five business days, the final installment of the compensation to be paid to
Lillethorup shall be reduced by $200.00 for each business day after the fifth
such business day.
5. FORCE MAJEURE
Lillethorup shall not be responsible for any delays beyond the time
named for the performance of this Agreement caused by an act of God, war, civil
disturbance, labor dispute, or other cause beyond its reasonable control,
provided Lillethorup gives written notice of the cause of the delay to Orion
within ten calendar days of the start of the delay and further provided, that if
such delay shall continue for thirty (30) days, then Orion may terminate this
Agreement upon thirty (30) days' written notice to Lillethorup and Lillethorup
shall deliver and assign to Orion any and all work performed or produced up to
the date of such termination. If Lillethorup performs within said thirty (30)
day period, then this Agreement shall continue in full force and effect as
though no such notice had been given. Notice shall be given in accordance with
Section 14 of this Agreement.
6. ORION'S OPPORTUNITIES TO REVIEW
In addition to the opportunities for review outlined in Section 2
above, at Orion's option, Lillethorup shall make the Website and its components
(including the database and ASP pages) available for Orion's review on or about
December 7, 2000, January 8, 2001 and every two weeks thereafter until
completion.
7. COMMUNICATIONS
All telephone calls from Orion to Lillethorup during the term of this
Agreement shall be returned promptly by Lillethorup and in no event later than
24 hours after the telephone call is placed by Orion.
8. TERM
The term of this Agreement shall begin upon the execution of this
Agreement or the commencement of any obligation by Lillethorup hereunder and
shall end two years from the date
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that Orion accepts the Website and the Website is operational. Orion shall
deliver a letter of satisfaction accepting the Website upon Orion's final
approval and establishing the commencement of such two-year period.
9. MAINTENANCE
Lillethorup shall provide continuing maintenance and service of the Website at
no cost during the two years following the date that Orion accepts the Website
and the Website is operational.
10. TERMINATION
If Lillethorup should persistently or repeatedly refuse or should fail
to, except in cases for which extension of time is authorized by Orion, perform
its obligations under this Agreement to Orion's satisfaction, then Orion may
terminate this Agreement for cause. Prior to any termination as described above,
Orion shall submit to Lillethorup a written notice specifying its intent to so
terminate and granting Lillethorup ten business days to cure such default. In
the event such default is not cured or waived by Orion in writing, this
Agreement shall terminate. In the case of such default by Lillethorup and
resulting termination, Orion may procure the services from other sources and may
deduct the cost from any unpaid balance due to Lillethorup. The prices paid by
Orion shall be the prevailing market price at the time such purchase is made.
This is in addition to any other remedies available under the law.
Upon termination, Orion agrees to pay Lillethorup for all products and
services delivered or performed prior to termination, which meet the
requirements of this Agreement provided, however, that such compensation shall
not exceed the total compensation set forth in this Agreement as the total
compensation may be reduced by payments already otherwise made and as further
reduced by work not terminated or for services procured by Orion from other
sources.
Upon termination or other expiration of this Agreement, Lillethorup
shall promptly return to Orion all papers, materials and other properties of the
other held by it for purposes of performance under this Agreement as well as any
and all work performed or produced by Lillethorup up to the date of such
termination.
11. INDEPENDENT CONTRACTOR
Lillethorup at all times during the term of this Agreement shall be an
independent contractor. Lillethorup shall assume full responsibility for the
actions of its officers, employees, and agents as related to the services
provided under this Agreement. Nothing contained herein shall be construed as
creating the relationship of employer/employee or principal/agent between County
and Contractor.
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12. OWNERSHIP OF WEBSITE AND RELATED MATERIALS
Title to the Website and all of its components (including the database
and ASP pages) and all member or customer lists, documents, manual, patents,
copyrights, trademarks, design rights, trade secrets, moral rights and other
proprietary rights in the in the Website and its component shall be and will
remain the exclusive property of Orion, regardless of whether specifically
recognized or perfected under applicable laws. Lillethorup will not take any
action that jeopardizes such proprietary rights, or acquire any right in the
Website or its components without the express written consent of Orion.
13. CONFIDENTIALITY
Lillethorup acknowledges that in the design, development,
implementation and maintenance of the Website, Lillethorup will receive
information relating to Orion and its affiliates' business, the Website and the
customers or members of Orion and its affiliates (collectively, "Proprietary
Information"). Lillethorup agrees to keep all Proprietary Information in the
strictest of confidence and shall be liable for any damages resulting from the
disclosure of such information to any third party by Lillethorup and its
officers, agents, employees and subcontractors. Information obtained by
Contractor in the performance of this Agreement shall be treated as strictly
confidential and shall be considered Proprietary Information and shall not be
used by Lillethorup for any purpose other than the performance of this
Agreement.
14. NOTICES
Any notice under this Agreement will be deemed given if in writing and
delivered in person, by overnight delivery service, or by facsimile
transmission, receipt confirmed, or three business days after such notice is
deposited in the United States mail, postage prepaid, registered or certified
mail, return receipt requested, and addressed to the recipient party at the
address set forth below:
If to Lillethorup: Lillethorup Productions
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: XXX@XXXXXXX.XXX
If to Orion: Orion Healthcare Technology, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx and Xxxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: XXXXXXX@XXXXXXXXXXXXXXX.XXX
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With a copy to: Polk Xxxxxxx & Xxxxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail XXXXXXXX@XXXXXXXXXXX.XXX
15. MISCELLANEOUS
(a) WAIVER IN WRITING. No term or provision of this Agreement shall be
deemed waived and no breach excused, unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or consented. 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 other
different or subsequent breach.
(b) REMEDIES NOT EXCLUSIVE. The remedies for breach set forth in this
Agreement are cumulative as to one another and as to any others provided by law,
rather than exclusive; and the expression of certain remedies in this Agreement
does not preclude resort by either party to any other remedies provided by law.
(c) CHOICE OF LAW. The formation, interpretation and performance of
this Agreement shall be governed by the laws of the State of Nebraska, provided
that no section of this Agreement shall be interpreted for or against a party
because that party or its legal representative drafted such section, and this
Agreement shall be construed as if jointly prepared by the parties. No lawsuit
pertaining to any matter arising under or growing out of this Agreement shall be
instituted in any state other than Nebraska. Any legal proceeding with respect
to this Agreement shall be filed in the appropriate court of the State of
Nebraska in Xxxxxxx County, Nebraska.
(d) HEADINGS. Headings used in this Agreement are for reference
purposes only and shall not be considered in construing this Agreement.
(e) VALIDITY. The invalidity in whole or in part of any section or
provision of this Agreement shall not void or affect validity of any other
article or provision of this Agreement.
(f) ENTIRE AGREEMENT. This Agreement and all attached exhibits
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement. This Agreement may be amended only by an amendment in
writing signed by both parties.
(g) ASSIGNMENT. This Agreement shall be binding upon the parties hereto
and their respective successors and permitted assigns. Neither party may assign
or transfer this Agreement without the prior written consent of the other party;
provided, however, that Orion may assign to any of its affiliates or
subsidiaries without prior written consent.
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(h) COUNTERPARTS. This Agreement may be executed in more than one
counterpart with the same effect as if all executing parties had executed the
same document. Each such counterpart shall be deemed an original and such
counterparts, taken together, shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ORION HEALTHCARE TECHNOLOGY, INC.
By Xx X. Xxxxx
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Name Xxxxxxx X. Xxxxx
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Title CEO
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LILLETHORUP PRODUCTIONS
By Xxxxxxx X. Xxxxxxxxxxx
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Name Xxx Xxxxxxxxxxx
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Title President
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