NEW MEDIA CONTRACT
Project Title: WOMEN'S HEALTH NETWORK WEB DESIGN AND CONSULTING
This is an agreement ("Agreement"), entered into this 29th day of March,
2000 ("Effective Date") between The MNI Group Inc./Women's Health Network
("CLIENT"), 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 and XXXXXXXXX.XXX
("KEEPSMART"), 00 Xxxxxxx Xxxxx, Xxxxxxxxx, X.X. 00000 (collectively, the
"Parties").
WHEREAS, CLIENT is a leading provider of diverse nutritional and
health-related proprietary programs and products, as well as a clearinghouse for
medical information and integrative medical content. The organization's primary
operation is the distribution of health-related information and sales of unique
wellness products.
WHEREAS, CLIENT seeks to redesign and/or incorporate new functionality
into the XXX.XXXXXXXXXXXXXXXXXXX.XXX Web site.
WHEREAS, KEEPSMART, an Internet and E-Learning consulting firm, has
submitted development proposals to assist CLIENT in achieving its goals to
develop and implement new interface designs and functional tools within the Web
site listed above.
NOW, THEREFORE, the Parties hereto agree as follows:
1.0 STATEMENT OF WORK.
1.1 SERVICES AND DELIVERABLES. KEEPSMART shall perform the services
("Services") and produce the deliverables ("Deliverables") outlined in
sections I and II of Schedule A, which is attached and made a part hereto,
and as otherwise subsequently agreed to in writing between the Parties.
All Services shall be performed under the highest professional standards.
Deliverables will be subject to CLIENT's acceptance pursuant to section
2.0 of this Agreement.
1.2 SPECIFICATIONS. KEEPSMART shall perform the Services and produce the
Deliverables in accordance with the specifications ("Specifications") set
forth in section III of Schedule A.
1.3 PRODUCTION SCHEDULE. KEEPSMART shall perform the Services and produce the
Deliverables in accordance with the production schedule ("Production
Schedule") set forth in section V of Schedule A. At all times, KEEPSMART
will make its best effort to accommodate work schedule requests of CLIENT
to the extent possible.
1.4 METHOD OF PERFORMING SERVICE. KEEPSMART will determine the general method
and means of performing the work to be carried out for CLIENT. CLIENT may,
however, require KEEPSMART personnel, including any personnel working as
subcontractors for KEEPSMART, to observe at all times the security,
confidentiality and safety policies of CLIENT. In addition, CLIENT shall
be entitled to exercise a broad, general power of supervision and control
over the results of work performed by KEEPSMART to ensure satisfactory
performance. This power of supervision shall include the right to inspect,
stop work, make suggestions or recommendations as to the details of the
work, and request modifications to the scope or nature of the Services and
Deliverables, provided, however, that any material modifications to the
scope and nature of the Services and Deliverables would be made pursuant
to section 1.6.2.
1.5 STAFFING. The Services and Deliverables hereunder will be performed and
produced pursuant to the staffing schedule as set forth in section VII of
Schedule A.
1.6 MODIFICATIONS.
1.6.1 CONFORMING MODIFICATIONS. KEEPSMART agrees to make any and all
modifications, updates and changes necessary to conform the Services and
Deliverables to their descriptions in this Agreement at no cost to CLIENT.
1.6.2 ADDITIONAL MODIFICATIONS.
(a) KEEPSMART agrees to perform and deliver any additional services and
deliverables not included under this Agreement and agrees to make
modifications, updates and changes not required to conform the Services
and Deliverables to their description in this Agreement (collectively,
"Additions") at CLIENT's written request and at a price to be negotiated
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at the time of such request, and in any event, such price shall be in an
amount not to exceed the amount for maintenance provided in section 3.4.
1.7 MAINTENANCE. KEEPSMART agrees to perform at the request of CLIENT any and
all support and maintenance required to maintain "Accepted Final Version"
(as defined in Section 2.2) in a fully functional and operational level.
CLIENT agrees to pay KEEPSMART for any such maintenance services that are
performed thirty (30) days after Final Acceptance of the Deliverables
under section 2.0 in an amount as provided under section 3.4 of this
Agreement. If for any reason KEEPSMART cannot perform support and
maintenance, it will give CLIENT sixty (60) days written notice, and
during this time shall participate in knowledge transfer and training for
whoever or whichever entity assumes responsibility for support and
maintenance will be assumed. CLIENT shall reimburse KEEPSMART for such
knowledge transfer and training in an amount not to exceed the amount for
maintenance provided in section 3.4.
2.0 ACCEPTANCE AND TESTING.
2.1 TESTING OF DELIVERABLES. KEEPSMART shall produce to CLIENT an alpha
version of the Deliverables ("Alpha Version") in accordance with the
Production Schedule and, with the full input and cooperation of CLIENT,
shall alpha test ("Alpha Test") all Deliverables thoroughly. Within ten
(10) days after the production of the Alpha Version to CLIENT, CLIENT
shall provide written notice of either (a) initial acceptance of the
Deliverables ("Initial Acceptance") and an initial list of the
corrections, if any, to be made by KEEPSMART as a result of Alpha Testing
or (b) rejection of the Deliverables and termination of the contract for
cause. Failure by CLIENT to send such notice within thirty (30) days of
receipt of the Alpha Version, will be considered to be a Final Acceptance
of the Deliverables as defined below. Throughout Alpha Testing, CLIENT
shall provide KEEPSMART with a list (or lists) of corrections to be made
to the Deliverables. Upon the conclusion of Alpha Testing, KEEPSMART shall
produce to CLIENT a beta version of the Deliverables ("Beta Version") in
accordance with the Production Schedule. Upon receipt of the Beta Version,
CLIENT shall have the option of performing beta tests ("Beta Tests") on
the Deliverables at a time, in a place and in a manner chosen by CLIENT to
determine that the Deliverables are of the kind and quality, and function
in a manner, that is acceptable to CLIENT. Upon the conclusion of Beta
Testing, CLIENT shall provide written notice of either (a) secondary
acceptance of the Deliverables ("Secondary Acceptance") with a list of the
corrections, if any, that are to be made and a suggested date for
completion which will be no shorter than seven (7) days from receipt of
such notice (the "Correction Period") or (b) rejection of the Deliverables
and termination of the contract for cause. Failure by CLIENT to send such
notice within thirty (30) days of receipt of the Beta Version, will be
considered to be a Final Acceptance of the Deliverables as defined below.
2.2 FINAL TESTING. Upon the conclusion of Secondary Acceptance or after
completion of the work to be performed during the Correction Period,
whichever is later, KEEPSMART shall produce the "Final Version" of the
Deliverables. Upon receipt of the Final Version, CLIENT shall have the
option of performing final tests ("Final Tests") on the Deliverables at a
time, in a place and in a manner chosen by CLIENT to determine that the
Deliverables are of the kind and quality, and function in a manner, that
is acceptable to CLIENT. Upon the conclusion of Final Testing, CLIENT
shall provide KEEPSMART with written notice of either (a) final acceptance
of the Deliverables ("Final Acceptance") or (b) rejection of the
Deliverables with a list of the corrections that are to be made and a
suggested date for completion which will be no shorter than seven (7) days
from receipt of such notice (the "Final Correction Period"). Failure by
CLIENT to send such notice within thirty (30) days of receipt of the Final
Version, will be considered to be a Final Acceptance of the Deliverables
(the "Accepted Final Version"). Upon the conclusion of the work to be
performed during the Final Correction Period, should the Deliverables
still be unacceptable to CLIENT, KEEPSMART shall have additional Final
Correction Periods in which to make any corrections in accordance with
this provision, except upon the conclusion of the second Final Correction
Period, CLIENT shall have the option of terminating this Agreement for
cause.
2.3 REASONABLENESS. CLIENT agrees to perform all tests in a reasonable and
timely manner and shall not unreasonably withhold Acceptance.
3.0 COMPENSATION.
3.1 FIXED COST. CLIENT shall pay the total sum in the payment structure at
specific milestone events as set forth in section VI of Schedule A, in
consideration for all Services and Deliverables pursuant to this Agreement
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unless otherwise provided by the terms of this Agreement. Payments will be
due and owing only upon a written agreement that the milestone on which a
specific payment is conditioned has in fact been met ("Milestone
Agreement"). Each Milestone Agreement will contain a breakdown and list of
included charges.
3.2 TIME FOR PAYMENT. Each payment shall be made within thirty (30) days of
each executed Milestone Agreement. A 1% monthly service charge is payable
on all overdue balances.
3.3 EXPENSES. CLIENT agrees to reimburse KEEPSMART for KEEPSMART's reasonable,
customary, necessary and actual, documented out-of-pocket expenses paid to
third parties by KEEPSMART for travel beyond one hundred (100) miles of
KEEPSMART's home office, lodging, shipping and handling to CLIENT. Any
amounts subject to reimbursement shall be billed by KEEPSMART on a monthly
basis on a statement sent to the attention of the person listed in section
IV of Schedule A, which shall set forth in complete detail the amounts
subject to reimbursement for such month, the date each expense was paid,
the date of any applicable written approval from CLIENT, and a receipt
documenting each such expense. Such statement shall be paid by CLIENT
within thirty (30) days of CLIENT's actual receipt of the statement from
KEEPSMART.
3.4 MAINTENANCE. Costs for maintenance will be agreed upon by the Parties upon
CLIENT's request for such maintenance in accordance with section 1.7.
3.5 TAXES AND EMPLOYEE BENEFITS. Each Party hereto shall be responsible for
any tax liability imposed on them as a result of the existence or
operation of this Agreement, by any government or entity. CLIENT shall not
be responsible or liable for any insurance or other benefits given to
KEEPSMART personnel or the personnel of KEEPSMART subcontractors.
3.6 CONFIDENTIALITY. KEEPSMART agrees to keep confidential all compensation
terms of this Agreement and any future Agreement relating to, or connected
with, this Agreement.
4.0 REPORTS AND AUDITS.
4.1 DEVELOPMENT REPORTS. KEEPSMART shall contact or meet with CLIENT on a
mutually acceptable schedule to report all tasks completed, problems
encountered, and recommended changes relating to the development and
testing of the Services and Deliverables and will give CLIENT a written
report on all developments to date. KEEPSMART shall inform CLIENT by
telephone upon discovery of any event or problem that may significantly
delay the development of the project and the performance of the Services
and production of the Deliverables.
4.2 MAINTENANCE OF ACCURATE BOOKS AND RECORDS. CLIENT, its outside survey
advisors and auditors may, on occasions to be agreed upon, audit
KEEPSMART's work under this Agreement. KEEPSMART agrees to keep and
maintain accurate books and records of all matters directly relating to
the performances of its obligations under this Agreement. During the Term
of the Agreement, and until one (1) year after the last fee is required to
be paid hereunder, such books and records shall be available for
inspection and audit by CLIENT, its employees, agents or auditors at the
expense of CLIENT, at KEEPSMART's offices, upon reasonable notice to
KEEPSMART.
5.0 TERM AND TERMINATION.
5.1 TERM. The Term of this Agreement shall begin on the Effective Date and
shall continue until an event of termination as set forth below.
5.2 TERMINATION BY CLIENT. CLIENT may terminate this Agreement if (i)
KEEPSMART fails to fulfill one or more of its obligations under the
Agreement or upon the failure of any of the warranties under this
Agreement, by not less than thirty (30) days written notice to KeepSmart
specifying any such breach, unless within the period of such notice all
breaches specified therein shall have been remedied, except that
terminations under section 2.0 will be effective upon receipt of written
notice by KEEPSMART, or (ii) at any time for any reason upon thirty (30)
days written notice to KEEPSMART. Upon any termination by CLIENT,
KEEPSMART shall immediately discontinue use of, and return or destroy, all
copies of Confidential Information in its possession.
5.3 TERMINATION BY KEEPSMART. If CLIENT fails to fulfill one or more of its
obligations under this Agreement or upon the failure of any of the
warranties under this Agreement, KEEPSMART may, upon its election and in
addition to any other remedies that it may have, at any time terminate
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this Agreement by it hereunder by not less than thirty (30) days written
notice to CLIENT specifying any such breach, unless within the period of
such notice all breaches specified therein shall have been remedied.
5.4 REMEDIES UPON CLIENT TERMINATION.
5.4.1 TERMINATION FOR CAUSE. Upon the termination of this Agreement by CLIENT
pursuant to sections 2.0, 5.2(i) or 5.5, CLIENT, in addition to all other
remedies available under this Agreement and under law and in equity, shall
be entitled to a refund of all monies paid to KEEPSMART in connection with
the performance of the Services and production of the Deliverables to
date, minus direct expenses expended by KEEPSMART in connection with the
performance of the Services and production of the Deliverables to date
that are reimbursable in accordance with section 3.3, minus sales
commissions paid in connection with the performance of the Services and
production of the Deliverables to date, and, minus payments to
subcontractors for work performed by such subcontractor in the case of
CLIENT's termination pursuant to section 1.5 due to a force majeure, and
KEEPSMART shall deliver to CLIENT, and CLIENT shall own, all rights and
interests to, all work completed to that date and KEEPSMART shall deliver
all work completed to date.
5.4.2 TERMINATION NOT FOR CAUSE. Upon the termination of this Agreement by
CLIENT pursuant to section 5.2(ii) prior to the occurrence of the second
milestone set forth in section VI of Schedule A, CLIENT, in addition to
all other remedies available under this Agreement and under law and in
equity, shall be entitled to a refund of all monies paid to KEEPSMART in
connection with the performance of the Services and production of the
Deliverables to date minus direct expenses expended by KEEPSMART in
connection with the performance of the Services and production of the
Deliverables to date that are reimbursable in accordance with section 3.3
and minus compensation for all work performed calculated at an hourly rate
of $150.00 per hour, or the lowest hourly rate that KEEPSMART is charging
for comparable maintenance services to other clients, but in no event will
CLIENT be liable for more than the amount that would be due pursuant to
section 3.1, and KEEPSMART shall deliver to CLIENT, and CLIENT shall own
all rights and interests to, all work completed to that date. Upon the
termination of this Agreement by CLIENT pursuant to section 5.2(ii)
subsequent to the occurrence of the second milestone set forth in section
VI of Schedule A, CLIENT, in addition to all other remedies available
under this Agreement and under law and in equity, shall be entitled to no
refund of any monies paid and shall be required to pay the balance of the
monies due under section 3.1 as a cancellation fee.
5.5 NO ASSIGNMENT & CHANGE OF CONTROL PROVISION. KEEPSMART may not assign this
Agreement without the prior written consent of CLIENT. Notwithstanding the
above, in the event of the dissolution of KEEPSMART or in the event that a
third party acquires KEEPSMART, whether by merger, purchase or otherwise,
KEEPSMART shall so notify CLIENT immediately and CLIENT shall have the
option of either continuing this Agreement or terminating this Agreement.
5.6 SURVIVAL. The rights and obligations of the Parties regarding
confidentiality pursuant to sections 3.6 and 7.0 shall survive the
expiration or termination of this Agreement.
6.0 INTELLECTUAL PROPERTY RIGHTS.
6.1 WORK FOR HIRE. Notwithstanding section 1.4, the results and proceeds of
the Services and the Deliverables provided to CLIENT pursuant to this
Agreement (collectively, the "Product"), and all rights therein, of
whatever nature, without limitation, any patent, trade secret, trademark
or service xxxx rights (and any goodwill appurtenant thereto), any rights
of publicity, and any right, title and interest in any copyright and any
right that may affix under any copyright law now or hereinafter in force
and effect in the United States or in any other country or countries,
shall be owned by CLIENT immediately from inception and shall constitute
works specially ordered or commissioned as works made for hire under the
United States Copyright Act. Without limiting any of the foregoing,
KEEPSMART hereby assigns and transfers to CLIENT all rights that KEEPSMART
may have, of whatever nature, including without limitation, any patent,
trade secret, trademark or service xxxx rights (and any goodwill
appurtenant thereto), and any right, title and interest in any copyright
and any right that may affix under any copyright law now or hereinafter in
force and effect in the United States or in any other country or
countries, in and to the Product, without condition, limitation or
reservation. CLIENT may add to, subtract from, arrange, rearrange, revise,
modify, change and adapt the Product and any element or part thereof in
its sole and absolute discretion and KEEPSMART hereby irrevocable waives
all of its rights provided in 17 U.S.C. ss.106 for any and all purposes
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for which the Product may be used, and any rights of attribution and
integrity provided in 17 U.S.C. ss.106A or any other "moral rights of
authors" with respect to the Product and any uses thereof to the full
extent now or hereafter permitted by the laws of the United States or the
laws of any country or countries for any and all purposes for which the
Product may be used.
6.2 LICENSE FURNISHING. Unless otherwise provided in this Agreement, KEEPSMART
agrees to obtain and furnish to CLIENT all appropriate assignments,
licenses, waivers and releases from all persons who created or furnished
any software or applications used in connection with, or as part of, the
Services or Deliverables ("Licensed Materials"), now or in the future, or
who otherwise might claim any rights in the Licensed Materials, which
assignments, licenses, waivers and releases shall assign and transfer to
CLIENT all rights that such persons may have, of whatever nature (in no
even less than the rights granted to CLIENT in section 6.1 above), in and
to such Licensed Materials, or KEEPSMART otherwise shall have secured from
each person a paid-up royalty free nonexclusive right and license granting
to CLIENT irrevocably and unconditionally and in perpetuity the right
throughout the universe to copy, distribute, transmit, display, perform,
create derivative works, and otherwise use and exploit the Licensed
Materials in whole or in part, including without limitation, the right to
add, subtract from, or modify in any way the License materials and any
part or element thereof, and the right to permit others to do the
foregoing.
6.3 RIGHTS EFFECTUATION. KEEPSMART agrees that, upon CLIENT's request, it will
promptly execute, acknowledge, and deliver to CLIENT or its designee such
documents as CLIENT may deem necessary to evidence, record or effectuate
any of CLIENT's rights or registrations or any of KEEPSMARTs agreements,
assignments, licenses, releases and waivers hereunder.
7.0 INTENTIONALLY LEFT BLANK
8.0 REPRESENTATIONS AND WARRANTIES.
8.1 MUTUAL PROVISIONS. KEEPSMART and CLIENT each represents and warrants
that:
(a) each has all the requisite power and authority to execute, deliver
and perform its obligations under this Agreement;
(b) the execution, delivery and performance of this Agreement have
been duly authorized by each Party hereto; and
(c) no approval, authorization, or consent of any governmental or
regulatory authority is required to be obtained or made by either
Party in order for each Party to enter into and perform their
respective obligations under this Agreement.
8.2 KEEPSMART PROVISIONS. KEEPSMART represents and warrants that:
(a) the Product shall be of the kind and quality, and shall function
in the manner described in Schedule A, however such warranty is
limited to thirty (30) days after Final Acceptance of the Product
pursuant to the terms of this Agreement;
(b) the Product does not contain and will not contain any
authorization codes, computer viruses or other contaminants,
including any codes or instructions that can access, modify,
damage or disable the computers or computer systems of CLIENT or
any user of CLIENT's Product ("Viruses") and KEEPSMART shall
indemnify and hold CLIENT harmless from any cost, loss or
liability, including attorney's fees, arising from a breach of
this warranty or the presence of such Viruses in the Product;
(c) the Product does not and will not infringe upon the proprietary
rights, including, but not limited to, trademarks, copyrights and
trade secrets, of any third party or violate any law;
(d) KEEPSMART has or will have obtained the proper licenses from third
party vendors for software and any and all applications which is
used in connection with, or as part of, the Product and will
obtain the proper licenses for software and applications which may
be used in connection with, or as part of, the Product at any time
and in the future, except that CLIENT will gain all appropriate
legal approvals and licensing arrangements for all materials,
including text, artwork and logos, which CLIENT may deliver to
KEEPSMART;
(e) KEEPSMART will assume payment for all licenses, including license
renewals, from third party vendors for software and applications
used in connection with, or as part of, the development of the
Product, except CLIENT will directly pay license fees, and act as
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licensee for, licensed stock art or animation or any other media
applications. KEEPSMART will not be liable for licenses required
for the hosting of the Product on a Web server. KEEPSMART will
obtain written approval before said licenses are purchased.
9.0 INDEMNIFICATION.
9.1 KEEPSMART INDEMNIFICATION. Subject to the provisions of section 9.3,
KEEPSMART hereby agrees to indemnify, defend and hold harmless CLIENT and
its subsidiaries, parent corporations, affiliates, officers, directors,
independent contractors, partners, shareholders, employees, agents,
licensees and successors and permitted assigns (collectively, "Indemnitee
CLIENT") from, against and in respect of any kind and all assessments,
damages, deficiencies, judgments, losses, obligations and liabilities
(including costs of collection and reasonable attorneys' fees and
expenses) (collectively "Losses") imposed upon Indemnitee CLIENT arising
from or related to:
(a) any breach of such KEEPSMART's representations, warranties,
covenants and other material obligations under this Agreement;
(b) any negligence or intentional misconduct by KEEPSMART (or its
employees, subcontractors, agents or representatives) in
performing its obligations under this Agreement;
(c) any claim by a third party that the Product infringes upon the
proprietary rights of such third party; or
(d) any damage to computers or computers systems resulting from the
use or installation of the Product.
9.2 CLIENT INDEMNIFICATION. Subject to the provisions of section 9.3, CLIENT
agrees to indemnify KEEPSMART ("Indemnitee KEEPSMART") from, against and
in respect of any kind and all assessments, damages, deficiencies,
judgments, losses, obligations and liabilities (including costs of
collection and reasonable attorneys' fees and expenses) imposed upon
Indemnitee KEEPSMART arising from or related to the use of any software or
applications to produce CLIENT's Product and that are not provided by, or
used with the knowledge of, Indemnitee KEEPSMART.
9.3 PROCEDURES. The indemnification obligations of KEEPSMART under section 9.1
and CLIENT under section 9.2 are subject to Indemnitees' compliance with
the following procedures: (i) the Indemnitee shall provide the
indemnifying Party with prompt written notice of any claim or suit that
the Indemnitee believes may result in the incurrence by it of any Loss for
which it will be entitled to indemnification; (ii) the Indemnitee shall
permit the indemnifying party or the indemnifying party's insurer to
defend or settle such claim or suit and shall cooperate with permit the
indemnifying party or the indemnifying party's insurer (at the
Indemnifying Party's expense) in defending or settling such claim or suit;
(iii) the Indemnitee shall not attempt to settle or compromise any claim
or suit without the indemnifying party's prior written consent and any
such settlement or compromise shall not be relevant as to the indemnifying
party's liability unless consented to in writing by the indemnifying
party. An Indemnitee's failure to perform its obligations under this
section 9.3 shall relieve the Indemnifying Party of its obligations under
sections 9.1 or 9.2.
10.0 REMEDIES.
10.1 REMEDIES TO CLIENT. In the event KEEPSMART breaches this Agreement in any
way or form, CLIENT shall be entitled to any and all rights and remedies
it may have, in law or in equity and pursuant to the terms of this
Agreement, and shall be entitled to an injunction restraining, temporarily
or permanently, KEEPSMART from disclosing or using, in whole or in part,
any Confidential Information.
10.2 REMEDIES TO KEEPSMART. In the event CLIENT fails to pay any amount due to
KEEPSMART under this Agreement or otherwise breaches this Agreement,
KEEPSMART's sole remedy for such failure to pay or such breach shall be an
action at law for damages, if any.
11.0 DISCLAIMERS.
11.1 MUTUALITY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Party extend only to the other Party.
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12.0 GENERAL PROVISIONS.
12.1 DEFINITIONS. Any terms not otherwise defined in any part of this Agreement
shall have their usual and customary meanings.
12.2 NOTICES. Unless otherwise provided, all communications, notices, and
agreements under this Agreement shall be in writing, by confirmed fax, or
by confirmed E-mail, except for Acceptances pursuant to section 2.0,
Milestone Agreements pursuant to section 3.1 and terminations pursuant to
section 2.0 and 5.0 which shall be in writing or by confirmed fax only,
and shall be deemed to have been duly given (i) upon personal delivery,
(ii) upon deposit in the mail if mailed by certified mail, return receipt
requested, postage prepaid, (iii) upon deposit with a recognized courier
with next-day delivery instructions, or (iv) upon confirmation of
transmission, if sent by confirmed fax or confirmed E-mail, to the person
("Representative Person") at the address or fax number set forth in
section IV of Schedule A. Should either Party wish to change its
Representative Person, it must notify the other Party in accordance with
this provision. Notwithstanding the above, should the Representative
Person be unavailable, because of vacation or otherwise, the Parties agree
to name alternate Representative Persons and to notify the other Party in
accordance with the terms of this section as to the identity, telephone
number, mail address and E-mail address of that person.
12.3 SEVERABILITY. In the event that any provision of this Agreement shall, in
whole or in part, be determined to be invalid, unenforceable or void for
any reason, such determination shall affect only the portion of such
provision determined to be invalid, unenforceable or void, and shall not
affect in any way the remainder of such provision or any other provision
of this Agreement. The Parties agree that they will negotiate in good
faith or will permit a court or arbitrator to replace any provision of
this Agreement so held invalid, unenforceable or illegal with a valid
provision that is as similar as possible in substance to the invalid,
unenforceable or illegal provision.
12.4 WAIVER. No provision of, right, power or privilege under this Agreement
shall be deemed to have been waived by any act, delay, omission or
acquiescence on the part of either party, its agents, or employees, but
only by an instrument in writing signed by an authorized officer of each
party. No waiver by either Party of any breach or default of any provision
of this Agreement by the other Party shall be effective as to any other
breach or default, whether of the same or any other provision and whether
occurring prior to, concurrent with, or subsequent to the date of such
waiver.
12.5 COOLING OFF PERIOD AND GOOD FAITH NEGOTIATIONS. If any dispute arises
under this Agreement that is not settled promptly in the ordinary course
of business, the Parties shall seek to resolve any dispute between them,
first, by negotiating promptly with each other in face-to-face
negotiations. These face-to-face negotiations shall be conducted by
designated representatives of CLIENT and KEEPSMART. If the Parties are
unable to resolve the dispute between them within twenty (20) business
days (the "Cooling Off Period," or such shorter period as the Parties
shall otherwise specify and agree in writing) through these face-to-face
negotiations, or if either Party refuses to conduct such face-to-face
negotiations, then any such disputes shall be resolved as the parties
determine to be in their best interests within the bounds of the governing
law, jurisdiction and venue requirements set forth below.
12.6 GOVERNING LAW; JURISDICTION & VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the state of New York without
taking into account its principles on conflicts of law. The Parties agree
that the United Nations Convention on Contracts for the International Sale
of Goods will not apply to this Agreement. Any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall
be settled by arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, and judgment on the
award rendered by the arbitrator may be extended in any court having
jurisdiction thereof. The American Arbitration Association Optional Rules
for Emergency Measures of Protection shall apply to the proceedings. The
Parties agree that any controversy be submitted to one arbitrator. In any
such action or proceeding, the successful or prevailing Party shall be
entitled to recover its reasonable attorneys' fees and other costs
incurred in connection with that action or proceeding, in addition to any
other relief to which such Party may be entitled.
12.7 AUTHORIZATION. The individual executing this Agreement on behalf of a
corporation or other legal entity personally represents that he or she is
duly authorized to execute this Agreement on behalf of such entity and
that this Agreement is binding upon such entity.
12.8 EXPORT CONTROL. The Parties agree to comply with all export laws,
restrictions and regulations of the United States Department of Commerce
or other United States or other sovereign agency or authority, and not to
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export, or allow the export or re-export of any technical data or any
direct product thereof in violation of any such restrictions, laws or
regulations, or unless and until all required licenses and authorizations
are obtained to the countries specified in the applicable U.S. Export
Administration Regulations (or any successor supplement or regulations).
12.9 HEADINGS. Captions and headings contained in this Agreement have been
included for ease of reference and convenience and shall not be considered
in interpreting or construing this Agreement.
12.10 ENTIRE AGREEMENT. This Agreement and Schedules which are attached hereto
and incorporated herein (a) constitutes the entire agreement of the
Parties hereto with respect to the subject matter hereof and supersedes
all prior understandings and agreements, whether written or oral, as to
such subject matter; (b) may be amended only by a writing executed by the
authorized representatives of CLIENT and KEEPSMART as provided hereunder;
(c) may not be assigned by either Party without the written consent of the
other; and (d) shall be binding upon and shall inure to the benefit of the
respective heirs, administrators, personal representatives, successors and
permitted assigns of the Parties hereto.
12.11 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. In making proof of this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart.
8
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed, as an instrument under seal, as of the Effective Date by their duly
authorized representatives and agree to be bound thereby.
THE MNI GROUP INC./WOMEN'S HEALTH NETWORK
By: /s/ XXXXXX X. XXXX
-----------------------------------
Xxxxxx X. Xxxx
President
Date
--------------------
XXXXXXXXX.XXX
By: /s/ XXXXXX XXXX
-----------------------------------
Xxxxxx Xxxx
Chief Technology Officer (CTO)
Date
--------------------
9
SCHEDULE A XXXXXXXXX.XXX
NEW MEDIA CONTRACT
Project Title: WOMEN'S HEALTH NETWORK WEB DESIGN AND CONSULTING
SCHEDULE A
1. SERVICES.
XXXXXXXXX.XXX will redesign and create functional elements for the Women's
Health Network (XXX.XXXXXXXXXXXXXXXXXXX.XXX) Web site.
The redesign effort will include the creation of new interfaces and
navigation, design of new functional elements such as: Opening Animation,
E-Commerce Catalog, Communication tools, News and Information Publishing,
Personalization features, and back-end maintenance forms.
The site's "front-end" will all be available for public viewing. The
site's "back-end" will be available to authorized site administrators
only.
2. DELIVERABLES (STRUCTURAL OUTLINE).
This section provides a structural overview of the Web site being
developed. This outline will be completed with detailed items during the
Requirements Analysis.
The following is the structural outline for the redesign of the Women's
Health Network Web site. These areas have been divided into the Front End
Templates (pages site visitors see) and Back-End Templates (password
protected pages available to individuals managing the site) for your
convenience:
FRONT END
o Opening Animation - (motivational sequence designed to
inspire and engage users)
o Home Page (also see "Registration" information)
o Conditions and Ailments
o Health Categories and Disease Information
o (To be defined)
o Health Oriented Search Engine
o Search by Ailment/Condition/Disease Name
o Search by Symptoms
o Search by Life stages
o Search by Diagnostic Evaluation and Test
Types
o Disease Treatment Options
o Conventional
o Alternative
o Experimental
o Self Directed
o Women's Wellness
o Disease Prevention
o Age Categories
o Neonatal / Pediatrics
o Adolescents
o Adults
o Geriatrics
o Neurological Diseases of
Advanced Age
1
SCHEDULE A XXXXXXXXX.XXX
o Alzheimer's & Dementia
o Parkinson's
o Multiple Sclerosis
o Pregnancy-Related Conditions
o Normal Gestational Changes
o Abnormal Gestational Changes
o Abortion
o Contraception Control
o Infertility Management
o Social and Environmental Factors & Issues
o Health Trends
o Seasonal Allergies
o Products and Services
o Product and Service Information
o E-commerce Environment
o Latest News and Information
o Physician Database and Advisor Board
(Professional References)
o Communications - Interaction with others
o Bulletin Boards
o Chat room
o E-mail Physicians
o Personalize it
o Personalize the site with the information
the user is interested in
BACK END
o Diseases Maintenance Forms
o Add New Disease
o Series of fields and information
related to the disease
o Update Disease with new information
o Women's Wellness
o Category Home Page Management Form
o Administer Information by Category
o Administer Subcategories
o Products and Services
o Maintain Products Home Page
o Add or Delete a Product
o E-commerce Maintenance
o Latest News and Information
o Maintain News and Information Home Page
o Add, Delete, and Manage Article Database
(for Physicians and MNI Staff)
o Physician Database and Advisory Board
(Professional Resources)
o Add/Delete Physician Information
o Communications - Interaction with Others
o Bulletin Board Maintenance Tools
o Chat Room Maintenance Tools
o Personalize it
o Forms for Managing Users
o Listserver - Send mail to all or subsets
of users
3. SPECIFICATIONS.
A. DATA SPECIFICATIONS
2
SCHEDULE A XXXXXXXXX.XXX
The following is a list of content items to be included in the
Women's Health Network Web site:
Cold Fusion or JSP Database Front End and Back End (for site
management)
o Home Page
o Content Pages
o Conditions and Ailments
o Women's Wellness
o Products and Services
o Latest News and Information
o Physician Database and Advisor Board
(Professional References)
o Communications - Facilitated chat back-end processes
o "Personalize it" features
Flash or Other (non 3-D) animations
o Introduction Sequence
List Server, Bulletin Board, Chat Room
o Communications
E-mail Communications
o Form Types:
o E-mail Form (General)
o Section Specific E-mail Forms
HTML
o Where Appropriate
E-Commerce
o Products and Services Catalog
Links
o As appropriate
B. SYSTEM APPLICATIONS - (target computer specifications)
USER COMPUTERS
Computer Type: PC, Macintosh
Operating System: Xxx00, Xxx00, WinNT or MacOS
CPU Speed: N/A
RAM: N/A
Screen Resolution: 640x480 (min)
Browser Version: Minimum Netscape 3.0 or IE 3.0
C. DEVELOPMENT LANGUAGE
KEEPSMART will draw from a variety of industry standard tools and
programming languages including: Adobe Photoshop, HTML, Java Server
Page technology (JSP), Macromedia Flash, Oracle, and/or other
Assignment-appropriate applications (unless otherwise defined in
Section II or III of SCHEDULE A) and be responsible for applicable
licenses. Additional License fees may be required for the hosting of
this application on a Web Server. KEEPSMART will not be responsible
for those fees.
3
SCHEDULE A XXXXXXXXX.XXX
Any KEEPSMART proprietary tools are either identified in an
attachment to this Agreement, or shall be identified in writing to
CLIENT and agreed to in advance. KEEPSMART proprietary tools as used
herein shall mean software development tools developed by KEEPSMART
or for KEEPSMART's exclusive use and which are used to prepare the
product.
D. TEXT AND GRAPHIC HANDLING
KEEPSMART and CLIENT will cooperate in developing the WOMEN'S HEALTH
NETWORK WEB DESIGN AND CONSULTING initiative.
o KEEPSMART will not be responsible for copy editing CLIENT text
pages.
o All grapics or artwork will come in the form of high quality
printed materials or EPS files (or other standardized graphic
format to be decided upon during the Requirements Finalization
phase) from the CLIENT. All graphic files will be accompanied by
a printed version of those graphics.
o KEEPSMART will make recommendations on the amount of content
present on a particular page. In the event CLIENT feels that
additional text is warranted, then CLIENT will sign off and take
responsibility for the adjustment.
o KEEPSMART will create custom art and/or use top quality stock art
when appropriate.
E. PROGRAMMING GUIDELINES
New still art, animations, text layout, and other user interface
treatments will be submitted and commented upon according to the
process outlined below.
o Based on planning discussions, KEEPSMART will provide CLIENT with
visual "treatments" which merge with material supplied by CLIENT.
A "treatment" as used herein is defined as Interface layouts,
including sketches.
o Based on comments made by CLIENT, KEEPSMART will fully develop
the mechanics or other interactive elements according to
specifications outlined during the previous discussions.
o After CLIENT reviews the progress and makes final revisions, if
needed, KEEPSMART will make up to two additional adjustments (at
client's request) to the User Interface treatment and CLIENT will
sign off on the design.
CLIENT will not be responsible for any fees or expenses for any
revisions beyond the original comments and specifications where those
revisions result from KEEPSMART's failure to develop the product in
strict adherence to the "treatments."
4. REPRESENTATIVES.
In order to facilitate continued momentum in the design, development,
production, and implementation processes, KEEPSMART requests the
assignment of a single point of contact with signing authority to be
available for inquiries. The single point of contact is critical to
maintaining forward momentum in project development.
The MNI Group Inc. / Women's Health Network XXXXXXXXX.XXX
00 Xxxx Xxxxxx Xxxxxx 00 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
4
SCHEDULE A XXXXXXXXX.XXX
Xxxx Xxxx Xxxx Xxxxxxx
000-000-0000 000-000-0000
___________________ (000) 000-0000 x000
000-000-0000 (000) 000-0000 (fax)
xxxxx@xxxxxxxx.xxx xxxxxxxxxxx@xxxx.xxx
Representative responsibilities include, but are not limited to:
o Respond to inquiries within a 24-hour period
o Compile and organize information to be provided to KEEPSMART and
to CLIENT
o Organize and schedule all meetings with internal personnel for
information gathering purposes
o Sign off on all events outlined in the Schedule and any other
notices or agreements in accordance with the terms of the Agreement
5. PRODUCTION SCHEDULE
Week of April 1, 2000 Meet with CLIENT to begin planning and
initial work on requirements analysis
(Project Lunch).
REMAINDER OF SCHEDULE TO BE DEFINED
DURING THE INITIAL DEVELOPMENT
MEETINGS.
A FINAL SCHEDULE WILL BECOME AN
ATTACHMENT TO THIS CONTRACT (TITLED
SCHEDULE B).
6. COST.
A. INVESTMENT ANALYSIS.
Exclusive of fees related to travel and lodging, overnight shipping and
handling, software licensing, unless otherwise specified.
PROJECT: WOMEN'S HEALTH NETWORK WEB SITE
PROJECT ITEM REQUIREMENTS STUDY $10,000
Develop complete site architecture document. Includes all
planning and discovery to ensure project success.
PROJECT ITEM GRAPHIC AND USER INTERFACE DESIGN $15,000
Develop interface for all main and sub pages.
PROJECT ITEM FORMS FOR DISPLAYING AND ENTERING DATABASE INFO $60,000
Includes creation of all front-end and back-end templates
for displaying information, managing, and maintaining the
site. Also includes development of templates to support
personalization features.
PROJECT ITEM RELATIONAL DATABASE DEVELOPMENT $65,000
Includes developing database structures and processes to
support the following Web components:
o Diseases (~16 fields)
o Wellness (TBD fields)
5
SCHEDULE A XXXXXXXXX.XXX
o Products and Services (custom catalog and e-commerce
environment)
o News and Information
o Physician Database
o Registered Users
PROJECT ITEM SEARCH FUNCTIONALITY FOR DATABASE STRUCTURES $30,000
Includes creation of advanced search capabilities to manage
all information contained within the relational databases.
PROJECT ITEM COMMUNICATIONS $7,500
Includes bulletin board, integrated e-mail functionality,
and Chat environment
SUBTOTAL: $187,500
Quality Assurance and Testing (5%) $9,375
Project Management (10%) $18,750
TOTAL COST FOR DEVELOPMENT $215,625
B. SCHEDULE OF PAYMENTS.
The total inclusive cost for developing the Women's Health Network Web
Design and Consulting Project, as outlined above is $215,625 to be paid in
four installments as follows:
o Milestone One 25% ($53,906) due upon Work Commencement
o Milestone Two 25% ($53,906) due upon Acceptance of Design Document
o Milestone Three 25% ($53,906) due upon Acceptance of Alpha
o Milestone Four 25% ($53,907) due upon Final Acceptance of Deliverables
7. STAFFING.
The following is a list of project personnel selected to design, develop
and deliver the Women's Health Network Web Design and Consulting Project
Project Management
Xxxx Xxxxxxx - PROJECT MANAGER. Serves as the principal project lead.
Manages the day-to-day coordination of the project.
CORE WEB SERVICES TEAM
Jovi Xxxx & Xxx Xxx - USER INTERFACE DESIGN/LAYOUT. Develops User
Interface design concepts and works with Project Manager to finalize
design. Develops layout and overall structure, look and feel of project.
Designs art elements for project.
Xxxx Xxxxxxx, Xxxxx Bruvtan, Xxxx Xxxxxx - WEB PROGRAMMING. Develops Web
programming to enable project to operate. Maintains codebases for design
platform and ensures compatibility. Works with User Interface designer to
develop overall design.
6
SCHEDULE A XXXXXXXXX.XXX
Xxxxx Xxxxx & Xxxx XxXxxxx - DATABASE PROGRAMMING. Creates all database
and additional structural elements that drive information throughout the
Web site. Maintains codebases for design platform and ensures
compatibility. Works with User Interface designer to develop overall
design.
Additional team members will be leveraged as necessary in order to
complete the project.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed, as an instrument under seal, as of the Effective Date by their duly
authorized representatives and agree to be bound thereby.
THE MNI GROUP INC./WOMEN'S HEALTH NETWORK
By: /s/ XXXXXX X. XXXX
-----------------------------------
Xxxxxx X. Xxxx
President
Date
--------------------
XXXXXXXXX.XXX
By: /s/ XXXXXX XXXX
------------------------------------
Xxxxxx Xxxx
Chief Technology Officer (CTO)
Date
--------------------
7
