FLUIDESIGN
WEB SITE DEVELOPMEN AND SERVICES AGREEMENT
THIS WEB SITE DEVELOPMENT AND SERVICES AGREEMENT (hereinafter the
"Agreement"), made and entered into this 30th day of November, 2000 by and
between iGoHealthy.com, Inc. (hereinafter "Client") a Colorado Corporation, and
Fluidesign (hereinafter "Fluidesign") a sole proprietorship.
RECITALS
WHEREAS, Client and Fluidesign, have agreed on a proposal, a copy of
which will be attached hereto as Exhibit A, for the design, construction and
maintenance of a world wide web site for Client (hereinafter the "Client Site");
WHEREAS, the parties now desire to formalize the proposal by entering
into this Agreement for the design, construction, and maintenance of the Client
Site;
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements of the parties hereinafter set forth, the
parties hereto, intending to be legally bound, do hereby agree as follows:
TERMS AND CONDITIONS
1. RECITALS TRUE AND ACCURATE. The recitals are true and accurate in
all material respects as of the date hereof.
2. DEFINITIONS.
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2.1 Client Content. The term "Client Content" shall mean the Client
Materials modified by Fluidesign for use on the Client Site.
2.2 Client Marks. The term Client Marks shall mean the trademarks,
trade names, service marks, or logos owned, controlled or licensed by
Client.
2.3 Client Materials. The term "Client Materials" shall mean text,
statistics, graphics, artwork, photographs, and other such materials
supplied by Client. Client Materials shall include Exclusive Materials (as
hereinafter defined), including the conversion of materials to a format
ready for display on the Client Site.
2.4 Error. The term "Error" shall mean any failure of the Client Site
to operate in accordance with its specifications or the terms and
conditions of this Agreement.
2.5 Exclusive Materials. The Term Exclusive Materials shall mean
materials made by Fluidesign for the exclusive use of the Client, whether
using Client Materials or made solely by Fluidesign, or modified by the
Fluidesign for the Client.
2.6 Launch Date. The term "Launch Date" shall mean the date on which
the Client Site, operating in a live environment on the Host Server, is
operational and publicly available to users of the World Wide Web.
2.7 Services. The term "Services" shall mean the services to be
provided by Fluidesign to Client hereunder.
3. SERVICES. Throughout the Term (as defined below), Fluidesign shall
perform and provide the Services outlined in this Article 3, and in Exhibit "A,"
and as otherwise subsequently agreed to in writing between the parties. All
Services shall be performed in a competent and professional manner by
knowledgeable, trained and qualified personnel, and all software used in the
Client Site shall be based upon open standard technologies. Fluidesign shall be
the exclusive provider of web design and hosting services to Client.
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3.1 Site Design, Construction and Maintenance. Fluidesign shall
design, construct, maintain and host the Client Site on a Host Server
designated by Fluidesign from Client Materials.
3.2 Site Maintenance and Operation. Fluidesign will operate, maintain
and support the Client Site on the terms and conditions provided for in
this agreement.
3.3 Technical Support. At reasonable times, and as reasonably
requested by Client, Fluidesign shall render the following technical
support by telephone and e-mail, at no extra charge to Client. If Client
notifies Fluidesign during Fluidesign's normal hours, Fluidesign shall
promptly respond to Client. Upon discovery or notice of an Error, as the
case may be, Fluidesign shall make reasonable efforts to supply a
work-around or correction of any Error as soon as practicable. In the event
that the Error significantly interferes with the operation of the Client
Site, Fluidesign shall endeavor to resolve such Error within the
twenty-four (24) hour period immediately following of actual notification;
provided, however, that Client acknowledges and agrees that should
notification of an Error be delivered to Fluidesign on a weekend, holiday
or after normal business hours, that any such correction shall be
undertaken by Fluidesign as soon as commercially practicable.
Notwithstanding any provision contained in this Agreement to the contrary,
Client acknowledges and agrees that if any Error should occur due to forces
or circumstances outside of the reasonable control of Fluidesign,
Fluidesign shall not be held accountable hereunder for failing to take any
measure that may be otherwise required herein.
3.4 Backup Archives. At no extra charge to Client, Fluidesign shall
maintain backup of the Client Site.
4. Proprietary Rights.
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4.1 Intellectual Property Rights. Client Materials shall remain the
copyright property of Client.. Exclusive Materials shall be made as a
contribution to a compilation and/or an audiovisual work and is done as a
"work made for hire" as that term is defined under U.S. copyright law. To
the extent that the Exclusive Materials do not qualify as a work made for
hire under applicable law, and to the extent that the Exclusive Materials
include material subject to copyright, patent, trade secret, or other
proprietary rights protection, Fluidesign hereby assigns to Client, its
successors and assigns, all right, title and interest in and to the
Exclusive Materials, including all copyrights, patents, trade secrets, and
other proprietary rights therein (including renewals thereof).
4.2 Grant of License by Client. As between Client and Fluidesign,
Client shall own all right, title and interest in and to the Client
Content. Client hereby grants to Fluidesign a non-exclusive,
non-transferable, limited license coterminous with this Agreement, to use
the Client Content under the terms and conditions of this Agreement solely
in connection with the establishment of the Client Site.
4.3 Right of Artistic and Editorial Control. Client shall have
exclusive editorial control over the Client Site. Fluidesign shall assume
primary artistic control over the Client Site; provided, however, that
Client shall have final artistic approval, which shall not be unreasonably
withheld.
4.4 Copyright Notice. Fluidesign shall cause the following copyright
notice (or any other notices as instructed by Client) to be displayed on
the first page of the Client Site on which Client Content is viewed:
"Copyright 2000 IGoHealthy.com, Inc.. All rights reserved." "Portions
Copyright 2000 Fluidesign. All rights reserved."
4.5 Trademark Usage. Fluidesign shall submit to Client for prior
written approval all proposed uses of the Client Marks, and shall not use
the Client Marks without such approval. Client reserves the right to review
any approved use of the Client Marks and to require changes in such further
use, and Fluidesign agrees to comply with any such requirements.
4.6 Rights Clearance. Client shall assume sole responsibility at
Client's sole cost and expense, for obtaining any and all rights, releases,
licenses, clearances or other permissions necessary to lawfully place any
Client Materials on the Client Site. Except with respect to the Client
Materials, Fluidesign shall have the full and complete responsibility to
obtain any rights, licenses, clearances, releases or other permission
necessary for Client to utilize the Client Site as contemplated by this
Agreement and to pay any fees or costs associated therewith. All rights,
licenses, clearances, releases, or other permissions obtained hereunder
shall be on a perpetual, irrevocable, royalty-free, transferable basis.
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5. SERVICE FEES.
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5.1 Initial Creation. Fluidesign will produce for Client a Web Page,
as described in proposal and particularly the invoice breakdown of the
proposal, for the total price of $36,753.00, of which $18,376.50 is due and
payable upon the execution of this Agreement. The balance of $18,376.50 is
due upon Launch.
5.1.1 Project Scope Change. Fluidesign, at its discretion, may at
any time during the Initial Creation phase, and after notifying the
Client, issue a "change order" should the Client change the scope of
the project significantly or add additional work to the original
project. Two copies of the change order will be provided to the Client
by Fluidesign. Client must sign both and return the change order to
Fluidesign within 7 business days of its receipt. If Client refuses to
sign such an order, all work on the Initial Creation of the project
will cease until Client agrees to do so, unless previously arranged
with Fluidesign.
5.2 During Term of Agreement.
5.2.1 Revisions to Web Site. Changes in the Web Site after the
Launch Date will be accomplished by Fluidesign at the rates set forth
in the Web Site pricing portion of the PROPOSAL. Invoices for such
work shall be rendered upon completion and shall be delinquent if not
paid within fourteen (14) days. Fluidesign may change such pricing
upon thirty (30) days' written notice to Client.
5.2.2 Hosting of the Web Site. During the term of this Agreement,
Client will pay Fluidesign or the host provider designated by
Fluidesign a fee of $99.00 per month for hosting of the Client Site.
Such fees will be paid to Fluidesign or the host provider in advance,
on or before the 10th day of each billing month. Fluidesign may change
such fee on thirty (30) days' written notice to Client.
6. TERM. This Agreement shall continue as to maintenance services and
Web Site hosting until terminated by either Client or Fluidesign upon
ninety (90) days' written notice to the other, except that if Fluidesign
notifies Client of a change in pricing, Client may terminate this Agreement
on not less than fifteen (15) days' written notice effective the date the
pricing changes otherwise would take effect.
7. CONFIDENTIAL INFORMATION. Client and Fluidesign acknowledge that in
the course of dealings between the parties, each party will acquire
information about the other party, its business activities and operations,
its technical information and trade secrets, of a highly confidential and
proprietary nature. All such confidential information will be clearly
labeled or otherwise identified as such by the party delivering such
confidential information. Each party covenants to the other that each
agrees not to use such confidential information for any purpose except the
performance of this Agreement, and not to disclose any such confidential
information to any person unless such disclosure is authorized by the other
party in writing. Fluidesign will use and maintain appropriate security
measures to honor all of its obligations under this Agreement. The
foregoing obligation of confidentiality will not apply to information that:
(i) is or becomes generally known or available by publication, commercial
use, access to the Client Site, or otherwise through no fault of either
party; (ii) is known by either party and is not subject to restriction;
(iii) is lawfully obtained from a third party who has the right to make
such disclosure without restriction; or (iv) is released for publication by
either party in writing.
8. WARRANTIES, REPRESENTATIONS, AND COVENANTS.
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8.1 By Fluidesign. Fluidesign represents, warrants and covenants that:
(i) all of the Services, whether performed by Fluidesign or any of its
subcontractors, will be rendered using sound, professional practices and in
a competent and professional manner by knowledgeable, trained and qualified
personnel; (ii) the Client Site will be designed and will operate in
conformance with the terms and conditions of this Agreement..
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8.2 By Client. Client represents, warrants and covenants that: to the
best of Client's knowledge none of the Client Materials will infringe now
or hereafter during the Term upon any copyright, patent, trade secret,
contractual or any other third-party right.
9. MISCELLANEOUS PROVISIONS..
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9.1 No Agency, Employee, Partnership or Joint Venture. Fluidesign is
acting solely as an independent contractor and not as an agent, partner
joint venturer, or employee of Client. No party shall act in any manner
contrary to the terms of this paragraph and no party shall become liable by
any representation, act or omission of the other contrary to the provisions
hereof.
9.2 Required Approvals. Where agreement, approval, acceptance, or
consent by either party is required by any provision of this Agreement,
such action shall not be unreasonably delayed or withheld.
9.3 Partial Invalidity. If any term, provision, covenant or condition
of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the provisions shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated.
9.4 No Waiver. A waiver by either of the parties hereto of any of the
covenants, conditions, or agreements to be performed by the other shall not
be construed to be a waiver of any succeeding breach thereof or of any
covenant, condition, or agreement herein contained.
9.5 No Assignment. This Agreement shall not be assigned by either
party without the prior written consent of the other party.
9.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to
principles of conflict of laws.
9.7 Entire Agreement. This Agreement and the exhibits annexed hereto,
constitute the entire agreement between the parties and supersede all
discussions and agreements between the parties prior to the date hereof. No
change, waiver, or discharge hereof shall be valid unless it is in writing
and is executed by the party against whom such change, waiver, or discharge
is sought to be enforced.
9.8 Notices. Any notice to be given hereunder by either party to the
other must be effected by certified or registered mail, postage prepaid,
return receipt requested, or by first class mail postage prepaid and by
telefax, in either case addressed as follows:
If to Client:
iGoHealthy.com, Inc.
11693 San Vicente Blvd. #310
Los Angeles, CA 90049
(253) 660-3085
If to Fluidesign:
Fluidesign
1223 Broadway St. Suite 108
Santa Monica, CA 90404
(310) 858-3700. e-mail: [email protected]
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Each party may change its address by written notice given in accordance with
this paragraph.
9.9 Attorneys' Fees. If any legal action or arbitration is necessary
to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement.
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Executed at Los Angeles, California as of the date first above
written.
CLIENT FLUIDESIGN
iGoHealthy.com, Inc. Fluidesign, a sole proprietorship
By: /s/ Farid E. Tannous By: /s/ Michael Schneider
------------------------------------ ------------------------------
Farid E. Tannous Michael Schneider
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Exhibit A
- Website Outline -
The goal for iGoHealthy.com is to create an easy-to-use site that will allow
users to quickly link to any of a number of affiliated health-related web sites.
The site will be designed with an emphasis on graphics rather than text, thus
creating visual cues for the user and allowing them to quickly and effortlessly
access the products and information they are looking for. The goal of the web
site is to create an online shopping mall.
The HealthyBucks reward system will be implemented, giving members an incentive
to keep returning to the site.
In addition, the site will feature resources such as a message board and
articles to supplement the shopping experience. These features complete the site
as a "one-stop" super-mall, where users can obtain any health-related product or
information.
- Phase Program -
All of these features will be implemented in Phases, subject to budget
limitations. The affiliate network and HealthyBucks system will be implemented
in Phase I. As many of the additional features as possible will be implemented
under Phase I, and the rest will be implemented in Phase II, as iGoHealthy's
budget allows. IGoHealthy will be able to decide, based upon the price quotes it
receives, which of the features it chooses to implement in each respective
Phase.
On the following page is the proposed site map for iGoHealthy:
Site Map
[Diagram of Site Map]
Website Detail
- Site Interface -
The interface will focus on a clean, non-intrusive design that allows users to
feel comfortable and "at home" in the site environment. Usability and navigation
will be key areas of the design, with an emphasis on simplicity. Images and
graphics will be used rather than a lot of text, allowing users to quickly scan
the site to find the information they are seeking. The interface will also be
flexible, allowing for growth of the site and the addition of more affiliate
sites in the future.
- Mall Entrance -
This section will welcome users to iGoHealthy and introduce them to the site.
Users will be able to browse different sections of the site or go immediately to
the section they are looking for.
- About iGoHealthy -
Provides information about the site and company. This section may also include
legal disclaimers and contact information.
- Member Sign-Up -
This section will explain the HealthyBucks system and allow interested users to
sign-up. Users will provide pertinent information such as email address, name,
etc. for use in the site's database. After signing up, members will receive a
login and password so that they can logon to the site as registered users. The
HealthyBucks system will then track their activity and reward them with
HealthyBucks.
- Promotions -
iGoHealthy will announce a list of promotions and special deals available to
users on the affiliate sites. Some kind of headline will be on the Mall
Entrance, drawing users into the main Promotions page. Within the page, they
will find the rest of that day/week's promotions. A search feature will allow
users to find the best prices for a specific product. These promotions and the
search function will only encompass affiliate sites.
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- Healthy Merchandise -
Users with HealthyBucks to redeem can go to this page where they will find a
list of items to purchase with their HealthyBucks. Users will also be able to
select cash as their prize, or make a charitable donation to a listed charity.
In the future, iGoHealthy will also feature its own products, which users can
purchase. A shopping cart function will be added to this section.
Website Detail
- Resource Center -
The Resource Center will act as a supplement to the shopping aspect of
iGoHealthy. Users will be able to find information and answers concerning their
health-related questions. Included in the Resource Center will be a Message
Board and Chat Room, allowing users to communicate with each other and exchange
information and experience. This will help build an online health community
based at iGoHealthy, providing both a service to users and repeat traffic to the
site. There will be a section for articles written by health experts. Featured
articles will change periodically, while older articles will be archived for
reference. An encyclopedia will be at the disposal of users, allowing them to
look up information on specific topics. Finally, there will be a directory of
services where users will be able to look for specific health services in their
areas. This will work through a search engine that will be able to search by
area/zip code, service requested, etc.
- Member Page -
This section will be limited for registered members, and will allow them to
"customize" iGoHealthy according to their preferences. It will include several
features aimed at increasing ease-of-use and adding to their iGoHealthy shopping
experience. The main component of each member's section will be their
HealthyBucks account, which keeps track of their buying activity and the number
of HealthyBucks they have accumulated. The Shopping List will allow them to view
past purchases and immediately go back to that same location on the affiliate
site to make a repeat purchase. The Shortcuts feature will allow members to
create their own list of favorite sites that they can quickly link to. My Wallet
will remember a member's credit card number and billing information, allowing
them to make purchases on a site without filling out the lengthy forms. Members
will be provided with featured articles on topics they choose. These articles
will change periodically, providing up-to-date information on pertinent health
topics. A final member feature will be the email newsletter. While not a feature
of the site, it will be a service provided to members to keep them abreast of
the latest promotions and news featured on iGoHealthy.
- Beauty & Vision, Drugstore, Sports Nutrition, Health & Fitness,
Vitamins & Herbs - These pages will contain a list of links to Affiliate sites.
Programming Detail
- 2-Part User Tracking System -
- Track which affiliate sites the user links to from Igohealthy.com. System will
capture the information on where the user is going to before it sends them to
the site they chose. - Track what a user buys on a given affiliate site, which
then awards credits based on the dollar amount of the purchase.
This portion of the project will require a script to be written in three
different languages (Cold Fusion, ASP and CGI/PERL) so that we have a solution
for any affiliate site. The script will need to be placed in the affiliate site'
s shopping cart system and will insert information on what the user purchased
into our database as well as in the affiliate's database.
- Database System -
- Keeps track of where users go, what they buy, where they're from, how many
credits they have, etc. - this part is the structuring of the database to track
this data.
- User Login/My Account System -
- Will allow users to login using a username and password to view their Healthy
Bucks totals and to redeem them for designated rewards. This will include the
signup application for the users to join iGoHealthy. - Allow users to see
listing of purchases they have made.
- Allow user to modify their account information (address, email, etc)
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- Site Administration -
- Allow igohealthy staff to modify content of all major areas of the site. -
Add/Modify/Remove Healthy Bucks rewards - Administration of the member database
and ability to send email announcements to the members.
- Chat Room - - A Javascript chat room that users could use directly on the
site. - Would involve different rooms/Sections.
- Each room would need to support a few hundred people
- Newsletter E-mailing System -
- - Sends periodic newsletters to members
Programming Detail
- Shopping Cart System -
- Allow users to buy products on the site - Use both traditional payment
(Credit) or HealthyBucks
- "Shopping List" On the Member's Page-
- Remembers past purchases, so they can look at a past purchase and link back to
that item on the affiliate site.
- "Short Cuts" On Member page -
- Allows member to set up their own list of favorite affiliates
NOTES
- Project has an estimated completion time of eight weeks. This estimate and
guarantee will take effect upon signing a contract with Fluidesign.
- All estimations are based on the assumption that the client will provide all
necessary material to Fluidesign in a timely manner. Fluidesign will not be
responsible if production is delayed due to delays in receiving content.
- All text estimations are based on the Client providing content to Fluidesign
in a web-ready format (i.e. a Microsoft Word document, HTML, etc.). Additional
charges will be assessed should typesetting services be needed.
- All text estimations are also based on the Client creating all web site
material. No copywriting fees are included with these estimates; this is a
service offered but not included in this proposal.
- Client agrees to accept a "change order" should the scope of the project
change greatly. Client agrees that production of the project may be slowed
and/or stopped by Fluidesign should Client refuse to sign such an order upon
changing the project scope.
- Throughout the project Fluidesign will contact client for approval of work.
Should the client delay responding to Fluidesign for more than 10 business days,
a charge of $150 per business day will be assessed until the client contacts
Fluidesign.
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- The client agrees to $99/month to HOST the web site. Hosting is necessary for
a web site, and is independent of this proposal.
- Payment schedule is as follows: The Client agrees to deposit 50% of the
estimate, with the remaining 50% due upon completion of the project.
- Should client elect to accept Fluidesign's recommended maintenance package, it
will allow Fluidesign to automatically update the web site content without any
additional charge.
- Work is anticipated to commence with 60 days of November 30, 2000. At this
time payment will be received as indicated above. No work will begin on the
project without a 50% deposit.
- Project is guaranteed to be completed by March 31, 2001, provided that project
commences no later than January 31, 2001.
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