Exhibit 10.17
***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. Sections 200.80(b)(4),
200.83 AND 240.24b-2
COLLABORATION AGREEMENT
This Agreement is dated the 3rd day of December 1999 (the "Effective
Date") and is made between E. I du Pont de Nemours and Company
("DuPont"), a Delaware corporation, having its principal place of
business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and
ImproveNet, Inc. ("ImproveNet") a Delaware corporation, having its
principal place of business at 000 Xxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxxxx
00000.
WHEREAS:
A. ImproveNet has developed and operates an internet based service
providing content on products and services to consumer endusers and
matching consumer endusers with builders/remodelers.
X. XxXxxx, among other businesses, develops, manufactures and sells
materials for countertops and other residential products.
C. ImproveNet wishes to receive from DuPont content for consumer endusers
and both wish to collaborate in the areas of brand awareness, marketing
and revenue generation.
D. Further, the parties acknowledge and understand that DuPont's
participation in the collaboration contemplated by this Agreement and
its corresponding obligations are limited to DuPont's
Corian-Registered Trademark- surfaces SBU and no other business of
DuPont is bound by any provision of this Agreement or arrangements
contemplated hereby unless and until such DuPont business agrees to
participate.
E. The parties intend to exchange with each other the services described
in this Agreement at a mutually agreed upon value in recognition that a
precise valuation of the services provided by one party to the other
party is not readily quantifiable.
IT IS HEREBY AGREED AS FOLLOWS;
1. IMPROVENET OFFERING TO DUPONT
1.1 During the entire term of this Agreement, ImproveNet agrees to
provide the following to DuPont:
(a) BANNER ADVERTISING - ImproveNet will add and maintain at least one
banner advertisement on consumer site and prosite ("Sites") rotating
through pages of the Sites that are most relevant to DuPont
Corian-Registered Trademark- surfaces products ("Products") as
mutually agreed upon by the parties and documented in Exhibit I to
this Agreement. The content for each banner shall be provided by
DuPont in a form to be mutually agreed upon with the content subject
to change up to twelve times each year at no cost to DuPont.
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(b) BUTTON ADVERTISING - ImproveNet will add and maintain a button
identifying DuPont with continuous presence on button bar for the Sites
rotating through pages of the Sites that are most relevant to DuPont
Products as mutually agreed upon by the parties and documented in
Exhibit I to this Agreement. The content for each button shall be
provided by DuPont in a form to be mutually agreed upon with the
content subject to change up to twelve times each year at no cost to
DuPont.
(c) ON-LINE PRODUCT BROCHURE - ImproveNet will add and maintain an on-line
brochure for Products using content supplied by DuPont in a form to be
mutually agreed upon and linked to the DuPont Corian-Registered
Trademark- website. The content will be subject to change up to three
times each year at no cost to DuPont.
(d) MESSAGE BOARD SPONSORSHIP - DuPont will be credited as an official
sponsor and the countertop sponsor as defined in Section I, 1(g) below
of Kitchen Ideas message board with a banner permanently added and
maintained on top of the message board. DuPont may provide information
to respond to messages received. DuPont, or parties authorized by
DuPont shall use reasonable efforts to respond to messages received
with objective information. ImproveNet will have the final editorial
authority.
(e) PRODUCT SHOWCASE - ImproveNet will prominently feature Products in all
product categories on the Sites most relevant to Products as mutually
agreed upon by the parties and documented in Exhibit I to this
Agreement. The content for Products shall be provided by DuPont in a
form to be mutually agreed upon with the content subject to change up
to six times each year at no cost to DuPont. DuPont will have at least
as many products featured as any other manufacturer in each relevant
category.
(f) HOT LINKS - ImproveNet will add and maintain hot links between the
Sites and the DuPont Corian-Registered Trademark- website.
(g) COUNTERTOP CONTENT SPONSORSHIP - DuPont shall be the exclusive provider
of Countertop content on the Sites. For the purposes of this
Agreement, "Countertop" is defined as a horizontal work surface
located in a residential kitchen, bathroom, wet bar, or home office.
DuPont shall provide to ImproveNet fully developed content to add and
maintain on the Sites. ImproveNet reserves the right to edit the
content provided by DuPont but not to change the substantive
information without giving DuPont the ability to comment on the
proposed edit. If ImproveNet wishes to make available to its users
certain Countertop content, and such content either is not available
from DuPont or, in the reasonable opinion of ImproveNet, is not of
acceptable quality, then ImproveNet will notify DuPont of the content
ImproveNet wishes to obtain. If DuPont is not able to commence
provision of such content within thirty (30) business days of such
request, then ImproveNet shall be permitted to present such content
provided by a third party.
(h) SERVICE PROVIDER SCREENING - ImproveNet will screen/evaluate service
providers identified by DuPont using criteria established by ImproveNet
for all service providers to ImproveNet, ImproveNet will work with
DuPont to inform and educate DuPont's
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fabricator and distributor network on ImproveNet's offering through
attendance at meetings/conferences of DuPont's fabricator and
distributor network at no cost to DuPont.
(i) SITE ENHANCEMENT - ImproveNet will modify its site to enable early
indication of consumer's interest in Countertops and. other aspects
necessary for effective utilization of Smart Lead Messaging (as
hereinafter defined in section 4 below).
(j) DATABASE ACCESS - ImproveNet will provide DuPont information drawn from
ImproveNet's databases of consumers and contractors. The information
will be defined by DuPont and be necessary for effective utilization of
Smart Lead Messaging subject to ImproveNet's privacy policy as
communicated on the Sites.
1.2 CONSIDERATION. In consideration for the ImproveNet offering to
DuPont for the year 2000, DuPont agrees to pay ImproveNet the amount
of [...***...] Dollars ($[...***...]). The consideration for
subsequent calendar years during the term of this Agreement shall be
negotiated by the parties prior to the beginning of each calendar
year with the expectation that the value of each Party's offering to
the other Party shall be commensurate. The Parties shall invoice
each other on a calendar quarter basis for one fourth of the total
amount of consideration charged for each calendar year of this
Agreement. Invoices shall be payable net 30 days from the date of
such invoice.
2. DUPONT OFFERING TO IMPROVENET
2.1 During the entire term of this Agreement, DuPont agrees to provide
the following to ImproveNet;
(a) CO-BRANDED ADVERTISING - DuPont will develop co-branded advertising
with ImproveNet to build awareness of ImproveNet's Sites. ImproveNet
will participate in all aspects of creative development and media
placement that pertains to ImproveNet's presence in the co-branded
advertising campaign. DuPont retains final editorial and creative
decision with ImproveNet having a right of refusal. DuPont will not be
required to materially alter or revise its advertising strategies and
plans to implement the co-branded advertising campaign.
(b) DIRECT MAIL INSERTS - DuPont will include promotional material supplied
by ImproveNet in direct mailings sent by DuPont in response to certain
programs identified by DuPont. The material from ImproveNet shall be
developed at no cost to DuPont and must be in a mutually agreed upon
format appropriate to the direct mailing and DuPont's brand aesthetics.
DuPont's material for direct mail it send shall be developed at no cost
to ImproveNet. The total value to ImproveNet of the Co-Branded
Advertising and Direct Mail Inserts, should be equal to or greater than
$[...***...] annually and will be determined on the following scale:
* CONFIDENTIAL TREATMENT REQUESTED
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- For advertisements and inserts that mention ImproveNet and provide
some promotion of its services. DuPont will receive credit in an
amount not less than [...***...] ([...***...]) of the total net
media value of the advertisement, but not more than [...***...]
([...***...]) of the total Net media value of the advertisement,
exact percentage to be mutually agreed upon by the parties based
upon the degree of the ImproveNet promotion.
- For advertisements and inserts that prominently feature
ImproveNet, and promote ImproveNet's services, DuPont will receive
credit in an amount not less than [...***...] ([...***...]) of the
total net media value of the advertisement, but not more than
[...***...] ([...***...]) of the total net media value of the
advertisement, the exact percentage to be mutually agreed upon by
the parties based upon the degree of the ImproveNet promotion.
- For advertisements and inserts that prominently feature ImproveNet
more than DuPont, and promote ImproveNet's services, DuPont will
receive credit in an amount not less than [...***...]
([...***...]) of the total net media value of the advertisement,
but not more than [...***...] ([...***...]) of the total net
media value of the advertisement, the exact percentage to be
mutuallY agreed upon by the parties based upon the degree of the
ImproveNet promotion.
(c) TRADE SHOW PRESENCE - DuPont will make available to ImproveNet
reasonable space in DuPont's trade show booth at selected major
industry shows for signage and live site demonstrations by ImproveNet.
The signage, content and structure of the materials for inclusion in
the trade show booth shall be supplied at no cost to DuPont and must be
in a mutually agreed upon format appropriate to DuPont's booth and
DuPont's brand aesthetics identity.
2.2 CONSIDERATION. In consideration for the DuPont offering to
ImproveNet for the year 2000, ImproveNet agrees to pay DuPont the
amount of [...***...] ($[...***...)]. The consideration for
subsequent calendar years during the term of this Agreement shall be
negotiated by the parties prior to the beginning of each calendar
year with the expectation that the value of each Party's offering to
the other Party shall be commensurate. The Parties shall invoice
each other on a calendar quarter basis for one fourth of the total
amount of consideration charged for each calendar year of this
Agreement. Invoices shall be payable net 30 days from the date of
such invoice.
3. EXCLUSIVITY. During the term of this Agreement, ImproveNet agrees
not to enter into relationships with (i) other manufacturers of
[...***...] other than with DuPont for advertising (including
banners and buttons), sponsorships, and other mutually agreed upon
ImproveNet offerings in the Sites and (ii) other manufacturers of
[...***...] other than DuPont for Smart Leads and Brochure Showcase.
In addition, only for Smart Leads and Brochure Showcase, ImproveNet
may enter into relationships with the specifically identified brands
of [...***...] identified on Attachment A to this Agreement. Upon
written request from ImproveNet, DuPont may waive this restriction
for other manufacturers of [...***...] DuPont will
* CONFIDENTIAL TREATMENT REQUESTED
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inform ImproveNet whether it will waive this restriction within
sixty (60) days of receiving the request, ImproveNet retains the
right to include any manufacturer in the Design Gallery, Product
Showcase and any other editorial feature provided DuPont products
are always prominently featured in all relevant sections of the
Sites as mutually agreed upon by the parties. ImproveNet retains the
right to charge any manufacturer for live links from ImproveNet to
the manufacturer's site except Banners and Burtons. During the term
of this Agreement, DuPont agrees that the DuPont Corian-Registered
Trademark- business will not establish a similar relationship with
another third party, non- DuPont, based residential remodeling
contractor referral site.
4. SMART LEADS MESSAGING. ImproveNet has a system of issuing leads to
customers who access the Sites arid contractors who are service
providers qualified with ImproveNet during certain steps in the
process of project or job evolution ("Smart Leads Messaging"), DuPont
desires to participate in ImproveNet's Smart Leads Messaging Program
at times currently designed by ImproveNet and upon ImproveNet's
enhancing the Sites at times other than currently designed by
ImproveNet; for example, prior to job submission for referrals and
upon job completion. DuPont and ImproveNet shall mutually agree upon
the timing and content and other criteria for each Smart Lead sent by
ImproveNet based on meeting DuPont's objective to increase brand
awareness and revenue generation. DuPont agrees to pay for Smart Leads
generated wing this criteria at rates to be attached as Exhibit II to
this Agreement. The cost for Smart Leads shall be fixed for the term
of the Agreement with the total cost varying based on number of
messages sent during a billing period.
5. FIND A CONTRACTOR. DuPont will place a button to ImproveNet, entitled,
"Find A Contractor", on the DuPont Corian-Registered Trademark-
website. Consumers submitting a project to ImproveNet through this
button link will be referred, on an exclusive basis, to DuPont service
providers qualified with ImproveNet. If after forty eight hours after
the initial referral a sufficient number (a maximum of four) of DuPont
service providers have not responded to the lead, the project will be
offered to other qualified service providers in the ImproveNet
network. ImproveNet agrees to pay DuPont a fee of [...***...] on all
real billable jobs valued greater than Five Hundred Dollars
($500) submitted to ImproveNet that originate from the DuPont
Corian-Registered Trademark- website. A "real billable job" means that
all information required from consumer is obtained and interest
request sent to an ImproveNet service provider. ImproveNet shall
report on a calendar quarter basis the billable jobs and submit
payment to DuPont for the fees on the billable jobs.
6. BRAND PROTECTION. Recognizing the importance of maintaining the
strength, market presence, and integrity of DuPont's brand, ImproveNet
will consult with DuPont on removing or modifying any ImproveNet
service or other offerings which DuPont deems will dilute or adversely
impact the DuPont brand.
7. IMPLEMENTATION. Implementation of the arrangements as described in this
Agreement including content providing and access to sites shall require
execution of licenses and other agreements by the parties containing
terms and conditions typical of interact based
* CONFIDENTIAL TREATMENT REQUESTED
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business. Such agreements shall be completed promptly (within forty
five (45) days from execution) after execution of this Agreement and
must be in place before sharing of data or providing access.
8. TERM; TERMINATION.
8.1 TERM. This Agreement shall commence on the Effective Date and shall
continue in full force and effect until December 31, 1999 ("1999 Term")
and thereafter automatically renew for a period of four(4) years
("Initial Term") subject to the provisions hereof, as provided for
below, Prior to the end of the Initial Term of this Agreement, if
DuPont decides to continue this Agreement it will notify ImproveNet and
a new agreement will be executed containing the same or different terms
and conditions, Termination shall nor relieve either party of any
rights, obligations, or liabilities arising prior to termination of
this Agreement, Termination of this Agreement in accordance with the
provisions of this Agreement shall be without liability and neither
DuPont or ImproveNet shall be liable, or responsible to the other for
termination compensation or payments of any kind, including but not
limited to, investment, promotion or selling expense payments.
8.2 EARLY TERMINATION. Either party may terminate this Agreement without
cause upon ninety (90) days prior written notice to the other party to
be effective at any time after December 31, 2000, or any renewal term
of this Agreement. Either party may terminate this Agreement at any
time during the Initial Term or any renewal term immediately by notice
to the-other party upon the occurrence of any of the following events
of default by the other party:
(a) The other party fails to observe, perform or fulfill any of
its obligations or warranties (other than confidentiality
obligations) under the Agreement and fails to cure such
default within thirty (30) days after the non-defaulting party
gives written notice of such failure;
(b) The other party fails to observe, perform or fulfill any
confidentiality obligation imposed hereunder and fails to cure
such default within ten (10) days after the non-defaulting
party gives notice of such failure;
(c) The other party's business is liquidated, dissolved or
suspended;
(d) The other party's adverse change in financial condition that
materially impairs its ability to perform its obligations
under this Agreement; or
(e) The other party's organization, ownership, operation, or
business philosophy change in a manner which in the other
party's judgment conflicts with such party's business
objectives set forth in this Agreement.
8.3 SURVIVAL. The provisions of the Agreement, which by their nature are
intended to survive termination or expiration of this Agreement, shall
survive expiration or termination of this Agreement.
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9. MANAGEMENT OF THE COLLABORATION
9.1 To facilitate the anticipated scope and importance of the alliance
created by this Agreement, the parties will jointly establish teams to
execute the terms of this alliance, and these teams will be located to
facilitate communications, e.g., Redwood City, Wilmington.
9.2 If ImproveNet considers an international development and deployment of
the ImproveNet strategy, ImproveNet will consult with DuPont. If
interested, DuPont and ImproveNet may enter into a separate alliance
for the international development and deployment of the ImproveNet
strategy.
9.3 The parties will meet periodically in person or by telephone (and at
least once per calendar quarter) to discuss operations of this
collaboration, possible changes to the collaboration and possible
additional areas of collaborative activity,
9.4 The parties work together to maximize opportunities between the
companies and to mutually agree on goals and measurable metrics to
demonstrate increase in desired economics.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
10.1 PROPRIETARY INFORMATION. "Proprietary Information" means any data or
information regarding (i) the business operations of a party which is
not generally known to the public and affords such party a competitive
advantage, including but not limited to, information regarding its
products and product development, suppliers, marketing strategies,
finance, operations, customers, sales, and internal performance
results; (ii) proprietary software, including but not limited to;
concepts, designs, documentation, reports, data, specifications, source
code, object code, flow charts, file record layouts, databases,
inventions and trade secrets, whether or not patentable or
copyrightable; and (iii) the terms and conditions of this Agreement.
10.2 OWNERSHIP AND PROTECTION. Each parry agrees that it has no interest in
or right to use the Proprietary In. formation of the other except in
accordance with the terms of this Agreement. Each party acknowledges
that it may disclose Proprietary Information to the other in the
performance of this Agreement. The party receiving the Proprietary
Information shall (i) maintain it in strict confidence and take all
reasonable steps to prevent its disclosure to third panics, except to
the extent necessary to carry out the purposes of this Agreement,, in
which case these confidentiality restrictions shall be imposed upon the
third parties to whom the disclosures are made; (ii) use at least the
same degree of care as it uses in maintaining the secrecy of its own
Proprietary Information (but no less than a reasonable degree of care);
and (iii) prevent the removal of any proprietary, confidential or
copyright notices placed on the Proprietary Information.
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10.3 LIMITATION. Neither party shall have any obligation concerning any
portion of the Proprietary Information of the other which (i) is
publicly known prior to or after disclosure hereunder other than
through acts or omissions attributable to the recipient or its
employees or representatives; (ii) as demonstrated by prior written
records, is already known to the recipient at the time of disclosure
hereunder; (iii) is disclosed in good faith to the recipient by a third
party having a lawful right to do so; or (iv) is the subject of written
consent of the party which supplied such information authorizing
disclosure; (v) is required to be disclosed by the receiving party by
applicable law or legal process, provided that the receiving party
shall immediately notify the other party so that it can take steps to
prevent its disclosure; or (vi) is independently developed by the
recipient by personnel having no knowledge of the disclosure hereunder.
10.4 REMEDIES FOR BREACH. In the event of a breach of this Section 9, the
parties agree that the non-breaching party may suffer irreparable harm
and the total amount of monetary damages for any injury to the
non-breaching party may be impossible to calculate and would therefore
be an inadequate remedy. Accordingly, the parties agree that the
non-breaching party may be entitled to temporary, preliminary and
permanent injunctive relief against the breaching party, its officers
or employees, in addition to such other rights and remedies to which it
may be entitled at law or in equity.
11. INTELLECTUAL PROPERTY MATTERS.
11.1 Each party shall retain sole rights to any intellectual property
developed by that party independently of the collaboration pursuant to
this Agreement;
11.2 The parties shall jointly own any intellectual property which arises
out of the collaboration pursuant to this Agreement provided that if
one party specifies and funds particular research activities, such
party shall have sole rights to any intellectual property arising out
of such research activities
11.3 All content and material provided in any format by DuPont for use by
ImproveNet under this Agreement shall remain the sole property of
DuPont. DuPont retains all rights of ownership and use including
copyright, trademark, patent, etc. to the content and material
including the right to use on any other interact based medium.
11.4 Nothing contained in this Agreement shall, by express grant,
implication, estoppel or otherwise, creates in either party any right,
title, interest, or license in or to the inventions, patents, technical
dam, computer software, or software documentation of the other party.
12. DISPUTE RESOLUTION. In the event of a dispute between the parties and
for which dispute the parties are unable to reach a mutually agreeable
resolution, the dispute shall be submitted to arbitration under the
commercial arbitration rules of the American Arbitration Association
then in effect. There shall be one arbitrator mutually agreed to by
both parties; such arbitrator shall have experience in the area of
controversy. After the hearing, the arbitrator shall decide the
controversy and render a written decision
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setting forth the issues adjudicated, the resolution thereof and the
reasons for the award. The award of the arbitrator shall be
conclusive. Payment of the expenses of arbitration, including the
fee of the arbitrator, shall be assessed by the arbitrator based on
the extent to which each party prevails.
13. MISCELLANEOUS PROVISIONS.
13.1 INVESTMENT. This Agreement is subject to the execution and delivery of
the Series E Preferred Stock and Warrant Purchase Agreement on or about
November 19, 1999.
13.2 FEES; NO BROKERS. Except as expressly provided herein, each party shall
bear its own costs incurred in performing under this Agreement. Without
limiting the generality of the foregoing sentence, ImproveNet
represents and warrants to DuPont, and DuPont represents and warrants
to ImproveNet that no broker, finder, investment banker or other party
is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement.
13.3 SEVERABILITY. If any term of this Agreement is held as invalid or
unenforceable, the remainder of this Agreement shall not be affected,
and each term and provision shall be valid and enforced to the fullest
extent permitted by law.
13.4 ASSIGNMENT. This Agreement and any interest hereunder shall inure to
the benefit of and be binding upon the parties and their respective
successors, legal representatives and permitted assigns. Upon prior
notice to the other party, either party may assign this Agreement (i)
to any legal entity in connection with the merger or consolidation of
the assigning Party into such entity or the sale of all or
substantially all of the assets of the assigning Party to such entity;
or (ii) to any direct or indirect subsidiary of the assigning parry in
connection with any corporate reorganization. Except as stated in the
previous sentence, neither party may assign or delegate this Agreement
without the other party's prior written consent, which consent shall
not be unreasonably withheld. Any attempt to assign, delegate or
otherwise transfer the Agreement in violation of this Section 10 is
voidable by the other party.
13.5 INDEPENDENT CONTRACTORS. It is expressly agreed that ImproveNet and
DuPont are acting under this Agreement as independent contractors, and
the relationship established under this Agreement shall not be
construed as a partnership, joint venture or other form of joint
enterprise. Neither parry is authorized to make any representations or
create any obligation or liability, expressed or implied, on behalf of
the other party, except as may be expressly provided for in this
Agreement.
13.6 ACCESS TO BOOKS AND RECORDS. The parties shall keep complete, accurate
and up-to-date books and records in accordance with generally accepted
accounting principles and sound business practices covering all
transactions relating to this Agreement. Either party and/or its
authorized representatives shall upon reasonable notice have the right
(not more than once annually) to inspect, audit, and/or copy such
records in order to determine whether all provisions of this Agreement
have been met. The parties agree
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that all information and records obtained in such audit shall be
considered Proprietary Information. This right to audit shall be
available to either party for up to two (2) years following the
termination of this Agreement.
13.7 NOTICES. All notices, requests, demands and other communications
(collectively, "Notices") required or permitted by this Agreement shall
be in writing and shall be delivered by hand, telex, telegraph,
facsimile or like method of transmission or mailed by registered or
certified mail, return receipt requested, first class postage prepaid,
addressed as follows:
If to DuPont:
DuPont Corian-Registered Trademark-
E. I. du Pont de Nemours and Company
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
Attn: Global Communications Manager
Fax:
If to ImproveNet:
ImproveNet, Inc.
000 Xxx Xxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn:
Fax:
If delivered by hand, telex, telegraph, facsimile or like method of
transmission, the date on which a Notice is actually delivered shall be
deemed the date of receipt and if delivered by mail, the date on which
a Notice is actually received shall be deemed the date of receipt.
Either party may change the address or designated person for receiving
Notices by providing notice in accordance with this Section 11.g.
13.9 EXHIBITS. This Agreement incorporates the attached Attachment, Exhibits
and any subsequent Attachments, Exhibits or schedules referencing this
Agreement.
13.10 Y2K.
Each party covenants and agrees that it will not permit a Year 2000
Problem to computer systems, software or equipment owned, leased or
licensed by it, its affiliates or subsidiaries to interfere with its
performance under this Agreement. This undertaking is subject to any
standard of performance or any excuse for non-performance provided in
this Agreement, at law, or in equity. Each party further agrees, to the
extent that the party deems it appropriate, to request, from those of
its suppliers whose performance may materially affect that party's
performance hereunder, that each such supplier undertake the same
obligation with respect to such material performance. The parties will
use reasonable commercial efforts to cooperate and share information to
further comply with this section, and to minimize the impact of any
Year 2000 Problem
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on performance of this Agreement. Each party will inform the other
party of any circumstance indicating a possible obstacle to such
compliance, and the steps being taken to avoid or overcome the
obstacle. Provided a party complies with the previous paragraph, it
will not be liable to the other party for any failure to perform
obligations under this Agreement to the extent such failure arises
from a Year 2000 Problem (l) affecting one of the non-performing
party's suppliers or (2) beyond that party's reasonable control
(e.g., a Year 2000 Problem affecting a governmental entity). IN
PARTICULAR, SUCH NON-PERFORMING PARTY SHALL HAVE NO LIABILITY FOR
ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, PUNITIVE OK EXEMPLARY DAMAGES.
A "Year 2000 Problem" means a date handling problem relating to the
Year 2000 date change that would cause a computer system, software or
equipment to fail to correctly perform, process and handle date-related
data for the dates within and between the twentieth and twenty-first
centuries and all other centuries.
13.10 GOVERNING LAW. This Agreement is to be construed, and the respective
rights of DuPont and ImproveNet are to be determined, according to the
laws of the State of Delaware, without regard to choice of law or
conflicts principles of such other state which might otherwise be
applicable, and the courts of Delaware shall have exclusive
jurisdiction over any disputes, controversies or issues arising under
this Agreement. This Agreement shall not be governed by the United
Nations Convention on Contracts for the International Sale of Goods.
13.11 ENTIRE AGREEMENT/AMENDMENTS. This Agreement including all exhibits
attached hereto, contains the entire agreement between the parties
covering the subject matter hereof and supersedes all prior and
contemporaneous proposals, discussions and writings by and between the
parties and relating to the subject matter hereof. None of the terms of
this Agreement shall be deemed to be waived by either party or amended
or supplemented unless such waiver, amendment or supplement is written
and signed by both parties. The invalidity or unenforceability of any
particular provision of this Agreement, as determined by any court of
competent jurisdiction or any appropriate legislature, shall not affect
the other provisions hereof, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision had been
omitted. No usage of trade or industry course of dealing shall be
relevant to explain or supplement any term expressed in this Agreement.
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IN WITNESS WHEREOF, ImproveNet and DuPont, intending to be legally bound by the
terms of this Agreement, have caused this Agreement to be executed by their duly
authorized representatives.
E.I. DU PONT DE NEMOURS AND COMPANY IMPROVENET, INC.
By: /s/ Xxxxx X. XxXxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxx X. XxXxxxxxxx Name: Xxxxxx X. Xxxxxx
------------------------------ --------------------------------
Title: Vice President and Title: President and CEO
General Manager -----------------------------
------------------------------
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Exhibit I
Pages of Consumer Site and Prosite Relevant to DuPont Corian-Registered
Trademark- Products
CONSUMER SITE
Design Gallery - Top Page
Design Gallery - Kitchens
Design Gallery - Baths
Product Showcase - Top Page
Product Showcase - Counters
Product Showcase - Bath Collections
Product Showcase - Kitchen Sinks
Product Showcase - Bath Sinks
Product Showcase - Shower and Tub Enclosures
Product Showcase - Tub and Shower Combos
Expert Advice - Top Page
Expert Advice - Pro Advice Library
Expert Advice - Message Boards - Top Page
Expert Advice - Message Boards - Kitchen Ideas
Expert Advice - Message Boards - Bath Ideas
Expert Advice - Message Boards - Cabinetry and Counters
Manufacturer Listings - Counters
PRO SITE
Design Gallery - Top Page
Design Gallery - Kitchens
Design Gallery - Baths
Product Ideas - Bath
Collections Product Ideas - Bath Sinks
Product Ideas - Counters
Product Ideas - Kitchen Sinks
Product Ideas - Shower & Tub Enclosures
Product Ideas - Tub and Shower Combos
Manufacturer Listings - Counters
Important Notes regarding relevant pages
- Not all relevant pages accept banner and button advertising.
This is not a guarantee that a banner/button for DuPont
Corian-Registered Trademark- will always be found on one of
these pages.
- New pages are added to both the consumer and ProSite on a
regular basis. Part of the management of the collaboration
will be keeping DuPont up to speed on planned editorial
changes in the site and determining the relevance of each.
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Exhibit II
Smart Leads Program
The base cost per message ($[...***...] - $[...***...] based on segmentation)
will remain the same for duration of the Agreement, but the total cost will
change depending upon the number of messages sent and the return to DuPont
from the SmartLeads. The estimated costs below are for 2000, ImproveNet
will update the projections annually during DuPont's budgeting cycle.
DuPont will be billed only for the actual number of messages sent if the
true number falls below the estimates. If the number of messages surpasses
estimates, DuPont will be receiving those additional messages at no
additional charge.
ImproveNet will send custom SmartLeads to the following groups:
1. To selected homeowners submitting a kitchen or bath remodeling project
- Estimated number of jobs submitted to ImproveNet - [...***...]
- Cost per message - $[...***...], with no segmentation of budget or
geography, additional $[...***...] per segment.
- Total Net Maximum Cost - $[...***...]
2. To contractors working with homeowners on above projects
- [...***...] contractor messages sent
- Cost per message - $[...***...]
- Total Net Maximum Cost - $[...***...]
3. To recent purchasers of DuPont products
Post project offer to recent purchasers to include DuPont
Corian-Registered Trademark- on their next project
- Estimated [...***...] messages
- Cost per message - $[...***...]
- Total Net Maximum Cost - $[...***...]
4. To "Early Birds" consumers who have submitted a project to ImproveNet,
too early to be matched with a service provider.
- Estimated number of "Early Bird" kitchen and bath remodeling jobs
submitted - [...***...]
- Cost per message - $[...***...]
- Total Net Maximum Cost - $[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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