EXHIBIT 10.18
***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 AND 240.24b-2
INTERNET DEVELOPMENT, MARKETING AND DISTRIBUTION AGREEMENT
This INTERNET DEVELOPMENT, MARKETING AND DISTRIBUTION AGREEMENT (the
"Agreement") is dated as of September 10, 1999 (the "Effective Date"), by and
between ImproveNet, Inc., a Delaware corporation, with its principal place of
business at 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 ("ImproveNet"), General
Electric Company, a New York corporation, ("GE") by and through its General
Electric Appliances operating unit having a place of business at Appliance Park,
Xxxxxxxxxx, Xxxxxxxx 00000 ("GEA") and GE Capital Equity Investments, Inc.
(solely with regard to Article IV, Section 4.2 hereof).
RECITALS
WHEREAS, ImproveNet, itself and through its affiliates, has developed
and operates a proprietary Internet-based service for matching consumer
end-users with builders/remodelers;
WHEREAS, GEA manufactures and/or sells appliance products and services
to builders/remodelers and desires to strengthen its relationship with
builders/remodelers through a commercial arrangement with ImproveNet;
WHEREAS, ImproveNet wishes to provide builder/remodeler customers and
consumer end-users utilizing the ImproveNet System with linkage to certain
content and capabilities owned or licensed by GEA relating to various GEA
products and services; and
WHEREAS, ImproveNet, GE, GEA and GE Capital Equity Investments, Inc.
have determined that it is in their respective interests to enter into this
agreement;
NOW, THEREFORE, for good and valuable consideration, and in
consideration of the mutual covenants and conditions herein set forth, and with
the intent to be legally bound thereby, ImproveNet and GEA hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINED TERMS. Unless the parties, in writing, agree
otherwise, the following defined terms shall have the meanings set forth herein:
(a) "ABD" means a GEA Authorized Builder-Distributor.
(b) "AFFILIATE" means any entity that controls, is
controlled by, or is under common control with the named entity, whether
directly or through one or more intermediaries. For purposes of this definition
"under common control with," "controlled by" and "control" each refer to
ownership of more than fifty percent (50%) of the voting capital stock or other
interests having voting rights with respect to the election of the board of
directors or similar governing authority.
(c) "HPS" means GEA's Home Products and Services business.
1.
(d) "IMPROVENET MARKS" means any and all trademarks, trade
names and/or service marks owned by ImproveNet and related to the ImproveNet
System.
(e) "IMPROVENET SYSTEM" means the current XxxxxxxXxx.xxx web
site and all ImproveNet business processes created in support of the
XxxxxxxXxx.xxx website consisting of: (i) ImproveNet's Internet website(s) as of
Effective Date, or ImproveNet's successor websites thereto; (ii) any other
websites or means of electronic display or presentation relating to the
builder/remodeler service process controlled by ImproveNet or its Affiliates
relevant to the builder/remodeler or service process; (iii) software developed
or utilized to create and publish product or service catalogs; and (iv) any
proprietary communications links between the ImproveNet System website and GEA.
(f) "COVERED ITEMS" means any products or services offered
for sale to builders and/or remodelers and End Users by GE in the following
categories: refrigeration, cooking, speed cooking, microwave, laundry,
dishwasher, and room air conditioners.
(g) "CUSTOMER" means any builder or remodeler that uses the
ImproveNet System to obtain access to potential End User buyers of building or
remodeling goods or services.
(h) "END USER" means a visitor to the ImproveNet System,
other than a Customer, who may be an actual or potential purchaser or consumer
of building or remodeling goods and services.
(i) "GEA CONTENT" means GEA product specifications and
descriptions for Covered Items, digitized representations of GEA products, and
any other proprietary informational content provided by GEA for placement on or
linkage from or to the ImproveNet System.
(j) "GEA MARKS" means any and all trademarks, trade names,
and/or service marks owned by GE and used in connection with the GEA Content.
(k) "GEA TECHNOLOGY" means: (i) GEA's CustomerNet and
Interactive Design Center sites and related software; (ii) GEA's order entry and
order fulfillment system; and (iii) any Proprietary Information of GEA provided
to ImproveNet under this Agreement.
(l) "INTELLECTUAL PROPERTY RIGHTS" means intellectual
property and/or proprietary rights, including, without limitation, copyrights
(including, but not limited to, rights in audiovisual works, whether or not
registered); moral rights and all other rights in works of authorship; patent
rights (including patent applications and disclosures); rights of priority;
publicity rights, trade secret rights; registered or otherwise protected
trademarks, trade names, and service marks, and protections from trademark
dilution; to the extent that any of the foregoing are recognized in any country
or jurisdiction in the world.
(m) "MEMBER" means a manufacturer or distributor of building
or remodeling supplies or services who contracts with ImproveNet to market goods
or services to Customers or End-users through the ImproveNet System. Members
include those manufacturers and distributors, such as GEA, which are designated
as "Founding Members" by virtue of contracting for terms such as GEA has been
accorded in section 3.3 hereof.
(n) "PROPRIETARY INFORMATION" of a party means any
confidential, proprietary or trade secret information disclosed by a party that
is identified in writing as such at the time of its initial disclosure, or if
initially disclosed in intangible form, is reduced to tangible form and properly
2
identified as such within thirty (30) days of initial unmarked disclosure,
however, disclosed, whether orally, visually, electronically, in writing or
otherwise, including without limitation: (i) information disclosed by a party
relating to product development strategy and activity, corporate assessments
and strategic plans, financial and statistical information, accounting
information, software, systems, processes, formulae, inventions, discoveries,
policies, guidelines, procedures, practices, disputes or litigation; (ii)
trade information relating to such party's employees, advertisers, suppliers,
contractors or customers which, if released, would cause an unlawful or
actionable invasion of privacy; and (iii) compilations or summaries of
information or data that is itself Proprietary Information. For purposes of
this Agreement, information shall be deemed to be disclosed by a party if
such information is disclosed by any of its officers, employees, directors,
consultants, agents, representatives or Affiliates.
(o) "STATEMENT OF WORK" means the description of the
parties' responsibilities and implementation schedules set forth in EXHIBIT A.
(p) "ImproveNet Consumer Site" means ImproveNet's
location on the internet where individual consumers access any of
ImproveNet's product and service offering. Currently defined as
xxx.xxxxxxxxxx.xxx. In the event ImproveNet defines other URL's for consumers
to access its product and service offering in the future, these sites will
also be included under this definition.
(q) "ImproveNet ProSite" means location or locations on
the internet where individual contractors or groups of contractors access
ImproveNet's complete product and service offering to the contractor network.
The ProSite offering is still under development and will be defined with
specific URLs after completion of this Agreement. All URLs where contractors
will access ImproveNet's product and service offering are included in this
definition.
(r) "SmartLeads" means targeted email messages, either
stand alone messages or embedded as part of a broader message from
ImproveNet, sent to consumers and contractors on behalf of ImproveNet's
manufacturing and service partners such as GEA Appliances.
(s) "Smart Pro Fax" means faxes sent to contractors which
includes a targeted message from an ImproveNet manufacturing and service
partner such as GEA.
(t) "GEA Find A Contractor" means capability to access
ImproveNet content directly on the GE Appliances web site via clicking on a
button on the GE Appliances site that indicates this feature. The name of
such button may vary from "Find a Contractor", per GEA's discretion but must
suggest to the consumer that they will be sent to a site offering content
consistent with ImproveNet's product and service offering and value
proposition.
(u) "Six Sigma Process" means a business process that is
designed using GE's "Six Sigma" quality assurance and improvement process
methodology. This methodology is defined based on GE's internal training
materials for Six Sigma and includes but is not limited to the use of process
mapping and statistics to design and improve processes that best meet the
defined objectives of a company's customers.
(v) "Competitor" means any person, corporation or other
business entity, including their successors, in whole or in part, that
produces or sells Covered Items, including but not limited to the following
corporations: [...***...].
*CONFIDENTIAL TREATMENT REQUESTED
3
ARTICLE II
DEVELOPMENT AND INTEGRATION OF THE IMPROVENET SYSTEM
Section 2.1 DEVELOPMENT OF IMPROVENET SYSTEM. ImproveNet will develop
the ImproveNet System and link GEA Content and transactional capabilities in
accordance with the specifications and schedule set forth in the Statement of
Work. In connection with such development efforts, ImproveNet and GEA will
perform the activities specified in this Article II and the Statement of Work.
Section 2.2 IMPROVENET SYSTEM DESIGN. In consultation with ImproveNet,
GEA will provide design input with respect to ImproveNet's links to GEA
Content and will have final approval of the results of the linkage of the GEA
Content and GEA Technology with the ImproveNet System before such results are
made publicly available. No changes to the overall "look and feel" relating
to GEA Content or GEA Covered Items will be made without prior approval of
GEA. ImproveNet shall not alter the wording or context of any GEA Content
without the prior written approval of GEA.
Section 2.3 RISK MANAGEMENT CONTACT. ImproveNet and GEA will each
designate a risk management contact (collectively, the "Risk Management") as
the primary individuals responsible for facilitating communication between
GEA and ImproveNet regarding the Statement of Work and for coordinating the
development and integration efforts contemplated herein.
(a) MODIFICATIONS TO STATEMENT OF WORK. Upon mutual
written agreement, GEA and ImproveNet may from time to time modify the
Statement of Work, provided that any modifications to the Statement of Work
will be made in a writing executed by each of the parties.
(b) SCHEDULE. GEA and ImproveNet will confer on a regular
basis to assess the status of the development effort with respect to the
agreed-upon schedule for such effort ("Schedule") as indicated on EXHIBIT B
hereto, which may be updated or modified by the parties at any time in a
writing executed by each of the parties hereto.
Section 2.4 DEVELOPMENT PERSONNEL. ImproveNet will dedicate, as mutually
agreed upon by GEA and ImproveNet, sufficient personnel with appropriate risk
management skill to the development and integration effort contemplated by
this Agreement in order to ensure that the ImproveNet System is developed and
integrated in accordance with the Schedule.
Section 2.5 "BEST OF BREED" PERFORMANCE STANDARDS TO BE MAINTAINED BY
IMPROVENET. ImproveNet shall exercise commercially reasonable efforts to
perform its responsibilities set forth in this Agreement so that, to the
extent applicable, the ImproveNet System is competitive with or superior to
any other commercial consumer service-oriented web sites offered in similar
markets to similar customers ("Best of Breed Performance Standards"). For
purposes of this Section, competitiveness or superiority shall be ascertained
on the basis of material, objective performance factors, including response
time, functionality, and reliability. Without limiting the foregoing,
ImproveNet shall, (i) exercise reasonable commercial efforts to ensure that
the ImproveNet System operates twenty-four hours a day, seven days a week,
with no more than five percent (5%) Scheduled Downtime (periods of
unavailability for scheduled maintenance or installation of upgrades), and
(ii) ensure that there is no Scheduled Downtime between 6am and 9pm EST
Section 2.6 GEA ASSISTANCE. GEA will use reasonable commercial efforts
to provide appropriate and timely support to ImproveNet's development and
integration efforts
4
Section 2.7 DEVELOPMENT EXPENSES. Except as expressly stated in this
Agreement, ImproveNet will be responsible for its own cost of development of
the ImproveNet System and integration with GEA and will pay for the costs of
the personnel, materials, and facilities it contributes to such effort.
Section 2.8 MAINTENANCE OBLIGATIONS. ImproveNet shall update the
ImproveNet System as promptly as is practicable and at least as often as is
necessary to maintain compliance with any applicable government regulations
and standard industry practices. GEA shall update the GEA Content linked to
the ImproveNet System as promptly as is practicable and at least as often as
is necessary to maintain compliance with any applicable government
regulations and standard industry practices. In addition, the parties will
cooperate to maintain any transactional capabilities between GEA and
ImproveNet as the ImproveNet System upgrades are released.
ARTICLE III
MARKETING AND DISTRIBUTION
Section 3.1 IMPROVENET MARKETING AND DISTRIBUTION RESPONSIBILITIES TO GEA
(a) Paid Banner Advertising - GEA will be represented
with at least [...***...] paid banner [...***...] on the ImproveNet
Consumer Site and the ProSite (a contractor site now in development), at all
times over the life of the Agreement, including in one or more of the
following four locations on the ImproveNet Consumer Site at ImproveNet's
discretion: kitchen section of the product showcase, kitchen section of the
design gallery, lead banner advertisement on the ImproveNet homepage, or
kitchen sections of version 2.0. Both parties agree that banner locations may
be relocated on the ImproveNet System, provided both parties agree, as the
nature of the ImproveNet System changes over time. GEA, working with
ImproveNet, will determine the GEA Content and linkages associated with the
advertisements. ImproveNet guarantees minimum impressions for each
advertisement at a level at least as high as that guaranteed within its
normal signed Insertion Orders with other manufacturers. Banner sizes and
nature will be at least consistent with (e.g. 488x60), but may exceed the
standard advertisement terms agreed to by other manufacturers in signed
Insertion Orders.
(b) Paid Button Advertising - GEA will be represented
with [...***...] paid button [...***...] on both the ImproveNet Consumer Site
and ProSite over the life of the Agreement. This paid button will be
prominently placed and will be present on all pages of the ImproveNet
Consumer Site and ProSite where there is relevant content for the Covered
Items; provided, however, ImproveNet will place a GEA button in all places
where a [...***...]appears on the ImproveNet Consumer Site and ProSite except
the home page of the ImproveNet Consumer Site, provided that it is free of
any [...***...]. In the event, ImproveNet makes the editorial decision to add
any button advertising to the home page of the ImproveNet Consumer Site, a
GEA button will be present on the home page at all times that other button
advertising is present on the ImproveNet Consumer Site homepage. GEA, working
with ImproveNet, will determine the GEA Content and linkages associated with
the advertisements. ImproveNet guarantees minimum impressions for each
advertisement at a level at least as high as that guaranteed within its
standard signed Insertion Orders with other manufacturers. Button sizes and
nature will be at least consistent (e.g. 66 x33) but may exceed the standard
advertisement terms agreed to by other manufacturers in signed Insertion
Orders.
(c) On-line Product Brochure - A GEA product brochure,
linked to the
* CONFIDENTIAL TREATMENT REQUESTED
5
GEA site, will be part of the ImproveNet Consumer Site and ProSite site for
the entire life of the agreement. GEA and ImproveNet will both work together
in good faith to provide the resources needed to co-design the brochure to be
launched as soon as possible. ImproveNet will agree to link the brochure to
the GEA site if appropriate to eliminate the need for GEA to maintain
multiple versions of brochures.
(d) Hot Links - The ImproveNet Consumer Site and ProSite
will be "hot linked" to the GEA site for the entire life of the Agreement, in
all places where GEA is referenced, unless GEA specifically agrees not to
link specific references.
(e) Consumer SmartLeads - GEA has the right to submit
SmartLeads to [...***...] ImproveNet [...***...] initiating on the GEA site
and the ImproveNet System who submits a job related to kitchen designing and
remodeling or general designing and remodeling that include kitchens, for the
entire life of the Agreement. In addition, GEA will receive an additional
[...***...]SmartLeads per year during this three-year Agreement to use at its
discretion from customers initiating on other manufacturers sites (e.g. find
a contractor). ImproveNet will seek the permission of the respective
manufacturer whose site the customer originated on ("host manufacturer") for
GEA to submit the SmartLeads. The host manufacturer retains the full
authority to reject GEA SmartLeads to consumers originating on its site. GEA
as a host manufacturer will also hold this veto right regarding leads from
other manufacturers to consumers originating on its site. GEA SmartLeads will
be consistent in nature (e.g. currently 3 messages per lead) with those
agreed to by other manufacturers in standard signed Insertion Orders.
(f) Contractor SmartLeads - GEA has the right to submit
SmartLeads to [...***...] ImproveNet [...***...] (including general and
specialty remodeling contractors, designers and architects) responding to a
job related to kitchen designing and remodeling or general designing and
remodeling that include kitchens, for the entire life of this Agreement that
comes from the ImproveNet System or GEA; provided, that such contractor has
not opted out of receiving third-party promotions. These leads will be
submitted to contractors who are both on-line and not on-line through a
combination of e-mails via the ProSite and fax via the Smart ProFax. In
addition, GEA will receive an additional [...***...] SmartLeads per year
during the three-year agreement subject to the same host manufacturer rules
as specified in Section 3.1(e) above, on the contractor ProSite to use at its
discretion. GEA SmartLeads to contractors will be consistent in nature with
those agreed to by other manufacturers in standard signed Insertion Orders.
(g) Product Showcase - Over the entire life of the
Agreement, GEA product will be listed prominently under each of the "covered
product categories" in the Product Showcase and will have the right to have
GEA products listed in [...***...] under each of the "covered product
categories" as [...***...].
(h) Support resource - ImproveNet agrees to assign a
full-time individual to maximize opportunities between ImproveNet and GEA. In
addition, ImproveNet agrees to provide the resources required to implement
GEA "Find a Contractor," GEA product brochure, and other system requirements
to ensure GEA is connected to ImproveNet as quickly as possible following the
signing of this Agreement.
(i) GEA contractor screening - (1) ImproveNet agrees to
screen/evaluate any contractors, builders and remodelers suggested by GEA for
inclusion in the ImproveNet System, and (2) said screening/evaluation process
shall be reviewed by GEA pursuant to its Six Sigma Process and GEA will make
suggestions to ImproveNet as to potential changes or improvement; provided,
however, ImproveNet shall in its sole discretion have the right to approve
its screening and evaluation process and
* CONFIDENTIAL TREATMENT REQUESTED
6
determine if a contractor, builder or remodeler is included in the ImproveNet
System.
(j) Marketing Data: Consistent with the terms of Article
VII, (1) CUSTOMERS INITIATED ON GEA "FIND A CONTRACTOR": ImproveNet will,
during the term of this Agreement, provide GEA with aggregated customer data
for all customers initiating from the GEA "Find a Contractor" location. Such
data will include, but not be limited to, consumer demographic data captured
by ImproveNet, consumer click through data, and job/purchase basket analysis.
ImproveNet will not share GEA specific data with any other parties, except to
the extent that such data is aggregated with other manufacturer data and is
not identifiable as GEA-specific data, and (2) CUSTOMERS INITIATED ON
IMPROVENET SITE AND OTHER HOST MANUFACTURER SITES: During the term of this
Agreement, ImproveNet will make commercially reasonable efforts to seek
approval of all host manufacturers to provide to ImproveNet overall site and
category level data for all product categories. The host manufacturers retain
the full authority to reject any request for marketing data that includes
consumers originating on their sites.
Section 3.2 GEA MARKETING AND DISTRIBUTION RESPONSIBILITIES TO IMPROVENET
(a) "Find A Contractor": GEA agrees to institute and
support the "Find a Contractor" service for the entire life of the Agreement.
GEA and ImproveNet will work together to execute the foregoing with two
objectives in mind: (1) GEA customers will remain framed within GEA's
websites (unless GEA, at its sole discretion, agrees otherwise). GEA will not
become subject to ancillary liability for customer-contractor-ImproveNet
disputes, except as may pertain to actual or alleged defects in GEA Covered
Items. The precise form of this linkage will be determined by GEA in
consultation with ImproveNet.
(b) GEA Point Person: GEA will support ImproveNet with a
full-time dedicated person devoted to maximizing opportunities between
ImproveNet and GEA (GEA Point Person). This person will be Six Sigma trained
and their job will based on, but not limited to, undertaking the following
activities:
(1) Promotion of Find a Contractor - GEA will work
with marketing and other GEA functional groups to incorporate the ImproveNet
"message" and GEA's implementation of "Find a Contractor" into GEA's general
promotional and communications materials to the trade. GEA will work in good
faith in this area but ImproveNet agrees to understand the broad and diverse
nature of GEA communication materials, the needs and desires of the receiving
parties of the materials, and the lead time associated with working to
include such information in its materials, in its interpretation of "good
faith."
(2) External Communications - GEA will work with
ImproveNet and GEA communications to develop press releases and
communications to other targeted manufacturers regarding the GEA-ImproveNet
relationship and the ImproveNet value proposition.
(3) Trade shows - GEA will coordinate GEA-ImproveNet
co-marketing activities at industry trade shows and events.
(4) Authorized builder distributors - GEA will work
with HPS Marketing to fold the ImproveNet relationship into the ABD Prestige
Remodeling Program including local ABD remodeling events
(5) Sales - GEA will work with GEA sales management
to communicate the ImproveNet relationship to the GEA field sales force.
7
(6) BuildNet - GEA will facilitate conversations to
identify and implement mutually agreed upon opportunities between BuildNet,
Inc., ImproveNet, and GEA.
(7) Six Sigma-GEA will complete a project to analyze
ImproveNet's core business processes. Train key ImproveNet personnel on Six
Sigma. Provide ongoing Six Sigma support.
(c) Call center key word search: GEA will build an
ImproveNet marketing message into the Answer Center database by connecting it
to keywords associated with remodeling and the ImproveNet value proposition.
GEA will communicate this added feature to all service representatives in the
Answer Center and will train all GEA service representatives in the Answer
Center to use it. ImproveNet and GEA will work together to script the message
and identify the list of keywords to be used.
(d) Automated call center message: GEA is currently
developing automated, IVR, dealer locator functionality in the Answer Center.
An ImproveNet message will be built into this new feature under remodeling.
(e) Direct marketing: GEA agrees to provide ImproveNet
with the opportunity to insert ImproveNet promotional materials in [...***...]
third class direct mailings of GEA's affiliate Warranty Management Inc. each
year for the entire term of the Agreement. Materials to be inserted will be
developed by ImproveNet at their cost and must fit within the specifications
used by GEA with other advertisers. Improvenet's third class mailing
opportunities with GEA are anticipated to number at least [...***...]
individual mailing pieces per year. In the event third class mailing
opportunities fall below [...***...] pieces, GEA will provide opportunities
for ImproveNet to insert in other class mailings until total opportunities
reach [...***...] pieces in a given year.
(f) Direct marketing database: GEA to provide ImproveNet
access to up to 12 "cuts" or "runs" of the GEA direct marketing database over
the three year period. ImproveNet's use of the database must comply with the
standards imposed by GEA in working with other third party users of the
database
Section 3.3 FOUNDING MEMBER AGREEMENT
GEA will be designated as a "founding member" of the ImproveNet manufacturers
partners program. This membership applies to all the Covered Items and
services defined above. As a founding member GEA will receive the following
benefits:
(a) Equity investment [...***...]: During the term of
this Agreement, ImproveNet agrees not to sell any capital stock to [...***...];
provided, however, the aforementioned limitation shall not apply to any stock
sold in the public market or sold by the Company in any underwritten
registration under the Securities Act of 1933, as amended. GEA maintains the
right to waive this exclusivity right at any time.
(b) Preferred SmartLeads placement: GEA SmartLeads will
be the [...***...] manufacturer listed within a message when multiple
manufacturers in the Covered Items categories are submitting a message to a
Customer in the same message. In addition, when both GEA and other
manufacturers in the Covered Items categories submit leads within separate
messages to the same Customer, the GEA SmartLeads will be submitted in
messages that [...***...] the messages containing
* CONFIDENTIAL TREATMENT REQUESTED
8
leads from other manufacturers in the Covered Items categories.
(c) ImproveNet personal project advisors will be trained
to mention GEA first when discussing the Covered Items categories with
consumers.
(d) GEA paid banner and button advertising will receive
at least an equal position to other advertisements from other manufacturers
of the Covered Items when located on the same page
ARTICLE IV
MARKETING ASSISTANCE
Section 4.1 CUSTOMER REFERRALS. For a period of three years commencing
on the Effective Date, GEA agrees to pay ImproveNet the sum of [...***...]
dollars ($[...***...]) for each "completed customer" (the "Fee"). This will
be done quarterly as the data is collected with both parties having
appropriate audit rights. For purposes of this provision, a "completed
customer" is defined as a consumer or contractor that is (i) referred to GEA
through a lead initiated by ImproveNet, including both on-line leads sent
electronically and paper-based leads printed off the ImproveNet System, and
(ii) which buys GEA Covered Items in conjunction with that job as
demonstrated by the customer's submission of an ImproveNet generated coupon
pursuant to a promotional program developed and sponsored by GEA in its sole
discretion; provided, however, the aggregate due to ImproveNet under this
Section 4.1 shall not exceed in the aggregate $[...***...]during the first
year of this Agreement, $[...***...] in the second year of this Agreement and
$[...***...] during the third year of this Agreement.
Section 4.2 WARRANT. In recognition of GEA's strategic contribution,
ImproveNet hereby grants to GEA a warrant in the form attached hereto as
EXHIBIT C, the intent and effect of which shall be that [...***...] GE
Capital Equity Investments, Inc. shall be issued a warrant to purchase
117,000 shares of Series D Preferred Stock at $0.01 per share. In
consideration for such additional warrant, GE Capital Equity Investments,
Inc. agrees to (a) work with ImproveNet to assist it in obtaining rights for
ImproveNet to receive a preferred choice of time slots in buying remnant
advertising space from NBC, (b) place the "Find a Contractor" Hotlink on the
homepage of at least three of the four strategic GE businesses (i.e. GE
Lighting, GE Plastics, GE Fleet and GE Mortgage) and (c) include ImproveNet
in the GE Advantage program.
* CONFIDENTIAL TREATMENT REQUESTED
9
ARTICLE V
LICENSE GRANTS
Section 5.1 LICENSE FOR GEA CONTENT AND GEA MARKS. During the term of
this Agreement, and subject to the terms and conditions of this Agreement,
GEA hereby grants to ImproveNet, in conjunction with ImproveNet's activities
pursuant to this Agreement, a non-exclusive, non-transferable and, pursuant
to the terms of this Agreement, revocable right and license:
(a) to reproduce and publicly display the GEA Content on
or from the ImproveNet System and on or from any co-branded pages (i.e.,
pages identified with both GEA Marks and ImproveNet Marks, or the names or
descriptions of both GEA and ImproveNet) to End Users and Customers, in the
manner specified in this Agreement or otherwise agreed to by the parties, and
to distribute and transmit the GEA Content for the sole purpose of permitting
End Users and Customers to view it from the ImproveNet System and co-branded
pages;
(b) subject to GEA's prior written right (within its sole
discretion) of approval, to reproduce and publicly display the GEA Content on
or from any Internet site, other electronic platform, or computer system that
is not exclusively controlled by ImproveNet, and to electronically distribute
and transmit the GEA Content for the sole purpose of permitting End Users and
Customers to view it from such approved sites, platforms, or systems;
provided, however, ImproveNet agrees to obtain GEA's prior written consent if
it intends to enter into a contract or an arrangement with a third party
which could or would result by virtue of the proposed terms of the applicable
contract or arrangement in less than full pages of GEA Content being pulled
through to a third party's website or any material alteration of GEA Content;
(c) to display the GEA Marks in direct connection with
GEA Content on or from the ImproveNet System website and on or from any
co-branded pages (i.e., pages identified with both GEA Marks and ImproveNet
Marks, or the names or descriptions of both GEA and ImproveNet) as provided
in this Agreement and, subject to GEA's prior written right of approval, (in
its sole discretion) to display the GEA Marks in direct connection with GEA
Content on any Internet site, other electronic platform, or computer system
that is not exclusively controlled by ImproveNet, and
(d) to modify the selection, arrangement, and look and
feel of the GEA Content, only such that ImproveNet may determine what
portions of the GEA Content will be incorporated into the ImproveNet System
or the co-branded pages referred to above and how that content is arranged
and displayed, provided that ImproveNet shall have no right to alter the
wording or context of the portions of the GEA Content selected, without the
prior written approval of GEA, in its sole discretion.
Section 5.2 LIMITATIONS.
(a) The use of the GEA Marks shall always be in connection
with GEA Content, be with appropriate attributions displayed to End Users and
Customers, and as otherwise agreed by the parties, provided that: (i)
ImproveNet shall at all times use an appropriate trademark or service xxxx
legend as GEA may from time to time specify with respect to any use of the
GEA Marks; (ii) GEA may request that ImproveNet correct the appearance of any
GEA Marks by giving ImproveNet seven (7) calendar days prior written notice;
and (iii) ImproveNet shall not modify the GEA Marks or use them for any
purpose other than as set forth above. ImproveNet shall not engage in any
activity associated with the GEA Marks that, in GEA's sole judgement,
adversely affects the good name, good will, image or
10
reputation of GEA, and ImproveNet shall take commercially reasonable steps to
ensure that Customers do not do so. All uses of the GEA Marks hereunder shall
inure only to the benefit of GE, including GEA.
(b) ImproveNet shall use the GEA Content, the GEA Marks, and
the GEA Technology (to the extent that the parties agree that ImproveNet may
use the GEA Technology) in accordance with any and all standards, policies,
and/or guidelines adopted by GEA; provided, however, that GEA agrees to
deliver to ImproveNet a written copy of any such standards, policies and/or
guidelines adopted by GEA and ImproveNet shall not be required to conform to
such policies until fifteen (15) business days after receipt of such
materials from GEA, and GEA shall have the right to proscribe any use of the
GEA Content, the GEA Marks, and the GEA Technology pursuant to the exercise
of the foregoing license that is not in accordance with any and all such
standards, policies and/or guidelines.
Section 5.3 NO UNAUTHORIZED USE. ImproveNet shall not:
(a) copy, use, display, distribute, or transfer the GEA
Content, the GEA Marks, or the GEA Technology, except as expressly
contemplated in this Agreement;
(b) create any derivative works based upon the GEA
Technology; and
(c) reverse engineer, disassemble, or decompile the GEA
Technology.
Section 5.4 NO OTHER LICENSES. ImproveNet's rights in and to the GEA
Content, the GEA Marks, and the GEA Technology shall be limited to those
expressly granted in this Agreement. All other uses, reproduction, or display
of the GEA Content, the GEA Marks, and the GEA Technology shall be subject to
GEA's prior written approval, in GEA's sole discretion.
Section 5.5 LICENSE REGARDING IMPROVENET MARKS. Subject to the terms and
conditions of this Agreement, ImproveNet hereby grants to GEA a
non-exclusive, non-transferable and, pursuant to the terms of this Agreement,
revocable right and license to display ImproveNet Marks in links from any GEA
websites to the ImproveNet System and in links to the ImproveNet System from
any co-branded pages (i.e., pages identified with both GEA Marks and those of
third parties, or with the names or descriptions of both GEA and third
parties) hosted by GEA, and subject to the approval of ImproveNet (which
shall not be unreasonably withheld), to display ImproveNet Marks in GEA
marketing collateral. The use of ImproveNet Marks shall be with appropriate
attributions displayed, and as otherwise agreed by the parties, provided
that: (i) GEA shall at all times use an appropriate trademark or service xxxx
legend as ImproveNet may from time to time specify with respect to any use of
ImproveNet Marks; (ii) ImproveNet may request that GEA correct the appearance
of any ImproveNet Marks by giving GEA seven (7) calendar days prior written
notice; and (iii) GEA shall not modify ImproveNet Marks or use them for any
purpose other than as set forth above. GEA shall not engage in any action
associated with ImproveNet Marks that, in ImproveNet's sole judgment,
adversely affects the good name, goodwill, image or reputation of ImproveNet.
All uses of ImproveNet Marks hereunder shall inure to the benefit of
ImproveNet. GEA's rights in and to ImproveNet Marks shall be limited to those
expressly granted in this Agreement. All other uses, reproduction, or display
of ImproveNet Marks shall be subject to ImproveNet's prior written approval.
Section 5.6 INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement
shall be construed to transfer from one party to another the ownership of any
property subject to Intellectual Property Rights, or any rights to use,
reproduce, or exhibit such property except as provided in this Article V.
Unless otherwise expressly agreed in writing: (i) GEA Technology and GEA
Content, and all Intellectual
11
Property Rights therein, are and will remain the sole and exclusive property
of GEA and its licensors; (ii) the ImproveNet System and all Intellectual
Property Rights therein will remain the sole and exclusive property of
ImproveNet and its licensors.
ARTICLE VI
FEES AND PAYMENTS
Section 6.1 CUSTOMER REFERRAL FEES Shall be as provided in section 4.2
hereof.
Section 6.2 GEA PAYMENTS TO IMPROVENET. In consideration for the
ImproveNet services set forth in Section 3.1 hereof, GEA will pay to
ImproveNet, annually in advance, the sum of $[...***...] in l999, $[...***...]
in 2000 and $[...***...] in 2001. The first payment shall be due and payable
within 30 days of the Effective Date and each subsequent payment shall be due
and payable within 30 days of the anniversary date of the Effective Date.
Section 6.3 IMPROVENET PAYMENTS TO GEA. In consideration for the GEA
services provided in Section 3.2 hereof, ImproveNet will pay to GEA the sum
of $[...***...] in l999, $[...***...] in 2000 and $[...***...] in 2001. The
first payment shall be due and payable within 30 days of the Effective Date
and each subsequent payment shall be due and payable within 30 days of the
anniversary date of the Effective Date.
Section 6.4 PAYMENTS. Disputes related to any payments due under this
Agreement shall not constitute grounds for any party hereto to cease to
perform any of its obligations under this Agreement and shall be handled in
accordance with Article XI. Any payments not made when due shall accrue
interest from the date due until the date paid at twelve percent (12%) per
annum or, if less, the maximum per annum rate permitted by law.
Section 6.5 TAXES. Each party shall be responsible for all taxes of any
sort due on any fees received by that party pursuant to this Agreement.
Section 6.6 TRANSACTION FEES. In the event GEA elects to utilize its
relationship with ImproveNet to sell Covered Items to Customers or End-Users,
whether directly or through GEA authorized intermediaries such as
distributors or dealers, ImproveNet will not be entitled to any fees or
payments other than as expressly set forth in this provision and in Article
IV.
ARTICLE VII
PROPRIETARY INFORMATION, USAGE DATA AND PUBLICITY
Section 7.1 PROTECTION. All Proprietary Information disclosed by a party
hereto to any other party hereto in the course of performing under this
Agreement or to which a party hereto gains access in connection with this
Agreement shall be deemed to be the property of the disclosing party. The
receiving party shall during the life of this Agreement: (i) receive such
Proprietary Information in confidence; (ii) during the life of this Agreement
and for two (2) years thereafter maintain the confidentiality of such
Proprietary Information and not disclose such Proprietary Information to
third parties (except for the receiving party's representatives, agents and
contractors who have a need to know, are under a duty of non-disclosure, and
are acting for the sole benefit of the receiving party), and shall
* CONFIDENTIAL TREATMENT REQUESTED
12
accord such Proprietary Information at least the same level of protection
against unauthorized use and disclosure as the receiving party customarily
accords its own information of a similar nature; (iii) use or permit the use
of such Proprietary Information solely in accordance with the terms of this
Agreement; and (iv) promptly notify the disclosing party in writing of any
loss or unauthorized use or disclosure of or access to the disclosing party's
Proprietary Information of which it becomes aware. The terms and conditions
of this Agreement (as well as all information regarding the negotiation of
this Agreement) shall be deemed to be the Proprietary Information of the
parties hereto. The parties hereto shall each abide by and reproduce and
include any restrictive legends or proprietary rights notices that appear in
or on any Proprietary Information of the other parties hereto that it is
authorized to reproduce. Each party shall also not remove, alter, cover or
distort any trademark, trade name, copyright or other proprietary rights
notices, legends, symbols or labels appearing in any Proprietary Information
of any other party hereto. Confidentiality obligations and restrictions
arising under this Section 7.1 shall continue to exist unless and until such
Proprietary Information falls into one of the exclusions set forth in Section
7.2 hereto, but in no event longer than three (3) years following the
expiration or termination of this Agreement.
Section 7.2 EXCLUSIONS. The restrictions on disclosure set forth above
shall not apply when, and to the extent that the Proprietary Information: (i)
is or becomes generally available to the public through no fault of the
receiving party; (ii) was previously rightfully known to the receiving party
free of any obligation to keep it confidential; (iii) is subsequently
disclosed to the receiving party by a third party who may rightfully transfer
and disclose such information without restriction and free of any obligation
to keep it confidential; (iv) is independently developed by the receiving
party or a third party without reference to the disclosing party's
Proprietary Information and such disclosing party is able to document such
independent development; or (v) is required to be disclosed by the receiving
party as a matter of law, provided that the receiving party uses all
reasonable efforts to provide the disclosing party with at least ten (10)
days prior written notice of such disclosure; provided, further, ImproveNet
shall be permitted to disclose this Agreement, without GEA's consent, and the
Related Agreements (as defined in the Series D Preferred Stock Purchase
Agreement entered into between the parties on the date hereof) publicly to
the extent mandated by any applicable federal or state law or regulation.
Section 7.3 DATA RIGHTS. All data generated through the ImproveNet
System shall be the property of the originator, unless otherwise assigned.
Notwithstanding anything herein to the contrary, GEA acknowledges and agrees
that ImproveNet may request and obtain all rights from Customers and/or
Members using the system (including GEA) in order for ImproveNet to make use
of aggregated data for forecasting or other commercial purposes. ImproveNet
will protect the confidentiality of all GEA transactions. Assuming that GEA
obtains appropriate Customer and/or End User authorization, GEA will have the
right to use all data generated by and through its Customers or End-Users for
Covered Items and may use such transaction data gathered by GEA (whether or
not such transactions flow through the ImproveNet System) in any manner GEA
deems appropriate.
Section 7.4 SECURITY. ImproveNet will ensure the security of individual
customer account, pricing, purchasing, and credit information and agrees not
to share, sell, allow access to, or otherwise make available any such
customer-related information supplied by GEA which GEA deems confidential,
except on an aggregated basis pursuant to Section 7.3. GEA and ImproveNet
agree to provide adequate security around the ImproveNet System, GEA Content
and GEA Technology (to the extent utilized) and to protect proprietary system
design, content, and functionality from unauthorized use or access by third
parties.
Section 7.5 PUBLIC STATEMENTS REGARDING AGREEMENT. The parties hereto
shall jointly prepare a press release regarding the existence of this
Agreement at a mutually agreed upon time. The
13
parties acknowledge that each may have internal constraints that may affect
the timing of issuance and the content of any such press releases. Subject to
Section 7.2, unless required by law or to assert its rights under this
Agreement, and except for disclosure on a "need to know basis" to its own
employees and consultants, and its legal, investment, financial and other
professional advisers and their respective representatives or agents on a
confidential basis, each party shall not disclose the existence of or any of
the terms of this Agreement without the prior written consent of the other
party. The breach of this Section 7.5 by either GEA or ImproveNet, shall
constitute a material breach of this Agreement and shall accord the
non-disclosing party the immediate right to terminate this Agreement as
provided in Section 11.2.
Section 7.6 EQUITABLE RELIEF. The parties acknowledge that a breach of
any portion of this Article VII would cause the non-disclosing party
irreparable harm for which monetary damages would be inadequate. Accordingly,
the non-disclosing party shall be entitled to seek injunctive or other
equitable relief to remedy any threatened or actual breach of any portion of
this Article VII by the other party.
ARTICLE VIII
OTHER BUSINESS RELATIONSHIPS
Section 8.1 OTHER GE BUSINESSES. So long as (a) ImproveNet has not
already established, or entered into discussion with a third party to
establish a Founding Member for a major product category (as described in
Section 3.3) as of the Effective Date, and (b) ImproveNet receives a list of
GEA Affiliates in the building supply industry (such as GE Supply, GE
Silicones, etc.) (collectively, the "GEA Affiliates"), ImproveNet will
contact GEA Affiliates named on such list provided to ImproveNet within
thirty (30) days of the receipt of such list and agrees not to establish a
Founding Member relationship with any third party without speaking to the
relevant GEA Affiliate first.
Section 8.2 RELATIONSHIPS WITH THIRD PARTIES. Except for ImproveNet's
obligations under Section 3.1 and 3.3 hereof, no provision of this Agreement
shall be construed so as to preclude or limit a party (or its Affiliates)
from: (i) creating or operating any other websites; (ii) maintaining any and
all existing relationships and performing all existing agreements entered
into prior to the Effective Date of this Agreement; or (iii) providing
content, technology and other services to third parties; or (iv) with respect
to GEA, entering into relationships with third parties with respect to
services similar to the ImproveNet System.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
Section 9.1 REPRESENTATIONS AND WARRANTIES OF IMPROVENET. ImproveNet
represents and warrants as follows, as of the Effective Date and for the term
of this Agreement:
(a) The execution and delivery of this Agreement and
compliance by ImproveNet with all provisions of this Agreement (i) are within
the corporate power and authority of ImproveNet, and (ii) have been duly
authorized by all requisite corporate proceedings on the part of ImproveNet.
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(b) The execution and delivery of this Agreement shall
not conflict with or result in a material breach of the terms, conditions or
provisions of, or give rise to a right of termination under, or constitute a
default under, or result in any material violation of, the organizational
documents of ImproveNet or any agreement, contract, instrument, order,
judgment, decree, statute, law, rule or regulation to which ImproveNet is
subject. Neither the execution and delivery of this Agreement nor the
compliance with the terms and provisions hereof shall result in any violation
of any franchise, certificate, license, permit, or other authorization
necessary for the ownership, maintenance and operation by ImproveNet of the
ImproveNet System.
(c) To the best of its knowledge, ImproveNet is in
compliance in all material respects with all applicable federal, state and
local laws and regulations and has obtained all licenses required or
necessary for the conduct of the ImproveNet System. There are no claims,
notices, civil, criminal or administrative actions, suits, hearings,
investigations, inquiries or proceedings pending or threatened against
ImproveNet with respect to the ImproveNet System.
(d) To the best of the its knowledge, ImproveNet owns, or
has the right to use under valid and enforceable agreements, all of the
Intellectual Property Rights related to the operation of the ImproveNet
System. The operation of the ImproveNet System as presently conducted or
proposed to be conducted by ImproveNet does not infringe or violate any
Intellectual Property Rights of any other person, and ImproveNet has not
received any charge, complaint, claim, demand or notice alleging any such
infringement or violation. ImproveNet represents and warrants to GEA that (i)
the technology as utilized by the ImproveNet System, and (ii) any material
originated by ImproveNet or provided to GEA by ImproveNet (other than the GEA
Content) ("ImproveNet Material") which is displayed on the ImproveNet System
shall not (A) violate any criminal laws or any rights of any third parties,
including, but not limited to, such violations as infringement or
misappropriation of Intellectual Property Right or other proprietary or
property right, false advertising, unfair competition, defamation, invasion
of privacy or rights of celebrity, violation of any anti-discrimination law
or regulation or (B) contain any material that would constitute a criminal
offense, give rise to civil liability, or otherwise violate any applicable
local, state or federal law.
(e) All computer systems, software, and hardware used in
the operation of the ImproveNet System are able to accurately process date
data, including, calculating, comparing, and sequencing from, into and
between the twentieth century (through year 1999), the year 2000 and the
twenty-first century, including leap year calculations. ImproveNet is taking
all commercially reasonable steps to assure that the ImproveNet System is not
adversely and materially affected by Year 2000 or other date-related
processing failures affecting the performance of its suppliers and business
partners.
(f) The ImproveNet System will comport with reasonable
commercial or industry standards, including standards for firewalls,
antivirus protection, and system security.
(g) ImproveNet represents and warrants that it will
fulfill the obligations defined in Exhibit A, Statement of Work, which sets
forth a Risk Management Plan the execution of which GEA deems material to its
decision to enter into this Agreement and related investment agreements with
ImproveNet.
(h) In accordance with the particulars set forth in
Exhibit B hereof, ImproveNet represents and warrants that it will carry
sufficient third party liability insurance with an insurer and insurance
arrangement acceptable to GEA to ensure its ability to fulfill its
indemnification obligations to GEA and generally as required to meet its
obligations for third party claims and dispute costs arising from or related
to consumer and contractor interaction on the ImproveNet System.
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(i) In the event that GEA notifies ImproveNet that the
ImproveNet System is failing to conform to any of the above warranties,
ImproveNet, without charge, shall promptly and in no event more than thirty
(30) days thereafter (or such longer period as GEA may agree to in writing)
(the "Cure Period"), repair, replace or otherwise remedy the cause of such
failure. The foregoing represents GEA's sole and exclusive remedy, and
ImprovNet's sole and exclusive liability for any breach of the foregoing
warranties; provided, however, that in the event that ImproveNet fails to
cure any breach of warranty within the applicable Cure Period, GEA retains
the right to obtain any and all remedies available to GEA at law or in equity.
Section 9.2 REPRESENTATIONS AND WARRANTIES OF GEA. GEA represents and
warrants as follows, as of the Effective Date and for the term of this
Agreement:
(a) The execution and delivery of this Agreement and
compliance by GEA with all provisions of this Agreement (i) are within the
corporate power and authority of GEA, and (ii) have been duly authorized by
all requisite corporate proceedings on the part of GEA.
(b) The execution and delivery of this Agreement shall
not conflict with or result in a breach of the terms, conditions or
provisions of, or give rise to a right of termination under, or constitute a
default under, or result in any violation of, the organizational documents of
GEA or any agreement, contract, instrument, order, judgment, decree, statute,
law, rule or regulation to which GEA is subject.
(c) GEA is in compliance in all material respects with
all applicable federal, state, local and foreign laws and regulations and has
obtained all licenses required or necessary for the provision of GEA Content
or GEA Technology under this Agreement. There are no claims, notices, civil,
criminal or administrative actions, suits, hearings, investigations,
inquiries or proceedings pending or threatened against GEA with respect to
the GEA Content or GEA Technology.
(d) GEA owns, or has the right to use under valid and
enforceable agreements, all of the Intellectual Property Rights related to
the GEA Technology and the GEA Content. GEA represents and warrants to
ImproveNet that (i) GEA Technology, and (ii) the GEA Content which used with
or displayed on the ImproveNet System shall not (A) violate any criminal laws
or any rights of any third parties, including, but not limited to, such
violations as infringement or misappropriation of Intellectual Property Right
or other proprietary or property right, false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity,
violation of any anti-discrimination law or regulation, or any other right of
any person or (B) contain any material that would constitute a criminal
offense, give rise to civil liability, or otherwise violate any applicable
local, state or federal law.
(e) All computer systems, software, and hardware used in
the operation of the GEA Technology are able to accurately process date data,
including, calculating, comparing, and sequencing from, into and between the
twentieth century (through year 1999), the year 2000 and the twenty-first
century, including leap year calculations. GEA is taking all commercially
reasonable steps to assure that the GEA Technology is not adversely and
materially affected by Year 2000 or other date-related processing failures.
(f) The GEA Technology will comport with reasonable
commercial or industry standards as applicable, including standards for
firewalls, antivirus protection, and system security.
16
(g) In the event that ImproveNet notifies GEA that the
GEA System is failing to conform to any of the above warranties, GEA, without
charge, shall promptly and in no event more than thirty (30) days thereafter
(or such longer period as ImproveNet may agree to in writing) (the "GEA Cure
Period"), repair, replace or otherwise remedy the cause of such failure. The
foregoing represents ImproveNet's sole and exclusive remedy and GEA's sole
and exclusive liability for any breach of any of the foregoing warranties;
provided, however, that in the event GEA fails to cure any breach of warranty
within the applicable GEA Cure Period, ImproveNet retains the right to obtain
any and all remedies available to ImproveNet at law or in equity.
Section 9.3 DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NO PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO THE IMPROVENET SYSTEM, THE GEA CONTENT, THE GEA TECHNOLOGY, OR ANY
OTHER TECHNOLOGY, CONTENT, OR INTELLECTUAL PROPERTY RIGHTS, OR ANY OTHER
INFORMATION, DATA, PRODUCTS, SERVICES, ACCURACY OR RESULTS OF USE, RIGHTS OR
OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT THAT ANY IMPLIED WARRANTY MAY
NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF
SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
ARTICLE X
LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO INDEMNIFICATION OBLIGATIONS UNDER SECTION
12.1 OF ARTICLE XII, BREACH OF THE NONDISCLOSURE OBLIGATIONS UNDER ARTICLE
VII, AND INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY FORM
OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY
KIND (WHETHER OR NOT FORESEEABLE), EVEN IF INFORMED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE.
ARTICLE XI
TERM AND TERMINATION
Section 11.1 TERM. This Agreement shall continue in force for three (3)
years from and after the Effective Date, or longer if renewed by mutual
written consent of the parties, or until the valid termination hereof as
provided herein.
Section 11.2 TERMINATION FOR CAUSE. ImproveNet and GEA shall each have
the right to terminate this Agreement if: (i) the other party breaches any
material term or condition of this Agreement and fails to cure such breach
within thirty (30) days (or such longer period as the non-breaching party may
agree to in writing, in its sole discretion) after receipt of written notice
from the non-breaching party; (ii) the other party breaches the same material
term or condition of this Agreement three (3) or more times during the same
one year term, and was given notice and an opportunity to cure
17
in each instance as provided above and even if the party did, in fact, cure
on any or all such three (3) occasions; (iii) the other party materially
breaches this Agreement more than five (5) times during the same one year
term, and was given notice and an opportunity to cure in each instance as
provided above and even if the other party did, in fact, cure on any or all
such five (5) occasions; (iv) the other party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, composition, or comparable proceeding
or any assignment for the benefit of creditors; or (v) the other party
becomes the subject of an involuntary petition in bankruptcy or any
involuntary proceeding relating to insolvency, receivership, liquidation,
composition, or comparable proceeding or any assignment for the benefit of
creditors, if such petition or proceeding is not dismissed within ninety (90)
days of filing.
Section 11.3 TERMINATION IN THE EVENT OF CHANGE OF CONTROL. In the event
of a Change of Control of ImproveNet, GEA may terminate this Agreement by
providing ImproveNet with thirty (30) days written notice of such intent to
terminate. For purposes of this Section 11.3, a "Change of Control" shall
mean: (i) the consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of a
party; or (ii) the acquisition by any individual, entity or group of
beneficial ownership of a controlling interest in ImproveNet (as defined in
Section 1.1(a) above); provided that a "Change of Control" does not include a
reorganization of ImproveNet that does not result in a change in the
effective control of ImproveNet or an initial public offering of ImproveNet's
voting stock or an assignment or transfer of this Agreement that is permitted
pursuant to Section 14.4.
Section 11.4 SURVIVAL. All accrued and outstanding payment obligations
hereunder, any remedies for breach of this Agreement, Articles VII, IX, X,
XII, XIII and XIV, and Sections 5.6, 11.4 and 11.5 shall survive the
termination and expiration of this Agreement; provided, that if any such
provision explicitly sets for the duration for such survival, such term shall
survive only for the period explicitly set forth therein.
Section 11.5 RETURN OF PROPRIETARY INFORMATION UPON TERMINATION OR
EXPIRATION OF AGREEMENT. Upon the termination or expiration of this
Agreement, each party shall promptly return all materials subject to
Intellectual Property Rights of the other party, all Proprietary Information
of the other party, and other information, documents, manuals and other
materials belonging exclusively to the other party, except as may be
otherwise provided in this Agreement. Each party shall have the right to
request, and the other party shall provide, written certification from an
executive officer of the other party stating that all such material has been
returned or destroyed.
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ARTICLE XII
INDEMNIFICATION
Section 12.1 INTELLECTUAL PROPERTY INDEMNIFICATION.
(a) Each of GEA and ImproveNet, respectively, shall
defend, indemnify and hold each other, and each other's Affiliates, partners,
officers, employees, directors, agents, consultants, contractors,
representatives, successors and assigns, as such, harmless from and against
any third party claims, demands, liabilities, actions, judgments and
expenses, including attorneys fees, ("Losses") which arise out of or result
from any claim that such party does not have sufficient right, title or
interest in any software, data, or any other materials used or supplied by
such party in performance of such party's obligations under this Agreement
that are subject to any Intellectual Property Rights (the "Protected
Material") or that such Protected Material violates any Intellectual Property
Right of any third party.
(b) In the event that any such claim is made against
either GEA or ImproveNet, or in one of the parties' (the "Indemnifying
Party") opinion is likely to be made against the other party (the
"Indemnified Party"), such Indemnifying Party reserves the right, in its sole
discretion, to avoid infringement by (i) procuring for the Indemnified Party
the right to use the subject Protected
Material, (ii) replacing the subject Protected Material with materials of
equal or superior content and functionality, or (iii) to modify the subject
Protected Material without materially and adversely affecting their content
and functionality.
Section 12.2 GENERAL INDEMNIFICATION. ImproveNet shall defend, indemnify
and hold GEA and its Affiliates, officers, directors, agents, consultants and
employees harmless from and against any and all Losses arising out of or
related to ImproveNet's material breach of ImproveNet's obligations,
representations, and warranties hereunder or any legal liability arising out
of or relating to the ImproveNet System.
Section 12.3 GENERAL INDEMNIFICATION. GEA shall defend, indemnify and
hold ImproveNet and its Affiliates, officers, directors, agents, consultants
and employees harmless from and against any and all Losses arising out of or
related to GEA's material breach of GEA's obligations, representations, and
warranties hereunder or any legal liability arising out of or relating to the
GEA Technology.
Section 12.4 INDEMNIFICATION PROCEDURES.
(a) Only claims for indemnification during the term of
this Agreement and for one year following the termination of this Agreement
shall be permitted under this Agreement. Any party claiming indemnification
pursuant to this Agreement shall notify the indemnifying party within thirty
(30) days after learning of the occurrence of any event (including, without
limitation, the commencement of any audit by any taxing authority) that such
party asserts is an indemnifiable event pursuant to this Agreement. If such
event involves the claim of any third party and the indemnifying party
confirms in writing its responsibility for such liability, if established,
the indemnifying party shall be entitled to participate in and, to the extent
it shall wish, assume control over (in which case the indemnifying party
shall assume all expense with respect to) the defense, settlement, adjustment
or compromise of such claim.
(b) The indemnified party shall have the right to
employ separate counsel in any action or claim and to participate in the
defense thereof at the expense of the indemnifying party (i) if the retention
of such counsel has been specifically authorized by the indemnifying party,
or (ii) if the
19
counsel is retained because the indemnifying party does not notify the
indemnified party within twenty (20) days after receipt of a claim notice
that it elects to undertake the defense thereof. The indemnified party shall
have the right to employ counsel at the indemnified party's own expense and
to participate in such action or claim, including settlement or trial, so
long as such participation does not substantially interfere in the
indemnifying party's defense of such claim or action.
(c) The indemnifying party shall obtain the prior written
approval of the indemnified party, not to be unreasonably withheld, before
entering into any settlement, adjustment, or compromise of such claim or
ceasing to defend against such claim, if pursuant to or as a result of such
settlement, adjustment, compromise, or cessation, injunctive or other relief
would be imposed against the indemnified party.
(d) If the indemnifying party does not assume control
over the defense of such claim as provided in Section 12.3(a), the
indemnified party shall have the right to defend the claim in such manner as
it may deem appropriate at the cost and expense of the indemnifying party,
and with the consent of the indemnifying party, not to be unreasonably
withheld, to settle, adjust, or compromise such claim. The indemnified party
may settle, adjust, or compromise any such claim without the consent of the
indemnifying party if the indemnified party waives indemnification for such
claim.
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ARTICLE XIII
DISPUTE RESOLUTION
Section 13.1 INFORMAL DISPUTE RESOLUTION.
(a) DISPUTES. Any dispute, controversy, claim or
disagreement between or among any of the parties hereto arising from,
relating to or in connection with this Agreement, any agreement, certificate
or other document referred to herein or delivered in connection herewith, or
the relationships of the parties hereunder or thereunder, including questions
regarding the interpretation, meaning or performance of this Agreement, and
including claims based on contract, tort, common law equity, statute,
regulation, order or otherwise ("Dispute") shall be resolved in accordance
with this Section 13.1. The parties agree that all disputes will involve
interstate commerce in fact, and accordingly, the FAA applies and governs the
arbitration.
(b) LEVEL 1 REVIEW. Upon written request of any party,
each of GEA and ImproveNet shall appoint a designated representative familiar
with the dealings among the parties hereto whose task it shall be to meet (by
conference telephone call or in person at a mutually agreeable site) for the
purpose of endeavoring to resolve such Dispute ("LEVEL 1 REVIEW"). The
designated representatives shall meet as often as the parties reasonably deem
necessary to discuss the Dispute and negotiate in good faith in an effort to
resolve the Dispute without the necessity of any formal proceeding.
(c) LEVEL 2 REVIEW. If the Dispute cannot be resolved
within the earlier of (i) fifteen (15) days of the first Level 1 Review
meeting or (ii) such time as when either party gives the other notice of an
impasse ("LEVEL 1 TERMINATION DATE"), an executive vice president (or a
functional equivalent) of GEA and chief executive officer of ImproveNet shall
meet (by conference telephone call or in person at a mutually agreeable site)
within thirty (30) days after the Xxxxx 0 Xxxxxxxxxxx Date for the purpose of
resolving such unresolved Dispute ("LEVEL 2 REVIEW).
Section 13.2 ARBITRATION.
(a) If the Dispute is not resolved within fifteen (15)
days after the Level 2 Review and any extension of such periods as mutually
agreed to by the parties, either party may submit the Dispute to binding
arbitration in accordance with the following provisions of this Section 13.2.
(b) Any such arbitration shall be conducted by
JAMS/Endispute in accordance with its current rules ("JAMS RULES"), before a
single arbitrator selected under such JAMS Rules. The arbitration shall be
conducted in Redwood City, California, unless otherwise agreed by the parties.
(c) Except as necessary in court proceedings to enforce
this arbitration provision or an award rendered hereunder, or to obtain
interim relief or as otherwise provided in Section 13.3 or pursuant to lawful
compulsion, no party nor any arbitrator shall disclose the existence, content
or results of any arbitration conducted hereunder without the prior written
consent of the other party to the arbitration.
(d) To the extent that the relief or remedy granted in an
award rendered by the arbitrator is relief or a remedy on which a court could
enter judgment, a judgment upon the award rendered may be entered in any
court having jurisdiction thereof. Otherwise, the award shall be binding
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on the parties in connection with their obligations under this Agreement and
in any subsequent arbitration or judicial proceedings among any of the
parties.
(e) The parties shall share equally the cost of
arbitration, including any required administrative fee, the compensation of
the arbitrators and the costs of any neutral witnesses or proof produced at
the direct request of the arbitrator. The arbitrator shall have the power to
grant injunctive relief or any other relief allowed by the substantive law of
the State of Delaware.
Section 13.3 RECOURSE TO COURTS AND OTHER REMEDIES. Notwithstanding the
Dispute resolution procedures contained in Sections 13.1 and 13.2, any party
may apply to the appropriate division of the courts of the State of
California having proper jurisdiction (i) to enforce this agreement to
arbitrate, (ii) to decide issues of arbitrability, (iii) to seek interim
injunctive relief so as to maintain the status quo until the arbitration
award is rendered or the Dispute is otherwise resolved, (iv) to avoid the
expiration of any applicable limitation period, (v) to preserve a superior
position with respect to other creditors, (vi) to challenge or vacate any
final judgment, award or decision of the arbitrator under the circumstances
and to the effect allowed, (vii) to enforce the payment of undisputed
amounts, or (vii) to seek post-arbitration injunctive relief for the
protection of any Intellectual Property Rights of a party.
Section 13.4 MISCELLANEOUS. It is the intent of the parties that
reasonable discovery be allowed prior to the arbitration, in the discretion
of the arbitrator, and as further provided by any applicable JAMS Rules.
Disputes submitted shall be governed by the substantive law of the State of
Delaware, not inconsistent with the Federal Arbitration Act ("FAA"), 9 U.S.C.
Section 1 et seq. A prevailing party may petition the arbitrator for reasonable
attorneys' fees and expenses.
ARTICLE XIV
GENERAL TERMS AND CONDITIONS
Section 14.1 FORCE MAJEURE. Neither party shall be liable to the other
for delays or failures in performance resulting from causes beyond the
reasonable control of that party, including, but not limited to, acts of God,
labor disputes or disturbances, material shortages or rationing, riots, acts
of war, changes in governmental regulations, or casualties.
Section 14.2 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties to this
Agreement are independent contractors. Neither party is an agent,
representative or partner of the other party. Neither party shall have any
right, power or authority to enter into any agreement for or on behalf of, or
to incur any obligation or liability for, or to otherwise bind, the other
party. This Agreement shall not be interpreted or construed to create an
association, joint venture or partnership between the parties or to impose
any partnership obligation or liability upon either of the parties hereto.
Section 14.3 SEVERABILITY. If any term, provision, or restriction of
this Agreement and any appendix, exhibit, or schedule hereto is held by a
court or arbitrator of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement and such exhibits shall remain in full force
and effect and shall in no way be affected, impaired or invalidated. The
parties will negotiate in good faith appropriate modifications to the
invalidated provision or this Agreement to most nearly effect the intent of
such provision.
Section 14.4 ASSIGNMENT. Neither party shall assign, sublicense or
otherwise transfer (voluntarily, by operation of law or otherwise) this
Agreement or any right, interest or benefit under this
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Agreement, without the prior written consent of the other party, except in
the event of its merger, corporate reorganizations, or sale of all, or
substantially all, of its assets, provided that such assignee (a) is not a
direct competitor of the other party, (b) has financial assets equal to or
greater than that of the assigning party, and (c) is bound by law or written
agreements to all of the obligations of the assigning party under this
Agreement. Any attempted assignment, sublicense or transfer in derogation
hereof shall be null and void. Subject to the foregoing, this Agreement shall
be fully binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns.
Section 14.5 AMENDMENT AND MODIFICATION OF AGREEMENT. No change,
amendment or modification of any provision of this Agreement or waiver of any
of its terms shall be valid unless set forth in writing and signed by the
party to be bound thereby.
Section 14.6 CHOICE OF LAW AND VENUE. This Agreement shall be
interpreted, construed and enforced in all respects in accordance with the
laws of the State of Delaware.
Section 14.7 WAIVER OF COMPLIANCE OR ENFORCEMENT. The failure of any
party hereto to insist upon or enforce strict performance by the other party
of any provision of this Agreement or to exercise any right under this
Agreement shall not be construed as a waiver or relinquishment to any extent
of such party's right to assert or rely upon any such provision or right in
that or any other instance; rather the same shall be and remain in full force
and effect.
Section 14.8 NOTICES. Any notice, approval, request, authorization,
direction or other communication under this Agreement shall be given in
writing, shall reference this Agreement and shall be deemed to have been
delivered and given (a) when delivered personally; (b) three (3) business
days after having been sent by registered or certified U.S. mail, return
receipt requested, postage and charges prepaid, whether or not actually
received; or (c) one (1) business day after deposit with a commercial
overnight courier, with written verification of receipt. All communications
shall be sent to the addresses set forth below or to such other address as
may be designated by a party by giving written notice to the other party
pursuant to this Paragraph 14.8.
IF TO GEA:
General Electric Appliances
Appliance Park
Xxxxxxxxxx, XX 00000
Attn.: Vice-President and General Counsel
IF TO IMPROVENET:
ImproveNet, Inc.
--------------------
Section 14.9 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes any and all prior
agreements or understandings among the parties with respect to the subject
matter hereof. No party hereto shall be bound by, and each party hereto
specifically objects to, any term, condition or other provision or other
condition which is different from or in addition to the provisions of this
Agreement (whether or not it would materially alter this Agreement) and which
is proffered by any other party hereto in any correspondence or other
document, unless the party to be bound thereby specifically agrees to such
provision in writing. The parties
23
understand and agree that the main body of this Agreement, and all the terms
and conditions contained herein, shall govern and take precedence over any
inconsistent terms and conditions (including inconsistent choice of law or
forum provisions) that are or may be contained in those certain ancillary
agreements attached as Exhibits hereto, including by way of example not
limitation, Exhibit B (Founding Member Agreement) and Exhibit E (Services
Agreement). The fact that said ancillary agreements may be executed
subsequent to this Agreement shall not alter the intent of this provision.
Notwithstanding the foregoing, GEA shall in all instances be accorded terms
and conditions in such ancillary agreements at least as favorable as accorded
other Founding Members.
Section 14.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the counterparts
have been signed by each party and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
ARTICLE XV
ImproveNet agrees for a period of 60 days following the Effective Date of
this Agreement not to engage in active negotiations with other parties in
order to allow GE Warranty Management Inc. the opportunity to negotiate a
business agreement with ImproveNet to offer warranty products and services
for Covered Items through the ImproveNet System. The specific terms and
conditions of such an arrangement, if any, would be in the subject of a
separate agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to
be executed on its behalf as of the date first above written.
IMPROVENET, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: President and CEO
----------------------------
GE Appliances, on behalf of
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx Holland
-----------------------------
Title: General Manager Business Development
-------------------------------------
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------
Title: Vice President
----------------------------
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EXHIBIT A: STATEMENT OF WORK
ImproveNet, Inc. Risk Management Plan
TIMING
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A. MANAGING CONSUMER RISK
1. On-line Guidelines and Practices
- Clear (but user-friendly) policy statement: ImproveNet is providing public Draft By closing (Implemented
service advice only, not paid advice which consumer's are intended to rely within 90 days)
on in choosing a contractor.
- Consumers would be encouraged to consult a competent lawyer regarding Draft By closing (Implemented
contracts, permits, and other necessary job documentation and their within 90 days)
insurance agent regarding the contractor's and their own insurance
coverage.
- ImproveNet would affirmatively disclaim consequential, incidental, and
punitive damages.
- ImproveNet would complete a legal survey to determine the exact form and Draft By closing (Implemented
enforceability of such a disclaimer in all states in which ImproveNet will within 90 days)
do business.
Post-closing (within 90 days)
2. Consumer Waiver of Litigation in Favor of Arbitration
- In the event of any dispute with ImproveNet arising from or related to
advice provided, consumers would affirmatively waive their rights to
judicial recourse (i.e., jury trial) in favor of mandatory arbitration. For Post-closing (within 90 days)
small claims (under $2,500), the BBB might be used; larger claims would be
referred to either JAMS (Judicial Arbitration and Mediation Service) or CPR
(Center for Public Resources).
- This would be done initially in as user-friendly a manner as possible with
detailed terms and conditions provided later in the process.
3. Affirmative Consumer Acceptance of Disclaimer and Post-closing (within 90 days)
Arbitration
- Consumers would have to "click" on-line their acceptances of both the
Post-closing (within 90 days) disclaimer and arbitration.
- Consumers would be sent a prepared set of terms and conditions via mail or
e-mail early in the process. Post-closing (within 90 days)
- ImproveNet should complete a legal survey to confirm enforceability of this
approach. Post-closing (within 90 days)
4. Third Party Warranty Post-closing (within 90 days)
- Upon job completion, ImproveNet would encourage consumers to evaluate third
Post-closing (within 90 days) party warranty coverage for work performed,
explaining the benefits of doing so.
- ImproveNet would make available to consumers the names of possible home Post-closing (within 90 days)
warranty providers
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Post-closing (within 90 days)
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B. MANAGING CONTRACTOR RISK
1. Intensify Screening Techniques.
- Develop alternatives to formal licensing data for key large states with no Post-closing (rep & warranty)
licensing requirements (e.g., NY, Illinois, Pa.). Options include
professional designations, trade or industry group certifications.
- In states with no licensing requirements, conduct a more thorough review of Post-closing (rep & warranty)
contractor insurance and referrals.
- Subscribe to a national "watch" service that provides an alert about Post-closing (within 90 days)
contractors which get into legal, regulatory or financial trouble.
2. Strengthen ImproveNet's Contractor Agreement
- Add a disclaimer for consequential, incidental and punitive damages. Post-closing (within 90 days)
- Revise the reps and warranties under the "Performance" section to include Draft By closing (Implemented
(i ) a "best in class" standard of care (ie "best efforts consistent with within 90 days)
the highest prevailing industry standards), and (ii) a representation
regarding the solvency and sufficiency of assets and insurance adequacy
- Add a mandatory mediation/arbitration clause in lieu of litigation.
Draft By closing (Implemented
within 90 days)
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C. NATIONAL CLAIMS MANAGEMENT
1. To ensure uniformity of claims management practices, Post-closing ("best efforts")
ImproveNet would set up an initial program to manage
contracts, monitor claims, and oversee dispute resolution.
This would include appointing national counsel to supply
local attorneys with a standard prepared package to support
the ADR (Alternative Dispute Resolution) process.
2. Third Party Insurance:
- ImproveNet would evaluate what levels of insurance are practicable and Post-closing ("good faith
sensible for its contractors in any given region of the country, and would undertaking")
then monitor to ensure that coverage levels are maintained, and that
insurance certificates are duly issued for ImproveNet.
- ImproveNet would work with insurance partner, possibly AllState, to develop By closing
low-cost standardized contractor insurance program (including making
ImproveNet as insured in all instances.
3. First Party Insurance: ImproveNet would, together with its
equity investors, including GE, determine appropriate
coverage levels for ImproveNet in view of potential risks.
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