{"id":42150,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/collaboration-agreement-e-i-du-pont-de-nemours-and-co-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"collaboration-agreement-e-i-du-pont-de-nemours-and-co-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/collaboration-agreement-e-i-du-pont-de-nemours-and-co-and.html","title":{"rendered":"Collaboration Agreement &#8211; E.I. du Pont de Nemours and Co. and ImproveNet Inc."},"content":{"rendered":"<pre>\n                             COLLABORATION AGREEMENT\n\n         This Agreement is dated the 3rd day of December 1999 (the \"Effective\n         Date\") and is made between E. I du Pont de Nemours and Company\n         (\"DuPont\"), a Delaware corporation, having its principal place of\n         business at 1007 Market Street, Wilmington, Delaware 19803, and\n         ImproveNet, Inc. (\"ImproveNet\") a Delaware corporation, having its\n         principal place of business at 720 Bay Road, Redwood City, California\n         94063.\n\n                                    WHEREAS:\n\nA.       ImproveNet has developed and operates an internet based service\n         providing content on products and services to consumer endusers and\n         matching consumer endusers with builders\/remodelers.\n\nB.       DuPont, among other businesses, develops, manufactures and sells\n         materials for countertops and other residential products.\n\nC.       ImproveNet wishes to receive from DuPont content for consumer endusers\n         and both wish to collaborate in the areas of brand awareness, marketing\n         and revenue generation.\n\nD.       Further, the parties acknowledge and understand that DuPont's\n         participation in the collaboration contemplated by this Agreement and\n         its corresponding obligations are limited to DuPont's \n         Corian-Registered Trademark- surfaces SBU and no other business of \n         DuPont is bound by any provision of this Agreement or arrangements \n         contemplated hereby unless and until such DuPont business agrees to \n         participate. \n\nE.       The parties intend to exchange with each other the services described\n         in this Agreement at a mutually agreed upon value in recognition that a\n         precise valuation of the services provided by one party to the other\n         party is not readily quantifiable.\n\n                         IT IS HEREBY AGREED AS FOLLOWS;\n\n1.       IMPROVENET OFFERING TO DUPONT\n\n1.1      During the entire term of this Agreement, ImproveNet agrees to \n         provide the following to DuPont:\n\n(a)      BANNER ADVERTISING - ImproveNet will add and maintain at least one\n         banner advertisement on consumer site and prosite (\"Sites\") rotating\n         through pages of the Sites that are most relevant to DuPont \n         Corian-Registered Trademark- surfaces products (\"Products\") as \n         mutually agreed upon by the parties and documented in Exhibit I to \n         this Agreement. The content for each banner shall be provided by \n         DuPont in a form to be mutually agreed upon with the content subject \n         to change up to twelve times each year at no cost to DuPont.\n\n                                       1\n\n\n\n\n(b)      BUTTON ADVERTISING - ImproveNet will add and maintain a button\n         identifying DuPont with continuous presence on button bar for the Sites\n         rotating through pages of the Sites that are most relevant to DuPont\n         Products as mutually agreed upon by the parties and documented in\n         Exhibit I to this Agreement. The content for each button shall be\n         provided by DuPont in a form to be mutually agreed upon with the\n         content subject to change up to twelve times each year at no cost to\n         DuPont.\n\n(c)      ON-LINE PRODUCT BROCHURE - ImproveNet will add and maintain an on-line\n         brochure for Products using content supplied by DuPont in a form to be\n         mutually agreed upon and linked to the DuPont Corian-Registered \n         Trademark- website. The content will be subject to change up to three \n         times each year at no cost to DuPont.\n\n(d)      MESSAGE BOARD SPONSORSHIP - DuPont will be credited as an official\n         sponsor and the countertop sponsor as defined in Section I, 1(g) below\n         of Kitchen Ideas message board with a banner permanently added and\n         maintained on top of the message board. DuPont may provide information\n         to respond to messages received. DuPont, or parties authorized by\n         DuPont shall use reasonable efforts to respond to messages received\n         with objective information. ImproveNet will have the final editorial\n         authority.\n\n(e)      PRODUCT SHOWCASE - ImproveNet will prominently feature Products in all\n         product categories on the Sites most relevant to Products as mutually\n         agreed upon by the parties and documented in Exhibit I to this\n         Agreement. The content for Products shall be provided by DuPont in a\n         form to be mutually agreed upon with the content subject to change up\n         to six times each year at no cost to DuPont. DuPont will have at least\n         as many products featured as any other manufacturer in each relevant\n         category.\n\n(f)      HOT LINKS - ImproveNet will add and maintain hot links between the \n         Sites and the DuPont Corian-Registered Trademark- website.\n\n(g)      COUNTERTOP CONTENT SPONSORSHIP - DuPont shall be the exclusive provider\n         of Countertop content on the Sites. For the purposes of this\n         Agreement, \"Countertop\" is defined as a horizontal work surface\n         located in a residential kitchen, bathroom, wet bar, or home office.\n         DuPont shall provide to ImproveNet fully developed content to add and\n         maintain on the Sites. ImproveNet reserves the right to edit the\n         content provided by DuPont but not to change the substantive\n         information without giving DuPont the ability to comment on the\n         proposed edit. If ImproveNet wishes to make available to its users\n         certain Countertop content, and such content either is not available\n         from DuPont or, in the reasonable opinion of ImproveNet, is not of\n         acceptable quality, then ImproveNet will notify DuPont of the content\n         ImproveNet wishes to obtain. If DuPont is not able to commence\n         provision of such content within thirty (30) business days of such\n         request, then ImproveNet shall be permitted to present such content\n         provided by a third party.\n\n(h)      SERVICE PROVIDER SCREENING - ImproveNet will screen\/evaluate service\n         providers identified by DuPont using criteria established by ImproveNet\n         for all service providers to ImproveNet, ImproveNet will work with\n         DuPont to inform and educate DuPont's\n\n                                          2\n\n\n\n\n\n         fabricator and distributor network on ImproveNet's offering through \n         attendance at meetings\/conferences of DuPont's fabricator and \n         distributor network at no cost to DuPont.\n\n(i)      SITE ENHANCEMENT - ImproveNet will modify its site to enable early\n         indication of consumer's interest in Countertops and. other aspects\n         necessary for effective utilization of Smart Lead Messaging (as\n         hereinafter defined in section 4 below).\n\n(j)      DATABASE ACCESS - ImproveNet will provide DuPont information drawn from\n         ImproveNet's databases of consumers and contractors. The information\n         will be defined by DuPont and be necessary for effective utilization of\n         Smart Lead Messaging subject to ImproveNet's privacy policy as\n         communicated on the Sites.\n\n1.2      CONSIDERATION. In consideration for the ImproveNet offering to DuPont\n         for the year 2000, DuPont agrees to pay ImproveNet the amount of\n         [...***...] Dollars ($[...***...]). The consideration for subsequent\n         calEndar years during the term of this Agreement shall be negotiated by\n         the parties prior to the beginning of each calendar year with the\n         expectation that the value of each Party's offering to the other Party\n         shall be commensurate. The Parties shall invoice each other on a\n         calendar quarter basis for one fourth of the total amount of\n         consideration charged for each calendar year of this Agreement.\n         Invoices shall be payable net 30 days from the date of such invoice.\n\n2.       DUPONT OFFERING TO IMPROVENET\n\n2.1      During the entire term of this Agreement, DuPont agrees to provide \n         the following to ImproveNet;\n\n(a)      CO-BRANDED ADVERTISING - DuPont will develop co-branded advertising\n         with ImproveNet to build awareness of ImproveNet's Sites. ImproveNet\n         will participate in all aspects of creative development and media\n         placement that pertains to ImproveNet's presence in the co-branded\n         advertising campaign. DuPont retains final editorial and creative\n         decision with ImproveNet having a right of refusal. DuPont will not be\n         required to materially alter or revise its advertising strategies and\n         plans to implement the co-branded advertising campaign.\n\n(b)      DIRECT MAIL INSERTS - DuPont will include promotional material supplied\n         by ImproveNet in direct mailings sent by DuPont in response to certain\n         programs identified by DuPont. The material from ImproveNet shall be\n         developed at no cost to DuPont and must be in a mutually agreed upon\n         format appropriate to the direct mailing and DuPont's brand aesthetics.\n         DuPont's material for direct mail it send shall be developed at no cost\n         to ImproveNet. The total value to ImproveNet of the Co-Branded\n         Advertising and Direct Mail Inserts, should be equal to or greater than\n         $[...***...] annually and will be determined on the following scale:\n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                          3\n\n\n\n\n\n         -    For advertisements and inserts that mention ImproveNet and provide\n              some promotion of its services. DuPont will receive credit in an\n              amount not less than [...***...] ([...***...]) of the total net \n              media value of the advertisement, but not more than [...***...]\n              ([...***...]) of the total Net media value of the advertisement,\n              exact percentage to be mutually agreed upon by the parties based\n              upon the degree of the ImproveNet promotion.\n\n         -    For advertisements and inserts that prominently feature\n              ImproveNet, and promote ImproveNet's services, DuPont will receive\n              credit in an amount not less than [...***...] ([...***...]) of the\n              total net media value of the advertisement, but not more than \n              [...***...] ([...***...]) of the total net media value of the \n              advertisement, the exact percentage to be mutually agreed upon by\n              the parties based upon the degree of the ImproveNet promotion.\n\n         -    For advertisements and inserts that prominently feature ImproveNet\n              more than DuPont, and promote ImproveNet's services, DuPont will\n              receive credit in an amount not less than [...***...] \n              ([...***...]) of the total net media value of the advertisement,\n              but not more than [...***...] ([...***...]) of the total net \n              media value of the advertisement, the exact percentage to be\n              mutuallY agreed upon by the parties based upon the degree of the\n              ImproveNet promotion.\n\n(c)      TRADE SHOW PRESENCE - DuPont will make available to ImproveNet\n         reasonable space in DuPont's trade show booth at selected major\n         industry shows for signage and live site demonstrations by ImproveNet.\n         The signage, content and structure of the materials for inclusion in\n         the trade show booth shall be supplied at no cost to DuPont and must be\n         in a mutually agreed upon format appropriate to DuPont's booth and\n         DuPont's brand aesthetics identity.\n\n2.2      CONSIDERATION.  In consideration for the DuPont offering to ImproveNet \n         for the year 2000, ImproveNet agrees to pay DuPont the amount of\n         [...***...] Dollars ($[...***...]). The consideration for subsequent\n         calendar years during the term of this Agreement shall be negotiated\n         by the parties prior to the beginning of each calendar year with the\n         expectation that the value of each Party's offering to the other Party\n         shall be commensurate. The Parties shall invoice each other on a\n         calendar quarter basis for one fourth of the total amount of\n         consideration charged for each calendar year of this Agreement.\n         Invoices shall be payable net 30 days from the date of such invoice.\n\n3.       EXCLUSIVITY.  During the term of this Agreement, ImproveNet agrees \n         not to enter into relationships with (i) other manufacturers of \n         [...***...] other than with DuPont for advertising (including \n         banners and buttons), sponsorships, and other mutually agreed upon \n         ImproveNet offerings in the Sites and (ii) other manufacturers of \n         [...***...] other than DuPont for Smart Leads and Brochure Showcase. \n         In addition, only for Smart Leads and Brochure Showcase, ImproveNet \n         may enter into relationships with the specifically identified brands \n         of [...***...] identified on Attachment A to this Agreement. Upon \n         written request from ImproveNet, DuPont may waive this restriction \n         for other manufacturers of [...***...] DuPont will \n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                        4\n\n\n\n\n         inform ImproveNet whether it will waive this restriction within \n         sixty (60) days of receiving the request, ImproveNet retains the \n         right to include any manufacturer in the Design Gallery, Product \n         Showcase and any other editorial feature provided DuPont products \n         are always prominently featured in all relevant sections of the \n         Sites as mutually agreed upon by the parties. ImproveNet retains the \n         right to charge any manufacturer for live links from ImproveNet to \n         the manufacturer's site except Banners and Burtons. During the term \n         of this Agreement, DuPont agrees that the DuPont Corian-Registered \n         Trademark- business will not establish a similar relationship with \n         another third party, non- DuPont, based residential remodeling \n         contractor referral site.\n\n4.       SMART LEADS MESSAGING.  ImproveNet has a system of issuing leads to\n         customers who access the Sites arid contractors who are service\n         providers qualified with ImproveNet during certain steps in the\n         process of project or job evolution (\"Smart Leads Messaging\"), DuPont\n         desires to participate in ImproveNet's Smart Leads Messaging Program\n         at times currently designed by ImproveNet and upon ImproveNet's\n         enhancing the Sites at times other than currently designed by\n         ImproveNet; for example, prior to job submission for referrals and\n         upon job completion. DuPont and ImproveNet shall mutually agree upon\n         the timing and content and other criteria for each Smart Lead sent by\n         ImproveNet based on meeting DuPont's objective to increase brand\n         awareness and revenue generation. DuPont agrees to pay for Smart Leads\n         generated wing this criteria at rates to be attached as Exhibit II to\n         this Agreement. The cost for Smart Leads shall be fixed for the term\n         of the Agreement with the total cost varying based on number of\n         messages sent during a billing period.\n\n5.       FIND A CONTRACTOR.  DuPont will place a button to ImproveNet, entitled,\n         \"Find A Contractor\", on the DuPont Corian-Registered Trademark- \n         website. Consumers submitting a project to ImproveNet through this \n         button link will be referred, on an exclusive basis, to DuPont service \n         providers qualified with ImproveNet. If after forty eight hours after \n         the initial referral a sufficient number (a maximum of four) of DuPont \n         service providers have not responded to the lead, the project will be \n         offered to other qualified service providers in the ImproveNet \n         network. ImproveNet agrees to pay DuPont a fee of $[...***...] on all \n         real billable jobs valued greater than [...***...] Dollars \n         ($[...***...]) submitted to ImproveNet that originate from the DuPont \n         Corian-Registered Trademark- website. A \"real billable job\" means that \n         all information required from consumer is obtained and interest \n         request sent to an ImproveNet service provider. ImproveNet shall \n         report on a calendar quarter basis the billable jobs and submit \n         payment to DuPont for the fees on the billable jobs. \n\n6.       BRAND PROTECTION. Recognizing the importance of maintaining the\n         strength, market presence, and integrity of DuPont's brand, ImproveNet\n         will consult with DuPont on removing or modifying any ImproveNet\n         service or other offerings which DuPont deems will dilute or adversely\n         impact the DuPont brand.\n\n7.       IMPLEMENTATION. Implementation of the arrangements as described in this\n         Agreement including content providing and access to sites shall require\n         execution of licenses and other agreements by the parties containing\n         terms and conditions typical of interact based \n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                           5\n\n\n\n\n         business. Such agreements shall be completed promptly (within forty \n         five (45) days from execution) after execution of this Agreement and \n         must be in place before sharing of data or providing access.\n\n8.       TERM; TERMINATION.\n\n8.1      TERM. This Agreement shall commence on the Effective Date and shall\n         continue in full force and effect until December 31, 1999 (\"1999 Term\")\n         and thereafter automatically renew for a period of four(4) years\n         (\"Initial Term\") subject to the provisions hereof, as provided for\n         below, Prior to the end of the Initial Term of this Agreement, if\n         DuPont decides to continue this Agreement it will notify ImproveNet and\n         a new agreement will be executed containing the same or different terms\n         and conditions, Termination shall nor relieve either party of any\n         rights, obligations, or liabilities arising prior to termination of\n         this Agreement, Termination of this Agreement in accordance with the\n         provisions of this Agreement shall be without liability and neither\n         DuPont or ImproveNet shall be liable, or responsible to the other for\n         termination compensation or payments of any kind, including but not\n         limited to, investment, promotion or selling expense payments.\n\n8.2      EARLY TERMINATION. Either party may terminate this Agreement without\n         cause upon ninety (90) days prior written notice to the other party to\n         be effective at any time after December 31, 2000, or any renewal term\n         of this Agreement. Either party may terminate this Agreement at any\n         time during the Initial Term or any renewal term immediately by notice\n         to the-other party upon the occurrence of any of the following events\n         of default by the other party:\n\n         (a)      The other party fails to observe, perform or fulfill any of\n                  its obligations or warranties (other than confidentiality\n                  obligations) under the Agreement and fails to cure such\n                  default within thirty (30) days after the non-defaulting party\n                  gives written notice of such failure;\n\n         (b)      The other party fails to observe, perform or fulfill any\n                  confidentiality obligation imposed hereunder and fails to cure\n                  such default within ten (10) days after the non-defaulting\n                  party gives notice of such failure;\n\n         (c)      The other party's business is liquidated, dissolved or \n                  suspended;\n\n         (d)      The other party's adverse change in financial condition that\n                  materially impairs its ability to perform its obligations\n                  under this Agreement; or\n\n         (e)      The other party's organization, ownership, operation, or\n                  business philosophy change in a manner which in the other\n                  party's judgment conflicts with such party's business\n                  objectives set forth in this Agreement.\n\n8.3      SURVIVAL. The provisions of the Agreement, which by their nature are\n         intended to survive termination or expiration of this Agreement, shall\n         survive expiration or termination of this Agreement.\n\n                                      6\n\n\n\n\n\n9.       MANAGEMENT OF THE COLLABORATION\n\n9.1      To facilitate the anticipated scope and importance of the alliance\n         created by this Agreement, the parties will jointly establish teams to\n         execute the terms of this alliance, and these teams will be located to\n         facilitate communications, e.g., Redwood City, Wilmington.\n\n9.2      If ImproveNet considers an international development and deployment of\n         the ImproveNet strategy, ImproveNet will consult with DuPont. If\n         interested, DuPont and ImproveNet may enter into a separate alliance\n         for the international development and deployment of the ImproveNet\n         strategy.\n\n9.3      The parties will meet periodically in person or by telephone (and at\n         least once per calendar quarter) to discuss operations of this\n         collaboration, possible changes to the collaboration and possible\n         additional areas of collaborative activity,\n\n9.4      The parties work together to maximize opportunities between the\n         companies and to mutually agree on goals and measurable metrics to\n         demonstrate increase in desired economics.\n\n10.      PROPRIETARY RIGHTS AND CONFIDENTIALITY.\n\n10.1     PROPRIETARY INFORMATION. \"Proprietary Information\" means any data or\n         information regarding (i) the business operations of a party which is\n         not generally known to the public and affords such party a competitive\n         advantage, including but not limited to, information regarding its\n         products and product development, suppliers, marketing strategies,\n         finance, operations, customers, sales, and internal performance\n         results; (ii) proprietary software, including but not limited to;\n         concepts, designs, documentation, reports, data, specifications, source\n         code, object code, flow charts, file record layouts, databases,\n         inventions and trade secrets, whether or not patentable or\n         copyrightable; and (iii) the terms and conditions of this Agreement.\n\n10.2     OWNERSHIP AND PROTECTION. Each parry agrees that it has no interest in\n         or right to use the Proprietary In. formation of the other except in\n         accordance with the terms of this Agreement. Each party acknowledges\n         that it may disclose Proprietary Information to the other in the\n         performance of this Agreement. The party receiving the Proprietary\n         Information shall (i) maintain it in strict confidence and take all\n         reasonable steps to prevent its disclosure to third panics, except to\n         the extent necessary to carry out the purposes of this Agreement,, in\n         which case these confidentiality restrictions shall be imposed upon the\n         third parties to whom the disclosures are made; (ii) use at least the\n         same degree of care as it uses in maintaining the secrecy of its own\n         Proprietary Information (but no less than a reasonable degree of care);\n         and (iii) prevent the removal of any proprietary, confidential or\n         copyright notices placed on the Proprietary Information.\n\n                                       7\n\n\n\n\n10.3     LIMITATION. Neither party shall have any obligation concerning any\n         portion of the Proprietary Information of the other which (i) is\n         publicly known prior to or after disclosure hereunder other than\n         through acts or omissions attributable to the recipient or its\n         employees or representatives; (ii) as demonstrated by prior written\n         records, is already known to the recipient at the time of disclosure\n         hereunder; (iii) is disclosed in good faith to the recipient by a third\n         party having a lawful right to do so; or (iv) is the subject of written\n         consent of the party which supplied such information authorizing\n         disclosure; (v) is required to be disclosed by the receiving party by\n         applicable law or legal process, provided that the receiving party\n         shall immediately notify the other party so that it can take steps to\n         prevent its disclosure; or (vi) is independently developed by the\n         recipient by personnel having no knowledge of the disclosure hereunder.\n\n10.4     REMEDIES FOR BREACH. In the event of a breach of this Section 9, the\n         parties agree that the non-breaching party may suffer irreparable harm\n         and the total amount of monetary damages for any injury to the\n         non-breaching party may be impossible to calculate and would therefore\n         be an inadequate remedy. Accordingly, the parties agree that the\n         non-breaching party may be entitled to temporary, preliminary and\n         permanent injunctive relief against the breaching party, its officers\n         or employees, in addition to such other rights and remedies to which it\n         may be entitled at law or in equity.\n\n11.      INTELLECTUAL PROPERTY MATTERS.\n\n11.1     Each party shall retain sole rights to any intellectual property\n         developed by that party independently of the collaboration pursuant to\n         this Agreement;\n\n11.2     The parties shall jointly own any intellectual property which arises\n         out of the collaboration pursuant to this Agreement provided that if\n         one party specifies and funds particular research activities, such\n         party shall have sole rights to any intellectual property arising out\n         of such research activities\n\n11.3     All content and material provided in any format by DuPont for use by\n         ImproveNet under this Agreement shall remain the sole property of\n         DuPont. DuPont retains all rights of ownership and use including\n         copyright, trademark, patent, etc. to the content and material\n         including the right to use on any other interact based medium.\n\n11.4     Nothing contained in this Agreement shall, by express grant,\n         implication, estoppel or otherwise, creates in either party any right,\n         title, interest, or license in or to the inventions, patents, technical\n         dam, computer software, or software documentation of the other party.\n\n12.      DISPUTE RESOLUTION.  In the event of a dispute between the parties and\n         for which dispute the parties are unable to reach a mutually agreeable\n         resolution, the dispute shall be submitted to arbitration under the\n         commercial arbitration rules of the American Arbitration Association\n         then in effect. There shall be one arbitrator mutually agreed to by\n         both parties; such arbitrator shall have experience in the area of\n         controversy. After the hearing, the arbitrator shall decide the\n         controversy and render a written decision \n\n                                        8\n\n\n\n\n\n         setting forth the issues adjudicated, the resolution thereof and the \n         reasons for the award. The award of the arbitrator shall be \n         conclusive. Payment of the expenses of arbitration, including the \n         fee of the arbitrator, shall be assessed by the arbitrator based on \n         the extent to which each party prevails. \n\n13.      MISCELLANEOUS PROVISIONS.\n\n13.1     INVESTMENT. This Agreement is subject to the execution and delivery of\n         the Series E Preferred Stock and Warrant Purchase Agreement on or about\n         November 19, 1999.\n\n13.2     FEES; NO BROKERS. Except as expressly provided herein, each party shall\n         bear its own costs incurred in performing under this Agreement. Without\n         limiting the generality of the foregoing sentence, ImproveNet\n         represents and warrants to DuPont, and DuPont represents and warrants\n         to ImproveNet that no broker, finder, investment banker or other party\n         is entitled to any brokerage, finder's or other fee or commission in\n         connection with the transactions contemplated by this Agreement.\n\n13.3     SEVERABILITY. If any term of this Agreement is held as invalid or\n         unenforceable, the remainder of this Agreement shall not be affected,\n         and each term and provision shall be valid and enforced to the fullest\n         extent permitted by law.\n\n13.4     ASSIGNMENT. This Agreement and any interest hereunder shall inure to\n         the benefit of and be binding upon the parties and their respective\n         successors, legal representatives and permitted assigns. Upon prior\n         notice to the other party, either party may assign this Agreement (i)\n         to any legal entity in connection with the merger or consolidation of\n         the assigning Party into such entity or the sale of all or\n         substantially all of the assets of the assigning Party to such entity;\n         or (ii) to any direct or indirect subsidiary of the assigning parry in\n         connection with any corporate reorganization. Except as stated in the\n         previous sentence, neither party may assign or delegate this Agreement\n         without the other party's prior written consent, which consent shall\n         not be unreasonably withheld. Any attempt to assign, delegate or\n         otherwise transfer the Agreement in violation of this Section 10 is\n         voidable by the other party.\n\n13.5     INDEPENDENT CONTRACTORS. It is expressly agreed that ImproveNet and\n         DuPont are acting under this Agreement as independent contractors, and\n         the relationship established under this Agreement shall not be\n         construed as a partnership, joint venture or other form of joint\n         enterprise. Neither parry is authorized to make any representations or\n         create any obligation or liability, expressed or implied, on behalf of\n         the other party, except as may be expressly provided for in this\n         Agreement.\n\n13.6     ACCESS TO BOOKS AND RECORDS. The parties shall keep complete, accurate\n         and up-to-date books and records in accordance with generally accepted\n         accounting principles and sound business practices covering all\n         transactions relating to this Agreement. Either party and\/or its\n         authorized representatives shall upon reasonable notice have the right\n         (not more than once annually) to inspect, audit, and\/or copy such\n         records in order to determine whether all provisions of this Agreement\n         have been met. The parties agree \n\n                                        9\n\n\n\n\n\n         that all information and records obtained in such audit shall be \n         considered Proprietary Information. This right to audit shall be \n         available to either party for up to two (2) years following the \n         termination of this Agreement.\n\n13.7     NOTICES. All notices, requests, demands and other communications\n         (collectively, \"Notices\") required or permitted by this Agreement shall\n         be in writing and shall be delivered by hand, telex, telegraph,\n         facsimile or like method of transmission or mailed by registered or\n         certified mail, return receipt requested, first class postage prepaid,\n         addressed as follows:\n\n         If to DuPont:\n         DuPont Corian-Registered Trademark-\n         E. I. du Pont de Nemours and Company\n         P.O. Box 80012\n         Wilmington, DE 19850-0012\n         Attn: Global Communications Manager\n         Fax:\n\n         If to ImproveNet:\n         ImproveNet, Inc.\n         720 Bay Road\n         Redwood City, California 94063\n         Attn:\n         Fax:\n\n         If delivered by hand, telex, telegraph, facsimile or like method of\n         transmission, the date on which a Notice is actually delivered shall be\n         deemed the date of receipt and if delivered by mail, the date on which\n         a Notice is actually received shall be deemed the date of receipt.\n         Either party may change the address or designated person for receiving\n         Notices by providing notice in accordance with this Section 11.g.\n\n13.9     EXHIBITS. This Agreement incorporates the attached Attachment, Exhibits\n         and any subsequent Attachments, Exhibits or schedules referencing this\n         Agreement.\n\n13.10    Y2K.\n\n         Each party covenants and agrees that it will not permit a Year 2000\n         Problem to computer systems, software or equipment owned, leased or\n         licensed by it, its affiliates or subsidiaries to interfere with its\n         performance under this Agreement. This undertaking is subject to any\n         standard of performance or any excuse for non-performance provided in\n         this Agreement, at law, or in equity. Each party further agrees, to the\n         extent that the party deems it appropriate, to request, from those of\n         its suppliers whose performance may materially affect that party's\n         performance hereunder, that each such supplier undertake the same\n         obligation with respect to such material performance. The parties will\n         use reasonable commercial efforts to cooperate and share information to\n         further comply with this section, and to minimize the impact of any\n         Year 2000 Problem\n\n                                          10\n\n\n\n\n\n         on performance of this Agreement. Each party will inform the other \n         party of any circumstance indicating a possible obstacle to such \n         compliance, and the steps being taken to avoid or overcome the \n         obstacle. Provided a party complies with the previous paragraph, it \n         will not be liable to the other party for any failure to perform \n         obligations under this Agreement to the extent such failure arises \n         from a Year 2000 Problem (l) affecting one of the non-performing \n         party's suppliers or (2) beyond that party's reasonable control \n         (e.g., a Year 2000 Problem affecting a governmental entity). IN \n         PARTICULAR, SUCH NON-PERFORMING PARTY SHALL HAVE NO LIABILITY FOR \n         ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, \n         CONSEQUENTIAL, PUNITIVE OK EXEMPLARY DAMAGES.\n\n         A \"Year 2000 Problem\" means a date handling problem relating to the\n         Year 2000 date change that would cause a computer system, software or\n         equipment to fail to correctly perform, process and handle date-related\n         data for the dates within and between the twentieth and twenty-first\n         centuries and all other centuries.\n\n13.10    GOVERNING LAW. This Agreement is to be construed, and the respective\n         rights of DuPont and ImproveNet are to be determined, according to the\n         laws of the State of Delaware, without regard to choice of law or\n         conflicts principles of such other state which might otherwise be\n         applicable, and the courts of Delaware shall have exclusive\n         jurisdiction over any disputes, controversies or issues arising under\n         this Agreement. This Agreement shall not be governed by the United\n         Nations Convention on Contracts for the International Sale of Goods.\n\n13.11    ENTIRE AGREEMENT\/AMENDMENTS. This Agreement including all exhibits\n         attached hereto, contains the entire agreement between the parties\n         covering the subject matter hereof and supersedes all prior and\n         contemporaneous proposals, discussions and writings by and between the\n         parties and relating to the subject matter hereof. None of the terms of\n         this Agreement shall be deemed to be waived by either party or amended\n         or supplemented unless such waiver, amendment or supplement is written\n         and signed by both parties. The invalidity or unenforceability of any\n         particular provision of this Agreement, as determined by any court of\n         competent jurisdiction or any appropriate legislature, shall not affect\n         the other provisions hereof, and this Agreement shall be construed in\n         all respects as if such invalid or unenforceable provision had been\n         omitted. No usage of trade or industry course of dealing shall be\n         relevant to explain or supplement any term expressed in this Agreement.\n\n                                         11\n\n\n\n\nIN WITNESS WHEREOF, ImproveNet and DuPont, intending to be legally bound by the\nterms of this Agreement, have caused this Agreement to be executed by their duly\nauthorized representatives.\n\nE.I. DU PONT DE NEMOURS AND COMPANY       IMPROVENET, INC.\n\nBy: \/s\/ Keith R. McLoughlin               By: \/s\/ Ronald B. Cooper\n   --------------------------------          --------------------------------\n\nName:  Keith R. McLoughlin                Name:  Ronald B. Cooper\n     ------------------------------          --------------------------------\n\nTitle: Vice President and                 Title: President and CEO\n       General Manager                          -----------------------------\n     ------------------------------\n\n                                         12\n\n\n\n\n                                    Exhibit I\n\n    Pages of Consumer Site and Prosite Relevant to DuPont Corian-Registered \n    Trademark- Products \n\nCONSUMER SITE\nDesign Gallery - Top Page\nDesign Gallery - Kitchens\nDesign Gallery - Baths\nProduct Showcase - Top Page\nProduct Showcase - Counters\nProduct Showcase - Bath Collections\nProduct Showcase - Kitchen Sinks \nProduct Showcase - Bath Sinks \nProduct Showcase - Shower and Tub Enclosures\nProduct Showcase - Tub and Shower Combos \nExpert Advice - Top Page\nExpert Advice - Pro Advice Library \nExpert Advice - Message Boards - Top Page\nExpert Advice - Message Boards - Kitchen Ideas\nExpert Advice - Message Boards - Bath Ideas\nExpert Advice - Message Boards - Cabinetry and Counters\nManufacturer Listings - Counters\n\nPRO SITE\nDesign Gallery - Top Page\nDesign Gallery - Kitchens\nDesign Gallery - Baths\nProduct Ideas - Bath\nCollections Product Ideas - Bath Sinks\nProduct Ideas - Counters \nProduct Ideas - Kitchen Sinks \nProduct Ideas - Shower &amp; Tub Enclosures \nProduct Ideas - Tub and Shower Combos \nManufacturer Listings - Counters\n\nImportant Notes regarding relevant pages\n\n         -        Not all relevant pages accept banner and button advertising.\n                  This is not a guarantee that a banner\/button for DuPont\n                  Corian-Registered Trademark- will always be found on one of \n                  these pages. \n\n         -        New pages are added to both the consumer and ProSite on a\n                  regular basis. Part of the management of the collaboration\n                  will be keeping DuPont up to speed on planned editorial\n                  changes in the site and determining the relevance of each.\n\n                                         13\n\n\n\n\n                                   Exhibit II\n\n                               Smart Leads Program\n\nThe  base cost per message ($[...***...] - $[...***...] based on segmentation)\n     will remain the same for duration of the Agreement, but the total cost will\n     change depending upon the number of messages sent and the return to DuPont\n     from the SmartLeads. The estimated costs below are for 2000, ImproveNet\n     will update the projections annually during DuPont's budgeting cycle.\n     DuPont will be billed only for the actual number of messages sent if the\n     true number falls below the estimates. If the number of messages surpasses\n     estimates, DuPont will be receiving those additional messages at no\n     additional charge.\n\nImproveNet will send custom SmartLeads to the following groups:\n\n1.       To selected homeowners submitting a kitchen or bath remodeling project\n         - Estimated number of jobs submitted to ImproveNet - [...***...]\n         - Cost per message - $[...***...], with no segmentation of budget or \n           geography, additional $[...***...] per segment.\n         - Total Net Maximum Cost - $[...***...]\n2.       To contractors working with homeowners on above projects\n         - [...***...] contractor messages sent \n         - Cost per message - $[...***...]\n         - Total Net Maximum Cost - $[...***...]\n3.       To recent purchasers of DuPont products\n         Post project offer to recent purchasers to include DuPont \n         Corian-Registered Trademark- on their next project \n         -    Estimated [...***...] messages\n         -     Cost per message - $[...***...]\n         -     Total Net Maximum Cost - $[...***...]\n4.       To \"Early Birds\" consumers who have submitted a project to ImproveNet,\n         too early to be matched with a service provider. \n         -    Estimated number of \"Early Bird\" kitchen and bath remodeling jobs\n              submitted - [...***...]\n         -    Cost per message - $[...***...]\n         -    Total Net Maximum Cost - $[...***...]\n\n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n\n                                        14\n\n\n\n\n\n<type>EX-10.18\n\n<sequence>5\n\n<description>EXHIBIT 10.18\n\n\n\n\n\n                                                                   EXHIBIT 10.18\n\n\n\n                                            ***TEXT OMITTED AND FILED SEPARATELY\n                                                CONFIDENTIAL TREATMENT REQUESTED\n                                          UNDER 17 C.F.R. SECTIONS 200.80(b)(4),\n                                                            200.83 AND 240.24b-2\n\n\n           INTERNET DEVELOPMENT, MARKETING AND DISTRIBUTION AGREEMENT\n\n         This INTERNET DEVELOPMENT, MARKETING AND DISTRIBUTION AGREEMENT (the\n\"Agreement\") is dated as of September 10, 1999 (the \"Effective Date\"), by and\nbetween ImproveNet, Inc., a Delaware corporation, with its principal place of\nbusiness at 1286 Oddstad Drive, Redwood City, CA 94063 (\"ImproveNet\"), General\nElectric Company, a New York corporation, (\"GE\") by and through its General\nElectric Appliances operating unit having a place of business at Appliance Park,\nLouisville, Kentucky 40225 (\"GEA\") and GE Capital Equity Investments, Inc.\n\n(solely with regard to Article IV, Section 4.2 hereof).\n\n                                    RECITALS\n\n         WHEREAS, ImproveNet, itself and through its affiliates, has developed\nand operates a proprietary Internet-based service for matching consumer\nend-users with builders\/remodelers;\n\n         WHEREAS, GEA manufactures and\/or sells appliance products and services\nto builders\/remodelers and desires to strengthen its relationship with\nbuilders\/remodelers through a commercial arrangement with ImproveNet;\n\n         WHEREAS, ImproveNet wishes to provide builder\/remodeler customers and\nconsumer end-users utilizing the ImproveNet System with linkage to certain\ncontent and capabilities owned or licensed by GEA relating to various GEA\nproducts and services; and\n\n         WHEREAS, ImproveNet, GE, GEA and GE Capital Equity Investments, Inc.\nhave determined that it is in their respective interests to enter into this\nagreement;\n\n         NOW, THEREFORE, for good and valuable consideration, and in\nconsideration of the mutual covenants and conditions herein set forth, and with\nthe intent to be legally bound thereby, ImproveNet and GEA hereby agree as\nfollows:\n\n                                    ARTICLE I\n\n                                   DEFINITIONS\n\n     Section 1.1    DEFINED TERMS. Unless the parties, in writing, agree \notherwise, the following defined terms shall have the meanings set forth herein:\n\n                    (a) \"ABD\" means a GEA Authorized Builder-Distributor.\n\n                    (b) \"AFFILIATE\" means any entity that controls, is\ncontrolled by, or is under common control with the named entity, whether\ndirectly or through one or more intermediaries. For purposes of this definition\n\"under common control with,\" \"controlled by\" and \"control\" each refer to\nownership of more than fifty percent (50%) of the voting capital stock or other\ninterests having voting rights with respect to the election of the board of\ndirectors or similar governing authority.\n\n                    (c) \"HPS\" means GEA's Home Products and Services business.\n\n                                         1.\n\n\n\n\n                    (d) \"IMPROVENET MARKS\" means any and all trademarks, trade\nnames and\/or service marks owned by ImproveNet and related to the ImproveNet\nSystem.\n\n                    (e) \"IMPROVENET SYSTEM\" means the current ImproveNet.com web\nsite and all ImproveNet business processes created in support of the\nImproveNet.com website consisting of: (i) ImproveNet's Internet website(s) as of\nEffective Date, or ImproveNet's successor websites thereto; (ii) any other\nwebsites or means of electronic display or presentation relating to the\nbuilder\/remodeler service process controlled by ImproveNet or its Affiliates\nrelevant to the builder\/remodeler or service process; (iii) software developed\nor utilized to create and publish product or service catalogs; and (iv) any\nproprietary communications links between the ImproveNet System website and GEA.\n\n                    (f) \"COVERED ITEMS\" means any products or services offered\nfor sale to builders and\/or remodelers and End Users by GE in the following\ncategories: refrigeration, cooking, speed cooking, microwave, laundry,\ndishwasher, and room air conditioners.\n\n                    (g) \"CUSTOMER\" means any builder or remodeler that uses the\nImproveNet System to obtain access to potential End User buyers of building or\nremodeling goods or services.\n\n                    (h) \"END USER\" means a visitor to the ImproveNet System,\nother than a Customer, who may be an actual or potential purchaser or consumer\nof building or remodeling goods and services.\n\n                    (i) \"GEA CONTENT\" means GEA product specifications and\ndescriptions for Covered Items, digitized representations of GEA products, and\nany other proprietary informational content provided by GEA for placement on or\nlinkage from or to the ImproveNet System.\n\n                    (j) \"GEA MARKS\" means any and all trademarks, trade names,\nand\/or service marks owned by GE and used in connection with the GEA Content.\n\n                    (k) \"GEA TECHNOLOGY\" means: (i) GEA's CustomerNet and\nInteractive Design Center sites and related software; (ii) GEA's order entry and\norder fulfillment system; and (iii) any Proprietary Information of GEA provided\nto ImproveNet under this Agreement.\n\n                    (l) \"INTELLECTUAL PROPERTY RIGHTS\" means intellectual\nproperty and\/or proprietary rights, including, without limitation, copyrights\n(including, but not limited to, rights in audiovisual works, whether or not\nregistered); moral rights and all other rights in works of authorship; patent\nrights (including patent applications and disclosures); rights of priority;\npublicity rights, trade secret rights; registered or otherwise protected\ntrademarks, trade names, and service marks, and protections from trademark\ndilution; to the extent that any of the foregoing are recognized in any country\nor jurisdiction in the world.\n\n                    (m) \"MEMBER\" means a manufacturer or distributor of building\nor remodeling supplies or services who contracts with ImproveNet to market goods\nor services to Customers or End-users through the ImproveNet System. Members\ninclude those manufacturers and distributors, such as GEA, which are designated\nas \"Founding Members\" by virtue of contracting for terms such as GEA has been\naccorded in section 3.3 hereof.\n\n                    (n) \"PROPRIETARY INFORMATION\" of a party means any\nconfidential, proprietary or trade secret information disclosed by a party that\nis identified in writing as such at the time of its initial disclosure, or if\ninitially disclosed in intangible form, is reduced to tangible form and properly\n\n                                       2\n\n\n\n\nidentified as such within thirty (30) days of initial unmarked disclosure, \nhowever, disclosed, whether orally, visually, electronically, in writing or \notherwise, including without limitation: (i) information disclosed by a party \nrelating to product development strategy and activity, corporate assessments \nand strategic plans, financial and statistical information, accounting \ninformation, software, systems, processes, formulae, inventions, discoveries, \npolicies, guidelines, procedures, practices, disputes or litigation; (ii) \ntrade information relating to such party's employees, advertisers, suppliers, \ncontractors or customers which, if released, would cause an unlawful or \nactionable invasion of privacy; and (iii) compilations or summaries of \ninformation or data that is itself Proprietary Information. For purposes of \nthis Agreement, information shall be deemed to be disclosed by a party if \nsuch information is disclosed by any of its officers, employees, directors, \nconsultants, agents, representatives or Affiliates.\n\n                    (o) \"STATEMENT OF WORK\" means the description of the\nparties' responsibilities and implementation schedules set forth in EXHIBIT A.\n\n                    (p) \"ImproveNet Consumer Site\" means ImproveNet's \nlocation on the internet where individual consumers access any of \nImproveNet's product and service offering. Currently defined as \nwww.improvenet.com. In the event ImproveNet defines other URL's for consumers \nto access its product and service offering in the future, these sites will \nalso be included under this definition.\n\n                    (q) \"ImproveNet ProSite\" means location or locations on \nthe internet where individual contractors or groups of contractors access \nImproveNet's complete product and service offering to the contractor network. \nThe ProSite offering is still under development and will be defined with \nspecific URLs after completion of this Agreement. All URLs where contractors \nwill access ImproveNet's product and service offering are included in this \ndefinition.\n\n                    (r) \"SmartLeads\" means targeted email messages, either \nstand alone messages or embedded as part of a broader message from \nImproveNet, sent to consumers and contractors on behalf of ImproveNet's \nmanufacturing and service partners such as GEA Appliances.\n\n                    (s) \"Smart Pro Fax\" means faxes sent to contractors which \nincludes a targeted message from an ImproveNet manufacturing and service \npartner such as GEA.\n\n                    (t) \"GEA Find A Contractor\" means capability to access \nImproveNet content directly on the GE Appliances web site via clicking on a \nbutton on the GE Appliances site that indicates this feature. The name of \nsuch button may vary from \"Find a Contractor\", per GEA's discretion but must \nsuggest to the consumer that they will be sent to a site offering content \nconsistent with ImproveNet's product and service offering and value \nproposition.\n\n                    (u) \"Six Sigma Process\" means a business process that is \ndesigned using GE's \"Six Sigma\" quality assurance and improvement process \nmethodology. This methodology is defined based on GE's internal training \nmaterials for Six Sigma and includes but is not limited to the use of process \nmapping and statistics to design and improve processes that best meet the \ndefined objectives of a company's customers.\n\n                    (v) \"Competitor\" means any person, corporation or other \nbusiness entity, including their successors, in whole or in part, that \nproduces or sells Covered Items, including but not limited to the following \ncorporations: [...***...].\n\n*CONFIDENTIAL TREATMENT REQUESTED\n\n                                       3\n\n\n\n\n                                   ARTICLE II\n\n              DEVELOPMENT AND INTEGRATION OF THE IMPROVENET SYSTEM\n\n     Section 2.1 DEVELOPMENT OF IMPROVENET SYSTEM. ImproveNet will develop \nthe ImproveNet System and link GEA Content and transactional capabilities in \naccordance with the specifications and schedule set forth in the Statement of \nWork. In connection with such development efforts, ImproveNet and GEA will \nperform the activities specified in this Article II and the Statement of Work.\n\n     Section 2.2 IMPROVENET SYSTEM DESIGN. In consultation with ImproveNet, \nGEA will provide design input with respect to ImproveNet's links to GEA \nContent and will have final approval of the results of the linkage of the GEA \nContent and GEA Technology with the ImproveNet System before such results are \nmade publicly available. No changes to the overall \"look and feel\" relating \nto GEA Content or GEA Covered Items will be made without prior approval of \nGEA. ImproveNet shall not alter the wording or context of any GEA Content \nwithout the prior written approval of GEA.\n\n     Section 2.3 RISK MANAGEMENT CONTACT. ImproveNet and GEA will each \ndesignate a risk management contact (collectively, the \"Risk Management\") as \nthe primary individuals responsible for facilitating communication between \nGEA and ImproveNet regarding the Statement of Work and for coordinating the \ndevelopment and integration efforts contemplated herein.\n\n                    (a) MODIFICATIONS TO STATEMENT OF WORK. Upon mutual \nwritten agreement, GEA and ImproveNet may from time to time modify the \nStatement of Work, provided that any modifications to the Statement of Work \nwill be made in a writing executed by each of the parties.\n\n                    (b) SCHEDULE. GEA and ImproveNet will confer on a regular \nbasis to assess the status of the development effort with respect to the \nagreed-upon schedule for such effort (\"Schedule\") as indicated on EXHIBIT B \nhereto, which may be updated or modified by the parties at any time in a \nwriting executed by each of the parties hereto.\n\n     Section 2.4 DEVELOPMENT PERSONNEL. ImproveNet will dedicate, as mutually \nagreed upon by GEA and ImproveNet, sufficient personnel with appropriate risk \nmanagement skill to the development and integration effort contemplated by \nthis Agreement in order to ensure that the ImproveNet System is developed and \nintegrated in accordance with the Schedule.\n\n     Section 2.5 \"BEST OF BREED\" PERFORMANCE STANDARDS TO BE MAINTAINED BY \nIMPROVENET. ImproveNet shall exercise commercially reasonable efforts to \nperform its responsibilities set forth in this Agreement so that, to the \nextent applicable, the ImproveNet System is competitive with or superior to \nany other commercial consumer service-oriented web sites offered in similar \nmarkets to similar customers (\"Best of Breed Performance Standards\"). For \npurposes of this Section, competitiveness or superiority shall be ascertained \non the basis of material, objective performance factors, including response \ntime, functionality, and reliability. Without limiting the foregoing, \nImproveNet shall, (i) exercise reasonable commercial efforts to ensure that \nthe ImproveNet System operates twenty-four hours a day, seven days a week, \nwith no more than five percent (5%) Scheduled Downtime (periods of \nunavailability for scheduled maintenance or installation of upgrades), and \n(ii) ensure that there is no Scheduled Downtime between 6am and 9pm EST\n\n     Section 2.6 GEA ASSISTANCE. GEA will use reasonable commercial efforts \nto provide appropriate and timely support to ImproveNet's development and \nintegration efforts\n\n                                      4\n\n\n\n\n     Section 2.7 DEVELOPMENT EXPENSES. Except as expressly stated in this \nAgreement, ImproveNet will be responsible for its own cost of development of \nthe ImproveNet System and integration with GEA and will pay for the costs of \nthe personnel, materials, and facilities it contributes to such effort.\n\n     Section 2.8 MAINTENANCE OBLIGATIONS. ImproveNet shall update the \nImproveNet System as promptly as is practicable and at least as often as is \nnecessary to maintain compliance with any applicable government regulations \nand standard industry practices. GEA shall update the GEA Content linked to \nthe ImproveNet System as promptly as is practicable and at least as often as \nis necessary to maintain compliance with any applicable government \nregulations and standard industry practices. In addition, the parties will \ncooperate to maintain any transactional capabilities between GEA and \nImproveNet as the ImproveNet System upgrades are released.\n\n                                   ARTICLE III\n\n                           MARKETING AND DISTRIBUTION\n\n     Section 3.1 IMPROVENET MARKETING AND DISTRIBUTION RESPONSIBILITIES TO GEA\n\n                    (a) Paid Banner Advertising - GEA will be represented \nwith at least [...***...] paid banner [...***...] on the ImproveNet \nConsumer Site and the ProSite (a contractor site now in development), at all \ntimes over the life of the Agreement, including in one or more of the \nfollowing four locations on the ImproveNet Consumer Site at ImproveNet's \ndiscretion: kitchen section of the product showcase, kitchen section of the \ndesign gallery, lead banner advertisement on the ImproveNet homepage, or \nkitchen sections of version 2.0. Both parties agree that banner locations may \nbe relocated on the ImproveNet System, provided both parties agree, as the \nnature of the ImproveNet System changes over time. GEA, working with \nImproveNet, will determine the GEA Content and linkages associated with the \nadvertisements. ImproveNet guarantees minimum impressions for each \nadvertisement at a level at least as high as that guaranteed within its \nnormal signed Insertion Orders with other manufacturers. Banner sizes and \nnature will be at least consistent with (e.g. 488x60), but may exceed the \nstandard advertisement terms agreed to by other manufacturers in signed \nInsertion Orders.\n\n                    (b) Paid Button Advertising - GEA will be represented \nwith [...***...] paid button [...***...] on both the ImproveNet Consumer Site \nand ProSite over the life of the Agreement. This paid button will be \nprominently placed and will be present on all pages of the ImproveNet \nConsumer Site and ProSite where there is relevant content for the Covered \nItems; provided, however, ImproveNet will place a GEA button in all places \nwhere a [...***...]appears on the ImproveNet Consumer Site and ProSite except \nthe home page of the ImproveNet Consumer Site, provided that it is free of \nany [...***...]. In the event, ImproveNet makes the editorial decision to add \nany button advertising to the home page of the ImproveNet Consumer Site, a \nGEA button will be present on the home page at all times that other button \nadvertising is present on the ImproveNet Consumer Site homepage. GEA, working \nwith ImproveNet, will determine the GEA Content and linkages associated with \nthe advertisements. ImproveNet guarantees minimum impressions for each \nadvertisement at a level at least as high as that guaranteed within its \nstandard signed Insertion Orders with other manufacturers. Button sizes and \nnature will be at least consistent (e.g. 66 x33) but may exceed the standard \nadvertisement terms agreed to by other manufacturers in signed Insertion \nOrders.\n\n                    (c) On-line Product Brochure - A GEA product brochure, \nlinked to the \n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                        5\n\n\n\n\nGEA site, will be part of the ImproveNet Consumer Site and ProSite site for \nthe entire life of the agreement. GEA and ImproveNet will both work together \nin good faith to provide the resources needed to co-design the brochure to be \nlaunched as soon as possible. ImproveNet will agree to link the brochure to \nthe GEA site if appropriate to eliminate the need for GEA to maintain \nmultiple versions of brochures.\n\n                    (d) Hot Links - The ImproveNet Consumer Site and ProSite \nwill be \"hot linked\" to the GEA site for the entire life of the Agreement, in \nall places where GEA is referenced, unless GEA specifically agrees not to \nlink specific references.\n\n                    (e) Consumer SmartLeads - GEA has the right to submit \nSmartLeads to [...***...] ImproveNet [...***...] initiating on the GEA site \nand the ImproveNet System who submits a job related to kitchen designing and \nremodeling or general designing and remodeling that include kitchens, for the \nentire life of the Agreement. In addition, GEA will receive an additional \n[...***...]SmartLeads per year during this three-year Agreement to use at its \ndiscretion from customers initiating on other manufacturers sites (e.g. find \na contractor). ImproveNet will seek the permission of the respective \nmanufacturer whose site the customer originated on (\"host manufacturer\") for \nGEA to submit the SmartLeads. The host manufacturer retains the full \nauthority to reject GEA SmartLeads to consumers originating on its site. GEA \nas a host manufacturer will also hold this veto right regarding leads from \nother manufacturers to consumers originating on its site. GEA SmartLeads will \nbe consistent in nature (e.g. currently 3 messages per lead) with those \nagreed to by other manufacturers in standard signed Insertion Orders.\n\n                    (f) Contractor SmartLeads - GEA has the right to submit \nSmartLeads to [...***...] ImproveNet [...***...] (including general and \nspecialty remodeling contractors, designers and architects) responding to a \njob related to kitchen designing and remodeling or general designing and \nremodeling that include kitchens, for the entire life of this Agreement that \ncomes from the ImproveNet System or GEA; provided, that such contractor has \nnot opted out of receiving third-party promotions. These leads will be \nsubmitted to contractors who are both on-line and not on-line through a \ncombination of e-mails via the ProSite and fax via the Smart ProFax. In \naddition, GEA will receive an additional [...***...] SmartLeads per year \nduring the three-year agreement subject to the same host manufacturer rules \nas specified in Section 3.1(e) above, on the contractor ProSite to use at its \ndiscretion. GEA SmartLeads to contractors will be consistent in nature with \nthose agreed to by other manufacturers in standard signed Insertion Orders.\n\n                    (g) Product Showcase - Over the entire life of the \nAgreement, GEA product will be listed prominently under each of the \"covered \nproduct categories\" in the Product Showcase and will have the right to have \nGEA products listed in [...***...] under each of the \"covered product \ncategories\" as [...***...].\n\n                    (h) Support resource - ImproveNet agrees to assign a \nfull-time individual to maximize opportunities between ImproveNet and GEA. In \naddition, ImproveNet agrees to provide the resources required to implement \nGEA \"Find a Contractor,\" GEA product brochure, and other system requirements \nto ensure GEA is connected to ImproveNet as quickly as possible following the \nsigning of this Agreement.\n\n                    (i) GEA contractor screening - (1) ImproveNet agrees to \nscreen\/evaluate any contractors, builders and remodelers suggested by GEA for \ninclusion in the ImproveNet System, and (2) said screening\/evaluation process \nshall be reviewed by GEA pursuant to its Six Sigma Process and GEA will make \nsuggestions to ImproveNet as to potential changes or improvement; provided, \nhowever, ImproveNet shall in its sole discretion have the right to approve \nits screening and evaluation process and \n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                       6\n\n\n\n\ndetermine if a contractor, builder or remodeler is included in the ImproveNet \nSystem.\n\n                    (j) Marketing Data: Consistent with the terms of Article \nVII, (1) CUSTOMERS INITIATED ON GEA \"FIND A CONTRACTOR\": ImproveNet will, \nduring the term of this Agreement, provide GEA with aggregated customer data \nfor all customers initiating from the GEA \"Find a Contractor\" location. Such \ndata will include, but not be limited to, consumer demographic data captured \nby ImproveNet, consumer click through data, and job\/purchase basket analysis. \nImproveNet will not share GEA specific data with any other parties, except to \nthe extent that such data is aggregated with other manufacturer data and is \nnot identifiable as GEA-specific data, and (2) CUSTOMERS INITIATED ON \nIMPROVENET SITE AND OTHER HOST MANUFACTURER SITES: During the term of this \nAgreement, ImproveNet will make commercially reasonable efforts to seek \napproval of all host manufacturers to provide to ImproveNet overall site and \ncategory level data for all product categories. The host manufacturers retain \nthe full authority to reject any request for marketing data that includes \nconsumers originating on their sites.\n\n     Section 3.2 GEA MARKETING AND DISTRIBUTION RESPONSIBILITIES TO IMPROVENET\n\n                    (a) \"Find A Contractor\": GEA agrees to institute and \nsupport the \"Find a Contractor\" service for the entire life of the Agreement. \nGEA and ImproveNet will work together to execute the foregoing with two \nobjectives in mind: (1) GEA customers will remain framed within GEA's \nwebsites (unless GEA, at its sole discretion, agrees otherwise). GEA will not \nbecome subject to ancillary liability for customer-contractor-ImproveNet \ndisputes, except as may pertain to actual or alleged defects in GEA Covered \nItems. The precise form of this linkage will be determined by GEA in \nconsultation with ImproveNet.\n\n                    (b) GEA Point Person: GEA will support ImproveNet with a \nfull-time dedicated person devoted to maximizing opportunities between \nImproveNet and GEA (GEA Point Person). This person will be Six Sigma trained \nand their job will based on, but not limited to, undertaking the following \nactivities:\n\n                         (1) Promotion of Find a Contractor - GEA will work \nwith marketing and other GEA functional groups to incorporate the ImproveNet \n\"message\" and GEA's implementation of \"Find a Contractor\" into GEA's general \npromotional and communications materials to the trade. GEA will work in good \nfaith in this area but ImproveNet agrees to understand the broad and diverse \nnature of GEA communication materials, the needs and desires of the receiving \nparties of the materials, and the lead time associated with working to \ninclude such information in its materials, in its interpretation of \"good \nfaith.\"\n\n                         (2) External Communications - GEA will work with \nImproveNet and GEA communications to develop press releases and \ncommunications to other targeted manufacturers regarding the GEA-ImproveNet \nrelationship and the ImproveNet value proposition.\n\n                         (3) Trade shows - GEA will coordinate GEA-ImproveNet \nco-marketing activities at industry trade shows and events.\n\n                         (4) Authorized builder distributors - GEA will work \nwith HPS Marketing to fold the ImproveNet relationship into the ABD Prestige \nRemodeling Program including local ABD remodeling events\n\n                         (5) Sales - GEA will work with GEA sales management \nto communicate the ImproveNet relationship to the GEA field sales force.\n\n                                     7\n\n\n\n\n                         (6) BuildNet - GEA will facilitate conversations to \nidentify and implement mutually agreed upon opportunities between BuildNet, \nInc., ImproveNet, and GEA.\n\n                         (7) Six Sigma-GEA will complete a project to analyze \nImproveNet's core business processes. Train key ImproveNet personnel on Six \nSigma. Provide ongoing Six Sigma support.\n\n                    (c) Call center key word search: GEA will build an \nImproveNet marketing message into the Answer Center database by connecting it \nto keywords associated with remodeling and the ImproveNet value proposition. \nGEA will communicate this added feature to all service representatives in the \nAnswer Center and will train all GEA service representatives in the Answer \nCenter to use it. ImproveNet and GEA will work together to script the message \nand identify the list of keywords to be used.\n\n                    (d) Automated call center message: GEA is currently \ndeveloping automated, IVR, dealer locator functionality in the Answer Center. \nAn ImproveNet message will be built into this new feature under remodeling.\n\n                    (e) Direct marketing: GEA agrees to provide ImproveNet \nwith the opportunity to insert ImproveNet promotional materials in [...***...]\nthird class direct mailings of GEA's affiliate Warranty Management Inc. each \nyear for the entire term of the Agreement. Materials to be inserted will be \ndeveloped by ImproveNet at their cost and must fit within the specifications \nused by GEA with other advertisers. Improvenet's third class mailing \nopportunities with GEA are anticipated to number at least [...***...] \nindividual mailing pieces per year. In the event third class mailing \nopportunities fall below [...***...] pieces, GEA will provide opportunities \nfor ImproveNet to insert in other class mailings until total opportunities \nreach [...***...] pieces in a given year.\n\n                    (f) Direct marketing database: GEA to provide ImproveNet \naccess to up to 12 \"cuts\" or \"runs\" of the GEA direct marketing database over \nthe three year period. ImproveNet's use of the database must comply with the \nstandards imposed by GEA in working with other third party users of the \ndatabase\n\n     Section 3.3 FOUNDING MEMBER AGREEMENT\n\nGEA will be designated as a \"founding member\" of the ImproveNet manufacturers \npartners program. This membership applies to all the Covered Items and \nservices defined above. As a founding member GEA will receive the following \nbenefits:\n\n                    (a) Equity investment [...***...]: During the term of \nthis Agreement, ImproveNet agrees not to sell any capital stock to [...***...];\nprovided, however, the aforementioned limitation shall not apply to any stock \nsold in the public market or sold by the Company in any underwritten \nregistration under the Securities Act of 1933, as amended. GEA maintains the \nright to waive this exclusivity right at any time.\n\n                    (b) Preferred SmartLeads placement: GEA SmartLeads will \nbe the [...***...] manufacturer listed within a message when multiple \nmanufacturers in the Covered Items categories are submitting a message to a \nCustomer in the same message. In addition, when both GEA and other \nmanufacturers in the Covered Items categories submit leads within separate \nmessages to the same Customer, the GEA SmartLeads will be submitted in \nmessages that [...***...] the messages containing \n\n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                      8\n\n\n\n\nleads from other manufacturers in the Covered Items categories.\n\n                    (c) ImproveNet personal project advisors will be trained \nto mention GEA first when discussing the Covered Items categories with \nconsumers.\n\n                    (d) GEA paid banner and button advertising will receive \nat least an equal position to other advertisements from other manufacturers \nof the Covered Items when located on the same page\n\n                                   ARTICLE IV\n\n                              MARKETING ASSISTANCE\n\n     Section 4.1 CUSTOMER REFERRALS. For a period of three years commencing \non the Effective Date, GEA agrees to pay ImproveNet the sum of [...***...]\ndollars ($[...***...]) for each \"completed customer\" (the \"Fee\"). This will \nbe done quarterly as the data is collected with both parties having \nappropriate audit rights. For purposes of this provision, a \"completed \ncustomer\" is defined as a consumer or contractor that is (i) referred to GEA \nthrough a lead initiated by ImproveNet, including both on-line leads sent \nelectronically and paper-based leads printed off the ImproveNet System, and \n(ii) which buys GEA Covered Items in conjunction with that job as \ndemonstrated by the customer's submission of an ImproveNet generated coupon \npursuant to a promotional program developed and sponsored by GEA in its sole \ndiscretion; provided, however, the aggregate due to ImproveNet under this \nSection 4.1 shall not exceed in the aggregate $[...***...]during the first \nyear of this Agreement, $[...***...] in the second year of this Agreement and \n$[...***...] during the third year of this Agreement.\n\n     Section 4.2 WARRANT. In recognition of GEA's strategic contribution, \nImproveNet hereby grants to GEA a warrant in the form attached hereto as \nEXHIBIT C, the intent and effect of which shall be that [...***...] GE \nCapital Equity Investments, Inc. shall be issued a warrant to purchase \n117,000 shares of Series D Preferred Stock at $0.01 per share. In \nconsideration for such additional warrant, GE Capital Equity Investments, \nInc. agrees to (a) work with ImproveNet to assist it in obtaining rights for \nImproveNet to receive a preferred choice of time slots in buying remnant \nadvertising space from NBC, (b) place the \"Find a Contractor\" Hotlink on the \nhomepage of at least three of the four strategic GE businesses (i.e. GE \nLighting, GE Plastics, GE Fleet and GE Mortgage) and (c) include ImproveNet \nin the GE Advantage program.\n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                       9\n\n\n\n\n\n                                    ARTICLE V\n\n                                 LICENSE GRANTS\n\n     Section 5.1 LICENSE FOR GEA CONTENT AND GEA MARKS. During the term of \nthis Agreement, and subject to the terms and conditions of this Agreement, \nGEA hereby grants to ImproveNet, in conjunction with ImproveNet's activities \npursuant to this Agreement, a non-exclusive, non-transferable and, pursuant \nto the terms of this Agreement, revocable right and license:\n\n                    (a) to reproduce and publicly display the GEA Content on \nor from the ImproveNet System and on or from any co-branded pages (i.e., \npages identified with both GEA Marks and ImproveNet Marks, or the names or \ndescriptions of both GEA and ImproveNet) to End Users and Customers, in the \nmanner specified in this Agreement or otherwise agreed to by the parties, and \nto distribute and transmit the GEA Content for the sole purpose of permitting \nEnd Users and Customers to view it from the ImproveNet System and co-branded \npages;\n\n                    (b) subject to GEA's prior written right (within its sole \ndiscretion) of approval, to reproduce and publicly display the GEA Content on \nor from any Internet site, other electronic platform, or computer system that \nis not exclusively controlled by ImproveNet, and to electronically distribute \nand transmit the GEA Content for the sole purpose of permitting End Users and \nCustomers to view it from such approved sites, platforms, or systems; \nprovided, however, ImproveNet agrees to obtain GEA's prior written consent if \nit intends to enter into a contract or an arrangement with a third party \nwhich could or would result by virtue of the proposed terms of the applicable \ncontract or arrangement in less than full pages of GEA Content being pulled \nthrough to a third party's website or any material alteration of GEA Content;\n\n                    (c) to display the GEA Marks in direct connection with \nGEA Content on or from the ImproveNet System website and on or from any \nco-branded pages (i.e., pages identified with both GEA Marks and ImproveNet \nMarks, or the names or descriptions of both GEA and ImproveNet) as provided \nin this Agreement and, subject to GEA's prior written right of approval, (in \nits sole discretion) to display the GEA Marks in direct connection with GEA \nContent on any Internet site, other electronic platform, or computer system \nthat is not exclusively controlled by ImproveNet, and\n\n                    (d) to modify the selection, arrangement, and look and \nfeel of the GEA Content, only such that ImproveNet may determine what \nportions of the GEA Content will be incorporated into the ImproveNet System \nor the co-branded pages referred to above and how that content is arranged \nand displayed, provided that ImproveNet shall have no right to alter the \nwording or context of the portions of the GEA Content selected, without the \nprior written approval of GEA, in its sole discretion.\n\n     Section 5.2 LIMITATIONS.\n\n               (a) The use of the GEA Marks shall always be in connection \nwith GEA Content, be with appropriate attributions displayed to End Users and \nCustomers, and as otherwise agreed by the parties, provided that: (i) \nImproveNet shall at all times use an appropriate trademark or service mark \nlegend as GEA may from time to time specify with respect to any use of the \nGEA Marks; (ii) GEA may request that ImproveNet correct the appearance of any \nGEA Marks by giving ImproveNet seven (7) calendar days prior written notice; \nand (iii) ImproveNet shall not modify the GEA Marks or use them for any \npurpose other than as set forth above. ImproveNet shall not engage in any \nactivity associated with the GEA Marks that, in GEA's sole judgement, \nadversely affects the good name, good will, image or \n\n                                   10\n\n\n\n\nreputation of GEA, and ImproveNet shall take commercially reasonable steps to \nensure that Customers do not do so. All uses of the GEA Marks hereunder shall \ninure only to the benefit of GE, including GEA.\n\n               (b) ImproveNet shall use the GEA Content, the GEA Marks, and \nthe GEA Technology (to the extent that the parties agree that ImproveNet may \nuse the GEA Technology) in accordance with any and all standards, policies, \nand\/or guidelines adopted by GEA; provided, however, that GEA agrees to \ndeliver to ImproveNet a written copy of any such standards, policies and\/or \nguidelines adopted by GEA and ImproveNet shall not be required to conform to \nsuch policies until fifteen (15) business days after receipt of such \nmaterials from GEA, and GEA shall have the right to proscribe any use of the \nGEA Content, the GEA Marks, and the GEA Technology pursuant to the exercise \nof the foregoing license that is not in accordance with any and all such \nstandards, policies and\/or guidelines.\n\n     Section 5.3 NO UNAUTHORIZED USE. ImproveNet shall not:\n\n                    (a) copy, use, display, distribute, or transfer the GEA \nContent, the GEA Marks, or the GEA Technology, except as expressly \ncontemplated in this Agreement;\n\n                    (b) create any derivative works based upon the GEA \nTechnology; and\n\n                    (c) reverse engineer, disassemble, or decompile the GEA \nTechnology.\n\n     Section 5.4 NO OTHER LICENSES. ImproveNet's rights in and to the GEA \nContent, the GEA Marks, and the GEA Technology shall be limited to those \nexpressly granted in this Agreement. All other uses, reproduction, or display \nof the GEA Content, the GEA Marks, and the GEA Technology shall be subject to \nGEA's prior written approval, in GEA's sole discretion.\n\n     Section 5.5 LICENSE REGARDING IMPROVENET MARKS. Subject to the terms and \nconditions of this Agreement, ImproveNet hereby grants to GEA a \nnon-exclusive, non-transferable and, pursuant to the terms of this Agreement, \nrevocable right and license to display ImproveNet Marks in links from any GEA \nwebsites to the ImproveNet System and in links to the ImproveNet System from \nany co-branded pages (i.e., pages identified with both GEA Marks and those of \nthird parties, or with the names or descriptions of both GEA and third \nparties) hosted by GEA, and subject to the approval of ImproveNet (which \nshall not be unreasonably withheld), to display ImproveNet Marks in GEA \nmarketing collateral. The use of ImproveNet Marks shall be with appropriate \nattributions displayed, and as otherwise agreed by the parties, provided \nthat: (i) GEA shall at all times use an appropriate trademark or service mark \nlegend as ImproveNet may from time to time specify with respect to any use of \nImproveNet Marks; (ii) ImproveNet may request that GEA correct the appearance \nof any ImproveNet Marks by giving GEA seven (7) calendar days prior written \nnotice; and (iii) GEA shall not modify ImproveNet Marks or use them for any \npurpose other than as set forth above. GEA shall not engage in any action \nassociated with ImproveNet Marks that, in ImproveNet's sole judgment, \nadversely affects the good name, goodwill, image or reputation of ImproveNet. \nAll uses of ImproveNet Marks hereunder shall inure to the benefit of \nImproveNet. GEA's rights in and to ImproveNet Marks shall be limited to those \nexpressly granted in this Agreement. All other uses, reproduction, or display \nof ImproveNet Marks shall be subject to ImproveNet's prior written approval.\n\n     Section 5.6 INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement \nshall be construed to transfer from one party to another the ownership of any \nproperty subject to Intellectual Property Rights, or any rights to use, \nreproduce, or exhibit such property except as provided in this Article V. \nUnless otherwise expressly agreed in writing: (i) GEA Technology and GEA \nContent, and all Intellectual \n\n                                     11\n\n\n\n\nProperty Rights therein, are and will remain the sole and exclusive property \nof GEA and its licensors; (ii) the ImproveNet System and all Intellectual \nProperty Rights therein will remain the sole and exclusive property of \nImproveNet and its licensors.\n\n                                   ARTICLE VI\n\n                                FEES AND PAYMENTS\n\n     Section 6.1 CUSTOMER REFERRAL FEES Shall be as provided in section 4.2 \nhereof.\n\n     Section 6.2 GEA PAYMENTS TO IMPROVENET. In consideration for the \nImproveNet services set forth in Section 3.1 hereof, GEA will pay to \nImproveNet, annually in advance, the sum of $[...***...] in l999, $[...***...]\nin 2000 and $[...***...] in 2001. The first payment shall be due and payable \nwithin 30 days of the Effective Date and each subsequent payment shall be due \nand payable within 30 days of the anniversary date of the Effective Date.\n\n     Section 6.3 IMPROVENET PAYMENTS TO GEA. In consideration for the GEA \nservices provided in Section 3.2 hereof, ImproveNet will pay to GEA the sum \nof $[...***...] in l999, $[...***...] in 2000 and $[...***...] in 2001. The \nfirst payment shall be due and payable within 30 days of the Effective Date \nand each subsequent payment shall be due and payable within 30 days of the \nanniversary date of the Effective Date.\n\n     Section 6.4 PAYMENTS. Disputes related to any payments due under this \nAgreement shall not constitute grounds for any party hereto to cease to \nperform any of its obligations under this Agreement and shall be handled in \naccordance with Article XI. Any payments not made when due shall accrue \ninterest from the date due until the date paid at twelve percent (12%) per \nannum or, if less, the maximum per annum rate permitted by law.\n\n     Section 6.5 TAXES. Each party shall be responsible for all taxes of any \nsort due on any fees received by that party pursuant to this Agreement.\n\n     Section 6.6 TRANSACTION FEES. In the event GEA elects to utilize its \nrelationship with ImproveNet to sell Covered Items to Customers or End-Users, \nwhether directly or through GEA authorized intermediaries such as \ndistributors or dealers, ImproveNet will not be entitled to any fees or \npayments other than as expressly set forth in this provision and in Article \nIV.\n\n                                   ARTICLE VII\n\n                PROPRIETARY INFORMATION, USAGE DATA AND PUBLICITY\n\n     Section 7.1 PROTECTION. All Proprietary Information disclosed by a party \nhereto to any other party hereto in the course of performing under this \nAgreement or to which a party hereto gains access in connection with this \nAgreement shall be deemed to be the property of the disclosing party. The \nreceiving party shall during the life of this Agreement: (i) receive such \nProprietary Information in confidence; (ii) during the life of this Agreement \nand for two (2) years thereafter maintain the confidentiality of such \nProprietary Information and not disclose such Proprietary Information to \nthird parties (except for the receiving party's representatives, agents and \ncontractors who have a need to know, are under a duty of non-disclosure, and \nare acting for the sole benefit of the receiving party), and shall \n\n* CONFIDENTIAL TREATMENT REQUESTED\n\n                                        12\n\n\n\n\naccord such Proprietary Information at least the same level of protection \nagainst unauthorized use and disclosure as the receiving party customarily \naccords its own information of a similar nature; (iii) use or permit the use \nof such Proprietary Information solely in accordance with the terms of this \nAgreement; and (iv) promptly notify the disclosing party in writing of any \nloss or unauthorized use or disclosure of or access to the disclosing party's \nProprietary Information of which it becomes aware. The terms and conditions \nof this Agreement (as well as all information regarding the negotiation of \nthis Agreement) shall be deemed to be the Proprietary Information of the \nparties hereto. The parties hereto shall each abide by and reproduce and \ninclude any restrictive legends or proprietary rights notices that appear in \nor on any Proprietary Information of the other parties hereto that it is \nauthorized to reproduce. Each party shall also not remove, alter, cover or \ndistort any trademark, trade name, copyright or other proprietary rights \nnotices, legends, symbols or labels appearing in any Proprietary Information \nof any other party hereto. Confidentiality obligations and restrictions \narising under this Section 7.1 shall continue to exist unless and until such \nProprietary Information falls into one of the exclusions set forth in Section \n7.2 hereto, but in no event longer than three (3) years following the \nexpiration or termination of this Agreement.\n\n     Section 7.2 EXCLUSIONS. The restrictions on disclosure set forth above \nshall not apply when, and to the extent that the Proprietary Information: (i) \nis or becomes generally available to the public through no fault of the \nreceiving party; (ii) was previously rightfully known to the receiving party \nfree of any obligation to keep it confidential; (iii) is subsequently \ndisclosed to the receiving party by a third party who may rightfully transfer \nand disclose such information without restriction and free of any obligation \nto keep it confidential; (iv) is independently developed by the receiving \nparty or a third party without reference to the disclosing party's \nProprietary Information and such disclosing party is able to document such \nindependent development; or (v) is required to be disclosed by the receiving \nparty as a matter of law, provided that the receiving party uses all \nreasonable efforts to provide the disclosing party with at least ten (10) \ndays prior written notice of such disclosure; provided, further, ImproveNet \nshall be permitted to disclose this Agreement, without GEA's consent, and the \nRelated Agreements (as defined in the Series D Preferred Stock Purchase \nAgreement entered into between the parties on the date hereof) publicly to \nthe extent mandated by any applicable federal or state law or regulation.\n\n     Section 7.3 DATA RIGHTS. All data generated through the ImproveNet \nSystem shall be the property of the originator, unless otherwise assigned. \nNotwithstanding anything herein to the contrary, GEA acknowledges and agrees \nthat ImproveNet may request and obtain all rights from Customers and\/or \nMembers using the system (including GEA) in order for ImproveNet to make use \nof aggregated data for forecasting or other commercial purposes. ImproveNet \nwill protect the confidentiality of all GEA transactions. Assuming that GEA \nobtains appropriate Customer and\/or End User authorization, GEA will have the \nright to use all data generated by and through its Customers or End-Users for \nCovered Items and may use such transaction data gathered by GEA (whether or \nnot such transactions flow through the ImproveNet System) in any manner GEA \ndeems appropriate.\n\n     Section 7.4 SECURITY. ImproveNet will ensure the security of individual \ncustomer account, pricing, purchasing, and credit information and agrees not \nto share, sell, allow access to, or otherwise make available any such \ncustomer-related information supplied by GEA which GEA deems confidential, \nexcept on an aggregated basis pursuant to Section 7.3. GEA and ImproveNet \nagree to provide adequate security around the ImproveNet System, GEA Content \nand GEA Technology (to the extent utilized) and to protect proprietary system \ndesign, content, and functionality from unauthorized use or access by third \nparties.\n\n     Section 7.5 PUBLIC STATEMENTS REGARDING AGREEMENT. The parties hereto \nshall jointly prepare a press release regarding the existence of this \nAgreement at a mutually agreed upon time. The \n\n                                     13\n\n\n\n\nparties acknowledge that each may have internal constraints that may affect \nthe timing of issuance and the content of any such press releases. Subject to \nSection 7.2, unless required by law or to assert its rights under this \nAgreement, and except for disclosure on a \"need to know basis\" to its own \nemployees and consultants, and its legal, investment, financial and other \nprofessional advisers and their respective representatives or agents on a \nconfidential basis, each party shall not disclose the existence of or any of \nthe terms of this Agreement without the prior written consent of the other \nparty. The breach of this Section 7.5 by either GEA or ImproveNet, shall \nconstitute a material breach of this Agreement and shall accord the \nnon-disclosing party the immediate right to terminate this Agreement as \nprovided in Section 11.2.\n\n     Section 7.6 EQUITABLE RELIEF. The parties acknowledge that a breach of \nany portion of this Article VII would cause the non-disclosing party \nirreparable harm for which monetary damages would be inadequate. Accordingly, \nthe non-disclosing party shall be entitled to seek injunctive or other \nequitable relief to remedy any threatened or actual breach of any portion of \nthis Article VII by the other party.\n\n                                  ARTICLE VIII\n\n                          OTHER BUSINESS RELATIONSHIPS\n\n     Section 8.1 OTHER GE BUSINESSES. So long as (a) ImproveNet has not \nalready established, or entered into discussion with a third party to \nestablish a Founding Member for a major product category (as described in \nSection 3.3) as of the Effective Date, and (b) ImproveNet receives a list of \nGEA Affiliates in the building supply industry (such as GE Supply, GE \nSilicones, etc.) (collectively, the \"GEA Affiliates\"), ImproveNet will \ncontact GEA Affiliates named on such list provided to ImproveNet within \nthirty (30) days of the receipt of such list and agrees not to establish a \nFounding Member relationship with any third party without speaking to the \nrelevant GEA Affiliate first.\n\n     Section 8.2 RELATIONSHIPS WITH THIRD PARTIES. Except for ImproveNet's \nobligations under Section 3.1 and 3.3 hereof, no provision of this Agreement \nshall be construed so as to preclude or limit a party (or its Affiliates) \nfrom: (i) creating or operating any other websites; (ii) maintaining any and \nall existing relationships and performing all existing agreements entered \ninto prior to the Effective Date of this Agreement; or (iii) providing \ncontent, technology and other services to third parties; or (iv) with respect \nto GEA, entering into relationships with third parties with respect to \nservices similar to the ImproveNet System.\n\n                                   ARTICLE IX\n\n                         REPRESENTATIONS AND WARRANTIES\n\n     Section 9.1 REPRESENTATIONS AND WARRANTIES OF IMPROVENET. ImproveNet \nrepresents and warrants as follows, as of the Effective Date and for the term \nof this Agreement:\n\n                    (a) The execution and delivery of this Agreement and \ncompliance by ImproveNet with all provisions of this Agreement (i) are within \nthe corporate power and authority of ImproveNet, and (ii) have been duly \nauthorized by all requisite corporate proceedings on the part of ImproveNet.\n\n                                       14\n\n\n\n\n                    (b) The execution and delivery of this Agreement shall \nnot conflict with or result in a material breach of the terms, conditions or \nprovisions of, or give rise to a right of termination under, or constitute a \ndefault under, or result in any material violation of, the organizational \ndocuments of ImproveNet or any agreement, contract, instrument, order, \njudgment, decree, statute, law, rule or regulation to which ImproveNet is \nsubject. Neither the execution and delivery of this Agreement nor the \ncompliance with the terms and provisions hereof shall result in any violation \nof any franchise, certificate, license, permit, or other authorization \nnecessary for the ownership, maintenance and operation by ImproveNet of the \nImproveNet System.\n\n                    (c) To the best of its knowledge, ImproveNet is in \ncompliance in all material respects with all applicable federal, state and \nlocal laws and regulations and has obtained all licenses required or \nnecessary for the conduct of the ImproveNet System. There are no claims, \nnotices, civil, criminal or administrative actions, suits, hearings, \ninvestigations, inquiries or proceedings pending or threatened against \nImproveNet with respect to the ImproveNet System.\n\n                    (d) To the best of the its knowledge, ImproveNet owns, or \nhas the right to use under valid and enforceable agreements, all of the \nIntellectual Property Rights related to the operation of the ImproveNet \nSystem. The operation of the ImproveNet System as presently conducted or \nproposed to be conducted by ImproveNet does not infringe or violate any \nIntellectual Property Rights of any other person, and ImproveNet has not \nreceived any charge, complaint, claim, demand or notice alleging any such \ninfringement or violation. ImproveNet represents and warrants to GEA that (i) \nthe technology as utilized by the ImproveNet System, and (ii) any material \noriginated by ImproveNet or provided to GEA by ImproveNet (other than the GEA \nContent) (\"ImproveNet Material\") which is displayed on the ImproveNet System \nshall not (A) violate any criminal laws or any rights of any third parties, \nincluding, but not limited to, such violations as infringement or \nmisappropriation of Intellectual Property Right or other proprietary or \nproperty right, false advertising, unfair competition, defamation, invasion \nof privacy or rights of celebrity, violation of any anti-discrimination law \nor regulation or (B) contain any material that would constitute a criminal \noffense, give rise to civil liability, or otherwise violate any applicable \nlocal, state or federal law.\n\n                    (e) All computer systems, software, and hardware used in \nthe operation of the ImproveNet System are able to accurately process date \ndata, including, calculating, comparing, and sequencing from, into and \nbetween the twentieth century (through year 1999), the year 2000 and the \ntwenty-first century, including leap year calculations. ImproveNet is taking \nall commercially reasonable steps to assure that the ImproveNet System is not \nadversely and materially affected by Year 2000 or other date-related \nprocessing failures affecting the performance of its suppliers and business \npartners.\n\n                    (f) The ImproveNet System will comport with reasonable \ncommercial or industry standards, including standards for firewalls, \nantivirus protection, and system security.\n\n                    (g) ImproveNet represents and warrants that it will \nfulfill the obligations defined in Exhibit A, Statement of Work, which sets \nforth a Risk Management Plan the execution of which GEA deems material to its \ndecision to enter into this Agreement and related investment agreements with \nImproveNet.\n\n                    (h) In accordance with the particulars set forth in \nExhibit B hereof, ImproveNet represents and warrants that it will carry \nsufficient third party liability insurance with an insurer and insurance \narrangement acceptable to GEA to ensure its ability to fulfill its \nindemnification obligations to GEA and generally as required to meet its \nobligations for third party claims and dispute costs arising from or related \nto consumer and contractor interaction on the ImproveNet System.\n\n                                     15\n\n\n\n\n                    (i) In the event that GEA notifies ImproveNet that the \nImproveNet System is failing to conform to any of the above warranties, \nImproveNet, without charge, shall promptly and in no event more than thirty \n(30) days thereafter (or such longer period as GEA may agree to in writing) \n(the \"Cure Period\"), repair, replace or otherwise remedy the cause of such \nfailure. The foregoing represents GEA's sole and exclusive remedy, and \nImprovNet's sole and exclusive liability for any breach of the foregoing \nwarranties; provided, however, that in the event that ImproveNet fails to \ncure any breach of warranty within the applicable Cure Period, GEA retains \nthe right to obtain any and all remedies available to GEA at law or in equity.\n\n     Section 9.2 REPRESENTATIONS AND WARRANTIES OF GEA. GEA represents and \nwarrants as follows, as of the Effective Date and for the term of this \nAgreement:\n\n                    (a) The execution and delivery of this Agreement and \ncompliance by GEA with all provisions of this Agreement (i) are within the \ncorporate power and authority of GEA, and (ii) have been duly authorized by \nall requisite corporate proceedings on the part of GEA.\n\n                    (b) The execution and delivery of this Agreement shall \nnot conflict with or result in a breach of the terms, conditions or \nprovisions of, or give rise to a right of termination under, or constitute a \ndefault under, or result in any violation of, the organizational documents of \nGEA or any agreement, contract, instrument, order, judgment, decree, statute, \nlaw, rule or regulation to which GEA is subject.\n\n                    (c) GEA is in compliance in all material respects with \nall applicable federal, state, local and foreign laws and regulations and has \nobtained all licenses required or necessary for the provision of GEA Content \nor GEA Technology under this Agreement. There are no claims, notices, civil, \ncriminal or administrative actions, suits, hearings, investigations, \ninquiries or proceedings pending or threatened against GEA with respect to \nthe GEA Content or GEA Technology.\n\n                    (d) GEA owns, or has the right to use under valid and \nenforceable agreements, all of the Intellectual Property Rights related to \nthe GEA Technology and the GEA Content. GEA represents and warrants to \nImproveNet that (i) GEA Technology, and (ii) the GEA Content which used with \nor displayed on the ImproveNet System shall not (A) violate any criminal laws \nor any rights of any third parties, including, but not limited to, such \nviolations as infringement or misappropriation of Intellectual Property Right \nor other proprietary or property right, false advertising, unfair \ncompetition, defamation, invasion of privacy or rights of celebrity, \nviolation of any anti-discrimination law or regulation, or any other right of \nany person or (B) contain any material that would constitute a criminal \noffense, give rise to civil liability, or otherwise violate any applicable \nlocal, state or federal law.\n\n                    (e) All computer systems, software, and hardware used in \nthe operation of the GEA Technology are able to accurately process date data, \nincluding, calculating, comparing, and sequencing from, into and between the \ntwentieth century (through year 1999), the year 2000 and the twenty-first \ncentury, including leap year calculations. GEA is taking all commercially \nreasonable steps to assure that the GEA Technology is not adversely and \nmaterially affected by Year 2000 or other date-related processing failures.\n\n                    (f) The GEA Technology will comport with reasonable \ncommercial or industry standards as applicable, including standards for \nfirewalls, antivirus protection, and system security.\n\n\n                                      16\n\n\n\n\n                    (g) In the event that ImproveNet notifies GEA that the \nGEA System is failing to conform to any of the above warranties, GEA, without \ncharge, shall promptly and in no event more than thirty (30) days thereafter \n(or such longer period as ImproveNet may agree to in writing) (the \"GEA Cure \nPeriod\"), repair, replace or otherwise remedy the cause of such failure. The \nforegoing represents ImproveNet's sole and exclusive remedy and GEA's sole \nand exclusive liability for any breach of any of the foregoing warranties; \nprovided, however, that in the event GEA fails to cure any breach of warranty \nwithin the applicable GEA Cure Period, ImproveNet retains the right to obtain \nany and all remedies available to ImproveNet at law or in equity.\n\n     Section 9.3 DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH IN THIS \nAGREEMENT, NO PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES WITH \nRESPECT TO THE IMPROVENET SYSTEM, THE GEA CONTENT, THE GEA TECHNOLOGY, OR ANY \nOTHER TECHNOLOGY, CONTENT, OR INTELLECTUAL PROPERTY RIGHTS, OR ANY OTHER \nINFORMATION, DATA, PRODUCTS, SERVICES, ACCURACY OR RESULTS OF USE, RIGHTS OR \nOTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL IMPLIED \nWARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND \nFITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT THAT ANY IMPLIED WARRANTY MAY \nNOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF \nSUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.\n\n                                    ARTICLE X\n\n                             LIMITATION OF LIABILITY\n\n     OTHER THAN WITH RESPECT TO INDEMNIFICATION OBLIGATIONS UNDER SECTION \n12.1 OF ARTICLE XII, BREACH OF THE NONDISCLOSURE OBLIGATIONS UNDER ARTICLE \nVII, AND INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT \nSHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY FORM \nOF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY \nKIND (WHETHER OR NOT FORESEEABLE), EVEN IF INFORMED IN ADVANCE OF THE \nPOSSIBILITY OF SUCH DAMAGES, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING \nNEGLIGENCE), OR OTHERWISE.\n\n                                   ARTICLE XI\n\n                              TERM AND TERMINATION\n\n     Section 11.1 TERM. This Agreement shall continue in force for three (3) \nyears from and after the Effective Date, or longer if renewed by mutual \nwritten consent of the parties, or until the valid termination hereof as \nprovided herein.\n\n     Section 11.2 TERMINATION FOR CAUSE. ImproveNet and GEA shall each have \nthe right to terminate this Agreement if: (i) the other party breaches any \nmaterial term or condition of this Agreement and fails to cure such breach \nwithin thirty (30) days (or such longer period as the non-breaching party may \nagree to in writing, in its sole discretion) after receipt of written notice \nfrom the non-breaching party; (ii) the other party breaches the same material \nterm or condition of this Agreement three (3) or more times during the same \none year term, and was given notice and an opportunity to cure \n\n                                     17\n\n\n\n\nin each instance as provided above and even if the party did, in fact, cure \non any or all such three (3) occasions; (iii) the other party materially \nbreaches this Agreement more than five (5) times during the same one year \nterm, and was given notice and an opportunity to cure in each instance as \nprovided above and even if the other party did, in fact, cure on any or all \nsuch five (5) occasions; (iv) the other party becomes the subject of a \nvoluntary petition in bankruptcy or any voluntary proceeding relating to \ninsolvency, receivership, liquidation, composition, or comparable proceeding \nor any assignment for the benefit of creditors; or (v) the other party \nbecomes the subject of an involuntary petition in bankruptcy or any \ninvoluntary proceeding relating to insolvency, receivership, liquidation, \ncomposition, or comparable proceeding or any assignment for the benefit of \ncreditors, if such petition or proceeding is not dismissed within ninety (90) \ndays of filing.\n\n     Section 11.3 TERMINATION IN THE EVENT OF CHANGE OF CONTROL. In the event \nof a Change of Control of ImproveNet, GEA may terminate this Agreement by \nproviding ImproveNet with thirty (30) days written notice of such intent to \nterminate. For purposes of this Section 11.3, a \"Change of Control\" shall \nmean: (i) the consummation of a reorganization, merger or consolidation or \nsale or other disposition of all or substantially all of the assets of a \nparty; or (ii) the acquisition by any individual, entity or group of \nbeneficial ownership of a controlling interest in ImproveNet (as defined in \nSection 1.1(a) above); provided that a \"Change of Control\" does not include a \nreorganization of ImproveNet that does not result in a change in the \neffective control of ImproveNet or an initial public offering of ImproveNet's \nvoting stock or an assignment or transfer of this Agreement that is permitted \npursuant to Section 14.4.\n\n     Section 11.4 SURVIVAL. All accrued and outstanding payment obligations \nhereunder, any remedies for breach of this Agreement, Articles VII, IX, X, \nXII, XIII and XIV, and Sections 5.6, 11.4 and 11.5 shall survive the \ntermination and expiration of this Agreement; provided, that if any such \nprovision explicitly sets for the duration for such survival, such term shall \nsurvive only for the period explicitly set forth therein.\n\n     Section 11.5 RETURN OF PROPRIETARY INFORMATION UPON TERMINATION OR \nEXPIRATION OF AGREEMENT. Upon the termination or expiration of this \nAgreement, each party shall promptly return all materials subject to \nIntellectual Property Rights of the other party, all Proprietary Information \nof the other party, and other information, documents, manuals and other \nmaterials belonging exclusively to the other party, except as may be \notherwise provided in this Agreement. Each party shall have the right to \nrequest, and the other party shall provide, written certification from an \nexecutive officer of the other party stating that all such material has been \nreturned or destroyed.\n\n                                      18\n\n\n\n\n                                   ARTICLE XII\n\n                                 INDEMNIFICATION\n\n     Section 12.1 INTELLECTUAL PROPERTY INDEMNIFICATION.\n\n                    (a) Each of GEA and ImproveNet, respectively, shall \ndefend, indemnify and hold each other, and each other's Affiliates, partners, \nofficers, employees, directors, agents, consultants, contractors, \nrepresentatives, successors and assigns, as such, harmless from and against \nany third party claims, demands, liabilities, actions, judgments and \nexpenses, including attorneys fees, (\"Losses\") which arise out of or result \nfrom any claim that such party does not have sufficient right, title or \ninterest in any software, data, or any other materials used or supplied by \nsuch party in performance of such party's obligations under this Agreement \nthat are subject to any Intellectual Property Rights (the \"Protected \nMaterial\") or that such Protected Material violates any Intellectual Property \nRight of any third party.\n\n                    (b) In the event that any such claim is made against \neither GEA or ImproveNet, or in one of the parties' (the \"Indemnifying \nParty\") opinion is likely to be made against the other party (the \n\"Indemnified Party\"), such Indemnifying Party reserves the right, in its sole \ndiscretion, to avoid infringement by (i) procuring for the Indemnified Party \nthe right to use the subject Protected \n\nMaterial, (ii) replacing the subject Protected Material with materials of \nequal or superior content and functionality, or (iii) to modify the subject \nProtected Material without materially and adversely affecting their content \nand functionality.\n\n     Section 12.2 GENERAL INDEMNIFICATION. ImproveNet shall defend, indemnify \nand hold GEA and its Affiliates, officers, directors, agents, consultants and \nemployees harmless from and against any and all Losses arising out of or \nrelated to ImproveNet's material breach of ImproveNet's obligations, \nrepresentations, and warranties hereunder or any legal liability arising out \nof or relating to the ImproveNet System.\n\n     Section 12.3 GENERAL INDEMNIFICATION. GEA shall defend, indemnify and \nhold ImproveNet and its Affiliates, officers, directors, agents, consultants \nand employees harmless from and against any and all Losses arising out of or \nrelated to GEA's material breach of GEA's obligations, representations, and \nwarranties hereunder or any legal liability arising out of or relating to the \nGEA Technology.\n\n     Section 12.4 INDEMNIFICATION PROCEDURES.\n\n                    (a) Only claims for indemnification during the term of \nthis Agreement and for one year following the termination of this Agreement \nshall be permitted under this Agreement. Any party claiming indemnification \npursuant to this Agreement shall notify the indemnifying party within thirty \n(30) days after learning of the occurrence of any event (including, without \nlimitation, the commencement of any audit by any taxing authority) that such \nparty asserts is an indemnifiable event pursuant to this Agreement. If such \nevent involves the claim of any third party and the indemnifying party \nconfirms in writing its responsibility for such liability, if established, \nthe indemnifying party shall be entitled to participate in and, to the extent \nit shall wish, assume control over (in which case the indemnifying party \nshall assume all expense with respect to) the defense, settlement, adjustment \nor compromise of such claim.\n\n                           (b) The indemnified party shall have the right to \nemploy separate counsel in any action or claim and to participate in the \ndefense thereof at the expense of the indemnifying party (i) if the retention \nof such counsel has been specifically authorized by the indemnifying party, \nor (ii) if the \n\n                                  19\n\n\n\n\ncounsel is retained because the indemnifying party does not notify the \nindemnified party within twenty (20) days after receipt of a claim notice \nthat it elects to undertake the defense thereof. The indemnified party shall \nhave the right to employ counsel at the indemnified party's own expense and \nto participate in such action or claim, including settlement or trial, so \nlong as such participation does not substantially interfere in the \nindemnifying party's defense of such claim or action.\n\n                    (c) The indemnifying party shall obtain the prior written \napproval of the indemnified party, not to be unreasonably withheld, before \nentering into any settlement, adjustment, or compromise of such claim or \nceasing to defend against such claim, if pursuant to or as a result of such \nsettlement, adjustment, compromise, or cessation, injunctive or other relief \nwould be imposed against the indemnified party.\n\n                    (d) If the indemnifying party does not assume control \nover the defense of such claim as provided in Section 12.3(a), the \nindemnified party shall have the right to defend the claim in such manner as \nit may deem appropriate at the cost and expense of the indemnifying party, \nand with the consent of the indemnifying party, not to be unreasonably \nwithheld, to settle, adjust, or compromise such claim. The indemnified party \nmay settle, adjust, or compromise any such claim without the consent of the \nindemnifying party if the indemnified party waives indemnification for such \nclaim.\n\n                                         20\n\n\n\n\n                                  ARTICLE XIII\n\n                               DISPUTE RESOLUTION\n\n     Section 13.1 INFORMAL DISPUTE RESOLUTION.\n\n                    (a) DISPUTES. Any dispute, controversy, claim or \ndisagreement between or among any of the parties hereto arising from, \nrelating to or in connection with this Agreement, any agreement, certificate \nor other document referred to herein or delivered in connection herewith, or \nthe relationships of the parties hereunder or thereunder, including questions \nregarding the interpretation, meaning or performance of this Agreement, and \nincluding claims based on contract, tort, common law equity, statute, \nregulation, order or otherwise (\"Dispute\") shall be resolved in accordance \nwith this Section 13.1. The parties agree that all disputes will involve \ninterstate commerce in fact, and accordingly, the FAA applies and governs the \narbitration.\n\n                    (b) LEVEL 1 REVIEW. Upon written request of any party, \neach of GEA and ImproveNet shall appoint a designated representative familiar \nwith the dealings among the parties hereto whose task it shall be to meet (by \nconference telephone call or in person at a mutually agreeable site) for the \npurpose of endeavoring to resolve such Dispute (\"LEVEL 1 REVIEW\"). The \ndesignated representatives shall meet as often as the parties reasonably deem \nnecessary to discuss the Dispute and negotiate in good faith in an effort to \nresolve the Dispute without the necessity of any formal proceeding.\n\n                    (c) LEVEL 2 REVIEW. If the Dispute cannot be resolved \nwithin the earlier of (i) fifteen (15) days of the first Level 1 Review \nmeeting or (ii) such time as when either party gives the other notice of an \nimpasse (\"LEVEL 1 TERMINATION DATE\"), an executive vice president (or a \nfunctional equivalent) of GEA and chief executive officer of ImproveNet shall \nmeet (by conference telephone call or in person at a mutually agreeable site) \nwithin thirty (30) days after the Level 1 Termination Date for the purpose of \nresolving such unresolved Dispute (\"LEVEL 2 REVIEW).\n\n     Section 13.2 ARBITRATION.\n\n                    (a) If the Dispute is not resolved within fifteen (15) \ndays after the Level 2 Review and any extension of such periods as mutually \nagreed to by the parties, either party may submit the Dispute to binding \narbitration in accordance with the following provisions of this Section 13.2.\n\n                    (b) Any such arbitration shall be conducted by \nJAMS\/Endispute in accordance with its current rules (\"JAMS RULES\"), before a \nsingle arbitrator selected under such JAMS Rules. The arbitration shall be \nconducted in Redwood City, California, unless otherwise agreed by the parties.\n\n                    (c) Except as necessary in court proceedings to enforce \nthis arbitration provision or an award rendered hereunder, or to obtain \ninterim relief or as otherwise provided in Section 13.3 or pursuant to lawful \ncompulsion, no party nor any arbitrator shall disclose the existence, content \nor results of any arbitration conducted hereunder without the prior written \nconsent of the other party to the arbitration.\n\n                    (d) To the extent that the relief or remedy granted in an \naward rendered by the arbitrator is relief or a remedy on which a court could \nenter judgment, a judgment upon the award rendered may be entered in any \ncourt having jurisdiction thereof. Otherwise, the award shall be binding \n\n                                         21\n\n\n\n\non the parties in connection with their obligations under this Agreement and \nin any subsequent arbitration or judicial proceedings among any of the \nparties.\n\n                    (e) The parties shall share equally the cost of \narbitration, including any required administrative fee, the compensation of \nthe arbitrators and the costs of any neutral witnesses or proof produced at \nthe direct request of the arbitrator. The arbitrator shall have the power to \ngrant injunctive relief or any other relief allowed by the substantive law of \nthe State of Delaware.\n\n     Section 13.3 RECOURSE TO COURTS AND OTHER REMEDIES. Notwithstanding the \nDispute resolution procedures contained in Sections 13.1 and 13.2, any party \nmay apply to the appropriate division of the courts of the State of \nCalifornia having proper jurisdiction (i) to enforce this agreement to \narbitrate, (ii) to decide issues of arbitrability, (iii) to seek interim \ninjunctive relief so as to maintain the status quo until the arbitration \naward is rendered or the Dispute is otherwise resolved, (iv) to avoid the \nexpiration of any applicable limitation period, (v) to preserve a superior \nposition with respect to other creditors, (vi) to challenge or vacate any \nfinal judgment, award or decision of the arbitrator under the circumstances \nand to the effect allowed, (vii) to enforce the payment of undisputed \namounts, or (vii) to seek post-arbitration injunctive relief for the \nprotection of any Intellectual Property Rights of a party.\n\n     Section 13.4 MISCELLANEOUS. It is the intent of the parties that \nreasonable discovery be allowed prior to the arbitration, in the discretion \nof the arbitrator, and as further provided by any applicable JAMS Rules. \nDisputes submitted shall be governed by the substantive law of the State of \nDelaware, not inconsistent with the Federal Arbitration Act (\"FAA\"), 9 U.S.C. \nSection 1 et seq. A prevailing party may petition the arbitrator for reasonable \nattorneys' fees and expenses.\n\n                                   ARTICLE XIV\n\n                          GENERAL TERMS AND CONDITIONS\n\n     Section 14.1 FORCE MAJEURE. Neither party shall be liable to the other \nfor delays or failures in performance resulting from causes beyond the \nreasonable control of that party, including, but not limited to, acts of God, \nlabor disputes or disturbances, material shortages or rationing, riots, acts \nof war, changes in governmental regulations, or casualties.\n\n     Section 14.2 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties to this \nAgreement are independent contractors. Neither party is an agent, \nrepresentative or partner of the other party. Neither party shall have any \nright, power or authority to enter into any agreement for or on behalf of, or \nto incur any obligation or liability for, or to otherwise bind, the other \nparty. This Agreement shall not be interpreted or construed to create an \nassociation, joint venture or partnership between the parties or to impose \nany partnership obligation or liability upon either of the parties hereto.\n\n     Section 14.3 SEVERABILITY. If any term, provision, or restriction of \nthis Agreement and any appendix, exhibit, or schedule hereto is held by a \ncourt or arbitrator of competent jurisdiction to be invalid, void or \nunenforceable, the remainder of the terms, provisions, covenants and \nrestrictions of this Agreement and such exhibits shall remain in full force \nand effect and shall in no way be affected, impaired or invalidated. The \nparties will negotiate in good faith appropriate modifications to the \ninvalidated provision or this Agreement to most nearly effect the intent of \nsuch provision.\n\n     Section 14.4 ASSIGNMENT. Neither party shall assign, sublicense or \notherwise transfer (voluntarily, by operation of law or otherwise) this \nAgreement or any right, interest or benefit under this \n\n                                 22\n\n\n\n\nAgreement, without the prior written consent of the other party, except in \nthe event of its merger, corporate reorganizations, or sale of all, or \nsubstantially all, of its assets, provided that such assignee (a) is not a \ndirect competitor of the other party, (b) has financial assets equal to or \ngreater than that of the assigning party, and (c) is bound by law or written \nagreements to all of the obligations of the assigning party under this \nAgreement. Any attempted assignment, sublicense or transfer in derogation \nhereof shall be null and void. Subject to the foregoing, this Agreement shall \nbe fully binding upon, inure to the benefit of and be enforceable by the \nparties hereto and their respective successors and assigns.\n\n     Section 14.5 AMENDMENT AND MODIFICATION OF AGREEMENT. No change, \namendment or modification of any provision of this Agreement or waiver of any \nof its terms shall be valid unless set forth in writing and signed by the \nparty to be bound thereby.\n\n     Section 14.6 CHOICE OF LAW AND VENUE. This Agreement shall be \ninterpreted, construed and enforced in all respects in accordance with the \nlaws of the State of Delaware.\n\n     Section 14.7 WAIVER OF COMPLIANCE OR ENFORCEMENT. The failure of any \nparty hereto to insist upon or enforce strict performance by the other party \nof any provision of this Agreement or to exercise any right under this \nAgreement shall not be construed as a waiver or relinquishment to any extent \nof such party's right to assert or rely upon any such provision or right in \nthat or any other instance; rather the same shall be and remain in full force \nand effect.\n\n     Section 14.8 NOTICES. Any notice, approval, request, authorization, \ndirection or other communication under this Agreement shall be given in \nwriting, shall reference this Agreement and shall be deemed to have been \ndelivered and given (a) when delivered personally; (b) three (3) business \ndays after having been sent by registered or certified U.S. mail, return \nreceipt requested, postage and charges prepaid, whether or not actually \nreceived; or (c) one (1) business day after deposit with a commercial \novernight courier, with written verification of receipt. All communications \nshall be sent to the addresses set forth below or to such other address as \nmay be designated by a party by giving written notice to the other party \npursuant to this Paragraph 14.8.\n\n         IF TO GEA:\n\n         General Electric Appliances\n         Appliance Park\n         Louisville, KY 40225\n         Attn.:  Vice-President and General Counsel\n\n         IF TO IMPROVENET:\n\n         ImproveNet, Inc.\n\n         --------------------\n\n     Section 14.9 ENTIRE AGREEMENT. This Agreement constitutes the entire \nagreement among the parties hereto and supersedes any and all prior \nagreements or understandings among the parties with respect to the subject \nmatter hereof. No party hereto shall be bound by, and each party hereto \nspecifically objects to, any term, condition or other provision or other \ncondition which is different from or in addition to the provisions of this \nAgreement (whether or not it would materially alter this Agreement) and which \nis proffered by any other party hereto in any correspondence or other \ndocument, unless the party to be bound thereby specifically agrees to such \nprovision in writing. The parties \n\n                                    23\n\n\n\n\nunderstand and agree that the main body of this Agreement, and all the terms \nand conditions contained herein, shall govern and take precedence over any \ninconsistent terms and conditions (including inconsistent choice of law or \nforum provisions) that are or may be contained in those certain ancillary \nagreements attached as Exhibits hereto, including by way of example not \nlimitation, Exhibit B (Founding Member Agreement) and Exhibit E (Services \nAgreement). The fact that said ancillary agreements may be executed \nsubsequent to this Agreement shall not alter the intent of this provision. \nNotwithstanding the foregoing, GEA shall in all instances be accorded terms \nand conditions in such ancillary agreements at least as favorable as accorded \nother Founding Members.\n\n     Section 14.10 COUNTERPARTS. This Agreement may be executed in one or \nmore counterparts, all of which shall be considered one and the same \nagreement, and shall become effective when one or more of the counterparts \nhave been signed by each party and delivered to the other parties, it being \nunderstood that all parties need not sign the same counterpart.\n\n                                   ARTICLE XV\n\nImproveNet agrees for a period of 60 days following the Effective Date of \nthis Agreement not to engage in active negotiations with other parties in \norder to allow GE Warranty Management Inc. the opportunity to negotiate a \nbusiness agreement with ImproveNet to offer warranty products and services \nfor Covered Items through the ImproveNet System. The specific terms and \nconditions of such an arrangement, if any, would be in the subject of a \nseparate agreement.\n\n         IN WITNESS WHEREOF, each party hereto has caused this Agreement to \nbe executed on its behalf as of the date first above written.\n\n                                 IMPROVENET, INC.\n\n\n                                 By: \/s\/ Ronald B. Cooper\n                                    -------------------------------\n\n                                 Name: Ronald B. Cooper\n                                      -----------------------------\n\n                                 Title: President and CEO\n                                       ----------------------------\n\n\n                                 GE Appliances, on behalf of\n\n                                 GENERAL ELECTRIC COMPANY\n\n\n                                 By: \/s\/ Smith W. Holland\n                                    -------------------------------\n\n                                 Name: Smith Holland\n                                      -----------------------------\n\n                                 Title: General Manager Business Development\n                                       -------------------------------------\n\n\n                                 GE CAPITAL EQUITY INVESTMENTS, INC.\n\n\n                                  By: \/s\/ Brian S. Graff\n                                     -------------------------------\n\n                                  Name: Brian S. Graff\n                                       -----------------------------\n\n                                  Title: Vice President\n                                        ----------------------------\n\n                                        24\n\n\n\n\n                                    EXHIBIT A:  STATEMENT OF WORK\n\nImproveNet, Inc. Risk Management Plan\n\n\n\n<caption>\n                                                                                        TIMING\n------------------------------------------------------------------------------------ -------------------------------------\n                                                                                  \n         A.       MANAGING CONSUMER RISK\n\n                  1. On-line Guidelines and Practices\n-    Clear (but user-friendly) policy statement: ImproveNet is providing public      Draft By closing (Implemented  \n     service advice only, not paid advice which consumer's are intended to rely      within 90 days)                \n     on in choosing a contractor.                                                    \n-    Consumers would be encouraged to consult a competent lawyer regarding           Draft By closing (Implemented  \n     contracts, permits, and other necessary job documentation and their             within 90 days)                \n     insurance agent regarding the contractor's and their own insurance              \n     coverage.\n-    ImproveNet would affirmatively disclaim consequential, incidental, and\n     punitive damages.\n-    ImproveNet would complete a legal survey to determine the exact form and        Draft By closing (Implemented  \n     enforceability of such a disclaimer in all states in which ImproveNet will      within 90 days)                \n     do business.                                                                    \n\n                                                                                        \n                                                                                     Post-closing (within 90 days)\n                  2. Consumer Waiver of Litigation in Favor of Arbitration\n-    In the event of any dispute with ImproveNet arising from or related to          \n     advice provided, consumers would affirmatively waive their rights to\n     judicial recourse (i.e., jury trial) in favor of mandatory arbitration. For     Post-closing (within 90 days)  \n     small claims (under $2,500), the BBB might be used; larger claims would be\n     referred to either JAMS (Judicial Arbitration and Mediation Service) or CPR\n     (Center for Public Resources). \n-    This would be done initially in as user-friendly a manner as possible with      \n     detailed terms and conditions provided later in the process.         \n\n                  3. Affirmative Consumer Acceptance of Disclaimer and               Post-closing (within 90 days)  \n                     Arbitration\n-    Consumers would have to \"click\" on-line their acceptances of both the\n     Post-closing (within 90 days) disclaimer and arbitration.\n-    Consumers would be sent a prepared set of terms and conditions via mail or\n     e-mail early in the process.                                                    Post-closing (within 90 days)  \n-    ImproveNet should complete a legal survey to confirm enforceability of this\n     approach.                                                                       Post-closing (within 90 days)  \n\n                  4. Third Party Warranty                                            Post-closing (within 90 days)  \n-    Upon job completion, ImproveNet would encourage consumers to evaluate third\n     Post-closing (within 90 days) party warranty coverage for work performed,\n     explaining the benefits of doing so.\n-    ImproveNet would make available to consumers the names of possible home         Post-closing (within 90 days)  \n     warranty providers\n\n------------------------------------------------------------------------------------ -------------------------------------\n\n\n                                         25\n\n\n\n\n\n<caption>\n------------------------------------------------------------------------------------ -------------------------------------\n                                                                                     Post-closing (within 90 days)  \n\n------------------------------------------------------------------------------------ -------------------------------------\n                                                                                  \n         B.       MANAGING CONTRACTOR RISK\n\n                  1. Intensify Screening Techniques. \n\n-    Develop alternatives to formal licensing data for key large states with no      Post-closing (rep &amp; warranty) \n     licensing requirements (e.g., NY, Illinois, Pa.). Options include\n     professional designations, trade or industry group certifications.\n-    In states with no licensing requirements, conduct a more thorough review of     Post-closing (rep &amp; warranty) \n     contractor insurance and referrals.\n-    Subscribe to a national \"watch\" service that provides an alert about            Post-closing (within 90 days)\n     contractors which get into legal, regulatory or financial trouble.\n                  2. Strengthen ImproveNet's Contractor Agreement                    \n-    Add a disclaimer for consequential, incidental and punitive damages.            Post-closing (within 90 days)\n-    Revise the reps and warranties under the \"Performance\" section to include       Draft By closing (Implemented\n     (i ) a \"best in class\" standard of care (ie \"best efforts consistent with       within 90 days)              \n     the highest prevailing industry standards), and (ii) a representation           \n     regarding the solvency and sufficiency of assets and insurance adequacy\n-    Add a mandatory mediation\/arbitration clause in lieu of litigation.\n                                                                                     Draft By closing (Implemented\n                                                                                     within 90 days)              \n\n------------------------------------------------------------------------------------ -------------------------------------\n\n         C.       NATIONAL CLAIMS MANAGEMENT\n\n                  1. To ensure uniformity of claims management practices,            Post-closing (\"best efforts\")\n                     ImproveNet would set up an initial program to manage\n                     contracts, monitor claims, and oversee dispute resolution.\n                     This would include appointing national counsel to supply\n                     local attorneys with a standard prepared package to support\n                     the ADR (Alternative Dispute Resolution) process.\n                  2. Third Party Insurance:\n-    ImproveNet would evaluate what levels of insurance are practicable and          Post-closing (\"good faith\n     sensible for its contractors in any given region of the country, and would      undertaking\")            \n     then monitor to ensure that coverage levels are maintained, and that            \n     insurance certificates are duly issued for ImproveNet.\n-    ImproveNet would work with insurance partner, possibly AllState, to develop     By closing\n     low-cost standardized contractor insurance program (including making            \n     ImproveNet as insured in all instances.                                         \n\n                  3. First Party Insurance: ImproveNet would, together with its\n                     equity investors, including GE, determine appropriate\n                     coverage levels for ImproveNet in view of potential risks.\n\n------------------------------------------------------------------------------------ -------------------------------------\n\n\n                                        26\n\n<\/caption><\/caption><\/description><\/sequence><\/type><\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7843],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9617],"class_list":["post-42150","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-improvenet-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42150","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42150"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42150"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42150"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42150"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}