EXHIBIT 10.35
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION (*Denotes Omission)
EXHIBIT 10.35 (REDACTED)
SERVICES AGREEMENT BETWEEN
*****, INC. AND IMPROVENET, INC.
DATED DECEMBER 16, 2002
This Services Agreement ("Agreement") is made and entered into as of December
5th , 2002 (the "Effective Date") by and between *****, Inc. having its
principal place of business at ** ******** Drive, Suite ****, **********, **
****** ("*****"), and ImproveNet, Inc. having its principal place of business at
0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 ("IMPV"). ***** and IMPV are
sometimes referred to collectively as the "Parties" and individually as a
"Party".
This Agreement is made in contemplation of and expressly conditioned upon the
closing of the Agreement and Plan of Merger (the "Merger") dated July 30, 2002
by and between IMPV, eTechLogix, Inc. and IMPV Acquisition, Inc., as amended,
and the completion of the Buyback Closing, as described therein, ("Buyback
Closing"). The closing of the Merger and the completion of the Buyback Closing
are express conditions precedent to the duties of the parties to perform their
obligations under this Agreement.
BACKGROUND
*****
*****, Inc., established in early 2000, provides operational, strategic,
management and marketing support to companies involved within the Home
Improvement industry.
IMPROVENET
ImproveNet, Inc., a national home improvement service provider since 1996,
provides residential remodeling solutions for homeowners, professionals and
suppliers. IMPV's "Find-A-Contractor" service matches homeowners' remodeling
needs with local, available pre-screened contractors. IMPV's website provides
more than 60,000 pages of remodeling advice, design ideas, product information,
and budgeting tools.
In consideration of the premises, the mutual covenants contained herein, and
other good and valuable consideration, the parties hereby agree as follows:
1. RIGHTS AND OBLIGATIONS OF THE PARTIES
1.1 ***** RIGHTS AND OBLIGATIONS
1.1.1 CONTRACTOR MATCHING OPERATION. ***** shall use commercially
reasonable good faith efforts to operate and manage the
Contractor Matching Operation as set forth on Exhibit A. *****
will properly staff and oversee all Exclusive Personnel as
described in Section 1.1.11 and identified on Exhibit B. The
performance schedule set forth on Exhibit A provides targeted
monthly revenue projections for the Contractor Matching
Operation that are for guidance purposes only and are not
binding on the Parties.
1.1.2 USE OF CORE OPERATIONAL ASSETS. For the duration of this
contract or until the right of termination as set forth in
section 1.2.3 or 1.2.6 is exercised. IMPV will give *****
"Exclusive Rights" (as described in Section 1.2.1) to utilize
the Core Operational Assets (as defined in Section 1.2.1) in
order to successfully meet the goals, assumptions and
operational responsibilities around the Contractor Matching
Operation as set forth on Exhibit A. Notwithstanding the
foregoing, in the event that the monthly revenue generated by
the Contractor Matching Operation fails to total $***,000 in
any single calendar month for reasons within the control or
cause of *****, the Exclusive Rights granted to ***** under
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this Agreement may be terminated by IMPV in its sole
discretion.
1.1.3 OPERATIONAL AND MANAGEMENT CONTROL. ***** reserves the right
to retain all decision making power associated with managing
the day-to-day operations as they relate to the Contractor
Matching Operation as set forth on Exhibit A .
1.1.4 ***** OPERATIONAL EXPENSES. ***** shall absorb certain costs
associated with running the Contractor Matching Operation
incurred in Canada, including but not limited to outbound
telephone calls, wages and salaries paid to the Exclusive
Personnel, rent for office space for the Exclusive Personnel,
and other General and Administrative expenses. IMPV shall be
responsible for all other operational expenses (as described
in Section 1.2.4).
1.1.5 WEEKLY PAYMENT STRUCTURE. IMPV shall pay to ***** in U.S.
dollars an amount equal to **% (****** ***** percent) of
Collected Revenue (as defined below) per week to be calculated
each Monday for the preceding period from Monday to Sunday and
such amount shall be wired to an account designated by *****
no later than the following Wednesday. The cost associated
with wiring the funds shall be deducted from the amount due to
*****. The term "Collected Revenue" shall mean the total
amount of funds actually received by IMPV from contractors
directly from and as a result of the Contractor Matching
Operation performed by ***** during a weekly period from
Monday to Sunday.
1.1.6 MONTHLY PAYMENT STRUCTURE. At the end of each month, IMPV
shall reconcile the aggregated payments paid to ***** under
Section 1.1.5 within that particular month. In the event the
combined total amount of Collected Revenue for any single
calendar month is greater than $***,000 and does not exceed
$***,000, IMPV shall pay an additional *.*% of such combined
total amount to *****. In the event the combined total amount
of Collected Revenue for any single calendar month exceeds
$***,000, IMPV shall pay an additional *% of such total amount
to *****.
1.1.7 OTHER SERVICES AND INITIATIVES. ***** shall provide
operational support, as mutually agreed upon, with regard to
other strategic initiatives identified and entered into by
IMPV. In return, ***** shall use its best efforts to
immediately notify IMPV of all business opportunities
identified by ***** through the operation of ImproveNet's
Contractor Matching Operation, which may interest IMPV as they
related to IMPV's Contractor Matching Operation. The parties
shall use best faith efforts to negotiate mutually beneficial
revenue opportunities around such initiatives.
1.1.8 PROPRIETARY MATERIAL. All Proprietary Material shall be owned
by and remain the exclusive property of IMPV. Proprietary
Material shall include (i) all data provided to and developed
by ***** for the purpose of executing the Contractor Matching
Operation, and (ii) IMPV's contractor database, backend
systems and homeowner job leads. ***** shall have no claim,
ownership or right to such Proprietary Material, and *****
shall maintain confidential all Proprietary Material to be
utilized only as necessary for the execution of the Contractor
Matching Operation. Upon termination of this Agreement, *****
shall return to IMPV all Proprietary Material including all
copies thereof. (Return or provide proof of destruction by
affidavit.)
1.1.9 ***** TERMINATION. ***** may terminate this Agreement in its
sole discretion for any reason by providing IMPV a minimum of
180 days written notice. During the 180-day period following
delivery of such written notice, (i) IMPV will continue to pay
***** for performance of the Contractor Matching Operation as
set forth in Section 1.1.7 and 1.1.8, (ii) ***** shall
continue to operate and manage the Contractor Matching
Operationas set forth on Exhibit A and Exhibit B), and (iii)
***** shall initiate the Transitional Plan, if applicable, as
set forth on Exhibits A, B and C respectively.
1.1.10 TRANSITIONING THE CONTRACTOR MATCHING OPERATION. ***** shall
use its best efforts to effectively transition the Contractor
Matching Operation in the event of a termination under Section
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1.1.9 of this Agreement, or as described in the Transitional
Plan as set forth in Exhibit C or upon expiration of the Term
of this Agreement.
1.1.11 EXCLUSIVE PERSONNEL. A minimum of ******** (**) Area Trade
Representatives and ***** (*) Pro Service Support Personnel
shall be employed by ***** during the Term of this Agreement
to exclusively carry out the Contractor Matching Operational
initiatives as set forth on Exhibit A (the "Exclusive
Personnel"). Such Exclusive Personnel are prohibited from
performing services for any other ***** initiatives, clients
or engagements unless mutually agreed upon in writing by the
Parties. The identities of the Area Trade Representatives and
Pro Service Support Personnel are set forth on Exhibit B. In
the event a vacancy in those positions is created by the
departure of any such persons or if fulfillment of the
obligations of the Contractor Matching Operations requires
additional personnel, ***** shall provide qualified personnel
for such positions so that the Exclusive Personnel meet the
requirements of this Section 1.1.11. All Exclusive Personnel
shall be required to execute the IMPV Nondisclosure Agreement
("NDA") in form as set forth on Exhibit D.
1.1.12 REPORTING. ***** shall provide regular reporting to IMPV
regarding the Contractor Matching Operation, which reports
shall include but not be limited to the (i) status and
activity regarding the Exclusive Personnel, (ii) telephones,
fax and email usage, sales activity, associated expenses,
disputes involving IMPV contractors and (iii) information
regarding other activities involving the Contractor Matching
Operation as mutually agreed upon by the Parties.
1.1.13 EXCLUSIVITY. During the term hereof, ***** will be prohibited
from entering into agreements with any other party involved in
Contractor Matching Operation similar to those of IMPV unless
written consent has been provided by IMPV. Notwithstanding the
foregoing, IMPV hereby grants its consent to the engagement of
***** under the existing agreements with **************,
****** **** ********, ******* ******, and *****.
1.1.14 IMPV PERSONNEL. With regard to IMPV personnel as set forth in
section 1.2.2 hereafter, ***** shall provide work stations for
the staff members and access to the ***** office during normal
business hours. ***** personnel shall be available upon
reasonable notice to communicate with the IMPV staff members
regarding matters related to their specific functions. *****
shall have no other obligations regarding the staff members.
Upon written agreement, the parties may increase the scope of
this Section 1.1.14.
1.1.15 MEETINGS AND STRATEGY. ***** shall meet with IMPV once per
quarter, telephonically or in person at the IMPV principal
place of business, to discuss current issues, strategy, and
potential enhancements to the Contractor Matching Operation.
1.2 IMPV RIGHTS AND OBLIGATIONS
1.2.1 CORE OPERATIONAL ASSET AND EXCLUSIVE RIGHTS. IMPV hereby
grants to ***** exclusive rights to use the Core Operational
Assets for the express purpose of carrying out the Contractor
Matching Operation contemplated by the operational flow chart
set forth on Exhibit A ("Exclusive Right") during the term of
this Agreement. IMPV shall maintain ownership of The Core
Operational Assets and the Core Operational Assets shall be
deemed IMPV's Proprietary Material as set forth in Section
1.1.10. The Core Operational Assets shall include IMPV's (i)
database of contractors (ii) home improvement leads and (iii)
the backend system currently maintained and administered by
IMPV.
1.2.2 IMPV PERSONNEL. IMPV shall have the right to have two members
of its staff officed in *****'s corporate offices in Canada.
At least one of the staff members of IMPV shall be an engineer
whose primary function will be to maintain the backend system
of IMPV. The second staff member may be designated for
business development. The obligations of ***** regarding the
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IMPV staff members are set forth in Section 1.1.14. Upon
written agreement, the parties may increase the scope of this
Section 1.2.2.
1.2.3 AUDIT RIGHTS. IMPV may perform, from time to time, audits of
*****'s records related in any way to the Contractor Matching
Operation, provided that any audit will be conducted during
*****'s normal business hours. The cost of any such audit
shall be the sole responsibility of IMPV unless it is
determined that the reporting provided by ***** to IMPV as set
forth in Section 1.1.12 is materially different from the
information identified in an audit.
1.2.4 IMPV OPERATIONAL EXPENSES. IMPV shall pay all expenses
associated with running the Contractor Matching Operation,
other than the expenses paid by ***** as set forth in Section
1.1.4, including but not limited to (i) technology and
engineering associated with IMPV's backend system, (ii) all
inbound telephone, fax and email communications to IMPV
contractors and homeowners, (iii) all marketing expenses
including lead generation, (iv) accounting and (v) payments to
***** as set forth in Sections 1.15 and 1.16. ***** shall be
responsible for all other related operational expenses as set
forth in Section 1.1.4.
1.2.5 IMPV TERMINATION. IMPV may terminate this Agreement in its
sole discretion for any reason by providing ***** a minimum of
90 days written notice. During the 90-day period following the
delivery of such written notice, (i) IMPV will continue to pay
***** as set forth in Sections 1.1.7 and 1.1.8, (ii) *****
shall continue to operate the Contractor Matching Operation,
manage and retain Exclusive Personnel and (iii) initiate the
Transitional Plan, if applicable, as set forth in Exhibits A,
B and C respectively.
1.2.6 MEETING & STRATEGY. IMPV shall meet with ***** at least once
per quarter, telephonically or in person at IMPV's principal
place of business, to discuss operations and strategy for the
following quarter .
2. EFFECTIVE DATE
2.1 EFFECTIVE DATE: The Effective Date of this Agreement shall be the
first day following the date of the completion of the Buyback Closing
as set forth in the Agreement and Plan of Merger by and between IMPV,
eTechLogix, Inc., and IMPV Acquisition, Inc. IMPV dated July 30, 2002,
as amended. The closing of the Merger and the completion of the
Buyback Closing are express conditions precedent to the Effective Date
and to the duties of the parties to perform their obligations under
this Agreement.
3. REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants as follows: (i) it has full
corporate power and authority to enter into this Agreement and to carry out
the provisions hereof, (ii) it is duly authorized to execute and deliver
this Agreement and to perform its obligations hereunder, (iii) this
Agreement is a legal and valid obligation binding upon such Party and
enforceable according to its terms, (iv) the execution, delivery and
performance of this Agreement by a Party does not conflict with any
agreement to which such Party is a party or by which it may be bound by
this Agreement.
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4. LIMITATION OF LIABILITY
a. The representations, warranties, agreements, and indemnities of *****
and IMPV set forth in this Agreement shall survive the termination of
this Agreement except as expressly provided in Section 4(b).
b. No party shall have any liability under this Agreement to indemnify
(collectively the "Business Indemnities"), in each case unless the
indemnifying party receives notice in writing from the other of such
claim under said indemnity on or before the one-year anniversary
following the termination of this Agreement. The foregoing limitations
shall not apply to any breaches of or obligations to comply with any
of the other provisions of this Agreement, regardless of whether such
breach or obligation also constitutes a breach or obligation under any
of the provisions specifically listed in this Section 4(b).
c. For purposes of this Section 4(c), a party making a claim for
indemnity under Section 5 is hereinafter referred to as an
"Indemnified Party" and the party against whom such claim is asserted
is hereinafter referred to as the "Indemnifying Party." All claims by
any Indemnified Party under Section 5 hereof shall be asserted and
resolved in accordance with the following provisions. If any claim or
demand for which an Indemnifying Party would be liable to an
Indemnified Party is asserted against or sought to be collected from
such Indemnified Party by such third party, said Indemnified Party
shall with reasonable promptness notify in writing the Indemnifying
Party of such claim or demand stating with reasonable specificity the
circumstances of the Indemnified Party's claim for indemnification;
PROVIDED, HOWEVER, that any failure to give such notice will not waive
any rights of the Indemnified Party except to the extent the rights of
the Indemnifying Party are actually prejudiced or to the extent that
any applicable period set forth in this Section 4(c) has expired
without such notice being given. After receipt by the Indemnifying
Party of such notice, then upon reasonable notice from the
Indemnifying Party to the Indemnified Party, or upon the request of
the Indemnified Party, the Indemnifying Party shall defend, manage and
conduct any proceedings, negotiations or communications involving any
claimant whose claim is the subject of the Indemnified Party's notice
to the Indemnifying Party as set forth above, and shall take all
actions necessary, including but not limited to the posting of such
bond or other security as may be required by any Governmental
Authority, so as to enable the claim to be defended against or
resolved without expense or other action by the Indemnified Party.
Upon request of the Indemnifying Party, the Indemnified Party shall,
to the extent it may legally do so and to the extent that it is
compensated in advance by the Indemnifying Party for any costs and
expenses thereby incurred,
i. take such action as the Indemnifying Party may reasonably
request in connection with such action,
ii. allow the Indemnifying Party to dispute such action in the
name of the Indemnified Party and to conduct a defense to
such action on behalf of the Indemnified Party, and
iii. render to the Indemnifying Party all such assistance as the
Indemnifying Party may reasonably request in connection with
such dispute and defense.
5. INDEMNIFICATION
a. INDEMNIFICATION BY IMPV. IMPV shall indemnify and hold harmless *****,
and its successors, officers, directors and employees harmless from
and against any and all Losses (as defined below), arising out of,
resulting from or in any way related to a breach of this Agreement by
IMPV.
b. INDEMNIFICATION BY *****. ***** shall indemnify and hold harmless
IMPV, and its successors, officers, directors and employees harmless
from and against any and all Losses (as defined below), arising out
of, resulting from or in any way related to a breach of this Agreement
by ***** .
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c. LOSSES. "Losses" shall mean all losses, costs (including without
limitation attorney's fees), claims, liabilities, damages, lawsuits,
demands and expenses (whether or not arising out of third party
claims) including without limitation, interest, penalties, costs of
litigation and all amounts paid in the investigation, defense or
settlement of any of the foregoing.
d. PROCEDURE. In the event of an indemnified claim hereunder, the
indemnified Party shall give the indemnifying Party prompt notice in
writing of the claim and the indemnifying Party shall have sole
control over its defense or settlement. The indemnified Party shall
have the right at its own cost and expense to employ separate counsel
and participate in the defense of any claim or action.
6. CONFIDENTIALITY
a. OBLIGATIONS. Each Party acknowledges that the other Party will receive
or have access to Confidential Information of such Party. Each Party
will use at least the same degree of care to prevent disclosing to
third parties the Confidential Information of the other Party as it
employs to avoid unauthorized disclosure, publication or dissemination
of its own information of a similar nature, but in no event less than
a reasonable standard of care. A Party may disclose Confidential
Information of the other Party to third parties performing services
hereunder where (i) the use of such Confidential Information by such
third party is authorized under this Agreement, (ii) such disclosure
is reasonably necessary to or otherwise naturally occurs in that
entity's scope of responsibility, and (iii) the disclosure is in
accordance with the terms and conditions of this Agreement. Neither
Party will (1) make any use or copies of the Confidential Information
of the other Party except as necessary to perform its obligations
under this Agreement, (2) acquire any right in or assert any lien
against the Confidential Information of the other Party, or (3) refuse
for any reason (including a default or material breach of this
Agreement by the other Party) to promptly provide the other Party's
Confidential Information (including all copies thereof) to it if
requested in writing to do so. Upon the expiration or termination for
any reason of this Agreement and the concomitant completion of a
Party's obligations under this Agreement, each Party shall (except as
otherwise provided in this Agreement), return or destroy, as the other
Party may direct, all documentation in any medium that contains,
refers to, or relates to the other Party's Confidential Information,
except for archival backup of the recipient's information. In
addition, the Parties shall take reasonable steps to ensure that their
respective employees comply with these confidentiality provisions.
b. NON-APPLICATION. The obligations of this Article 6 will not apply to
any particular information which the receiving Party can demonstrate:
(i) was, at the time of disclosure to it, in the public domain; (ii)
after disclosure to it, is published or otherwise becomes part of the
public domain through no fault of the receiving Party; (iii) was
rightfully in the possession of the receiving Party at the time of
disclosure to it; (iv) is received from a third Party who had a lawful
right to disclose such information to it; or (v) was independently
developed by the receiving Party without reference to Confidential
Information of the furnishing Party. In addition, a Party shall not be
considered to have breached its obligations under this section for
disclosing Confidential Information of the other Party as required to
satisfy any legal demand of a government, judicial or administrative
body; PROVIDED, HOWEVER, that, promptly upon receiving any such
request and to the extent that it may legally do so, such Party
advises the other Party so that the other Party may take appropriate
actions in response to the demand.
c. NOTICE. In the event of any disclosure or loss of, or inability to
account for, any Confidential Information of the furnishing Party, the
receiving Party will notify the furnishing party promptly upon the
occurrence of any such event.
d. NO RIGHTS OR LICENSE. Nothing contained in this Agreement shall be
construed as obligating a Party to disclose its Confidential
Information to the other Party, or as granting to or conferring on a
Party, expressly or impliedly, any rights or license to the
Confidential Information of the other Party.
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e. USE OF SERVICES OR PRODUCTS. Nothing in this Agreement shall be
construed to prevent either Party from obtaining, developing or using
services or products itself or provided by a third party as permitted
by this Agreement which are similar or competitive with the services
and/or products furnished under this Agreement or from using ideas,
concepts, expressions, skills or experience possessed by either Party
prior to, or developed or learned by either Party in the performance
of this Agreement, except to the extent inconsistent with the terms of
this Agreement.
7. TERM AND TERMINATION
a. TERM. The term of the Agreement (the "Term") shall commence on the
Effective Date (as set forth in Section 2.1) and shall terminate on
the date that is 2 (two) years following the Effective Date unless
terminated sooner by either Party under the provisions of Sections
1.2.5 and 1.1.9 or by mutual written consent of the Parties.
b. TERMINATION FOR CAUSE. If either party breaches a material provision
of this Agreement, the other Party shall have the right to terminate
this Agreement in the event the breaching party fails to remedy such
breach within 30 (thirty) calendar days following receipt of written
notice from the non-breaching Party describing, with particularity,
such breach.
c. SURVIVAL. Sections 7, 8, 9, and 10 shall survive any expiration or
termination of this Agreement.
8. DISPUTE RESOLUTION
a. DISPUTE RESOLUTION PROCEDURE. The parties agree to use the alternate
dispute resolution procedure set forth herein as the sole means of
resolving all claims between the parties arising from or under this
Agreement (a "PARTY CLAIM"), except where equitable remedies are the
only means of effectively protecting the injured party. Consequently,
the parties will attempt in good faith to resolve any dispute arising
out of, or relating to the Agreement promptly and initially by senior
leadership of the parties in the following manner: In the event of a
Party Claim, a senior representative for each party shall meet within
seven (7) days of a written notification of such Party Claim at a
location to be selected by the parties to attempt a resolution. If no
resolution of the Party Claim occurs at this meeting, the two
representatives shall, within seven (7) days of such meeting, refer
the matter to the next highest level of management for each party,
which individuals shall have the authority to settle the Party Claim.
The referring representatives shall promptly prepare and exchange
memoranda stating the issues in the Party Claim and each other's
position on the merits, summarizing the negotiations which have taken
place and attaching relevant documents. If the parties are unable to
resolve the Party Claim within the timeframe set forth above, and
either or both are unwilling to continue negotiations, the Party Claim
shall be promptly referred to and settled by mediation in accordance
with the Commercial Mediation Rules of the American Arbitration
Association ("AAA"). In the event mediation is unsuccessful, and
either or both parties are unwilling to continue negotiations, the
Party Claim shall be settled by binding, non-appealable arbitration
administered in Phoenix, Arizona in accordance with the American
Arbitration Association Rules, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction
thereof. In the event of a Party Claim, the prevailing party shall be
entitled to recovery of its reasonable attorneys' fees and costs.
Notwithstanding anything to the contrary contained in this section
11.3, injunctive relief may be sought from and enforced by any court
of competent jurisdiction.
9. GENERAL PROVISIONS
a. BINDING NATURE AND ASSIGNMENT. This Agreement shall be binding on each
of the Parties and its respective successors and permitted assigns.
Except as provided below, neither Party may assign this Agreement or
any rights or obligations created herewith in whole or in part,
directly or indirectly, to any third party without the prior written
consent of the other, and any attempt to do so will be void and of no
effect. Either Party may assign its rights and obligations under this
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Agreement with the prior written approval of the other Party to (i) a
third party that acquires all or substantially all of the assets or
stock of the assigning Party (any transfer of a controlling interest
in a Party being deemed to be an assignment of this Agreement by such
Party for purposes of this Section 12.1), (ii) any subsidiary or
Affiliate of the assigning Party, or (iii) a successor in a merger or
acquisition of the assigning Party; PROVIDED, HOWEVER, that in no
event shall such assignment relieve the assigning Party of any of its
obligations under this Agreement. For the purposes of this Section
10.1, any assignment by operation of law or under an order of any
court shall be deemed an assignment for which prior written consent is
required, and any assignment made without such consent shall be void
and of no effect as between the Parties.
b. ENTIRE AGREEMENT. AMENDMENT. This Agreement constitutes the entire
agreement between the Parties, and supersedes all other prior or
contemporaneous communications between the Parties (whether written or
oral), with respect to the subject matter contained in this Agreement.
No modification or amendment of this Agreement shall be effective
unless made in a writing executed by both Parties.
c. NOTICES. All notices required or permitted under this Agreement (other
than routine operational communications) shall be in writing and shall
be delivered by one of the following means with receipt deemed to be
as provided therein: (i) upon receipt if delivered by hand; (ii) one
(1) day after being sent by an express courier with a reliable system
for tracking delivery; (iii) three (3) days after being sent by
certified or registered first class mail, postage prepaid and return
receipt requested; or (iv) upon confirmed facsimile transmission
provided that a copy is also sent by one of the foregoing means. All
notices will be addressed as follows:
In the case of *****:
*****, Inc.
** ****** Drive, Suite ***, *********, ** ******
Attention: ***** *****
In the case of IMPV:
0000 Xxxx XxxxXxxx Xxxxx xxxxx 000,
Xxxxxxxxxx, XX 00000
Attention: Homayoon Farsi
Either Party may change its address from time to time upon written
notice to the other Party specifying the effective date of the new
address.
d. HEADINGS. The section headings contained in this Agreement are for
reference and convenience only and will not affect the meaning or
interpretation of this Agreement.
e. RELATIONSHIP OF THE PARTIES. Each Party, in furnishing services to the
other Party hereunder, is acting as an independent contractor and has
the sole right and obligation to supervise, manage, contract, direct,
procure, perform or cause to be performed, all services to be
performed by such Party under this Agreement. Neither ***** or IMPV is
an agent of the other, and this Agreement does not establish any legal
partnership, joint venture, or fiduciary relationship between the two
Parties. Neither Party has the authority to represent the other Party
as to any matters or to bind the other Party except as expressly set
forth in this Agreement.
f. SEVERABILITY. The provisions of this Agreement are independent of and
severable from each other, and no provision will be affected or
rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in
whole or in part. Further, if a court of competent jurisdiction
determines that any provision of this Agreement is invalid or
unenforceable as written, the court may interpret, construe, rewrite
or revise such provision, to the fullest extent allowed by law, so as
to make it valid and enforceable, consistent with the intent of the
parties hereto.
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g. WAIVER OF DEFAULT; CUMULATIVE REMEDIES.
i. A delay or omission by either Party hereto to exercise any right
or power under this Agreement shall not be construed to be a
waiver thereof. A waiver by either Party under this Agreement
will not be effective unless it is in writing and signed by the
Party granting the waiver. A waiver by a Party of a right under,
or breach of, this Agreement will not be construed to operate as
a waiver of any other or successive rights under, or breaches of,
this Agreement.
ii. Except as otherwise expressly provided in this Agreement, all
remedies provided for in this Agreement shall be cumulative and
in addition to and not in lieu of any other remedies available to
either Party at law, in equity or otherwise. Notwithstanding the
foregoing, no payment default by one Party may be offset by a
payment due to such Party by the other Party.
h. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely
between, and may be enforced only by, IMPV and *****. This Agreement
shall not be deemed to create any rights in any third parties,
including any suppliers and customers of a Party, or to create any
obligations of a Party to any third parties.
i. FORCE MAJEURE. No Party shall be liable for any default or delay in
the performance of its obligations under this Agreement due to an act
of God or other event to the extent that: (i) the non-performing Party
is without fault in causing such default or delay; (ii) such default
or delay could not have been prevented by reasonable precautions; and
(iii) such default or delay cannot reasonably be circumvented by the
non-performing Party through the use of alternate sources, work around
plans or other means.
j. CHOICE OF LAW. This Agreement, and the rights and duties of the
Parties arising from or relating to this Agreement or its subject
matter, shall be construed in accordance with the laws of the State of
Arizona
k. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which
together shall constitute one and the same instrument.
l. CONSTRUCTION. This Agreement represents the joint drafting efforts of
the Parties, and to the extent it was felt necessary, reviewed by the
respective legal counsel for the Parties hereto and the rule of
construction to the effect that any ambiguities are to be resolved
against the drafting party will not be applied to the interpretation
of the Agreement. No inference in favor of, or against, any party will
be drawn from the fact that one party has drafted any portion hereof.
[SIGNATURES ON FOLLOWING PAGE]
9
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the dates indicated below.
ImproveNet, Inc. *****, Inc.
------------------------------------ ----------------------------------------
By (sign) By (sign)
------------------------------------ ----------------------------------------
Name (Print) Name (Print)
------------------------------------ ----------------------------------------
Title Title
------------------------------------ ----------------------------------------
Date Date
10
EXHIBIT A
"CONTRACTOR MATCHING OPERATION"
APPENDIX A
***** OPERATIONAL FLOW CHART
[CONFIDENTIAL TREATMENT REQUESTED FOR OPERATIONAL FLOW CHART]
11
OPERATIONAL COMPONENTS
OVERALL OBJECTIVES: Build and execute strategic initiatives geared towards; (1)
increasing contractor satisfaction, (2) increasing match
rate, (3) increasing win rate, (4) increasing depth of
match, (5) contractor recruiting and screening (6)
decreasing credit requests, (7) building greater efficiency
into all general support functions and (8) decreasing the
cash conversion cycle through enhanced collections
OVERVIEW OF OPERATIONAL COMPONENTS & ACTION ITEMS:
[CONFIDENTIAL TREATMENT REQUESTED FOR OVERVIEW OF OPERATIONAL
COMPONENTS & ACTION ITEMS]
12
REVENUE EXPECTIONS
Contractor Matching Operation
Transactional Model - Revenue Expectations
September 2002 - December 2003
[CONFIDENTIAL TREATMENT REQUESTED FOR REVENUE EXPECTATIONS]
13
EXHIBIT B
"EXCLUSIVE PERSONNEL"
AREA TRADE REPRESENTATIVES - SALES AND COLLECTIONS
********* *********
PRO-SERVICES
********* *********
14
EXHIBIT C
"TRANSITIONAL PLAN"
OBJECTIVES: To transition the fulfillment of the Contractor Matching
Operation from ***** to IMPV, ***** shall implement and carryout
the activities and steps of the Transition Plan set forth herein
so that upon completion of the Transition Plan, IMPV has
sufficient knowledge, capabilities and training to perform the
Contractor Matching Operation without further assistance from
*****. ***** will train IMPV Reps and Customer Support personnel
how to (1) covert job leads into a quality product by conducting
verbal confirmations, (2) build relationships with contractors
and increasing contractor satisfaction, (3) sell leads through
automation and manually, (4) uncover wins from both the
contractor and the homeowner, (5) increase the likelihood of
optimized the sales opportunity through attaining depth of match,
(6) recruit new contractors, (7) issues credits and decreasing
the rate at which credits are being issued, (8) handle all
support functions and build greater efficiency into all general
support functions, and (9) collect revenue and decreasing the
cash conversion cycle through enhanced collections. ***** will
provide its own personnel and staff necessary for the execution
and implementation of all activities and steps required by the
Transition Plan. The scope of the Transition Plan will include
but not be limited to the following:
DETAIL AROUND INITIATIVES TO BE TRANSITIONED:
1. CONVERTING JOB LEADS INTO A QUALITY PRODUCT (VERBALLY CONFIRMING
LEADS)
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2. BUILDING RELATIONSHIPS WITH CONTRACTORS, INCREASING CONTRACTOR
SATISFACTION AND SHAPING CRITICAL BEHAVIORS
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3. SELLING LEADS THROUGH AUTOMATION AND MANUALLY AND DEPTH OF MATCH
**********************************************************************
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15
4. UNCOVER WINS FROM BOTH THE CONTRACTOR AND THE HOMEOWNER
**********************************************************************
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5. UNCOVER WINS FROM BOTH THE CONTRACTOR AND THE HOMEOWNER
**********************************************************************
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**********************************************************************
6. RECRUIT NEW CONTRACTORS
**********************************************************************
**********************************************************************
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7. ISSUING CREDITS
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8. OPERATIONAL SUPPORT
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16
EXHIBIT D
"IMPV NDA" IMPV
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (THIS "AGREEMENT") IS MADE
AND ENTERED INTO AS OF THE _____ DAY OF ______________, 2002 BY AND
BETWEEN IMPROVENET, INC. ("IMPV") AND ___________________________
("DISCLOSEE").
RECITALS:
A. Disclosee desires to receive and/or have access to certain Confidential
Information (as defined below) of IMPV for the sole use and benefit of Disclosee
and no other person, and IMPV has agreed to provide such Confidential
Information to Disclosee, subject to the terms and conditions set forth herein.
B. Disclosee has entered into this Agreement in order to induce IMPV to
provide Confidential Information and Disclosee acknowledges that receipt of and
access to the Confidential Information constitutes valuable consideration to
Disclosee.
C. IMPV shall provide Disclosee with the Confidential Information and
Disclosee shall keep (and shall cause to be kept) such Confidential Information
confidential and shall not use or disclose such Confidential Information except
in accordance with this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION" shall mean any and
all information (whether transmitted orally or in writing, electronic form or
any other media) respecting IMPV which is or has been provided to Disclosee in
furtherance of this Agreement, including, without limitation, any information
relating to (i) the products, inventories, discoveries, patents, formulae, trade
secrets, computer software or other technical information of ETECH, (ii) the
marketing methods, business processes, names of vendors, names of customers,
costs of materials, prices of products or services, lists or records, profits
and losses or any other financial information of ETECH, (iii) names and
compensation of employees or any other business information of ETECH, or (iv)
any other information or data concerning the products, technology, operations,
personnel, finances or business of ETECH (the "PROPRIETARY MATERIAL"). In
addition, Confidential Information shall mean any and all information related to
the present or future plans, prospective strategic alliances or mergers or
acquisitions that IMPV may propose, discuss or negotiate with any other entity
or party including the Proprietary Material of any other entity or party.
Confidential Information shall not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by
Disclosee, (ii) was in Disclosee's possession prior to disclosure by IMPV as
shown by written records of Disclosee dated prior to the date of this Agreement,
or (iii) becomes available to Disclosee from a source other than IMPV or its
officers, directors, employees or agents, PROVIDED that such source is not under
an obligation of confidence with respect to such information.
2. CONFIDENTIALITY. Disclosee acknowledges and agrees that the Confidential
Information is being provided for Disclosee's USE and information only and shall
be made available only to Disclosee. Disclosee shall maintain in the strictest
confidence and will not disclose to any third party, use or claim an interest
in, any portion or at any time, the Confidential Information without the express
prior written consent of IMPV, which consent may be granted or withheld in
IMPV's sole discretion. Disclosee shall (i) not disclose to any person, at any
17
time, that the Confidential Information has been made available to Disclosee
until such fact becomes public information, (ii) not make copies of any
Confidential Information except as authorized in writing by IMPV, (iii) upon
IMPV's written request, promptly return to IMPV all Confidential Information
provided hereunder, including all copies thereof and (iv) upon IMPV's written
request, destroy all memoranda, documents, notes or other materials, including
electronic copies thereof, prepared by Disclosee which make reference to,
summarize or describe in any way any portion of the Confidential Information.
3. INSIDE INFORMATION. Disclosee acknowledges that (i) the Confidential
Information received hereunder may involve entities or parties whose securities
are publicly traded, (ii) the Confidential Information received hereunder
constitutes "MATERIAL NONPUBLIC INFORMATION" and (iii) by virtue of receiving
such information from IMPV, Disclosee will be deemed to be an "INSIDER" for
purposes of the Securities Exchange Act of 1934, as amended, and all rules and
regulations promulgated thereunder. Accordingly, neither Disclosee, nor any of
its officers, directors or employees who have access to Confidential
Information, and the immediate family members of such individuals, shall
purchase or sell or directly or indirectly recommend the purchase or sale
(including tipping), on the basis of the Confidential Information received
hereunder, of any securities issued by any such entities or parties for so long
as this Agreement is in effect.
4. INDEMNIFICATION. Disclosee shall indemnify and hold IMPV harmless from
and against any loss, damage, liability or expense that may result from any
third party actions or claims against IMPV arising out of or relating to a
breach of this Agreement and will reimburse IMPV for all expenses (including
attorneys' fees and costs of investigation) as incurred by IMPV in connection
with any such action or claim.
5. COURT ORDER. In the event Disclosee is requested or required by
interrogatories, requests for information or documents, subpoena, summons, civil
investigator demand or similar process (collectively, a "DEMAND") to disclose
any Confidential Information, Disclosee shall promptly notify IMPV and tender to
it defense of such Demand. Disclosee shall cooperate with IMPV (at IMPV's
expense) in seeking an appropriate protective order prior to complying with any
such Demand. Unless the Demand shall have been timely limited, quashed or
extended, Disclosee shall thereafter be entitled to comply with such subpoena or
other process to the minimum extent required by law.
6. NO WARRANTY. IMPV makes no representation or warranty as to the accuracy
or completeness of the Confidential Information being provided under this
Agreement.
7. SECURITY. Disclosee shall use its best efforts and implement appropriate
security measures to safeguard and maintain the confidentiality of the
Confidential Information. Access to Confidential Information by Disclosee's
personnel shall be granted on a demonstrated need-to-know basis.
8. INJUNCTIVE RELIEF COSTS AND EXPENSES. Disclosee acknowledges that a
breach of this Agreement would cause IMPV to suffer irreparable harm for which
monetary damages would be inadequate and impossible to ascertain. Accordingly,
Disclosee agrees that, in addition to all other rights and remedies available at
law and equity, IMPV shall be entitled to seek and obtain injunctive relief from
any court of competent jurisdiction to prohibit the continuance or recurrence of
any breach, or threatened breach, of this Agreement, Disclosee agrees that IMPV
may recover all costs or expenses, including attorneys' fees, from Disclosee
upon the successful enforcement of any rights of IMPV with respect to breach of
18
this Agreement, whether such enforcement relates to monetary damages, injunctive
relief or any other remedy permitted by law.
9. SEVERABILITY. If any part of this Agreement is found to be invalid or
unenforceable, that part will be amended to the least extent necessary to
achieve as nearly as possible the same effect as the original provision, and the
remainder of this Agreement will remain in full force and effect.
10. AMENDMENT. This Agreement may be amended or modified only upon the
written consent of the parties, which may be granted or withheld in the sole
discretion of the parties. No oral waiver, amendment or modification will be
effective under any circumstances.
11. GOVERNING LAW. This Agreement will be governed and construed in
accordance with the internal laws (and not choice of laws) of the State of
Arizona.
12. TERM. This Agreement shall become effective immediately upon the first
disclosure of Confidential Information by IMPV to Disclosee and shall continue
until the close of business on the third business day after all of the
Confidential Information provided hereunder becomes available to the general
public, regardless of whether such Confidential Information is still in
Disclosee's possession or has been returned to IMPV.
[SIGNATURES ON FOLLOWING PAGE]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DISCLOSEE:
________________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
IMPV:
ImproveNet,Inc.
By: ____________________________________
Name: __________________________________
Title: _________________________________
20
