PART I] INTERNET AGREEMENTS?FORMS 433
35 35 35 35 35
I I I I Internet Services agreement nternet Services agreement nternet Services agreement nternet Services agreement nternet Services agreement
[Terms and Conditions] [Terms and Conditions] [Terms and Conditions] [Terms and Conditions] [Terms and Conditions]
[The following terms and conditions (the ?Terms?) govern the use by you of the
Services (as such term is defined in Section 1) of Prudential Online Incorporated
(?Prudential?) and its affiliates and your use of the Prudential.com Web site (the
Site). By clicking ?I Agree? or by using the Services or using or visiting the Site,
you expressly agree to be bound by the Terms and all other terms or provisions
referenced herein. Prudential reserves the right to change the Terms at any time,
effective immediately upon posting on the Site. Accordingly, you should review
the Terms periodically at ww.prudential.com/terms.aspx. If at any time the Terms
are no longer acceptable to you, you should immediately stop using the Services.
The use of a particular Service shall, in addition to the Terms, be subject to any
posted guidelines or rules applicable to such Service. All such guidelines or rules
are hereby incorporated by reference into the Terms.]
1. Description of Service. Prudential provides users with access to various
online time and information management services (the Services) to which you
may subscribe from time to time. Unless explicitly stated otherwise, any new fea-
tures that augment or enhance a current Service, including the release of new
software or features, shall be subject to the Terms. The level of service shall,
subject to the terms hereof, be as follows:
(a) Service Levels: The normal operating hours will be 24 hours a day,
365 days per year.
Prudential guarantees that the service availability will be more than
99.7% per month unless non-performance is caused by an occurrence
beyond the reasonable control of Prudential and without its fault or
negligence, such as acts of God or the public enemy, acts of Govern-
ment in either its sovereign or contractual capacity, fires, floods, earth-
quakes, epidemics, quarantine restrictions, strikes, unusually severe
weather and delays, errors of common carriers including Internet ser-
vice providers, or delays or errors in the Internet or related services.
For greater certainty, the foregoing guaranty is subject to and is lim-
ited by Section 1(b) and Sections 12 and 13 hereof.
Prudential tracks availability through an automated monitoring system
on the server components. Availability statistics are available on re-
(b) Remedies: If Prudential fails to meet the guaranteed availability target
in a given month, the sole remedy of the member is that the member
will, on request, be credited for the service charge for such month and
the membership period will be extended accordingly.
If Prudential fails to deliver the guaranteed availability for two con-
secutive months the member is entitled to cancel the membership
and is eligible for a refund for the remaining membership period.
(c) Performance: Most Prudential transactions involve simple data entry,
G : CDD (Vol. 4) ? 28434 CONVEYANCING, DRAFTING & DEEDS [PART I
viewing information, or changing status of projects. Prudential guar-
antees that sufficient host resources are available such that the aver-
age execution time for these transactions in a given hour will not ex-
ceed 2 seconds. Execution time is measured at the Internet server
port on the Prudential host and excludes propagation delays caused
by the Internet and client infrastructure.
Some Prudential transactions involve significant host processing and
performance is dependent on client data. These transactions include
invoice generation and the sample wizards. Such transactions are not
included in the target stipulated above, although the performance ben-
efits from the same resource availability.
Prudential tracks performance through an automated transaction sam-
pling system on representative transactions. Performance statistics
are available on request.
(d) Upgrades: From time-to-time, components of the Prudential system
will be upgraded to new versions. Upgrades will be fully tested in ac-
cordance with our normal release cycle process prior to release. If,
however, on release, the member community experiences any signifi-
cant problems, the previous version will be restored within 2 hours.
(e) Contingency Back-up and Disaster Recovery: The Prudential service
is delivered through fault tolerant hardware with redundant compo-
nents where necessary. Back-ups are taken every 5 minutes on-site
and secure off-site back-ups every hour. In the event of a major disas-
ter, such as earthquake, act of terror, fire, or flood, full service will be
suspended until such a time as a contingency service is resumed and
the latest off-site back-up is restored.
(f) Support and Help Desk Services: Customer service and help desk
facilities are provided by phone and e-mail between the hours of 9.00am
and 5:00pm Monday to Friday, Pacific Standard Time. The target re-
sponse time for specific queries is within 2 hours.
The help desk provides support with application use and identification
of problems. Problems that cannot be resolved immediately are logged
and an issue resolution number is issued. The problem will be esca-
lated to the design team and/or database administration team as ap-
propriate within one working day. The target is next working day re-
sponse to the member.
(g) Ownership of Member Data: All data entered and maintained by mem-
bers belongs to the member and will be treated as such by Prudential.
On termination of the membership or at any time on request by the
member, all data will be made available to the member. Prudential
shall be permitted to retain a copy of all data as is reasonably neces-
sary to administer the membership, for purposes of record keeping, or
as required by law.
2. Permitted Use of the Services. Upon subscription to a Service and pay-
ment of any fees in respect thereof, you shall be entitled to access and utilize the
Service in accordance with the guidelines and rules applicable to the Service.PART I] INTERNET AGREEMENTS?FORMS 435
3. Prohibited Use of the Services. You may not:
(a) use the Services except in respect of the management of projects of
your organization and, for greater certainty, you may not use the Ser-
vices to provide to another person project management services or
any other service that is competitive with the services provided by
(b) permit any person who is not an Authorized User (as such persons
are listed in the Customer Data, as defined below) to access the Ser-
(c) use the Services if you are under the age of 13.
4. Permitted Use of the Site. You may use the Site as follows:
(a) as required to facilitate the provision of Services to which you have
(b) to view, download, and print for you own use any web pages to which
Prudential permits access by the public.
5. Prohibited Use of the Site. You may not:
(a) use the Site to upload, post, e-mail or otherwise transmit any content
that is unlawful, harmful, threatening, abusive, harassing, tortious, defa-
matory, vulgar, obscene, libelous, invasive of another?s privacy, hate-
ful, or racially, ethnically or otherwise objectionable or that infringes
any patent, trademark, trade secret, copyright or other proprietary rights
of any person;
(b) use the Site to upload, post, e-mail or otherwise transmit any unso-
licited or unauthorized advertising, promotional materials, ?junk mail,?
?spam,? ?chain letters, ? ?pyramid schemes, ? or any other form of solici-
(c) use the Site to interfere with or disrupt any Services or servers or
networks connected to any Services or disobey any requirements, pro-
cedures, policies or regulations of networks connected to any Ser-
(d) modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, display or in any way exploit any of the
content of the Site or the Software, as hereinafter defined, in whole or
in part, except as expressly permitted in this Agreement.
6. License to Use Software. Prudential hereby grants to you a non-exclusive
license (the ?Licecse?) to access online and to use in executable form the follow-
ing software (the ?Software?):
(a) the software comprising the Site;
(b) the software comprising Prudential, the project administration appli-
(c) any other software provided to you from time to time by Prudential.
7. Restrictions on Use of Software. You may use the Software only as re-
quired to facilitate the provision of the Services to you and you may not duplicate,
publish, de-compile, or reverse engineer the Software or use the Software other
than as required to facilitate the provision of the Services to you.436 CONVEYANCING, DRAFTING & DEEDS [PART I
8. Registration Obligations. You agree to provide true, accurate, current and
complete information as required in all purchase orders, online sign-up forms,
and other electronic or paper documents (the ?Customer Data?) and to maintain
and promptly update the Customer Data to ensure that it remains true, accurate,
current and complete.
9. Password and Security. You are responsible for maintaining the confiden-
tiality of any passwords in respect of your account and are fully responsible for all
activities that occur under your password or account. You agree to immediately
notify Prudential of any unauthorized use of your password or account or any
other breach of security and to ensure that you exit from your account at the end
of each session.
10. Data Generation and Processing. The Services may be used, if other-
wise permitted by the applicable guidelines or rules, to facilitate the generation or
processing of data, including financial data. Prudential shall not, however, be li-
able for any inaccuracy or error in data that is generated or processed in relation
to the Services. You agree to confirm the accuracy and comprehensiveness of all
such data and you agree to indemnify and hold Prudential, its subsidiaries, affili-
ates, officers, agents and other partners and employees, harmless from any loss,
liability, claim or demand, including reasonable attorneys fees, made by any party
in relation to such data.
11. Agreements Between Users. The Services may be used, if otherwise
permitted by the applicable guidelines or rules, to facilitate the transmission, ne-
gotiation, and entering into of agreements between or among users of the Ser-
vices. Prudential is not a party to any such agreements and shall have no obliga-
tions or liabilities thereunder. You agree to indemnify and hold Prudential, its sub-
sidiaries, affiliates, officers, agents and other partners and employees, harmless
from any loss, liability , claim or demand, including reasonable attorneys fees, made
by any party due to or arising out of any agreement entered into between or
among any of you, an Authorized User, or any other user of the Services.
12. Warranty Disclaimer. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SER-
VICES ARE PROVIDED ON AN ?AS IS? AND ?AS AVAILABLE? BASIS.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRUDENTIAL EX-
PRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WHETHER
EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT;
(b) PRUDENTIAL MAKES NO WARRANTY THAT (i) THE SERVICES WILL
MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTER-
RUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT
MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE AC-
CURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SER-
VICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OB-
TAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPEC-
TATIONS, OR (V) ANY ERRORS IN THE SOFTWARE WILL BE COR-
RECTED;PART I] INTERNET AGREEMENTS?FORMS 437
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH
THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION
AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM AND ANY LOSS OF DATA
THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL;
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OB-
TAINED BY YOU FROM PRUDENTIAL SHALL CREATE ANY WARRANTY
NOT EXPRESSLY STATED IN THE TERMS.
13. Limitation on Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT
PRUDENTIAL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT
LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR
OTHER INTANGIBLE LOSSES (EVEN IF PRUDENTIAL HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) THE USE OR THE
INABILITY TO USE THE SERVICES, (ii) THE COST OF PROCUREMENT OF SUB-
STITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, IN-
FORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RE-
CEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SER-
VICES OR THE SITE, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA, (iv) STATEMENTS OR CONDUCT OF ANY THIRD
PARTY USING THE SERVICES OR THE SITE, OR (v) ANY OTHER MATTER RELAT-
ING TO THE SERVICES OR THE SITE. IF FOR ANY REASON PRUDENTIAL BE-
COMES LIABLE TO YOU OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER
DAMAGES FOR ANY CAUSE WHATSOEVER, IN CONTRACT OR TORT OR FOR
STATUTORY FORMS OF ACTION, IN CONNECTION WITH THE SERVICES OR THE
SITE, THE AGGREGATE LIABILITY OF PRUDENTIAL FOR ALL DAMAGES, INJU-
RIES, AND LIABILITY INCURRED BY YOU AND ALL OTHER PARTIES SHALL BE
LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES
THAT GAVE RISE TO THE CLAIM FOR DAMAGES.
14. Exclusions and Limitations. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLU-
SION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORD-
INGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 MAY NOT
APPLY TO YOU.
15. Indemnity. You agree to indemnify and hold Prudential, its subsidiaries,
affiliates, officers, agents and other partners and employees, harmless from any
loss, liability, claim or demand, including reasonable attorneys fees, made by any
third party due to or arising out of the breach of the Terms or the use of the
Services or the Site by you or an Authorized User.
16. Links. The Site may contain links to other Web sites or resources. Be-
cause Prudential has no control over such sites and resources, you acknowledge
and agree that Prudential is not responsible for the availability of such external
sites or resources and that Prudential does not endorse and is not responsible or
liable for any content, advertising, products, or other materials on or available
from such sites or resources. You further acknowledge and agree that Prudential
shall not be responsible or liable, directly or indirectly, for any damage or loss438 CONVEYANCING, DRAFTING & DEEDS [PART I
caused or alleged to be caused by or in connection with use of or reliance on any
such content, goods or services available on or through any such site or resource.
You agree that you will not link to the Site from another web site unless expressly
authorized by Prudential in writing and that you will not at any time deep link or
otherwise attempt to defeat or bypass the normal entry points for the Site.
17. Privacy. Prudential shall use your personal information only in accordance
privacy.aspx. By providing any information to Prudential, you consent to the use
Terms shall prevail.
18. Copyright. The copyright in the Software and in all text, images, and other
data comprising this Site is owned by Prudential and/or its suppliers and is pro-
tected by [Country Name] and international copyright laws.
19. Copyright Infringement. Prudential respects the intellectual property of
others, and we ask our users to do the same. If you believe that your work has
been copied in a way that constitutes copyright infringement, please provide to
Prudential? Copyright Agent the following information:
(a) an electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright interest;
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of where the material that you claim is infringing is lo-
cated on the Site;
(d) your address, telephone number, and e-mail address; and
(e) a statement by you, made under penalty of perjury, that the disputed
use is not authorized by the copyright owner, its agent, or the law and
that the above information in your notice is accurate and that you are
the copyright owner or are authorized to act on the copyright owner?s
20. Copyright Agent. Prudential? Copyright Agent for notice of claims of copy-
right infringement on its site can be contacted by e-mail at email@example.com
or can be reached by mail at Prudential Online Incorporated, [Address] .
21. Trademarks. Prudential, Prudential.com and all logos and images related
thereto are trademarks of Prudential and may not be used without the prior writ-
ten consent of Prudential.
22. Assignment. Neither the Terms, the right to use the Services, nor the
License may be assigned without the prior written consent of Prudential.
23. Notice. Notices to you may be made via email or regular mail as indicated
in the Customer Data.
24. Jurisdiction and Venue. Any dispute arising out of the Terms, the Site, or
the Services shall be governed by the laws of the [Country Name] without regard
to its conflict of law provisions and the courts of [Country Name] shall have non-
exclusive jurisdiction with respect thereto.PART I] INTERNET AGREEMENTS?FORMS 439
25. Term. The Terms (including the License and the Services) shall apply until
terminated in accordance herewith.
26. Termination. Prudential may terminate your account, the License, your
password, and use of the Service and may remove from the Site and its servers
and discard your content as follows:
(a) on 30 days notice to you for any reason; or
(b) immediately and without notice upon the happening of any of the fol-
(i) the insolvency or bankruptcy of or appointment into receivership
(ii) failure to pay as due any fees or other amounts payable to Pru-
(iii) breach by you of the Terms or of any applicable guidelines or
27. Survival. Sections 10, 11, 12, 13, 14, 15, 16, 18, 21, 23, 24 and this
Section 27 hereof shall survive termination of the Terms, the License, and provi-
sion of the Services
SIGNATURE WITH DESIGNATION
DATE: & OFFICE SEAL OF THE PARTY
36 36 36 36 36
Internet Based Service Agreement Internet Based Service Agreement Internet Based Service Agreement Internet Based Service Agreement Internet Based Service Agreement
THIS INTERNET-BASED SERVICES AGREEMENT, made on this [Date]
(?Agreement?) BETWEEN BUILDWELL CORPORATION, a company incor-
porated under the Companies Act and having its registered office at [Address]
(?Buildwell?) AND NETSERVICE LIMITED, a duly incorporated Company, having
its registered office at [Address](?NetService?)
WITNESSES as follows :
NetService is a leading Internet-based home improvement market maker in
India for contractors, homeowners and building material suppliers. NetService
provides an Internet-based contractor matching service (?Contractor Matching
Service?) pursuant to which it screens and qualifies both contractors and home-
owner leads and matches appropriate and interested contractors to homeowners
seeking to have home improvement projects performed. NetService also provides
other informational, promotional and advertising services to contractors and sup-
pliers via its Internet home page.440 CONVEYANCING, DRAFTING & DEEDS [PART I
Buildwell is a leading manufacturer and seller of building materials and sys-
tems and is interested in having NetService provide certain contractor matching,
informational, promotional and advertising services for it, and NetService is will-
ing to provide such services for Buildwell, all In accordance with the terms end
conditions set forth below:
In consideration of the mutual promises set forth below and other good and
valuable consideration, the value and sufficiency of which are hereby acknowl-
edged, the parties hereby agree as follows:
1.1 SCOPE OF SERVICES. Throughout the ?Term? (as defined in Sec-
tion 8.1 below) of this Agreement, NetService agrees to provide
Buildwell with the specific contractor matching and advertising
services that are described on Exhibit A attached hereto (the ?Ser-
vices?). The scope of the Services provided by NetService to
Buildwell hereunder may be modified from time to time upon the
mutual agreement of the parties.
1.2 STANDARD OF CARE. NetService shall use commercially rea-
sonable efforts to provide Services to Buildwell hereunder in ac-
cordance with the highest industry standards. Fur thermore,
NetService shall provide Services to Buildwell in a manner that is
no less favorable in terms of priority, availability of services and
standard of care, than similar services provided by NetService to
any of its other customers. Other than as set forth in the preced-
ing sentence, NetService disclaims all warranties, whether ex-
pressed or implied, including without limitation, the implied war-
ranties of merchantability and fitness for a particular purpose.
1.3 COMPLIANCE WITH LAWS AND REGULATIONS. NetService
agrees that it shall perform the Services as well as all of its other
obligations under this Agreement in compliance with all applicable
Central, state and local laws, regulations, ordinances and codes.
1.4 PRIMARY CONTACT. NetService will designate one or more in-
dividuals to whom all communications concerning this Agreement
or the Services provided hereunder may be addressed.
1.5 FUTURE SERVICES. NetService agrees to offer Buildwell on a
preferential basis any additional informational, promotional or ad-
vertising services that NetService may develop during the Term
of this Agreement.
2. Buildwell?S RESPONSIBILITIES
2.1 PRIMARY CONTACT. Buildwell will designate one or more indi-
viduals to whom all communications concerning this Agreement
or the Services provided hereunder may be addressed.
2.2 REASONABLE COOPERATION. Buildwell shall reasonably co-
operate with NetService by, among other things, delivering or oth-
erwise making available, in a timely fashion, information in
Buildwell?s control which is relevant and necessary to NetService?s
effective performance of Services hereunder.PART I] INTERNET AGREEMENTS?FORMS 441
2.3 PROMOTIONAL EFFORTS. Buildwell will use commercially rea-
sonable efforts to promote its relationship with NetService, in-
cluding, if appropriate, displays of promotional material at trade
shows, on Buildwell?s Internet home page, advertisements: and
literature. However, nothing shall commit Buildwell to any level of
spending or to support or obligate Buildwell to advertise or pro-
mote NetService or its Services in any manner unacceptable to
3. SERVICE FEES AND CHARGES
3.1 SERVICE FEES.
(a) During the first three (3) ?Contract Years? (as defined in SEC-
TION 8.1 below) of the Term, Buildwell shall pay NetService the
fees set forth on EXHIBIT B (?Initial Fees?). The Initial Fees shall
cover all Services to be provided by NetService hereunder dur-
ing such 3-Contract Year period, and shall also provide the con-
sideration required by NetService in exchange for its agreement
to make Services available to Buildwell throughout the entire Term
of this Agreement.
(b) Following the first three (3) Contract Years of the Term, NetService
shall have the right to increase the fees for Services hereunder
upon ninety (90) days prior written notice to Buildwell provided
that such fees shall be increased no more than once during any
Contract Year, and in no increase can exceed five percent (5%)
over the fees charged during the immediately preceding Contract
(c) If the parties hereunder agree to modify the scope of Services at
any time throughout the Term of this Agreement, there will be an
appropriate modification to the Service fees. Such modification of
Service fees is, however, subject to the mutual written agreement
of the parties, and any disputes regarding such modifications shall
be resolved in accordance with the provisions of Article 9 below.
3.2 PAYMENT. The Service fees for each Contract Year shall be paid by
Buildwell in equal monthly installments, and NetService shall invoice
Buildwell each month in the amount of such installment (net of any
credits or offsets for which Buildwell is entitled to receive against such
installment as described in Section 3.3 below). Buildwell shall pay the
net amount of each invoice received from NetService hereunder within
thirty (30) days following its receipt thereof. Buildwell may, however,
withhold payment of any amounts which it disputes, in good faith, pro-
vided that Buildwell pays to NetService any amounts that are deter-
mined under Article 9 to be payable by Buildwell within thirty (30) days
of such determination.
3.3 Buildwell SERVICES TO IMPROVENET. Throughout the Term of this
Agreement, NetService agrees to purchase certain advertising ser-
vices from Buildwell or wholly, owned subsidiaries of Buildwell. The
parties agree to discuss and negotiate in good faith the nature, extent442 CONVEYANCING, DRAFTING & DEEDS [PART I
and value of such services throughout the Term of this Agreement.
However, the parties specifically agree that NetService shall purchase
from Buildwell or wholly-owned subsidiaries of Buildwell, the advertis-
ing coop services in accordance with Exhibit B attached hereto.
Buildwell shall invoice NetService for the agreed-upon value of the
advertising provided by Buildwell or wholly-owned subsidiaries of
Buildwell, and the amount of such invoice shall be offset, or netted
against, NetService?s invoice for the immediately following month.
3.4 AFFILIATE CONTRACTOR CREDITS. Buildwell shall be entitled to
the ?Affiliate Contractor? credits described on EXHIBIT C attached
hereto. Within the first term (10) business days of each month, Buildwell
shall provide NetService with a Summary of all credits to which Buildwell
is entitled for the immediately preceding month. Such credits will be
reflected on NetService?s invoice for the immediately following month.
3.5 MOST FAVORED PRICING. Throughout the Term of this Agreement,
Buildwell shall be charged Service fees by NetService that are the
lower of (i) the lowest Service fees charged to any other NetService
customer that is comparable to Buildwell in terms of breadth and vol-
ume of services provided by NetService, the breadth and volume of
services purchased by NetService from such customer and the size
of the equity investment by such customer in NetService, or (ii)
[…***…]([…***…]) below NetService?s prevailing market rates for such
Services. For purposes of this Agreement, NetService?s ?prevailing
market rate? for each Service shall be the average rate quoted for
such Service to new customers with no pre-existing commercial or
equity relationship with NetService.
4. CONTRACTOR FEES.
4.1 In connection with the ?Private-Label Contractor Matching Services?
(as defined on Exhibit A) to be provided by NetService for and on
behalf of Buildwell (e.g., DIF-me or other co-branded services),
NetService shall charge participating Buildwell Preferred Contractors
the fees set forth on Exhibit C attached hereto (?Buildwell Contractor
Fees?). The parties acknowledge and agree that Buildwell Contractor
Fees are to be charged to Buildwell Preferred Contractors only in
connection with leads and jobs that are generated by Buildwell, whether
through Buildwell?s DIF-me program or otherwise (?Buildwell-Gener-
ated Job?). With respect to any other lead or job (i.e., other than an
Buildwell-Generated Job) that is provided by NetService to an Buildwell
Preferred Contractor, NetService?s standard fees and rates shall ap-
4.2 For each Buildwell-Generated Job resulting in a ?won job? exceeding
[Amount] […***…] in value, NetService will pay Buildwell a referral fee
equal to [Amount] […***…] (?Buildwell Referral Fee?). Throughout the
Term of this Agreement, the amount of the Buildwell Referral Fee shall
be increased by the same percentage as any increase in ?Win Fees?
pursuant to Section 4.3 below.PART I] INTERNET AGREEMENTS?FORMS 443
4.3 Buildwell Contractor Fees may, from time to time, be increased by
NetService as follows:
(a) Throughout the first Contract Year of this Agreement, NetService
shall have the right subject to Section 3.5, to increase the Buildwell
Contractor Fees upon sixty (60) day?s prior written notice to
Buildwell. Thereafter, NetService shall have the right to increase
the Buildwell Contractor Fees upon ninety (90) day?s prior written
notice to Buildwell.
(b) With respect to the Win Fee component of the Buildwell Contrac-
tor Fees, no such increase shall exceed […***..] ([…***…]) over
the Win Fees for the prior Contract Year, and there shall be no
more than one such increase in any Contract Year. With respect
to the Lead Fee component, the total of such increases shall not
exceed [Amount] during any 6-month period of the first Contract
Year and shall not exceed [Amount] during any 6-month period of
the second Contract Year. Thereafter, there shall be no more than
one (1) increase in Lead Fees during any Contract Year and no
increase shall exceed [Amount]over the Lead Fees for the imme-
diately prior Contract Year.
4.4 In the event that NetService materially modifies its standard non-
Buildwell Contractor Fees such that they become inconsistent with
the Buildwell Contractor Fees in terms of structure, format and/or
amounts, Buildwell and NetService agree to discuss in good faith
whether it is commercially reasonable and appropriate to make corre-
sponding modifications to the Buildwell Contractor Fees and the
Buildwell Referral Fee hereunder.
4.5 Buildwell ?Affiliate Contractor? fees shall be determined pursuant to
Exhibit C attached hereto.
4.6 Upon request from Buildwell, NetService agrees to allow NetService
contractors who are not Buildwell Preferred Contractors to receive and
enjoy the benefit of Buildwell Contractor Fees when they are matched
to Buildwell-Generated Jobs.
5. REGULAR AND SPECIAL MEETINGS/REPORTS
5.1 REGULAR MEETINGS. On a regular basis (no less often than quar-
terly), Buildwell and NetService shall meet, in person, to discuss the
Services being provided hereunder as well as the fees being charged
for Services and any general market issues that are of concern to
either party. The parties agree to discuss any problems and/or issues
which may have occurred or are occurring, and to discuss any ways in
which the Services may be NetService or made more effective. The
parties agree that the meeting date four regular meetings shall be
determined within the first ten days of each month.
5.2 SPECIAL MEETINGS. In the event that either party desires to call a
special meeting to discuss issues of concern to a party not generally
discussed at the regular meeting described in Section 5.1, that party444 CONVEYANCING, DRAFTING & DEEDS [PART I
can request a special meeting to discuss such issues. Such request
must be in writing and must provide the other party with at least five
(5) business days notice of the requested meeting and must briefly
describe the issues to be discussed. The parties agree to then meet
with one another as soon as is reasonably practical to discuss in good
faith how such issues might be resolved.
6.1 Buildwell DATA. In connection with the Services provided by
NetService for Buildwell hereunder, NetService will collect and main-
tain data and information relative to Buildwell-Generated Jobs as well
as Buildwell Preferred Contractors (collectively, ?Buildwell Data?).
Buildwell will have unrestricted access to such Buildwell Data at all
times and it shall be provided to Buildwell upon Buildwell?s written
request or upon the termination or expiration of this Agreement for
any reason. NetService shall have the right to use such Buildwell Data
in connection with its business subject to limitations or restrictions
imposed by Buildwell?s internet privacy/policy, but in no event will
NetService use Buildwell Data in connection with the provision of
services to or for any competitor of Buildwell identified on EXHIBIT D,
nor will it provide such Buildwell Data to or for the benefit of any third
party. Buildwell may, from time to time, modify the list of competitors
identified on Exhibit D upon forty-five (45) days? prior written notice to
6.2 IMPROVENET DATA. NetService will also collect data and informa-
tion in connection with the Contractor Matching Services that it pro-
vides generally through its Internet service (?NetService Data?). All
such data is the Sole property of NetService and/or the originator,
unless otherwise assigned to a third party. NetService agrees to pro-
vide Buildwell with statistical information regarding the NetService
Data provided that Buildwell agrees to allow similar statistical data
collected from Buildwell-Generated Jobs to be included as part of the
overall pool of jobs. Any NetService Data provided to Buildwell shall
be subject to limitations and restrictions imposed by NetService?s
NetService may be a party.
6.3 REPORTS. By the tenth day of each month during the Term of this
Agreement, NetService shall submit to Buildwell a report, in the form
agreed to by Buildwell and NetService, describing the Services pro-
vided by NetService during the preceding month, including without
limitation, the number of Buildwell-Generated Jobs, the number of won
jobs by Buildwell Preferred Contractors, and the specific information
related to each such won job.
7. EXCLUSIVITY. In consideration of the commitments made by Buildwell
hereunder, NetService agrees not to provide Private Label Contractor Matching
Services to any of the direct category competitors of Buildwell identified on EX-
HIBIT E attached hereto (?Buildwell Competitors?) for a period commencing on
the ?Effective Date? (as defined in Section 8.1 below) and ending on [Date].PART I] INTERNET AGREEMENTS?FORMS 445
8. TERM AND TERMINATION.
8.1 TERM. This Agreement shall become effective as of the date first writ-
ten above (?Effective Date?) and shall continue for a period of twelve
(12) years thereafter. (?Term?) unless terminated earlier as provided
below in Sections 8.2 or 8.3 below. Each consecutive twelve (12) month
period commencing on the Effective Date and continuing through the
expiration of the Term shall be referred to herein as a ?Contract Year?.
The Term of the Agreement may be extended upon the mutual written
agreement of the parties.
8.2 Termination for Cause. Notwithstanding the term of this Agreement as
provided in Section 8.1 above, this Agreement may be terminated at
any time by either party upon the following terms and conditions:
(a) If either party breaches any material provision of this Agreement,
and such breach is not cured within thirty (30) days following the
breaching party?s receipt of written notice of such breach from
the non-breaching party, or if such breach cannot be cured within
such thirty (30) day period, then the non-breaching party may
terminate this Agreement, subject to the procedures and notice
requirements set forth in Section 14.3 below, with immediate ef-
fect upon written notice to the breaching party. The termination
right provided in this Section 8.2(A) is not exclusive of any rem-
edies to which either party may otherwise be entitled in law or in
equity in the event of a breach of this Agreement:
(b) If either party (i) ceases generally to pay its debts as they be-
come due; or (ii) becomes the subject of a bankruptcy proceed-
ing, whether voluntarily or involuntarily, and such proceeding is
not dismissed or vacated within thirty (30) days after filing, then
the other party shall have the right to immediately terminate this
Agreement by written notice to the insolvent or bankrupt party.
8.3 Buildwell TERMINATION FOR CONVENIENCE. Following the initial
three (3) Contract Years of this Agreement, Buildwell may terminate
this Agreement for convenience and without cause, at any time upon
twelve (12) months? prior written notice to NetService. In the event that
a purported termination for cause by Buildwell under Section 8.2 is
finally determined by a competent authority under Section 9.2 or Sec-
tion 9.3 not to be properly a termination for cause, then such termina-
tion shall be deemed to be a termination for convenience under this
Section 8.3, effective from the date of the notice first delivered pursu-
ant to Section 8.2(A) above.
9. DISPUTE RESOLUTION
9.1 INFORMAL DISPUTE RESOLUTION. The parties shall attempt in good
faith to resolve any dispute arising out of or relating to this Agreement
through negotiation between representatives who have authority to
resolve the matter. Either party may give the other party written notice
of any dispute not resolved in the normal course of business, it being
understood that a notice delivered by a party pursuant to Section 8.2(A)446 CONVEYANCING, DRAFTING & DEEDS [PART I
above shall constitute the delivery of a written notice of dispute pursu-
ant to this Section 9.1. Within five (5) days after its receipt of the no-
tice, the receiving party shall submit to the other party a written re-
sponse. The notice and response shall each include (a) a statement
of the party?s position and a summary of the arguments supporting
that position, and (b) the name and title of the company representa-
tive who will represent that party. Within ten (10) days following deliv-
ery of the original dispute notice the parties? respective representa-
tives shall meet at a mutually acceptable time and place, and thereaf-
ter as often as they reasonably deem necessary to attempt to resolve
the dispute. Ali reasonable requests for information made by either
party to the other will be honored.
9.2 ARBITRATION. If a dispute has not been resolved within thirty (30)
days of the disputing party?s original notice under Section 9.1, or if the
parties fail to meet within the ten (10) days following such notice un-
der Section 9.1, then either party may initiate arbitration of the dis-
pute. The dispute shall then be submitted to mandatory and binding
arbitration in [Country name] in accordance with the provisions rules
and procedures of the Arbitration Act, as may be in force and appli-
cable, before a single arbitrator. Judgment upon the award may be
entered by any. court having appropriate jurisdiction. The arbitrator
shall not, however, be empowered to award damages in excess of
9.3 LITIGATION. The only circumstance in which a dispute between the
parties will no be subject to the provision of Sections 9.1 and 9.2.
above, is when a part) makes a good faith determination that a breach
of the terms of this Agreement by the other party is such that the
damages to such party resulting from the breach will be so immedi-
ate, so large or severe, and so incapable of adequate redress after
the fact that a temporary restraining order or other immediate injunc-
tive relief is the only adequate remedy. Except for such relief, the par-
ties shall resolve their disputes, whether or not such relief is granted,
in accordance with the provisions set forth in Sections 9.1 and 9.2.
9.4 CONTINUED PERFORMANCE. Each party agrees to continue per-
forming its obligations under this Agreement when any dispute is be-
ing resolved under Article 9, unless and until such obligations are ter-
minated by the expiration or termination of this Agreement or by order
of a court of competent authority under SECTION 9.2 or SECTION
10. LIMITATION OF LIABILITY
10.1 LIMITATION. IN NO EVENT SHALL EITHER PARTY, OR ITS RESPEC-
TIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, BE LIABLE
TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEM-
PLARY, POTENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS) EVEN IF A PARTLY HAS BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTYPART I] INTERNET AGREEMENTS?FORMS 447
IN AN AMOUNT GREATER THAN THE AMOUNTS ACTUALLY PAID BY
BUILDWELL TO NETSERVICE HEREUNDER DURING THE TWELVE (12)
MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF EACH PARTY
S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR
DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGRE-
GATED DURING SUCH TWELVE (12) MONTH PERIOD PRECEDING
THE CLAIM TO DETERMINE SATISFACTION OF THE LIMIT. THE EX-
ISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
10.2 EXCLUSIONS FROM LIMITATION. The limitation on liability set forth in
Section 10.1 above will not apply with respect to damages ari sing from
or relating to (i) the willful misconduct or gross negligence of a party, or (ii)
either parties indemnification obligations in Article 11.
NetService and Buildwell each agree to indemnify, defend and hold harmless
the other, including its officers, directors, employees, agents, successors, and
assigns from any and all losses, liabilities, damages, judgments and expenses
(including reasonable attorneys? fees and witness fees) (?Losses?) arising from or
in connection with any of the following:
(a) the death or bodily injury of any agent, employee, customer, business
invitee, or business visitor or other person caused by the tortuous
conduct of the indemnitor, its agent or employee;
(b) the damage, loss or destruction of any real or tangible personal prop-
erty caused by the tortuous conduct of the indemnitor, its agent or
(c) any Loss asserted against the indemnitee but resulting from an act of
omission of the indemnitor in its capacity as an employer of a person.
12.1 CONFIDENTIAL INFORMATION. Each party acknowledges that the
other will receive or have access to confidential or proprietary infor-
mation of such party or of a third party (e.g., Buildwell Preferred Con-
tractors) and in such party?s possession (the ?Confidential Informa-
12.2 OBLIGATIONS. Each party will use at least the same degree of care
to prevent disclosing to third parties the Confidential Information of
the other 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 to third parties performing ser-
vices hereunder where(i) the use of such entity is authorized under
this Agreement, (ii) such disclosure is reasonably necessary to or oth-
erwise 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 Con-
fidential Information of the other 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, or (3) refuse448 CONVEYANCING, DRAFTING & DEEDS [PART I
for any reason (including a default or material breach of this Agree-
ment by the other party) to promptly provide the other party?s Confi-
dential 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 obliga-
tions under this Agreement, each arty shall (except as otherwise pro-
vided in this Agreement), return or destroy, as the other may direct, all
documentation in any medium that contains, refers to, or relates to the
other party s Confidential Information, and retain no copies. In addi-
tion, the parties shall take reasonable steps to ensure that their em-
ployees comply with these confidentiality provisions. The steps taken
by a party to ensure such compliance will be deemed reasonable if
they are no less onerous than the steps taken by the other party.
12.3 The obligations of this Article 12 will not apply to any particular infor-
mation which either party can demonstrate: (i) was, at the time of
disclosure to it, in the public domain; (ii) after disclosure to it, is pub-
lished 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 refer-
ence to Confidential Information of the furnishing party, in addition, a
party shall not be considered to have breached its obligations under
this Article 12 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 appro-
priate actions in response to the demand.
12.4 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
12.5 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 licence to the Confidential Information of the other party.
12.6 Nothing in this Agreement shall be construed to prevent either party
from obtaining, developing or using services or products itself or pro-
vided by a third party as permitted by this Agreement which are simi-
lar 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.
13. INTELLECTUAL PROPERTY
13.1 Buildwell TRADEMARKS. Buildwell grants to NetService, during thePART I] INTERNET AGREEMENTS?FORMS 449
Term of this Agreement, a non-exclusive, non-transferable licence to
use the Buildwell name trademarks or logo solely in connection with
the Services provided to Buildwell hereunder. Any such use is, how-
ever, subject to the prior review and written approval of Buildwell and
must be in accordance with standards and specifications for such use
provided to NetService by Buildwell. Except for the foregoing right to
use, no right or licence to any trademark or tradename of Buildwell
shall be deemed to be granted to NetService by any provision hereof
or by the performance of this Agreement by either party. This licence
expires immediately upon termination or expiration of this Agreement.
13.2 IMPROVENET TRADEMARKS. NetService grants to Buildwell during
the Term of this Agreement a non-exclusive, non-transferable licence
to use the NetService name, trademarks and logo solely in connec-
tion with the promotion and advertising of the Services provided to
Buildwell by NetService hereunder. Any such use is, however, subject
to the prior review and written approval of NetService, and must be in
accordance with standards and specifications for such use provided
to Buildwell by NetService. Except for the foregoing right to use, no
right or license to any trademark or trade name or logo of NetService
shall be deemed to be granted by any provision hereof or by the per-
formance of this Agreement by either party. This license expires im-
mediately upon termination or expiration of this Agreement.
14. GENERAL PROVISIONS.
14.1 BINDING NATURE AND ASSIGNMENT. This Agreement shall be bind-
ing on each of the parties and its respective successors and permit-
ted assigns. Except as provided below, neither party may assign this
Agreement or any rights or obligations created herewith in whole or in
part 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 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, (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 SEC-
TION 14.1, any assignment by operation of law or under an order of
any court shall be deemed an assignment for which prior written con-
sent is required, and any assignment made without such consent shall
be void and of no effect as between the parties.
14.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between the parties, and supersedes all other prior
or center contemporaneous communications between the parties
(whether written or oral), with respect to the subject matter contained
in this Agreement, including without limitation that certain agreement
titled ?General Services Agreement. ? No modification or amendment
of this Agreement will be effective unless made in a writing executed
by both parties.
G : CDD (Vol. 4) ? 29450 CONVEYANCING, DRAFTING & DEEDS [PART I
14.3 NOTICES. All notices required or permitted under this Agreement (other
than routine operational communications) shall be in writing and shall
be deemed received if sent by one of the following means: (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 registered post, or (iv) upon confirmed
facsimile transmission provided that a copy is sent by another of the
foregoing means. All notices will be addressed by a party to the last
known address of the other party.
A party may change its address from time to time upon prior written notice to
the other specifying the effective date of the new address.
14.4 HEADINGS. The section headings contained in this Agreement are
for reference and convenience only and shall not enter into the inter-
pretation of this Agreement.
14.5 RELATIONSHIP OF THE PARTIES. NetService, in furnishing Services
to Buildwell hereunder, is acting as an independent contractor and
has the sole right and obligation to supervise, manage, contract, di-
rect, procure, perform or cause to be performed, all Services to be
performed by NetService under this Agreement. Neither NetService
or Buildwell is an agent, partner, joint venturer or fiduciary of the other
party and neither has the authority to represent the other party as to
any matters or to bind the other party to any third parties, except as
expressly authorized in this Agreement.
14.6 SEVERABILITY. In the event that any provision of this Agreement is
found to be unenforceable under applicable law, the parties agree to
replace such provision with a substitute provision that most nearly
reflects the original intentions of the parties and is enforceable under
applicable law, and the remainder of this Agreement shall continue in
full force and affect.
14.7 WAIVER OF DEFAULT; CUMULATIVE REMEDIES.
(a) 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.
(b) 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.
14.8 THIRD PARTY BENEFICIARIES. This Agreement is entered into solely
between, and may be enforced only by, Buildwell and NetService. This
Agreement shall not be deemed to create any rights in any third par-
ties, including any suppliers and customers of a party, or to create any
obligations of a party to any third parties.PART I] INTERNET AGREEMENTS?FORMS 451
14.9 PUBLICITY AND ADVERTISING. The parties agree that any notices
or disclosures to third parties concerning this Agreement or the Ser-
vices shall be jointly coordinated and approved in advance by both
parties. In addition, neither party shall use the corporate name or any
brand or proprietary name, mark or logo of the other party for any
advertising or promotional purpose without first submitting such ad-
vertising or promotional materials to the other party and obtaining the
prior written consent of such party. Each party agrees to provide prompt
and timely turnaround, not to exceed five (5) business days, of all
such materials submitted to it by the other party hereto.
14.10 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 not reasonably be circumvented by the non-per-
forming party through the use of alternate sources, work around plans
or other means.
14.11 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 India.
14.12 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which to-
gether shall be deemed to be one and the same instrument.
14.13 JOINTLY DRAFTED. This Agreement represents the joint drafting ef-
forts of the parties and shall not be construed more strictly against
one party than the other.
IN WITNESS WHEREOF, the parties have caused this Agreement to be ex-
ecuted by their respective duly authorized representatives on the day month and
the year first above-written.
SIGNED SEALED AND DELIVERED
BY THE PARTIES IN THE PRESENCE OF
W I T N E S S E S:
LIST OF EXHIBITS
EXHIBIT A Description of Services
EXHIBIT B Fees for Services
EXHIBIT C Contractor Fees
EXHIBIT D Buildwell Competitors (For Data Protection)
EXHIBIT E Buildwell Competitors (For Exclusivity)452 CONVEYANCING, DRAFTING & DEEDS [PART I
DESCRIPTION OF SERVICES
A-1 PRIVATE-LABEL CONTRACTOR MATCHING. NetService agrees to pro-
vide its Contractor Matching Service to Buildwell on a Private-Label basis. That is,
NetService will provide an Buildwell branded Contractor Matching Service through
Buildwell?s Internet home page and Buildwell?s toll-free telephone number.
Such service to be marketed as Buildwell?s ?Do-it-for-me? Service (?DIF-Me?)
or such other name as Buildwell may select. In all situations where DIF-Me brand
is prominently displayed, it shall be followed by the text ?powered by NetService?
or such other text as may be agreed to by the parties. Where Buildwell publishes
information regarding the structure and functionality of the DIF-Me program,
Buildwell will use reasonable efforts to include therein a reference to NetService
and an explanation of NetService?s role in the DIF-Me program, but in no event
shall Buildwell have any liability for its failure to so reference NetService.
Customer leads generated through the DIF-Me program will be routed directly
to NetService and managed through its Contractor Matching Service. All Buildwell-
Generated Jobs will be directed, on a priority basis to Buildwell?s ?Preferred Con-
tractors? (as defined below). If no Preferred Contractor is successfully matched to
the Buildwell-Generated Job within forty-eight (48) hours, NetService shall have
the right to match such Buildwell-Generated Job to other NetService Contractors.
A-2 PREFERRED CONTRACTOR SCREENING. Buildwell and/or Buildwell?s
wholly-owned subsidiaries, has developed a promotional program with certain
contractors that satisfy and continuously maintain certain criteria (?Preferred Con-
tractors?). Such NetService qualified Preferred Contractors shall be those to whom
NetService shall direct Buildwell-Generated Jobs. These Preferred Contractors
are subjected to an initial certification and ongoing re-certification by Buildwell in
order to maintain their ?Preferred? status. NetService agrees to screen and qualify
contractors for inclusion as Preferred Contractors on behalf of Buildwell in accor-
dance with selection criteria which are mutually agreed upon by Buildwell and
NetService. During the Term of this Agreement, NetService shall assist Buildwell
with the recruitment of NetService qualified contractors to Buildwell?s Preferred
A-3 ADVERTISING AND PROMOTIONAL SERVICES. During the Term of
this Agreement, NetService shall provide the following advertising and promo-
tional services to Buildwell, or at the request of Buildwell, to any wholly-owned
subsidiary of Buildwell (provided that if Buildwell requests NetService to perform
such services for an Buildwell subsidiary, such services will be performed in lieu
of, rather than in addition to, providing such services to Buildwell):
A. BANNER ADVERTISING. Buildwell will be represented with continuous
banner advertisements on the NetService Consumer Site and the NetService
ProSite at all time over the term of the Agreement. The style, format and content
of such banner advertising shall be determined by Buildwell in consultation with
B. BUTTON ADVERTISING. Buildwell will be represented with a continuous
presence on the ?button bar? in the relevant sections of both the NetService Con-PART I] INTERNET AGREEMENTS?FORMS 453
sumer Site and ProSite. Each Buildwell product line will be represented on the
appropriate pages. The style, format and content of such button shall be deter-
mined by Buildwell in consultation with NetService.
C. ON-LINE PRODUCT BRBuildwellHURE. Buildwell?s home and building
related products will be continuously featured in an on-line product brochure on
the NetService Consumer Site and the ProSite (if such brochure is offered on the
ProSite). Such brochures will link directly to the appropriate section of Buildwell?s
Internet home page. The placement of Buildwell brochures will be at least as
good as any other brochure on the site. The specific products included in the
brochure, as well as the style, format and content of the brochure shall be deter-
mined by Buildwell, in its sole discretion but after consultation with NetService.
D. CONSUMER SMARTLEADS. Buildwell has the right to submit SmartLeads
to every NetService customer initiating on the Buildwell site and the NetService
system who submits a job related to any of Buildwell?s product lines throughout
the term of this Agreement. In addition, Buildwell will receive an additional 15,000
SmartLeads per Contract Year during the Term of this Agreement to use, at its
discretion, from customers initiating on other manufacturers? sites (e.g., ?Find-a-
Contractor?). NetService will seek the permission of the respective manufacturer
from whose site the customer originated (?Host Manufacturer?) for Buildwell to
submit the SmartLeads. The Host Manufacturer retains the full authority to accept
or reject Buildwell SmartLeads to consumers originating on its site. Buildwell, as
a Host Manufacturer will also retain this ?veto? right regarding SmartLeads from
other manufacturers to consumers generated by Buildwell. Buildwell SmartLeads
will be consistent in nature (e.g., currently 3 messages per lead) with those agreed
to by other manufacturers in standard signed insertion orders.
E. CONTRACTOR SMARTLEADS. Buildwell has the right to submit
SmartLeads to every NetService contractor responding to a job related to any of
Buildwell?s product lines throughout the Term of this Agreement that is generated
either by Buildwell or by the NetService system, provided that such contractor
has not opted out of receiving such third-party promotions. These leads will be
submitted to contractors who are both online and not online through a combina-
tion of e-mails via the ProSite and fax via the SmartPro fax. In addition, Buildwell
will receive an additional 15,000 SmartLeads per Contract Year throughout the
Term of this Agreement subject to the host manufacturer rules as specified in
Section D above, on the contractor ProSite to use at its discretion. Buildwell
SmartLeads to contractors will be consistent in nature with those agreed to by
other manufacturers in standard signed insertion orders.
F. CONTENT INTEGRATION ON IMPROVENET. Buildwell products will con-
tinuously appear in the relevant sections of NetService?s Product Showcase.
Buildwell will have the right to have Buildwell products listed in at least as many
total listings under each of the relevant product categories as any other manufac-
turer displayed, NetService will work closely with Buildwell to develop adversarial
material that will appear no less than three months each Contract Year in the
relevant section of the NetService Consumer Site and ProSite, assuming that
suitable material is available from Buildwell.
G. HOT LINKS. The NetService Consumer Site and ProSite will be continuously
?hot linked? to the Buildwell Internet site in all places where Buildwell products are
referenced.454 CONVEYANCING, DRAFTING & DEEDS [PART I
FEES FOR SERVICES
Contract Year 1 – [Amount]
Contract Year 2 – [Amount]
Contract Year 3 – [Amount]
Fees to be invoiced and paid in monthly installments.
Buildwell Fees for Co-op Advertising.
(1) For advertisements that mention NetService, and provide some promotion
of its services, Buildwell will receive fees in an amount not less than […***…]
([…***…]) of the total cost of the advertisement but not more than […***…] ([…***…])
of the total cost of the advertisement, the exact percentage for each advertise-
ment to be agreed upon by the parties based upon the degree of the NetService
promotion. Buildwell shall have the right to receive fees only up to […***…] ([…***…])
of the Service Fees for any Contract Year hereunder with fees from these types of
advertisements, subject to the overall cap on all such fees set forth in Section 3
(2) For advertisements that prominently feature NetService and promote
NetService?s services, Buildwell will receive fees in an amount not less than […***…]
([…***…]) of the cost of the advertisement, but not more than […***…] ([…***…]) of
the cost of advertisement, the exact percentage for each advertisement to be
agreed upon by the parties, based upon the degree of the NetService promotion.
(3) In no event shall Buildwell have the right to total receive fees, pursuant to
this EXHIBIT B, in exc
PART I] INTERNET AGREEMENTS?FORMS 433