ImproveNet Advertising Standard Terms and Conditions

1.  Advertising Material/Display

Manufacturer agrees that (i) ImproveNet has the right to market, display, perform, transmit, and promote the Advertisement through the ImproveNet Service and (ii) users of the ImproveNet Service have the right to access and use the Advertisement together with any content or materials linked to the Advertisement (the "Manufacturer Content"). The Manufacturer Content shall not (a) disparage ImproveNet; (b) promote any product or service which may reasonably be deemed to be competitive with one or more of the principal products or services offered through the ImproveNet Service; (c) be in contravention of ImproveNet's generally applicable advertising standards and practices, as such may be modified by ImproveNet from time to time; (d) violate any applicable law, regulation, or third party right (including, without limitation, any copyright, trademark, patent, or other proprietary right); or (e) be defamatory, obscene, or pornographic.

In no event shall the Advertisement or the linked area state or imply that the Advertisement was placed by ImproveNet or that ImproveNet endorses Manufacturer's products or services. To the extent ImproveNet notifies Manufacturer of reasonable complaints or concerns (e.g., from an ImproveNet customer) regarding the Manufacturer Content or any other content or materials linked thereto or associated therewith ("Objectionable Content"), Manufacturer will, to the extent such Objectionable Content is within Manufacturer's control, use commercially reasonable efforts to respond in good faith to such complaints or concerns.

ImproveNet may alter or shorten the flight dates set forth in the Insertion Order if advertising materials required per the Insertion Order are not provided in a timely manner. Manufacturer shall not be entitled to any refund or proration for delays caused by Manufacturer's failure to deliver such materials. Unless expressly provided for elsewhere in this Agreement, (i) ImproveNet will have no obligation to provide any creative, design, technical, or production services to Manufacturer, and (ii) the nature and extent of any such services which ImproveNet may provide to Manufacturer shall be only as explicitly agreed to in writing by ImproveNet in its sole discretion. Manufacturer will ensure that the Manufacturer Content is in conformance with ImproveNet's then-current, generally applicable technical standards. ImproveNet will be entitled to discontinue links to Manufacturer Content to the extent such Manufacturer Content may, in ImproveNet's good faith judgment, adversely affect any operations of the ImproveNet Service.

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2. Payment; Cancellation

ImproveNet reserves the right to redesign or modify the organization, structure, "look and feel," and other elements of the ImproveNet Service at its sole discretion at any time without prior notice. In the event such modifications will materially and adversely affect the placement of the Advertisement, ImproveNet will work with Manufacturer to display the Advertisement in a comparable location and manner that is reasonably satisfactory to Manufacturer. If ImproveNet and Manufacturer cannot reach agreement on a substitute placement, Manufacturer shall have the right to cancel the Advertisement upon thirty (30) days advance written notice to ImproveNet. In such case, Manufacturer will only be responsible for payment to ImproveNet of the pro rata portion of payments attributable to the period from the commencement of the Agreement through the effective date of such cancellation ("Pro Rata Payments").

ImproveNet reserves the right to cancel and remove at any time any Advertisement for any reason upon thirty (30) days advance written notice to Manufacturer (or upon such shorter notice as may be designated by ImproveNet in the event that ImproveNet believes in good faith that further display of the Advertisement will expose ImproveNet to liability or other adverse consequences). In the event of such a cancellation, Manufacturer will only be responsible for payment to ImproveNet of the Pro Rata Payments. Manufacturer may not resell, trade, exchange, barter, or broker to any third party any advertising space that is the subject of this Agreement.

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3. Reporting Data

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4. Limitation of Liability; Disclaimer; Indemnification

(B) ImproveNet makes no and hereby specifically disclaims any and all representations or warranties, express, implied, or statutory regarding the ImproveNet Service, the advertising services covered by the agreement, or any portion thereof, including, without limitation, any implied warranties of merchantability, noninfringement or fitness for a particular purpose, and implied warranties arising from course of dealing or course of performance. Without limiting the generality of the foregoing, ImproveNet specifically disclaims any warranty regarding (i) the number of persons who will access the Manufacturer content, see or respond to a message or advertisement, or "click through" any advertisement, (ii) any benefit Manufacturer might obtain from including the advertisement within, or sending messages through, the ImproveNet service, and (iii) the functionality, performance, or operation of the ImproveNet service with respect to the advertisement or any message. To the extent, as a matter of law, ImproveNet may not disclaim any implied or statutory warranty, the scope and duration of such warranty shall be the minimum permissible under applicable law.

(C) Manufacturer hereby agrees to indemnify, defend, and hold harmless ImproveNet and its officers, directors, agents, affiliates, distributors, franchises, and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the Advertisement or Manufacturer Content; (b) arising out of any material breach by Manufacturer of any duty, representation, or warranty under this Agreement; or (c) relating to any contaminated file, virus, worm, or Trojan horse originating from the Advertisement or Manufacturer Content. ImproveNet will notify Manufacturer of any claim, action, or demand (an "Action") for which indemnity is claimed. Manufacturer's counsel defending such Action shall be subject to ImproveNet's prior written approval. ImproveNet reserves the right to participate fully in and assume joint control of the defense of any Action. Settlement of any Action shall be subject to ImproveNet's prior written approval.

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5. Solicitation

(B) Manufacturer shall limit use of the Customer Information collected through an Information Request to the Specified Purpose. In the case of ImproveNet customers who purchase products or services from Manufacturer, Manufacturer will be entitled to incorporate such customers into Manufacturer's aggregate lists of customers, provided that Manufacturer in no way (i) discloses Customer Information in a manner that identifies ImproveNet customers as end-users of the ImproveNet Service or any other ImproveNet product or service (or in any other manner that could reasonably be expected to facilitate use of such information by or on behalf of Competitive Product), or (ii) otherwise uses such Customer Information in connection with marketing of a Competitive Product.

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6. Survival

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7. Miscellaneous

Manufacturer shall not (i) issue any press releases or public statements concerning the existence or terms of this Agreement, or (ii) use, display, or modify ImproveNet's trademarks in any manner absent ImproveNet's express prior written approval. Either party may terminate this Agreement upon thirty (30) days written notice (the "Cure Period") to the other party in the event of a material breach of this Agreement by the other party, provided that the other party may prevent such termination by curing such breach by the end of the Cure Period. Notwithstanding the foregoing, in the event of nonpayment by Manufacturer, ImproveNet reserves the right to terminate the Agreement immediately with written notice to Manufacturer.

This Agreement sets forth the entire agreement between Manufacturer and ImproveNet and supersedes any and all prior agreements of ImproveNet or Manufacturer with respect to the transactions set forth herein. No change, amendment, or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the party subject to enforcement of such amendment. Manufacturer shall not assign this Agreement, or any right, interest, or benefit under this Agreement, without the prior written consent of ImproveNet. Assumption of the Agreement by any successor to Manufacturer (including, without limitation, by way of merger or consolidation) shall be subject to ImproveNet's prior written approval.

Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and assigns. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Arizona as applied to agreements made, entered into, and performed entirely in Arizona by Arizona residents. Manufacturer hereby irrevocably consents to the exclusive jurisdiction of the courts of the State of Arizona and the federal courts situated in the State of Arizona, Maricopa County, in connection with any action arising under this Agreement.

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