TASK DEFINITION: In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
PROBLEM: Exhibit 10.9 TURN - KEY MANUFACTURING AGREEMENT This Turn - Key Manufacturing Agreement (the Agreement) is effective as of the 1.4.2011 (the Effective Date) by and between: INVASIX LTD., with a principal place of business at Tavor Building, Shaar Yokneam, POB 533, Yokneam 20692, Israel. Hereinafter referred to as Customer And FLEXTRONICS ISRAEL LTD. with a principal place of business at Industrial Zone Migdal Haemek 23108 P.O.B. 867, Israel. Hereinafter referred to as Contractor. Whereas Customer designs, manufactures and sells the Products as defined in Exhibit A attached hereto, which includes subassemblies components and know- how, that is confidential and proprietary property of Customer; Whereas Customer desires to buy manufacturing services; Whereas Contractor is in the business of Turn - Key projects; Whereas Customer acknowledges that Contractor's expertise is manufacturing and that Contractor's responsibility related to the Customer's Products is limited to this extent; Whereas Contractor declares that it has all the capabilities to supply manufacturing services for Customer's Products; and Whereas Contractor desires to sell and deliver its manufacturing services in accordance with Customer specifications all subject to the terms and conditions contained herein. Now therefore, the parties hereto have agreed and do hereby agree as follows: 1. Precedence 1.1 The terms and conditions and appendices herein shall govern all services performed by Contractor pertaining to the subject matter. 1.2 It is the intent of the parties that this Agreement and its appendices represent the entire agreement and prevail over the terms and conditions of any purchase order, acknowledgment form or order instruction. 2. Term This Agreement shall commence on the Effective Date and shall continue for an initial term of year as of the Effective Date. This Agreement shall automatically be renewed for successive one (1) year increments unless either party request in writing, at least ninety (90) days prior to the anniversary date, that this Agreement not to be renewed. 3. Scope Of Work Contractor will, pursuant to the written specifications given by Customer and pre approved by Contractor (Specifications), perform manufacturing services on behalf of Customer. These manufacturing services shall include, but not be limited to, labor, materials, testing, packaging and delivery to Customer, all subject to the terms and conditions contained in this Agreement.

Source: INMODE LTD., F-1/A, 7/29/2019

4. Contractor's Obligations 4.1 Contractor shall provide Customer with the following services: - Material planning - Material procurement - Incoming Inspection - Assembly of printed circuit boards & cables - Final assembly & integration of the Product - In Circuit test - Functional test - Packaging and delivery 4.2 Customer's production facilities Contractor will be obliged to allocate to Customer, production and storage space as well as trained production and testing personnel as an integral part of this Agreement. Contractor shall apply for and receive the ISO13488 standard for the production facility, by no later than . During the term of this Agreement, the manufacturing services provided by the Contractor hereto shall confirm in all material respects with the ISOl3488 standard. 5. Customer's obligations Customer will provide the following: - Technical specifications - Standard Operation Procedures - Drawings - Bill of Materials - Approved Vendors list - Gerber data, CAD files - Quality requirements - Technical support, as required - Any additional information reasonably requested by Contractor or otherwise required hereunder. 6. Material Procurement The material procurement undertaking, pursuant to this Agreement, will be carried-out by the Contractor. 6.1 Contractor is authorized to purchase materials using standard purchasing practices including, but not limited to acquisition of materials recognizing Economic Order Quantity, ABC buy policy and long lead time components management, in order to meet the requirements of Customer's orders and forecasts.

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Source: INMODE LTD., F-1/A, 7/29/2019

6.2 Economic Order Quantity (EOQ) for items which are un-returnable to vendor or unusable for other clients of the Contractor must be pre- approved by Customer. For such pre-approved EOQ's, Customer shall advance to the Contractor sums on account of future deliveries equal to the cost attributed to the quantity ordered exceeding the 3 months forecast. 6.3 Long Lead Items In order to manage demand fluctuations Contractor shall suggest from time to time a list of LLI's to be approved by the Customer. Contractor shall maintain in inventory certain quantities of LLI. LLI shall mean Long Lead Item materials required in order to complete manufacture and supply of Products. For the avoidance of doubt Customer shall have no additional liability with respect to the holding of LLI other than the liability provided herein below. The usage of LLI by Contractor for the manufacture of Items shall be by a written order by Customer in accordance with this Agreement, stipulating the quantity Customer wishes Contractor to use. If Contractor holds LLIs based on any written requirement for more than three (3) months, Customer shall be required to purchase such LLIs at their direct costs plus a handling fee of 2% of Product price. The purchase terms of such LLI's, set forth in Section 8.2 hereof. 6.4 Contractor is responsible for monitoring supplier's quality, according to the Specifications provided by Customer for all purchased materials. 6.5 In the event of termination of this Agreement or a cancellation of a Purchase Order, and/or discontinuance of a Product, or excess materials created by an Engineering Change, Customer agrees to compensate Contractor for unused material inventory which are affected by such termination, cancellation or discontinuance, as follows: (i) The cost of material inventory, whether in raw form or work in process, which are not returnable to the vendor without charge (unless the charge was approved by Customer, or usable for other Contractor's customers, including EOQ of unique parts. (ii) The cost of materials on order which cannot be cancelled without charge (unless the charge was approved by Customer. (iii) To the above applicable compensation, the Contractor shall be entitled to a handling fee of 2% of the compensation due. The compensation under this Sub-section shall be the sole compensation due to Contractor with respect to handling the Products/materials. (v) Payment shall be made to Contractor against delivery of the compensated materials to Customer. The compensation for finished Products is as set out in Section 7.3 below. 6.6 Contractor shall use its commercially reasonable efforts to cancel all applicable materials purchase orders and reduce materials inventory through return for credit programs or allocate materials for alternate programs, if applicable. Without derogating from the aforesaid, Customer shall pay in advance the same amount it is obligated to pay under this Section 6, on account of such inventory. Such advance shall be non refundable except to the extent such inventory was consumed by Contractor in order to manufacturing Customer's Products under this Agreement.

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Source: INMODE LTD., F-1/A, 7/29/2019

7. Forecasts and Purchase Orders 7.1 Customer shall issue to Contractor, on a monthly basis, a six (6) month rolling forecast setting forth projected demand for the Products (the Forecast). Contractor shall use all reasonable commercial efforts, including expediting materials and allocating capacity, in order to support Customer's request for increased production. 7.2 Contractor will supply all orders that do not exceed the forecast at the delivery times set forth in each Purchase Order. In the event Contractor anticipates at any time that it will not deliver Products within the prescribed timetable as set forth in the applicable Purchase Order, Contractor shall promptly so inform Customer by written notice of such delay. Contractor shall submit proposed revisions to the timetable that reflect Contractor's best estimates of what can realistically be achieved and shall use its best commercial efforts to achieve such timeline, unless otherwise directed by Customer and confirmed by Contractor. 7.3 Purchase Orders. Customer will issue written purchase orders, which specify all Products to be delivered within a minimum three (3) months period commencing on the date of acceptance of the purchase order by Contractor (Purchase Order). Contractor shall accept or reject (in writing summarizing the rejection causes) each Purchase Order according to its terms (including the delivery date) within five (5) working days of receipt of such order, if an order has not been confirmed within such period it shall be deemed rejected. 7.4 Finished Goods Inventory 7.4.1 In order to manage demand fluctuations, Contractor shall maintain an amount of additional units of each Product as FGI, in a minimum level of two (2) weeks of supply and a maximum of four (4) weeks of supply of each Product set forth in the most recent Customer's Forecast. FGI shall mean rolling finished goods inventory that Contractor shall be obligated to hold in inventory for Customer in addition to any Purchase Order amounts. The actual quantity of FGI required to be held by Contractor will be specified on a monthly basis in a formal document provided by Customer to Contractor for this purpose. For the avoidance of doubt Customer shall have no additional liability with respect to the holding of FGI other than the liability provided in Section 7.4.3 below. 7.4.2 When Customer draws from the FGI, Contractor shall replenish the FGI no later than sixty (60) days from such date that Customer draws from FGI, provided the drawing of FGI shall be by the issuance of a written order by Customer in accordance with this Agreement, stipulating the quantity Customer wishes to withdraw from the FGI. 7.4.3 If Contractor holds any FGI based on any forecast for more than three (3) months from the original delivery date specified in the applicable purchase order, Customer shall be required to purchase any and all such goods from Contractor for 100% of Contract Price of such goods and Section 8.3 below shall not apply.

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Source: INMODE LTD., F-1/A, 7/29/2019

7.5 Customer tooling, etc. All Customers' materials, tooling and equipment furnished to Contractor or paid for by Customer in connection with this Agreement and all paid for Products shall be clearly marked and remain the Customer's property. Contractor will maintain the tooling as provided in Exhibit B. 8. Customer Liability for Forecasts 8.1 Customer's liability with respect to any and all demand signals provided by Customer, including but not limited to purchase orders, forecasts, schedules, pick lists, with respect to any Products manufactured, produced, procured, stored or delivered by Contractor, including, but not limited to, any direct or indirect costs related thereto or related to components, work in progress and/or raw materials shall be limited to the amounts set forth in this Section 8 with respect to finished Products and in Section 6 concerning components, work in progress and/or raw materials. 8.2 In the event that Customer has either cancelled or delayed delivery of a Purchase Order and Customer has not taken delivery of the Products ordered under that Purchase Order within three (3) months from the original delivery date, then; (i) Contractor shall submit a claim for reimbursement for such cancelled or delayed Products within thirty (30) days from the end of such three (3) month period; (ii) Customer shall be liable to pay Contractor 100% of the Contract Price of such cancelled or delayed Products and (iii) Contractor shall hold the cancelled or delayed Products in its inventory and make them available to Customer (upon Customer's request) for a period of six (6) months from receipt of payment for such Products free of charge. 30 days before the lapse of the 6 month period, the Contractor shall notify the Customer of the upcoming lapse of the term. In the event that Customer, at its sole discretion, decides to repurchase any (or all) of the Products in said Period, and subject to the fulfillment of all Customer's obligations in this Sections 8.2 (i.e. 100% of the Contract Price has been paid to Contractor), then the price for such repurchase shall be 0% of the Contract Price. Thereafter, the Customer shall pay Contractor all direct costs in connection therewith. Provided Customer hereby authorizes Contractor to transfer such Products to a warehouse operated by Contractor or a third party as instructed by Customer. 8.3 In the event that for any reason whatsoever, Customer has not ordered any Products for a period of three (3) months, then: (i) Contractor shall submit a claim for reimbursement for Products that were forecasted for the upcoming three months in the last Forecast sent three (3) months ago (the Last Forecast); (ii) Customer shall be liable to pay Contractor: 100% of the Contract Price of the Product s forecasted for days 0-30 in the Last Forecast which were not delivered to Customer; and (iii) Contractor shall hold the Forecasted Products in its inventory and make them available to Customer (upon Customer's request) for a period of six (6) months of receipt of payment for such Products free of charge. 30 days before the lapse of the 6 month period, the Contractor shall notify the Customer of the upcoming lapse of the term. In the event that Customer at its sole discretion decides to repurchase any (or all) of the Forecasted Products in said Period and subject to the fulfillment of all Customer's obligations in this Section 8.3 (i.e. 100% of the Contract Price has been paid to Contractor), then the price for such repurchase shall be 0% of the Contract Price. Thereafter, the Customer shall pay Contractor all direct costs in connection therewith. Provided Customer hereby authorizes Contractor to transfer such Products to a warehouse operated by Contractor or a third party as instructed by Customer.

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Source: INMODE LTD., F-1/A, 7/29/2019

9. Quality 9.1 Contractor shall permit Customer to audit its quality procedures, upon three (3) business day advance written notice to Contractor and shall provide all assistance which is reasonably necessary for Customer to evaluate the quality of the Products. 9.2 Contractor shall maintain quality assurance standards in accordance with ISO 13488, Seller's Quality Assurance, Control and Inspection shall be in compliance with all material ISO 13488 standards during the Terms of this Agreement. 9.3 If a Product did not pass Customer's Automatic Test Process then Contractor will perform two rounds of repairs on the Product, if after such two rounds the Product still did not pass the ATP then Contractor will send the Product with a qualified personnel to Customer for repair. If after Customer tried to repair the Product and failed Customer will be obligated to pay for such defected product (if the reason is other than workmanship). 10. Express Limited Warranty For the purpose of this Agreement, Warranty Period shall mean twelve (12) months as of the date of delivery to Customer. Contractor represents and warrants that, for the Warranty Period, the Products (i) will be free from defects in workmanship, material (only to the same extent as the original manufacturer of the material warrants the Contractor), and manufacture; (ii) will comply the Specifications IPC610.B standard (in all material respects and unless otherwise was instructed by Customer). Contractor further represents and warrants that the Product will consist of new materials. The warranty provided in this Section shall not apply to (1) Customer's materials, tooling and equipment (2) Products modified by Customer or any third party without Contractor's prior written consent, (2) Products installed or operated by Customer or any third party in a manner inconsistent with the Specifications or the terms and conditions of this Agreement, or (3) Products damaged, abused, altered or misused by Customer or any third party, or as the result of fire, casualty, or other external cause (4) defects resulting directly or indirectly, wholly or partially, from Customer's Specifications or the design of the Products, (5) First articles, prototypes, pre-production units, test units or other similar Products. Upon any failure of a Product to comply with the above warranty, Contractor's sole obligation, and Customer's sole remedy, is for Contractor, at its option, to promptly repair or replace such Product and return it to Customer freight prepaid. Customer shall return Products covered by the warranty freight prepaid after completing a failure report and obtaining a return material authorization number from Contractor to be displayed on the shipping container. Customer shall bear all risks, costs and expenses, associated with Products that have been returned to Contractor for which there is no defect found and/or with Products not covered under the warranty above.

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Source: INMODE LTD., F-1/A, 7/29/2019

Customer will not pass through to end users or other third parties the warranties made by Contractor under this Agreement. Furthermore, Customer will not make any representations to end users or other third parties on behalf of Contractor, and Customer will expressly indicate that the end users and third parties must look solely to Customer in connection with any problems, warranty claim or other matters concerning the Product. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, CONTRACTOR MAKES NO OTHER WARRANTIES OR CONDITIONS ON THE PRODUCTS, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH CUSTOMER, AND CONTRACTOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11. Engineering Changes 11.1 Customer may, upon advance written notice to Contractor, submit engineering changes for incorporation into the Products. Contractor will review the engineering change and report to Customer within two (2) working days of any implications of the proposed changes. The report should include all possible implications on materials, delivery schedule, manufacturing process, quality and product cost and shall also quote the Contractors costs for implementing the changes. Customer and Contractor will agree on all aspects of implications and shall accordingly make revisions in outstanding Purchase Orders - if requested by Customer and subject to Contractor's consent in writing. 11.2 Contractor shall assure quick implementation of engineering changes. 12. Delivery and Inspection, Title and shipping 12.1 Contractor undertakes to report to Customer once (1) a week, or per Customer request, the quantity of Products ready for delivery 12.2 Customer will notify Contractor, from time to time, quantities of Products and destinations to which to ship the Products. 12.3 If the delivery destination is within Israel, excluding port/airport (Limited Delivery Territory) than the delivery shall be made by Contractor at no additional cost and to such destination of delivery Contractor shall incur insurance transport costs. Upon delivery or the placement of an invoice by Contractor, whichever is earlier, Risk of loss and title will pass to Customer. 12.4 The price for Deliveries to other destinations outside the Limited Delivery Territory, including for export will be agreed by the parties. All risk of loss, responsibility and cost shall be borne by the Customer Ex-Factory. 12.5 To each delivery, Contractor shall include all required documentation (e.g. bill of lading, QA/QC certificate). Upon delivery to Customer, Customer will sign the bill of lading. Such signature shall only be deemed as acknowledgement of receipt of the delivery and not confirmation as to the delivered Products' condition and quality.

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Source: INMODE LTD., F-1/A, 7/29/2019

12.6 Subject to the above limitations, the Contractor will ship and deliver the Products according to Customer's instructions in the best and safest means of transportation, to the extent commercially reasonable. 13. Price and Price Reviews 13.1 Pricing conditions for manufacturing services supplied under this Agreement are defined in Appendix C. All prices will be quoted in US Dollars. 13.2 Price Review. Contractor and Customer will meet every three (3) months, during the term of this Agreement to review pricing and determine the actions required by both sides in order to achieve cost reduction. The new prices that will be agreed to and the said new prices will come into effect, will be reflected in the Purchase Orders submitted after such review. 13.3 It is agreed that, for the sake of facilitating uninterrupted manufacturing, Contractor may purchase materials for Customer's Products at prices higher than those agreed to with the following limitations: 13.3.1 For price change which has a cost impact less than US $200, based on one (1) quarter consumption will not require prior authorization from Customer. Contractor will be obliged to submit comprehensive written report to Customer, subsequent to such event. 13.3.2 For price change which has cost impact greater than US $200, based on one (1) quarter consumption will require prior written authorization from Customer. 13.3.3 Customer shall answer urgent requests for approvals for price change, within three (3) working days. 13.3.4 Maintain Credit Line. Customer agrees to provide all necessary financial information required by Contractor from time to time and as available to Customer in order to make a proper assessment of the creditworthiness of Customer. That includes full annually audited financials statements and, subjected the credit limit analysis request, Quarterly financial statements (P&L, BS and Cash Flow statements). Contractor will, in good faith, review Customer's creditworthiness periodically and may provide more favorable terms once it feels it is prudent to do so. 13.3.5 Upon Contractor's request at any time during the term of this Agreement, Customer shall obtain and maintain appropriate securities, such as letter of credit, escrow account, bank guarantees and /or pre-payments in an amount equal to the total value of all risks associated with the performance of any of the services under this Agreement, on an aggregate basis. 14. Terms of Payments 14.1 Contractor will invoice Customer per each delivery or as provided in Sections 6 and 8 hereinabove. The invoice shall include all purchase order details. The invoice will be quoted in US Dollars. 14.2 Contractor and Customer agree to terms of payments of current plus thirty (30) days from the date of invoice. Payment shall be affected in US Dollars.

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Source: INMODE LTD., F-1/A, 7/29/2019

15. Termination 15.1 Termination for cause If either party fails to meet anyone or more of the terms and conditions as stated in either this Agreement or the Appendices, Contractor and Customer agree to negotiate in good faith to resolve such default. If the defaulting party fails to cure such default or submit an acceptable written plan to resolve such default within thirty (30) days following notice of default, the non-defaulting party shall have the right to terminate this Agreement by furnishing the defaulting party with sixty (60) days written notice of termination. 15.2 Termination without cause Notwithstanding anything to the contrary stated in this Agreement, either party may terminate this Agreement at any time without cause by giving to the other party, not less than four (4) months written notice. 15.3 A Party may immediately terminate this Agreement should the other party: (i) become insolvent; (ii) enter into or filing a petition, arraignment or proceeding seeking an order for relief under the bankruptcy/insolvency laws of its respective jurisdiction; (iii) enter into a receivership of any of its assets; or (iv) enter into a dissolution of liquidation of its assets or an assignment for the benefit of its creditors. 16. Effect of Termination 16.1 in the case of termination, unless otherwise stipulated and subject to Customer fulfillments of all its payments obligations under this Agreement, Contractor will deliver all Products, materials to Customer and Customer will pay all amounts due under this Agreement, for all Products, materials mentioned on a Purchase Order or Change Order accepted by Contractor before expiration or termination date. 16.2 Except where the termination is a result of Contractor's material default Customer agrees to compensate Contractor for Products and materials as stipulated in Sections 6 and 8 of this Agreement. 16.3 Each party will promptly return to the other party, all. technical documentation (e.g. drawings, work instructions, data and design sheets) and/or Confidential Documents related to the present Agreement 16.4 Subject to Customer fulfillments of all its obligations under this Agreement, Contractor will return to customer all consigned materials, equipment and tooling stipulated in section 7.5 of this Agreement. 17. Dispute Resolutions 17.1 In the spirit of continued cooperation, the parties intend to and hereby establish the following dispute resolution procedure to be utilized in the unlikely event any controversy should arise out of or concerning the performance of this Agreement. 17.2 It is the intent of the parties that any dispute be resolved informally and promptly through good faith negotiations between Contractor and Customer. Either party may initiate negotiation proceedings by written notice to the other party setting forth the particulars of the dispute. The parties agree to meet in good faith to jointly define the scope and method to remedy the dispute. If these proceedings are not productive of a resolution, then senior management of Contractor and Customer are authorized to and will meet personally to confer in a bona fide attempt to resolve the matter.

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Source: INMODE LTD., F-1/A, 7/29/2019

17.3 Should the foregoing procedure not bring a mutually satisfactory solution within 30 days, each party will be free to proceed according to applicable law. 18. Limitation of Liability 18.1 Customer shall defend, indemnify and hold harmless Contractor from all claims, liabilities, costs, damages, judgments and attorney's fees resulting from or arising out of any alleged and/or actual infringement or other violation of any patents, patent rights, trademarks, trademark rights, trade names, trade name rights, copyrights, trade secrets, proprietary rights and processes or other such rights elated to the Product or claims relating to Customer's instructions, tooling, specifications and designs (Claims) provided that: (i) Contractor will provide the Customer with prompt written notice of any Claim no later than three (3) business days following receipt of notice by Contractor; (ii) Contractor will grant Customer sole control of the defense and settlement of Claims, taking into account any reasonable request of Contractor; and (iii) Contractor will provide Customer with reasonable assistance, at Customer's sole expense. Customer assumes no liability for any Claims made by any third party to the extent that such Claims result from the use of specifications other than the Specification, unaltered by Contractor or anyone on its behalf. If such Claim is brought, or Customer in good faith determines a Claim is likely to be made, Customer shall notify Contractor and either: (1) procure for Contractor the right to continue to perform this Agreement; (2) modify the Specification so that there will no longer be an infringement or misappropriation or (3) terminate this Agreement and pay Contractor the consideration due under this Agreement for all services performed until the date of termination, including all payments set forth in Sections 6 and 8. 18.2 Contractor shall defend, indemnify and hold harmless Customer from all claims, liabilities, costs, damages, judgments and attorney's fees resulting from or arising out of any alleged and/or actual infringement or other violation of any patents, patent rights, trademarks, trademark rights, trade names, trade name rights, copyrights, trade secrets, proprietary rights and processes or other such rights as a result of the manufacturing methods employed by Contractor but excluding Claims as defined above) (Manufacturing Claims) provided that: (i) Customer will provide Contractor with prompt written notice of any Manufacturing Claim no later than three (3) business days following receipt of notice by Customer; (ii) Customer will grant Contractor sole control of the defense and settlement of Manufacturing Claims, taking into account any reasonable request of Customer; and (iii) Customer will provide Contractor with reasonable assistance, at Contractor sole expense. If a Manufacturing Claim is brought, or Contractor in good faith determines a Manufacturing Claim is likely to be made, Contractor shall notify Customer and either: (1) procure for Customer the right to continue to perform this Agreement; (2) modify its manufacturing methods so that there will no longer be an infringement or misappropriation or (3) terminate this Agreement.

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Source: INMODE LTD., F-1/A, 7/29/2019

18.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES TO EACH OTHER CONCERNING INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS. 18.4 No Other Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. IN ADDITION, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR OTHERWISE, THE PARTIES ACKNOWLEDGE THAT AS AN ELECTRONIC MANUFACTURING SERVICES PROVIDER WORKING ON A COST PLUS BASIS SUPPLIER MUST LIMIT ITS LIABILITY IN CONNECTION HEREWITH AND THEREFORE, CONTRACTOR'S LIABILITY IS FURTHER LIMITED IN ANY EVENT, UNDER ANY LAW, RULE OR REGULATION, TO ANY AMOUNT IT ACTUALLY RECEIVED IN CONSIDERATION OF THE MANUFACTURING SUBJECT MATTER OF THE RESPECTIVE CLAIM OR DEMAND BY CUSTOMER OR ANY THIRD PARTY. 19. Confidentiality Customer's product and designs contain certain elements that are proprietary to Customer. Furthermore, in the course of this agreement, technical and commercial information of the Customer may be revealed or become known to the Contractor. Contractor shall keep in confidence all information relating to the foregoing, shall not use any part of it for any purpose except the performance of this Agreement or in connection therewith, and shall not enable any third party to use ft without the prior written consent of Customer or unless such information becomes public domain. Contractor shall ensure that all employees who directly participate in any of the services performed under this Agreement and may accordingly receive certain confidential information of the Customer are subject to similar non-disclosure and non-use undertakings and are made aware of the proprietary and confidential nature of the information. The provisions of this Section 19 shall survive termination or expiration of the Agreement. 20. Non-Competition 20.1 The Contractor and the Customer will not be allowed to employ employees of the other party, directly or indirectly, for one (1) year from the date the employee has ceased to be employed by the other party. The above mentioned restriction may be waived by either party provided that it is done by a written and specific consent.

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Source: INMODE LTD., F-1/A, 7/29/2019

20.2 During the Term, of this Agreement and for an additional period of two (2) years from the date of termination of this Agreement, the Contractor undertakes not to develop on its own account any Product. 21. General 21.1 Force Majeur. Neither party shall be liable for any failure or delay in its performance under this Agreement due to acts of God, acts of civil or military authority, fires, floods, earthquakes, riots, wars, sabotage, labor disputes, material unavailability due to unwarranted production stoppage by supplier or any other cause beyond the reasonable control of the delayed party provided that the delayed party, (i) gives the other party written notice of such cause, and (ii) uses its reasonable efforts to remedy such delay in its performance. 22.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be deemed null and void, and the remainder of the Agreement shall continue to be in full force and effect, while the parties shall negotiate in good faith to replace the provision with another enforceable one reflecting as closely as possible the parties initial intention. 22.3 Relationship of the Parties. Each of the parties shall at all times during the term of this Agreement act as, and shall represent itself to be, an independent contractor. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other parry whether express or implied, or to bind the other party in a respect whatsoever. 22.4 Governing Law. The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the law of the State of Israel, without giving effect to choice of law rules, and both Parties consent to jurisdiction by the courts of the City of Haifa. 22.5 Choice of Language. The original of this Agreement has been written in English. Any notices provided by any party as required by this Agreement shall be written in the English language. 22.6 Notifications. Any and all notices and other communications whatsoever under this Agreement shall be in writing, sent by registered mail or by, email or facsimile to the address set forth above. Notices sent via registered mail shall be deemed to have been delivered within 3 business days after the date posted. With regards to the normal course of business, notices sent via email or facsimile shall be deemed to have been received 1 business day following the date of transmission. 22.7 Entire Agreement. No amendment of this Agreement will be valid unless made in writing signed by a duly authorized representative of both parties. No provision of this Agreement will be deemed waived and breach or default excused unless the waiver or excuse is in writing and signed by the party issuing it. The terms and conditions contained in this Agreement terminate and supersede all prior oral or written understanding between the parties and shall constitute the entire agreement between them concerning the subject matter of this Agreement. 22.8 This Agreement may be executed in one or more counterparts, each of which will be deemed the original, but all of which will constitute but one and the same document.

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Source: INMODE LTD., F-1/A, 7/29/2019

The parties agree that this Agreement and its appendices may not be modified except in writing, signed by both parties. 22.9 Set-off. Amounts due hereunder may not be set off except with mutual prior written consent. 22.10 Insurance. Customer specifically agrees to maintain insurance coverage for any finished Products or materials which passes to Customer pursuant to this Agreement and which is stored on the premises of Contractor. 22.11 Successors, Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors, permitted assigns and legal representatives. Neither Party shall have the right to assign or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of the other Party, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Contractor shall be entitled to assign its rights to be paid hereunder to banks or first tier financial institutions. In Witness whereof, the Parties have caused this Agreement to be duly executed for and on behalf of: Flextronics (Israel) Ltd. INVASIX LTD 514073618 Contractor Customer Date: Date: Name: Name: MOSHE MIZRAHY Title: Title: CEO

Signature: Signature: /s/ Moshe Mizrahy

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Source: INMODE LTD., F-1/A, 7/29/2019

Exhibit A Product's Description Customer Flow Meter Assy PS Shelf Assy Pump Assy Heat Exchanger Assy Pump with Pneomatics Assy Controller to Speaker Harness DLP Controller Card Assy Distribution Card Assy Laser Driver Assy Folding Wheels Arms Assy DLP Controller Card + Compulab RF Connector Assy Touch Screen Assy Touch Panel Adaptor Assy EMERSON Kit Assy HP Fractora Firm Harness Harness for Dermablation Univer.HP Termistor PCB Card A InMode RF HPS Set InMode Laser Driver Card Assem Display Assy InMode IPL Card Reworked FootSwitch Preliminary Pack.Assy. Fractora Kit Pack. Fractora Plus Applicator Fractora Firm-Forma Firm-Forma Fractora 5pcs Box Set 24 Coat Fractora 5pcs box set 126 pin RF Card Assy 75W 2Temp Sensors LCD Adaptor Card AC Filter Card Assy

Source: INMODE LTD., F-1/A, 7/29/2019

Fractora 5 Tips 60 Pin Pack. BodyTite II Controller Card As Fan Rework Assy Fractora 5 Tips 20 Pin Pack. Fractora Cabinet Front Cover A BodyTite II Cabinet Front Cov BodyTite - Shell Sample Fractora 5pcs Box Set 24 Pin DermAblate Electrode Connectio Body Tite Fractora-BodyFX Blue BodyTite RFAL Grey Platform BodyTite II Controller Card As T6 HP LED Card BodyTite System Packging Assy InMode System 2 Platform Only 24V PSU Card Assy. Gear Pump Assy. Heat Exchanger Assy Flow Meter Assy BodyTite II Top Assy InModeRF Color 1 Votiva InModeRF Color 2 BodyTite InModeRF Color 3 Contura BodyTite Color3 FRACTORA InMode System 2 Color1 Optimas InModeRF Color 5 BodyTite PRO InMode System 2 Color 2 Triton Fract.InitialTipsKit

Source: INMODE LTD., F-1/A, 7/29/2019

Exhibit B Description HP HI-POT tester Blue wave-50(UV) RF tester Leakage current TOS3200 EARTH Continuity tester TOS6210 Tester controler.Programmer memory plag. Power Suply (For Leptop) Komputer (LEPTOP-DELL) Display MAG tos5052(Hi-POT) Load RF Load Burn-in Test Barcode reader(Argox) TITE FX Testing Adaptor Fractora-electrical test(five tips) Jig for clening FRACTORA TIPS Thermistor tester(FRACTORA FIRM,FRACTORA PLUS) Thermistor mounting Tool(FRACTORA FIRM) Tite FX Programmer Tite FX TESTER Hi-POT CLIP Thermistor mounting Tool(FRACTORA PLUS) Fen HL2010E.(Digital display). Lecroy wave ACE232 LCRY2101c02774(SCOPE) TEK P5000100(PROB_) PP016 ADAPTOR Cable Lable Applicatot J I G -In Mode(water system check) Jig screen assy Jig-Laser DUMMY Heat Exchanger washing Jig Diolaze-Testor CASE LAZER FootSwith Simulator TORC-GEDORE In Mode TESTER Laboratory DC POWER SUPPLY Model: LE3303 Tray For 3 Pcs Laser Printing BURNING() Tool for assembly of Cradle Stem Screw BODY TITE (AS601206A) BODY TITE (AS601206A) BODY TITE (AG600007A) InMode Main Connector Pin-Checker JIG InMode2 Pump Burn-in JIG Screen LOGO Placement Jig Side Label Placement Jig Front Label Placement Jig

Source: INMODE LTD., F-1/A, 7/29/2019
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

SOLUTION: Customer specifically agrees to maintain insurance coverage for any finished Products or materials which passes to Customer pursuant to this Agreement and which is stored on the premises of Contractor.

PROBLEM: JOINT DEVELOPMENT AND MARKETING AGREEMENT

BETWEEN

LECLANCHE SA

AND

OAK RIDGE ENERGY TECHNOLOGIES, INC.

1

1. 1.1.

1.2.

1.3.

This AGREEMENT is made on April 6, 2014, (Effective Date between:

LECLANCHE S.A., being a company organized and existing under the laws of Switzerland, having its registered office at Avenue des Sports 42, 1400 Yverdon-les-Bains, Switzerland (Leclanche), and

OAK RIDGE ENERGY TECHNOLOGIES INC, being a company organized and existing under the laws of United States of America, having its registered office at 751 North Drive, Suite 9, Melbourne, FL 32934, United States (Oak Ridge),

each a Party and together Parties.

WHEREAS Oak Ridge focuses on the licensing, further development, manufacturing and marketing of products incorporating thin film battery technologies.

WHEREAS Leclanche has developed and markets lithium-ion titanate cells using a proprietary technology and process and also designs and develops customized battery systems for OEM and other customers;

WHEREAS Leclanche is interested in marketing its products and services in the United States;

WHEREAS Oak Ridge is keen to develop its business and has the capability to market and support Leclanche market entry into the United States and is committed to allocate specific resources to provide such services;

WHEREAS both Parties wish to collaborate together to better evaluate the opportunities in the United States, assess how best to address these and generally support each other's business efforts in furtherance of supporting their respective customers based in North America;

NOW THEREFORE it is agreed as follows:

Definitions The term Affiliate as used herein with respect to a party means any partnership, joint venture, corporation of other form of enterprise that directly or indirectly controls, is controlled by or is under common control with such entity or person. For purposes hereof, control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.

The term Subsidiary as used herein with respect to a party means any partnership, joint venture, corporation of other form of enterprise that is directly or indirectly controlled by such entity or person. For purposes hereof, control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.

2

Confidential Information means all information in relation to this Agreement in

1.3.

a)

b)

2. 2.1.

a)

b)

c)

d) e) f)

g)

Confidential Information means all information in relation to this Agreement in whatever form that is disclosed by the Parties to each other and shall include without limitation information disclosed orally or in writing or in any other form, tangible or intangible, and whether furnished prior to, on or after the date of this Agreement, that is described as or provided under circumstances that would reasonably indicate that it is confidential, proprietary or a trade secret, including, but not limited to, information relating to Leclanche's technology, intellectual property, financial or business plans, affairs, methodologies, financial statements or projections, internal management tools and systems, products and product development plans, released or unreleased hardware or software products, sales and marketing plans and materials, clients, contacts and contracts, all files, books, records, documents, specifications, schematics, employee suggestions, papers, drawings, models, sketches of any kind or description, including electronic data recorded or retrieved by any means now in existence or at any time hereinafter developed. Confidential Information shall also include documents transferred to Oak Ridge that are prepared by or on behalf of Leclanche incorporating Confidential Information received from a third party, which is itself required to be treated as confidential. Confidential Information shall not include information or data which was or becomes:

generally available to the public, other than as a result of a breach of this undertaking;

available to the recipient Party on a non confidential basis from a source other than the disclosing Party or its advisers, provided that such source is not, insofar as the recipient Party is aware, bound by any obligations of confidentiality in respect of such information or data;

Market Evaluation - Phase 1 The Parties shall work together to better evaluate the market opportunities in the United States. A joint team shall be constituted, chaired by Anil Srivastava, a Board member of Oak Ridge, to undertake this study which shall be completed by May 31, 2014. The objectives of the study will be to:

build a picture of the key market participants, in particular key customer groups, solution integrators, BMS providers, EPC contractors etc., identify what alliances could /should be formed to enhance the joint offering; identify target business applications where the Leclanche technology could be deployed; gather market information on pricing points and value add opportunities; build economic business cases for key business applications; identify what certification processes need to be undertaken before products and services can be marketed in the United States, what the timelines are and what the estimated costs might be;

3

segregate opportunities by product groups (cells, home systems, industrial

g)

h)

i)

j)

2.2.

2.3.

3. 3.1.

4. 4.1.

4.2.

5. 5.1.

5.2.

5.3.

5.4.

5.5.

5.6.

segregate opportunities by product groups (cells, home systems, industrial systems, project related applications, e.g. frequency regulation); the structure that would be required to address the market in an effective manner; what element of the product assembly could be undertaken by Oak Ridge at its facility in Melbourne; how the trading relationship between the Parties should be structured i.e. whether Oak Ridge will be an agent or reseller and how this will be remunerated.

The output from Phase 1 shall be a market entry plan, that shall be presented to the management of both Parties. The Parties shall decide on further steps based on the marked entry plan.

Regular update calls will be organized by Oak Ridge and meetings shall be held in Melbourne, Florida.

Costs The costs of Mr Srivastava shall be borne by Oak Ridge. Otherwise each Party bears its own costs for Phase 1

Leclanche's Products and Services The Products offered by Leclanche are set out in Annex I. Pricing will be determined after Phase 1 is completed.

The Services offered by Leclanche include the customized design and development of battery systems to meet specific customer requirements. These Services are typically provided by Leclanche's Portable Business Unit. Examples of such Services are set out in Annex II. Oak Ridge Responsibilities Oak Ridge shall be responsible for developing the sales and marketing for the Products and Services;

Oak Ridge shall dedicate sales and marketing personnel to develop the market;

Oak Ridge shall identify commercial opportunities and work with Leclanche to qualify these opportunities and prepare bids and quotations as necessary;

Oak Ridge shall participate at fairs and events and generally undertake all promotional activities that are required in order to promote the product; Oak Ridge shall maintain a regular watch on market developments and shall share this with Leclanche on a regular basis;

Oak Ridge shall maintain a first level technical support capability to

4

5.7.

6. 6.1.

6.2.

6.3.

6.4.

6.5.

6.6.

7. 7.1.

7.2.

7.3.

8. 8.1.

8.2.

9. 9.1.

address customer requirements and deal with any field issues expeditiously;

Oak Ridge shall arrange product liability and warranty insurance.

Leclanche Responsibilities Leclanche shall supply the Products and Services;

Leclanche shall provide training and documentation;

Leclanche shall work with Oak Ridge to examine what elements of the Products and Services can be supplied locally by Oak Ridge (e.g. assembly of pre- designed modules);

Leclanche shall generally support the commercial efforts of Oak Ridge in furtherance of the promotion and sales of the Products and Services;

Leclanche shall define the warranty conditions for the Products and Services and work with Oak Ridge to provide the information necessary to secure product liability and warranty insurance cover.

Leclanche shall assist Oak Ridge in preparing and submitting commercial bids.

Exclusivity Where Oak Ridge has identified a specific market opportunity which has been qualified together with Leclanche pursuant to 5.3 above, the Parties shall undertake to work exclusively with each other on such opportunities;

Otherwise there is no exclusivity expressed or implied by either Party.

The Parties shall nonetheless share information as is reasonably necessary to ensure that there is no confusion in the market how customer requirements are addressed. If conflicts were to arise, the Parties shall use their reasonable efforts to resolve any such conflicts in a manner that benefits the end customer.

Pricing Pricing for standard Products shall be defined after Phase 1 has been completed. Pricing for more complex projects shall be determined on a case by case basis.

Pricing for Services shall be quoted on a case by case basis depending on the customer specification.

Payment Terms In certain cases, Leclanche may request progress payments, including some element paid at the time of order. In the absence of a specific payment schedule, all payment terms are 30 days net from date of invoice.

5

10. 10.1.

11. 11.1.

12. 12.1.

13. 13.1.

14. 14.1.

Intellectual Property Each party's intellectual property (IP) in existence as of the Effective Date shall remain such Party's property. Where appropriate and to the extent required, each party undertakes to grant a royalty free license to the other Party solely for the design and development of product(s) under this Agreement. There is no intended or implied transfer of either Party's Intellectual Property to the other.

Confidentiality The Parties shall keep strictly secret and confidential any and all confidential information relating to each other's business and/or to the contents of this Agreement and shall not, in any manner whatsoever, disclose or permit any of its agents, representatives, employees, attorneys, accountants or advisors to disclose any confidential information to any person or entity whatsoever without the prior written consent of the other Party. The Parties shall take all necessary steps to safeguard the secrecy and confidentiality of all confidential information and all materials and to ensure that such confidential information and material obtained in connection with this Agreement is disclosed only to authorized persons who need to know such information for the purpose of performing their duties on behalf of the company.

Non Solicitation The Parties are independent companies, and neither of them or anyone employed by them shall be deemed to be the employee, agent or legal agent of the other. Both Parties agree that during the Term of this Agreement and for a period of two (2) years following the termination, both Parties will not (i) solicit, encourage, or take any other action, which is intended, directly or indirectly, to induce any employee to terminate his or her employment with a Party; or (ii) interfere in any manner with the contractual or employment relationship between the Parties and any their employees.

Assignment Neither Party may assign, delegate, or transfer this Agreement or any of its rights or duties hereunder, without the prior written consent of the other Party. Any attempted assignment or delegation in violation of this section shall be void. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.

Force Majeure It is agreed that neither Party shall be liable for any delay or failure to perform its obligations hereunder in whole or in part when such delay or non- performance results from causes beyond such Party's control, including, but not limited to, fires, strikes, insurrections, riots, embargoes, shortages of motor vehicles, delays in transportation, inability to obtain

6

14.2.

15. 15.1.

16. 16.1.

17. 17.1.

18. 18.1.

19. 19.1.

supplies of raw materials, or governmental requirements or regulations (Force Majeure Event).

In the event of the occurrence of a Force Majeure Event, the Party unable to perform will, i) promptly notify the other Party, ii) provide an estimate of the duration of the delay, iii) use its bests efforts to resume performance as quickly as possible, and iv) suspend performance only for the period of time as is necessary as a result of the Force Majeure event. Notwithstanding the above, neither Party is relieved of any liability for any delay or failure to perform its defense obligations with respect to third Party intellectual property rights. The Party not delayed may act, in its sole discretion, to terminate the affected order, or any part of the order, or suspend this Agreement in whole or in part, for the duration of the delaying cause.

Amendment No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the Parties.

Construction In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over a Party to this Agreement, 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 the remainder of this Agreement shall remain in full force and effect.

Severability If any of the provisions or clauses of this Agreement shall be or become void or be held invalid, all other provisions shall remain in full force and effect and the void or invalid provisions shall be forthwith replaced by other provisions to be agreed by the parties valid in form and substance and which shall accomplish as nearly as possible the purpose and intent of the void or invalid provisions in due course.

Announcements No announcements of this Agreement or any subsequent Agreement may be made by one Party without the consent of the other, save if required to do so for legal or regulatory reasons, in which case the Party initiating the announcement shall use reasonable efforts to obtain the comments (if any) of the other, but for avoidance of doubt nothing in this provisions shall inhibit the disclosing party from complying with its legal or regulatory obligations as it sees fit. In the event that one party is required to make an announcement without the knowledge of the other, it shall promptly send a copy of the announcement to the other party for information purposes.

No Waiver No waiver by either Party of any right or of a breach of any binding

7

20. 20.1.

21. 21.1.

a)

b)

provision of this Agreement shall constitute a waiver of any other right or breach of any other provision, nor shall it be deemed to be a general waiver of such provision by such Party or to sanction any subsequent breach thereof by any other Party

Notice Any notice, approval, request, authorization, direction, or other communication under this Agreement shall be given in writing, directed to the addresses of the Parties set forth above, and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered personally to the Party to whom the same is directed; (b) one (1) business day after deposit with a commercial overnight carrier with written verification of receipt; or (c) five (5) business days after the mailing date whether or not actually received, if sent by registered or recorded delivery post or any other means of rapid mail delivery for which a receipt is available to the Contact at the address of the Party to whom the same is directed.

Notices shall be addressed as follows:

Attn: Chief Executive Leclanche SA Avenue des Sports, 42 Yverdon-les-Bains, CH 1400 Switzerland

Attn: Chief Executive Oak Ridge Energy Technologies Inc., 751 North Drive, Suite 9, Melbourne, FL 32934, United States

Standstill The Parties acknowledge that both companies are publicly quoted companies and may before and/or during the course of this Agreement be in receipt of nonpublic information (including any Confidential Information) (together, Non Public Information) and agree to comply with all relevant laws and regulations applicable to market trading during the term of this Agreement and for a period of 12 months thereafter, and in particular agrees not to:

directly nor indirectly engage in any transactions on any exchange, regulated market or over-the-counter in (i) any securities issued by the Leclanche or any affiliated company or (ii) any derivative products the price of which is derived in whole or in substantial part from any such securities;

divulge directly or indirectly any Non Public Information to any third party without the written consent of Leclanche and if it is

8

22. 22.1.

a) b)

c)

22.2.

22.3.

22.4.

22.5.

23. 23.1.

23.2.

authorized to make such disclosure, shall impose standstill obligations on that third party consistent with this provision.

Term and Termination Subject to Article 22.2, this Agreement shall remain in force for an Initial Period of 1 year, which may be renewed by mutual consent for such period as the Parties may agree (Term), unless it is terminated earlier in accordance with this Agreement or for any of the following reasons:

if one Party is in default with its performance under this Agreement; in case of insolvency or bankruptcy of either Party, or in case of a change of control of one of the Parties; breach of any of the provisions of this Agreement by either Party that remains unremedied for a period of 30 days;

In the event that after Phase 1, the Parties conclude that it would not be economically viable to enter the US market as envisaged, this Agreement shall terminate forthwith and the Parties shall use reasonable efforts to assess whether to proceed with an alternative agreement or not.

If the Agreement is terminated, the Parties shall endeavour to ensure that assets contributed by each Party shall, so far as possible, be transferred back to that Party.

In the event of termination of this Agreement, neither Party shall have any obligation to continue the activities set forth herein, and all obligations and rights of the Parties shall terminate, with the exception of provision of Articles 9-21, and Article 23 of this Agreement, which shall survive expiration or termination.

Notwithstanding the above, termination of the Agreement will not have any effect on the rights and obligations of the Parties in respect of the assignment secured and or any RFQ at any stage of processing.

Governing Law and Jurisdiction This Agreement shall be governed by and construed in accordance with Swiss law. The conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods do not apply.

The Parties irrevocably agree that the courts of the city of Zurich have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.

9

IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the dates written below.

For Oak Ridge Energy Technologies Inc For Leclanche SA

______________________________ Mr Craig Nelson Deputy CEO

/s/ Eric Wilkinson Mr Eric Wilkinson Deputy CEO

10

Annex I

LECLANCHE PRODUCTS

11

12

- - -

Annex II LECLANCHE SERVICES

Leclanche's Portable Business designs customized battery systems for original equipment manufacturers and other industrial / commercial customers. It focuses on three main markets:

military medical equipment ruggerdized industrial equipment

Examples of products that have ben developed for its customers include:

13
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

SOLUTION: Oak Ridge shall arrange product liability and warranty insurance.

PROBLEM: 1

EXHIBIT 10.26

CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

SPONSORSHIP AGREEMENT

This agreement (Agreement) is entered into as of the 23rd day of September 1998 (Effective Date), by and between Excite, Inc., a Delaware corporation, located at 555 Broadway, Redwood City, California 94063 (Excite), and Vitamin Shoppe Industries Inc., a New York corporation, located at 4700 Westside Avenue, North Bergen, New Jersey 07047 (Client).

RECITALS

A. Excite maintains sites on the Internet at http://www.excite.com (the Excite Site), http://www.webcrawler.com (the WebCrawler Site) and http://www.excite.co.jp (the Excite Japan Site), and owns, manages or is authorized to place advertising on affiliated sites on the Internet worldwide (collectively, the Excite Network) which, among other things, allow its users to search for and access content and other sites on the Internet. For purposes of this Agreement, the parties hereby acknowledge that the Excite Network does not include the site on the Internet located at http://home.netscape.com and/or other URLs or locations designated by Netscape Communications Corporation.

B. Within the Excite Site and the WebCrawler Site, Excite currently organizes certain content into topical channels (the Channels).

C. Client is engaged in the business of selling vitamins, minerals, nutritional supplements, herbs, sports nutrition formulae, homeopathic remedies and other health related products (Vitamins) at its site on the Internet located at http://www.vitaminshoppe.com (the Client Site).

D. Client wishes to promote its business to users of the Excite Network through promotions and advertising in various portions of the Excite Network.

Therefore, the parties agree as follows:

1. SPONSORSHIP ON THE WEBCRAWLER HEALTH CHANNEL

a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Health Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Health Channel on the WebCrawler Site during the term of this Agreement. For purposes of this Agreement, Client's Competitors means those merchants identified in Exhibit D attached hereto. Client may update

2 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

this list in writing not more than once every six (6) months by adding other merchants whose primary business is reselling Vitamins upon the mutual agreement of Excite. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the Jango shopping search service throughout the Excite Network. Client's preferred and dominant status as a reseller of Vitamins will be extended on the terms stated in this Section l(a) to its presence within future departments within the WebCrawler Health Channel, when launched, which may include, but are not limited to, the alternative medicine and senior living departments.

b) The parties will cooperate in good faith to identify and implement appropriate promotional opportunities for Client to be displayed in rotation on the home page of the WebCrawler Health Channel during the term of the Agreement.

c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in the Nutrition & Vitamins department of the WebCrawler Health Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section l(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

d) The parties will cooperate in good faith to identify and implement other appropriate promotional opportunities for Client on the WebCrawler Health Channel including (if and when launched) but not limited to, the alternative medicine and senior living departments during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 1(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

e) Excite is in the process of developing a Sponsorship Strip for the WebCrawler Health Channel consisting of a row of graphic links to sponsors' Web sites. Excite will display a graphic link to the Client Site on the Sponsorship Strip (consistent with the format used on similar links on the same strip) in the pages of the WebCrawler Health Channel for the duration of the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 1(e) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

f) Excite and Client acknowledge that neither party to this Agreement possesses any right to control the content or promotional programming displayed on any third party

2 3 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

site. However, Excite will work with Client in good faith to evaluate the display of any Excite co-branded pages one level deep that directly link from the WebCrawler Health Channel to determine whether the non-banner display of modules related to Client's Competitors on those pages materially and adversely affect the aggregate value of Client's promotional placements on the WebCrawler Health Channel as described in this Agreement. Under such circumstances, Excite will then exert commercially reasonable efforts to modify such co-branded pages to reduce such material and adverse effects.

2. SPONSORSHIP ON THE WEBCRAWLER SHOPPING CHANNEL

a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Shopping Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Shopping Channel or the WebCrawler Site. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the Jango shopping search service throughout the Excite Network.

b) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in rotation on the first page of the health & fitness department of the WebCrawler Shopping Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed under the health foods category on the first page of the health & fitness groceries department of the WebCrawler Shopping Channel. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

3 4 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

3. ADDITIONAL SPONSORSHIP

a) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client in the Nutrition & Vitamins department of the Health Channel on the Excite Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. The parties hereby acknowledge that Client will be sharing such opportunities in the Nutrition & Vitamins department of the Excite Health Channel with one other reseller of vitamins.

b) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client on the Excite Japan Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placements described in this Section 3(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

c) Excite estimates, but does not guarantee, delivery of a total of [*****] impressions of the Client promotional placements described in Sections 3(a) and 3(b) during the term of this Agreement.

4. DeliverE MESSAGE PROMOTIONS

a) Excite and Client will cooperate in developing and delivering MatchLogic DeliverE message campaigns during the term of the Agreement as described in Exhibit B. The MatchLogic DeliverE is an opt in email service providing the opportunity to distribute messages to highly targeted audiences on the Web via email. All such message campaigns will comply with Excite's then current privacy policy which is located at http://www.excite.com/privacy_policy and is subject to change from time to time. If the privacy policy changes in a manner that has a material adverse effect on the value, functionality or implementation of the DeliverE message campaign for Client, Excite will notify Client, which will then have the option to cancel future DeliverE campaigns and both parties will be relieved of their obligations related to those canceled DeliverE campaigns, if Client, in its sole but reasonable discretion, finds such changed privacy policy objectionable.

b) Excite estimates, but does not guarantee, delivery of [*****] impressions of the email messages described in this Section 4 during [*****] of the term of this Agreement and [*****] impressions during [*****] of the term of the Agreement.

4 5 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

c) Excite and Client agree that Client may purchase additional DeliverE messages during the term of this Agreement at a rate of [*****] impressions (CPM), subject to availability.

5. ADVERTISING ON THE EXCITE NETWORK

a) Excite will display Client's banner advertising on [*****] in response to the keywords set forth in Exhibit A as amended from time to time by Client, and with additional keywords related to Vitamins, subject to availability, during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(a) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

b) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(b) during [*****] of the term of the Agreement and [*****] such during [*****] of the term of the Agreement.

c) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

d) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

6. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING

a) Client and Excite will use reasonable efforts to implement the display of the promotional placements and advertising described in the Agreement by October 1, 1998 (the Scheduled Launch Date). The parties recognize that the Scheduled Launch Date can be met only if Client provides final versions of all graphics, text, keywords, banner advertising, promotional placements, other promotional media and valid URL links necessary to implement the promotional placements and advertising described in the Agreement (collectively, Impression Material) to Excite fourteen (14) days prior to Scheduled Launch Date.

5 6 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

b) In the event that Client fails to provide the Impression Material to Excite fourteen (14) days in

advance of the Scheduled Launch Date, Excite may, at its sole discretion (i) reschedule the Scheduled Launch Date at the earliest practicable date according to the availability of Excite's engineering resources after delivery of the complete Impression Material or (ii) commence delivery of Impressions based on Impression Material in Excite's possession at the time.

c) Client and Excite agree that the day the promotional placements and advertising described in this Agreement are first displayed on the Excite Network will be the Launch Date for purposes of this Agreement.

d) Excite will have sole responsibility for providing, hosting and maintaining, at its expense, the Excite Network. Excite will have sole control over the look and feel of the Excite Network including, but not limited to, the display, appearance and placement of the parties' respective names and/or brands and the promotional links, but such control shall not permit Excite to modify Client's logos and trademarks and it does not relieve Excite from its obligations regarding Client's preferred and dominant sponsorship status as set forth elsewhere in this Agreement.

e) Advertising banners will be served, tracked and reported by Excite's subsidiary, MatchLogic, Inc. (MatchLogic) as described in Exhibit B. MatchLogic will also provide Client with feedback as to comparisons of the performance of (i) the different creative messages supplied by Client for the advertising banners, (ii) the placements of those advertising banners on the Excite Network as set forth in this Agreement and (iii) through the implementation of MatchLogic's Closed Loop transaction reporting system on the Client Site, will report on correlations between transaction activity by users referred to the Client Site from the Excite Network and the various promotional placements and advertising displayed on the Excite Network, all as described in Exhibit B. Promotional placements, including text links, will be served, tracked and reported by Excite. These promotional placements will be tracked and reported by MatchLogic when this implementation becomes available. Excite will provide Client with monthly reports substantiating the number of impressions of Client's advertising banners and promotional placements displayed on the Excite Network.

f) As soon as such third party auditing is available to Excite, Excite will provide Client with monthly reports, including certified reports by a third party auditing firm substantiating the number of impressions of Client's advertising banners and promotional placements displayed on the Excite Network. When available, such third party audit reports will be at Excite's cost and expense.

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7. FEES; REVENUE SHARE

a) Client will pay Excite sponsorship and advertising fees of [*****] for the first twelve (12) month period following the Launch Date ([*****]). These fees will be paid in twelve (12) equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis thereafter.

b) Client will pay Excite sponsorship and advertising fees of [*****] for the twelve (12) month period following the first anniversary of the Launch Date ([*****]). These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent

installments will be due on a monthly basis thereafter.

c) Separate and apart from the sponsorship and advertising fees, Client will pay Excite MatchLogic DeliverE fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis.

d) Separate and apart from the sponsorship and advertising fees, Client will pay Excite MatchLogic DeliverE fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent installments will be due on a monthly basis.

e) Separate and apart from the sponsorship and advertising fees and the MatchLogic DeliverE fees, Client will pay Excite MatchLogic banner and link serving fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis.

f) Separate and apart from the sponsorship and advertising fees and the MatchLogic DeliverE fees, Client will pay Excite MatchLogic banner and link serving fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]

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[*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent installments will be due on a monthly basis.

g) Separate and apart from the sponsorship and advertising fees, the MatchLogic DeliverE fees and the MatchLogic banner and link serving fees, Client will pay Excite [*****] recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network during [*****]. Separate and apart from the sponsorship and advertising fees, the MatchLogic DeliverE fees and the MatchLogic banner and link serving fees, Client will pay Excite [*****] recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network during [*****] of the term of the Agreement. For purposes of this Agreement Net Revenue means gross revenue recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network minus sales tax, sales returns and allowances. Client will pay Excite these revenue share payments within thirty (30) days after the close of the financial quarter in which Client recognizes the Net Revenue on these transactions.

h) The fees and revenue share payments are net of any agency commissions to be paid by Client.

i) Client will maintain accurate records with respect to the calculation of all payments due under this Agreement. Once per year, the parties will review these records to verify the accuracy and appropriate accounting of all payments made pursuant to the Agreement. In addition, Excite may, upon no less than thirty (30) days prior written notice to Client, cause an independent Certified Public Accountant to inspect the records of Client reasonably related to the calculation of such payments during Client's normal business hours. The fees charged by such Certified Public Accountant in connection with the

inspection will be paid by Excite unless the payments made to Excite are determined to have been less than ninety-five percent (95%) of the payments actually owed to Excite, in which case Client will be responsible for the payment of the reasonable fees for such inspection.

8. PUBLICITY

Unless required by law, neither party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other. Notwithstanding the foregoing, either party may issue an initial press release regarding the relationship between Excite and Client, the timing and wording of which will be mutually agreed upon, and nothing herein shall preclude Client from promoting the Client Site.

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9. TERM AND TERMINATION

a) Unless terminated earlier in accordance with the specific terms of this Agreement, the term of this Agreement will begin on the Launch Date and will not end until Excite displays a total of [*****] impressions of the Client advertising banners and promotional placements on the Excite Network as described in this Agreement and pushes [*****] emails using the email vehicles specified in Exhibit B. Regardless of Excite's actual delivery of impressions, the term of this Agreement will not be shorter than [*****] after the Launch Date, unless the Agreement is terminated earlier in accordance with the specific terms of this Agreement.

b) Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following the notice to the breaching party of the breach.

c) All undisputed payments that have accrued prior to the termination or expiration of this Agreement will be payable in full within thirty (30) days thereof.

d) The provisions of Section 12 (Confidentiality and User Data), Section 13 (Indemnity), Section 14 (Limitation of Liability) and Section 15 (Dispute Resolution) will survive any termination or expiration of this Agreement.

e) Excite guarantees to deliver the annual impressions totals set forth in Exhibit C hereto. If Excite fails to deliver the indicated number of impressions required during any annual period, Client may suspend (but not eliminate) its payments specified in Section 7 for a maximum of sixty (60) days (the Make-Good Period) during which Excite will deliver the shortfall of such impressions. The parties agree to cooperate in good faith to evaluate the quality and performance of the placements used to deliver the impressions during the Make-Good Period. Until such shortfall is delivered, no impressions will be deemed delivered for the next annual period. If Excite has not achieved the required annual impression delivery by the end of the Make-Good Period, Client may then terminate this Agreement upon written notice within ten (10) days following the end of the Make-Good Period. Client's termination of the Agreement in accordance with the previous sentence will not relieve Excite of its obligation to deliver any previously paid for but undelivered impressions. If Excite achieves the annual impression delivery goal at any time during the Make-Good Period, the term of this Agreement will continue and Client shall immediately resume payment of the sponsorship and advertising fees specified in Section 7.

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10. TRADEMARK OWNERSHIP AND LICENSE

a) Client will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to Excite hereunder.

b) Excite will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to Client hereunder.

c) Each party hereby grants to the other a non-exclusive, limited license to use its trademarks, service marks or trade names only as specifically described in this Agreement. All such use shall be in accordance with each party's reasonable policies regarding advertising and trademark usage as established from time to time. Client agrees to obtain Excite's written consent prior to use of Excite's logo and trademarks.

d) Upon the expiration or termination of this Agreement, each party will cease using the trademarks, service marks and/or trade names of the other except:

i) As the parties may agree in writing; or

ii) To the extent permitted by applicable law.

11. OWNERSHIP

a) Client will retain all right, title and interest in and to the Client Site worldwide including all intellectual property rights, including but not limited to copyright, trademark, trade secrets, patents, moral rights or any derivative rights thereof. Any intellectual property rights, including but not limited to copyright, trademark, trade secrets, patents, moral rights or any derivative rights thereof, created by changes made by Excite to Impression Materials are the sole property of Client.

b) Excite will retain all right, title, and interest in and to the Excite Network worldwide including, but not limited to, ownership of all copyrights, look and feel and other intellectual property rights therein.

12. CONFIDENTIALITY AND USER DATA

a) For the purposes of this Agreement, Confidential Information means information about the disclosing party's (or its suppliers') business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party marked or designated by such party as confidential or

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proprietary or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.

b) Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or (iv) the receiving party develops independent of any information originating from the disclosing party.

c) Each party agrees (i) that it will not disclose to

any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

d) The usage reports provided by Excite to Client hereunder will be deemed to be the Confidential Information of Excite.

e) The terms and conditions of this Agreement will be deemed to be Confidential Information and will not be disclosed without the written consent of the other party.

f) For the purposes of this Agreement, User Data means all information submitted by users referred to the Client Site from the Excite Network during the term of the Agreement. Such User Data includes, but is not limited to, the number of purchase requests requested by such users, the number of purchase requests completed, the number of purchases completed and the dollar values of completed purchases The parties acknowledge that any individual user of the Internet could be a user of Excite, WebCrawler and/or Client through activities unrelated to this Agreement and that user data gathered independent of this Agreement, even from individuals who are users of both parties' services, will not be deemed to be User Data for the purposes of this Agreement.

g) User Data will be owned by Client, and subject to the limitations contained herein, Client grants to Excite a non-exclusive license to use the User Data for the purposes of this Agreement.

h) In order to facilitate optimization of Client's sponsorship program, Client will make good faith efforts to develop tracking and reporting capabilities to correlate information regarding transaction activity by users referred to the Client Site from the Excite Network to the various promotional placements and advertising banners displayed on the Excite Network. Client will provide to Excite all User Data and

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user transaction reports collected by Client within thirty (30) days following the end of each calendar month during the term of this Agreement in a mutually-determined electronic format.

i) Client will not use User Data to specifically target any Excite and/or WebCrawler users, as distinct from all users of the Client Site, for solicitations (except as specifically provided in this Agreement), either individually or in the aggregate, during the term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement.

j) Neither party will sell, disclose, transfer or rent any User Data which could reasonably be used to identify a specific named individual (Individual Data) to any third party nor will either party use Individual Data on behalf of any third party without the express permission of the individual user. Where user permission for dissemination of Individual Data to third parties has been obtained, each party will use commercially reasonable efforts to require the third party recipients of Individual Data to provide an unsubscribe feature in any email communications generated by, or on behalf of, the third party recipients of Individual Data.

k) Notwithstanding the foregoing, each party may disclose Confidential Information or User Data (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a

need-to-know basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.

13. INDEMNITY

a) Client will indemnify, defend and hold harmless Excite, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from:

i) Its breach of any representation or covenant in this Agreement; or

ii) Any claim that Client's Impression Material infringes or violates any third party's copyright, patent, trade secret, trademark, right of publicity or right of privacy or contain any defamatory content; or

iii) Any claim that Client's Impression Material and/or its display on the Excite Network violates any federal, state or local laws, regulations or statutes, including but not limited to restrictions on the sale, advertisement or promotion of vitamins, nutritional supplements, drugs or other health-related products; or

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iv) Any claim of personal injury or product liability with respect to products or services sold, advertised or otherwise offered to consumers or third parties through display of Client's Impression Material on the Excite Network or links to the Client Site; or

v) Any claim arising from content displayed on the Client Site.

Excite will promptly notify Client of any and all such claims and will reasonably cooperate with Client with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Excite in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Excite's written consent (not to be unreasonably withheld or delayed) and Excite may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

b) Excite will indemnify, defend and hold harmless Client, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from:

i) Its breach of any representation or covenant in this Agreement; or

ii) Any claim arising from the Excite Network other than content or services provided by Client.

Client will promptly notify Excite of any and all such claims and will reasonably cooperate with Excite with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Client in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Client's written consent (not to be unreasonably withheld or delayed) and Client may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.

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14. LIMITATION OF LIABILITY

EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.

15. DISPUTE RESOLUTION

a) The parties agree that any breach of either of the parties' obligations regarding trademarks, service marks or trade names, confidentiality and/or User Data would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names or confidentiality, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

b) In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, the parties will first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to a mutually acceptable mediator.

c) In the event that disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, cannot be resolved through good faith negotiation and mediation, the parties will refer the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes.

16. GENERAL

a) Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's written consent (which will not be unreasonably withheld or delayed), except that no such consent will be required in connection with (i) a merger, reorganization or sale of all, or substantially all, of such party's assets or its

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Internet business assets (ii) either party's assignment and/or delegation of its rights and

responsibilities hereunder to a wholly-owned subsidiary or affiliate or joint venture in which the assigning party holds an interest. Any attempt to assign this Agreement other than as permitted above will be null and void.

b) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of Excite or Client.

c) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email or five (5) days after deposit in the mail. Notices will be sent to a party at its address set forth in this Agreement or such other address as that party may specify in writing pursuant to this Section.

d) No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.

e) Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.

f) Severability. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.

g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

h) Counterparts. This Agreement may be executed in counterparts, each of which will serve to evidence the parties' binding agreement.

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VITAMIN SHOPPE INDUSTRIES INC. EXCITE, INC.

By: [SIG] By: [SIG] -------------------------------- --------------------------------

Name: J. Howard Name: Robert C. Hood ------------------------------ ------------------------------

Title: President/CEO Title: EVP/CFO ----------------------------- -----------------------------

Date: 9/23/98 Date: 9/29/98 ------------------------------ ------------------------------

4700 Westside Avenue 555 Broadway North Bergen, New Jersey 07047 Redwood City, California 94063 650.568.6000 (voice) 650.568.6030 (fax)

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EXHIBIT A

KEYWORDS

acidophilus cholesterol greentree obesity medicine acids chondroitin healing omega aromatherapy adhd chromium picolinate health organic bodybuilding aids co q 10 herb pinnacle diet alternative medicine coenzyme q10 herb tea pms fitness amino acids complimentary herbal pregnant herbs andrew weil energy herbal extracts pregnancy health andro complex enzymmatic herbal tea prenatal homeopathic androstat therapy herbal teas prevention multivitamins Androstat 100 essential oils herbs protein nutrition androstat 6 ester hiv protein powders stress Androstene exercise holistic ripped vitamins androstenedione extract holistic healing rna vitamin antioxidant fat holistic medicine saint john's wort wellness antioxidants fatty acids homeopathic saw palmetto weightloss anxiety fen phen homeopathic schiff aphrodisiac phen fen natrol sex aphrodisiacs fiber nature sexual enhancer aroma fitness natural steroids aromatherapy garry null natural food solaray atkins ginkgo supplements source natural bodybuilder ginkgo biloba natural healing sports nutrition bodybuilders ginseng natural medicine st. johns wort bodybuilding glucosamine natures way st john's wort calcium green tea nature's way stress cancer green tree nutrition sulfate cats claw greentea nutritional alternative

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medicine remedies coq10 homeopathy supplement country life iron supplements creatine kal tablets creatine kava teas monohydrate depression kava kava twinlab diet lactose vegetarian dietary magnesium vegetarians dione melatonin viagra disease mental alertness vitamin dna MetRx vitamins dr. andrew weil mother nature vitasave dr. atkins mother's nature weight lifting dr. weil msm weight loss dr. wiel msm sulphur weightlifting eas multivitamins weightloss echinacea natrol wellness yohimbe

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EXHIBIT B

MATCHLOGIC SERVICES

AD MANAGEMENT, MEASUREMENT & OPTIMIZATION Ad Management, Measurement and Optimization refers to the suite of services and technologies to be used to measure and evaluate variables contributing to the performance of client marketing messages within the Excite Network. Descriptions of the services and technologies to be leveraged throughout the

optimization process are highlighted below.

CENTRALIZED AD SERVING Through its proprietary centralized ad serving infrastructure, MatchLogic will facilitate the trafficking, delivery, tracking and reporting of Client's banners throughout the Excite Network. During the ad management process, MatchLogic will employ TrueCount(sm) cache counting techniques as the underlying measurement technology for the reporting of client campaign performance data. Basic campaign performance data including primary impressions, clicks, click %, cache impressions and total impressions will be supplied to Client daily through an online interface.

TRUEFFECT(sm) TruEffect(sm) refers to the process of establishing, tracking and communicating the relationship between locations from which users have interacted with Client's marketing messages and the activities they engaged in at the Client Site as a result of these interactions. TruEffect(sm) measurement will allow Client to directly relate user activity within the Client Site to marketing messages within the Excite Network. As a result of these measurements, Client will have the ability to optimize campaigns in order to drive actual user activities or transactions. Client will be able to identify the number of unique visitors coming to the Client Site or promotional areas, from which message and area they originated, and the number of measurable transactions these visitors performed. Additionally, measurements of reach and frequency will accompany this analysis.

Upon successful implementation of TruEffect(sm), performance reporting will be available to Client on a daily basis through an online interface.

LANDSCAPE(sm) LandscapE(sm) demographic profile reports will afford Client an effective means of understanding the visitor segments exposed to Client's messages or interacting with Client sponsored content areas within the Excite Network. All of the information contained within the demographic profiles is derived from consumers who have been both exposed to an advertising campaign and are also within MatchLogic's Digital 1:1(sm) database (MatchLogic's proprietary consumer database). When a subset of unique visitors taken from all visitors exposed to a Client's marketing message or content area are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile

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each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm) TrueSelect(sm) is MatchLogic's centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords slated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm) DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

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are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm)

TrueSelect(sm) is MatchLogic' centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords stated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm)

DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

[*****] TESTS INCLUSIONS VOLUME - ---------------------------------------------------------------------------- 12 Exclusive Offer 2 e-mail offer tests [*****] Tests Push against best offer [*****]

Target model creation [*****]

Model role-out [*****] - ---------------------------------------------------------------------------- 7 Prospecting Co-op Offer role-out to co-op [*****] Tests file - ---------------------------------------------------------------------------- [*****] - ----------------------------------------------------------------------------

[*****] TESTS INCLUSIONS VOLUME - ---------------------------------------------------------------------------- 12 Exclusive Offer 2 e-mail offer tests [*****] Tests Push against best offer [*****]

Target model creation [*****]

Model role-out [*****] - ---------------------------------------------------------------------------- 13 Prospecting Co-op Offer role-out to co-op [*****] Tests file - ---------------------------------------------------------------------------- [*****] - ----------------------------------------------------------------------------

Above listed DeliverE(sm) services are to be allocated to meet Client's needs and overall production schedule.

21 22 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

EXHIBIT C

ANNUAL IMPRESSION DELIVERY SCHEDULE

Vitamin Shoppe Industries WC/Excite Placement Details *LINE ITEM PLACEMENTS AND IMPRESSIONS ARE ESTIMATES ONLY AN WILL CHANGE OVER TIME

EXHIBIT C

Products Description Item # [*****] Estimated [*****] Estimated TOTALS in IMPS IMPS Contract Excite Integrated Links Excite Japan Sponsorship/Promotion Positions #3b [*****] [*****] [*****] Excite Nutrition & Vitamins Sponsorship/Promotion Positions #3c [*****] [*****] [*****] 0 0 0 - ---------------------------------------------------------------------------------------------------------------------------- Excite Links, subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Banners NONE - ---------------------------------------------------------------------------------------------------------------------------- Excite Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Links/Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Integrated Links WC Health Home Page Home Page Rotation #1b [*****] [*****] [*****] WC Nutrition & Vitamin Sub Channel Link #1c [*****] [*****] [*****] WC Health Channel Promotional Opportunities, [*****] [*****] [*****] i.e., alternative medicine #1d WC Health Channel Sponsorship Strip #1e [*****] [*****] [*****] WC Shopping Channel Under Health & Fitness Sub Channel #2b [*****] [*****] [*****] WC Shopping Channel Under Health & Fitness/ Groceries Sub Channel #2c [*****] [*****] [*****] 0 0 0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links Subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banners

WC Keywords Search #5a [*****] [*****] [*****] WC Health Channel Channel Rotation #5b [*****] [*****] [*****] WC Health Channel Mutually determined departments #5c [*****] [*****] [*****] WC General Rotation General Rotation across WC site #5d [*****] [*****] [*****] 0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links/Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- 0 - ---------------------------------------------------------------------------------------------------------------------------- 0 - ----------------------------------------------------------------------------------------------------------------------------------- 0 - ----------------------------------------------------------------------------------------------------------------------------------- S&P Links Total [*****] [*****] [*****] S&P Banner Total [*****] [*****] [*****]

- ---------------------------------------------------------------------------------------------------------------------------- Grand Total [*****] [*****] [*****] - ----------------------------------------------------------------------------------------------------------------------------

Vitamin Shoppe E Sponsorship Agr/bja Version 980918

22

23 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

During the term of the Agreement, the parties agree to cooperate in good faith and use commercially reasonable efforts to evaluate the quality and performance of the placements used to deliver the impressions described in the Agreement and to modify such placements in an effort to reach the objectives set forth in this Agreement.

23 24 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

EXHIBIT D

CLIENT'S COMPETITORS

Acta Pharmacal Nutritional Warehouse All Vitamins Phillips Nutritional Austin Nutritional Puritans Pride BenSalem Naturals Reach4life B-Vital Realtime Chayas Chemical-Free S. Shiraishi Office, Inc. Cherokee Naturals, Inc Shop Vitamins Club Vitamin The Herb Shop GNC The Herb Shoppe Good Life Nutrition The Nickel and Thyme Shoppe Green Tree The Vitamin Source Green Turtle Bay Vitamin The Vitamin Tree Greenshack Direct US Health Distributors, Inc Health and Vitamin Express Vita Save Health Depot VitaCare Infinity 2 VitaFit Jamieson Natural Sources Vital Life Karemore Vitamin Company Vitamin Depot Kava Systems Vitamin Express L & H Vitamins Vitamin House Life Plus Vitamins Vitamin House MineralNet Vitamin Shack Mother Nature's General Store Vitamin Warehouse, Inc. Mountain Naturals Vitamins Vitamins for Life My Vitamins Vitamins Online Nature Sunshine Vitamins.com Nature Sunshine Herb and Vitamins Vitanet Noah's Ark Vitawise Nutritional Direct Wholesale Vitamins

24
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party's obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

SOLUTION:
EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.