[***] CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED.


Exhibit 10.43


 


 


MYAREAGUIDE.COM
NETWORK ADVERTISING AGREEMENT


Contract Apartments.com
220

MyAreaguide Salesperson: Dustin Moore

Date: December 7, 2004


 


	
  Total US

  	
   

  	
  ADVERTISER

  	
   

  	
  ADVERTISER AGENCY

  
	
  Contact Person

  	
   

  	
  Brian Lang

  	
   

  	
   

  
	
  Company Name

  	
   

  	
  Classified Ventures, LLC/Apartments.com

  	
   

  	
   

  
	
  Address-Line 1

  	
   

  	
  175 West Jackson, Suite 800, Chicago, IL 60604

  	
   

  	
   

  
	
  Phone #

  	
   

  	
  312-601-5691

  	
   

  	
   

  
	
  Fax #

  	
   

  	
  312-601-5115

  	
   

  	
   

  
	
  Email

  	
   

  	
  blang@apartments.com

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Billing
  Information

  
	
   

  
	
  Send Invoices To (choose one)

  	
   

  	
  1 Advertiser

  	
   

  	
  1 Agency

  
	
  Advertiser or Agency Billing Contact Person

  	
   

  	
   

  	
   

  	
   

  
	
  Company Name

  	
   

  	
  Same

  	
   

  	
   

  
	
  Billing Address

  	
   

  	
   

  	
   

  	
   

  
	
  Billing Phone #

  	
   

  	
   

  	
   

  	
   

  
	
  Billing Fax #

  	
   

  	
   

  	
   

  	
   

  
	
  Billing Email Address

  	
   

  	
   

  	
   

  	
   

  



 


Billing
Schedule (select one)


 


Given a favorable
credit rating for a new advertiser or a positive payment history for a current
advertiser, invoices will be payable within sixty (60) days of receipt. A
current advertiser with invoices past due to MyAreaguide Network must pay
outstanding past-due debts prior to new start dates.


 


Payment
Information


 


1 Send Checks to:   MyAreaguide.com, Inc


Attn: Accounts
Receivable


1240 E 100 S #5


St George, Utah
84790


 


All amounts not
paid when due and payable will bear interest from the due date as set forth in
the Standard Terms and Conditions attached hereto and incorporated herein by
this reference (the “Standard Terms”).


 

















 


Advertising Inventory and

Implementation


 


	
  Inventory Purchased

  	
   

  	
  Start

  Date

  	
   

  	
  Stop

  Date

  	
   

  	
  Ad

  Type

  	
   

  	
  Placement & 

  Category

  	
   

  	
  Cost

  	
   

  	
  Estimated 

  Total

  Price/Maxi

  mum Total 

  Price Per

  Month

  	
   

  	
  Guaranteed

  Total

  Clicks

  	
   

  
	
  US Apartment Inventory by City.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1) Advertiser will provide MAG with an FTP feed of
  condensed Apartments.com apartment listings (“Advertiser Content” or
  “Listings”)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2) Listings may include thumbnail images related to
  the applicable rental property.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3) MyAreaGuide.com shall populate the apartment
  search databases accessible through the MAG Sites with the Listings. All such
  search functionality on the MAG Sites shall be hosted and maintained byMyAreaGuide. MyAreaGuide.com shall use
  commercially reasonable efforts to display Listings at the top of all search
  results on the MAG Sites for which the Listings are relevant although no
  position is guaranteed by MyAreaGuide.com.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4) Clicking on a Listing or a property thumbnail
  image on a MAG Site apartment search results page will send visitors to
  Advertiser’s Aparments.com website. Advertiser shall only pay MAG for actual
  clicks on Listings originating from the MAG Sites.

  	
   

  	
  1/1/05

  	
   

  	
  12/31/05

  	
   

  	
  Link

  	
   

  	
  Apartments

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  



 


Purchase Summary


 


	
  Myareaguide.com Network

  	
   

  	
  Estimated Total

  Price/Maximum Total Price

  	
   

  	
  Total Guaranteed Clicks

  	
   

  	
  CPC

  	
   

  
	
  Entire Network
  for Apartments

  	
   

  	
  [***]/Max of
  $900,000

  	
   

  	
  [***]

  	
   

  	
   

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Purchase
  Price

  	
   

  	
  [***]/Max of
  $900,000

  	
   

  	
  [***]

  	
   

  	
   

  	
  [***]

  	
   

  
										



 


In the event
guaranteed impressions or clicks are reached prior to the Stop Date,
MyAreaguide may, at its option, discontinue banners or links at such earlier
time. Any guarantees are to impressions or clicks (as measured by
MyAreaGuide.com in accordance with its counting methodologies). To the extent
that there is a shortfall in impressions or clicks as of the end of the
specified banner period, Myareaguide.com will provide, as Advertiser’s sole
remedy, “make good” impressions or clicks through comparable placements. To the
extent impressions or clicks commitments are identified without regard to
specific placements, such placements will be as mutually agreed upon by
MyAreaguide.com and Advertiser during the course of the display period.
Myareaguide.com


 

















 


reserves the right
to alter Advertiser start dates to accommodate trafficking needs or other
operational needs. In such cases, MyAreaguide.com will make available to
Advertiser reasonably equivalent start date(s) and extend the Stop Dates. In no
event will the maximum monthly invoice to Advertiser exceed [***], even if
MyAreaGuide.com actually delivers more than [***] in clicks during such month.
However, should MyAreaGuide.com provide clicks in excess of the [***] monthly
maximum set forth immediately above, then the additional clicks will roll over
to the next monthly period, subject to the maximum total price of [***].


 


Terms
and Conditions


 


This Advertising
Agreement is subject to the Standard Terms attached hereto as Exhibit A of this
Advertising Agreement, and such Standard Terms are made a part of this
Advertising Agreement by reference. The signatory of this Advertising Agreement
represents that the Advertiser/Agency has read and agrees to such Standard
Terms.


 


Advertiser shall
have the right to cancel or terminate this Advertising Agreement without
liability at any time and for any reason upon thirty (30) days’ prior written
notice to MyAreaGuides.com.


 


Authorized
Signatures


 


In order to bind
the parties to this Advertising Agreement, their duly authorized
representatives have signed their names below on the dates indicated. This
Agreement (including the Standard Terms incorporated on Exhibit A) shall be
binding on both parties when signed on behalf of each party and delivered to
the other party (which delivery may be accomplished by facsimile transmission
of the signature pages hereto).


 


	
  Myareaguide.com

  	
  Advertiser

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Dustin Moore

  	
   

  	
  By:

  	
  /s/
  Timothy B. Falan

  	
   

  
	
  (Signature)

  	
  (Signature)

  
	
   

  	
   

  
	
  Print
  Name: Dustin Moore

  	
  Print
  Name: Timothy B. Falan

  
	
   

  	
   

  
	
  Title:
  Sales Manager

  	
  Title:

  	
  SVP
  AND GM

  	
   

  
	
   

  	
  (Print
  or Type)

  
	
   

  	
   

  
	
  Date:

  	
  12/20/04

  	
   

  	
  Date:

  	
  12/20/04.

  	
   

  
								



 

















 


Exhibit A

STANDARD TERMS AND CONDITIONS


 


The following
Standard Terms and Conditions (the “Standard Terms”) shall be deemed to be
incorporated into the attached Advertising Agreement (the “Advertising
Agreement”):


 


1.
Terms of Payment. Advertiser must submit a completed credit
application to determine terms of payment. If no credit application is
submitted or the request for credit is denied by MyAreaGuide.com, Inc.
(hereinafter “MAG”) in its sole discretion, the Advertising Agreement must be
paid in advance of the advertisement start date. Major credit cards (VISA, M/C
and American Express) are accepted. If MAG approves credit, MAG shall invoice
Advertiser each month for actual clicks delivered and Payment shall be made to
MAG within sixty (60) days from receipt of invoice (“Due Date”). Amounts paid
after the Due Date shall bear interest at the rate of one percent (1 %) per
month (or the highest rate permitted by law, if less). In the event Advertiser
fails to make timely payment of an amount that is not reasonably disputed in
good faith and fails to cure such breach within twenty (20) days of receiving
written notice of such breach, Advertiser will be responsible for all
reasonable expenses (including a reasonable attorneys’ fees) incurred by MAG in
collecting such amounts. MAG shall invoice Advertiser in arrears only for
clicks actually delivered.


 


2.
Positioning. Except as otherwise expressly provided in the
Advertising Agreement, positioning of advertisements within the MAG properties
or on any page is at the sole discretion of MAG.


 


3.
Right to Reject Advertisement. MAG reserves the right to
reject Advertiser Content (as defined in the Advertising Agreement) that is not
consistent with MAG’s standards from time to time in effect. In addition, MAG
shall have the right, at any time, to remove any Advertiser Content and/or to
terminate this Agreement (upon five (5) days prior written notice to
Advertiser) if MAG is directed to do so by any law enforcement agency, court or
government agency or if MAG determines, in its sole reasonable discretion, that
the Advertiser Content, Promotional Displays, or any portion or such display thereof
(i) violate MAG’s then applicable advertising policy; (ii) violate any
applicable law, rule or regulation; (iii) are the subject of a claim asserted
by an entity with respect to trademarks, trade names, service marks or other
proprietary rights or (iv) are otherwise reasonably objectionable to MAG.
Advertiser shall have no liability other than for clicks actually delivered by
MAG in the event of any termination or this Agreement.


 


4.
Renewal. Except as expressly set forth in the Advertising
Agreement, any renewal of the Advertising Agreement and acceptance of any
additional advertising order shall be at MAG’s sole discretion and evidenced by
written agreement between the parties. Pricing for any renewal period is
subject to change by MAG from time to time.


 


5.
No Assignment or Resale of Ad Space. Neither party may
resell, assign or transfer any of its rights hereunder without the prior,
express written consent of the other party, which shall not be unreasonably
withheld; provided that, Advertiser may assign this Agreement pursuant to a
merger, acquisition, consolidation, reorganization, or sale of all or
substantially all of its stock or assets without MAG’s prior written consent.


 


6.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL MAG OR
ADVERTISER BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE
ADVERTISING RELATIONSHIP PROVIDED FOR HEREIN. EXCEPT FOR EACH PARTY’S
RESPECTIVE INDEMNITY OBLIGATIONS PURSUANT TO SECTION 8, MAG AND ADVERTISER
SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL AMOUNT OF ADVERTISING FEES
PAID TO MAG HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE CLAIM GIVlNG RISE
TO LIABILITY. EXCEPT AS PROVIDED HEREIN, NEITHER MAG NOR ADVERTISER MAKES ANY
REPRESENTATIONS, AND BOTH HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALINGS AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, MAG SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE NUMBER OF
PERSONS WHO WILL ACCESS THE PROMOTIONAL DISPLAYS AND ANY BENEFIT ADVERTISER OR
AGENCY MIGHT OBTAIN FROM INCLUDING THE PROMOTIONAL DISPLAYS BY MAG.


 


7.
Warranties by Advertiser. Advertiser represents and warrants
that, to its knowledge and excluding all Advertiser Content provided to
Advertiser by third parties: (i) Advertiser holds the necessary rights to grant
the rights to MAG granted herein to use the Advertiser Content and display of
the same in Promotional Displays for the purpose of this Agreement; (ii) the
use, reproduction, distribution, or transmission of Advertiser Content and the
display of Promotional Displays will not violate any civil or criminal laws,
rules or regulations or any rights of any third parties including but not
limited to such violations as infringement or misappropriation of any
copyright, patent, trademark, trade secret, music image, or other proprietary
or property right, false advertising, unfair competition, defamation, invasion
of privacy or rights of celebrity, violation of any anti-discrimination law or
regulation, or any other right of any person or entity; (iii) neither the
Advertiser Content nor its use is promotional displays shall advertise or
enable the unlawful sale of alcohol, tobacco, or firearm products or any unlawful gambling activity or
lottery; and (iv) the Advertiser Content complies with all applicable laws,
rules and regulations.


 


8.
Indemnification. Advertiser agrees, at its own expense, to
Indemnify, defend and hold harmless MAG, and its employees, representatives,
agents and affiliates, against any and all expenses and losses of any kind
(including reasonable attorneys’ fees and costs) incurred by MAG in connection
with any third party claims, administrative proceedings or criminal
investigation of any kind arising out of a breach of Advertiser’s
representations and warranties in Section 7. MAG agrees, at its own expense, to
indemnify, defend and hold harmless Advertiser, and its directors, officers,
employees, representatives, agents and affiliates (collectively, the “Advertiser
Parties”) against any and all expenses and losses of any kind (including
reasonable attorneys’ fees and costs) incurred by the Advertiser Parties in
connection with any third party claims, administrative proceedings or criminal
investigation of any kind arising out of MAG’s breach of this Agreement, any
use of Advertiser Content other than as specified in the Advertising Agreement
or any MAG Site (as defined in the Advertising Agreement). All indemnities
under this Agreement are conditioned upon (i) the Indemnified party providing
the indemnifying party with prompt notice of any such claim or action, (ii) the
Indemnified party permitting


 


1

















 


the indemnifying
party to assume sole control of the defense and settlement of such claim or action
with counsel chosen by the indemnifying party, and (III) the indemnified party
reasonably cooperating in the defense or settlement of such claim or action.


 


9.
Provision of Advertising
Materials. MAG shall provide Advertiser with current copies
of MAG’s policies for online advertising. Advertiser will provide all material
for the advertisement in accordance with MAG’s policies in effect from time to
time, including (without limitation) the manner of transmission to MAG and the
lead-time prior to publication of the advertisement. MAG shall not be required
to publish any advertisement that is not received in accordance with such
policies and reserves the right to charge Advertiser, at the rate specified in
the Advertising Agreement, for inventory held by MAG pending receipt of
acceptable materials from Advertiser which are past due. Advertiser hereby
grants to MAG a limited, non-exclusive, non-transferable, non-sublicenseable,
fully paid license to use, reproduce and display the Advertiser Content on the
MAG Sites only as described in the Advertising Agreement and only during the
term of this Agreement. Advertiser further grants MAG a non-exclusive,
non-transferable, non-sublicensable, royalty-free license during the term of
the Agreement to use Advertiser’s trademarks and trade names (“Marks”) only in
connection with displaying the Advertiser Content. Any other use of the
Advertiser Content or the Marks is expressly prohibited. All use by MAG of
Advertiser’s Marks pursuant to this Section 9 shall inure to the benefit of
Advertiser and shall be in
accordance with the standards, specifications and instructions of Advertiser,
and subject to inspection and monitoring by Advertiser to ensure that such use
is in accordance with such standards, specifications and instructions. MAG
shall not acquire any right, title or interest in the Advertiser’s Marks other
than as expressly provided in this Section 8.


 


10.
Retention of Property Interest. Advertiser understands that
this Agreement does not transfer any interest (property or otherwise) of MAG to
Advertiser. All Interests are retained by MAG and Advertiser is only granted a
license to use such interests subject to the Standard Terms and Conditions and
the Advertising Agreement. MAG understands that this Agreement does not
transfer any interest (property or otherwise) of Advertiser to MAG. All such
Interests are retained by Advertiser and MAG is only granted a license to use
such interests subject to the Standard Terms and Conditions and the Advertising
Agreement.


 


11.
Termination. Advertiser may terminate the Agreement without
liability for any reason at any time by providing MAG thirty (30) days prior
written notice before the effective date of termination. Either party may
terminate the Agreement if the other party is in material breach of the
Agreement and such breach is not cured within twenty (20) days of written
notice from the non-breaching party.


 


12.
Confidentiality. The terms and conditions of this Agreement
are confidential and neither party will make any public statement, press
release, or other public announcement relating to the terms and conditions of
or the existence of this Agreement without the prior written approval of the
other, unless required by law to do so.


 


13.
No Agency Relationship Between Parties. MAG and Advertiser
are independent contractors, and neither MAG nor Advertiser is an employee,
agent, representative, or partner of the other.


 


14.
Merger. The Standard Terms and Conditions together with the
Advertising Agreement set forth the entire agreement between MAG and
Advertiser. This Agreement supersedes any and all prior agreements (written or
oral) of MAG and Advertiser with respect to the subject matter set forth
herein.


 


15.
Modification. This Agreement may only be modified, or any
rights under it waived, by a written document executed by authorized
representatives of both parties.


 


16.
Choice of Law. This Agreement shall be interpreted, construed
and enforced in all respects in accordance with the laws of the State of Utah,
without regard to the actual state or country of incorporation or residence of
Advertiser.


 


17.
Successors in Interest. This Agreement is duly enforceable
against the other party in accordance with its terms and conditions, and the
rights and obligations herein shall inure to the benefit of the parties, their
heirs, successors, and permitted assigns.


 


18.
Audit. MAG agrees to keep accurate and up-to-date books and
records with respect to this Agreement. Upon reasonable notice, Advertiser shall
have the right to examine, inspect, audit, review, and copy or make extracts
from all books and records of MAG evidencing the calculation and payment of
fees by Advertiser. Such audits shall be conducted at MAG’s place of business
during MAG’s standard business hours. The cost and expense of any such audit
shall be paid by Advertiser unless such audit uncovers a discrepancy of more
than five percent (5%) in favor of Advertiser, in which case, MAG shall refund
any overpayment to Advertiser, if any, and bear the reasonable, documented,
out-of-pocket costs and expenses of the audit.


 


19.
Force Majeure. Neither party shall be deemed in default of
this Agreement to the extent that performance of its obligations or attempts to
cure any breach are delayed or prevented by reason of any act outside its
reasonable control.


 


20.
Survival. The foregoing sections 6, 8, 10,12,13,14, and 16
shall survive any termination or expiration of this Agreement.


 


Agreed to in Conjunction with Advertising Agreement # 220


 


 


	
   

  	
   

  	
   

  	
  /s/ ILLEGIBLE

  	
  12/20/04

  	
   

  
	
   

  	
   

  	
   

  	
  Signature of Advertiser
  & Date

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature of
  AreaGuides.com & Date

  



 


2