Unassociated Document


    CONFIDENTIAL
      TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED
      HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST. OMISSIONS
      ARE DESIGNATED AS *.  A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED
      SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

     

    API
      AGREEMENT


    


    This
      Agreement dated May 5, 2005 is made by and between GuruNet Corporation, a
      Delaware corporation, with offices at 237 West 35th
      Street,
      Suite 1101, New York, NY 10001 (“Partner”) and Shopping.com, Inc., a Delaware
      corporation, with offices at 8000 Marina Blvd., 5th floor, Brisbane, CA 94005
      (“Shopping.com”).

    


    RECITALS

    


    WHEREAS,
      Partner maintains or supplies content to one or more sites on the world wide
      web
      through which it provides information and services (the “Partner Service”);
      and

    


    WHEREAS,
      Shopping.com maintains a database of information relating to shopping on the
      internet, including price, product and merchant data (the “Shopping.com
      Service”); and

    


    WHEREAS,
      Partner desires to obtain information from the Shopping.com database in order
      to
      make available some or all of such information to Users;

    


    NOW,
      THEREFORE, in consideration of the mutual covenants and agreements set forth
      herein, and for other good and valuable consideration, the receipt and
      sufficiency of which is hereby acknowledged, the parties agree as
      follows:

     

    
      	1.  
                	
              DEFINITIONS

            


    

     

    As
      used
      in this Agreement, the following definitions shall apply:

    


    
      	1.1	
              "Affiliate,"
                as to either party, means a second entity or person that directly
                or
                indirectly Controls, is Controlled by, or is under common Control
                with,
                the party.

            


    

     

    
      	1.2	
              “Control”
                means
                owning, directly or indirectly, stock or other interest in an entity
                representing more than fifty percent (50%) of the aggregate stock
                or other
                interest entitled to vote on the election of
                directors.

            


    

     

    
      	1.3	
              “Intellectual
                Property Rights” means, with respect to any data, device, or other asset
                of any kind, all copyright, patent, trade secret, database, moral,
                termination, authorship and other proprietary rights relating to
                any such
                data, device, object code, source code or other asset including,
                without
                limitation, all rights necessary for the worldwide development,
                manufacture, modification, enhancement, sale, licensing, use,
                reproduction, publishing and display of such data, device, object
                code,
                source code or other asset.

            


    

     

    
      	1.4	
              “Marks”
                shall mean any Shopping.com Marks or Partner
                Marks.

            


    

     

    
      	
              1.5

            	
              “Partner
                Marks” means any and all trademarks, trade names, service marks or logos
                owned or licensed by Partner (other than any Shopping.com Marks licensed
                hereunder).

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              1.6

            	
              “Promotional
                Materials”
                shall mean all marketing, advertising, and promotional materials
                in all
                media, created or developed by or on behalf of one of the parties
                relating
                to or associated with this
                Agreement.

            


    

     

    
      	
              1.7

            	
              “Referral
                Revenue” shall mean the gross amount received by Shopping.com directly or
                indirectly, arising from each click by a User on a link to a paying
                merchant or other party which appears in the Shopping.com Data. Referral
                Revenue is tracked by Shopping.com’s standard merchant program within a
                session initiated by a click on a URL within the Shopping.com Data,
                as
                measured using Shopping.com’s standard tracking methods.
                

            


    

     

    
      	
              1.8

            	
              “Shopping.com
                Marks” means any and all trademarks, trade names, service marks or logos
                owned or licensed by Shopping.com (other than any Partner Marks licensed
                hereunder).

            


    

     

    
      	
              1.9

            	
              “User”
                shall mean each person who uses the Partner Service, or at a future
                point,
                the Co-Branded Partner website.

            


    

     

    
      	2.  
               	
              LINKS
                TO SHOPPING.COM SERVICE

            


    

     

    
      	2.1.	
              Partner
                may provide or link Users to the Shopping.com Service via links provided
                by Shopping.com in accordance with the terms and conditions of this
                Agreement. Specifically, Shopping.com will provide keywords to Partner
                for
                shopping-related search queries, and Partner will use commercially
                reasonable efforts to ensure that shopping-related search queries
                made by
                Users shall be directed to the Shopping.com Service, and Shopping.com
                shall return a response consisting of XML data and links (the
                “Shopping.com Data”) which Partner shall display on the Partner Service.
                Further queries and refinements of search queries from Users shall
                be
                likewise directed to the Shopping.com Service. Shopping.com shall
                not
                include banner advertisements in the Shopping.com Data, Shopping.com
                Service or otherwise to Partner, unless agreed in writing by
                Partner.

            


    

     

    
      	2.2.	
              Shopping.com
                shall provide to Partner its Shopping.com Application Programmer
                Interface
                (“API”) XML content integration services in accordance with the
                Shopping.com API XML Integration Technical White Paper (the “White Paper”)
                which is available for review in Exhibit B.


            


    

     

    
      	2.3.	
              Exhibit
                B provides API guidelines Partner must adhere to; any violations
                of
                Exhibit B shall be considered a material breach of its obligations
                under
                this Agreement and must be remedied immediately. If Partner does
                not
                remedy such material breach within thirty (30) days of receipt of
                written
                notice of such breach, Shopping.com may terminate on written notice.
                If
                Shopping.com alters the White Paper materially, and Partner is not
                able
                to, or chooses not to, comply with the change(s), either party may
                terminate the Agreement upon thirty (30) days’ written notice.
                

            


    

     

    
      	2.4.	
              Each
                element of Shopping.com Data shall have a corresponding URL link
                provided
                by Shopping.com. 

            


    

     

    
      	2.5.	
              Shopping.com
                reserves the right to change the contents (including but not limited
                to
                excluding categories from such Data) of the Shopping.com Data from
                time to
                time in its sole discretion, provided that Shopping.com provides
                written
                notice to Partner of any material changes at least thirty (30) days
                in
                advance of such changes. 

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	2.6.	
              Partner
                must attribute any Shopping.com Data displayed on the Partner Service
                to
                Shopping.com with such attribution being the text ”Data Provided by
                Shopping.com” and a Shopping.com logo.


            


    

     

    
      	3.  
               	
              SERVICE
                RESPONSIBILITY

            


    

     

    
      	3.1.     	
              Each
                party will be solely responsible for the development, operation and
                maintenance of, in the case of Partner, the Partner Service and that
                its
                use of the Shopping.com Data does not exceed authorized usage, and
                in the
                case of Shopping.com, the Shopping.com Service and the Shopping.com
                Data,
                and for all materials that appear on such locations, other than materials
                provided by the other party; Shopping.com will adhere to the service
                specifications listed in Exhibit
                A.
                Such responsibilities include, but are not limited
                to:

            


    

     

    
      	3.1.1.  	
              the
                technical operation of such service(s) and all related
                equipment;

            


    

     

    
      	3.1.2.  	
              the
                accuracy and appropriateness of materials posted on such
                service(s);

            


    

     

    
      	3.1.3.  	
              ensuring
                that materials posted on such service(s) do not violate any law,
                rule or
                regulation or infringe upon the rights of any third party, including,
                but
                not limited to, copyright, trademarks, privacy or other personal
                or
                proprietary rights; and

            


    

     

    
      	3.1.4.  	
              ensuring
                that materials posted on such service(s) are not obscene, libelous
                or
                otherwise illegal.

            


    

     

    
      	3.2.             	
              Partner
                shall promptly forward to Shopping.com any customer service inquiries
                received from Users that relate to the Shopping.com
                Data.

            


    

     

    
      	3.3.             	
              Each
                party disclaims all liability for all such matters with respect to
                the
                other party’s services(s). 

            


    

     

    
      	3.4.             	
              The
                parties agree to use commercially reasonable efforts to maintain
                high
                quality technical performance standards. The parties agree that they
                will
                use best efforts to avoid any virus, worm, Trojan Horse or other
                contaminating or destructive feature in its or the other party’s content
                or services.

            


    

     

    
      	3.5.             	
              Once
                Partner exceeds [
                * ]
                in
                Referral Revenue in any given month, Shopping.com agrees to build
                a
                Co-Branded Website (at the following URL: answers.shopping.com) within
                six
                (6) weeks from such month Partner reaches the revenue plateau (the
                “Co-Branded Website”). 

               

              
                If
                  Shopping.com builds Partner a Co-Branded Website, following the
                  Co-Branded
                  Website launch, Partner will only be allowed one change request
                  per
                  calendar year. 

              

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    
      	4.  
               	
              CONSIDERATION,
                PAYMENTS, REPORTS AND AUDIT
                RIGHTS

            


    

     

     

    
      	4.1.             
                     	
              Shopping.com
                will pay to Partner a tiered share of all Referral Revenue earned
                by
                Shopping.com in each month of the Term of this Agreement. The tiered
                payment is as follows:

            


    

     

     

    
      	·      	
              If
                Partner generates Referral Revenue in a month of [
                * ]
                or
                less, the share to the Partner for the month is [
                * ]
                of
                that month’s Referral Revenue.

            


    

     

     

    
      	·      	
              If
                Partner generates Referral Revenue in a month in excess of [
                * ],
                the share to the Partner for the month is [
                * ]
                of
                that month’s Referral Revenue.

            


    

     

     

    
      	4.2.      	
              Shopping.com
                will keep and maintain records of Referral Revenue during the Term
                and for
                one year thereafter. Within ten (10) days following the end of each
                calendar month during the Term, Shopping.com will submit to Partner
                a
                report of the amount of Referral Revenue for such month. Additionally,
                subject to a final accounting to be completed within ten (10) days
                following the end of each calendar month during the Term, Shopping.com
                shall make online reports with daily Referral Revenue numbers available
                to
                Partner. Shopping.com will pay Partner within thirty (30) days after
                the
                end of each calendar month all fees due under this Agreement.
                

            


    

     

    
      	4.3.      	
              Once
                every six (6) months during the Term of this Agreement, and for twelve
                (12) months following the then current 12-month Initial Term or Renewal
                Term, as the case may be, Partner may cause an independent auditor
                to
                inspect Shopping.com’s relevant books and records at Shopping.com’s
                offices to verify the accuracy of Shopping.com’s calculation of Referral
                Revenue; provided that reasonable advance notice is given and the
                inspection does not unreasonably interfere with Shopping.com’s business
                activities, and further provided that the auditor signs Shopping.com’s
                standard confidentiality agreement before conducting the audit.
                Shopping.com shall promptly make any underpayments revealed by said
                audit,
                plus interest at the rate of 1% (one percent) per quarter from the
                time
                that payment was to be made. Such audit shall be at Partner’s expense;
                however, if the audit reveals underpayments in excess of five (5%)
                of the
                fees owed for the period covered by the applicable audit, Shopping.com
                shall pay the cost of such audit plus interest at the rate of 1%
                (one
                percent) per quarter on the sums owed to
                Partner.

            


    

     

    
      	4.4.      	
              Except
                as otherwise specifically provided in this Agreement, each party
                shall be
                responsible for all costs and expenses relating to the performance
                of its
                obligations hereunder.

            


    

     

    
      	5.  
               	
              TERM,
                RENEWAL AND TERMINATION

            


    

     

    
      	5.1.      	
              This
                Agreement shall become effective upon its execution by both parties
                (“Effective Date”) and, subject to termination as provided below, shall
                continue for 12 months from the Launch Date (the “Initial Term”). The
                Launch Date shall be determined by the date upon which the Shopping.com
                Data is first made available to Users on the Partner application,
                service
                or site. 

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	5.2.              
                     	
              This
                Agreement shall automatically renew for successive 12-month terms
                (each, a
                “Renewal Term”), unless either party provides written notice of
                termination thirty (30) days prior to the expiration of the Initial
                Term
                or any Renewal Term. The Initial Term and any Renewal Terms are
                collectively referred to as the “Term.”


            


    

     

    
      	5.3.             
                 	
              Either
                party hereto may, at its option, upon five (5) days written notice,
                terminate this Agreement should the other party hereto (i) admit
                in
                writing its inability to pay its debts generally as they become due;
                (ii)
                make a general assignment for the benefit of creditors; (iii) institute
                proceedings to be adjudicated a voluntary bankrupt, or consent to
                the
                filing of a petition of bankruptcy against it; (iv) be adjudicated
                by a
                court of competent jurisdiction as being bankrupt or insolvent; (v)
                seek
                reorganization under any bankruptcy act, or consent to the filing
                of a
                petition seeking such reorganization, or (vi) have a decree entered
                against it by a court of competent jurisdiction appointing a receiver,
                liquidator, trustee or assignee in bankruptcy or in insolvency covering
                all or substantially all of such party’s property or providing for the
                liquidation of such party’s property or business
                affairs.

            


    

     

    
      	
              5.4              
                

            	
              In
                the event that either party commits a material breach of its obligations
                hereunder, the other party may, at its option, terminate this Agreement
                by
                written notice of termination; provided, however, that if such default
                is
                subject to cure, then such notice shall be subject to a twenty (20)
                day
                cure period from the date thereof, and if the defaulting party cures
                such
                default prior to expiration of such period, termination shall not
                take
                place.

            


    

     

    
      	
              5.5             
                

            	
              The
                obligations of the parties under this Agreement that by their nature
                would
                continue beyond expiration, termination or cancellation of this Agreement
                (including, without limitation, the warranties, indemnification
                obligations, confidentiality requirements, audit and ownership and
                property rights) shall survive any such expiration, termination or
                cancellation. 

            


    

     

    
      	6.  
               	
              REPRESENTATIONS
                AND WARRANTIES; INDEMNITY

            


    

     

    
      	6.1.             
               	
              Each
                party represents and warrants to the other that: (i) it has the full
                power
                and authority to enter into this Agreement and to grant the rights
                granted
                herein; (ii) it is the sole owner or is a valid licensee of its respective
                service(s) and all content contained therein and has secured all
                necessary
                licenses, consents and authorizations with respect to use of such
                content
                and all elements thereof to the full extent contemplated herein,
                and that
                such content does not infringe the Intellectual Property Rights of
                third
                parties; (iii) its Intellectual Property Rights provided to the other
                party hereunder will not infringe on any copyright, trademark, U.S.
                patent
                or other Intellectual Property Rights of any third party; (iv) it
                will
                comply with all applicable laws, rules and regulations in performing
                its
                obligations hereunder; and (v) to the extent that it provides the
                other
                party with any data regarding end users including but not limited
                to
                names, emailing and mailing addresses, the receiving party will hold
                such
                data confidential and will not use it for any purpose other than
                as
                specifically provided herein. Notwithstanding the above, neither
                party
                makes any representation or warranty and has no liability or obligation
                to
                indemnify the other in connection with open source or publicly available
                content, including but not limited to that provided by
                Wikipedia.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	6.2.             
               	
              Each
                party shall indemnify, defend and hold harmless the other party and
                its
                Affiliates and their respective directors, officers, employees and
                agents
                against all third party claims or actions, and any liabilities, losses,
                expenses, damages and costs (including, but not limited to, reasonable
                attorneys’ fees) related thereto, to the extent same arise out of any
                alleged breach of such party’s representations or warranties contained in
                Section 6 of this Agreement, or an alleged material breach of such
                party’s
                obligations under Section ‎8.

            


    

     

    
      	7.  
               	
              PROPRIETARY
                RIGHTS; GRANT OF LICENSE

            


    

     

    
      	7.1.              	
              As
                between the parties, each party shall own and retain all right, title
                and
                interest, including without limitation, all Intellectual Property
                Rights
                owned by such party, in and to such party’s intellectual property,
                content, Marks and Promotional Materials and to the user and other
                data
                collected on such party’s services. Neither party shall make any claim to
                the contrary. Each party agrees to reasonably assist the other party,
                at
                the other party’s expense, in the prosecution of any infringement action
                or other litigation pertaining to the rights to the other party’s
                materials or intellectual property.


            


    

     

    
      	7.2.              	
              The
                parties shall not remove, obscure or alter the other party’s copyright
                notice or the Marks from materials provided to each party.
                

            


    

     

    
      	7.3              
                	
              Partner
                does not demur from Shopping.com’s claim that Shopping.com owns or
                otherwise has the exclusive right to use and license the Shopping.com
                Marks. Nothing contained in this Agreement shall be construed to
                vest in
                Partner any right, title or interest in or to the Shopping.com Marks
                or in
                the goodwill now or hereafter associated therewith. Any and all goodwill
                associated with or identified by the Shopping.com Marks shall inure
                directly and exclusively to the benefit of Shopping.com. Partner
                shall not
                take any action that could be detrimental to the goodwill associated
                with
                the Shopping.com Marks. Partner shall not modify any aspect of the
                Shopping.com Marks as provided by Shopping.com to Partner without
                Shopping.com's prior approval. All rights not expressly granted herein
                are
                reserved.

            


    

     

    
      	7.4              
               	
              Shopping.com
                does not demur from Partner’s claim that Partner owns or otherwise has the
                exclusive right to use and license the Partner Marks. Nothing contained
                in
                this Agreement shall be construed to vest in Shopping.com any right,
                title
                or interest in or to the Partner Marks or in the goodwill now or
                hereafter
                associated therewith. Any and all goodwill associated with or identified
                by the Partner Marks shall inure directly and exclusively to the
                benefit
                of Partner. Shopping.com shall not take any action that could be
                detrimental to the goodwill associated with the Partner Marks.
                Shopping.com shall not modify any aspect of the Partner Marks as
                provided
                by Partner to Shopping.com without Partner's prior approval. All
                rights
                not expressly granted herein are
                reserved.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	7.5              
              	
              Each
                party acknowledges and agrees that: (i) the other party’s Marks shall
                remain the sole property of the other party; (ii) nothing in this
                Agreement shall confer in the party any right of ownership in the
                other
                party’s Marks; and (iii) the party shall at no time contest the
                validity of the other party’s Marks. Except as specifically provided in
                this Agreement, neither party shall have the right to use any Mark
                of the
                other party, or to refer to the other party directly or indirectly,
                in
                connection with any product, promotion or publication without the
                prior
                written approval of such other party. Each party hereto agrees that
                upon
                termination of this Agreement all rights granted to the other party
                in
                relation to the other party’s Marks shall immediately terminate and revert
                to the respective owning or licensor
                party.

            


    

     

    
      	8.     	
              CONFIDENTIALITY;
                PUBLICITY

            


    

     

    
      	8.1             
              .	
              Each
                party acknowledges that by reason of its relationship to the other
                party
                under this Agreement it may have access to certain information and
                materials concerning the other party’s business, plans, customers, code
                and products that are confidential and of substantial value to such
                party
                (referred to in this Section as “Confidential Information”), which value
                would be impaired if such Confidential Information were disclosed
                to third
                parties. The terms of this Agreement shall be deemed to be Confidential
                Information. Each party agrees to maintain all Confidential Information
                received from the other, both orally and in writing, in confidence
                and
                agrees not to disclose or otherwise make available such Confidential
                Information to any third party without the prior written consent
                of the
                disclosing party. Each party further agrees to use the Confidential
                Information only for the purpose of performing this Agreement. No
                Confidential Information shall be deemed confidential unless so marked
                if
                given in writing, or, if given orally, identified as confidential
                orally
                prior to disclosure, or information which by its nature or the nature
                of
                the circumstances surrounding disclosure should reasonably be understood
                to be confidential.

            


    

     

    
      	8.2               
              	
              The
                parties’ obligations under Section ‎8.1
                above
                shall not apply to Confidential Information which: (i) is or becomes
                a
                matter of public knowledge through no fault of or action by the receiving
                party; (ii) was rightfully in the receiving party’s possession prior to
                disclosure by the disclosing party; or (iii) is rightfully obtained
                by the
                receiving party from a third party who is lawfully in possession
                of such
                Confidential Information without restriction. Whenever requested
                by a
                disclosing party, a receiving party shall immediately return to the
                disclosing party all manifestations of the Confidential Information
                or, at
                the disclosing party’s option, shall destroy all such Confidential
                Information as the disclosing party may designate (excluding this
                Agreement). The receiving party’s obligation of confidentiality shall
                survive this Agreement for a period of three years from the date
                of its
                termination and thereafter shall terminate and be of no further force
                or
                effect. Nothing herein shall prohibit a party from complying with
                a lawful
                and binding order of any court, administrative agency or other
                governmental entity relating to Confidential Information, provided
                that
                the receiving party provides prior written notice of such disclosure
                to
                the disclosing party and takes reasonable and lawful actions to avoid
                and/or minimize the extent of such disclosure and reasonably cooperates
                with any disclosing party’s effort in obtaining confidential treatment or
                an order protecting the Confidential Information from public
                disclosure.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              8.3          
                 

            	
              The
                parties’ may jointly prepare and issue a press release regarding the
                relationship; provided, that the parties mutually agree to the content
                and
                timing of such release. Subject to the provisions below, neither
                party
                shall make any other public statements or disclosures concerning
                the terms
                of this Agreement in any medium except with the prior written approval
                of
                the other party, or as required by law or the rules of any applicable
                stock exchange. Neither party is required to issue a press release.
                If a
                party does choose to issue a press release, it shall obtain the approval
                of the other party, which approval shall not be unreasonably withheld
                or
                delayed. Failure of a party’s Press Release Contact to object within five
                (5) business days of receipt of the proposed press release by the
                other
                party’s Press Release Contact shall be deemed to be approval. Each party
                agrees that it currently has no reason to object to a press release
                explaining the establishment of the relationship between the parties,
                provided that only a broad and general description of the relationship
                is
                included. Partner’s Press Release Contact is: Jay Bailey at jayb@gurunet.com;
                Shopping.com’s Press Release Contact is: Christine Marks at cmarks@shopping.com
                .

            


    

     

    
      	9.    	
              LIMITATION
                OF LIABILITY AND
                DISCLAIMER

            


    

     

    
      	9.1.             
                	
              IN
                NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER
                PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL,
                CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES (OR ANY LOSS
                OF
                REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF
                CONTRACT,
                NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR
                NOT AND
                WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
                OF SUCH
                DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
                LIMITED REMEDY. BOTH PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY
                ARE
                AGREED ALLOCATIONS OF RISK AND ARE RE-FLEC-TED IN THE FEES AGREED
                UPON BY
                THE PARTIES. FURTHER, NEITHER PARTY’S AGGREGATE LIABILITY ARISING WITH
                RESPECT TO THIS AGREEMENT (EXCEPT FOR AMOUNTS PAYABLE HERE-UN-DER
                OR
                PURSUANT TO THE INDEMNIFICATION OBLIGATION IN SECTION 6.2) SHALL
                EXCEED
                THE TOTAL AMOUNTS PAYABLE TO PARTNER UNDER THIS AGREEMENT IN THE
                TWELVE
                (12) MONTHS PRIOR TO THE DATE SUCH ALLEGED CLAIM AROSE. NOTWITHSTANDING
                ANY-THING TO THE CONTRARY HEREIN, THIS SECTION ‎9
                SHALL NOT AP-PLY TO ANY AMOUNTS PAYABLE BY ANY PARTY THAT BREACHES
                THE
                CONFIDENTIALITY PROVISIONS OF THIS
                AGREEMENT.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	9.2.             
                	
              EXCEPT
                AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER SHOP-PING.COM NOR
                PARTNER
                MAKES ANY REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS
                OR
                IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
                FOR A
                PARTICULAR PURPOSE, REGARDING THE SHOPPING.COM SERVICE, PARTNER SERVICE,
                PARTNER TOOLBAR, DATA OR ANY OTHER MAT-TER PERTAINING TO THIS AGREEMENT
                INCLUDING THE AMOUNT OF TRAFFIC PARTNER SHALL PROVIDE OR DIRECT TOWARDS
                SHOP-PING.COM, IF AT ALL. 

            


    

     

    
      	10.  	
              GENERAL
                PROVISIONS

            


    

     

    
      	10.1.           
               	
              Neither
                party shall be liable for, or be considered in breach of or default
                under
                this Agreement due to any failure to perform its obligations under
                this
                Agreement (other than its payment obligations) as a result of a cause
                beyond its control, including any act of God, public enemy or terrorist,
                act of any military, civil or regulatory authority, change in any
                law or
                regulation, fire, flood, earthquake, storm or other like event, disruption
                or outage of communications (including the Internet or other networked
                environment), power or other utility, labor problem, unavailability
                of
                supplies, extraordinary market conditions or any other cause, whether
                similar or dissimilar to any of the foregoing, which could not have
                been
                prevented by the non-performing Party with reasonable care; provided,
                however, that either party may terminate this Agreement upon written
                notice to the other party in the event such failure to perform continues
                unremedied for a period of thirty (30)
                days.

            


    

     

    
      	10.2.           
               	
              The
                parties to this Agreement are independent contractors. Neither party
                is an
                agent, representative, or partner of the other party. Neither party
                shall
                have any right, power or authority to enter into any agreement for
                or on
                behalf of, or incur any obligation or liability of, or to otherwise
                bind,
                the other party. 

            


    

     

    
      	10.3.           
               	
              Any
                notice, approval, request, authorization, direction or other communication
                under this Agreement shall be given in writing and shall be deemed
                to have
                been delivered and given for all purposes (i) on the delivery date
                if
                delivered personally; (ii) one (1) business day after deposit with
                a
                commercial overnight carrier, with written verification of receipt,
                or
                (iii) five (5) business days after the mailing date, whether or not
                actually received, if sent by U.S. certified mail, return receipt
                requested, postage prepaid, or any other means of rapid mail delivery
                for
                which a receipt is available, to the address of the party to whom
                the same
                is directed as first set forth
                above.

            


    

     

    
      	10.4.           
                	
              The
                failure of either party to require or enforce strict performance
                by the
                other party of any provision of this Agreement or to exercise any
                right
                under this Agreement shall not be construed as a waiver or relinquishment
                to any extent of such party’s right to assert or rely upon any such
                provision or right in that or any other
                instance.

            


    

     

    
      	10.5.            
               	
              This
                Agreement sets forth the entire agreement, and supersedes any and
                all
                prior agreements of the parties with respect to the subject matter
                hereof.
                No change, amendment or modification of any provision of this Agreement
                shall be valid unless set forth in a written instrument signed by
                the duly
                authorized representatives of both parties. This Agreement may be
                executed
                in counterparts, each of which shall be deemed an original and all
                of
                which together shall constitute one and the same
                document.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	10.6.            
               	
              Neither
                party shall assign this Agreement or any right, interest or benefit
                under
                this Agreement without the prior written consent of the other party
                which
                shall not be unreasonably withheld. Notwithstanding the foregoing,
                either
                party may assign this Agreement without the other party’s consent to a
                parent or commonly controlled entity or to any person or entity,
                which
                acquires or succeeds to all or substantially all of such party’s business
                assets. Notwithstanding the foregoing, if either party is acquired
                by a
                direct competitor of the other party, such other party shall have
                the
                right to terminate this Agreement at any time within 30 days of receipt
                of
                written notice of such acquisition. Subject to the foregoing, this
                Agreement shall be fully binding upon, inure to the benefit of and
                be
                enforceable by the parties hereto and their respective successors
                and
                assigns.

            


    

     

    
      	10.7.            
               	
              In
                the event that any provision of this Agreement is held invalid by
                a court
                with jurisdiction over the parties 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.

            


    

     

    
      	10.8.             	
              This
                Agreement and all matters related to this Agreement shall be governed
                by
                the laws of the State of California without regard to its choice
                of law
                rules. 

            


    

     

    


    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      latter date written below.

     

    
      
        	SHOPPING.COM,
                INC.	 	GURUNET
                CORPORATION 
	 	 	 	 
	 	 	 	 
	By:	/s/ Josh
                Wetzel	 	By:	/s/ Robert
                S. Rosenschein
	 	
                

                Name: Josh Wetzel	 	 	
                

                Name: Robert S. Rosenschein
	 	Title: Director
                of Business Development	 	 	Title:
                CEO