[***]
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
10.36


 


 


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