Advertising Services Agreement Dated 08/01/02

Exhibit 10.06

CONFIDENTIAL TREATMENT REQUESTED


ADVERTISING SERVICES AGREEMENT


This Advertising Services Agreement (the "Agreement") is entered into by and between DealTime, Inc., a Delaware corporation with principal place of business at 475 Fifth Avenue New York. NY 10017 ("Customer"), and Google, Inc., a California corporation with its principal place of business at 2400 Bayshore Parkway, Mountain View, California 94043, and its affiliates ("Google") regarding Customer's use of the Services (defined below). This Agreement, dated August 1, 2002 (the "Effective Date"), sets forth the terms and conditions under which Google makes the Services available to Customer.

1. Definitions . For purposes of this Agreement, the following terms will have the indicated meanings:

1.1 " Brand Features" means the trade names, trademarks, service marks, logos, and other distinctive brand features of each party respectively as listed in Schedule E .

1.2 " Client Name" means an alphanumeric code assigned to a Customer by Google that identifies the Customer.


1.3 " Content" means all editorial, text, graphic, audiovisual, and other content that is served to End Users of the Site and that is not provided by Google, including without limitation a search box, instruction pages, frequently asked questions pages, search results, and any Site End User terms and guidelines.


1.4 " Deductions" shall mean the aggregate amount of ***** with respect to the Services provided herein.

1.5 " End User" means a user of the Site.


1.6 " Google Data Protocol" means the written specification on how the Customer's Site communicates and interacts with the Services.


1.7 " Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

1.8 " Google Sponsored Links Program" or " GSLP" or " Services" means the program under which advertisements are provided to Customer and Its End-Users by Google, and displayed by Customer on Its Site according to the terms of this Agreement.

1.9 " Net Ad Revenue" means the gross revenue generated by the Sponsored links which appear on the applicable Results Pages (e.g. revenue for Guaranteed Pages and revenue for Non-Guaranteed Pages) during a calendar month minus the total amount of Deductions for the applicable Results Pages for such month; provided that the total amount of Deductions shall not exceed ***** of the total gross revenue generated during such month for such Results Pages.

1.10 " Query" means a search query.


1.11 " Results Pages" means any Web pages displayed by or on behalf of the customer that contain information from a Results Set.


1.12 " Result Set" means the data set provided to Customer by Google in response to a Query submitted to the Google network interface, consisting of Sponsored Links, and which shall be displayed by Customer on the Site as set forth in this Agreement. A Results Set shall include: (a) the Sponsored Links in Google's Sponsored Links Program (to the extent not blocked by Customer, and where the ***** Cost Per Click Average shall not be a factor in determining which Sponsored Links are provided to Customer) associated with the Search Phrase contained in such Query with a maximum of no more than ***** Sponsored Links, unless otherwise mutually agreed to by the parties in writing; and (b) when Google develops the technology to be able to transmit such information,*****.


1.13 " Search Phrase" means the textual keyword or phrase contained in a Query submitted to the Customer search engine and passed to Google in a Query submitted to the Google network interface.


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***** Confidential treatment has been requested for certain portions of this document pursuant to an application for confidential treatment sent to the Securities and Exchange Commission.

1.14 " Site" means the Customer domains as listed in Schedule A attached hereto through which End Users may view Results Pages. Such domains shall be considered part of the Site for as long as Customer own or controls greater than a 50% interest in such Sites. All queries sent from the Site to Google shall use the same Client Name, and one of the Valid IP Addresses provided by Customer to Google.

1.15 " Sponsored Link" means a compensated advertising listing that is generated in response to a Search Phrase and that typically: (a) is text based: (b) includes title, description, advertiser URL and linking mechanism: and (c) *****.

1.16 " Term" shall have the meaning Indicated in Section 9.


1.17 " URL" means a uniform resource locator for documents or other resources on the Web.


1.18 " Valid IP Addresses" means any and all valid Internet protocol addresses that will be used by or on behalf of Customer to access the Services.

1.19 " Web" means the World Wide Web, containing among other things pages written in the hypertext markup language and/or any similar successor technology.


2. Provision of Services .


2.1 General/Implementation. Google will assist Customer in providing the Google Sponsored Links Program, whereby Google shall provide Sponsored Links to Customer and its End Users according to the terms of this Agreement and no later than the delivery date ("Test Date") indicated on the table below. Customer agrees that it shall implement the Google Sponsored Links Program by displaying such Sponsored Links on the Site according to the terms of this Agreement on a date (the "Launch Date") occurring no later than the implementation date indicated on the table below:

Domains Included in the Site: Test Date Respective Launch Date: dealtime.com July 30, 2002 No later than 10 days after Test Date


Customer's failure to timely implement the Google Sponsored Links Program per the preceding sentence shall be, after a period of ten (10) days after a written notice to be sent by Google after the expiration of the above mentioned Launch Dates, a material breach of the Agreement and Google shall be entitled to: (i) delay payment of any prepayments for the duration of such delay; (ii) refund by Customer of any prepayments paid and not yet earned by Customer, and (iii) terminate the Agreement pursuant to Section 9.2. In any case, Google shall not delay payment for any days of delay that are reasonably attributable to Google, nor shall such days of delay count toward Customer's days of delay or cure.

For each Query received by Google from Customer, Google shall provide a Result Set. Upon receiving a Result Set provided in accordance with the Service Level Agreement attached hereto as Schedule I (the "SLA") and including Sponsored Links, Customer may display all Sponsored Links included in the Result Set without any Google brand attribution in Customer's multi-category search results pages, an example of which is in Schedule F attached hereto (the "Multi-Category Page"). Upon receiving a Result Set provided in accordance with the SLA and including Sponsored Links and Link CPCs, Customer shall display all Sponsored Links included in the Result Set without any Google brand attribution on Customer's Multi-Category Page, except to the extent such Multi-Category Page is part of a co-branded version of the Site (where "co-branded version" means a version of the Site located at sub-domains of Customer's main site (e.g. http://_____.dealtime.com)) for which Customer is contractually prohibited from displaying Sponsored Links, and provided further that in the event that Network Latency (as defined in the SLA) caused by third-party connectivity issues prevents Customer from receiving a Fully Processed and Served Query (as defined in the SLA) within one and one-tenth (1.1) second, then Customer shall not be obligated to display the Google Sponsored Links from such Fully Processed and Served Query. Customer shall also have the right, at its sole discretion, to display Sponsored Links in a Results Set in other areas of Customer's Site, subject to the Exclusivity provision set forth in Section 2.9.

In the event that Google does not begin delivering to Customer ***** within sixty (60) days after the Effective Date of this Agreement. Customer shall be entitled to terminate this Agreement upon ten (10) days written notice to Google. The foregoing states Google's entire liability and Customer's sole and exclusive remedy for Google's failure to deliver *****. Notwithstanding the foregoing, such remedy shall be in addition to any payments due and owing to Customer as of the effective date of termination.

***** shall only be used by Customer ***** shall be ***** and shall be kept


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***** Confidential treatment has been requested for certain portions of this document pursuant to an application for confidential treatment sent to the Securities and Exchange Commission.

confidential in accordance with Section 4. Under no circumstances will *****. Customer may retain ***** during *****. Customer shall not a) commingle Google Sponsored Links with non-Google Sponsored Links or other advertising, or b) reorder or alter in any way the Sponsored Links (except customer may redirect End User clicks on the Sponsored Links to internal Customer servers only for the purpose of Analysis provided such redirects are tested prior to implementation in conjunction with Google and do not materially effect the Service), without Google's prior written consent. The layout and formatting for the Sponsored Links shall be substantially consistent with that set forth in Schedule F , or in such other manner as the parties may mutually agree from time to time.

2.2 Mechanics. Google will receive end user Queries from Customer at Google's network interface, process the Queries containing Search Phrases and return a Result Set related to such Search Phrase to Customer via Google's network interface, using the Google Data Protocol, or other means as Google may implement from time to time (the "Operations"). Google shall not be responsible for receiving Queries directly from Customer's end Users, for transmission of data between Customer and Google's network interface or for displaying the Result Set to Customer's End Users, nor shall Google be responsible for providing search results to End Users conducting searches to locate information on the Web. Customer, at its own expense, shall be responsible for providing customer support services to its end users.

2.3 Query Information . All Queries sent by Customer to Google shall include the following: (a) end user IP address, (b) user identifier(s) as required by Google, consisting of a cookie or username, which may be hashed or encrypted, or such other information as the parties may agree upon, and (c) user agent; each of which corresponds to the end user submitting the Query (all being the "Query Information"). No Query Information shall Include End User personally identifiable information. All ***** will be considered Customer ***** and will be *****.


2.4 Google Data Protocol . Promptly following the Effective Date, Google shall provide the Google Data Protocol to Customer. Google grants to Customer a nontransferable, nonexclusive license during the Term to use the Google Data Protocol solely for the purpose of communicating information between the Site and the Services. The Google Data Protocol shall be deemed Confidential Information pursuant to the terms of Schedule D attached hereto.

2.5 IP Security Process . Before launch of the Services, Customer shall provide Google with a written list of Valid IP Addresses, and Google shall provide Customer a Client Name. All search queries sent to Google by or on behalf of the Customer must contain the Client Name and must use a Valid IP Address. Google shall have the right to immediately discontinue providing Services to IP addresses that are not Valid IP Addresses. Any modifications to the initial list of Valid IP Addresses provided to Google by Customer must be made in a written document executed by both parties or online via the Google Administration Console.

2.6 End-User Support . Customer, at its own expense, shall provide first level customer support services to its End Users. Google, at its own expense, shall provide second level technical support services to Customer regarding the Services. Such support services will be provided as set forth in Schedule C .


2.7 Google Sponsored Links Program Testing . During the Term, Google shall have the right to send uncompensated Queries using automated processes to Customer Site in order to verify that Sponsored Links are being served in compliance with the terms of this Agreement and for testing purposes.

2.8 Competitive Advertisements . Google shall use commercially reasonable efforts to prevent any Results Sets from containing the Competitive Services/Customer ad URLs as listed in Schedule G attached hereto. Customer may, during the term of this Agreement, amend Schedule G from time to time in good faith in order to reflect market changes. All such changes shall be subject to Google's written approval which shall not be withheld unreasonably.

2.9 Exclusivity . Customer agrees that, during the Term of this Agreement and on any of the domains included in the Site; (i) Customer shall not *****; and (ii) in the event Customer ***** from any of the *****. Customer further understands that Google will provide the Services on a nonexclusive basis, and that Google will continue to customize and provide its services to other parties for use in connection with a variety of applications, including search engine applications. Notwithstanding any of the foregoing, in the event that the ***** then, at Google's option (a) ***** set forth in this Section shall remain as is or (b) ***** Section shall no longer apply, provided, however that if *****.


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***** Confidential treatment has been requested for certain portions of this document pursuant to an application for confidential treatment sent to the Securities and Exchange Commission.

2.10 Service Level Agreement . The parties hereby incorporate by reference herein the Service Level Agreement attached hereto as Schedule I.


3. Payments .


3.1 Payment . Google shall pay the fees in the amounts and on the terms specified in Schedule B attached hereto. All fees quoted and payments made hereunder shall be made in U.S. Dollars, Customer shall be responsible for all sales taxes and other similar taxes imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Google's net income.


3.2 Reports . Google will provide monthly revenue reports within thirty (30) days after the end of each month. Google will also provide Customer with an unaudited monthly status report within ten (10) days after the end of such month. Both reports shall contain *****. In the event Google creates an online tool which provides online reporting with respect to the Google Sponsored Links Program, and Google makes such tool available to its customers, then Google will provide Customer with access to such tool at no charge. All reports shall be treated as Confidential Information under the terms of this Agreement, based on the underlying information contained therein.


3.3 Audit Right . Customer, at its own expense, may retain a mutually acceptable nationally recognized independent auditor to review and audit Google's relevant records to confirm the fees due under this Agreement upon thirty (30) days prior written notice. Such audit shall: (a) be subject to Google's reasonable security and confidentiality requirements; (b) occur no more than once every calendar year and not during the last three (3) weeks of a calendar quarter; and (c) transpire during Google's normal business hours. If the audit results in a ten percent (10%) or more adjustment in the payments for the audited period (but excluding situations where Google has overpaid Customer), then Google shall pay for the reasonable costs associated with such audit.


4. Confidentiality . Proprietary information disclosed under this Agreement, including the existence end content of this Agreement, shall be considered "Confidential Information." Use and disclosure of such Confidential Information shall be governed by the terms of the Mutual Non-Disclosure Agreement (attached as Schedule D ), which agreement is incorporated into this Agreement by reference. A party may issue a press release regarding this Agreement only with the prior written consent of the other party.


5. Intellectual Property


5.1 Google Rights . As between Customer and Google, Customer acknowledges that Google owns all right, title and interest, including without limitation all Intellectual Property Rights associated with the Services (Including, but not limited to, the GSLP service, the Google Data Protocol, and Google Brand Features, whether used by Google and/or Customer, but excluding items licensed by Google from third parties), and that Customer shall not acquire any right, title, or interest in or to the Intellectual Property Rights associated with the Services (including the GSLP service, the Google Data Protocol, and Google Brand Features), except for the limited right use rights expressly set forth in this Agreement. Customer shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code of the GSLP service, the Google Data Protocol, Google Brand Features, or any other software, or documentation associated with the Services. Customer will not remove, obscure, or alter Google's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within any Google Services, software, or documentation. Furthermore, Customer shall not crawl, index or in any non-transitory manner inconsistent with this Agreement, store or cache information obtained from the Services. Any rights not expressly granted herein are deemed withheld.

5.2 Customer Rights . As between Google and Customer, Google acknowledges that Customer and any licensors own all Intellectual Property Rights in and to (a) Content that is served to End Users of the Site and that is not provided to Customer by Google; (b) all ***** submitted by *****; and (c) all *****, and that Google shall ***** set forth in this Agreement. Notwithstanding the foregoing, Google may ***** and/or ***** provided such


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***** Confidential treatment has been requested for certain portions of this document pursuant to an application for confidential treatment sent to the Securities and Exchange Commission.

***** and in a way such that neither an *****.

5.3 Brand Feature License . Notwithstanding anything else in this Agreement or its Schedules, Google hereby grants Customer a nontransferable, nonexclusive license during the Term to display Google's Brand Features to: (a) advertise that Customer is using the Services; (b) include Google's logo in presentations, marketing materials, customer lists, and website listing of partners; and (c) otherwise fulfill its obligations hereunder. Notwithstanding anything else in this Agreement or its Schedules, Customer hereby grants to Google a nontransferable, nonexclusive license during the Term to use Customer's Brand Features to; (i) advertise that Customer is using the Services; (ii) include Customer's logo in presentations, marketing materials, customer lists, and website listing of partners. Each party will submit all materials of any kind containing the other party's Brand Features to the other party before release to the public for inspection, and such other party will have the right to approve such material prior to its distribution. Except as setforth in this Section, nothing in this Agreement shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party's Brand Features. All use by Google of Customer's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Google's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Google. At no time during or after the Term of this Agreement shall one party challenge or assist others to challenge the Brand Features of the other party (except to the extent this restriction is prohibited by applicable law) or the registration thereof by the other party, nor shall either party attempt to register any Brand Features or domain names that are confusingly similar to those of the other party.

6. Warranties and Disclaimer .

6.1 Google . Google warrants that it has full power and authority to enter into this Agreement. Google does not warrant that the Services will meet all of Customer's requirements or that performance of the Services will be uninterrupted or error-free. GOOGLE MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.

6.2 Customer . Customer warrants that: (i) it has full power and authority to enter into this Agreement and (ii) it shall use information provided by Google (including Results Sets) in a manner that compiles with applicable laws. CUSTOMER MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, ...