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EXHIBIT 10.1
[ZIFF XXXXX MEDIA INC. LETTERHEAD]
January 19, 2001
ZDNet, Inc.
CNET Networks, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Re: Amendment to License Agreement
Dear Xxx:
This letter agreement (this "Agreement") amends certain terms of the
License Agreement (the "License Agreement") dated as of April 5, 2000 by and
between ZDNet, Inc., formerly Xxxx-Xxxxx Inc., a Delaware corporation ("ZDNet"),
and Ziff Xxxxx Media Inc., a Delaware corporation ("Ziff Xxxxx Media"), and sets
forth certain other agreements between the parties hereto. Capitalized terms
used in this Agreement and not otherwise defined will have the meanings ascribed
to such terms in the License Agreement. ZDNet, CNET Networks, Inc. ("CNET"), and
Ziff Xxxxx Media agree as follows:
A. LICENSE AGREEMENT
1. The License Agreement, including the licenses granted by Ziff Xxxxx
Media to ZDNet thereunder with respect to both U.S. and foreign
Publications, will terminate and be of no further force or effect on
midnight February 28, 2002 (the "License Agreement Termination Date").
From and after the License Agreement Termination Date, neither ZDNet,
CNET, nor any of their affiliates, successors, assigns or licensees
will have any right to (i) translate, reproduce, publicly display,
transmit or distribute Content (including, without limitation,
archival Content of the Publications), except as permitted by fair use
or other similar laws, or (ii) use the Trademarks. Notwithstanding the
foregoing, Sections 10, 11, 14, 16(i), the second sentence of 16(ii),
16(iii) and 18 of the License Agreement will survive the expiration or
termination of the License Agreement.
2. Ziff Xxxxx Media's obligation in Section 1(i) of the License Agreement
to cause the purchaser of any Publication to agree to assume and carry
out the obligations of Ziff Xxxxx Media under the License Agreement
with respect to that Publication
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shall continue until the License Agreement Termination Date and any
purchaser shall also assume all of Ziff Xxxxx Media's obligations
under this Agreement that pertain to such Publication.
3. (a) The licenses granted to ZDNet under the License Agreement to
translate, reproduce, publicly display, transmit or distribute Content
online and through electronic distribution via the World Wide Web, the
Internet or any technology hereafter developed and used for similar
purposes or evolutions or migrations thereof, to grant third parties
the right to distribute Content as described above (including Content
from the non-U.S. Publications) and to use the Trademarks in
connection therewith, shall remain exclusive through and including
February 28, 2001.
(b) Effective March 1, 2001 and continuing through the License
Agreement Termination Date, any and all exclusive licenses under
the License Agreement shall become non-exclusive, and ZDNet and
CNET, on the one hand, and Ziff Xxxxx Media and its affiliates,
on the other hand, shall have the non-exclusive right to, and
(subject to the limitations set forth elsewhere in this Paragraph
3 and the other requirements set forth in the License Agreement
as amended by this Agreement) the right to grant licenses to
third parties to, translate, reproduce, publicly display,
transmit or distribute Content through any means or media,
including, without limitation, electronic distribution via the
World Wide Web, the Internet or any technology hereafter
developed and used for similar purposes or evolutions or
migrations thereof. Effective March 1, 2001 and continuing
through the License Agreement Termination Date, the Content may
be used by both ZDNet and CNET as permitted by the terms of the
License Agreement as amended by this Agreement. If for any
reason, Ziff Xxxxx Media does not provide any Publication Content
to ZDNet in accordance with the manner and timing of distribution
prior to the date hereof or in accordance with the requirements
of Paragraph 3(e), then, neither Ziff Xxxxx Media nor any if its
affiliates shall use itself, or permit any third party to use, in
any manner online, the Content which has not been so delivered
until such time as it has been delivered to ZDNet. The preceding
sentence shall be ZDNet's sole remedy with respect to any failure
by Ziff Xxxxx Media to deliver Content from the PC Expert
Publication in France, however, it shall be ZDNet's non-exclusive
remedy, in addition to any breach of contract or other claim,
with regard to any failure to provide Content from any
Publication other than PC Expert.
(c) Notwithstanding the foregoing or anything to the contrary
contained in the License Agreement, but subject to Ziff Xxxxx
Media's rights under Section 1(ii) of the License Agreement, Ziff
Xxxxx Media shall not license Content from any of the
Publications to any of the third parties identified as Tier 1
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listed on the attached Schedule 1 until March 1, 2002, or to any
of the third parties identified as Tier 2 listed on the attached
Schedule 1 until December 1, 2001, in each case, as such Schedule
may be modified from time to time by written notice from ZDNet to
reflect new sublicenses of Content as permitted below. The
content sublicenses with the parties listed on Schedule 1 are
referred to as the "Restricted Arrangements". During the period
from March 1, 2001 through March 1, 2002, ZDNet will have the
continuing right under, and subject to the terms and conditions
of, Section 2 of the License Agreement to enter into new Content
sublicense arrangements, to add those arrangements to Schedule 1
and such new arrangements shall be considered Restricted
Arrangements (but only to the extent such sublicenses were
entered into after the date of this Agreement and only with
respect to entities which Ziff Xxxxx Media has not notified ZDNet
that it has a Content license agreement with), provided that in
all events ZDNet's right to license the Content (and the licenses
so granted as they apply to the Content) shall terminate on the
License Agreement Termination Date. Until the License Agreement
Termination Date, each party shall provide the other party with
written notification of all new third party Content license
agreements within five (5) days of entering into such
arrangements. Notwithstanding the foregoing, until March 1, 2002,
neither ZDNet or CNET, on the one hand, nor Ziff Xxxxx Media or
its affiliates on the other hand, will license any Publication
Content to any of the following entities or their affiliates (as
such term is defined in Section 13): International Data Group,
Inc., CMP Media, Inc., United News & Media PLC, or Imagine Media,
Inc. The preceding list of entities shall replace in its entirety
the list of Ziff Xxxxx Media competitors in Schedule 7.1(i)
referred to in Section 2(i)(A) of the License Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, ZDNet
will remain obligated to make the royalty payments to Ziff Xxxxx
Media contemplated by the last paragraph of Section 2(i) of the
License Agreement in respect of the Restricted Arrangements.
(e) From March 1, 2001 through the License Agreement Termination
Date, Ziff Xxxxx Media shall provide ZDNet with Content from the
Publications as soon as the particular issue (or portion thereof)
is completed for transmission to the printer, or on such earlier
date as any item of Content is released in any media. In the
event that issues or specific stories are marked with an embargo
date that applies universally to Ziff Xxxxx Media and all of its
licensees, ZDNet agrees to honor such embargo dates and to ensure
that the information remains confidential until those dates.
4. (a) ZDNet's right and obligation to host the Websites of each U.S.
Publication as provided in Section 3 of the License Agreement and
ZDNet's license to use the
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Trademarks (including, without limitation, the urls) which relate to
each U.S. Publication, will terminate with respect to each particular
U.S. Publication in accordance with the following schedule:
Website Hosting
Publication Termination Date
----------- ----------------
Family PC April 1, 2001
Yahoo! Internet Life, May 1, 2001
Computer Gaming World,
Expert Gamer, Electronic
Gaming Monthly, Official
U.S. Playstation Magazine
PC Magazine July 1, 2001
Interactive Week September 1, 2001
Ziff Xxxxx Smart Business for October 1, 2001
the New Economy; eWeek
Smart Partner November 1, 2001
ZDNet's right and obligation to host the Websites of each non-U.S.
Publication as provided in Section 3 of the License Agreement and
ZDNet's license to use the Trademarks (including, without limitation,
the urls) which relate to each non-U.S. Publication, will terminate
with respect to each particular non-U.S. Publication on the License
Agreement Termination Date (which License Agreement Termination Date
shall be deemed the Website Hosting Termination Date (as defined
below) for the non-U.S. Publications for purposes of this Agreement).
On the applicable date on which ZDNet's Website hosting rights and
obligations and Trademark licensing rights terminate with respect to a
particular Publication (each, a "Website Hosting Termination Date"),
as between ZDNet/CNET and Ziff Xxxxx Media, only Ziff Xxxxx Media and
its affiliates will have the right to host, maintain and produce the
Website with respect to the applicable Publication and to use
exclusively the applicable Trademarks.
(b) ZDNet will continue to post the ZDNet home page links described in
Section 3(v)(A) of the License Agreement for a particular Publication
until the Website Hosting Termination Date for such Publication.
Beginning on the first Website Hosting Termination Date, ZDNet and
CNET, on the one hand, and Ziff Xxxxx Media and its affiliates, on the
other hand, will display statements that such party's Websites are not
affiliated with the Websites of the other party, as well as
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links directing users to the other party's Websites. The links shall
be posted for a period of 120 days from each applicable Website
Hosting Termination Date in a form to be mutually agreed upon by the
parties. The links will be located on each page of any Website of Ziff
Xxxxx Media or its affiliates which includes Publication Content and
each page of any Website of ZDNet or CNET which includes Publication
Content. The links on the Ziff Xxxxx Media and affiliates' Websites
will be of the same size and placement on the page as those on the
ZDNet and CNET Websites, such size, design and placement shall be
mutually agreed upon by the parties.
(c) On the Website Hosting Termination Date for Yahoo! Internet Life,
ZDNet will deliver to Ziff Xxxxx Media an archive in XML format of the
Daily Net Buzz, Joke of the Day, and the other daily Yahoo! Internet
Life content linked to from the home page of that Publication Website
(the "YILO Daily Content") which will include the YILO Daily Content
for the one year period prior to such Website Hosting Termination
Date. On the Website Hosting Termination Date for PC Magazine, ZDNet
will deliver to Ziff Xxxxx Media an archive in XML format of the PC
Magazine First Looks (the "First Looks") which will include the First
Looks for the one year period prior to such Website Hosting
Termination Date.
5. (a) For the period prior to the applicable Website Hosting Termination
Date, Section 3(ii) is hereby modified such that ZDNet will not be
obligated to make any enhancements or material modifications to the
Publication Websites (other than bug fixes and technical upgrades)
beyond such Websites current form, unless approved by ZDNet (which
approval will not be unreasonably withheld or delayed) and paid for by
Ziff Xxxxx Media. For purposes of clarity, the preceding sentence
shall not limit ZDNet's right to cease enhancements as permitted under
Paragraph 6 below. Notwithstanding the foregoing, but assuming Ziff
Xxxxx Media's compliance with its obligations below to make any former
ZDNet employees it hires available for services, ZDNet agrees to post
material on the Publication Websites in a timely fashion until each
applicable Website Hosting Termination Date.
(b) Effective on each applicable Website Hosting Termination Date,
ZDNet's obligations under Section 3(iv) of the License Agreement
that pertain to Publication email newsletter distribution for the
applicable Publication Website shall terminate and ZDNet shall
have no further obligations thereunder with respect to such
Publication Website. Effective on March 1, 2001, ZDNet shall no
longer have any obligation to acquire additional subscribers for
such newsletters, but shall continue to include newsletter
subscriptions as part of its registration process until the
applicable Website Hosting Termination Date.
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(c) If, prior to a Website Hosting Termination Date, Ziff Xxxxx Media
hires (or has hired) a ZDNet employee who had worked for ZDNet in
connection with the hosting or production of a Publication
Website, Ziff Xxxxx Media will make such employee reasonably
available to ZDNet to assist in performing his or her prior
responsibilities for such Publication Website, until the Website
Hosting Termination Date for such Publication. ZDNet shall have
no further obligation to provide, or to provide Ziff Xxxxx Media
funding for, any editorial positions for the Publication Websites
pursuant to Section 3(vi) of the License Agreement. The preceding
sentences shall not affect ZDNet's obligation to continue hosting
and posting Content for each Publication Website, or to continue
to fund such hosting and posting, until the applicable Website
Hosting Termination Date.
6. For the period prior to the applicable Website Hosting Termination
Date, the second sentence of Section 3(iii) is hereby modified such
that ZDNet will continue to have the right (but not the obligation) to
include content it creates or licenses in a Publication Website, but
only to the extent ZDNet currently includes such additional content.
All other provisions of Section 3(iii) shall terminate with respect to
a particular Publication Website on the applicable Website Hosting
Termination Date. ZDNet's obligations in Section 3(viii) of the
License Agreement regarding the payment to Yahoo! of twenty percent of
Advertising Revenue and regarding ZDNet's obligation to host that
Publication Website shall terminate on the Website Hosting Termination
Date for the Yahoo! Internet Life Publication. The parties'
obligations under Section 4 of the License Agreement shall terminate
effective as of March 1, 2001.
7. ZDNet will continue to make royalty payments to Ziff Xxxxx Media
pursuant to Section 5 of the License Agreement for all periods through
March 1, 2001. The final royalty payment (in respect of January and
February 2001) will be made not later than March 25, 2001. For
purposes of clarity, the royalty payments will be calculated as
described in such section taking into account solely the gross
revenues of ZDNet and its subsidiaries (subject to the exclusions
listed in such section ) and will not include the revenues of the
other businesses of CNET. From and after the License Agreement
Termination Date, ZDNet will not be obligated to make any royalty
payments under Section 5 of the License Agreement. In consideration of
the elimination, after March 1, 2001, of all royalty obligations under
Section 5 of the License Agreement, ZDNet shall pay Ziff Xxxxx Media a
License Agreement termination fee in the total amount of $4.5 million,
payable in cash as follows: $2.2 million due on March 1, 2001, and
$2.3 million due on March 1, 2002.
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8. ZDNet's rights under the first sentence of Section 6(i) of the License
Agreement will terminate on March 1, 2002 and may be exercised by
either ZDNet or its affiliates, including, CNET. Ziff Xxxxx Media's
obligations under Section 6(i) of the License Agreement to include the
urls of the Publication Websites hosted by ZDNet on the cover and the
table of contents of the Publication shall end on the applicable
Website Hosting Termination Date. Ziff Xxxxx Media's obligation in
Section 6(i) to include subscription offers for ZDNet newsletters
within its subscription signups shall end on March 1, 2001.
9. ZDNet will continue to include online subscription forms for each
Publication on the Publication Website until the Website Hosting
Termination Date for such Publication. In addition, ZDNet will
distribute one mailing per month until the applicable Website Hosting
Termination Date to the ZDNet announce list. Such mailing will promote
subscription offers for any Publication still hosted by ZDNet on the
date such announce mailing is distributed. Ziff Xxxxx Media will
create the content of the mailings, however, it will be subject to
ZDNet's reasonable prior review and approval. Ziff Xxxxx Media will
pay to ZDNet $5.00 per net subscriber (both controlled and paid)
generated as a result of such mailings. Net subscriptions for
Publications with a paid circulation means subscriptions for which the
subscriber actually pays and for Publications with controlled
circulation means subscriptions for which the subscriber actually
qualifies. Payment shall be made to ZDNet within thirty (30) days
after the end of each calendar quarter (for example, on April 30, 2001
for the period through March 31, 2001) and ZDNet shall have the same
rights of audit with respect the payments owed to it under this
Paragraph 9 that are given to Ziff Xxxxx Media under Section 5(iii) of
the License Agreement. Ziff Xxxxx Media will have the right to set the
terms and rates of such subscription offers. The provisions of
Sections 6(ii) and 6(iii) of the License Agreement will terminate on
March 1, 2001 and neither party shall have any continuing obligations
under such Sections from and after such date.
10. From and after March 1, 2001, the obligations of each party under
Section 7 of the License Agreement will terminate and such Section 7
will have no further force or effect.
11. Section 8(iii), Section 8(iv) and Section 17 of the License Agreement
are hereby deleted in their entirety effective as of March 1, 2001 and
neither party will have any further obligations thereunder.
12. Section 10(v) of the License Agreement is hereby modified such that
the measure of the cap on Ziff Xxxxx Media's liability for damages
shall be the larger of (a) the amount of royalties paid to Ziff Xxxxx
Media in the contract year preceding the claim, and (b) $6.5 million
(such larger amount, the "Liability Cap"). In addition, the Liability
Cap shall not apply to Ziff Xxxxx Media's
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liability for any willful breach of the License Agreement as amended
by this Agreement.
13. From and after the date of this Agreement, Section 12 of the License
Agreement shall be deleted and such Section 12 will have no further
force or effect; provided, however, that the licenses granted to ZDNet
under the License Agreement (as amended by this Agreement) are
personal to ZDNet and CNET, and may not be assigned by ZDNet or CNET
except in connection with the sale or transfer of all or substantially
all of their assets or businesses, or the merger into another entity,
where the surviving entity agrees to be bound by the provisions of
this Agreement, provided that this Agreement may not be assigned in
whole or in part, including by operation of law, to International Data
Group, Inc., CMP Media, Inc., United News & Media PLC, or Imagine
Media, Inc., or any of their affiliates (defined for purposes of this
paragraph as any entity which is controlled by, controls or is under
common control with any of the named entities).
14. Section 18(i)(a) of the License Agreement shall be amended so that all
notices to Ziff Xxxxx Media will be sent in care of Ziff Xxxxx Media,
Inc., 00 Xxxx 00xx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Chief Executive Officer, with a copy sent to the same
address to the attention of the company's General Counsel.
B. MISCELLANEOUS
1. CNET and ZDNet will be jointly and severally liable for all
obligations, including without limitation payment obligations, of
ZDNet under the License Agreement and this Agreement.
2. Ziff Xxxxx Media, on behalf of itself and its subsidiaries and
affiliates, hereby waives any and all breaches of, defaults under, or
failures to comply with the terms and conditions of, the License
Agreement by ZDNet which have occurred on or before the date of this
Agreement and each hereby releases each of CNET and ZDNet and their
respective affiliates from liability with respect to such waived
matters, including any claims arising out of, resulting from or
relating to the Yahoo! Agreement prior to the date of this Agreement;
provided, however, that such waiver and release is a one-time waiver
and release and will not waive or release future compliance with the
terms of the License Agreement as amended by this Agreement. This
waiver is limited as specified and will not constitute a modification
or amendment to any provision of the License Agreement.
3. CNET and ZDNet, on behalf of themselves and their subsidiaries and
affiliates, hereby waive any and all breaches of, defaults under, or
failures to comply with
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the terms and conditions of, the License Agreement by Ziff Xxxxx Media
or Ziff Xxxxx Publishing which have occurred on or before the date of
this Agreement, and each hereby releases each of Ziff Xxxxx Media and
Ziff Xxxxx Publishing and their respective affiliates from liability
with respect to such waived matters, including any claims arising out
of, resulting from or relating to any failure of Ziff Xxxxx Media to
provide or make available to ZDNet prior to or after the date of this
Agreement, Content from the PC Expert Publication in France; provided,
however, that such waiver and release is a one-time waiver and release
and will not waive or release future compliance with the terms of the
License Agreement as amended by this Agreement (except as specified
above with respect to the PC Expert Publication). This waiver is
limited as specified and will not constitute a modification or
amendment to any provision of the License Agreement.
4. Except as modified by this Agreement, the License Agreement will
continue in full force and effect in accordance with its terms. To the
extent that this Agreement contains terms, conditions or agreements
which are different from, in addition to or are inconsistent with the
terms of the License Agreement, the terms of this Agreement will
govern. This Agreement will be governed by and construed in accordance
with the law of the State of New York applicable to agreements made
and to be performed in New York. Each party agrees that any action or
proceeding brought by the other during or after the term of this
Agreement arising out of or related to this Agreement shall be brought
in courts located in the State of New York. Each party irrevocably
consents to the jurisdiction of the courts of the State of New York
and of any Federal Court located in New York in connection with any
action or proceeding brought during or after the term of this
Agreement and arising out of or related to this Agreement and waives
any objection to venue or any claim that the action is brought in an
inconvenient forum. This Agreement may be executed in one or more
counterparts and may be executed by facsimile signature.
5. Except as may be required by law or the rules of any applicable
securities exchange, no party to this Agreement shall make, nor permit
its controlled affiliates to make any public statements about this
Agreement or the License Agreement without the prior approval of the
other party, which shall not be unreasonably withheld or delayed.
Please have an authorized representative of ZDNet and CNET sign below to
indicate your agreement with the foregoing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers duly authorized as of the date first written above.
ZIFF XXXXX MEDIA INC.
By:
----------------------------
Name:
Title:
ZDNET, INC.
By:
----------------------------
Name:
Title:
CNET Networks, Inc.
By:
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Name:
Title:
