CO-BRANDING AND LICENSE AGREEMENT
This Agreement, dated as of September 7, 1999 is between ZDNet, a
division of ZD Inc., a Delaware corporation, with a business address at 000
Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("ZDNet"), and xxxxxxx.xxx
inc., a Minnesota corporation, with a principal place of business at 0000
Xxxxx Xxxxxxxxx, Xxxxx, Xxxxxxxxx 00000 ("Company").
WHEREAS Company is the owner of the Web site at URL xxx.xxxxxxx.xxx
(the "Techies Site") which is designed to assist technology professionals
with career management and to assist companies in recruiting technology
professionals by matching corporate needs with available technology
professional personnel;
WHEREAS ZDNet operates an Internet site that provides information and
services related to computers and technology (the "ZDNet Site"). The "ZDNet
Site" shall mean the web site owned and operated by ZDNet aimed at users
within the U.S. which is currently located at xxx.xxxxx.xxx, excluding the
following areas of the site: ZDTV, Gamespot, Xxxxxxxxxx.xxx, the Mac Channel,
all foreign editions of the ZDNet Site, and ZDU; and
WHEREAS Company and ZDNet each desire to create, develop and operate a
co-branded area on the ZDNet Site (the "Co-branded Site") and to establish
links from the ZDNet Site to the Co-branded Site for promotional purposes.
NOW, THEREFORE, ZDNet and Company hereby agree as follows:
1. CO-BRANDED SITE.
(a) LAUNCH. The parties shall use best efforts to create,
develop and launch the Co-Branded Site on or before October 15, 1999. The
parties shall cooperate in good faith during a mutually agreed testing and
beta period prior to launch to ensure the viability of the Co-branded Site.
(b) CONTENT. The Co-branded Site will include a tech career
development center with the following functions and features: job listing
search (company not identified), career management resource content,
registration and Company authored related articles reasonably approved by
ZDNet (the "Techies Content"), and such content and services relating to
career development that are available on the ZDNet Site and other ZDNet
authored content (the "ZDNet Content") as the parties shall mutually agree.
ZDNet shall deliver the ZDNet Content to the Co-branded Site via FTP feed or
other mutually acceptable method. Other than the Techies Content and ZDNet
Content, no other content shall be included in the Co-branded Site unless
both parties mutually agree to include such content.
(c) URL. The Co-branded Site will have two URLs: (i)
xxxxxxx.xxxxx.xxx and (ii) xxxxx.xxxxxxx.xxx. A user will be able to navigate
back and forth between the two URLs as necessary. Exhibit A more fully sets
forth the features and functions by URL.
(d) ADDITIONAL PRODUCTS AND SERVICES. If during the Term of
this Agreement, Company offers or links to new services and products on the
Techies Site, other than the Techies Content described in Section 1(c),
Company may make such products and services available to the Co-branded Site;
provided, that such new products and services shall not be included in the
Co-branded Site without the consent of ZDNet and the inclusion of such
products and services on the Co-branded Site shall be upon financial terms to
be negotiated in good faith and agreed by the parties hereto. If Company
does not make such products and services available on the Co-branded Site,
such products and services shall not be promoted on the Co-branded Site, nor
shall the Co-branded Site provide a link to any pages of the Techies Site
that contain such products and services. Any such products and services
included on the Co-branded Site in accordance with this Section 1(d) shall be
considered to be included in the definition of Techies Content.
(e) BRANDING. The Co-branded Site will feature both the
ZDNet Marks and Company Marks (as such terms are hereinafter defined);
provided, however that the pages within the URL xxxxx.xxxxxxx.xxx will not
include the ZDNet Marks except for the pages that provide for the
registration to ZDNet. The ZDNet Marks and Company Marks shall appear in
substantially equal size and placed in appropriate positions of substantially
similar prominence on the Co-branded Site, as mutually agreed by the parties.
All use of the ZDNet Marks and Company Marks on the Co-branded Site shall be
in accordance with Section 10 herein. ZDNet shall create front-end
specifications and design the user interface (including content such as
graphics and text) for the Co-branded Site in consultation with Company and
consistent with user interface designs based on back-end specifications of
the Techies Site. ZDNet will also develop all graphics for the interface.
The Co-branded Site shall have a "look and feel" substantially similar to the
ZDNet Site so that it looks and feels like an integrated part of the ZDNet
Site. The design, text and graphics of the Co-branded Site created by ZDNet
shall be subject to the Company's approval, which shall not be unreasonably
withheld or delayed, and in any event, Company shall provide approval or
rejection of the design, text and graphics within five (5) business days of
Company's receipt of such materials from ZDNet. If Company does not deliver
consent or rejection to such materials within such five (5) day period,
Company shall be deemed to have approved such design, text and graphics. The
design layout of the Co-branded Site shall be substantially in the form
attached as Exhibit B which if not attached at execution of the Agreement
shall be provided by ZDNet within ten (10) business days of the effective
date of the Agreement. Each party will designate a contact to whom questions
about the production of the Co-branded Site shall be directed.
2. PROMOTIONAL OPPORTUNITIES. ZDNet will provide promotional
opportunities within certain areas of the ZDNet Site linking to the
Co-branded Site in accordance with the Promotion Plan attached hereto as
Exhibit C. ZDNet shall be responsible for developing in consultation with
the Company, all promotions and links from the ZDNet Site to the Co-branded
Site, including design and development of creative elements and software
implementation of links. Company and ZDNet shall jointly review the
Promotion Plan and ZDNet's performance thereunder, at least quarterly during
the Term of this Agreement. [****]
[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
2
[****] ZDNet shall perform a custom survey of the ZDNet Site users meeting
Company's requirements set out in Exhibit D two (2) times per year. Survey
results will be provided to Company in tabulated and raw data form. All
advertisements and promotions provided pursuant to this Agreement, shall also
be subject to ZDNet's General Terms and Conditions as set forth on ZDNet's
then current rate card which may be amended from time to time at ZDNet's
discretion; provided, that to the extent there is any inconsistency in the
terms of such rate card and this Agreement, the terms of this Agreement shall
control. ZDNet's current Terms and Conditions are attached as Exhibit E and
the current rate card can be reviewed at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxxxxxx/xxxxxxxx.xxx. ZDNet reserves
the right to redesign or modify the organization, structure, "look and feel,"
navigation and other elements of the ZDNet Site, including without
limitation, by adding or deleting channels, subchannels and/or screens. If
ZDNet eliminates or modifies an area of the ZDNet Site in a manner that
modifies the nature of the promotions required under this Section 2 and
Exhibit C in a material adverse fashion, ZDNet will provide the Co-Branded
Site with comparable promotions reasonably satisfactory to Company and, if
requested by Company, shall meet with Company to discuss such modifications,
and such modifications to the promotions shall be made within a commercially
reasonable time frame. No such change shall be made without prior notice to
Company. Additionally, the parties will work together to conform the
Co-branded Site to the new "look and feel" of the ZDNet Site within a
commercially reasonable time frame.
3. EXCLUSIVITY; NONCOMPETITION; THIRD PARTY CONTENT ON THE TECHIES
SITE.
(a) EXCLUSIVITY.
(i) During the Term of this Agreement, Company will be the
exclusive integrated, co-branded provider of technology job listings on the
ZDNet Site. ZDNet shall not provide any promotional opportunities or
advertising on the Co-branded Site or within careers-oriented newsletter
described in Exhibit C for any third parties who provide job listings.
Advertising or promotional opportunities for other parts of the ZDNet Site
for job listing providers will be limited to standard advertising units such
as banner ads, sponsored text links and standard rotating buttons. [****]
Notwithstanding anything set forth in this Section 3(a)(i), ZDNet shall not
place a link to a Web site providing technology job listings within the home
page channel navigation of the ZDNet Site.
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
3
(ii) For the period commencing upon execution of the
Agreement until December 31, 1999, Company shall not enter into any agreement
with [****].
(b) [****]
(c) THIRD PARTY CONTENT ON THE TECHIES SITE. If Company
includes any Content (as hereinafter defined) on the Techies Site, [****]. For
purposes of this Section 3(c), "Content" shall mean editorial content and
reviews, relating to information technology, including but not limited to
computer hardware and software, the Internet and related technology [****].
(d) ZDNET SPONSORSHIP ON THE TECHIES SITE. ZDNet shall
receive a sponsorship promotion box (the "Sponsorship MacroButton") [****].
The design parameters are outlined in Exhibit 1: Sponsorship MacroButton
[****].
4. OPERATIONS.
(a) OPERATING AND SERVING. Company shall host and serve the
Co-branded Site, including the features described in Section 1. Company
shall deliver the following features to be used on the Co-branded Site: (a)
the same registration tool used for the Techies Site; provided, that the
registration form shall include such additional information, if any, as is
required to register on the ZDNet Site and users of the Co-branded Site will
be automatically registered as ZDNet members unless they choose to opt out,
and the parties shall mutually agree to the form and content of the
registration interface, so that each party is able to obtain their respective
registration information therefrom; (b) advertising delivery features and (c)
additional features as mutually agreed by the parties. Company shall operate
and serve the Co-branded Site in a manner consistent with the present quality
standards maintained on the Techies Site and which meets response performance
standards for Co-branded Site users set out in Exhibit F. Company shall be
responsible for all system operation software costs, hardware costs and
network costs incurred in connection with hosting the Co-branded Site.
Company shall be responsible for quality assurance of the Co-branded Site and
its performance; provided that Company shall not be responsible for
performance relating to the undertakings or obligations of ZDNet. ZDNet
shall be responsible for all system operation software costs, hardware costs,
and network costs incurred in connection with delivering the ZDNet Content
and advertising to the Co-branded Site.
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
4
(b) MAINTENANCE AND TECHNICAL SUPPORT. Company and ZDNet
shall each maintain the portions of the design, content, and software
developed for the Co-branded Site for which each party is responsible.
Company shall incorporate all bug fixes and upgrades into the production
version of the Co-branded Site and will consider all product changes and
enhancements reasonably requested by ZDNet on an ongoing basis during the
Term of this Agreement, and shall make any product changes or enhancements
that are reasonably necessary to maintain the Co-branded Site at the
standards set forth in Section 4(a). All product upgrades shall be
implemented by Company, and Company shall maintain the hardware and bandwidth
upgrades reasonably needed to maintain services and products with performance
and reliability standards comparable to the Techies Site and the ZDNet Site.
Each party agrees to consult with the other party regarding technical issues
and each party shall designate a technical person as the contact person for
such consultation. Such technical person shall be contacted at least three
(3) working days prior to scheduled outages and immediately in case of
unscheduled outages
(c) CUSTOMER SUPPORT. Company shall provide all customer
support requested by the registered members and the companies who provide job
listings. Such support shall include making representatives of Company
available by email during regular business hours in each city in which the
Company maintains operations.
5. ADVERTISING ON THE CO-BRANDED SITE. ZDNet will sell all
advertising to be placed on the Co-branded Site and will remotely deliver
such advertising. ZDNet may serve such advertisements to pages contained
within the URL xxxxxxx.xxxxx.xxx and will not serve advertisements to pages
contained with in the URL xxxxx.xxxxxxx.xxx. Company will cooperate with the
integration of ZDNet's ad serving software with the Co-branded Site in order
that ZDNet may deliver and track such advertising efficiently and accurately.
ZDNet shall not sell or display advertising on the Co-branded Site for [****]
, nor any advertising which is illegal, or features sexually explicit
material or promotes alcohol, firearms or on-line gambling. [****] ZDNet
will deliver the Advertising Fee to Company on a quarterly basis within
thirty (30) days of the end of each three month period during the Term of
this Agreement, commencing with the first three month period beginning
October 1, 1999 and ending December 31, 1999. Each payment shall include a
report summarizing advertising sold during the applicable period and the
revenues received with respect to such advertising. Company shall have the
right to examine or appoint an independent certified public accountant to
examine and audit, at Company's expense, and not more than once a year during
normal business hours, the relevant records of ZDNet relating to the
advertising revenues
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
5
for the Co-branded Site and calculation of the Company's fee under this
Section 5. If such audit uncovers a deficiency in payment, ZDNet shall
promptly reimburse Company in the amount of such underpayment and if the
underpayment is ten percent (10%) or greater, ZDNet shall also promptly
reimburse Company for the reasonable costs of such audit. Company shall not
sell advertising for placement on the Co-branded Site without the prior
written consent of ZDNet; provided, however, Company may display company
profiles and job listings which are not intended to be advertisements and are
customarily included in the content on the Techies Site.
6. TRAFFIC REPORTS. Company shall generate daily traffic reports
and shall provide copies to ZDNet on a reasonable basis.
7. DATA OWNERSHIP AND USE.
(a) OWNERSHIP. Company shall own all user registration data
("Data") generated through the Co-branded Site. All new members on the
Co-branded Site shall also register for the ZDNet Site unless they opt out of
such registration under the registration interface to be agreed upon by the
parties. The data collected in connection with the registration with ZDNet
consisting of the registrant's first and last name, address, city, zip code,
country and email address (the "ZDNet Registration Data") shall be co-owned
by ZDNet and Company. Identical data collected by Company from persons opting
out of ZDNet registration ("Permitted Use Registration Data") will remain
owned solely by Company but made available to ZDNet under the remaining terms
of this Section 7.
(b) DELIVERY OF INFORMATION TO ZDNET. Company shall provide
the ZDNet Registration Data and Permitted Use Registration Data in summary
and in detailed form to ZDNet for use as permitted in Section 7(d). Such
data shall be shared in real time if commercially and technologically
feasible so that, for example ZDNet could customize its site content and
advertising for such user. If real time data sharing is not available,
Company shall provide such data to ZDNet at least bi-weekly in an alternative
format to be mutually agreed. Company shall provide to ZDNet any other
information (excluding Data) which it collects on the Co-branded Site such as
page views and unique users. Company shall not be required to share Data
(except for the ZDNet Registration Data, as such Data will be co-owned by
ZDNet and Company) or share Permitted Use Registration Data or other
information if such disclosure would violate any law or its privacy policy.
(c) DELIVERY OF INFORMATION TO COMPANY. ZDNet shall provide
Company with any information it collects on the Co-branded Site, including,
without limitation, page views, unique users, click-throughs to the
registration tool, and standard reporting on all promotions the Company runs
on the ZDNet network (including on-line, radio and television). ZDNet shall
not be required to provide any information to Company if such disclosure
would violate any law or its privacy policy.
(d) PERMITTED USE. The parties acknowledge and agree that
all use of the Permitted Use Registration Data and other information provided
by either party to the other party pursuant to this Section 7 shall be used
only as allowed by Company's and ZDNet's privacy policies in effect from time
to time. Subject to ZDNet's right to use the ZDNet Registration Data
6
for any purpose in accordance with its privacy policy, ZDNet shall be
entitled to use the Permitted Use Registration Data for internal purposes
only, and shall not disclose, sell or otherwise convey the Permitted Use
Registration Data to any third party. Notwithstanding anything else set forth
in this Section 7, ZDNet may use any Permitted Use Registration Data to
formulate statistics for its sales and marketing purposes, but not for any
direct revenue generation purpose. Company shall not disclose, sell or
convey the ZDNet Registration Data to any third party as a ZDNet audience
list, and shall not disclose information provided by ZDNet under Section 7(c)
to any third party, but may use such information for sales and marketing
purposes.
8. TERM; TERMINATION.
(a) TERM. Subject to the earlier termination of this
Agreement at set forth below, this Agreement shall commence the date hereof
and shall expire on October 15, 2001 (the "Term").
(b) TERMINATION. Either party may terminate this Agreement
prior to the end of the Term if (i) the other party has materially breached
its obligations under this Agreement and such breach is not cured within
thirty (30) days after notice from the non-breaching party (failure to make
payments hereunder shall constitute a material breach of this Agreement),
(ii) the other party makes a general assignment for the benefit of its
creditors, files a voluntary petition in bankruptcy or for reorganization
under the bankruptcy laws or if a petition is filed against it, or if a
receiver or trustee is appointed for such other party, or (iii) pursuant to
Section 20.
(c) EFFECT OF TERMINATION; SURVIVAL. Upon termination or
expiration of this Agreement for any reason, (i) Company shall immediately
cease all use and distribution of the ZDNet Marks (as such term is
hereinafter defined) and the ZDNet Content, and shall promptly delete the
ZDNet Marks and ZDNet Content from its computer systems, (ii) ZDNet shall
immediately cease all use and distribution of the Company Marks except in
connection with advertising or promotions of the Techies Site purchased by
Company prior to termination or expiration to be posted on the ZDNet Site
after the termination or expiration of this Agreement, it being understood
that ZDNet shall not be obligated to otherwise promote the Techies Site after
termination of this Agreement, and (iii) both parties shall immediately cease
use of the Co-branded Site. Neither party shall thereafter adopt and use any
new trademark, trade name, logo or trade dress which is the same or similar
to any of the Marks owned by the other party, or a URL that incorporates any
of the Marks owned by the other party. The provisions of this Section and
Sections 7, 10(d), 11, 13 and any payment obligation that has accrued and is
owed by one party to the other party but has not been paid prior to the
termination or expiration, shall survive the termination or expiration of
this Agreement. It is expressly agreed that if this Agreement is duly
terminated prior to expiration of the Term in accordance with Section 8(b),
Company shall be obligated to deliver within thirty (30) days of the
effective date of such termination all amounts accrued and owing under
Section 9(a) prior to such termination.
9. CONSIDERATION; PAYMENT.
7
(a) [****] Company shall pay ZDNet the amount of [****] in
accordance with the payment schedule set forth in Exhibit G.
(b) ZDNET INVESTMENT. ZDNet and Company agree that within
five (5) business days after the date hereof, ZDNet and Company will
consummate the purchase by ZDNet of capital stock of Company. In the event
that the purchase by ZDNet of the Company's capital stock does not close
within such five (5) business day period for any reason, either party shall
have the right to terminate this Agreement within five (5) business days
thereafter upon notice to the other party. Such termination shall be without
any liability or continuing obligation of ZDNet or Company.
(c) [****]
(d) CORPORATE SUBSCRIPTION. ZDNet shall have the option of
purchasing from the Company a corporate subscription to the Techies Site
multi-site service for each year during the Term at a [****] from the
suggested pricing offered to retail customers.
10. INTELLECTUAL PROPERTY.
(a) ZDNET LICENSE. ZDNet hereby grants Company,
during the Term, a non-exclusive, non-transferable, royalty-free (except as
provided herein), worldwide license to use, publicly display, transmit,
distribute and reproduce (a) the ZDNet Content, and (b) ZDNet's logos,
trademarks, trade names and trade dress contained in the ZDNet Content and
the "ZDNET" trademark and logo (the "ZDNet Marks") in accordance with ZDNet's
established trademark usage policies and procedures, solely for the purposes
of operating, hosting, and serving the Co-branded Site and promoting the
Co-branded Site and advertising the ZDNet Site in accordance with Exhibit I.
Company shall not alter, modify or amend the ZDNet Content without the prior
written consent of ZDNet. Company shall not alter or impair any
acknowledgment of copyright or other intellectual property rights of ZDNet
that may appear in
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
8
the ZDNet Content. If ZDNet requests that any portion of the ZDNet Content
on the Co-branded Site be deleted, corrected or made inaccessible because
such ZDNet Content contains any errors, or is, or could be subject to a claim
that is defamatory, obscene, invades the right of privacy or infringes any
right of any person or entity, or for any other reason, Company shall delete
or correct the affected ZDNet Content within twenty-four (24) hours after
receipt of Company's request.
(b) COMPANY LICENSE. Company hereby grants ZDNet,
during the Term, the right to reproduce and display the Company's logos,
trademarks, trade names and other similar identifying material (the "Company
Marks") in accordance with Company's established trademark usage policies and
procedures, solely for the purposes of promoting the Co-branded Site in
accordance with this Agreement.
(c) USE OF MARKS. In connection with the licenses
granted hereunder, each party shall have the unilateral right to establish
such quality standards and additional terms and conditions concerning the use
of its Marks as such party deems reasonably necessary to protect its Marks.
Use of a party's Marks, and the goodwill associated therewith, shall inure
solely to the respective owner of the Marks. Upon request of either party,
the other party shall provide appropriate attribution of the use of the
requesting party's Marks. Except as expressly permitted herein, neither
party shall make any other use of the other party's Marks. Each party's
rights in their respective Marks, other then those expressly licensed in this
Agreement, are reserved for such party for its own use and benefit.
(d) OWNERSHIP OF MARKS. ZDNet acknowledges and
agrees that (i) as between Company and ZDNet, Company owns all right, title
and interest in and to the Techies Site, Techies Content and the Company
Marks, (ii) nothing in this Agreement shall confer in ZDNet or any ZDNet
affiliate any right of ownership in the Techies Site, Techies Content or and
the Company Marks, and (iii) ZDNet shall not now or in the future contest the
validity of the Company Marks. Company acknowledges and agrees that (i) as
between Company and ZDNet, ZDNet owns all right, title and interest in and to
the ZDNet Content and the ZDNet Marks, (ii) nothing in this Agreement shall
confer in Company or any Company affiliate any right of ownership in the
ZDNet Site, the ZDNet Content and the ZDNet Marks, and (iii) Company shall
not now or in the future contest the validity of the ZDNet Marks. ZDNet and
Company shall jointly own any intellectual property (including any content or
graphics that do not incorporate the Marks) created solely for the Co-Branded
Site. Each of the Company and ZDNet agree that it shall at all times conduct
all aspects of its business which relates to the Co-branded Site in a
professional manner and shall not do or permit to be done any act that could
reasonably be anticipated to harm, prejudice or otherwise damage the
reputation and goodwill associated with the Marks.
11. INDEMNIFICATION.
(a) COMPANY INDEMNITY. Company agrees to indemnify,
defend and hold harmless, ZDNet and its officers, directors, shareholders,
employees, agents and affiliates, subsidiaries, successors and assigns, from
and against any and all damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, arising out of or related to any third
party
9
claim alleging (i) any breach of any covenant, agreement or warranty made by
Company in this Agreement, (ii) that the Techies Content when used on the
Co-Branded Site or the Company Marks when used as permitted herein infringe
any copyright, US trademark, US patent, trade secret or other intellectual
property right of any third party, or (iii) unauthorized or illegal use by
the Company of the Data or other information obtained from the Co-branded
Site or from ZDNet.
(b) ZDNET INDEMNITY. ZDNet agrees to indemnify,
defend and hold harmless, Company and its officers, directors, shareholders,
employees, agents and affiliates, subsidiaries, successors and assigns, from
and against any and all damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, arising out of or related to any third
party claim alleging (i) any breach of any covenant, agreement or warranty
made by ZDNet in this Agreement, (ii) that the ZDNet Content or ZDNet Marks
when used as permitted herein infringe any copyright, US trademark, US
patent, trade secret or other intellectual property right of any third party,
or (iii) unauthorized or illegal use by ZDNet of the Data or other
information obtained by ZDNet directly from the Co-branded Site or from
Company, and that any advertising on the Co-branded Site is false or
misleading.
(c) CONDITIONS PRECEDENT. Each party's
indemnification obligations hereunder shall be conditioned upon (i) prompt
written notice by the indemnified party to the indemnifying party of any
claim, action or demand for which indemnity is claimed; (ii) complete control
of the defense and settlement thereof by the indemnifying party; and (iii)
such reasonable cooperation by the indemnified party in the defense as the
indemnifying party may request.
(d) INFRINGEMENT CLAIM. If either party's (the
"Infringing Party") intellectual property rights are alleged or held to
infringe the intellectual property rights of a third party, the Infringing
Party shall, at its own expense, and in its sole discretion, (i) procure for
the non-Infringing Party the right to continue to use the allegedly
infringing intellectual property or (ii) replace or modify the intellectual
property to make it non-infringing If neither option is available the
Infringing Party shall be deemed to be in material breach of this Agreement.
12. REPRESENTATIONS AND WARRANTIES.
(a) BY COMPANY. Company represents and warrants to
ZDNet:
(i) Company is duly organized and validly
existing under the laws of the State of Minnesota and has full
corporate power and authority to enter into this Agreement and
perform as contemplated herein; and
(ii) Company has received no notice that the
Company Marks, Techies Content or any other intellectual property
of Company to be used in the performance of its services and
obligations under this Agreement, violates the rights or interests
of any third party.
(b) BY ZDNET. ZDNet represents and warrants to Company:
10
(i) ZDNet is a division of ZD Inc., a corporation
duly organized and validly existing under the laws of the State of
Delaware and has full corporate power and authority to enter into
this Agreement and perform as contemplated herein;
(ii) ZDNet has received no notice that the ZDNet
Marks, ZDNet Content or any other intellectual property of ZDNet
to be used in the performance of its services and obligations
under this Agreement, violates the rights or interests of any
third party.
13. PRESS RELEASES. The parties may jointly prepare press
releases announcing the existence of this Agreement, but shall not otherwise
make any public statements or disclosures concerning the terms of this
Agreement to any medium except with the prior approval of both parties or as
required by law or the rules of any applicable stock exchange or any
governmental agency.
14. CONFIDENTIALITY. During the Term of this Agreement and
thereafter, each party will use and reproduce the other party's Confidential
Information only for purposes of this Agreement and only to the extent
necessary for such purpose and will restrict disclosure of the other party's
Confidential Information to its employees, consultants or independent
contractors with a need to know and will not disclose the other party's
Confidential Information to any third party without the prior written
approval of the other party. Notwithstanding the foregoing, it will not be a
breach of this Agreement for either party to disclose Confidential
Information of the other party if required to do so under law or in a
judicial or other governmental investigation or proceeding, provided the
other party has been given prior notice and the disclosing party has sought
all available safeguards against widespread dissemination prior to such
disclosure. As used in this Agreement, the term "Confidential Information"
refers to: (i) the terms and conditions of this Agreement; (ii) each party's
trade secrets, business plans, strategies, methods and/or practices; and
(iii) any other information relating to either party or its business that is
not generally known to the public, including but not limited to information
about either party's personnel, products, customers, marketing strategies,
services or future business plans. Notwithstanding the foregoing,
Confidential Information specifically excludes (A) information that is now
generally available to the public or subsequently becomes available to the
public through no action or fault of the other party; (B) information that is
known to either party without restriction, prior to receipt from the other
party under this Agreement, from its own independent sources as evidenced by
such party's written records, and which was not acquired, directly or
indirectly, from the other party; (C) information that either party receives
from any third party reasonably known by such receiving party to have a legal
right to transmit such information, and not under any obligation to keep such
information confidential; and (D) information independently developed by
either party's employees or agents provided that either party can show that
those same employees or agents had no access to the Confidential Information
received hereunder. Notwithstanding anything else set forth in this Section
14, each party shall be entitled to use the Data in accordance with Section 7
herein.
15. RELATIONSHIP OF PARTIES. Company and ZDNet are independent
contractors under this Agreement, and nothing herein will be construed to
create a partnership, joint venture or
11
agency relationship between them. Neither party has authority to enter into
agreements of any kind on behalf of the other.
16. DISPUTE RESOLUTION; CHOICE OF LAW AND FORUM. This Agreement,
its interpretation, performance or any breach thereof, will be construed in
accordance with, and all questions with respect thereto will be determined
by, the laws of the State of New York applicable to contracts entered into
and wholly to be performed within said state without regard to its conflict
of laws rules. Any disputes between Company and ZDNet not otherwise resolved
by the parties or for which injunctive relief is sought, shall be submitted
to the jurisdiction of the Federal or state courts located (i) in the City of
New York, State of New York in the case of a claim brought by Company against
ZDNet, and Company waives any objection it has or may have in the future with
respect to such venue or (ii) in County of Hennepin, State of Minnesota in
the case of a claim brought by ZDNet against Company, and ZDNet waives any
objection it has or may have in the future with respect to such venue.
17. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions and
matters contemplated hereby, supersedes all previous agreements between the
parties concerning the subject matter, and cannot be amended except by a
writing signed by both parties. No party hereto has relied on any statement,
representation or promise of any other party or with any other officer,
agent, employee or attorney for the other party in executing this Agreement
except as expressly stated herein.
18. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures will be considered original signatures.
19. LIMITATIONS OF LIABILITY. EXCEPT FOR ANY INDEMNIFICATION
LIABILITY ARISING UNDER SECTION 11 HEREIN, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF
THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS,
BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
20. FORCE MAJEURE. In the event that either party is prevented
from performing, or is unable to perform, any of its obligations under this
Agreement due to any cause beyond the reasonable control of the party
invoking this provision, the affected party's performance shall be excused
and the time for performance shall be extended for the period of delay or
inability to perform due to such occurrence. In the event that a party's
performance is prevented or delayed for more than sixty (60) days, then the
other party may terminate this Agreement upon delivery of written notice to
the non-performing party.
21. NOTICES. All notice required to be given under this Agreement
must be given in writing and delivered either in hand, by certified mail,
return receipt requested, postage pre-paid,
12
or by Federal Express or other recognized overnight delivery service, all
delivery charges pre-paid, and addressed:
If to Company: xxxxxxx.xxx inc.
0000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention: VP Business Development
Fax Number: 000-000-0000
If to ZDNet: ZDNet
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: VP of Corporate Development
Fax No.: (000) 000-0000
With a copy of all notices relating to breach, termination or
interpretation of this Agreement to:
ZD Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department
Fax No. (000) 000-0000
A notice shall be deemed to have been delivered (i) upon receipt of such
notice by the receiving party in the event such notice is delivered by hand,
(ii) three (3) business days following the deposit of such notice in the mail
if such notice is being delivered by mail, and (iii) one business day
following the deposit of such notice with an overnight delivery service.
22. SEVERABILITY. In the event that any provision of this
Agreement for any reason shall be held illegal, unenforceable, or invalid,
the remaining provisions hereof shall remain in full force and effect and the
affected provision shall be modified in a manner which comes closest to the
intention of the parties at the time the original provision was agreed upon.
23. WAIVERS. Any waiver of any term or condition of this
Agreement shall only be deemed to have been made if expressed in writing by
the party granting such waiver. The failure or neglect by either party to
enforce, in any one or more instances, any of the terms and conditions of
this Agreement shall not be construed as a waiver of the future performance
of any such term or condition, or any other terms or conditions of this
Agreement.
24. ASSIGNMENT. Neither party shall have the right to
assign or sublicense the rights or obligations set forth in this Agreement
without the other party's written consent (which shall not be unreasonably
withheld or delayed), provided that either party shall have the right to
assign this Agreement and all rights and obligations herein to any person or
entity acquiring substantially all of the assigning party's business.
13
IN WITNESS WHEREOF, the undersigned have executed this Co-Branding and
License Agreement as of the date set forth above.
ZD INC. XXXXXXX.XXX INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Executive Director, Business Title: VP -Business
Development Development
14
EXHIBIT A
FEATURES BY URL
--------------------------------------------------------------------------------
CO-BRANDED SITE
--------------------------------------------------------------------------------
xxxxx.xxx xxxxxxx.xxxxx.xxx xxxxx.xxxxxxx.xxx
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1. Links to Co-branded Site 1. techies.com.articles 1. Registration as
and promotion of Co-branded xxxxxxx.xxx Member
Site in accordance with (includes career agent
Exhibit C to this Agreement. setup)
--------------------------------------------------------------------------------
2. xxxxx.xxx articles
--------------------------------------------------------------------------------
3. xxxxxxx.xxx preview
search & results
--------------------------------------------------------------------------------
4. Company Profiles
--------------------------------------------------------------------------------
5. Promotion of 2. There will be no
xxxxxxx.xxx registration advertisements on this
URL.
--------------------------------------------------------------------------------
15
EXHIBIT B
CO-BRANDED SITE LAYOUT & DESIGN
[GRAPHIC]
16
EXHIBIT C
PROMOTION PROGRAM
1. REGISTRATION INTEGRATION
a. ZDNet will integrate an opt-in selection for users to pass a relevant
portion of their registration data to the Co-Branded Service during the
ZDNet registration process. This information transfer will provide a
portion of the data required to complete registration and will trigger an
email encouraging users to proceed with the entire registration process.
A graphical example is shown as Screenshot A following Exhibit C.
b. [****]
c. [****]
2. ENTERPRISE CHANNEL INTEGRATION
a. ZDNet will provide placement of a graphical macrobutton or equivalent unit
with every page of the Enterprise Channel Career Content Zone, including
but not limited to the Salary Zone tool and other technology career content
offered within the Zone. The placement will drive users to register with
the Co-Branded Service.
b. ZDNet will provide an editorial resource to update and refresh Career Zone
Content on a regular basis, but no less than twice a month.
A graphical example is shown as Screenshot B following Exhibit C
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
17
3. COMPANY FINDER INTEGRATION
a. ZDNet will integrate links to the co-branded service within the ZDNet
Company Finder. Links will refer users to the Co-Branded Service.
A graphical example is shown as Screenshot C following Exhibit C
4. INTEGRATION INTO ZDNET PERSISTENT NAVIGATION
a. ZDNet will integrate a "Tech Jobs" link on the ZDNet Persistent
Navigational Element and such link will drive users to the Co-Branded
Service. The link will exist in all displayed instances of the
Navigational Element.
5. INTEGRATION / EXCLUSIVE SPONSORSHIP - ZDNET CAREERS NEWSLETTER
ZDNet will produce a monthly Careers newsletter which will be offered with the
Enterprise Career Zone and within the ZDNet general newsletter sign-up screens.
The newsletter will be ZDNet editorially-driven content and the Co-Branded
Service will be prominently features as the exclusive Career / Jobs sponsor in
every mailing. Xxxxxxx.xxx will also create editorial content for this
newsletter and a minimum of one content piece from Xxxxxxx.xxx will be placed in
each newsletter, subject to final editorial approval by ZDNet. No advertising
of online recruitment firms will be sold in the Careers Newsletter.
6. ZDNET HOMEPAGE INTEGRATION
ZDNet will provide integration of the Co-Branded Service via a "Tech Jobs" or
similar link on the ZDNet Homepage within the Quicklinks, Channel Guide, ZDNet
Services and Persistent navigational elements.
A graphical sample is shown as Screenshot D following Exhibit C
7. [****]
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
18
[****]
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
19
SCREENSHOT A - REGISTRATION INTEGRATION
[GRAPHIC]
20
SCREENSHOT B - CAREER ZONE CONTENT INTEGRATION
[GRAPHIC]
21
SCREENSHOT C - COMPANY FINDER INTEGRATION
[GRAPHIC]
22
SCREENSHOT D - HOMEPAGE INTEGRATION
[GRAPHIC]
23
EXHIBIT D
CUSTOMER SURVEY REQUIREMENTS
Minimum survey frequency: twice per year
Minimum sample size: 1,000
Minimum number of questions and survey design: to be mutually agreed upon by the
parties
Survey content generation: xxxxxxx.xxx.
Survey content approval: joint (ZDNet and xxxxxxx.xxx.)
Question format: multiple choice.
Ownership of data: joint
Reporting format: Microsoft Excel, all recorded data (not just summaries)
24
EXHIBIT E
ZDNET CURRENT TERMS AND CONDITIONS
A. Acceptance of advertising programs subject to space availability upon receipt
of signed contract or insertion order by ZDNet.
B. Online advertisements are accepted upon the representation that advertiser
and its agency have the right to publish and display the contents thereof. In
consideration of such online publication and display, advertiser and its
agency agree to indemnify and hold online publisher harmless against any
expense or loss by reason of any claims arising out of online publication and
display.
C. Positioning of advertisements is at the discretion of the publisher except
where a request for a specific preferred position is acknowledged by
publisher in writing. Material must be received by material closing date,
otherwise position may be lost, or requested impression level may be reduced.
D. Publisher may use prior ad material if new material is not received on
time.
E. Cancellation Policy:
Any campaign can be cancelled with no penalty up to two weeks before the
scheduled start date of the campaign. Campaigns cancelled less than two weeks
before the scheduled start date of the campaign are subject to a 15%
cancellation fee. After a campaign has started, cancellation notices are
accepted with two weeks' notice. Advertisers will be rebilled for all
impressions delivered through effective end date; if appropriate, shortrates
will apply.
F. Postponement Policy:
In cases where ad material has not arrived by the fifth working day after the
agreed-upon campaign start date, ZDNet's postponement policy goes into
effect. ZDNet will reduce the number of total impressions for every day the
campaign is late, based on even distribution, and the advertiser will be
invoiced at the original contracted dollar amount.
G. All contents of advertisements are subject to online publisher's approval.
Online publisher reserves the right to reject or cancel any advertisement,
insertion order, space reservation or position commitment at any time.
H. All insertion orders are accepted subject to provisions of the current
rate card.
I. Online publisher shall not be liable for any costs or damages if for any
reason it fails to electronically publish and display an advertisement. In no
event shall online publisher be liable for any damages, consequential or
otherwise, in excess of the amount paid for the advertisement, as a result of
any mistake in the advertisement, omission from or error in any index, or for
any other reason.
25
J. Online publisher shall have the right to hold advertiser and/or its
advertising agency jointly and severally liable for such monies as are due
and payable to online publisher for advertising which advertiser or its agent
ordered and which advertising was published and displayed.
K. No conditions other than those set forth in the rate card shall be binding
on the online publisher unless specifically agreed to in writing by the
online publisher. Online publisher will not be bound by conditions printed or
appearing on order blanks or copy instructions which conflict with the
provisions of the rate card.
L. Online publisher is not liable for delays in delivery and/or non-delivery
in the event of an Act-of-God, action by any government or quasi-governmental
entity, fire, flood, insurrection, riot, explosion, embargo, strikes whether
legal or illegal, labor or material shortage, transportation interruption of
any kind, work slow-down or any condition beyond the control of the
electronic publisher affecting production or delivery in any manner.
M. As used in this section entitled "General Terms and Conditions" the term
online publisher shall refer to ZDNet and Xxxx-Xxxxx Inc.
N. Payment in full is due within 30 days of the "live" date of advertiser's
program.
O. All discounts are multiplicative and not additive.
P. Rates are subject to change upon notice from the publisher. Publisher will
not accept any catalogs as advertisements nor permit the use of the word
"catalog" in any advertisements except by special written agreement with
Publisher. Advertisers using the word "catalog" in their ads without
Publisher's written consent will be held liable for the payment of any
additional postage fees which may be imposed by the US Postal Service."
CONTRACTUAL INFORMATION
- Banners and insertion orders must be delivered at least three (3)
business days prior to the start of an insertion term.
- Banner changes during an insertion term must be delivered at least one
(1) business day prior to change.
- ZDNet will run up to four (4) banners at one time, and will change
creatives as frequently as once per week.
- All advertising requires a signed insertion order.
- Any correspondence should include a list of: advertiser's name,
contracted banner positions, URL link, alternative text and run dates.
- All quarterly and monthly programs start on weekdays (no holidays or
weekends).
26
EXHIBIT F
PERFORMANCE STANDARDS
Uptime Performance: Company shall maintain uptime of at least ninety-seven
percent (97%) of the time within each one month period of this Agreement,
barring exceptions detailed under Measurement Stipulations below. Service
uptime means that a user on the Internet is able to access the Co-branded
Site, and that access to the Co-branded Site, including the registration
tool, shall not result in retrieval errors.
Measurement Stipulations: Performance shall be measured by multiple
independent third party companies agreed upon by both parties. Measurement
periods shall begin and end at 00:00 Sunday morning. Any scheduled
maintenance performed by Company or its agents shall be excluded from uptime
calculations. Company shall not be responsible for access problems to the
Co-branded Site caused by failure of a user or third party measurement
company's ISP, intervening ISP between the user or third party measurement
company's ISP, or peering points (public or private) between any of the
aforementioned parties. Such failures shall not be included in performance
measurement calculations. Problems accessing content caused by user action or
lack thereof (i.e., forgot password, proxies or browser is not standards
compliant, etc.) shall not count toward performance measurement calculations.
However, Company shall take commercially reasonable steps to solve such
problems as they arise.
Non-conformance: Company shall be considered to not be in compliance with
performance measurement guidelines if it fails to meet the conditions
outlined above for two consecutive measurement periods or for three
measurement periods in any six week period.
27
EXHIBIT G
PAYMENT SCHEDULE
[****]
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
28
[****]
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
29
EXHIBIT I
SPONSORSHIP MACROBUTTON
The Company shall provide an above the fold sponsorship MacroButton to ZDNet.
The MacroButton shall be designed substantially as follows:
MACROBUTTON SPECIFICATIONS
Dimensions: 88w x 120h (pixels).
Format: GIF format (72dpi, 256 colors).
Link Information: The MacroButton will contain a linked ZDNet logo and 1-3
additional links to ZDNet which shall be editorial in nature and determined by
ZDNet.
30
November 10, 1999
Xx. Xxxxxx Still, Jr.
Norwest Venture Partners
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Xx. Xxxxxxx X. Xxxxx
Crosslink Omega Ventures
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xx. Xxx X. Xxxxxxx
ZDNet, a division of ZD Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Extension of Offering Period; [***]
-----------------------------------
Dear Xxxxxxx, Xxxxxx and Xxx:
As a final step in closing the Series B financing of $25 million, I am asking
for your acknowledgement and consent to (i) extend the offering period under
the Series B Convertible Preferred Stock Purchase Agreement dated September
14, 1999, to allow for the sale of the balance of the shares offered under
the agreement, and (ii) [***]. In exchange, we agree to the items listed on
the attached schedule.
Please sign this letter and return it immediately to me via fax
(000-000-0000).
Sincerely,
/s/ Xxxx Xxxxxxx
----------------------
Xxxx Xxxxxxx
Chief Financial Officer
Acknowledged and Agreed:
Record Name of Shareholder: /s/ ZDNet, a division of ZD Inc.
-----------------------------------
**** Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
Schedule to 10 November 1999 Letter
------------------------------------
[****]
**** Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
2
