Exhibit 10.10
Ziff Xxxxx Media Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
January 19, 2001
ZDNet, Inc.
CNET Networks, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Re: Amendment to License Agreement
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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
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of Ziff Xxxxx Media under the License Agreement with respect to that
Publication 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
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from any of the Publications to any of the third parties identified
as Tier 1 listed on the attached Schedule 1 until March 1, 2002, or
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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
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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.
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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 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:
Publication Website Hosting
----------- Termination Date
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Family PC April 1, 2001
Yahoo! Internet Life,Computer Gaming World, Expert May 1, 2001
Gamer, Electronic Gaming Monthly, Official U.S.
Playstation Magazine
PC Magazine July 1, 2001
Interactive Week September 1, 2001
Ziff Xxxxx Smart Business for the New Economy; eWeek October 1
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
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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 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
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subscribers for such newsletters, but shall continue to include newsletter
subscriptions as part of its registration process until the applicable
Website Hosting Termination Date.
(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
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million, payable in cash as follows: $2.2 million due on March 1, 2001, and
$2.3 million due on March 1, 2002.
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
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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 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
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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
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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 Yahoo!
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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 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,
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however, that such waiver and release is a one-time waiver
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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.
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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: /s/ Xxxxxx XxXxxxx
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Name: Xxxxxx XxXxxxx
Title: Senior Executive Vice President
and Chief Operating Officer
ZDNET, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
CNET Networks, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
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Schedule 1
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See Attachment
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