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EXHIBIT 10.11
AMENDED AND RESTATED
LICENSE AGREEMENT
Dated as of February 10, 2000
This amended and restated license agreement is between the ZDNet division
of ZD Inc. (hereinafter "Licensor"), having offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and ZD Education, a division of ZD Inc., (hereinafter
"Licensee"), having offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Licensor and Licensee have entered into a license agreement dated as of
November 9, 1999 (the "Previous Agreement"), whereby Licensor agreed to license
the ▇▇▇▇ ZDU and the ZDU logo, including the applications and registrations set
forth in Exhibit A attached hereto and made a part hereof (hereinafter the
"Marks") for use in association with the services set forth in Exhibit A
(hereinafter the "Services") and the universal resource locators, ▇▇▇.▇▇▇.▇▇▇,
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, and ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "URLs").
The parties wish to amend and restate the Previous Agreement.
Therefore, in consideration of the mutual covenants and promises herein
provided, the parties agree as follows:
1. Grant of License. Licensor hereby grants to Licensee, subject to
the terms and conditions of this Agreement, an exclusive, non-transferable,
royalty-free license to use the Marks throughout the world (the "Territory") in
association with the Services, and the URLs only in connection with the license
granted herein; provided, however, that Licensor shall have the right, upon
notice to Licensee, to withdraw from the Territory any country in which a third
party claims that Licensee's use of the Marks or the URLs is an infringement or
violation of such third party's rights, provided, that Licensee shall have the
right to continue to use the Marks or the URLs if Licensee agrees in writing to
indemnify and defend and hold harmless Licensor from all liability, damages,
loss, cost or expense (including but not limited to reasonable attorneys' fees
and expenses) arising from Licensee's continued use of the Marks or the URLs in
such country.
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2. Value, Ownership and Use of the Marks.
(a) Licensee acknowledges that great value is placed on the
Marks and the goodwill associated therewith.
(b) Licensee shall maintain the standards of the quality of the
Services at the same or greater level as the standards of quality of the
Services prior to this date. All related advertising and promotional material
provided in association with the Marks; all use of the marks shall be in
accordance with the guidelines attached hereto as Exhibit B, as it may be
reasonably amended by Licensor.
(c) Licensee shall provide to Licensor access to the Services
and, once each year during the term of this Agreement, or more often if
requested by Licensor, specimens of its usage of the Marks, including, without
limitation, advertising and promotional materials related to the Services, for
the purpose of ensuring the quality thereof.
(d) Licensee shall use the Marks only in a form and manner that
is consistent with good trademark usage, and only with the legend stated in
Exhibit B as it may be reasonably amended from time to time by Licensor.
(e) Licensee understands, accepts and agrees that its usage of
the Marks shall inure to the benefit of Licensor.
(f) Licensee shall not do anything that is inconsistent with or
impairs the validity of the Marks or is inconsistent with or impairs Licensor's
ownership of the Marks and. shall cooperate with Licensor in protecting and
maintaining Licensor's rights in the Marks, including, without limitation, in
any efforts of Licensor to register the Marks or record this Agreement.
(g) Licensee accepts the obligations set forth in this Section
2 in order that proper control of the nature and quality of the Services and the
business carried on under or in association with the Marks shall be maintained.
Failure of Licensee to carry out any of its obligations under this Section 2
shall be deemed a material breach of this Agreement under Section 5(b) hereof.
3. No Sublicense. Licensee may not sublicense the rights granted to
it under this Agreement without first obtaining the written approval of
Licensor, which approval may be withheld by Licensor, for any reason whatsoever,
and upon the
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terms and conditions satisfactory to Licensor in its sole and absolute
discretion, except Licensee may sublicense the rights granted to it under this
Agreement to Smart Planet Inc., provided that such sublicense is subject to the
same terms and conditions as this Agreement, and that Licensor is a third party
beneficiary thereunder.
4. Infringement of the Marks. In the event that Licensee learns that
the Marks are being infringed or otherwise violated or encroached upon in the
Territory, Licensee shall ensure that notice of the same is brought to the
attention of Licensor. Licensor may then determine in its sole discretion what
action, if any, to take.
5. Term; Termination.
(a) Unless sooner terminated as herein provided for, this
Agreement shall remain in full force and effect for a period of three (3) years
from the date first above written (the "Term").
(b) Either party may terminate this Agreement prior to the end
of the Term if the other party has materially breached its obligations under
this Agreement and such breach is not cured within thirty (30) days after
written notice from the non-breaching party.
(c) Either party may terminate this Agreement prior to the end
of the Term if 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, upon delivery of notice to the other
party.
(d) Licensor shall have the right to terminate this Agreement
upon notice to Licensee if Licensee ceases to use the Marks for the Services for
a period of more than ninety (90) days. Such notice may be given at any time
prior to the expiration of such ninety (90) days period, provided Licensee has
not resumed use of the Marks prior to the receipt of such notice.
(e) Upon expiration or termination of this Agreement, unless
termination is due to a breach by Licensee, Licensor will not use, directly or
indirectly, or authorize the use of the Marks or the URLs, including without
limitation in metatags or similar codes, for a period of one (1) year following
expiration or termination.
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(f) Upon expiration or termination of this Agreement, whether
pursuant to this Section 5 or otherwise, Licensee shall cease all use of the
Marks and the URLs and the provision of all Services in association with the
Marks, or any word or design confusingly similar to the, Marks.
6. Indemnification. Licensee agrees to indemnify Licensor and to save
it harmless against all actions, claims, costs, damages or expenses which may be
brought or made against or incurred by Licensor as a result of or in any way
connected with any acts, whether of omission or commission, that may be
committed by Licensee or any of its affiliates, agents or employees in
connection with (i) Licensee's performance under this Agreement, (ii) Licensee's
conduct of its business, or (iii) Licensee's use of the Marks. Licensee
acknowledges that Licensor makes no representations or warranties to Licensee
with respect to the Marks or the URLs and Licensee accepts the license granted
herein with such understanding.
7. Limitation of Liability. EXCEPT FOR ANY INDEMNIFICATION LIABILITY
ARISING UNDER SECTION 6 HEREIN, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, 1NCIDENTIAL, 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.
8. No Public Statements. Neither party may make any public statements
or disclosures concerning this Agreement or its terms 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.
9. Confidentiality. If pursuant to this Agreement, either party
receives or becomes aware of any information from the other that is confidential
or proprietary in nature, that party shall keep such information confidential
and shall not, without the other party's prior written consent, disclose such
information in any manner whatsoever, in whole or in part, and shall not use
such information for any purpose except to carry out its rights and obligations
under this Agreement. The foregoing shall not apply to information that (a) is
or becomes generally available to the public through no action or fault of the
other party; (b) is known to either party without restriction, prior to receipt
from the other party under this Agreement, from
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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) 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) independently is 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.
10. Notices. Notices shall be in writing, sent either by hand, by
certified mail, return receipt requested, postage prepaid, or by Airborne or
other recognized overnight delivery service, all delivery changes prepaid and
addressed to Licensor AND Licensee as follows:
If to ZD Inc.: ZDNet
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to ZD Education: ZD Education
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
11. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to its
choice of law provisions.
12. Severability. In the event that one or more provisions of this
Agreement shall at any time be found to be invalid or otherwise rendered
unenforceable, such provision or provisions shall be severable from this
Agreement, so that the
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validity or enforceability of the remaining provisions of this Agreement shall
not be affected.
13. No Waiver. Failure of the parties at any time to insist upon
strict performance of any term, condition or covenant shall not be deemed a
waiver of its right at any time thereafter to insist on strict performance.
14. Entire Agreement. This Agreement expresses all the rights, duties
and obligations between the parties relating to its subject matter, and it may
not be modified or amended except in a writing signed by both parties.
15. No Agency. This Agreement shall not be so construed as to
constitute Licensee the agent or representative of Licensor for any purpose
whatsoever, and Licensee agrees that it has no authority to assume or to incur
any obligation or responsibility, expressed or implied, for, or on behalf of, or
in the name of, Licensor, or to bind, or attempt to bind, Licensor in any manner
or thing whatsoever.
16. No Assignability. Licensee shall not assign or otherwise transfer
this Agreement or its rights or obligations hereunder without the prior written
consent of Licensor provided, however, Licensee may assign its rights (i) in
connection with the sale of all or substantially all of, its assets unless such
sale is to a competitor of Licensor or (ii) to an affiliate or subsidiary of
Licensee that is the party providing the Services, unless such affiliate or
subsidiary is a competitor of Licensor.
17. Successors and Assigns. This Agreement shall be deemed to inure to
the benefit of and to bind the parties hereto and their respective successors
and permitted assigns.
18. Survival. Sections 2, 5(e), 6, 7, 8 and 9, and any other
provisions which by their terms or sense are intended to survive the expiration
or termination of this Agreement, shall survive the expiration or termination of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
under seal on the day and year first above written.
ZDNET, DIVISION OF
ZD INC.
By:
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Name:
Title:
ZD EDUCATION, DIVISION OF
ZD INC.
By:
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Name:
Title:
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EXHIBIT A
LICENSED MARKS
MARKS APPL. NO. FILING DATE:
----- --------- -----------
ZDU 75/048,931 January 26, 1996
ZDU 75/048,930 January 26, 1996
ZDU and Design 75/728,374 June 14, 1999
ZDU and Design 75/738,847 June 14, 1999
LICENSED SERVICES
-Educational services, namely, providing online courses, seminars and
interactive classes principally about computers and computer applications
-Providing information about computers and computer applications by means
of an online computer connection
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EXHIBIT B
TRADEMARK GUIDELINES
All terms used in this Exhibit B that are defined in the Agreement
shall have the meaning ascribed to them in the Agreement.
1. The Marks licensed under the Agreement (i.e., the "ZDU"
word ▇▇▇▇ and the "ZDU" logo) shall be used strictly in accordance with the
specifications set forth in the Agreement and below.
2. The Marks shall be used only as a composite ▇▇▇▇ and shall
be used only in the exact form and manner used by Seller in connection with the
Business prior to the execution of the Agreement.
3. The Marks shall not be enclosed in any way by a border or
combined with or incorporated with or in any other words or marks, or modified
in any other way. The Marks shall be of sufficient size and on an appropriately
contrasting background to make all letters plainly legible.
4. The Marks shall be used only in accordance with the
specifications as to placement, size and design set forth herein and always be
used in one of the following two color choices:
100% Black
PMS 485 Red plus Black
5. Seller shall provide Buyer with stats for the ZDU logo for
the uses permitted under the Agreement, and Buyer shall use only those stats in
exercising its rights under the Agreement.
6. The Marks shall always be written in a distinctive fashion,
e.g.,
(i) ZDU (all caps)
(ii) ZDU (all italics)
(iii) ZDU (bold)
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7. Buyer will use commercially diligent efforts to use the
Marks only as an adjective followed by the common generic term for the ▇▇▇▇,
e.g., the "ZDU courseware" and shall not use the Marks in the possessive.
8. Whenever reasonable in the context of a particular use of
the Marks, Buyer shall identify such trademark as being used under license from
Seller.
9. Each of the Marks must include the (R) or (TM) symbol, as
designated by Seller, and the following notice: "ZDU and the ZDU logo are either
registered trademarks or trademarks of ZD Inc. in the United States and/or other
countries".
The guidelines numbered 1-9 above may be amended by Seller in its
sole discretion from time to time upon written notice to Buyer.
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