Services Agreement - Ziff-Davis Verlag GmbH and Yahoo! GmbH
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is made as of November 1, 1996
by and between ZIFF-DAVIS VERLAG, GmbH ("ZDV"), a corporation organized under
the laws of Germany and YAHOO! GmbH ("YAG"), a corporation organized under
the laws of Germany.
YAG has been organized as a joint venture between Yahoo! Inc.("Yahoo")
and SB Holdings (Europe) Ltd., an affiliate of ZDV, pursuant to a joint
venture agreement dated as of this same date (the "Joint Venture Agreement"),
in order to operate in Germany a localized version of the Yahoo! Guide (such
localized guide, "Yahoo Deutschland"), to develop related on-line
navigational services in Germany, and to conduct certain other businesses
related to such activities.
YAG desires that ZDV provide certain Services (the "Services") for YAG
and ZDV desires to provide such Services for YAG.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations set forth herein, the parties hereto agree as follows:
1. OFFICE, FINANCIAL AND ADMINISTRATIVE SERVICES.
(a) ZDV shall provide the following Services to YAG:
(i) office space for up to five (5) employees of YAG along with
related office services such as utilities, telecommunications equipment
(including the costs of installment and maintenance of lines, office units and
the PBX switch as well as an estimated amount for actual calls), general office
supplies, mailroom services, cleaning services, maintenance services and general
office equipment (for example, photocopiers and telefax machines); and
(ii) financial management and other administrative support including
payroll processing, accounting, purchasing, management information, recruiting,
other human resource and facility services. In providing accounting services,
ZDV shall
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use its reasonable efforts to provide data and information to YAG so that
YAG's financial personnel may prepare reports in accordance with the European
Financial Reporting Template attached as Exhibit A. YAG acknowledges that
ZDV may need a reasonable period of time to adjust accounting procedures to
produce reports in that form. ZDV shall also provide to YAG other similar
administrative and operational services required to carry out YAG's business
plan that ZDV has the resources to provide without unreasonable cost or
burden to its own operations.
(b) YAG shall pay ZDV for the Services all of ZDV's out-of-pocket
expenses to third parties incurred in connection with the Services (including
those incurred prior to this date on behalf of YAG). Those expenses shall
include actual charges for telecommunications calls (i.e., above the
estimated amount included with the office space in Section 1(a)(i) above),
special postage, courier service, and any other similar products or services
provided by third parties which are individually billed to ZDV and which are
not included in its general charges specified above. Commencing with the
launch date of Yahoo Deutschland on October 10, 1996, YAG shall also pay an
allocated part of ZDV's internal costs in providing the Services, determined
in accordance with the allocations which ZDV uses for its own operating
units. The allocations for 1996 are set forth in Schedule 1(b). ZDV shall
have the right to make appropriate adjustments in Schedule 1(b) for each
calendar year hereafter based on increases in its applicable costs. If
V.A.T., use or similar taxes are at any time to be required to be paid on the
Services, they will be added to the amounts payable by YAG pursuant to this
Agreement.
(c) ZDV shall send an itemized monthly invoice to YAG for the Services
provided by ZDV during the previous month and for any other charges that may
be due by YAG under this Agreement.
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YAG shall pay such amount within thirty (30) days after receipt of the invoice.
(d) Prior to this date and the formation of YAG, ZDV has directly paid
through its payroll certain persons who have been hired on behalf of YAG and
who will be transferred to the YAG payroll after YAG's formation and
commencement of operations. YAG shall reimburse ZDV for all salary, payroll
taxes, benefits and similar costs paid or liabilities incurred by ZDV in
connection with those employees. YAG shall also reimburse ZDV for any other
out-of-pocket expenses incurred by ZDV or its personnel on behalf of YAG
including, without limitation, travel and entertainment expenses, employee
procurement fees and expenses and similar costs incurred since the discussion
of the formation of YAG began.
(e) YAG acknowledges that although ZDV shall provide purchasing
assistance, it shall be responsible for paying for all furniture and computer
equipment and similar items principally used by its employees on ZDV's
premises.
(f) YAG shall give ZDV at least thirty days notice of its need for
office space for new employee. Nothing herein shall require ZDV to lease new
space to accommodate YAG personnel.
2. PROMOTIONAL SERVICES.
(a) During the term of this agreement, ZDV and YAG shall provide each
other with the right to run a reasonable number of advertisements and
promotions at "house rates" in their respective publications and services.
For purposes of this agreement "house rates" shall mean 30% of the regular
rate charged for a page, banner or other promotional or ad space. Any
production or similar out-of-pocket charges related to house ads shall be
paid in full. All advertising services provided shall be subject to the
applicable rate card or other applicable terms and conditions of the
publication or service being used. House rates may not be combined with
other promotional rates including
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volume or frequency discounts or other special rate programs or used for
inserts.
(b) ZDV and YAG shall explore with other promotional activities as may be
appropriate including, for example, joint participation in marketing and
promotional events such as trade shows. Each party shall discuss with the other
party in good faith (before any other comparable third party) any plans to
incorporate editorial materials, listings, brand features and similar content
within publications or services similar to those distributed by the other party,
and shall allow the other a reasonable time to make a first offer, it being the
intention to cooperate in such areas as reasonably practical for both parties;
provided, however, that the foregoing shall not obligate either party to enter
into any such arrangement.
3. AD REPRESENTATIVE SERVICES.
(a) ZDV has acted and shall act as the exclusive advertising sales
representative for Yahoo Deutschland and other products and services of YAG for
the United Kingdom, Ireland, France and Germany and other European countries in
which ZDV or its affiliates regularly solicit online advertising (the
"Territory"). ZDV shall use its reasonable efforts to sell advertising in the
Territory and to collect amounts owed to YAG from such advertisers. Although ZDV
shall use its ZDNet sales force to sell ads on YAG as well as ZDNet, ZDV shall
add an additional sales person above the personnel anticipated for selling ZDNet
and its other products in light of its ad sales services for YAG and YAG shall
be entitled to interview prospective candidates for such positions and to
approve the person hired provided it does so promptly. ZDV shall use reasonable
efforts to hire such sales person with a six month probation period if labor
laws permit. Although all of ZDV sales personnel shall continue to be employees
of ZDV and subject to its direction, all such personnel shall provide the YAG
sales
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director with reports on sales calls and sales as the YAG sales director may
request (including daily reports if requested) in coordination with reports
to ZDV sales managers. YAG acknowledges that ZDV has not made any
representation with respect to the amount of advertising it may sell. All
such advertising shall be sold in accordance with such standard terms and
conditions as YAG may provide.
(b) All advertising shall be subject to acceptance by YAV and YAV shall
accept or reject any insertion order within two business days of receipt of
that order from ZDV; failure to respond within that time shall be deemed
acceptance.
(c) As compensation for its services, ZDV shall be entitled to a
commission on the Net Amount collected on advertisements from the Territory
carried by Yahoo Deutschland and YAG's other products and services. That
commission shall be [XXXX] of the Net Amount collected from advertising up to
the cumulative amount of advertising projected for period of ZDV's services
as set forth in the Business Plan attached to the Joint Venture Agreement and
[XXXX] of the Net Amount collected from advertising above that amount. (For
example, if the Business Plan calls for [XXXX] of advertising in the first
six months of this agreement and ZDV sells the Net Amount of [XXXX] for that
period, ZDV shall receive commissions on the first [XXXX] at the rate of
[XXXX] and on the remaining [XXXX] at the rate of [XXXX]) Net Amount means
gross ad revenues, adjusted for ad agency commissions, discounts, billing
adjustments and allowances, make goods, bad debt write-offs, and collection
agency, attorney and other out-of-pocket collection fees and expenses. ZDV
shall not be responsible for bad debts; it being the intention of the parties
that YAG bear the credit risk of its advertisers. ZDV shall pay to YAG
within ten days following the end of each month all of the amounts collected
by it for advertising run on YAG's products and services, less its commission
and any out-of-pocket costs for
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collection agencies, attorneys or other collection efforts. At the end of
each calendar quarter, ZDV and YAG shall review the Net Amount of advertising
for all quarters preceding the quarter then ending and determine whether ZDV
shall be entitled to the [XXXX] commission on the Net Amount of any
advertising in any prior period.
(d) ZDV shall provide the ad rep services through [XXXX]. The parties
shall commence discussions about the renewal of the services for an
additional period not later than [XXXX]. If YAG shall not continue ZDV's
exclusive ad sales services [XXXX]or the end of any renewal term thereafter
(i.e., YAG begins to sell part or all of its inventory itself or through a
third party), YAG shall continue to pay ZDV commissions on all advertising
carried by YAG from the Territory following the effective date of
discontinuation for which ZDV secured orders prior to the discontinuation
date. In addition, notwithstanding any other provision of this agreement, in
that event, ZDV shall have the right to require YAG to hire and assume all
ongoing employment obligations to the new sales person referred to in 3(a)
above without any severance or other cost to ZDV arising out of that person's
employment with ZDV.
(e) ZDV may carry out its services outside of Germany through its
affiliated companies including Ziff-Davis France, S.A. ("ZDF") and Ziff-Davis
UK, Ltd. ("ZDUK"), e.g., ZDF may sell ads in France for YAG's products and
services and ZDUK may sell ads in United Kingdom and Ireland for YAG's
products and services.
(f) Although ZDV's ad representation services shall be exclusive, YAG
may have members of its internal staff assist in sales efforts provided that
such efforts shall be coordinated with ZDV and that all sales resulting from
such efforts shall be commissionable to ZDV as if its sales force had made
such sales.
4. TERM AND TERMINATION.
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(a) This Agreement shall be commence as of the date set forth above and,
unless earlier terminated pursuant to paragraphs (b), (c), or (d) of this
Section, shall continue for [XXXX] years after that date. Upon termination,
all rights and obligations of each party hereto shall cease as of the date of
termination and any amounts owed by either party hereto shall be paid in full.
(b) This Agreement shall also terminate automatically and effective
immediately upon the earlier to occur of:
(i) the dissolution, termination or liquidation of ZDV or YAG;
(ii) the appointment of a trustee in bankruptcy for ZDV or YAG, an
assignment of assets for the benefit of ZDV's or YAG's creditors or the
adjudication of bankruptcy with respect to ZDV or YAG.
(iii) the termination of the Joint Venture Agreement.
(c) In the event that either party hereto shall commit any material
breach of or default under this Agreement and such breach or default is not
cured within thirty days after notice of such breach or default (if
remediable), the non-defaulting or non-breaching party shall have the right
(but not the obligation), in addition to all other legal and equitable
remedies that may be available to such party, to terminate this Agreement.
(d) YAG may terminate any or all of the Services described in Section 1
upon not less than ninety (90) days notice to ZDV. At the end of such ninety
(90) days, ZDV shall make an appropriate reduction in its allocated charges.
To the extent YAG wishes to terminate services upon less than 90 days notice
ZDV shall use its reasonable efforts to end those services, reduce its costs
and therefore reduce its charges to YAG in accordance with YAG's schedule.
5. DIRECTION AND CONTROL OF ZDV'S PERSONNEL.
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(a) ZDV shall have the exclusive right to direct and control its
personnel and/or any third parties providing the Services hereunder, free of
any supervision, direction or control by YAG (other than in respect of YAG's
right, as the recipient of such Services, to specify the nature of the
Services desired to be performed). ZDV shall have the sole right to
determine the conditions of employment for all ZDV personnel providing
Services hereunder, including without limitation, their working hours,
employment and vacation policies, benefits, seniority, promotions and
assignments. ZDV will be solely responsible for compensation of such
personnel and for all withholding taxes, unemployment insurance, workmen's
compensation, and any other insurance and fringe benefits with respect to
such personnel. ZDV shall also have the exclusive right to hire and fire
such personnel. Unless YAG shall have acted in breach of this agreement with
respect to ZDV's personnel, ZDV shall be solely responsible for severance or
amounts payable upon the termination of employment of such personnel or any
dispute or claim concerning that termination and ZDV shall indemnify, defend
and hold YAG and its officers and directors, harmless, from any and all
claims brought against by ZDV personnel relating to such termination, dispute
or claim.
(b) YAG shall not solicit the employment or hire, whether as an
employee or consultant, any employee or former employee of ZDV or its
European affiliates without ZDV's (or such affiliate's) prior written consent
unless such former employee has not worked for ZDV or an affiliate for a
period of six months prior to the date of hire by YAG.
6. LIMITATION OF LIABILITY.
(a) ZDV shall use its best efforts to provide the Services under this
agreement in a professional and timely manner; in no event, however, shall ZDV
be liable to YAG for any loss, damage, claim, liability or expense of any kind
caused directly or indirectly by any action (other than for ZDV's gross
negligence
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or willful breach of this Agreement) taken in furnishing the Services to be
provided under this Agreement.
(b) Neither ZDV nor YAG shall be liable to the other for any special
indirect, incidental, consequential or punitive damages, including without
limitation, lost or imputed profits, lost savings, loss of goodwill or legal
expenses, resulting from any cause whatsoever, whether liability is asserted in
contract, tort or otherwise (including negligence and strict product liability),
and regardless of the form of legal action, even if the party has advised or has
been advised of the possibility of any such loss or damage. In no event shall
the aggregate damages claimed by YAG hereunder exceed the total fees actually
paid by YAG to ZDV under this Agreement, regardless of the number or extent of
such claims.
7. CONFIDENTIALITY. Confidential information disclosed by either party
hereto to the other for the purposes of this Agreement which is clearly so
identified in writing as proprietary or confidential or which the
circumstances surrounding its disclosure indicate that it is confidential or
proprietary shall be protected by the recipient in the same manner and to the
same degree that the recipient protects its own confidential information.
Notwithstanding the foregoing, the recipient shall have no obligation under
this Agreement with respect to any confidential information disclosed to it
which (i) was already known to recipient at the time of its receipt
hereunder, (ii) becomes generally available to the public other than by means
of recipient's breach of its obligations hereunder, (iii) is received by
recipient from a third party whose disclosure is not in breach of any
agreement of confidentiality or (iv) is ordered to be disclosed by a court or
other governmental body with jurisdiction over the parties hereto.
8. FORCE MAJEURE. ZDV shall not be responsible for any failure or delay in
performance of its obligations under this Agreement
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because of circumstances beyond its reasonable control including, but not
limited to, acts of God, fires, floods, wars, civil disturbances, sabotage,
accidents, labor disputes (whether or not the employees' demands are
reasonable and within the party's power to satisfy), governmental actions or
transportation delays.
9. NOTICES.
(a) Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been sufficiently given when
(i) hand delivered by one party to the other party at the addresses set forth
below, (ii) deposited in Germany Mail, postage prepaid, for mailing by
certified or registered mail, return receipt requested, or (iii) sent by
reputable overnight courier, addressed as follows:
If to ZDV, addressed to:
Ziff-Davis Verlag, GmbH
Riesstrasse 25,
Block C, 4th Floor
8000 Munich 50
Germany
Attention: Managing Director
with a copy to:
Legal Department
Ziff-Davis Publishing Company
One Park Avenue
New York, NY 10016
U.S.A.
If to YAG, addressed to:
Yahoo! GmbH
Riesstrasse 25,
Block C, 4th Floor
8000 Munich 50
Germany
Attention: Managing Director
with copies to:
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Yahoo!, Inc.
3400 Central Expwy., Suite 201
Santa Clara, CA 95051
Attention: Gary Valenzuela
and to:
Venture Law Group
2800 Sand Hill Road
Menlo Park, CA 94025
Attention: James Brock, Esq.
or to such other address or addresses as may be specified from time to time
in a written notice given by such party. Notwithstanding the foregoing,
routine instructions, requests, directions and notices dealing with day to
day operations under this Agreement may be given in such manner to such
persons as may be agreed by the parties hereto from time to time is
reasonable and practicable.
10. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties
hereto with respect to the provision of the Services, supersedes all previous
oral or written negotiations, representations, undertakings and agreements
heretofore made between the parties hereto in respect to the subject matter
hereof and may not be amended except in writing signed by both parties.
(b) If any term or provision of this Agreement is held to be invalid or
unenforceable by reason of any rule of law or public policy, then this
Agreement shall be deemed amended to delete therefrom the term or provision
held to be invalid or unenforceable and all of the remaining terms and
provisions of this Agreement shall remain in full force and effect.
(c) This Agreement shall be interpreted, construed and governed under
and by the laws of Germany, without regard to its choice of law rules.
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(d) Except as expressly set forth herein, no person not a party hereto
shall be a third-party beneficiary of any provision of this Agreement.
Nothing contained herein shall be construed or deemed to confer any benefit
or right upon any third party.
(e) The failure of a party to insist upon strict or timely adherence to
any term of this Agreement on any occasion shall not be construed a waiver,
or deprive that party of the right thereafter to insist upon strict or timely
adherence to that term or any other term of this Agreement.
(f) The headings in this Agreement are intended solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement. No modification of this Agreement shall be
effected by the acknowledgment or acceptance of any purchase order,
acknowledgment or other forms containing terms or conditions at variance with
or in addition to those set forth in this Agreement.
(g) Nothing herein contained shall be construed to place the parties
hereto in the relationship of partners, joint ventures, principal and agent,
or employer and employee.
(h) This Agreement may be executed in counterparts, each of which shall
constitute an original but all of which, taken together, shall constitute a
single instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers or representatives as of
the day and year first above written.
YAHOO! GmbH ZIFFF-DAVIS VERLAG, GmbH
By:/s/ HEATHER KILLEN By:/s/ MICHAEL SCHARFENBERGER
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Name: Heather Killen Name: Michael Scharfenberger
Title: Managing Director Title: Managing Director
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SCHEDULE 1(b)
1. Space and related office services including utilities, telecommunications
equipment, general office supplies, mailroom services, cleaning services,
maintenance services and general office equipment shall be apportioned to
YAG per standard ZDV apportionment practices which are based on employee
head count (determined on the basis of the number of full-time or
equivalent full-time positions). The per annum charge per full-time
employee or equivalent for 1996 for these services is DM30,500.
2. Financial management and other administrative support including payroll
processing, accounting, purchasing and management information, recruiting,
other human resource and facility services shall be apportioned to YAG per
standard ZDV apportionment practices which are based on employee head count
(determined on the basis of the number of full-time or equivalent full-time
positions). The per annum charge per full-time employee or equivalent for
1996 for these services is DM17,175.
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