EX-10.4



 






Exhibit 10.4




“OFFICIAL PLAYSTATION MAGAZINE”

PUBLISHING LICENSE AGREEMENT



This Official PlayStation Magazine Publishing License Agreement (“Agreement”) is effective as of
the ___day of ___, 2005 and is entered into by and between SONY COMPUTER ENTERTAINMENT
AMERICA INC., (“SCEA”), a Delaware corporation with its principal place of business at 919 E.
Hillsdale Boulevard, Foster City CA 94404, and ZIFF DAVIS MEDIA INC., a Delaware corporation with
its principal place of business at 28 East 28th Street, New York, New York 10016 (“Ziff
Davis”).



WHEREAS, SCEA and Ziff Davis entered into a Publishing License Agreement dated August 29, 1997 (the
“1997 Agreement”) for the creation and publication of a magazine based upon the SCEA home video
game platforms commonly known as the PlayStation game console and the PlayStation 2 computer
entertainment system (“Platforms”); and



WHEREAS, SCEA and Ziff Davis entered into a Publishing License Agreement dated December 11, 2001
(the “2001 Agreement”) for the creation and publication of a magazine based upon the SCEA
Platforms; and



WHEREAS, Ziff Davis has licensed the PlayStation trademark and other SCEA trademarks and logos
(“Trademarks”) in conjunction with that publication, and has published the “Official U.S.
PlayStation Magazine” since the execution of the 1997 Agreement and continued to publish the
Official U.S. PlayStation Magazine after execution of the 2001 Agreement;



NOW, THEREFORE, in consideration of the representations, warranties and covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Ziff Davis and SCEA hereby agree as follows:



1. GRANT OF RIGHTS



(a) SCEA hereby grants to Ziff Davis (i) the exclusive right to publish and distribute and title a
magazine the “Official U.S. PlayStation Magazine” (“Publication”), in print format, or by another
name as may be mutually agreed upon by the parties, and (ii) the non-exclusive right to use the
Trademarks identified in Schedule A in conjunction with the Publication pursuant to the PlayStation
Trademark Guidelines attached in Schedule B, within the territories of the United States, Canada
and Central America (“Licensed Territories”). The Publication shall be exclusive at it relates to
the Platforms. The Publication may provide content on the PlayStation Portable Game Console
(“PSP”) and the next generation console (“PS 3”) but SCEA retains the rights to publish or have
another party publish an official magazine for the PSP and/or the PS 3.




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As used herein, the Licensed Territories shall include United States military bases, U.S.
possessions and territories, Canada and Central America. The parties will discuss, in good faith,
the addition of new territories, if and when SCEA begins distributing the Platform in those
territories and if SCEA desires distribution of the Publication in those territories. The rights
granted above shall be defined as the “Publication Rights” and shall include ancillary promotional
rights to create, publish, distribute and authorize reuse of materials using the Trademarks
designed to promote or market the Publication (“Ancillary Promotional Rights”). Such materials
shall include, but not be limited to, sell sheets, merchandising flyers, reprints, quotes and the
“Official U.S. PlayStation Magazine” website. Nothing in this Agreement shall grant to Ziff Davis
any rights to use SCEA Trademarks, except as expressly set forth in this Agreement.



(b) During the term of this Agreement, SCEA shall not grant any of the rights set forth above, or
endorse or otherwise sponsor any other video game magazines or other publications (or sections
therein) published by competitors of Ziff Davis. In addition, SCEA shall not use or grant the right
to use, the “Official PlayStation Magazine” as part of the title of a magazine or other printed
publication, or in a manner that is likely to create confusion in relation to the Publication,
subject to SCEA’s retained rights as described herein.



(c) SCEA shall retain all rights, other than those rights expressly granted herein. Moreover,
nothing contained herein shall be construed as affecting SCEA’s right to publish CD-ROMs, DVDs, or
web sites related to or about the Platforms, PSP or PS 3, or magazines as it relates to the PSP
and/or PS3 (except as provided in Section 1(d)), or other materials which are not competitive with
the Publication and which do not use the “Official PlayStation Magazine” or “Official U.S.
PlayStation Magazine” mark. SCEA will give Ziff Davis ninety (90) days notice before commencing
newsstand distribution of any PlayStation-related materials.



(d) As of the date this Agreement is executed by SCEA, SCEA has not entered into an agreement to
grant a third party a license to publish an “official” magazine in the Licensed Territories related
to the PSP and/or the PS3. If, during the Term, SCEA decides to enter into an agreement to grant a
third party a license to publish an “official” magazine in the Licensed Territories related to the
PSP and/or the PS3, and so long as Ziff Davis (i) is not in material breach of this Agreement; (ii)
is still in business; and (iii) has not filed for bankruptcy protection, then SCEA shall, prior to
entering into discussions with any third party related to the potential grant of a license for such
third party to publish such “official” magazine: (i) notify Ziff Davis and afford Ziff Davis the
opportunity to respond to a request for proposal from potential licensees for such “official”
magazine or otherwise communicate to SCEA terms on which Ziff Davis may propose the become the
licensee for such “official” magazine, and (ii) evaluate any such proposal from Ziff Davis in good
faith.



2. MAGAZINE DISCS — FORMAT, PRODUCTION, CONTENT AND INTERACTION




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WITH UNDERGROUND MEMBERS



(a) The Publication shall include an exclusive Platform formatted DVD on a monthly basis, supplied
by SCEA, which shall contain interactive samples of games, compilations and/or greatest hits (which
shall generally be samples from unreleased or recently released games) for the Platforms developed
by SCEA and/or third party developers (“Magazine Disc”).



(b) SCEA shall provide the Magazine Disc on a spindle from Sony Disc Management, replicate the
Magazine Disc, perform quality assurance on the Magazine Disc and press the necessary number of
Magazine Discs, and deliver the Magazine Discs to Ziff Davis at least seven (7) calendar days
before the Publication’s print date. Ziff Davis shall notify SCEA of each Publication’s print date
at least sixty (60) calendar days in advance thereof.



(c) Ziff Davis shall purchase the Magazine Discs from SCEA on a monthly basis for inclusion in the
Publication, as set forth below. In the event that SCEA is unable to provide the Magazine Disc at
the Delivery Date (as defined below), SCEA shall provide one of the following: (i) a previously
produced disc product which has not been previously provided to Ziff Davis and that is reasonably
acceptable to Ziff Davis (“Previously Produced Disc”); or (ii) a Platform compatible DVD game or
sampler disc from an SCEA licensed third party Platform publisher that is reasonably acceptable to
Ziff Davis (“Third Party Disc”) (collectively “Substitute Disc”).



(d) SCEA shall provide the Magazine Disc or Substitute Disc to Ziff Davis on a date at least (10)
days before the Publication’s print date (“Delivery Date”). SCEA shall be notified of each
Publication’s print date at least sixty (60) days in advance. Notwithstanding the foregoing, if
SCEA is unable to provide the Magazine Disc to Ziff Davis at the Delivery Date, then SCEA shall
notify Ziff Davis of such at least twenty one (21) days prior to the Delivery Date at which time
SCEA will propose a Substitute Disc to be mutually agreed upon by the parties.



(e) SCEA shall replicate the Magazine Disc or Substitute Disc pursuant to the terms and conditions
hereunder. Ziff Davis shall be responsible for packaging the Magazine Discs with Disc and sleeve
art approved by SCEA and co-branded with the PlayStation Magazine and the PlayStation Underground
trademarks (in a mutually agreeable fashion) for the Publication at Ziff Davis’ cost.



(f) SCEA shall have complete discretion to coordinate the design, format, and number of titles and
specific titles to be included on the Magazine Discs. Notwithstanding the foregoing, Ziff Davis
will have input into the content of the Magazine Discs to coordinate the content of the Magazine
Disc with the content of the Publication. SCEA shall keep Ziff Davis’ production manager advised
of production schedules and content for all Magazine Discs. Ziff Davis shall use the Magazine
Discs in the sequentially marked order provided by SCEA unless SCEA provides a substitute out of
sequence. SCEA shall make reasonable efforts to notify Ziff Davis,




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as early as possible, of any changes in the content of Magazine Discs during production. The
content and format of the Magazine Discs shall not be subject to change without prior notification
to Ziff Davis.



3. PURCHASE OF MAGAZINE DISCS BY ZIFF DAVIS, MARKETING AND DISTRIBUTION FEE, ADVERTISEMENTS ON
MAGAZINE DISCS AND USE BY SCEA



(a) Ziff Davis shall place a purchase order for quantities of Magazine Discs required for each
Publication at least thirty-five (35) days prior to each Publication’s monthly print date by fax or
e-mail. Purchase orders shall be in writing and shall not be deemed accepted until approved in
writing by SCEA. The purchase order shall be deemed approved in five (5) business days after
receipt of the purchase order unless otherwise disapproved in writing by SCEA. SCEA shall not
unreasonably disapprove a purchase order. All purchases shall be governed by this Agreement and
not superseded by any terms and conditions set out on the purchase order.



(b) Ziff Davis’ purchase of Magazine Discs, commencing with the Magazine Discs for the June 2005
issue of the Publication, is subject to the following terms:




     (i) Price: Per unit for Magazine Discs, FOB SCEA’s designated warehouse and based upon the
number of Magazine Discs purchased, up to one hundred and ten percent (110%) of the print order of
the applicable issue of the Publication: seventy-five cents ($0.75) per Magazine Disc.



     (ii) Purchase orders shall be placed for a minimum of one hundred fifty thousand (150,000)
Magazine Discs. Ziff Davis may order a maximum of 10% more Magazine Discs than the total
distribution of the Publication, on a monthly basis, at the cost identified in 3(b)(i).



     (iii) The terms for payment on each purchase order shall be net 45 days from Ziff Davis’
receipt of Magazine Discs.



     (iv) Ziff Davis shall pay all applicable sales taxes.



     (v) Ziff Davis shall meet SCEA’s general standards for credit approval. SCEA acknowledges
that Ziff Davis meets such credit standards at the execution of this Agreement. No shipments shall
be made if Ziff Davis’ account is in arrears unless the amount is disputed in good faith and Ziff
Davis promptly pays all undisputed amounts.



     (vi) Ziff Davis’ purchase of Magazine Discs hereunder shall be exclusively for the purpose of
promoting the Publication and shall not be sold in any retail channel, nor used in conjunction with
any of Ziff Davis’ other publications. The Magazine Discs offered hereunder shall not be
applicable to any other Ziff Davis programs or publications.



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     (vii) All Magazine Discs sold to Ziff Davis by SCEA pursuant to this section may be clearly
marked as “for promotional use only.” All SCEA Magazine Discs purchased by Ziff Davis shall be
delivered on spindles.


(c) Notwithstanding SCEA’s discretion regarding the number of titles and specific titles to be
included on the Magazine Disc, SCEA grants Ziff Davis the exclusive right to sell advertising space
on each Magazine Disc (“Magazine Disc Advertisement”) subject to the following terms and
conditions:




     (i) All such Magazine Disc Advertisements shall be approved in advance by SCEA, whose
approval shall not be unreasonably withheld or delayed.



     (ii) At Ziff Davis’ sole discretion, a total of four (4) Magazine Disc Advertisements may be
sold for each Magazine Disc not to exceed 240 megabytes or six (6) minutes of video per Magazine
Disc. In no event shall Magazine Disc Advertisements be sold for products targeting the tobacco,
liquor or adult-entertainment industries.



     (iii) The Magazine Disc Advertisements shall consist of advertising which has been
re-purposed from television or other media. Upon prior written approval from SCEA, which shall not
be unreasonably withheld or delayed, the Magazine Disc Advertisement may also consist of
interactive samples of games, excluding on-line demos, which have previously appeared on a Magazine
Disc or advertising which has not been re-purposed from television or other media.



     (iv) In no event shall the Magazine Disc Advertisements contain materials that are
competitive with the Platforms, the PSP or PS 3 nor shall the Magazine Disc Advertisements include
interactive samples of games that are exclusively playable on competitive platforms and all
Magazine Disc Advertisements for interactive games must be compatible with the Platforms, PSP
and/or PS 3.



     (v) Ziff Davis shall have the sole right to (a) determine the advertising fee for each
Magazine Disc Advertisement; and (b) retain (subject to its obligations under Section 6) all the
revenues or other consideration received for each Magazine Disc Advertisement.



     (vi) The Magazine Disc Advertisements shall appear subsequent to video stories and in
other locations to be mutually determined by SCEA and Ziff Davis.


(d) SCEA may use the content of the Magazine Discs in association with marketing, promoting or
advertising its products; provided, however, that prior to the “off sale” date of the issue of the
Publication with which a Magazine Disc is bundled, SCEA shall not distribute the majority of the
content of that Magazine Disc on a single CD, DVD or other physical item.




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4. APPROVAL RIGHTS OF EDITORIAL CONTENT OF PUBLICATION AND MAGAZINE DISC — FORMAT — PRICE



(a) The Publication shall be an autonomous and editorially independent publication and under the
exclusive control of Ziff Davis. The content of the Publication shall comply with the guidelines
currently in effect issued by the Interactive Digital Software Association and the Entertainment
Software Rating Board, or such other reasonable guidelines as may become effective during the Term
of this Agreement. In the event that Ziff Davis is unable to comply with any such guidelines
during the Term of this Agreement, it shall notify SCEA as to the reasons therefor. SCEA may
provide its input regarding any modifications to the format and design of the Publication and shall
have approval of the Publication’s overall presentation format and design if it differs
substantially from the Publication’s current overall presentation format and design to insure that
the Publication is of high quality. Thereafter, Ziff Davis shall not materially deviate from the
format without prior notice to SCEA. SCEA shall have approval rights over any material deviation
from the Publication’s format, but such approval shall not be unreasonably withheld or delayed.



(b) The Publication’s quality shall meet or exceed the quality of the current Publication and the
quality of all other continuous monthly “PlayStation” magazines, in print format and circulated
primarily in the United States, dedicated to video games. At a minimum, the Publication’s quality
should meet or exceed the paper quality of the current Publication. SCEA shall have the right to
review the Publication’s quality and its distribution on a quarterly basis including the right to
suggest changes to be implemented by mutual agreement. SCEA acknowledges that it approves the
Publication’s current Editor-in-Chief, and SCEA shall have the right to approve any change to the
Publication’s Editor-in-Chief in the future, whose approval shall not be unreasonably withheld or
delayed. If disapproved, SCEA shall provide Ziff Davis with reasons for its disapproval.



(c) The content of the Magazine Discs shall be developed by SCEA. Both parties may provide input
regarding the appropriate content of the Magazine Disc as it relates to the cover of the
Publication and the general content of the Magazine Disc.



(d) The Magazine Discs’ quality shall meet or exceed the quality of discs currently manufactured
by Sony Disc Management.



(e) The cover price of the Publication shall be set by Ziff Davis in its sole discretion, however,
Ziff Davis agrees that the cover price of the Publication shall not be set below $5.99 (with a
disc) without the approval of SCEA, which shall not be unreasonably withheld or delayed.



(f) Ziff Davis agrees to feature SCEA games on a minimum of four (4) front covers of the




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Publication each year during the Term of this Agreement. SCEA shall provide the camera-ready
artwork for each of the four (4) front covers of the Publication, including (2) such front covers
during each fourth calendar quarter during the Term, subject to Ziff Davis’ reasonable approval.



5. APPROVAL PROCEDURES FOR USE OF SCEA TRADEMARKS



Prior to using any SCEA Trademark (except as may be expressly permitted elsewhere in this
Agreement) or other SCEA owned intellectual property rights, Ziff Davis will submit to SCEA, for
its review and written approval, samples of such materials to be used. SCEA shall have the right,
in its sole discretion, to approve or disapprove any use of its Trademarks or intellectual property
rights. SCEA will approve or disapprove any such use within ten (10) business days after SCEA’s
receipt thereof. SCEA’s failure to approve or disapprove within such period shall be deemed an
approval, provided that SCEA may subsequently notify Ziff Davis of its disapproval, in which event
Ziff Davis shall use commercially reasonable efforts to cease such use at the earliest possible
time. Once SCEA has approved materials, Ziff Davis may continue to use such materials, for the
same use or purpose only, without further review or approval by SCEA. Ziff Davis agrees to comply
with Schedule B.



6. ROYALTY, PRINTER’S COMPLETION NOTICE AND GUARANTEE



Commencing with the June 2005 issue of the Publication, in addition to the Magazine Disc fee, SCEA
shall receive: (i) one percent (1%) of gross circulation revenues actually received by Ziff Davis
(net of fees owed to or retained by Ziff Davis’s newsstand and retailer distribution agent(s)) for
each paid subscriptions and for single-copy sales; and (ii) five percent (5%) of gross revenues
received by Ziff Davis for advertisements in the Publication and Magazine Disc and Welcome Guide
(as defined below), in each case net of fees owed to any advertising agencies (i.e., based upon net
page rate, not gross page rate) If Ziff Davis receives revenues for content on the Magazine Disc
other than for advertisements, then Ziff Davis shall obtain SCEA’s prior written approval of such
sales and the parties agree to negotiate, in good faith, how such revenue will be split between
them. Royalties shall be paid to SCEA on a quarterly basis thirty (30) days after the end of the
calendar quarter. Together with each royalty payment, Ziff Davis shall provide SCEA with the
Printer’s Completion Notice on a quarterly basis. Royalties shall be calculated from, and paid
using the Printer’s Completion Notices.



In the event that the royalties for the June 2005-May 2006 issues of the Publication, inclusive,
are less than $500,000 (the amount of such deficit the “First Year Royalty Deficit”), Ziff Davis
shall pay SCEA the First Year Royalty Deficit by June 30, 2006. In the event that the royalties
for the June 2006-April 2007 issues of the Publication, inclusive, are less than $458,333 (the
amount of such deficit the “Second Period Royalty Deficit”), Ziff Davis shall pay SCEA the Second
Period Royalty Deficit by June 30, 2007.




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7. INSPECTION OF BOOKS AND RECORDS



During the Term of this Agreement and for two (2) years thereafter, Ziff Davis shall keep accurate
books of account and records pertaining to the sale and distribution of the Publication and
advertising revenue generated by the Publication. SCEA shall have the right, at its own expense
using an independent auditor, upon ten (10) business days written notice, to examine Ziff Davis’
books of account and records with respect to the Publication and advertising revenues, but not more
than twice per calendar year; provided that the auditor agrees to be bound by the confidentiality
provisions of this Agreement. Such rights shall be exercised during the normal business hours and
in such a manner as not to substantially interfere with the conduct of Ziff Davis’ business. If
the audit reveals an underpayment in royalties owed from royalties paid of more than 5%, Ziff Davis
shall pay for the reasonable cost of the audit, as well as immediately reimburse SCEA for any
differences plus interest at 18%, or if not permitted, then at the highest rate allowed by law. An
underpayment in excess of twenty-five percent (25%) of royalties paid, shall be a material breach
of this Agreement entitling SCEA to terminate this Agreement immediately.



8. CERTAIN MATTERS RELATED TO ADVERTISING





	(a)  	The Publication. During the Term:






	 	(i)  	SCEA shall purchase no less than thirty (30) paid pages in the
Publication during each of the following three one-year periods (each of which is a
“Contract Year”): (A) May 2004 issue through April 2005 issue, inclusive; (B) May
2005 issue through April 2006 issue, inclusive; and (C) May 2006 issue through April
2007 issue, inclusive;
	 
	 	(ii)  	SCEA shall receive one (1) free bonus page in the Publication for each
paid page of advertising in the Publication. SCEA bonus pages may be applied to
premium positions;
	 
	 	(iii)  	Ziff Davis will charge SCEA a rate per page based upon cpm’s based on
the Publication’s circulation, with SCEA benefiting with a lower cpm as the
circulation level increases, as set forth below;
	 
	 	(iv)  	Ziff Davis shall waive the premium charges on cover 2, page 1 in the
Publication;
	 
	 	(v)  	SCEA’s advertisements shall appear in the first fifty percent (50%) of
the Publication;










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	 	(vi)  	SCEA’s special cpm schedule for the Publication shall be:
	 
	 	   	$30.58 gross cpm for up to 399,999 circ (e.g., $10,703 gross for 350,000 circ)

$29.41 gross cpm for 400,000-499,999 circ (e.g., $11,764 gross for 400,000 circ)

$28.23 gross cpm for 500,000+ circ (e.g., $14,115 gross for 500,000 circ)
	 
	 	   	These cpm rates will remain constant during the Term.






	(b)  	Electronic Gaming Monthly (“EGM”). During the Term, to the extent that Ziff Davis
continues to publish EGM:






	 	(i)  	SCEA shall purchase forty-eight (48) paid pages in EGM during
each Contract Year;
	 
	 	(ii)  	SCEA shall receive eighteen (18) free bonus pages per Contract
Year in EGM. The bonus pages can be applied to premium positions as
follows: one (1) free page in the first half of the year and two (2) free pages
in the second half of the year. SCEA will use one (1) bonus page per issue for
the first six (6) issues and two (2) bonus pages per issue for the last six (6)
months. All bonus pages used from May 2004 issue onwards will count towards
the eighteen (18) total free bonus pages. Bonus pages may be placed in premium
positions, premium will still apply;
	 
	 	(iii)  	SCEA shall receive a three percent (3%) rebate for ads bought
in EGM in any Contract Year in which SCEA has bought at least sixty (60) paid
pages on the rates set forth below;
	 
	 	(iv)  	SCEA’s current cover positions, premium positions and gatefolds
in EGM will remain constant during the Term. Should SCEA choose not to use a
position in any given month, the position will be forfeited. SCEA shall run
one (1) full cover 2 gatefold unit in EGM during each Contract Year. In the
event that another advertiser chooses to contract for the cover 2 with a
gatefold commitment in EGM, ZD will give SCEA three (3) months (approximately
90 days from space close) notice and the first right of refusal to upgrade the
unit to a gatefold; if SCEA elects not to upgrade, Ziff Davis may sell the
gatefold to the other party;
	 
	 	(v)  	Ziff Davis will charge SCEA a rate per page based upon cpm’s
based on EGM’s circulation, with SCEA benefiting with a lower cpm as the
circulation level increases, as set forth below;; and
	 
	 	(vi)  	SCEA’s special cpm schedule for EGM shall be:










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	 	   	$22.48 gross cpm for up to 600,000 circ (e.g., $13,488 gross for 600,000 circ)

$22.00 gross cpm for 600,001-700,000 circ (e.g., $15,400 gross for 700,000 circ)

$21.50 gross cpm for 700,001-800,000 circ (e.g., $17,200 gross for 800,000 circ)
	 
	 	   	These cpm rates will remain constant during the Term.






	(c)  	Buyer’s Guide magazine (“BG”). During the Term, to the extent that Ziff Davis
continues to publish BG:






	 	(i)  	SCEA shall purchase four (4) paid pages in BG during each
Contract Year;
	 
	 	(ii)  	SCEA shall run cover 2 and page 1 in BG;
	 
	 	(iii)  	ZD shall waive premiums charges on cover 2 and page 1 in BG; and
	 
	 	(iv)  	The standard gross shall be Six Thousand Five Hundred Dollars
($6,500) based on 200,000 newsstand draw.






	(d)  	Sync Magazine (“Sync”). During the Term, to the extent that Ziff Davis continues to
publish Sync:






	 	(i)  	SCEA shall purchase six (6) paid pages in Sync during each
Contract Year;
	 
	 	(ii)  	For the period between May 2004 and April 2005, SCEA shall four
(4) free bonus pages in Sync. For the periods between May 2005 and April 2006
and May 2006 and April 2007, SCEA shall receive three (3) free bonus pages in
Sync. One bonus page (up to the maximum specified above) shall be earned after
each paid page;
	 
	 	(iii)  	SCEA shall receive a guaranteed cpm of $37.50 gross in Sync for
the Term of this Agreement;
	 
	 	(iv)  	SCEA’s paid pages can be allocated across any issue;
	 
	 	(v)  	All paid advertisements of SCEA in Sync will run on the right
hand page in the first twenty five percent (25%) of the magazine opposite full
editorial content (provided that SCEA has requested such placement) and all
bonus page advertisements of SCEA in Sync will run RHP opposite full editorial
content (provided that SCEA has requested such placement);










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(e) ZD will offer a rebate or make good if ZD misses any of the stated average circulation
levels over any six (6) month average, except to the extent that such levels are missed because the
number of copies given to Underground members are below projections. A make good shall be
proportional to magnitude by which the level is missed; for example, if average circulation over a
six (6) month period is 400,000 and the stated level is 450,000, then Ziff Davis will issue a make
good of one (1) page for every nine (9) paid pages within the six (6) month period
((450,000/400,000 x 8) — 8 = 1). SCEA shall use any make good pages within the following six (6)
months after receipt.



(f) As used in this Section 8, all references to circulation shall refer to average circulation
during the applicable six-month period. Notwithstanding anything in this Agreement to the
contrary, Ziff Davis may in its sole and absolute discretion suspend or discontinue publishing any
one or more of EGM, GMR, BG or Sync or to cause the circulation of any or more such magazines to be
above or below any of the respective figures set forth above.



(g) The provisions of this Section 8 shall apply only to advertising purchased after the date on
which this Agreement is executed by the last party to execute it.



(h) The advertising pages shall be used solely to promote the Platforms, the Platforms’ first and
third party software development community, the Platforms’ peripherals and Underground membership.
The pages may include advertising that features hardware, peripherals and corporate messages,
additional insertions of advertisements for breadth of titles or single titles deemed to be
strategically important to the Platforms by SCEA and such advertisements shall be subject to the
terms and conditions (other than cost) of Ziff Davis’ standard rate card.



9. COMPLIMENTARY SUBSCRIPTION LIST



(a) Each month during the Term, SCEA shall receive fifty (50) complimentary copies of the
Publication. Such complimentary copies shall be on Ziff Davis’ “Comp List” and shall be mailed by
Ziff Davis on behalf of SCEA.



(b) An additional one hundred fifty (150) copies shall be delivered in bulk to SCEA. Complimentary
copies mailed by Ziff Davis shall include a “compliments of <name to be provided by SCEA>”
label, if provided by SCEA. SCEA shall identify an internal contact at SCEA authorized to supply
Ziff Davis with SCEA’s Comp List.



10. PUBLICATIONS SENT TO PLAYSTATION 2 REGISTERS



(a) Biweekly, during the Term, SCEA shall supply to Ziff Davis, a computer .dat file, in a format
acceptable to Ziff Davis, of the new PlayStation 2 hardware registered owners (“Monthly New




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Owner List”). The names comprising the Monthly New Owner List shall be the sole property of SCEA.
At Ziff Davis’ costs (for Discs, Publications, shipping and fulfillment as set forth below) and
within thirty (30) days of receipt of the Monthly New Owner List, Ziff Davis’ fulfillment house
shall send a notification (which may be in the form of a sticker) and trial copy of the Publication
inviting new PlayStation 2 hardware registered owners to subscribe to the Publication. The trial
copy of the Publication sent to the Monthly New Owner List, shall be a copy of the Publication
which is no more than sixty (60) days older than the off sale date of the copy sent. Ziff Davis
shall pay all costs associated with the Publications and Discs sent to the Monthly New Owners,
including without limitation the costs of shipping the Publications and the Discs to the Monthly
New Owners.



Commencing with the July 2005 issue of the Publication, In addition to the trial copy of the
Publication, the Monthly New Owners shall receive a publication, whose name shall be mutually
agreed to by the parties, but is currently referred to as: “Welcome to the World of the
PlayStationUnderground” (the “Welcome Guide”). The Welcome Guide’s content, which will be mutually
agreed to by the parties, will contain (i) essential information to for new owners; (ii) a full
review archive for games playable on PlayStation, PlayStation 2 and PlayStation Portable; (iii)
supplementary experiences, for example online gaming, EyeToy, and HDD which will explain how the
PlayStation experience can be further enhanced; (iv) supplementary PlayStation Portable information
on music, videos, gaming and community; (v) an explanation of playing games online with a
photo-based tutorial covering set up procedures; and (vi) customized covers for PlayStation 2 and
PSP members. The Welcome Guide will be prepared by Ziff Davis. Ziff Davis may sell advertising in
the Welcome Guide, provided that such advertising (i) does not constitute more than one-third of
the Welcome Guide, (ii) does not appear on the outside front cover or outside back cover and (iii)
is related to the PlayStation 2 platform or games for such platform. Ziff Davis shall pay a SCEA a
royalty related to the revenue received from the Welcome Guide advertising as set forth in Section
6.



(b) The sticker sent to individuals on the Monthly New Owner List shall be co-branded with SCEA’s
and Ziff Davis’ trademarks. The content of the sticker shall be mutually agreed upon the parties.



(c) Each Monthly New Owner List may be used on a one-time basis by Ziff Davis solely for the
purpose set forth above. Any additional use of a Monthly New Owner List by Ziff Davis shall be
approved in advance and in writing by SCEA.



(d) Subsequent to the use of each Monthly New Owner List, as set forth above, Ziff Davis shall
return or destroy, and make no copies of the computer .dat file as provided by SCEA. Nothing
herein shall prevent Ziff Davis’ fulfillment house from maintaining the List for customer service
purposes only. If the computer .dat file is destroyed by Ziff Davis, Ziff Davis shall provide an
affidavit attesting to such destruction signed by an officer of the company.




12









 







11. HYPE



(a) The Publication shall contain a section entitled “Hype.” Hype shall contain a combination of
news, previews and features and shall be no less than six (6) pages in length. Hype shall combine
game news, previews, features and pop-culture crossover stories. Further, Hype shall contain
Underground/loyalty content as provided and/or approved in advance by SCEA.



12. PLATFORM OWNERS AND SUBSCRIBER LISTS AND USE BY THE PARTIES



(a) Twice a year, during the Term, SCEA shall make available to a mailing house designated by Ziff
Davis, a computer .dat file, in a format acceptable to Ziff Davis, a compilation of the Monthly New
Owner Lists (“Platform Owners List”), or any portion thereof, as requested by Ziff Davis, provided
that the mailing house executes confidentiality and limited use agreements governing the use of the
List in a form reasonably acceptable to SCEA. Ziff Davis shall use such List or portion thereof
within thirty (30) day of receipt of the List or portion thereof. The names comprising the Platform
Owners List shall be the sole property of SCEA. In no event shall a name on the Platform Owners
List be mailed to in excess of twice per year unless agreed to in advance and in writing by SCEA.
Use of names on Platform Owners List shall be at no cost for use of the List, however, Ziff Davis
shall be responsible for all costs associated with the mailing house, and the production and
mailing of any such promotional materials. Any use by Ziff Davis of all or any portion of the
Platform Owner List shall count toward Ziff Davis’ ability to use the Platform Owner List as set
forth above. Under no circumstances shall SCEA be obligated to provide the Platform Owner List, or
any portion thereof, in excess of six times per year during the Term.



(b) Any materials sent to individuals on the Platform Owners List, shall be pre-
approved in writing by SCEA prior to each mailing, which approval shall not be unreasonably
withheld or delayed. Ziff Davis may not sublicense or assign any of its rights under this paragraph
12b.



(c) Twice a year, during the Term, Ziff Davis shall make available to a mailing house designated by
SCEA, a computer .dat file in a format acceptable to SCEA, of active subscribers to each of the
following magazines, to the extent that Ziff Davis at such time is publishing such magazine:
Electronic Gaming Monthly, Computer Gaming World, Sync, Pocket Gamer and the Publication
(“Subscriber List”); provided that the mailing house executes confidentiality and limited use
agreements governing the use of the List in a form reasonably acceptable to Ziff Davis. SCEA shall
use such List or portion thereof within thirty (30) day of receipt of the List or portion thereof.
The names comprising the Subscriber List shall be the sole property of Ziff Davis. In no event
shall a name on the Subscriber List be mailed to in excess of twice per year unless agreed to in
advance and in writing by Ziff Davis. Notwithstanding the above, SCEA may, at its sole cost and




13









 







expense, retain a third party approved by Ziff Davis, such approval not to be unreasonably withheld
or delayed (the “Database Analysis Provider”) to compare the Subscriber List and the Platform
Owners List in order for the Database Analysis Provider to provide certain aggregate statistics
about the Subscriber List; provided, however, that the Database Analysis Provider executes a
confidentiality agreement acceptable to Ziff Davis, which agreement will, among other provisions,
prohibit the Database Analysis Provider from (i) making any use of the Subscriber List other than
for the purpose set forth above and (ii) disclosing to any party, including without limitation
SCEA, any personally identifiable information about any individuals on the Subscriber File. By way
of illustration and without limiting the foregoing, the Database Analysis Provider could disclose
to Sony the aggregate number of persons who appear on both the Subscriber List and the Platform
Owners List, but could not disclose to Sony the identity of such individuals. Use of names on the
Subscriber List shall be at no cost for use of the List, however, SCEA shall be responsible for all
costs associated with the mailing house, and the production and mailing, if a mailing is done, of
any such promotional materials. Any use by SCEA of all or any portion of the Subscriber List
shall count toward SCEA’s ability to use the Subscriber List as set forth above. Under no
circumstances shall Ziff Davis be obligated to provide the Subscriber List, or any portion thereof,
in excess of twice per year during the Term.



(d) Ziff Davis’ Subscriber List shall be used by SCEA solely for the promotion of the Platforms or
other SCEA materials. All promotional materials sent to individuals shall be pre-approved in
writing by Ziff Davis prior to mailing. SCEA may not sublicense or assign any of its rights under
this paragraph 12(d).



(e) For avoidance of doubt, the Platform Owners List is the exclusive property of SCEA and the
Subscriber List is the exclusive property of Ziff Davis.



13. PROMOTION BY SCEA



(a) SCEA shall have the right to include a reasonable number of premiums in the Publication and
the exclusive right to place premiums in the Magazine Disc packaging. All promotions and premiums
shall be subject to Ziff Davis’ reasonable approval. Any costs associated with the premiums in
the Publication or in the Magazine Disc packaging shall be borne by SCEA at Ziff Davis’ actual
costs or supplied at SCEA’s actual costs with no charge to SCEA for insertion into the packing.



(b) SCEA shall not grant, and shall use reasonable efforts to prohibit its affiliates (excluding
its parent company Sony Computer Entertainment Inc., but SCEA shall give its parent company
notification of this Agreement and its obligations under this provision) from granting, to any
third party the right to license a foreign issue of an official Sony publication related to video
games, or any portion thereof, into the North American and/or the Central American markets until at
least thirty (30) days after such foreign issue is generally offered for retail sale in non-




14









 







North American and non-Central American markets.



(c) SCEA shall promote the Publication within the software development community and will use its
reasonable efforts to promote it within its video game software from time to time as may be agreed
upon by the parties.



14. PROMOTION BY ZIFF DAVIS



(a) Ziff Davis shall use its reasonable efforts to insure prominent display of the Publication at
retail. Such efforts may include promotions at airport/terminal outlets such as Pardies, Trofie
and Hudson News, as well as prominent displays at chains such as Safeway, Albertsons, CVS,
Walgreens, Wegmans, WaWa, Dominicks, Meijer, Best Buy, Walgreens, Target, Walmart, Barnes and
Noble, B. Dalton, Borders, Waldenbooks, Blockbuster Video, Babbages, and Sam Goody.



(b) Ziff Davis shall spend at least two hundred and fifty thousand dollars ($250,000.00) during
each year of the Term to promote the Publication, which includes the retail promotion described
above, as well as subscription promotion, such as new business direct mail campaigns, and insert
card promotions, retail display allowances, wholesaler incentives, fulfillment, rack charges, and
merchandising, but which excludes on-line advertising and promotions on websites including, but not
limited to, 1up.com.



(c) Ziff Davis shall promote the launch of the PSP. Ziff Davis’ promotion of the PSP shall
include, but not be limited to, production and distribution of a PSP Launch Special Booklet. The
Booklet shall: (i) contain sixteen (16) to thirty two (32) pages; (ii) be a mini magazine; (iii)
coincide with the launch of the PSP; (iv) be distributed as a supplement to the Publication, EGM,
GMR, Computer Gaming World and Sync magazines; and (v) include content on the introduction of the
PSP including all the benefits of the hardware – gaming, movies, music and connectivity, a round up
of all launch games plus available movie and music content, an introduction to all connectivity and
content distribution methods, exclusive commentary, demonstrate the universal appeal, and
illustrate the social nature of PSP entertainment.



15. CONFIDENTIAL INFORMATION



(a) Each of the parties acknowledges and agrees that certain information, which they may receive
from the other party, shall be proprietary to the disclosing party. Such information includes,
without limitation: (i) the terms of this Agreement; (ii) the fact that the disclosing party
intends to develop or market products; (iii) designs, schematics, specifications, editorial or
advertising plans or strategies, and all other technical information; (iv) any nonpublic
information concerning the business or finances of the disclosing party; and (v) any other
information the disclosure of which might harm or destroy a competitive advantage of the




15









 







disclosing party (all of items (i) through (v) shall be designated “confidential” and shall be
collectively referred to hereinafter as the “Proprietary Information”).



(b) Each party agrees that it will not, directly or indirectly either during or subsequent to the
Term: (i) disclose any Proprietary Information of the other party, other than to its own employees
or agents who participate directly in the performance of the receiving party’s respective
obligations under this Agreement; (ii) copy or use any Proprietary Information of the other party
except for the purpose of fulfilling its obligations hereunder; or (iii) publish any Proprietary
Information of the other party without the prior written consent of such party. The degree of care
employed by each of the parties to protect and safeguard the Proprietary Information of the other
party shall be no less than the degree of care used by such party to protect its own most highly
confidential information.



(c) Proprietary Information does not include any information which: (i) the receiving party is
authorized by the disclosing party in writing to disclose, copy, or use; (ii) is generally known or
becomes part of the public domain through no fault of the receiving party; (iii) is disclosed by
the disclosing party to third parties without restriction on subsequent disclosure; (iv) is
provided to the receiving party by a third party without a breach of any separate nondisclosure
agreement or duty owed by the third party to the disclosing party; or (v) is required to be
disclosed in the context of any administrative or judicial proceeding (but only to the extent of
such required disclosure), provided that prompt notice is given to the other party so that it may
seek other legal remedies to maintain confidentiality.



16. TRADEMARKS AND COPYRIGHTS



(a) Ziff Davis recognizes that SCEA has made a substantial investment into the value and goodwill
associated with the Trademarks licensed hereunder and acknowledges that the Trademarks and all
rights therein including the goodwill pertaining thereto, belong exclusively to SCEA, and shall
take no action that disparages, dilutes or diminishes the value or goodwill of those Trademarks.



(b) Ziff Davis acknowledges that the Trademarks, copyrights and other intellectual property rights
of SCEA, remain those of SCEA, including the goodwill pertaining thereto, and any rights conferred
herein are only for use in conjunction with the Publication or any ancillary promotional rights and
vest only for that purpose and only for the Term of this Agreement. Ziff Davis shall take no
action that disparages, dilutes or diminishes the value or goodwill of those trademarks and
copyrights. Further, Ziff Davis acknowledges that SCEA owns the PlayStation logos in any font that
it appears on the Publication or elsewhere, and Ziff Davis shall not challenge or contest such
ownership before, during and after the Term of this Agreement.



(c) SCEA acknowledges that Ziff Davis’ trademarks, copyrights and other intellectual property




16









 







rights in connection with the Publication, and all rights therein, including the goodwill
pertaining thereto, belong exclusively to Ziff Davis, and SCEA shall take no action that
disparages, dilutes or diminishes the value or goodwill of those trademarks and copyrights, and
SCEA shall not challenge or contest such ownership before, during or after the Term of this
Agreement. Ziff Davis may seek, in its own name and at its own expense, appropriate copyright
protection for the Publication, excluding SCEA’s Trademarks and copyrights.



(d) SCEA shall retain all right, title and interest in all SCEA Trademarks or copyrights as well
as in any modifications, improvements, or derivative works made to the same by Ziff Davis. Any
modifications made to any SCEA trademarks or copyrights by Ziff Davis shall be deemed by the
parties as a “work made for hire” under the Copyright Act of 1976(17 U.S.C. §100 et. seq.) and
shall become the sole property of SCEA at the time of creation and shall continue after the
expiration or termination of this Agreement.



(e) The parties agree to execute any documents reasonably requested by the other party to effect
any of the above provisions. To the extent that items in paragraph 16(d) are not automatically
owned by SCEA as a work made for hire under applicable copyright law, Ziff Davis irrevocably
assigns and transfers to SCEA all of Ziff Davis’ rights, title and interest to such intellectual
property rights owned by SCEA, and defined as trademarks or copyrights. Ziff Davis shall execute
such further assignments or other documents as SCEA shall reasonably request to give full effect to
the preceding provisions of this clause.



(f) The provisions of this Section shall survive any expiration or termination of this Agreement.



(g) Ziff Davis acknowledges that its use of the Trademarks and SCEA copyrights inures to the
benefit of SCEA and that Ziff Davis shall not acquire any rights in or to the Trademarks or SCEA
copyrights.



17. REPRESENTATIONS AND WARRANTIES



(a) SCEA represents and warrants that it has the right and power to grant the rights granted
herein.



(b) SCEA represents and warrants that the Trademarks, copyrights and other materials provided by
SCEA hereunder do not infringe any valid right of any third party.



(c) SCEA represents and warrants that the Magazine Discs and Substitute Discs produced pursuant to
this Agreement shall be suitable for the purpose intended and shall be compatible with the
Platforms. SCEA shall provide to the end user a 90-day limited warranty against manufacturing
defects to the end user of the Magazine Discs and Substitute Discs. Ziff Davis shall print the
terms and conditions of the warranty (to be provided by SCEA) in each edition of the Publication.
In no event shall SCEA be responsible for or warrant the Magazine Discs or




17









 







Substitute Discs against damage or defects caused in shipping with the Publication. SCEA shall be
permitted to print sufficient additional Magazine Discs or Substitute Discs to fulfill its warranty
obligations at no cost to Ziff Davis.



(d) Ziff Davis represents and warrants that it will use its reasonable efforts to promote,
market, sell and distribute the Publication and will be solely responsible for the content of the
Publication created by Ziff Davis and the production of the Publication and will bear all related
costs associated therewith.



(e) The parties represent and warrant that they will comply with the other party’s
Security/Privacy Policy as it relates to the use of the names provided under this Agreement.
SCEA’s Security/Privacy Policy is attached hereto as Schedule C and Ziff Davis’ Security/Privacy
Policy is attached hereto as Schedule D.



18. TERM



The term of this Agreement shall commence upon July 1, 2004 and continue until March 31, 2007
unless terminated pursuant to paragraph 19 (the “Term”).



19. TERMINATION



The following termination rights are in addition to the termination rights provided elsewhere in
the Agreement:



(a) SCEA shall have the immediate right to terminate this Agreement with written notice to Ziff
Davis if Ziff Davis:




     (1) fails to consecutively publish the Publication on a monthly basis, or as otherwise agreed
upon by the parties; or



     (2) fails to obtain or maintain liability insurance in the amount and of the type provided for
herein; or



     (3) files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an
assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or if
Ziff Davis discontinues its business or a receiver is appointed for Ziff Davis or for Ziff Davis’
business and such receiver is not discharged within thirty (30) days; or



     (4) fails to average four hundred fifty thousand (450,000) copies per issue print order during
any twelve (12) month period during the Term; or




18










 






     (5) fails to make timely payment of Royalties or on account balances for Magazine Discs within
30 days of its receipt of notice that payments are owing; or



     (6) misuses the Platform Owner List or uses the Platform Owner List more than twice a year
during the Term; or



     (7) fails (other than due to the fault of SCEA to deliver to Ziff Davis the physical Magazine
Disc in a timely manner as set forth above) to deliver a Magazine Disc on a monthly basis, or as
agreed to by the parties.


(b) Ziff Davis shall have the immediate right to terminate this Agreement with written notice to
SCEA:




     (1) if SCEA fails to manufacture or promote the Platforms within the last thirty (30) days
prior to the notice; or



     (2) if SCEA files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or
makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law,
or if SCEA discontinues its business or a receiver is appointed for SCEA or for SCEA’s business and
such receiver is not discharged within thirty (30) days; or



     (3) if SCEA misuses the Subscriber List or uses the Subscriber List more than twice a year
during the Term; or



     (4) if SCEA fails to deliver the Magazine Disc to Ziff Davis so as to enable Ziff Davis to
include the Magazine Disc with the Publication; or



     (5) if Ziff Davis has determined, in its reasonable business judgment, that continued
publication of the Publication is non-viable financially and that it intends to discontinue
publication of the Publication.


(c) Right to Terminate. In addition to the foregoing rights of termination, either party may
terminate this Agreement by written notice if the other party breaches a material provision of this
agreement and fails to cure such breach within thirty (30) days of receipt of notice of such breach
from the non-breaching party.



(d) In the event that this Agreement is expires or is terminated for reasons other than breach by
Ziff Davis, Ziff Davis shall have a ninety (90) day sell off period to sell the existing inventory,
including the then current Publication scheduled for printing. If this Agreement is terminated for
reasons of breach by Ziff Davis, then Ziff Davis shall not print any issues of the Publication not
yet printed, but may to sell the current issue of the Publication for a period of sixty (60) days
from




19









 







the onsale date of such issue, if distribution of such issue has occurred prior to the termination
date.



(e) In the event that this Agreement is terminated for a breach of a material provision by
SCEA, SCEA shall not use the logo created pursuant to Section 16 of this Agreement or endorse
another magazine as the “Official” PlayStation magazine for a period of ninety (90) days for the
date of termination.



(f) The provisions of Section 19(d) and 19(e) shall survive the expiration or termination of this
Agreement.



(g) In the event this Agreement is terminated for any reason or expires on its own accord, Ziff
Davis shall, within ninety (90) days of termination or expiration, pay to SCEA the product of (i)
one percent (1%) multiplied by (ii) the deferred subscription revenue related to the Publication as
of the date of expiration or termination, less any refunds thereof subsequently requested by
subscribers.



20. THIRD PARTY INFRINGEMENT



(a) Ziff Davis may request that SCEA institute and prosecute lawsuits against third persons for
infringement of the rights licensed in this Agreement. If SCEA elects not to take such action,
Ziff Davis shall have the right to bring legal action against the infringing third party, provided
notice is first given to SCEA. Any lawsuit shall be prosecuted solely at the cost and expense of
the party bringing suit and all sums recovered in any such lawsuits shall be awarded to the party
bringing the action. Upon request of the party bringing the lawsuit, the other party shall execute
all papers, testify on all matters, and otherwise cooperate in every reasonable way necessary and
desirable for the prosecution of any such lawsuit. The party bringing the lawsuit shall reimburse
the other party for reasonable out of pocket expenses incurred as a result of such cooperation.



(b) SCEA shall use its reasonable efforts to protect and defend the Trademarks licensed hereunder.



21. INDEMNIFICATIONS AND DEFENSE



(a) SCEA shall defend, indemnify and hold Ziff Davis harmless from and against any claims,
demands, causes of action and judgments (including reasonable attorneys fees and court costs)
brought against Ziff Davis by third parties (collectively “Ziff Davis Claims”) arising out of
SCEA’s breach of its representations, warranties or obligations hereunder, or otherwise arising
from materials provided by SCEA for the Publication or Magazine Discs or Substitute Discs or the
use of the Trademarks as authorized in this Agreement, provided that Ziff Davis shall give written
notice to SCEA within ten (10) days after receipt of notification of each such Ziff Davis




20









 







Claims and further provided that SCEA shall have the right to undertake and conduct the defense of
any such cause of action so brought. Notwithstanding the foregoing, SCEA shall not be required to
indemnify Ziff Davis for claims for which Ziff Davis is responsible under Section 21(b), including
claims relating to any editorial content created by Ziff Davis in connection with the publishing of
the Publication by Ziff Davis.



(b) Ziff Davis shall defend, indemnify and hold SCEA harmless from and against any and all claims,
demands, causes of action and judgments (including reasonable attorneys fees and court costs)
brought against SCEA by third parties (collectively, “SCEA Claims”), arising out of Ziff Davis’
breach of its representations, warranties or obligations hereunder, or otherwise arising from the
editorial content, design, manufacture, distribution, shipment, advertising or promotion of, or any
sweepstakes or contests designed to promote, the Publication, or any offering for sale or sale of
the Publication or the promotional and packaging material, or any other materials created by Ziff
Davis or its agent, provided that SCEA shall give written notice to Ziff Davis within ten (10) days
after receipt of notification of each such SCEA Claims and further provided that Ziff Davis shall
have the right to undertake and conduct the defense of any such cause of action so brought.
Notwithstanding the foregoing, Ziff Davis shall not be required to indemnify SCEA for claims that
SCEA is responsible under 21(a), including relating to Ziff Davis’ use of the Trademarks, Magazine
Discs and Substitute Discs and other SCEA provided materials.



22. LIMITATION OF LIABILITY



In no event shall either party be liable for any special, punitive, incidental or consequential
damages, including without limitation, loss of prospective profits arising out of, or in connection
with this Agreement, in whole or in part, whether under theory of contract, tort (including
negligence), indemnity, product liability or otherwise, provided that such limitations shall not
apply to damages resulting from breach of Section 21 of this Agreement, and provided further that
such limitations shall not apply to amounts which either party may be required to pay to third
parties under Section 21.



23. INJUNCTIVE RELIEF



If either party violates any of the material terms of this Agreement and fails to cure in a timely
manner after receiving written notice from the other party, the non-breaching party shall be
entitled to an immediate injunction enjoining the breach upon the posting of a ten dollar ($10.00)
bond with the court or tribunal of competent jurisdiction.



24. INSURANCE



Ziff Davis shall, throughout the Term of the Agreement, obtain and maintain at its own cost and
expense from a qualified insurance company licensed to do business in the State of California,




21









 







standard media liability insurance, naming SCEA as an additional insured. Such policy shall provide
protection for standard media liabilities, including, but not limited to claims for copyright,
libel, advertising injury, unfair competition, infringement of rights of publicity and privacy and
infringement of intellectual property. The amount of coverage shall be for no less than ten million
United States dollars ($10,000,000.00) per incident. Ziff Davis shall endeavor to provide thirty
(30) days notice to SCEA by Registered or Certified Mail, return receipt requested, in the event of
any modification, cancellation or termination of the insurance policy. Ziff Davis shall furnish
SCEA a certificate of insurance evidencing the above coverage within thirty (30) days after
execution of this Agreement.



25. NOTICE



Any notice required or permitted to be given under this Agreement shall be in writing and deemed
given upon actual receipt and shall be delivered personally, sent by a recognized courier, or
mailed via registered or certified mail return receipt requested, to the address indicated below or
other designated address:




	 	 	 
	If to SCEA:
	 	Sony Computer Entertainment America Inc.

	 	 	919 East Hillsdale, Blvd, 2nd Floor

	 	 	Foster City, California 94404

	 	 	Attn: Steve Williams

	 
	 	 

	with a copy to:
	 	Sony Computer Entertainment America

	 	 	919 East Hillsdale, Blvd, 2nd Floor

	 	 	Foster City, California 94404

	 	 	Attn: Riley Russell

	 
	 	 

	If to Ziff Davis:
	 	Ziff Davis Media Inc.

	 	 	101 Second Street

	 	 	San Francisco, California 94105

	 	 	Attn: Scott McCarthy, President, Game Group

	 
	 	 

	with a copy to:
	 	Ziff Davis Media Inc.

	 	 	28 East 28th Street

	 	 	New York, New York 10016

	 	 	Attn: Gregory E. Barton, Executive Vice President and General Counsel







26. CHOICE OF LAW



This Agreement shall be governed in accordance with the laws of the State of New York.




22









 








27. FORCE MAJEURE



In the event that an act of the government, war conditions, fire, flood, labor trouble in the
facilities of either party or in the facilities of those printing or distributing the Publication,
act of terrorism, or any other act reasonably beyond the control of either party, prevents the
performance by either party of the provisions of this Agreement, then such nonperformance by either
party shall not be considered as grounds for breach of this Agreement and such nonperformance shall
be excused for one hundred eighty (180) days from the date of such condition or occurrence.
Thereafter either party may elect to terminate this Agreement.



28. AGREEMENT BINDING ON SUCCESSORS



The provisions of the Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their heirs, administrators, and successors.



29. NO JOINT VENTURE



Both parties agree that in performing their duties under this Agreement they shall be operating as
independent contractors. Nothing contained herein shall in any way constitute any association,
partnership, agency or joint venture relationship between the parties hereto, or be construed to
evidence the intention of the parties to establish any such relationship. Neither party shall have
any right, power or authority to make any representation or to assume or create any obligation,
whether express or implied, on behalf of the other, or to bind the other party in any manner
whatsoever. Both of the parties agree, respectively, that they shall not hold themselves out in
any manner that would be contrary to the terms of this Section.



30. ASSIGNABILITY AND SUBLICENSING



The rights granted hereunder are personal to the parties and shall not be assigned, sublicensed,
mortgaged, or otherwise transferred or encumbered by any act of the parties or by operation of law,
including in connection with a transfer of substantially all the assets or stock of either party,
unless done with the express written approval of the other party.



31. WAIVER



No failure or delay by either party in exercising any right, power, or remedy under this Agreement
shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this
Agreement shall be effective unless in writing and signed by both parties hereto. Any waiver by
either party of any provision of this Agreement shall not be construed as a waiver of any other
provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such




23









 







provision respecting any future event or circumstances.



32. SEVERABILITY



If any term, clause or provision of this Agreement is held to be invalid or unenforceable, by a
court of competent jurisdiction, such invalidity shall not affect the validity or enforceability of
any other term, clause or provision of this Agreement and such invalid term, clause or provision
shall be deemed to be severed from this Agreement.



33. ENTIRE AGREEMENT



This Agreement, together with the Exhibits attached hereto, constitutes the entire understanding of
the parties, and revokes and supersedes all prior agreements between the parties, including the
1997 and the 2001 Agreements and any option agreements which may have been entered into between the
parties, and is intended as a final expression of their Agreement. It shall not be modified or
amended except in writing signed by both parties hereto and specifically referring to this
Agreement. This Agreement shall take precedence over any other documents that may be in conflict
with this Agreement.



34. RESERVED RIGHTS



Each party reserves all rights not expressly granted herein.



35. CAPTIONS



Captions or paragraphs and quotation marks appearing herein are inserted solely for reference and
convenience only and do not define or limit the scope or intent of any provision hereof.




24









 







IN WITNESS WHEREOF, the parties have caused this Official PlayStation Magazine Publishing Agreement
to be duly executed as of the day and year first written above.




	 	 	 	 	 	 	 	 	 
	SONY COMPUTER ENTERTAINMENT AMERICA	 	 	 	ZIFF DAVIS MEDIA INC.
	 
	 	 	 	 	 	 	 	 
	By

	 	/s/ A. House	 	 	 	By	 	/s/ R. Callahan
	

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	EVP	 	 	 	Title:	 	CEO
	

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	3/31/05	 	 	 	Date:	 	2/25/05
	

	 	 
	 	 	 	 	 	 






NOT AN AGREEMENT UNTIL EXECUTED BY BOTH PARTIES




25









 








SCHEDULE A




PlayStation




PlayStation 2




PSX




PlayStation Portable Game Console




PlayStation 3




Official U.S. PlayStation Magazine




The PlayStation PS logo




26









 








SCHEDULE B




PLAYSTATION TRADEMARK GUIDELINES




PlayStation®2 Trademark Guidelines

Text Use Only




Introduction



These guidelines are meant to assist SCEA , its licensees, and authorized promotional partners in
complying with legal and corporate identity requirements regarding the use of the
PlayStationÒ2 and DUALSHOCKÔ2 trademarks in text. Guidelines for specific logo usage
and electronic versions of logos, will be provided in the PlayStation 2 Corporate Identity Manual
in April, 2000.



Please assist SCEA in maintaining protection for its trademarks and brand name products by
following these guidelines.



Use of the PlayStation 2 Trademark In Text



The following are the standard guidelines for use of the non-stylized word mark “PlayStation 2” in
copy and marketing materials.





	1.  	PlayStation 2 Text Trademark






	 	a)  	The trademark “PlayStation 2” should be used to reference the SCEA marketed PlayStation
2 computer entertainment system and its compatible software.
	 
	 	b)  	Only the straight, non-stylized text version of the mark should be utilized in copy.
The text version of the PlayStation 2 mark should appear in the same font as the other
words surrounding the mark. The PlayStation 2 stylized logotype should never be used in
copy, or with other words. The logotype is a standalone logo.
	 
	 	c)  	The Sony logo or trademark may not be used under any circumstance (e.g. “Sony
PlayStation 2” is not allowed.)
	 
	 	d)  	The acronyms “PS2” and “PSX2” may not be used.





27









 









	 	   	Exception: The acronym “PS2” may be allowed under certain circumstances in On Screen
Display material within compatible software. Such use requires prior permission from SCEA.






	2.  	Trademark Use






	 	a)  	The proper spacing of the characters of the trademark is as follows:






	 	i)  	The trademark is one word. Never separate the words “Play” and “Station.”
	 
	 	ii)  	When using the “Ò” notice there should be no additional space left
between the letter “n” and the “Ò”, or the “Ò” and the number “2”.
	 
	 	   	Example: PlayStationÒ2
	 
	 	iii)  	When not using the “Ò” notice, there should be a space between the letter
“n” and the number “2.”
	 
	 	   	Example: PlayStation 2






	 	b)  	The text version of the trademark must be used as an adjective in conjunction with the
full generic product name that it brands. The first appearance of the PlayStation 2
trademark in text must be followed by the generic product name “computer entertainment
system.” Subsequent uses of the mark within the same copy may be followed by the full
generic product name or the word “console.”
	 
	 	   	The generic product name should be in lowercase letters, unless the context calls for it to
be capitalized, i.e. in a headline where all surrounding words are capitalized.
	 
	 	c)  	The term “PlayStation 2 format” should be used to describe licensed, compatible
software.
	 
	 	   	Examples: PlayStation 2 format software






	 	   	PlayStation 2 format DVD-ROM
	 
	 	   	PlayStation 2 format disc






	 	d)  	The trademark must not be used in the plural (e.g. PlayStation 2s) or possessive form
(e.g. PlayStation 2’s).






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	 	e)  	The letters “P” and “S” must always be capitalized in the text version of the
PlayStation 2 trademark.
	 
	 	   	Exception: Capitalization should be based on context. Therefore, if the trademark appears
in a sentence or phrase surrounded by words that are fully capitalized, all of the letters
in the trademark may be capitalized as well. However, in such cases, the letters “P” and
“S” should be of a slightly larger font than the other letters within the trademark.






	3.  	Trademark Notice Symbol and Legal Line






	 	a)  	Use the trademark notice “Ò”, unless instructed by SCEA to otherwise use the
“Ô”. This notice should follow all headlines and logos, and should appear at least
once, preferable on the first and most prominent use, in any long copy.
	 
	 	   	In text, place the trademark notice, preferably in superscript font, between the letter “n”
and the number “2”.





Example: PlayStationÒ2





	 	b)  	The following legal copy must appear in any material in which the mark is used.
	 
	 	   	Example: “PlayStation” and the “PS” Family logo are registered trademarks of Sony Computer
Entertainment Inc.
	 
	 	   	Note: The following stylized version of the standard legal copy is also acceptable.
Electronic templates with the miniature logo will be available shortly.
	 
	 		and PlayStation are registered trademarks of Sony Computer Entertainment Inc.





Use of the DUALSHOCKÔ2 Trademark in Text



The following are the standard guidelines for use of the non-stylized mark “DUALSHOCK 2” in copy
and marketing materials.





	1.  	DUALSHOCK 2 Text Trademark






	 	a)  	The trademark “DUALSHOCK 2” should be used to reference the SCEA marketed DUALSHOCK 2
analog controller only.




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	 	b)  	The term “DUALSHOCK” or “DUALSHOCK 2” should not be used to describe the vibration
function of a controller. This action is properly called “vibration function.”
	 
	 	c)  	The PlayStation and Sony trademarks may not be used in conjunction with the DUALSHOCK 2
trademark (e.g., PlayStation DUALSHOCK 2 analog controller is not acceptable.)






	2.  	Trademark Use






	 	a)  	The proper spacing of the characters of the trademark is as follows:






	 	i)  	The trademark is one word. Never separate the words “DUAL” and “SHOCK.”
	 
	 	ii)  	When using the “Ô” notice, there should be no additional space left
between the letter “K” and the “Ô”, or the “Ô” and the number “2.”
	 
	 	   	Example: DUALSHOCKÔ2
	 
	 	iii)  	When not using the “Ô” notice, there should be a space left between the
letter “K” and the number “2.”
	 
	 	   	Example: DUALSHOCK 2






	 	   	The trademark “DUALSHOCK 2” should always be fully capitalized when used in text, and must
be followed by the generic product name “analog controller.” The generic product name should
be in lowercase letters, unless the context calls for it to be capitalized, i.e. in a
headline where all surrounding words are capitalized.






	3.  	Trademark Notice Symbol and Legal Line






	 	c)  	Use the trademark notice “Ô”, unless instructed by SCEA to otherwise use the
“Ò”. This notice should follow all headlines and logos, and should appear at least
once, preferable on the first and most prominent use, in any long copy.
	 
	 	   	In text, place the trademark notice, preferably in superscript font, between the letter “K
and the number “2”.





Example: DUALSHOCKÔ2




30









 









	 	d)  	The following legal copy must appear in any material in which the mark is used. In
materials that use both the DUALSHOCK 2 and PlayStation 2 trademarks, combining the
trademark attributions is acceptable.
	 
	 	   	Examples:
	 
	 	   	DUALSHOCK is a trademark of Sony Computer Entertainment Inc.
	 
	 	   	“PlayStation” and the “PS” Family logo are registered trademarks and DUALSHOCK is a
trademark of Sony Computer Entertainment Inc.
	 
	 	   	Note: The following stylized version of the standard legal copy is also acceptable.
Electronic templates with the miniature logo will be available shortly.




 and PlayStation are registered trademarks and DUALSHOCK is a trademark of Sony Computer
Entertainment Inc




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SCHEDULE C




WWW.PLAYSTATION.COM PRIVACY POLICY





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SCHEDULE D




Ziff Davis Media Privacy Policy




Ziff Davis Media Privacy Policy



Ziff Davis Media is committed to protecting your privacy. This policy describes the ways that
personally identifiable and anonymous information about our online users, event registrants and
print subscribers is gathered, our information sharing practices, and how online users and print
subscribers may request changes to the way this information is shared.



Personally Identifiable Information We Collect



We collect personally identifiable information when you provide it to us, such as when you
subscribe to our magazines (either directly with us or through another company such as a
subscription agency), sign up for email newsletters, enter a contest, register for site membership,
participate in surveys, or to otherwise communicate with us. Several of the services that we offer,
such as file downloads and message boards, require registration as a condition of use; when you
register with one of our sites you are no longer anonymous. We may also receive information about
you from other sources and add it to the information you have provided to us.



Information You Volunteer and How it Is Displayed to Others Online



Ziff Davis Media is not responsible for the information you volunteer about yourself in the
course of discussions in our forums, chat rooms, or other forms of publicly accessible interaction,
or information that you choose to make public in your member profile. As a member, you can view,
correct or change your publicly available information at any time via your member profile page. To
view or change your profile, please follow the link for the site from which you registered:




     Baseline



     CIO Insight



     The Channel Insider



     DevSource



     eWEEK



     Extreme iPod



     ExtremeTech



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     Microsoft Watch



     PC Magazine Magazine and the PC Magazine Utility Library



     Sync Magazine



     1UP.com


Personally identifiable information you provide as a subscriber to the Microsoft Watch newsletter
is not shared with anyone except on an aggregate, statistical basis, except for the purposes of
fulfillment and email deployment.




What We Provide to Third Parties




Statistical Reports and Analysis



Naturally, the aggregate statistics that describe our print and online audience, which is
often based on the information you provide when you subscribe, register, or browse our sites, help
us sell advertising and otherwise publicize Ziff Davis Media and its brands. The information we
share under these circumstances does not contain behavioral or identifying information about any
individual reader or user, unless the individual has given us permission to share that information.




Mailing Lists



We make email and postal lists of our customers available on a rental, i.e., temporary,
defined, basis, to carefully screened providers of quality goods and services. Many customers
appreciate the offerings they receive, but here’s what to do if you don’t wish for us to share this
information:



• If you are a subscriber to a Ziff Davis Media magazine and would prefer that your contact
information not be provided to third parties, please log in and change your preferences at
http://subhelp.ziffdavis.com. (If you are a new subscriber, your information may not be immediately
available – please allow 2-4 weeks from placing your subscription order for processing.)





If you are a registered user of our sites, you can change your preferences via the profile
page links shown above.




If you are a registered user of Ziff Davis eSeminars, please send email with your
preference request to eSeminars@ziffdavis.com. Please see below for details on eSeminars’s
privacy policies.




If you are a registered attendee of Business 4Site or DigitalLife, please send email with
your preference request to event_marketing@ziffdavis.com. Please see below for details on
Business 4Site and DigitalLife event privacy policies.




If you’ve registered to attend a Ziff Davis Media face-to-face event and prefer this
information not be shared, please send email with your preference request to
events@ziffdavis.com.



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Any mailing sent to our lists is carefully reviewed before it is sent, and when we rent our mailing
lists, we monitor them to ensure they are used only for the approved purpose. Because of the
difficulty inherent in tracking their use, we do not provide email address lists to third parties
except for service purposes such as deployment or suppression, as described below.



Ziff Davis Media also provides profile reports on specific companies, based on subscriber-reported
and publicly available data, to carefully screened providers of quality goods and services. These
include contact information for the company and its key personnel.



Email and Postal Mail Deployment, Data Analysis and Other Data Services



We provide customer lists and other information to third party companies who provide
specialized services, such as email message deployment, merge-purge (identifying and removing
duplicate addresses) of lists, postal mailing, subscription fulfillment, customer service and
telemarketing, research, statistical analysis, and other data processing. These companies work on
our behalf and we do not provide our lists or other data to them for their own, permanent, use.



In order to comply with the Federal CAN-SPAM Act of 2003, we also may provide lists of customers
who have opted-out of email promotion for Ziff Davis products to other companies, so they can be
suppressed from mailings those companies send on Ziff Davis’s behalf. In addition, if you
unsubscribe from a mailing we send to our own list on behalf of a third party, your removal
instruction may also be supplied to the third party and added to their own suppression file.



Ziff Davis Media Magazines, Seminars, Events, Sites and Other Publications and Services



As a Ziff Davis Media customer you can also expect to receive relevant email and postal offers
for Ziff Davis Media publications, seminars, events, web sites and other services. From time to
time we are also able to secure and offer to our customers specially-negotiated discounts and new
products from other leading companies. If you would prefer not to receive such mailings in the
future, you can change your preference via the links in the previous section (“Mailing Lists”).



Change of Ownership of Ziff Davis Media Properties



The mailing list(s) associated with Ziff Davis Media properties may also be subject to
transfer to another company in the event of a change of ownership. In this event, Ziff Davis Media
or the new owner of the affected properties will use commercially reasonable efforts to notify you
and provide the opportunity to remove your name from the associated mailing list(s).



Anonymous Information We Collect



Cookies



As you probably know, cookies are small pieces of information that many Web sites store on
your computer’s hard drive when you visit them. They don’t tell us who you are unless you’ve
specifically given


35









 






us personally identifiable information. Cookies stored on your hard drive by a Ziff Davis Media
site are not accessible to other sites.



Like many other web sites, Ziff Davis Media sites use cookies to improve your experience with our
online content. For example, we may use a cookie to identify members so they don’t have to re-enter
a user id and password when they wish to download a utility or post to a discussion. As another
example, cookies can be used to control the number of times you see advertisements, like pop-ups.
By allowing us to better understand how users interact with the site over time, cookies also help
us improve your experience and deliver more relevant content to you. Cookies may be created
directly by our sites for these purposes, or by third-party companies operating on our behalf.
However, our cookies do not contain any information that is, in itself, personally identifying.
Some of our advertisers occasionally serve you cookies as well. We do not have control over cookies
placed by advertisers. You need not have cookies turned on to visit our sites, though cookies may
be required in order for you to participate in certain areas. If you choose to become a member of a
Ziff Davis Media web site, you must have cookies enabled to access any member related pages (i.e.
Discussion Boards, Member Profile pages, Search for a Member).



Most web browsers automatically accept cookies but allow you to modify security settings so you can
approve or reject cookies on a case-by-case basis.




Pixel Tags



Like many web sites, Ziff Davis Media may also use pixel tags, also known as beacons,
spotlight tags or web bugs, to improve our understanding of site traffic, visitor behavior, and
response to promotional campaigns, as a supplement to our server logs and other methods of traffic
and response measurement. Pixel tags are sometimes used in conjunction with small Javascript-based
applications, also for the purpose of traffic measurement. We may also implement pixel tags
provided by other companies, for the same purpose. You can disable pixel tags by changing your
browser settings to omit images and disable Javascript; or there are commercial software packages
available that can omit pixel tags and most advertisements.




Online Ad Serving



Ziff Davis Media uses Doubleclick, a third-party advertising service company, to serve
advertisements when you visit our sites. This company may use information (not including your name,
address, e-mail address, telephone number, or any other information you’ve provided us) about your
visits to our and other web sites in order to provide advertisements about goods and services of
interest to you. For this purpose, Doubleclick may use pixel tags (also called clear gifs,
spotlight tags and beacons) For more information about Doubleclick’s information collection
practices, and to know your choices about not having this information used by Doubleclick, click
here.



Several companies provide email deployment services for our email messages. The personally
identifiable information, such as e-mail address, we provide to these vendors for the purposes of
e-mail deployment is only used by them for that purpose and not for any other business activity.




36









 







Some of our advertisers use third-party companies to serve their advertisements on our sites and,
in some cases, in our HTML-formatted newsletters. Often, these third-party advertising companies
employ cookie and pixel tag technologies to measure the effectiveness of Web and e-mail
advertisements. We do not give any personally identifiable information to them as part of this
relationship. Use of their tracking technology is subject to their own privacy policies. For more
information about the privacy policies of the third-party advertising providers including
information on how to opt out of their tracking methods, click here.




Ziff Davis Media eSeminars



When you register to view a Ziff Davis Media eSeminar, we request personally identifiable
information including: first name, last name, email address, phone number, company address, primary
business activity, job function, and company size.



Ziff Davis Media eSeminars also automatically receives and records information on our server logs
from your browser, including your IP address, Internet connection speed, Internet connection
duration, and Real Media and Windows Media player information. This is done in conjunction with our
broadcast provider, ON24, Inc. Your data is collected and retained by ON24 for the sole purposes of
delivering eSeminars content appropriately, traffic reporting, and enabling re-registration for
future events. In addition, ON24 uses cookie technology to identify you as a registered user of the
eSeminars service.



Ziff Davis Media eSeminars produces and hosts sponsored webcasts and online trade shows for a
variety of companies (Sponsors). All data collected during the registration of such events will be
shared with those Sponsors. This data is governed by the individual Sponsor’s privacy policy and
may be used by the Sponsor for follow-up purposes. Similarly, Ziff Davis Media eSeminars will have
the same access to this data as the Sponsors. For details on how eSeminar Sponsors use the
information you provide, please contact the Sponsor directly.



If you have any questions, please contact eSeminars@ziffdavis.com.




Business 4Site and DigitalLife Events



When you register to attend Business 4Site and DigitalLife events, we request personally
identifiable information including: first name, last name, email address, phone number, company
address, primary business activity, job function, company size and event specific interests.



Business 4Site and DigitalLife events also automatically receives and records information on our
server logs from your browser, including your IP address.



Business 4Site and DigitalLife events are produced for a variety of companies (Sponsors). All data
collected during the registration of such events may be shared with those Sponsors. This data is
governed by the individual Sponsor’s privacy policy and may be used by the Sponsor for follow-up
purposes. Similarly, Ziff Davis Media Business 4Site and DigitalLife events will have the same
access to this data as


37









 






the Sponsors. For details on how Business 4Site and DigitalLife events Sponsors use the information
you provide, please contact the Sponsor directly.



If you have any questions, please contact event_marketing@ziffdavis.com.




Contests and Sweepstakes



Ziff Davis Media publications and Web sites periodically conducts contests and sweepstakes. If
you choose to enter, the data you provide will be subject to the official rules of the specific
contest, as well as this privacy policy. Please read the contest rules carefully before you submit
your data.




Co-Branded Sites and Services



When you use a co-branded service within our network of sites, or register or otherwise
provide information on a co-branded site, you grant us permission to pass the information collected
back to that service or site partner. Their use of your information is subject to their applicable
privacy policies.




Changing Your Privacy Options




Update Your Registration Information



You can correct or change the information collected during site registration at any time at
the profile page links shown above, or, for eSeminars and Events, by sending email to the addresses
shown above.




Update Your Newsletter Subscriptions



You can opt-in to newsletter mailing lists, or remove yourself at any time through the
subscription management page (this page will display all of your newsletter subscriptions) or by
following the instructions at the end of the newsletters you receive. Please allow 3-5 business
days for changes to take effect.




Update Your Print Subscription Information



You can correct or change your print subscription information at http://subhelp.ziffdavis.com.
Please allow 2-4 weeks for changes to take effect.




Security



We use reasonable precautions to keep the personal information you disclose to our magazines
and websites secure and to only release this information to third parties we believe share our
commitment to privacy. However, we are not responsible for any breach of security or for the
actions of these parties.




Children



Ziff Davis Media web sites are not intended for use by children, especially those under 13. No
one under age 13 is allowed to provide any personal information or use our public discussion areas,
forums, and


38









 






chats. Minors under the age of 18 are prohibited from making purchases, including subscriptions, on
our sites.



If your children disclose information about themselves in our public discussion areas, they may get
unsolicited messages from other parties. Accordingly, you should tell them not to do so.




Changes to the Ziff Davis Privacy Policy



This Privacy Policy may be modified from time to time. Any modifications to our privacy policy
will be reflected first on this page, so check back often. If there is a significant change, we
will indicate on our sites that our privacy policy has changed and provide a link to the new
policy.




Questions?



If you have any questions on our Privacy Policy, you can contact us at
site_feedback@ziffdavis.com.




Effective date: September 13, 2004




Terms Of Use




TERMS & CONDITIONS: Ziff Davis Media User Agreement




1. General



1.1 This agreement governs your use of the Ziff Davis Media information service (the
“Service”), including Discussion Areas, which is operated by Ziff Davis Media Inc., an indirect
subsidiary of Ziff Davis Holdings Inc. (“ZDH”). Additional terms and conditions of use applicable
to specific areas of the Service may also be posted in such areas and, together with this
agreement, govern your use of those areas. This agreement, together with any such additional terms
and conditions, are referred to as this “Agreement.”



1.2 ZDH reserves the right, in its discretion, to change or modify all or any part of this
Agreement at any time, effective immediately upon notice published on the Service. Your continued
use of the Service constitutes your binding acceptance of these terms and conditions, including any
changes or modifications made by ZDH as permitted above. If at any time the terms and conditions of
this Agreement are no longer acceptable to you, you should immediately cease all use of the
Service.



1.3 The Service is directed to teenagers and adults and is not directed to children under the age
of 13. You must be 13 years of age or older to use the Service. Ziff Davis Media complies with the
Children’s Online Privacy Protection Act and does not permit registration by and will not knowingly
collect personally identifiable information from anyone under 13. This requirement will be posted
wherever Ziff Davis Media collects data within the Service, such as during the registration
process. By registering for the Service, you represent and warrant that you are 13 years of age or
older. Additionally, you must provide true, accurate


39









 






and complete registration information to become a member of the Service (“Member”). Creating a
Member account under automated means or under false or fraudulent pretenses constitutes
unauthorized use of the Service and such accounts will be terminated by ZDH.



As part of the registration process, you will be asked to select a username and password and you
will be responsible for all activities occurring under your username and for keeping your password
secure. We may refuse to grant you a username that impersonates someone else, is or may be
protected by trademark or proprietary rights law, or is vulgar, offensive, or otherwise
inappropriate, as determined by us in our sole discretion.



By using the Service, you represent and warrant that all registration information you submit is
truthful and accurate and you agree to the accuracy of such information. The profile that you
compose upon registering for the Service (the “Member Profile”) must describe you, an individual
person. Examples of inappropriate profiles include, but are not limited to, profiles that purport
to represent an animal, place, inanimate object, fictional character, or real individual who is not
you. If you wish to view or change your profile, you can do so via the profile page links listed in
the Ziff Davis Media Privacy Policy http://www.1up.com/do/join2.




2. Use of Content



2.1 You acknowledge that the Service contains information, software, photographs, audio and
video clips, graphics, links and other material (collectively, the “Content”) that are protected by
copyright, trademark or other proprietary rights of ZDH or third parties. All Content on the
Service is copyrighted as a collective work of ZDH pursuant to applicable copyright law. You agree
to comply with any additional copyright notices, information, or restrictions contained in any
Content available on or accessed through the Service. Users of the Service may use the Content only
for their personal, noncommercial use. Businesses, organizations or other legal entities may not
become Members and are not permitted to use the Service for any purpose, including but not limited
to collecting usernames and /or email addresses of Members by electronic or other means for the
purpose of sending unsolicited email and unauthorized framing of or linking to the Service.



2.2 Except as expressly permitted in Section 2.3 of this Agreement, you may not modify, publish,
transmit, reproduce, create derivative works from, distribute, perform, display, sell, transfer or
in any way exploit any of the Content or Material, in whole or in part. Content consisting of
downloadable software may not be reverse engineered unless specifically authorized by the owner of
the software’s patent and/or copyright.



You may post on the Service any Content owned by you (such as your original statements), Content
for which you have received express permission from the owner and Content in the public domain
(collectively, the “Material”). You assume all risk and responsibility for determining whether any
Material is in the public domain. You hereby grant, transfer and assign to ZDH and its successors,
assigns and licensees (collectively, “Licensee”) a fully-paid, royalty-free, irrevocable,
perpetual, worldwide right and license to publish, distribute, reproduce, transmit, use, translate,
display, perform, modify, revise, create derivative works of and archive the Material, in any form
or media now known or hereafter developed (including without limitation in print, magnetic or
electronic form), on any number of occasions in any form,


40









 






and to sublicense third parties to do any of the foregoing with further right of sublicense (the
“License”), without compensation to you. You represent and warrant that you are authorized to grant
all rights set forth in the preceding sentence and that the exercise by Licensee of Licensee’s
rights under the License, shall not violate any laws, defame or libel any person, invade any
person’s right of privacy or publicity or otherwise violate, misappropriate or infringe the rights
of any person (including without limit copyright or moral right).



2.3 You may download, copy and make any personal, non-commercial use of the Content and Material
and use that is permitted by Sections 107 through 122 of the United States Copyright Act of 1976,
as amended (“Copyright Act”) and not prohibited by any section of the Copyright Act or by any other
applicable law, rule or regulation; provided, however, that you maintain all copyright and other
notices contained in such Content; and provided further that you shall not store electronically any
significant portion of any Content.




3. Rules of Conduct



The following is an incomplete list of illegal and prohibited uses of the Service. ZDH may
investigate any illegal and/or unauthorized use of the Service, and appropriate legal action may be
taken, including without limitation, civil, criminal, and injunctive redress. While utilizing the
Service, you may not:



• use the Service for any commercial purpose, to distribute any advertising or solicitation of
funds or goods and services, or to solicit users to join competitive online services;



• post on the Service any links to any external Internet sites that are obscene or pornographic, or
display pornographic or sexually explicit material of any kind;



• use any robot, spider, site search and/or retrieval application, or other device to retrieve or
index any portion of the Service;



• reformat or frame any portion of any web page that is part of the Service;



• post Material containing restricted or password only access pages, or hidden pages or images
(those not linked to or from another accessible page);



• submit any Material that falsely implies sponsorship of that Material by the Service and/or ZDH,
or promote any information that you know is false, misleading, or libelous;



• transmit any viruses, worms, defects, Trojan horses or other items of a contaminating or
destructive nature through the Service;



• submit Material that violates the rights of others, such as Content that infringes any copyright,
trademark, patent, trade secret or violates any right of privacy or publicity, or that is libelous
or defamatory, or that directs any user, by linking or any other method, to the Material of a third
party without the third party’s written consent;




41









 







• promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing
pirated computer programs or links to them, providing information to circumvent
manufacture-installed copy-protect devices, or providing pirated music or links to pirated music
files;



• submit Material that is libelous, defamatory, obscene, pornographic, abusive, harassing,
threatening unlawful or promotes or encourages illegal activity.



4. Managing Content



ZDH reserves the right to delete, move or edit any Content or Material (including Material
posted in any Interactive Area of the Service) that it may determine, in its sole discretion,
violates this Agreement or is otherwise unacceptable. However, ZDH does not and cannot review all
of the Content and Material posted by users on the Service and is not responsible for such Content
or Material. You shall remain solely responsible for all Material. . Although ZDH reserves the
right to remove any offending Material on the Service, you understand and agree that you
nonetheless may be exposed to such Material and that you further waive your right to any damages
(from any party) related to such exposure.



Additionally, ZDH shall have the right, but not the obligation, to correct any errors or omissions
in any Content, as it may determine in its sole discretion.



5. No Endorsement



5.1 ZDH does not represent or endorse the accuracy or reliability of any Content or Material
posted on any Interactive Area and you acknowledge that any reliance upon such Content or Material
shall be at your sole risk. Any Content placed on any Interactive Area by users represents the
views of the user posting the statement, and does not represent the views of ZDH.



5.2 The Service may contain links to sites on the Internet which are owned and operated by third
parties (the “External Sites”). You acknowledge that ZDH is not responsible for the availability
of, or the content located on or through, any External Site. You should contact the site
administrator or Webmaster for those External Sites if you have any concerns regarding such links
or the content located on such External Sites.



6. Indemnity



You agree to indemnify, defend and hold ZDH and its affiliates, and their respective officers,
directors, owners, agents, information providers and licensors (collectively, the “ZDH Parties”)
harmless from and against any and all claims, liability, losses, costs and expenses (including
attorneys’ fees) incurred by any ZDH Party in connection with any use or alleged use of the Service
under your password by any person, whether or not authorized by you. ZDH reserves the right, at its
own expense, to assume the exclusive defense and control of any matter otherwise subject to
indemnification by you, and in such case, you agree to cooperate with ZDH’s defense of such claim.



7. Termination of Service




42









 







ZDH reserves the right, in its sole discretion, to restrict, suspend or terminate your access
to all or any part of the Service, including the Discussion Areas, at any time for any reason
without prior notice or liability. Conversely, you may terminate your membership of the Service at
any time, for any reason, by emailing ZDH at feedback@1up.com. Once your membership terminates, you
will have no right to use the Service. The terms of this Agreement shall survive any termination of
your membership. ZDH may change, suspend or discontinue all or any aspect of the Service at any
time, including the availability of any feature, database, or Content (including the Discussion
Areas), without prior notice or liability.



8. Copyright Policy



You may not post, distribute, perform, display, transmit or reproduce in any way any
copyrighted material, trademarks, or other proprietary information without obtaining the prior
written consent of the owner of such proprietary rights. Without limiting the foregoing, if you
believe that your work has been copied and posted on the Service in a way that constitutes
copyright or trademark infringement, please email ZDH at feedback@1up.com with the following
information: an electronic or physical signature of the person authorized to act on behalf of the
owner of the copyright or trademark interest; a description of the copyrighted work or trademark(s)
that you claim has been infringed; a description of where the material that you claim is infringing
is located on the Website; your address, telephone number, and email address; a written statement
by you that you have a good faith belief that the disputed use is not authorized by the copyright
or trademark owner, its agent, or the law; a statement by you, made under penalty of perjury, that
the above information in your notice is accurate and that you are the copyright owner or authorized
to act on the copyright or trademark owner’s behalf.



9. Disclaimer of Warranties; Limitation of Liability.



9.1 Neither ZDH nor any provider of third party content or their respective agents warrants
that the service will be uninterrupted or error free; nor does ZDH, any third party content
provider, or their respective agents make any warranty as to the results to be obtained from use of
the service or the content. The service and the content are distributed on an “As is, as available”
basis. None of ZDH, third party content providers and their respective agents make any warranties
of any kind, either express or implied, including, without limitation, warranties of title or
implied warranties of merchantability or fitness for a particular purpose, with respect to the
service, any content or any products or services sold through the service. Neither ZDH nor any
third party content provider warrants that any files available for downloading through the service
will be free of viruses or similar contamination or destructive features. You expressly agree that
the entire risk as to the quality and performance of the service and the accuracy or completeness
of the content is assumed solely by you.



9.2 Neither ZDH, any third party content provider nor their respective agents shall be liable for
any direct, indirect, incidental, special or consequential damages arising out of the use of or
inability to use the Service, even if such party has been advised of the possibility of such
damages.



9.3 Some states do not allow exclusion of implied warranties or limitation of liability for
incidental or consequential damages, so the above limitations or exclusions may not apply to you.
In such states, the


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liability of ZDH, third party content providers and their respective agents shall be limited to the
greatest extent permitted by law.




10. Member Disputes



You are solely responsible for your interactions with other Members of the Service. ZDH
reserves the right, but has no obligation, to monitor disputes between you and other Members.




11. Special Admonitions for International Use



As a consequence of the global nature of the Internet, you agree to comply with all local
rules regarding user conduct on the Internet and acceptable content. Specifically, you agree to
comply with all applicable laws regarding the transmission of technical data exported from the
United States or the country in which you reside.




12. Miscellaneous



This Agreement shall be construed in accordance with the laws of the State of New York,
without reference to principles of choice of law. You and ZDH each irrevocably consent to the
personal jurisdiction of the federal or state courts located in New York, New York, the Borough of
Manhattan (the “Courts”), with respect to any action, suit or proceeding arising out of or related
to this Agreement or to the Service (including without limitation any Content or Material) and
waive any objection, to venue in any of the Courts for such an action, suit or proceeding (whether
based on forum non conveniens or otherwise); additionally, you agree that you will not bring any
such action, suit or proceeding in any court other than the Courts. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof, and supersedes all
previous written or oral agreements between the parties with respect to such subject matter. If any
inconsistency exists between the terms of this agreement and any additional terms and conditions
posted on the Service, such terms shall be interpreted as to eliminate any inconsistency, if
possible, and otherwise, the additional terms and conditions shall control. If any provision of
this Agreement is held invalid, illegal or unenforceable in any respect, (i) such provision shall
be interpreted in such a manner as to preserve, to the maximum extent possible, the intent of the
parties, (ii) the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and (iii) such decision shall not affect the validity,
legality or enforceability of such provision under other circumstances





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