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EXHIBIT 10.13
MASTER AFFILIATION AGREEMENT
DIRECTV
THIS Master Agreement is made as of the 22nd day of December, 1998 (the
"Effective Date"), by and between WINK COMMUNICATIONS, INC., a California
corporation ("Wink"), whose address is 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX
00000 and DIRECTV, Inc., a California corporation ("DIRECTV"), whose address is
0000 Xxxx Xxxxxxxx Xxxxxxx, Xx Xxxxxxx, XX 00000.
1. GRANT OF LICENSE
1.1 Subject to the terms of this Master Agreement, Wink hereby grants to
DIRECTV a non-exclusive license (the "License") to use the Wink
software products listed in Exhibit B (hereinafter collectively
referred to as "Wink Software") to deliver interactive program(s)
which are compliant with the Wink interactive communications
application protocol ("Interactive Wink Programs") to DIRECTV
subscribers which are located in the continental United States,
Alaska, Hawaii, and the US territories in the Caribbean (the
"Territory").
1.2. Except as specifically permitted in this Master Agreement, this
License is not transferable, nor may any rights hereunder be
transferred, assigned or sub-licensed in whole or in part without
Wink's prior written consent.
1.3. "Updates" shall mean updates containing error corrections or minor
enhancements to the Wink Software created by or for Wink, and
designated by a change in version number to the right of the decimal
point. Updates do not include major enhancements to the Wink Software
designated by changes in the version number to the left of the
decimal point. Wink shall provide a license to all Updates at no
charge to DIRECTV during the term of this Master Agreement and
DIRECTV, in its sole discretion, shall have the option to utilize
such Updates in providing Interactive Wink Programs to DIRECTV
subscribers. "New Release" shall mean a major release of the Wink
Software which occurs subsequent to the Measurement Date (as defined
below), which contains significant new functionality), and/or major
enhancements, and which is designated by a change in the digit or
digits to the left of the decimal point in the version number. Wink
shall offer to DIRECTV a license to all New Releases created by Wink
during the Term on terms that are as favorable or more favorable than
the terms of any agreement Wink has entered into with other United
States video distributors, including all cable operators, for the
provision of the New Releases; provided, however, that in no event
shall DIRECTV's decision not to license any New Release have any
impact whatsoever on the functionality of the current Wink Software
or DIRECTV's ability to provide Interactive Wink Programs to DIRECTV
subscribers throughout the Term, and provided that DIRECTV shall be
under no obligation to license or launch such New Releases. If a New
Release has not been made available to other parties, Wink agrees to
offer to DIRECTV a license to such New Release at a one- time fee
equal to Wink's costs (on a Time and Materials basis) in developing
and testing the New Release, which estimate shall be made by Wink in
it's sole and reasonable discretion, and documented in writing to
DIRECTV.
1.4. For purposes of this Master Agreement, a "Participating Manufacturer"
shall mean a manufacturer of equipment capable of receiving DIRECTV
signals ("DIRECTV System Receiver") which has:
(a) a valid and current Manufacturer Agreement with DIRECTV
("DIRECTV System Manufacturer") for the manufacture and
sale of DIRECTV Systems; and
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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(b) a valid and current license agreement with Wink for Wink's
client software for digital TV reception products (the
"Wink Engine"). A DIRECTV System Receiver which has a
resident Wink Engine, and which has been enabled to
receive both DIRECTV programming and Interactive Wink
Programs transmitted over DIRECTV's network, shall be
referred to in this Master Agreement as a "Wink-enabled
DIRECTV System Receiver".
2. TERM
The "Term" of this Master Agreement shall commence on the Effective
Date and shall automatically terminate five (5) years thereafter.
DIRECTV may terminate the Master Agreement at any time after a period
of three (3) years following the first day the Interactive Wink
Programs are distributed to and received by at least 10,000
Wink-enabled DIRECTV System Subscribers (the "Measurement Date") in
accordance with the terms of this Master Agreement. Notice of
DIRECTV's intent to so terminate must be received by Wink no later
than sixty (60) days prior to the effective date of such termination.
As used herein, "Wink-enabled DIRECTV System Subscriber" shall mean
each DIRECTV subscriber that (i) receives or separately pays for
satellite television service from DIRECTV or a company acting on
behalf of DIRECTV; and (ii) has activated one or more Wink-enabled
DIRECTV System Receivers. The parties agree that DIRECTV may, in its
sole discretion, extend the Master Agreement upon the expiration of
the Term for a three year period, provided that DIRECTV shall provide
prior written notice to Wink no later than sixty (60) days prior to
the date of expiration of the Term of its intention to extend the
Term. Such extension of the Term shall be granted on the most
favorable rates, terms and conditions offered or made available to
any United States video distributor, including cable operators, but
may not reflect the terms of this Master Agreement. Wink agrees to
give written notice to DIRECTV no later than one hundred and twenty
(120) days prior to the date of expiration of the Term of the rates,
terms and conditions available to DIRECTV for such extension.
3. INTEGRATION AND DEPLOYMENT
3.1. The parties agree to the preliminary statement of work defined in
Exhibit E and the preliminary schedule defined in Exhibit F. The
parties further agree to use their best commercially reasonable
efforts to develop a final statement of work ("Final Statement of
Work") and a final schedule ("Final Schedule") within thirty (30)
days of the Effective Date of this Master Agreement. Once the Final
Statement of Work and Final Schedule have been agreed upon, neither
party shall make any modifications to the Final Statement of Work
and/or the Final Schedule without the other party's prior written
consent. Each party acknowledges and agrees that changes to the Final
Statement of Work or the Final Schedule may result in additional work
and/or expense for the other party and may require changes to the
Wink Engine for all or some Wink-enabled DIRECTV System Receivers.
The work and expense incurred by Wink shall be estimated and provided
to DIRECTV on a cost (Time and Materials) basis, and, if accepted by
both parties, shall be incorporated into a revised Final Statement of
Work and Final Schedule. The work and expense incurred by DIRECTV
shall be estimated and provided to Wink on a cost (Time and
Materials) basis, and, if accepted by both parties, shall be
incorporated into a revised Final Statement of Work and Final
Schedule. The work and expense incurred by Participating
Manufacturers, if any, shall be estimated and provided by Wink in
collaboration with Participating Manufacturers, and, if accepted by
each of DIRECTV, Wink and the applicable Participating Manufacturer,
shall be incorporated into a revised Engine Statement of Work, as
described further in Exhibit A-1 of Exhibit I. The parties agree that
DIRECTV shall pay Wink fifty percent (50%) of any non-recurring
engineering fees detailed in such Engine Statement of Work and waived
by Wink in accordance with Section 4.1 of Exhibit I, up to a maximum
of one hundred and fifty thousand dollars ($150,000); provided,
however, that Wink
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shall not charge any Participating Manufacturer for any cost or
expense related to such non-recurring engineering fees. Such payment
shall be made within thirty (30) days of such Participating
Manufacturer's acceptance of the final object code for the applicable
Wink Engine. The parties further agree that the total cumulative
incremental expense incurred by DIRECTV and Participating
Manufacturers caused by changes to the Final Schedule and Final
Statement of Work shall not exceed one hundred thousand dollars
($100,000) unless the changes requested introduce major new
functionality, result in major architectural changes to Wink Software
or result in other similar major disruption of the project not
contemplated by the preliminary statement of work in Exhibit E and
the preliminary schedule in Exhibit F; provided, however, that
neither DIRECTV nor any Participating Manufacturer shall be
responsible for any such incremental costs or expense due to changes
to either the Final Statement of Work or the Final Schedule which
have been proposed solely by Wink.
3.2. The parties agree that the active participation and support of
DIRECTV System Manufacturers is essential to the parties ability to
deploy Interactive Wink Programs to Wink-enabled DIRECTV System
Receivers. Wink agrees to license the Wink Engine to any DIRECTV
System Manufacturer on the terms defined in Exhibit I. DIRECTV agrees
to use commercially reasonable efforts to encourage both Thomson
Consumer Electronics and Xxxxxx Network Systems to enter into such
license agreements with Wink under terms substantially similar to
those defined in Exhibit I for the product which each manufacturer
reasonably anticipates as its highest volume DIRECTV System Receiver
offered in 1999 and covering all shipments after January 1, 1999 of
such DIRECTV System Receivers to DIRECTV subscribers located in the
United States; provided, however, that [ * ]. Notwithstanding
anything herein to the contrary, either party, upon written notice to
the other party, may terminate this Master Agreement. without any
liability to the other party in the event that Thomson Consumer
Electronics has not entered into a licensing agreement with Wink, as
is contemplated above, within thirty (30) days of the Effective Date.
3.3. Wink shall, at Wink's sole cost and expense (including taxes and
freight), purchase for and on behalf of DIRECTV and deliver to
DIRECTV at such location as DIRECTV shall designate, all equipment
(including total system-redundant equipment for back-up use)
necessary to run the Wink Software and to enable DIRECTV's insertion
of Interactive Wink Programs, including Wink Virtual Channels
pursuant to Section 3.9, into DIRECTV's signals (the "Equipment"),
with the exception that any personal computers utilizing or running
Microsoft Windows 95 or Windows NT required to operate the Wink
Software will be provided by DIRECTV, at DIRECTV's sole cost and
expense, and such computers shall not be deemed Equipment hereunder.
The panics agree that Wink shall have no obligation to provide any
additional equipment that may be required to enable storage or
insertion of Interactive Wink Programs not provided by Wink or by a
Programmer (as defined below) as part of such Programmer's video
signal. All Equipment provided by Wink to DIRECTV hereunder shall
become the sole property of DIRECTV upon installation at DIRECTV's
Facilities, as defined below.
(a) Wink shall assist DIRECTV, as DIRECTV may request and at no
additional cost to DIRECTV, in connection with the installation of
the Equipment at its Facilities. For purposes of this Master
Agreement, "Facilities" shall mean DIRECTV's broadcast centers in
Xxxxxx Xxxx, XX, Xxx Xxxxxxx, XX and those locations designated by
DIRECTV as additional DIRECTV broadcast centers, if any, during the
Term. Exhibit J provides a preliminary list of Equipment to be
provided by Wink, and is
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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subject to a final site visit by Wink's Operations department.
(b) Wink, at its sole cost and expense, shall, subject to DIRECTV's
direction and control, install and integrate the Wink Software into
DIRECTV's equipment and facilities to ensure the reliable
transmission of the Interactive Wink Programs. Alternatively, at
DIRECTV's option, Wink shall assist DIRECTV in DIRECTV's installation
and integration thereof.
(c) Wink's assistance and/or installation and integration as provided in
paragraphs (a) and (b), above (i) shall occur during normal business
hours (i.e., 9am to 5pm, Monday through Friday, excluding holidays)
and during such time periods which are scheduled in advance by the
parties and (ii) shall be subject to DIRECTV's customary safety and
security procedures employed at its Facilities.
3.4. Wink agrees to provide DIRECTV with Technical Development Fees, as
compensation for DIRECTV's technical development and support of
Interactive Wink Programs, in the amount of [ * ] due and payable on
the Measurement Date, as defined in Section 2, above.
3.5. Except as otherwise set forth herein, DIRECTV will not prevent the
distribution on the DIRECTV system of Interactive Wink Programs
inserted by Programmer, as defined below, in the VBI or MPEG of video
signals, distributed 24 hours a day, from a broadcaster or cable
programmer with whom DIRECTV, and entities wholly owned by DIRECTV
and which provide video programming to DIRECTV Subscribers, have a
valid agreement for carriage (each, a "Programmer"), and agrees to
pass Interactive Wink Programs to Wink-enabled DIRECTV System
Receivers without any charge to such Programmers during the Term of
this Master Agreement, provided that each Programmer has agreed to
provide and does provide such Interactive Wink Programs at no cost to
DIRECTV, and that such Interactive Wink Programs shall be limited to
using the equivalent of three (3) VBI lines (equal to 30 kbits/sec.)
per programming service. Notwithstanding the above, the parties agree
that DIRECTV shall not be obligated to dedicate aggregate bandwidth
in excess of [*] to all Interactive Wink Programs provided by
Programmers in conjunction with such Programmers' video signals,
unless separately agreed upon between Wink and DIRECTV. During such
time that the actual, aggregate bandwidth utilized by such Programs
is less than [*], DIRECTV agrees to transmit all such Interactive
Wink Programs: provided, however, that once the aggregate amount of
available Interactive Wink Programming meets or exceeds [*], DIRECTV,
in its sole discretion, shall select the Interactive Wink Programming
transmitted to the applicable DIRECTV System Subscribers, which
selection shall, in the aggregate, equal no less than [*].
3.6 Wink shall use commercially reasonable efforts to ensure that each
Interactive Wink Program provided by a Programmer is directly related
in content, nature and intended audience to the video programming and
advertising actually being provided by such Programmer at the same
time that such Interactive Wink Program is provided and thus has the
purpose of enhancing or providing additional detail or information
regarding such video programming or advertising, as applicable. Wink
shall ensure that the Interactive Wink Programs are provided to
DIRECTV pursuant to a then-current and valid license agreement
between the Programmer and Wink. If the conditions, including but not
limited to those set forth above, related to any Programmer's
obligations to Wink are not met, or any Programmer uses Interactive
Wink Programs to promote, either directly or indirectly, competing
multichannel video service providers, or DIRECTV is challenged and
fails to receive an acceptable indemnity from Programmer for the
content of Interactive Wink Programs, DIRECTV shall not be obligated
to pass such Interactive Wink Programs and may, at DIRECTV's option,
immediately terminate carriage of the Interactive Wink Programs with
respect to such Programmer
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 4
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for the remainder of the Term; provided, however, DIRECTV, in its
sole discretion, may elect to reinstate the transmission of such
Programmer's Interactive Wink Programs, if any, at any point during
the Term. The parties further agree that this Master Agreement in no
way creates any obligation on behalf of DIRECTV to carry or pass any
other form of programming or data of any Programmer.
3.7 Wink shall ensure that at least ten (10) Programmers have agreements
with Wink to provide original Interactive Wink Programs for no less
than five (5) hours each week during the Term and Wink shall provide
DIRECTV with weekly Interactive Wink Program schedules for such
Programmers. Wink shall provide DIRECTV with notice at least thirty
(30) days before commencement of national transmission of Interactive
Wink Programs by new Programmers or termination of national
transmission of Interactive Wink Programs by existing Programmers.
Notwithstanding the above, and although the parties acknowledge and
agree that the elimination or addition of individual Interactive Wink
Programs does not require notice by Wink to DIRECTV, Wink shall use
commercially reasonable efforts to notify DIRECTV of such changes as
soon as possible. If the number of Programmers falls below ten (10),
Wink shall promptly notify DIRECTV in writing that the number has
fallen below ten (10), and Wink shall have sixty (60) days to acquire
additional Programmers such that there are at least ten (10)
Programmers or more providing at least the Minimum Amount (as defined
below) of Interactive Wink Programs. If after sixty (60) days
following notice to DIRECTV Wink does not have at least ten (10)
Programmers providing the Minimum Amount of Interactive Wink
Programs, DIRECTV shall have the right to (a) cease passing any
Interactive Wink Programs from Programmers and (b) declare that Wink
has materially breached this Master Agreement. DIRECTV may then
terminate this Master Agreement in accordance with the terms of
Section 13 and/or exercise its other rights and remedies hereunder.
If any Programmer fails to provide at least five (5) hours of
original Interactive Wink programming per week (the "Minimum
Amount"), Wink shall promptly notify DIRECTV in writing of this fact,
and Wink shall have thirty (30) days to increase that Programmer's
amount of such programming to at least the five (5) hour weekly
minimum. If Wink is unable to deliver the Minimum Amount of such
programming within the thirty (30) day cure period, or (ii) such
Programmer falls below the Minimum Amount of required programming
more than three times in any running six (6) month period, DIRECTV,
at its option, may immediately terminate carriage of the Interactive
Wink Programs with respect to such Programmer for the remainder of
the Term; provided, however, DIRECTV, in its sole discretion, may
elect to reinstate the transmission of such Programmer's Interactive
Wink Programs, if any, at any point during the Term.
3.8 DIRECTV, at its option, shall either (i) provide to Wink maximum
bandwidth equivalent to sixty (60) kbits/sec in one DIRECTV satellite
transponder data stream provided that Wink shall use such bandwidth
solely for the purpose of delivering various full screen Interactive
Wink Programs ("Wink Virtual Channels") required for customer-related
educational services for Wink DIRECTV System Subscribers, including
but not limited to a credit card registration program, a Wink user's
guide program and interactive tutorial, a transaction history program
featuring Wink DIRECTV System Subscribers most recent transactions,
and a Wink guide to upcoming Interactive Wink Programs related to
scheduled video programming (collectively, the "Wink Customer Service
Virtual Channel"), or (ii) incorporate the applicable content of
Wink's Virtual Channels, in the aggregate amount of no more than the
bandwidth equivalent of sixty (60) kbits/sec., into one or several
Interactive Wink Programs provided by DIRECTV to DIRECTV System
Subscribers for purposes of delivering customer service to such
subscribers at no cost or fee charged by Wink for such incorporation.
If applicable, Wink shall not use its Wink Customer Service Virtual
Channel for advertising or any purpose other than as specified herein
without DIRECTV's prior written
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consent. DIRECTV, in its reasonable discretion, shall review the
content of the Wink Customer Service Virtual Channel prior to
DIRECTV's insertion and delivery to its DIRECTV Subscribers.
3.9. Subject to DIRECTV's prior written request and commitment to
distribute selected Interactive Wink Programs, Wink, at its sole cost
and expense, agrees to create and deliver in final electronic form,
to the Facilities, a minimum of five (5) Wink Virtual Channels as
described in Exhibit G. DIRECTV may also elect distribute other
Interactive Wink Programs, including but not limited to Wink Virtual
Channels, created by DIRECTV and/or third parties using the Wink
Software. Third party providers of additional Interactive Wink
Programs accepted for carriage by DIRECTV shall be referred to as
"Third Party Wink Program Providers." DIRECTV shall be responsible
for any additional equipment required to support and transmit Third
Party Interactive Wink Programs not created and provided by Wink or
Programmers as part of such programmer's video signal, and for
payment, if any, to third party rights holders, including but not
limited to studios, acting, on-air and other talent, news and sports
data providers, professional and college sports leagues or teams, and
all other entities necessary for the creation and distribution by
DIRECTV of Interactive Wink Programs supplied by DIRECTV or Third
Party Program Providers. Other than those revenues related to Wink
Revenue Transactions, as defined below, any and all other revenue,
access fees or other payments received by DIRECTV from such Third
Party Wink Program Providers shall, as between DIRECTV and Wink,
belong solely to DIRECTV. Wink agrees to offer any Wink Virtual
Channels created or marketed by Wink on terms that are at least as
favorable as those offered to any other distributor of video
programming (each an "Other Programming Distributor").
3.10 Wink agrees to fully fund the full time services of an experienced
Wink Consultant (including, but not limited to travel, lodging and
living expenses) working at either DIRECTV's Facilities or Wink's
offices, and under DIRECTV's direction, starting within sixty (60)
days of the Effective Date and continuing through the Term. DIRECTV
agrees that this Wink staff member will work exclusively on the
development of Interactive Wink Programs. The Wink Consultant shall
act in the capacity of an independent contractor with respect to
DIRECTV. As an independent contractor, Wink hereby agrees that Wink
Consultant shall accept, and shall direct the Wink Consultant to
follow, any reasonable directions issued by DIRECTV, through a
designated executive representative of DIRECTV, pertaining to the
goals to be attained and the results to be achieved by the Wink
Consultant, including, but not limited to the execution of a
Nondisclosure Agreement with DIRECTV, to be provided to Consultant by
DIRECTV upon the commencement of services at DIRECTV's Facilities. As
an independent contractor, Wink acknowledges and agrees that the Wink
Consultant shall not have the status of an employee of DIRECTV or its
subsidiaries. Wink acknowledges and agrees that the Wink Consultant
shall not be eligible to participate in any employee benefit, group
insurance or executive compensation plans or programs maintained by
DIRECTV. DIRECTV shall not be responsible for Social Security,
unemployment compensation, disability insurance, workers'
compensation or similar coverage, nor any other statutory benefits,
with respect to the Wink Consultant. Wink further agrees to provide
any and all necessary licenses permits, insurance policies and other
documents required for the performance of its duties hereunder at its
own expense.
3.11 Wink, at its sole cost and expense, shall perform all Wink-related
installation work necessary to ensure proper operation of the Wink
Software, the Wink Response Network (as defined in section 4.1
below) and the Wink Engine, and reliable delivery of Interactive Wink
Programs, and shall provide on-going technical support for the Wink
Software, the Wink Response Network and the Wink Engine during the
Term. DIRECTV shall permit Wink secure remote access to the Wink
Software and associated equipment solely for the specific purpose of
monitoring and troubleshooting the provisioning of Interactive Wink
Programs to Wink DIRECTV System Subscribers. Wink, at its sole
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cost and expense. shall provide all technical support to DIRECTV
staff ("Technical Support") as DIRECTV may reasonably request in
connection with the development and distribution of Interactive Wink
Programs and any related aspect of the Wink Software. The parties
agree that technical support may be categorized as follows:
(a) support to ensure proper operation of the Wink Broadcast Server
and all other software directly associated with the transmission of
Interactive Programs ("Emergency Technical Support") and
(b) all other technical support, including but not limited to,
support for Wink Studio and Wink Server Studio ("Regular Technical
Support").
Without limiting the generality of the foregoing, all Technical
Support (i) shall include on-call (by telephone and dial-in modem)
availability of Wink personnel knowledgeable in the operation and
troubleshooting of the Wink Software and/or the Wink Response
Network, and (ii) shall be made available at all times during the
normal business hours of Wink. In addition, Emergency Technical
Support shall be made available after normal business hours during
the week and during all holidays and week-ends. If technological
problems persist, such on-call Emergency Technical Support shall be
provided by expert engineers and programmers. If technological
problems prevent transmission of Interactive Wink Programs. and
cannot be resolved through remote support, Wink shall provide on-site
visit(s) by Wink personnel, at no cost to DIRECTV, within twenty four
hours of DIRECTV's request.
3.12 Wink agrees to provide support to Wink-enabled DIRECTV System
Subscribers as follows: Wink shall provide all customer service,
without limitation, related to the Interactive Wink Programs in
accordance with those DIRECTV Customer Service Standards set forth in
Exhibit N hereto. Wink shall meet or exceed all requirements to the
level set forth under Wink Standards in Exhibit N and shall use
commercially reasonable efforts to meet or exceed all requirements to
the level set forth under Goal in Exhibit N. Wink shall make
available one or more toll-free numbers, staffed with such level of
customer service representatives as is reasonably necessary to
promptly service customer calls related to the Interactive Wink
Programs and/or any Wink Response, as defined below in Section 4.2.
The toll-free line(s) shall be operational at the commencement of
Interactive Wink Program delivery and available 24 hours per day, 7
days per week. Wink will forward all non Interactive Wink Programming
inquiries (meaning DIRECTV Services inquiries) to the DIRECTV
customer service line designated by DIRECTV. DIRECTV will forward all
non DIRECTV Services inquiries (meaning Wink inquiries) to the Wink
customer service line designated by Wink. On a quarterly basis,
DIRECTV will review the volume of calls it receives at its call
center that are solely related to Interactive Wink Programs. If,
during the quarter, the volume of such calls exceeds that number
which is equal to ten percent (10%) of the Wink-enabled DIRECTV
System Subscribers, then the parties shall meet in order to discuss
and determine the implementation of corrective training, staffing or
systems as required. If, within thirty days thereafter, the volume of
calls primarily concerning Interactive Wink Programs that are
received by DIRECTV continues to exceed 10% of the Wink enabled
DIRECTV System Subscriber level, then DIRECTV shall charge Wink on a
monthly basis for the incremental costs incurred by DIRECTV in
providing such customer service response and/or referring such calls
to Wink. Such costs shall not average, on a monthly basis, more than
three dollars ($3.00) per call from DIRECTV subscribers. Similarly,
Wink will review on a quarterly basis the volume of calls it receives
at its call center that are solely related to DIRECTV services other
than the Interactive Wink Programs provided by Wink and Wink's
national programming partners or basic operation of the Wink Engine
(i.e., not including any Third Party Interactive Wink Programs). If,
during the quarter, the volume of such calls exceeds that number
which is equal to ten percent (10%) of the Wink-enabled DIRECTV
System
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Subscribers, then the parties shall meet in order to discuss and
determine the implementation of corrective training, staffing or
systems as required. If, within thirty days thereafter, the volume of
calls that are solely related to DIRECTV services other than the
Interactive Wink Programs provided by Wink and Wink's national
programming partners or basic operation of the Wink Engine continues
to exceed ten percent (10%) of the Wink enabled DIRECTV System
Subscriber level, then Wink shall charge DIRECTV on a monthly basis
for the incremental costs incurred by Wink in providing such customer
service response and/or referring such calls to DIRECTV. Such costs
shall not exceed three dollars ($3.00) per call from DIRECTV
subscribers.
3.13 DIRECTV agrees to provide technical specifications and other support
reasonably required to enable Wink to:
(a) receive the minimum information necessary from DIRECTV's billing
system, or other system designated by DIRECTV, to support routing of
Wink Transactions (as defined in section 4.1 below). This
information, which includes subscriber name, xxxx-to and service
address, phone number, unique identifier of the Wink-enabled DIRECTV
System Receiver(s), and any other information to be mutually agreed
upon between the parties, shall be deemed Confidential Information,
as defined in Section 12.
(b) interface with DIRECTV equipment in order for DIRECTV to insert
Interactive Wink Programs into a DIRECTV satellite transponder data
stream such that the Interactive Wink Programs can be either (x)
linked to particular video programming and only accessible to
Wink-enabled DIRECTV System Receivers tuned to that service (e.g.
"program-related" or "program-synchronous" Interactive Wink Programs)
or (y) accessed independently of video programming through direct
tuning or a Wink provided menu that can be accessed through direct
tuning (e.g., "virtual channels"). The specifications for this
interface are attached as Exhibit H.
(c) integrate the Wink Software with other DIRECTV equipment and
software, including but not limited to video playout and playlist
control systems, asset management systems, LANs and WANs, etc., as
reasonably necessary and determined jointly by the parties.
3.14 Wink shall keep the Wink Software, the Wink Response Network (as
defined in Section 4.1 below) and associated equipment provided by
Wink in good working order for uninterrupted reception and use of
Interactive Wink Programs by Wink -enabled DIRECTV System
Subscribers, and to ensure regular and reliable collection, reporting
and forwarding of Wink Responses (as defined in Section 4.2 below).
3.15 [*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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3.16 Notwithstanding anything to the contrary set forth herein. DIRECTV
has the right without prior notice to interrupt the carriage of
Interactive Wink Programs at any time for the purpose of Emergency
Broadcast and other Federal Communications Commission (FCC) mandated
broadcasts in the Territory, or if the Interactive Wink Programs or
response collection interferes in any way with transmission of the
signal of the applicable channel, interferes with the operations of
DIRECTV or causes other technical problems. DIRECTV agrees that it
shall use commercially reasonable efforts to give notice to Wink
within one (1) hour of any such interruption, and DIRECTV and Wink
will each use their commercially reasonable efforts to restore the
delivery of Interactive Wink Programs and collection of viewer
responses as soon as possible.
4. RESPONSES
4.1 The parties agree that Wink shall be responsible for operating a
network (the "Wink Response Network") capable of receiving in-bound
calls from Wink-enabled DIRECTV System Receivers, collecting Wink
Responses (as defined in Section 4.2 below), distributing such Wink
Responses to applicable Fulfillment Entities (as defined below), and
reporting on such Wink Responses to DIRECTV, Programmers and other
agreed-upon parties as necessary, for the fulfillment of Wink
Transactions (as defined below). Wink agrees to adhere to the
following performance standards for collection of Wink Responses:
(a) [*] of all calls from Wink-enabled DIRECTV System Receivers shall
connect on the 1st try.
(b) Wink shall manage the call "load balancing" by staggering the
calls during early morning hours, allowing for DIRECTV subscriber
preference settings.
(c) Wink Transactions (as defined in section 4.2 below) shall be
collected daily. Wink will use commercially reasonable efforts to
collect all Wink Transactions from the previous day by 6 am local
time for responses. Wink shall ensure that [*] of all Wink
Transactions shall be collected (and transmitted to the applicable
Fulfillment Entity, if any) by day 1, [*] by day 2, and [*] by day 3.
(d) Wink Responses (as defined in section 4.2 below) other than Wink
Transactions shall be collected daily if capacity is available. Wink
shall ensure that all Wink Responses are collected within 7 days.
4.2 For purposes of this Master Agreement, the following definitions
shall apply:
(a) A "Wink Response" is any DIRECTV System Subscriber response data
generated by an Interactive Wink Program and collected electronically
by Wink.
(b) A "Wink Transaction" is a Wink Response initiated by Wink-enabled
DIRECTV System Subscriber, and in which the Wink-enabled DIRECTV
System Subscriber uses a Wink-enabled DIRECTV System Receiver to
request products or services, whether such products and services are
either provided at no charge to the Wink-enabled DIRECTV System
Subscribers or require payment by the Wink-enabled DIRECTV System
Subscriber, and where the fulfillment of that request requires the
release of subscriber specific information by such DIRECTV System
Subscriber, such as name and address.
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 9
10
(c) "Wink Revenue Transaction" are all Wink Transactions whereby Wink
derives any revenue from any source pursuant to a DIRECTV System
Subscriber's Wink Response; provided, however, both Wink Transactions
and Wink Revenue Transactions specifically do not include (i) the
purchase of a subscription to a DIRECTV television programming
service, (ii) the purchase of a DIRECTV-supplied pay-per-view movie
or event, or (iii) the purchase of any other video programming
product similar to (i) and (ii) provided by DIRECTV.
Commencing on the Measurement Date and throughout the remainder of
the Term, Wink shall, no later than Wednesday of each week, provide
to DIRECTV standard weekly reporting, at no charge to DIRECTV, of all
Wink Responses generated during the previous week. Wink further
agrees to provide at no charge to DIRECTV daily standard reports of
Wink Transactions generated by Interactive Wink Programs inserted by
DIRECTV into DIRECTV promotional programming, including, without
limitation, programming which promotes DIRECTV subscription
programming, pay-per-view movies and events and other
DIRECTV-provided products and services ("DIRECTV Wink Programs").
DIRECTV accepts Wink's terms for all other reporting regarding Wink
Responses, as defined in Exhibit K. Wink warrants and represents that
such terms are as favorable or more favorable than the terms of any
agreement Wink has entered into with other United States video
distributors, including cable operators, for the provision of the
same or similar services. Wink further agrees to promptly notify
DIRECTV in writing, should Wink decide to enter into new agreements
or amend existing agreements with any United States video
distributors to include more favorable terms for services similar to
those defined in Exhibit K, and to immediately offer such terms to
DIRECTV. Notwithstanding the foregoing and Exhibit K, Wink
acknowledges and agrees that Wink Transactions for any DIRECTV Wink
Program will be processed at no charge to DIRECTV (For purposes of
illustration only, there would be no charge to DIRECTV in the event
that a Wink-enabled DIRECTV System Subscriber upgrades his current
DIRECTV programming package via a Wink-enabled DIRECTV Virtual
Channel or a Wink-enabled DIRECTV xxxxxx channel). DIRECTV agrees
that Wink Revenue Transactions shall be subject to Wink's rates for
request for information responses ("RFI Response") and purchase
responses ("Purchase Response"), as defined in Exhibit K. Wink agrees
to provide all reports described above in hard copy or electronic
form, per DIRECTV's instructions. In addition, Wink agrees that it
shall provide DIRECTV with any improvements or additions to the
amount and type of data that Wink generally provides to any other
video distributor with respect to Wink Responses, Wink Transactions
or Wink Revenue Transactions. All Wink Transactions and Wink Revenue
Transactions shall be undertaken by Wink or its agents in accordance
with applicable law, including, without limitation, truth in
advertising and customer privacy laws.
4.3 During the Term of this Master Agreement, Wink shall pay to DIRECTV,
on a monthly basis, a share of the fees on each Wink Revenue
Transaction that is generated by a Wink-enabled DIRECTV System
Subscriber and routed by Wink to the appropriate entity. Wink's gross
revenues (net of returns, cancellations, bad debt allowance, etc.)
from Wink Revenue Transactions generated by Wink DIRECTV System
Subscribers shall be referred to as "Gross Transaction Routing Fees."
DIRECTV's share of Gross Transaction Routing Fees shall be as set
forth in Exhibit A. These payments made by Wink to DIRECTV for
DIRECTV's share of such Gross Transaction Routing Fees" shall be
defined as "Transaction Revenue Share" for purposes of this Master
Agreement. DIRECTV specifically acknowledges and agrees that Wink is
under no obligation to provide Participating Manufacturers with any
share of Wink's Gross Transaction Routing Fees; [ * ]. Wink shall be
solely responsible for all taxes and/or other similar governmental
transactional charges, if any, with respect to all Gross
Transactional Routing Fees.
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 10
11
5. FEES AND PAYMENT TERMS
5.1. DIRECTV acknowledges and accepts Wink's licensing fees, rates for
Wink services, and payment terms for DIRECTV as set forth in Exhibits
D and K. DIRECTV may choose to utilize other products and services of
Wink from time to time under this Master Agreement. These products
and services will be offered by Wink to DIRECTV at the most favorable
rate and terms and conditions offered or made available to any United
States video distributor, including cable operators.
5.2. [*]
5.3. Wink specifically represents that the rates defined in Exhibit K are
the most favorable rates, terms and conditions offered or made
available to any United States video distributor, including cable
operators, and agrees to immediately offer DIRECTV any terms for such
services that Wink may choose to offer such parties in the future. In
addition, Wink agrees to provide such terms to the parent company of
DIRECTV and entities wholly owned by the parent company of DIRECTV.
5.4. [*]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 11
12
5.5 In no event shall Wink enter into any similar Master Agreement and/or
licensing agreement with any other distributor of programming or
other services received by DIRECTV Subscribers via the DIRECTV System
without the prior written approval of DIRECTV, including but not
limited to United States Satellite Broadcasting ("USSB").
Notwithstanding the above, DIRECTV agrees to permit Wink to enter
into an agreement with USSB under which USSB's usage of Wink Software
is limited to pass through by USSB of Interactive Wink Programs
provided as part of video signals received by USSB from video
programmers which whom Wink has an agreement to provide such
Interactive Wink Programs. Wink agrees that DIRECTV shall have the
right to review and approve the terms of any such agreement between
Wink and USSB, which approval shall not be unreasonably withheld.
5.6 On or before the forty fifth (45th) day following each month
throughout the Term, DIRECTV shall remit to Wink all fees owed for
the License, and for maintenance, support and other services rendered
by Wink to DIRECTV in such month, as invoiced by Wink no later than
fifteen days following the applicable month. Wink shall provide
reports of and pay the Transaction Revenue Share to DIRECTV on or
before the forty fifth (45th) day following each month throughout the
Term. Past due payments by either party. shall bear interest at a
rate equal to the lesser of (i) one percent (1%) per month or (ii)
the maximum legal rate permitted under law.
5.7 DIRECTV agrees to provide quarterly reports on all Incremental Wink
Revenues (as defined herein) generated through the use of the Wink
Software. "Incremental Wink Revenues" shall be defined as (a)
Transaction Revenue Share for Wink-enabled DIRECTV System Subscribers
(for the report of which DIRECTV may attach the Transaction Revenue
Share reports provided by Wink pursuant to Section 5.6), (b)
incremental, net advertising sales revenue received from selling
Interactive Wink Program enhancements in connection with local spot
ads or any form of third party advertising or sponsorship on
Interactive Wink Programs; provided, however that the parties
acknowledge and agree that DIRECTV shall not report, and Wink shall
not be entitled to any portion of, any fees or similar revenues
related directly to the video exhibition of spot advertising and/or
sponsorship, and (c) DIRECTV revenue shares or fees received from
Third Party Wink Program Providers .in exchange for Wink-enabled
advertising or other marketing services; provided, however that the
parties acknowledge and agree that DIRECTV shall not report, and Wink
shall not be entitled to any portion of, any fees or similar revenues
related to payments from Third Party Program Providers for access to
DIRECTV subscribers or distribution of that party's Interactive Wink
Programs to DIRECTV subscribers.
5.8. [*]
(a) A "1999 Wink Subscriber Unit" shall be a DIRECTV System
subscriber provided with an activated Wink-enabled DIRECTV System
Receiver on or before the Measurement Date or, for a subscriber whose
Wink-enabled DIRECTV System Receiver was activated prior to January
1, 2000, the number x = the number of full months that such
subscriber had an activated Wink-enabled DIRECTV System Receiver
prior to January 1, 2000, divided by the number of months elapsed
between the Measurement Date and January 1, 2000. The 1999 Revenue
Guarantee shall be the lesser of (x) one dollar ($1.00) and (y) one
dollar ($1.00) multiplied by the number of months
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 12
13
elapsed between the Measurement Date and January 1, 2000 and divided
by six (6). If. during 1999, DIRECTV's Incremental Wink Revenues have
not reached a cumulative total equal to the 1999 Revenue Guarantee
per 1999 Wink Subscriber Unit, Wink shall pay DIRECTV within forty
five (45) days, the difference between the 1999 Revenue Guarantee per
1999 Wink Subscriber Unit and the actual cumulative Incremental Wink
Revenues per 1999 Wink Subscriber Unit. If DIRECTV has reached a
minimum of one million (1,000,000) Wink-enabled DIRECTV System
Subscribers by the first anniversary of the Measurement Date, Wink
agrees to guarantee certain revenues for DIRECTV as follows:
(b) A "First Year Wink Subscriber Unit" shall be a Wink-enabled
DIRECTV System subscriber provided with an activated Wink-enabled
DIRECTV System Receiver on or before the Measurement Date or, for a
subscriber whose Wink-enabled DIRECTV System Receiver was activated
within twelve (12) months of the Measurement Date, the number x = the
number of full months elapsed prior to 12 months following the
Measurement Date that such subscriber had a Wink-enabled DIRECTV
System Receiver, divided by 12. If, within twelve (12) months of the
applicable Measurement Date, DIRECTV's Incremental Wink Revenues have
not reached a cumulative total of $2.50 per First Year Wink
Subscriber Unit, Wink shall pay DIRECTV within forty five (45) days,
the difference between $2.50 per First Year Wink Subscriber Unit and
the actual cumulative Incremental Wink Revenues per First Year Wink
Subscriber Unit, provided that any payments made by Wink under
section 5.8(a) shall be deducted first.
(c) A "Second Year Wink Subscriber Unit" shall be a Wink-enabled
DIRECTV System Subscriber provided with an activated Wink-enabled
DIRECTV System Receiver on or before the first anniversary of the
Measurement Date or, for a subscriber whose Wink-enabled DIRECTV
System Receiver was activated after such anniversary, the number x =
the number of full months elapsed after the first anniversary of the
Measurement Date and prior to twenty four 24 months following the
Measurement Date that such subscriber had a Wink-enabled DIRECTV
System Receiver, divided by 12. If DIRECTV's Incremental Wink
Revenues between the first and second anniversaries of the
Measurement Date ("Year Two") have not reached a cumulative total of
$2.50 per Second Year Wink Subscriber Unit, Wink shall pay DIRECTV
within forty five (45) days, the difference between $2.50 per Second
Year Wink Subscriber Unit and the actual cumulative Incremental Wink
Revenues captured in Year Two per Second Year Wink Subscriber Unit.
(d) A "Third Year Wink Subscriber Unit" shall be a Wink-enabled
DIRECTV System subscriber provided with an activated Wink-enabled
DIRECTV System Receiver on or before the second anniversary of the
Measurement Date or, for a subscriber whose Wink-enabled DIRECTV
System Receiver was activated after such anniversary, the number x =
the number of full months elapsed after the second anniversary of the
Measurement Date and prior to thirty six (36) months following the
Measurement Date that such subscriber had a Wink-enabled DIRECTV
System Receiver, divided by 12. If DIRECTV's Incremental Wink
Revenues between the second and third anniversaries of the
Measurement Date ("Year Three") have not reached a cumulative total
of $2.50 per Third Year Wink Subscriber Unit, Wink shall pay DIRECTV
within forty five (45) days, the difference between $2.50 per Third
Year Wink Subscriber Unit and the actual cumulative Incremental Wink
Revenues captured in Year Three per Third Year Wink Subscriber Unit.
If DIRECTV has not reached a minimum of one million (1,000,000)
Wink-enabled DIRECTV System Subscribers by the first anniversary of
the Measurement Date, but does reach a minimum of one million
(1,000,000) Wink-enabled DIRECTV System Subscribers within eighteen
(18) months
Proprietary and Confidential 13
14
of the Measurement Date, and (x) Xxxxxx Network Systems or Sony
Electronics ships over 10,000 units of a Wink-enabled DIRECTV System
Receiver to residential customers prior to March 31, 2000, and (y)
such Wink-enabled DIRECTV System Receiver model is reasonably
anticipated by such Participating Manufacturer to be its highest
volume model during the applicable model year, Wink agrees to
guarantee certain revenues for DIRECTV as follows:
(e) A "First Period Wink Subscriber Unit" shall be a Wink-enabled
DIRECTV System subscriber provided with an activated Wink-enabled
DIRECTV System Receiver on or before the Measurement Date or, for a
subscriber whose Wink-enabled DIRECTV System Receiver was activated
within eighteen (18) months of the Measurement Date, the number x =
the number of full months elapsed prior to eighteen (18) months
following the Measurement Date that such subscriber had a
Wink-enabled DIRECTV System Receiver, divided by 18. If, within
eighteen (18) months of the applicable Measurement Date, DIRECTV's
Incremental Wink Revenues have not reached a cumulative total of
$2.50 per First Period Wink Subscriber Unit, Wink shall pay DIRECTV
within forty five (45) days, the difference between $2.50 per First
Period Wink Subscriber Unit and the actual cumulative Incremental
Wink Revenues per First Period Wink Subscriber Unit, provided that
any payments made by Wink under section 5.8(a) shall be deducted
first.
(f) The Second Period shall be defined as the time between 18 months
following the Measurement Date and 30 months following the
Measurement Date. A "Second Period Wink Subscriber Unit" shall be a
Wink -enabled DIRECTV System Subscriber provided with an activated
Wink-enabled DIRECTV System Receiver within 18 months of the
Measurement Date or, for a subscriber whose Wink-enabled DIRECTV
System Receiver was activated after such date, the number x = the
number of full months elapsed during the Second Period that such
subscriber had a Wink-enabled DIRECTV System Receiver, divided by 12.
If DIRECTV's Incremental Wink Revenues during the Second Period have
not reached a cumulative total of $2.50 per Second Period Wink
Subscriber Unit, Wink shall pay DIRECTV within forty five (45) days,
the difference between $2.50 per Second Period Wink Subscriber Unit
and the actual cumulative Incremental Wink Revenues captured in the
Second Period per Second Period Wink Subscriber Unit.
(g) The Third Period shall be defined as the time between 30 months
following the Measurement Date and 42 months following the
Measurement Date. A "Third Period Wink Subscriber Unit" shall be a
Wink-enabled DIRECTV System Subscriber provided with an activated
Wink-enabled DIRECTV System Receiver within 30 months of the
Measurement Date or, for a subscriber whose Wink-enabled DIRECTV
System Receiver was activated after such date, the number x = the
number of full months elapsed during the Third Period that such
subscriber had a Wink-enabled DIRECTV System Receiver, divided by 12.
If DIRECTV's Incremental Wink Revenues during the Third Period have
not reached a cumulative total of $2.50 per Third Period Wink
Subscriber Unit, Wink shall pay DIRECTV within forty five (45) days,
the difference between $2.50 per Third Period Wink Subscriber Unit
and the actual cumulative Incremental Wink Revenues captured in the
Third Period per Third Period Wink Subscriber Unit.
6. PROMOTION AND RESEARCH
6.1 The parties agree to issue a joint and mutually agreeable press
release announcing this Master Agreement promptly after the Effective
Date, and in any event within 30 days of the Effective Date. Wink
shall provide DIRECTV with a draft of this release for review and
approval within three (3) business days of the last party's execution
of the Master Agreement. The parties agree that such press release
shall include a specific statement regarding the expected volume of
Wink-enabled
Proprietary and Confidential 14
15
DIRECTV System Receivers to be shipped during the Term (e.g., a
minimum of one million units) and the expected Measurement Date
(e.g., June 1999). DIRECTV agrees to sponsor an event for the press
at the announcement of the Master Agreement, the incremental cost of
which shall be shared equally by the parties, subject to Wink's prior
approval of such incremental costs. If the event is held at the
Winter Consumer Electronics Show in January of 1999, DIRECTV agrees
to fully fund such event. Wink agrees to provide all necessary
support for the development of mutually agreed upon sample
Interactive Wink Programs for such event, including, without
limitation, adequate training of DIRECTV personnel and adequate
Wink-employee staffing for demonstrations at the Winter Consumer
Electronics Show.
6.2. Wink may, from time to time and in conformance with all applicable
federal, state or other law, undertake marketing tests and surveys,
rating polls and other research in connection with Wink-enabled
DIRECTV System Subscribers, subject to limitations on Subscriber
contacts with customers of certain sales agents of DIRECTV, as
identified by DIRECTV from time to time. Wink shall give prior
written notice to DIRECTV of the nature and scope of each such test,
survey, poll or project which applies to or involves Wink-enabled
DIRECTV System Subscribers. DIRECTV may in its sole discretion, to
the extent permissible under applicable law, provide Wink, upon
request from Wink, with reasonable assistance in conducting such
research in connection with undertaking such test, survey, poll or
project. Wink shall reimburse DIRECTV for all costs and expenses
incurred in connection with rendering such assistance upon demand.
Wink shall promptly provide DIRECTV with the results of all such
tests, surveys, polls and projects at no cost to DIRECTV. The results
of all such tests, surveys, polls and projects shall be Confidential
Information, shall be in an aggregate form only, and shall not
identify any Wink-enabled DIRECTV System Subscriber. DIRECTV agrees
that Wink shall be provided with any and all research in an aggregate
and anonymous form directly related to the deployment, launch, and
usage of the Interactive Wink Programs service by Wink-enabled
DIRECTV System Subscribers that is created or paid for by DIRECTV at
no cost to Wink. Such research shall be Confidential Information as
defined in Section 12 hereof.
6.3. DIRECTV acknowledges that Wink will be providing to Programmers and
Third Party Wink Program Providers, if any, aggregate reports on
Wink-enabled DIRECTV System Subscriber usage, vote and poll responses
to the Interactive Wink Programs that originate from such
Programmer's video programming and advertising or from such Third
Party Wink Program Provider's Interactive Wink Programs,
respectively. DIRECTV further acknowledges that Wink will be
providing to Programmers, Third Party Wink Program Providers,
advertisers, or parties designated by such entities to fulfill Wink
Transactions ("Fulfillment Entities") both (a) aggregate reports on
Wink-enabled DIRECTV System Subscriber responses and (b) provided
that such Wink-enabled DIRECTV System Subscribers have not requested
their removal from any such data collection, reports on individual
Wink Transactions that are generated as a result of a Wink-enabled
DIRECTV System Subscriber's deliberate interaction with the
Interactive Wink Program to which the report relates. Wink represents
and warrants to DIRECTV that: (i), except as set forth herein, it
shall not collect, use or provide to any third party any information
related to a Wink-enabled DIRECTV System Subscriber including, but
not limited to, name, address, phone number and credit card number,
(collectively, "Wink-enabled DIRECTV System Subscriber Data"); (ii)
Fulfillment Entities shall be expressly prohibited pursuant to
executed written agreements with Wink from (x) collecting or using
any Wink-enabled DIRECTV System Subscriber Data for purposes other
than fulfilling orders and requests from the Wink -enabled DIRECTV
System Subscriber, and (y) selling or providing any Wink-enabled
DIRECTV System Subscriber Data to third parties, except that,
notwithstanding the foregoing (x) and (y) Fulfillment Entities may be
permitted to use or provide to third parties the Wink-enabled DIRECTV
System Subscriber Data related to a particular Subscriber
Proprietary and Confidential 15
16
if such Wink-enabled DIRECTV System Subscriber has purchased a
product through an Interactive Wink Program, provided that such
Wink-enabled DIRECTV System Subscriber Data shall not identify
DIRECTV Subscribers as "DIRECTV Subscribers." Notwithstanding the
foregoing, Fulfillment Entities may use any data regarding a
Wink-enabled DIRECTV System Subscriber that is collected other than
in connection with the Interactive Wink Programs and without Wink's
assistance. Wink agrees to provide Wink-enabled DIRECTV System
Subscribers with a means of securely registering their credit card or
other preferred method of payment with the Wink Response Network
through an on-screen Interactive Wink Program, and agrees to clearly
disclose and provide Wink-enabled DIRECTV System Subscribers with a
means of "opting out" of allowing Fulfillment Entities to provide
their DIRECTV System Subscriber Data to third parties (such "opt-out"
option shall apply to all Wink Transactions initiated by that
Wink-enabled DIRECTV System Subscriber). Such credit card
registration process shall be encrypted according to current
television industry encryption standards, provided that if no such
standard exists, the parties shall use reasonable efforts to reach
agreement on such an encryption standard. Wink further agrees to make
DIRECTV a third party beneficiary of Wink's agreements with
Fulfillment Entities, if permitted by such agreements, Wink
represents and warrants that it shall use its best reasonable efforts
to enforce its rights under such agreements with Fulfillment
Entities, to DIRECTV's benefit, should such Fulfillment Entities be
in breach of such agreements with respect to their unauthorized use
of any DIRECTV Subscriber data.
6.4. DIRECTV agrees to promote and market the availability of the
Interactive Wink Programs to Wink enabled DIRECTV System Subscribers
in the Territory. The parties agree that DIRECTV may brand such
interactive capabilities of the Wink-enabled DIRECTV System Receiver
in DIRECTV's sole discretion under any brand DIRECTV chooses, and
that DIRECTV's use of any Wink-owned or controlled brand may be done
in a manner so as to be clearly subordinate to DIRECTV's brand and in
conformance with DIRECTV's trademark utilization guidelines. Subject
to the preceding understanding and agreement, DIRECTV agrees to use
reasonable efforts to explore the use of Wink brands in DIRECTV's
marketing of Interactive Wink Programs and Wink-enabled DIRECTV
System Receivers. Advertising, promotional, marketing and/or sales
materials concerning the Interactive Wink Programs or the Wink
Software provided by Wink may be used at the sole discretion of
DIRECTV. Wink agrees that it shall only provide to DIRECTV those
marketing materials whereby Wink has received all necessary prior
approval from the applicable Programmers and Third Party Wink Program
Providers featured in such marketing materials such that no further
approvals shall be required from Programmers and Third Party Wink
Program Providers for minor customization of the materials, including
but not limited to, adding the name, logo and other marks of DIRECTV.
6.5 DIRECTV agrees that any marketing materials separately developed by
DIRECTV intended to promote the capabilities of the Interactive Wink
Programs must be approved in writing by Wink prior to distribution,
which approval shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, use of the names and marks of Wink and
separately Wink-developed marketing and promotional materials
regarding Wink and the Interactive Wink Programs in routine
promotional materials, such as program guides, program listings and
xxxx stuffers, shall be deemed approved unless Wink specifically
gives written notice to DIRECTV to the contrary. Nothing contained
herein shall limit or restrict the right of DIRECTV to use such names
and marks (i) in connection with the exercise of its rights hereunder
or (ii) as permitted under any other contract or agreement, in
connection with any advertising inserted in any television service or
programming if the sponsor of such advertisement had the right to use
such names and marks therein or otherwise than under this Master
Agreement.
Proprietary and Confidential 16
17
6.6 DIRECTV agrees to provide to Wink at no charge, on a monthly basis,
DIRECTV's good faith estimate of the number of Wink-enabled DIRECTV
System Subscribers and the number of Wink-enabled DIRECTV System
Receivers installed in Wink-enabled DIRECTV System Subscriber homes.
The panics shall use good faith efforts in exploring methods to
include in the monthly report data detailing the total number of
Wink-enabled DIRECTV System Subscriber deletions, if any, and
Subscriber breakdowns by state and metropolitan DMAs. The parties
agree that Wink shall have the right to audit DIRECTV's good faith
estimates as defined in Section 14.12.
6.7 Subsequent to the sale of the one millionth (l,000,000th)
Wink-enabled DIRECTV System Receiver, Wink agrees to provide DIRECTV
with matching promotional funds from Wink in the amount of one (1)
dollar per Wink-enabled DIRECTV System Receiver ("Wink MDF Funds").
All promotional and marketing expenses deemed eligible for matching
promotional funds by DIRECTV must be submitted to Wink for approval
prior to commitment to such expenses, which approval shall not be
unreasonably withheld. Such payments shall be made monthly within 30
days of receipt of both (a) the subscriber reports defined in section
6.6 and (b) presentation of evidence of expenditure of such amounts.
Marketing and promotional expenses eligible for matching promotional
funds include events, television, print, radio or outdoor
advertising, retail marketing materials, direct mail campaigns and
other marketing communications specifically aimed at improving sales
of Wink-enabled DIKECTV System Receivers and/or awareness or usage of
Interactive Wink Programs among Wink-enabled DIRECTV System
Subscribers. The parties agree that each party may contribute
"in-kind" products and services in place of cash outlays on the
approval of the other party. "In-kind" products and services include,
but are not limited to, local advertising avails and templates for
various forms of advertising and promotion that can be tailored for
DIRECTV's use.
7. REPRESENTATIONS, WARRANTIES AND LIABILITY LIMITATION
7.1 WINK'S WARRANTIES.
7.1.1 Wink hereby represents and warrants to DIRECTV that:
(i) Wink is a corporation duly organized, validly existing and in
good standing under the laws of the State of California;
(ii) Wink has the requisite power and authority to execute and
deliver this Master Agreement and to fully perform its obligations
hereunder;
(iii) Wink has the right to furnish the Wink Software, the
Interactive Wink Programs, the Wink Virtual Channels and all content
contained therein and the services related thereto as provided in
this Master Agreement, free and clear of any restrictions by third
parties;
(iv) the execution, delivery and performance of this Master Agreement
has been duly authorized by all corporate actions necessary on the
part of Wink;
(v) Wink is not subject to any contractual or other legal obligation
which will in any way interfere with its full performance of this
Master Agreement;
(vi) the individual executing this Master Agreement on behalf of Wink
has the authority to do so;
(vii) the Wink Software and the Wink Response Network (and subsequent
revisions and upgrades to same provided by Wink to DIRECTV) will
operate and perform in accordance with all published specifications
with respect thereto;
(viii) the use or carriage by DIRECTV of the Wink Software, the Wink
Engine, the Wink Virtual Channels or any other rights granted by Wink
hereunder will not infringe upon the patent, copyright, trademark, or
other proprietary right of any third party; and
Proprietary and Confidential 17
18
(ix) Wink will perform all obligations and render all services
hereunder in a professional and workmanlike manner to the best of its
abilities.
7.1.2 Wink represents and warrants to DIRECTV that the Wink Software, the
Wink Engine, the Wink Virtual Channels and the Wink Response Network
(collectively, "Wink Products") are designed and developed, to be and
will continue to be Year 2000 Compliant. "Year 2000 Compliant" shall
mean that:
(a) the Wink Products are fully functional and performs in accordance
with Wink's published specifications and the specific warranties set
forth elsewhere in this Master Agreement (together, the "Standards")
prior to, during, and after the calendar year 2000 A.D., and that the
Wink Products shall perform during each such period of time without
any error relating to date functionality and/or data;
(b) without limiting the generality of the foregoing, that the Wink
Products (i) shall not cease to perform or provide or cause any
software and/or system with which the Wink Products operates to
provide invalid or incorrect results as a result of date
functionality and/or data. or otherwise experience any degradation of
performance or functionality with respect to the Standards as a
result of such interfacing specifically arising from. relating to or
including date functionally, (ii) has been developed and designed to
be fully interoperable with year 2000-compliant software. hardware,
and data and to ensure year 2000 compatibility, including, but not
limited to, date data century recognition and calculations which
accommodate same century and multi-century and leap year formulas and
date values; (iii) shall effectively and accurately manage and
manipulate data derived from, involving or relating in any way to
dates including single century formulas and multi-century or leap
year formulas, and will not cause an abnormally ending scenario
within the Wink Products, or generate incorrect values or invalid
results involving such dates, and (iv) provides that all date-related
user interface functionalities and data fields include an indication
of century.
7.2 DIRECTV represents and warrants to Wink that:
(i) DIRECTV is a corporation duly organized and validly existing
under the laws of the State of California;
(ii) DIRECTV has the requisite power and authority to enter in this
Master Agreement and to fully perform its obligations hereunder;
(iii) the execution, delivery and performance of this Master
Agreement has been duly authorized by all corporate actions necessary
on the part of DIRECTV;
(iv) DIRECTV is not subject to any contractual or other legal
obligation which will in any way interfere with its full performance
of this Master Agreement;
(v) the individual executing this Master Agreement on behalf of
DIRECTV has the authority to do so; and
(vi) DIRECTV will perform all obligations and render all services
hereunder in a professional and workmanlike manner to the best of its
abilities.
7.3 LIMITATION OF LIABILITY
NEITHER WINK, ON THE ONE HAND, NOR DIRECTV, ON THE OTHER HAND, SHALL,
FOR ANY REASON OR UNDER ANY LEGAL THEORY, BE LIABLE TO THE OTHER OR
ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, REVENUES, DATA OR
SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES OR LOSS WAS FORESEEABLE
AND REGARDLESS OF
Proprietary and Confidential 18
19
WHETHER IT WAS INFORMED OR HAD DIRECT OR IMPUTED KNOWLEDGE OF THE
POSSIBILITY OF SUCH DAMAGES OR LOSS IN ADVANCE.
8. INDEMNIFICATION
8.1 Wink shall indemnify, defend and hold harmless DIRECTV, its parents,
subsidiaries, and their respective officers, directors, employees and
agents from and against any and all losses, settlements. claims,
actions, suits, proceedings, investigation, judgments, awards,
damages, liabilities, costs and expenses including, without
limitation, reasonable attorneys' fees (collectively "Losses" and,
individually, a "Loss") which arise out of or as a result of:
(i) any breach of this Master Agreement by Wink;
(ii) any claim, demand, action, suit or proceeding in which it
is alleged that the Wink Products or any part thereof, or
the content of the Wink Virtual Channel violates or
infringes any patent or copyright, trademark or other
proprietary right of any third party or constitutes a
misappropriation of any third party's trade secrets;
(iii) any improper disclosure by Wink of any Confidential
Information as defined herein ("Confidential Information
Disclosures");
(iv) any misuse under the terms of this Agreement by Wink or
any third party, including, without limitation any
Fulfillment Entity, of any DIRECTV Subscriber information,
including but not limited to DIRECTV Subscriber credit
card information or other personal financial data;
and shall reimburse them for any and all legal, accounting and other
fees, costs and expenses (collectively, "Expenses") reasonably
incurred by any of them in connection with investigating, mitigating
or defending any such Loss; provided, however, that Wink will not
have any obligation or liability under this Section 8.1 to the extent
that DIRECTV has an obligation or liability with respect to the same
Loss under Section 8.2. If it is, or in the opinion of Wink may be,
determined by competent authority that the Wink Products or any part
thereof infringes any patent, copyright, trade secret or trademark of
a third party or is enjoined, then Wink at its sole option and
expense may: (a) procure for DIRECTV the right under such patent,
copyright, trade secret or trademark to use, reproduce and distribute
the Wink Products or such part thereof or such trademark as
authorized in this Master Agreement, at no cost to DIRECTV; (b)
subject to DIRECTV's approval which shall not be unreasonably
withheld, replace the Wink Products or such part thereof or such
trademark with other suitable software or trademark without material
degradation in performance or functionality at no cost to DIRECTV; or
(c) subject to DIRECTV's approval which shall not be unreasonably
withheld, modify the Wink Products or such part thereof or such
trademark to avoid infringement without material degradation in
performance or functionality at no cost to DIRECTV.
8.2 Wink shall indemnify, defend and hold harmless Participating
Manufacturers, their parents, subsidiaries, and their respective
officers, directors, employees and agents from and against any and
all losses, settlements, claims, actions, suits, proceedings,
investigation, judgments, awards, damages, liabilities, costs and
expenses including, without limitation, reasonable attorneys' fees
(collectively "Losses" and, individually, a "Loss") which arise out
of or as a result of any claim, demand, action, suit or proceeding in
which it is alleged that the Wink Products or any part thereof, or
any Wink Virtual Channel, violates or infringes any patent or
copyright, trademark or other
Proprietary and Confidential 19
20
proprietary right of any third party or constitutes a
misappropriation of any third party's trade secrets.
8.3 DIRECTV shall indemnify Wink. its officers, directors, shareholders,
employees and agents for, and shall hold them harmless from and
against, any and all Losses which are sustained or incurred by or
asserted against any of them and which arise out of any breach of
this Master Agreement by DIRECTV and shall reimburse them for any and
all Expenses reasonably incurred by any of them in connection with
investigating, mitigating or defending any such Loss.
8.4 Promptly after receipt by a party of notice of the commencement of
any action, suit, proceeding or investigation in respect of which
such party may make a claim for indemnification hereunder, such party
will give written notice thereof to the other party; but the failure
to so notify the other party will not relieve the other party from
any liability or obligation which the other party may have to any
indemnified person (i) otherwise than under this Master Agreement or
(ii) under this Master Agreement except to the extent of any material
prejudice to the other party resulting from such failure. If any such
action, suit, proceeding or investigation is brought against an
indemnified person, the indemnifying party will be entitled to
participate therein and, if it wishes to assume the defense thereof
and gives written notice to the indemnified person of its election so
to assume the defense thereof within 15 days after notice shall have
been given to it by the indemnified person pursuant to the preceding
sentence, will be entitled to assume the further defense thereof.
Each indemnified person will be obligated to cooperate reasonably
with the indemnifying party, at the expense of the indemnifying
party, in connection with such defense and the compromise or
settlement of any such action, suit, proceeding or investigation. If
Wink is the indemnifying party, Wink shall make no compromise or
settlement of any claim without the prior written consent of DIRECTV,
which consent shall not be unreasonably withheld.
9. NOTICES
All notices, statements, and other communications given hereunder
shall be in writing and shall be delivered by personal delivery,
certified mail. return receipt requested, or by next day express
delivery. Such notices must be addressed as follows:
If to WINK COMMUNICATIONS:
Attn.: Chief Financial Officer
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
If to DIRECTV:
Attn.: Vice President, Advanced Products
0000 Xxxx Xxxxxxxx Xxx,
Xx Xxxxxxx, XX 00000
With a copy to:
Senior Vice President and General Counsel
Business Affairs
The date of such telegraphing, personal or express delivery, or the
date of receipt of a certified notice, if applicable, shall be deemed
the date on which such notice is given and effective.
Proprietary and Confidential 20
21
10. TRADEMARKS
Other than as expressly provided otherwise herein, all right, title
and interest in and to the Interactive Wink Programs or other rights,
of whatever nature, related thereto shall remain the property of
Wink. Further, the parties acknowledge and agree that with respect to
all names, logos, marks, copyright notices or designations owned and
utilized by the respective party in connection with the activities of
that party are the sole and exclusive property of that party and no
rights or ownership are intended to be or shall be transferred as a
result of this Agreement. Wink shall not use, and no right or license
is herein granted to Wink to use, any of the trade names, trademarks,
copyrights, styles, slogans, titles, logos or service marks of
DIRECTV. Notwithstanding the foregoing, DIRECTV permits Wink to
include DIRECTV's trade name and logo for Wink's industry marketing
materials, subject to (i) DIRECTV's Trademark and Style Guide.
attached hereto and incorporated herein as Exhibit M and (ii) prior
written approval by DIRECTV.
11. FORCE MAJEURE
Neither party shall have any liability to the other party for any
failure to perform hereunder, if such failure is due to: an act of
God; inevitable accident; fire; lockout; strike or other labor
dispute; riot or civil commotion; act of government or governmental
instrumentality (whether federal, state or local); act of terrorism;
failure of performance by a common carrier; failure in whole or in
part of technical facilities; sun spots or other electronic,
electro-magnetic, atmospheric or other condition affecting
transmission; loss or degradation of any DIRECTV satellite capacity
(regardless of whether the Wink Interactive Programs are currently
delivered on the affected transponder(s) at the time of such loss or
degradation); or other cause (excluding financial inability or
difficulty of any kind) beyond such party's reasonable control.
Either party may terminate this Master Agreement upon written notice
to the other party in the event of a Force Majeure which prevents
either party from substantially performing under this Master
Agreement for a period of sixty (60) continuous days.
12. CONFIDENTIALITY
As used herein, "Confidential Information" shall include: (x) the
terms and conditions, other than the existence and duration, of this
Master Agreement; (y) any information marked or orally disclosed as
"confidential;" and (z) all personally identifiable information
related to Wink-enabled DIRECTV System Subscribers or any other
subscriber of DIRECTV, excluding such information which Wink-enabled
DIRECTV System Subscribers have affirmatively provided to (i) Wink,
(ii) a Programmer, or (iii) a Third Party Wink Program Provider with
the express permission that the receiving party could provide such
information to advertisers and other third parties. Neither party
shall disclose Confidential Information to any third party (other
than as necessary to its respective employees, in their capacity as
such) except: (i) as expressly provided herein; (ii) as may be
required by any court of competent jurisdiction, governmental agency,
law or regulation, provided that the disclosing party takes
reasonable steps to obtain confidential treatment of such information
pursuant to an appropriate Protective Order (in such event the
disclosing party. shall also notify the other party a reasonable time
prior to disclosure so that the non-disclosing party may take further
steps to protect the confidentiality of such information); (iii) as
part of the normal reporting or review procedure to a party's
accountants, auditors, agents, legal counsel and employees of parent
and subsidiary companies, provided such accountants, auditors,
agents, investors and potential investment partners, legal counsel,
and employees of parent and subsidiary companies agree to be bound by
this Section; and (iv) to enforce any of a party's rights pursuant to
this Master Agreement. Any data transmission, including all reports,
between Wink, DIRECTV and approved third parties
Proprietary and Confidential 21
22
containing DIRECTV Subscriber data, is hereby identified as
Confidential Information and all such Subscriber data shall be
transmitted and stored in such a manner so as to ensure, through the
use of best efforts, the security of such data from access by
unauthorized parties.
13. TERMINATION
13.1 BREACH. Notwithstanding any other provision herein, either party
shall have the right to terminate this Master Agreement and any
License granted herein by giving written notice to the other party if
such other party breaches any of its material obligations under this
Master Agreement and such breach is not cured within thirty (30) days
of receipt of written notification specifically setting forth those
items of nonperformance. The termination of this Master Agreement by
either party shall be without prejudice to any other remedies that
party may have. Each party shall be obligated to pay outstanding fees
and payments accrued as of the date of termination,
13.2 BANKRUPTCY. If a party (i) becomes bankrupt or insolvent, however
evidenced, (ii) admits in writing its inability to pay its debts when
due, (iii) makes a general assignment for the benefit of creditors,
(iv) has appointed, voluntarily or involuntarily, any trustee,
receiver, custodian or conservator with respect to it or a
substantial part of its property, (v) files, or has filed against it,
a voluntary or involuntary petition in bankruptcy or (vi) makes any
arrangement or otherwise becomes subject to any proceedings under the
bankruptcy, insolvency, reorganization or similar laws of the United
States or any state, then the other party shall have the right at any
time thereafter to terminate this Master Agreement by giving written
notice to such party.
13.3 RIGHTS UPON TERMINATION. All rights of DIRECTV to use the Wink
Software (or any License granted hereunder for any reason) will cease
upon expiration of the Term or upon the termination of this Master
Agreement, and DIRECTV will (i) immediately purge all copies of all
Wink Software from all computer processors or storage media on which
DIRECTV has installed or permitted others to install such Wink
Software (not including software, if any, within any Wink-enabled
DIKECTV System Receiver, (ii) within ninety (90) days of such
expiration or termination return all materials (other than the
Equipment) provided by Wink or allow Wink to retrieve such materials
at DIRECTV's Facilities on notice during regular business hours and
without interrupting DIKECTV operations and (iii) within ninety (90)
days of such expiration or termination, certify to Wink in writing,
signed by an officer of DIRECTV, that all copies of the Wink Software
have been returned to Wink or destroyed and that no copy of any Wink
Software remains in DIRECTV's possession or under its control. Upon
termination or expiration of the Master Agreement Wink shall
immediately discontinue all use of all DIRECTV trademarks, including
all marks associated in any way whatsoever with the Wink-enabled
DIRECTV System and all marks or names associated with any programming
or product offered by DIRECTV.
14. GENERAL
14.1 BINDING EFFECT. Assignment This Master Agreement and License shall be
binding upon the parties hereto and their respective successors and
assigns, except that it may not be assigned by transfer, by operation
of law or otherwise, without the prior written consent of the
non-transferring party, which shall not be unreasonably withheld;
provided, however, that either party may assign its rights and
obligations under this Master Agreement and License, in whole or in
part (i) to an Affiliated Company or to a successor entity to
assignor's business; (ii) to a third party as part of preparing to go
or going public; or (iii) to a third party, provided the assignor
remains primarily liable for the performance of such third party's
obligations hereunder. Except as otherwise provided herein, any
Proprietary and Confidential 22
23
assignment of rights or delegation of duties under this Master
Agreement by a party without the prior written consent of the other
party, if such consent is required hereby, shall be void. Except as
otherwise provided herein, no person shall be a third party
beneficiary of this Master Agreement. For the purposes of this Master
Agreement, "Affiliated Company(ies)" shall mean, with respect to any
person or entity, any other person or entity directly or indirectly
controlling, controlled by or under common control (i.e., the power
to direct affairs by reason of ownership of voting stock, by contract
or otherwise) with such person or entity and any member, director,
officer or employee of such person or entity.
14.2 AMENDMENTS, MODIFICATIONS, CANCELLATIONS. Except as otherwise
contemplated herein, no addition to, and no cancellation, renewal,
extension, modification or amendment of, this Master Agreement shall
be binding upon a party unless such addition, cancellation, renewal,
extension, modification or amendment is set forth in a written
instrument which states that it adds to, amends, cancels, renews,
extends or modifies this Master Agreement and which is executed and
delivered on behalf of each party by an officer of each party.
14.3 WAIVERS LIMITED. No waiver of any provision of this Master Agreement
shall be binding upon a party unless such waiver is set forth in a
written instrument which is executed and delivered on behalf of such
party by an officer of such party. Such waiver shall be effective
only to the extent specifically set forth in such written instrument.
14.4 RELATIONSHIP. Neither party shall be or hold itself out as the agent
of the other party under this Master Agreement. Nothing contained
herein shall be deemed to create, and the parties do not intend to
create, any relationship of partners or joint venturers as between
DIRECTV and Wink, and neither party is authorized to or shall act
toward third parties or the public in any manner which would indicate
any such relationship. Likewise, no supplier of advertising or
programming or anything else included in connection with the
Interactive Wink Programs shall be deemed to have any privity of
contract or direct contractual or other relationship with DIRECTV by
virtue of this Master Agreement or DIRECTV's License hereunder. Wink
disclaims any present or future right, interest or estate in or to
the transmission facilities of DIRECTV.
14.5 GOVERNING LAW. The validity, interpretation, performance and
enforcement of this Master Agreement shall be governed by the law of
the State of California, without regard to its principles of
conflicts of laws. The respective obligations of the parties under
this Master Agreement are subject to all applicable federal, state
and local laws, rules and regulations.
14.6 DISPUTE RESOLUTION/ARBITRATION.
(i) DISPUTES. Any dispute or disagreement arising between
DIRECTV and Wink shall be resolved according to the following dispute
resolution procedure: First, such dispute shall be addressed to each
party's project manager for discussion and attempted resolution. If
any such dispute cannot be mutually resolved by such project managers
within 5 business days, then such dispute shall be immediately
referred to the senior management of both parties for discussion and
attempted resolution. If such dispute cannot be mutually resolved by
such management representatives within 10 business days, then such
dispute or disagreement may be referred by either party to
arbitration in Los Angeles, California before one arbitrator and
arbitrated in accordance with the Commercial Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the
"AAA"), in effect on the date that such notice is given. Once
appointed, the arbitrator shall appoint a time and place for a
pre-hearing status conference not more than 14 days from the date of
his or her appointment, and shall appoint a time and place for a
final hearing not
Proprietary and Confidential 23
24
more than 45 days from the date of the status conference. The final
hearing shall. if at all possible as determined by such arbitrator,
conclude no later than 30 days after its commencement. The parties
shall also specifically have the right to seek injunctive relief as
part of any arbitration.
(ii) ARBITRATOR. The party that demands arbitration of the
unresolved dispute or disagreement shall specify in writing the
matter to be submitted to arbitration. The dispute or disagreement
shall be referred for resolution by a single arbitrator appointed in
accordance with the Arbitration Rules of the AAA.
(iii) AWARD. The arbitrator shall render a written decision
stating with reasonable detail the reasons for the decision rendered.
Any monetary award shall be payable in immediately available funds
and in United States dollars through a bank in the United States.
(iv) COSTS. Each party shall bear its own cost of preparing
for and presenting its case; and the cost of arbitration, including
the fees, and expenses of the arbitrator, will be shared equally by
DIRECTV and Wink.
(v) ENFORCEMENT. The arbitration award shall be final and
binding upon the parties and may be confirmed by the judgment of any
court having appropriate jurisdiction, including but not limited to
any court located in California.
14.7 ENTIRE AGREEMENT. This Master Agreement together with the Schedules
and Exhibits attached hereto constitutes the entire contract between
the parties with respect to the subject matter hereof and cancels and
supersedes all of the previous or contemporaneous contracts,
representations, warranties and understandings (whether oral or
written) by, between or among the parties with respect to the subject
matter hereof.
14.8 SEVERABILITY. If any provision of this Master Agreement shall
hereafter be held to be invalid, unenforceable or illegal, in whole
or in part, in any jurisdiction under any circumstances for any
reason, (i) such provision shall be reformed to the minimum extent
necessary to cause such provision to be valid, enforceable and legal
while preserving the intent of the parties as expressed in, and the
benefits to the parties provided by, this Master Agreement or (ii) if
such provision cannot be so reformed, such provision shall be severed
from this Master Agreement and an equitable adjustment shall be made
to this Master Agreement (including, without limitation, addition of
necessary further provisions to this Master Agreement) so as to give
effect to the intent so expressed and the benefits so provided. Such
holding shall not affect or impair the validity, enforceability or
legality of such provision in any other jurisdiction or under any
other circumstances. Neither such holding nor such reformation or
severance shall affect or impair the legality, validity or
enforceability of any other provision of this Master Agreement.
14.9 HEADINGS. The headings set forth in this Master Agreement have been
inserted for convenience of reference only, shall not be considered a
part of this Master Agreement and shall not limit, modify or affect
in any way the meaning or interpretation of this Master Agreement.
11.10 SURVIVAL OF REPRESENTATIONS. All representations and warranties set
forth herein shall survive the termination or expiration of this
Master Agreement and the consummation of the transactions
contemplated hereby. In addition, Sections 8, 10, 12 and 14 shall
survive any termination or expiration of this Master Agreement.
Proprietary and Confidential 24
25
14.11 MOST FAVORED NATIONS. The term "Distributor" shall be defined as any
entity distributing (or controlling an entity which distributes)
video programming to subscribers. It does not include Programmers as
defined herein. If Wink has agreed to provide or at any time during
the Term agrees to provide, pursuant to a written agreement with any
Distributor ("Third Party Agreement"), on any day during the term
hereof, fees, rates, discounts, credits, commissions, rebates,
marketing support or adjustments (collectively, "Financial
Provisions") which are more favorable to such other distributor than
those set forth in this Master Agreement, Wink shall give written
notice thereof to DIRECTV and, at DIRECTV's election, this Master
Agreement shall be deemed to have been modified so that, from the
date on which such more favorable Financial Provisions are first so
provided (or, if such more favorable Financial Provisions are now
being provided, from the date hereof) and thereafter for so long as
such more favorable Financial Provision continues to be so provided,
DIRECTV shall receive such more favorable Financial Provisions.
14.12 AUDIT RIGHTS. During the term of this Master Agreement and for one
(1) year thereafter, both parties shall maintain accurate and
complete documents and information, as well as books and records in
accordance with generally accepted accounting principles and
practices which, at a minimum, shall contain sufficient information
to enable an auditor to verify compliance with this Master Agreement.
Upon not less than 30 days' prior written notice, either party shall
have the right, during the term of this Master Agreement and for one
(1) year thereafter to examine during normal business hours all of
the documents, information, books and records of the other party to
the extent necessary to verify compliance with this Master Agreement;
provided, however, that such examinations shall not be conducted more
frequently than once annually. If any such examination reveals a
discrepancy in the amount paid by or to either party and the amount
which should have been paid by or to either party, the party who has
been demonstrated to have paid too little shall immediately pay to
the other party an amount equal to the cost of such examination, plus
the amount of the discrepancy, plus interest on the amount of such
discrepancy at the rate of 1.5% per month (or, if lower, the maximum
rate permitted by law) from the date on which such amount was paid by
or should have been paid to the other party through the date on which
payment is made to the other party (such payments shall only be made
by DIRECTV if the under reporting by DIRECTV actually caused Wink to
make payments to DIRECTV).
Proprietary and Confidential 25
26
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Master Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. DIRECTV, INC.
Title: Title:
By: XXXXXX XXXXXXXXXXX By: Xxxxxxx Xxxxx
Name: President CEO Name: Vice President
Proprietary and Confidential 26
27
EXHIBIT A.: WINK/DIRECTV REVENUE SHARE
WINK RESPONSE SERVICE TRANSACTION FEES
Transaction Revenue Share is calculated as a percentage of Wink's gross revenues
on the applicable Gross Transaction Routing Fees, based on the schedule below:
Responses to Interactive Wink
Number of Wink-enabled Programs carried with third Response to Interactive Wink
DIRECTV System party video programming or Programs inserted by
Subscribers (as reasonably advertising, including those DIRECTV at DIRECTV's
determined by DIRECTV, and provided by Programmers facilities, excluding all
subject to audit by Wink) ("National Responses") National Responses
Less than 2,006,000 [ * ] [ * ]
2,000,000 - 2,999,999 [ * ] [ * ]
3,000.000 - 3,999,999 [ * ] [ * ]
4,000.000 - 4,999,999 [ * ] [ * ]
5,000.000 - 5,999,999 [ * ] [ * ]
6,000.000 or more [ * ] [ * ]
The Transaction Revenue Share for the applicable number of Wink-enabled DIRECTV
System Subscribers shall apply for all Gross Transaction Routing Fees captured
by Wink in the month in which that number of Wink-enabled DIRECTV System
Subscribers is reached and for all months thereafter during the Term, until the
next threshold for Wink-Enabled DIRECTV System Subscribers is met, at which
point that next Transaction Revenue Share shall apply for all Gross Transaction
Routing Fees thereafter, and so forth.
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 27
28
EXHIBIT B: WINK SOFTWARE
STANDARD ITEMS:
- WINK BROADCAST SERVER VERSION 2.X
- WINK SERVER MODULE ENGINE VERSION 1.X
- WINK RESPONSE SERVER (MODEM RETURN PATH) VERSION 1.X
- WINK BILLING SYSTEM INTERFACE VERSION 1.X
- WINK A/D GATEWAY FOR CAPTURING AND REINSERTION OF INTERACTIVE WINK OGRAMS
- PROVIDED IN ANALOG VBI AND REINSERTED IN DIRECTV DATA BROADCAST STREAMS
- WINK STUDIO VERSION 2.X (5-SEAT LICENSE)
- WINK SERVER STUDIO 1.X (5-SEAT LICENSE)
OPTIONAL ITEMS:
- WINK AD INSERTION SERVER MODULE, DIFFERENT INTERFACES AVAILABLE
Proprietary and Confidential 28
29
EXHIBIT C.: ATVEF TRANSLATOR ADDENDUM
[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 29
30
EXHIBIT D.: PRICING AND PAYMENT TERMS
All products and services are billed Net/45.
(A) WINK SOFTWARE PROVIDED FREE OF CHARGE DURING THE TERM:
- Site License for the Wink Broadcast Servers 2.x
- Site License for the Wink Response Server 1.x
- License for the Wink Billing System Interface l.x
- Site License for Wink Server Module Engine 1.x
- Site License for A/D Gateway
- 5 seat license for Wink Studio 2.x
- 5 seat license for Wink Server Studio 1.x
DIRECTV may deploy as many copies of each Wink Software program as necessary to
ensure reliable transmission from Facilities for the purpose of serving Wink
-enabled DIRECTV System Subscribers in the Territory.
(B) WINK SERVICES PROVIDED FREE OF CHARGE:
- Site survey and installation of all Wink Software and other products
provided by Wink
- A two-day training session for operating and maintaining the Wink
Broadcast Server
- A two-day training session for developing Interactive Wink Programs using
Wink Studio and Wink Server Studio
- Up to five one day Customer Service and Sales training sessions for
DIRECTV staff
- All training to be provided at DIRECTV facilities at a mutually agreeable
time
(C) THIRD PARTY PRODUCTS PROVIDED FREE OF CHARGE:
- All necessary server hardware to support reception and transmission of
national Interactive Wink Programs and the Wink Virtual Channels
- Norpak VBI readers for each incoming analog video stream carrying
Interactive Wink Programs
- Cables, hubs, etc. necessary to connect all Wink related equipment
- All telecom products and services to support collecting of Wink Responses
from Wink -enabled DIRECTV System Receivers, and to interface to
DIRECTV's billing system
All hardware products provided must be returned to Wink upon termination or
expiration of the Master Agreement.
(D) REQUIRED THIRD PARTY PRODUCTS TO BE LICENSED BY PARTICIPATING
MANUFACTURERS
- Wink Engine software
(E) OPTIONAL WINK SOFTWARE AND SERVICES:
- License for Wink Ad Insertion Server Module (delivery dependent on
vendor/interface)
Existing interfaces Free
New interfaces NRE based on time and materials,
not to exceed $25,000
Custom interface work $ 1,000/day
Additional 5-seat license packs for Wink Studio $ 3,000
Additional 5-seat license packs for Wink Server Studio $ 5,000
Phone training and consulting beyond bundled services $125/hr
Technical support $2,500/month
Application development $2,500 min., $125/hr
ATVEF Translator See Section 5.200
Proprietary and Confidential 30
31
EXHIBIT E.: PRELIMINARY STATEMENT OF WORK
See Wink/DIRECTV Statement of Work, draft dated 12/22/98
[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 31
32
[ * ]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
33
[ * ]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
34
[ * ]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
35
[ * ]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
36
[ * ]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
37
[ * ]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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STATEMENT OF WORK
code downloads to the IRD
software. This prototype
will not support broadcast
data nor a return path.
ET5.D2 Manufacturer to Wink
Manufacturer delivers
updated version of the
module software (SW2) which
adds a device control
driver, a broadcast data
driver and a functional TV
Control task.
ET5.D5 DIRECTV to Wink DIRECTV brings up
'Engineering SCID'
transmitting Wink data in
the correct format. Wink
will have telnet access to
control the behavior and
content of the data.
ET6: ET5 + 2 Weeks
ET6.D1 Wink to Manufacturer A version of the Wink Engine
(PROTO2)' which supports
apps delivered via broadcast
data stream. and user input
from the IRD control task.
ET6.D2 Manufacturer to Wink QA Test Environments
ET6.D2 Manufacturer to Wink An updated version module
software (SW3) which adds
support for the modem, and a
??TCP/IP/PPP?? stack.
ET7: ET6 + 3 Weeks QA Begins at Wink
ET7.D 1 Wink to Manufacturer Wink delivers a 3rd version
of the Wink Engine (PROTO3)
which supports a' return
path over the modem. Wink
Engine is 'code complete'
with all features and
functions having passed
engineering test.
ET8: ET7 + 6 Weeks
ET8.D1 Wink to Manufacturer Wink Software on HW1 modules
ready for Certification at
Manufacturer (PROTO4).
ET8.D2 Manufacturer to Wink Final Manufacturer Hardware
(HW2) and updated software
(SW4).
ET9: ET8 + 4 weeks IRD with Wink Engine pass
Certification at
Manufacturer.
ET9.D1 Manufact. to DIRECTV IRD with Wink Engine begin
SI&T at DIRECTV
ET10: ET9 + 0 weeks (2 week prelim. integration
at DIRECTV begins 2 weeks
before ETS.)
ET10.D1 All IRD with Wink Engine begin
SI&T at DIRECTV
THE FOLLOWING MILESTONES ARE REALLY SYSTEM RELATED - THUS NAMED STN. THIS BEGINS
AFTER ALL COMPONENTS ARE DELIVERED TO DTV AFTER HAVING COMPLETED COMPONENT
TESTING.
ST1: ET10/BT7/RT6 + 4 weeks 4 weeks for f'inal
integration after last
component arrives
ST1.D1 All Pass SI&T at DIRECTV. Begin
Acceptance Test.
ST2: ST1 + 7 weeks Field Test
ST2.D1 All Pass Acceptance Test at
DIRECTV.
TOTAL: 35 WEEKS
CONFIDENTIAL
10:42 AM 12/23/98 STATEMENT OF WORK Page 12 / 23
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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[ * ]
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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[ * ]
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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[ * ]
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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[ * ]
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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EXHIBIT F: PRELIMINARY SCHEDULE
See Wink/DIRECTV Statement of Work, draft dated 12/22/98.
Proprietary and Confidential 32
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[ILLUSTRATION]
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[ILLUSTRATION]
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EXHIBIT G.: WINK PROVIDED VIRTUAL CHANNELS
BRANDING
NAME DESCRIPTION BANDWIDTH MINIMUM TERMS
WEATHER Current weather and [ * ] TBD [ * ]
forecasts on demand- [ * ]
localization based on [ * ]
user location and/or
preferences
SPORTS Current pro and [ * ] TBD [ * ]
college scores on [ * ] [ * ]
demand - football, [ * ]
basketball, baseball,
hockey, golf, tennis
and auto racing -
localization based on
user location and/or
preferences
GENERAL Current news [ * ] TBD [ * ]
NEWS headlines, articles on [ * ]
Demand [ * ]
BUSINESS Financial news and [ * ] TBD [ * ]
NEWS market data - may [ * ] [ * ]
include limited [ * ] [ * ]
personalization for
tracking of
stocks/portfolio in a
later release
SHOPPING Virtual stores for [ * ] TBD [ * ]
select merchandise - [ * ] [ * ]
books, music, videos, [ * ]
clothes, travel,
flowers, etc.
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 33
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[ * ]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 34
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[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential
Execution Copy
61
[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential
Execution Copy
62
[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential
Execution Copy
63
[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential
Execution Copy
64
EXHIBIT I.: STANDARD WINK ENGINE LICENSE TERMS FOR PARTICIPATING MANUFACTURERS
See Sample December 22, 1998 - Development and License Agreement between Wink
and a Manufacturer of DIRECTV System Receivers
Proprietary and Confidential 35
65
SAMPLE - DECEMBER 22, 1998
DEVELOPMENT AND LICENSE AGREEMENT
THIS DEVELOPMENT AND LICENSE AGREEMENT (the "Agreement") is made as of _____
___199_ (the "Effective Date"), between Wink Communications, Inc., a California
corporation with offices at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000
('"Wink") and __________ , _________ , __________ , ___________ , a __________
corporation, with offices at ______________________ ("Manufacturer").
BACKGROUND
A. Wink is a software developer that has developed an end-to-end system
for delivering interactive applications synchronized with or independent of
television programs and advertisements. Among other software, Wink develops,
customizes, supports and licenses its software engine (the "Wink Engine") that
decodes Wink's protocol and displays the interactive applications overlaid on a
television screen.
B. DIRECTV, a California corporation ("DIRECTV"), whose address is 0000
Xxxx Xxxxxxxx Xxxxxxx, Xx Xxxxxxx, XX 00000 and Wink have entered into a license
agreement (the "Master Agreement") under which DIRECTV has licensed certain
software from Wink and has agreed to transmit certain interactive programs that
can be decoded and displayed by a Wink Engine resident in a DIRECTV System
Receiver (as defined below).
C. Manufacturer is a manufacturer of television set top boxes and video
products, and has a valid and current license with DIRECTV to produce and
distribute devices incorporating DIRECTV technologies and capable of receiving
and decoding DIRECTV signals ("DIRECTV System Receivers").
D. Wink and Manufacturer desire that Wink grant to Manufacturer the
right to embed a customized version of the Wink Engine on DIRECTV System
Receivers to be distributed in continental United States.
AGREEMENT
1. DEFINITIONS
1.1 "ICAP" means the Interactive Communicating Applications Protocol
developed by Wink. ICAP defines a method for delivering self-contained, compact,
platform independent, graphical interactive applications which are decoded and
executed by the Wink Engine in the Wink-enabled DIRECTV System Receiver.
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1.2 "Wink Engine" means Winks proprietary platform- and user
interface-independent software engine that implements Wink's
Interactive Communicating Applications Protocol for the
interpretation of interactive graphical applications.
1.3 "Statement of Work" means one or more document(s) to be mutually
agreed upon and executed by the parties and attached as Exhibit
A (and numbered successively, X-x, X-0, etc.) setting forth the
Development Plan, Specifications, Deliverables, each party's
respective development obligations, payment and related terms
and conditions with respect to each Manufacturer product for
which the Wink Engine is customized and each development project
undertaken otherwise relating to customize the Wink Engine.
1.4 "Development Plan" means the schedule and plan for completion of
the development activities under this Agreement as set forth in
each Statement of Work.
1.5 "Specifications" means the technical and other specifications
for the Deliverables to be developed by the parties under this
Agreement as set forth in each Statement of Work.
1.6 "Deliverables" means each item identified as a deliverable in
each Statement of Work.
1.7 "Licensed Engine" means version 2.0 of the Wink Engine as
customized under each Statement of Work in object code format
and any Updates, and any related documentation which Wink may
create, in Wink's sole discretion.
1.8 "Update" means a release of the Licensed Engine which contains
error corrections or minor enhancements, but which is not a new
version containing significant new features or functionality, in
each case as determined in Winks sole discretion. An Update
shall be designated by a change in the digit or digits only to
the right of the decimal point in the version number.
1.9 "Manufacturer Device" means the DIRECTV System Receiver as
identified in each Statement of Work,
1.10 "Wink-enabled DIRECTV System Receiver" means a DIRECTV System
Receiver containing the Licensed Engine (or a DIRECTV System
Receiver that contains a memory component into which the
Licensed Engine may be loaded or transmitted) and which is able
to receive both DIRECTV programming and Wink interactive
programs transmitted by DIRECTV.
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1.11 "Subdistributors" means entities authorized by Manufacturer to
distribute the Wink-enabled DIRECTV System Receiver(s) including
subsidiaries, affiliates, distributors, resellers, value-added
resellers, dealers or sales representatives.
1.12 "Intellectual Property Rights" means all current and future
worldwide patents and other patent rights, copyrights, mask work
rights, trade secrets, know-how and all other intellectual
property rights, including without limitation all applications
and registrations with respect thereto.
2. DEVELOPMENT, DELIVERY AND ACCEPTANCE
2.1 Development. The parties agree to use their reasonable
commercial efforts to customize the Wink Engine for the
Manufacturer Device identified in each Statement of Work or to
complete any additional development of a Licensed Engine after
Final Acceptance as set forth in each respective Statement of
Work. Each party's obligations under this Agreement are
contingent upon mutual agreement to each Statement of Work. The
terms of this Agreement shall apply to all such development
efforts except to the extent expressly set forth in a particular
Statement of Work.
2.2 Cooperation and Assistance. Manufacturer shall (i) assist Wink
in producing the Specifications and (ii) provide other necessary
materials and information, as mutually agreed by the parties in
the Development Plan or otherwise.
2.3 Provision of Software, Hardware and Equipment. Manufacturer
shall provide to Wink free of charge (including all taxes and
freight) all hardware, software, and equipment reasonably
necessary for Wink to complete development and duplicate the
Manufacturer environment ("Equipment"). A preliminary list of
Equipment shall be included in each Statement of Work and may be
updated from time to time by mutual agreement. Manufacturer
shall retain title to all such Equipment provided to Wink, and
Wink shall return all such Equipment to Manufacturer upon
written request and at Manufacturer's sole cost and expense.
Wink shall exercise the same degree of care with the Equipment
as Wink does for its own equipment.
2.4 Modifications. Wink may alter the Specifications commensurate
with good faith efforts to finalize and refine the Deliverables
in accordance with Manufacturer's needs and objectives for the
Licensed Engine, and subject to DIRECTV's written permission.
Any such changes will be documented in writing and provided to
Manufacturer. Any other changes to a Statement of Work may only
be made by mutual agreement of the parties and all provisions
affected by such changes shall be appropriately adjusted.
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2.5 Delays. In the event Manufacturer is late in the performance of
its obligations in accordance with the Development Plan, and
such delay affects Wink's obligations hereunder, Wink's
performance of such affected obligations shall be delayed by the
time period necessary to account for such delay.
2.6 Delivery and Acceptance. Upon completion, Wink shall deliver to
Manufacturer each Deliverable, Accompanying the final
Deliverable for a given Statement of Work, Wink shall include
test criteria that will exercise critical functionality of such
Deliverables, Test criteria will include test cases and test
applications that test for cross-platform compatibilities and
for Manufacturer-specific implementation features. Within thirty
(30) days after receipt, Manufacturer shall review and evaluate
each Deliverable according to Wink's test criteria, if
applicable, and shall provide Wink with a written acceptance of
the Deliverables or a written statement setting forth those
material errors to be corrected ("Statement of Errors").
Manufacturer shall not withhold acceptance of any Deliverable
unless such Deliverable materially deviates from the
Specifications. Wink and Manufacturer recognize that the
Deliverables will not be error-free. If Manufacturer provides a
Statement of Errors, Wink shall use reasonable commercial
efforts to correct such errors as are validated by Wink, if any,
as soon as practicable, and to return a copy of the updated
Deliverables to Manufacturer for review and reevaluation. The
foregoing procedure shall be repeated until acceptance by
Manufacturer of the Deliverables or the parties mutually agree
to cease development and terminate this Agreement or the
applicable Statement of Work. Manufacturer's failure to accept
or provide a Statement of Errors within such thirty day period
shall be deemed an acceptance of such Deliverables. The parties
agree that additional testing performed in conjunction with
DIRECTV or their designated party may be required, and agree to
include an estimate of the time and effort involved in such
testing in the Statement of Work.
2.7 Transfer of Software. Upon Manufacturer's acceptance of the
completed' Licensed Engine ("Final Acceptance"), Wink shall
deliver to Manufacturer a master diskette or other digital
storage media for use by Manufacturer in accordance with the
terms of this Agreement.
2.8 Right to Pursue Other Projects. Wink is in the business of
developing and modifying the Wink Engine for itself and for
others. This Agreement shall not be construed as prohibiting
Wink from granting rights to the Licensed Engine to third
parties or Wink's further development, modification or
distribution of the Wink Engine.
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3. GRANT OF RIGHTS
3.1 Licensed Engine. Subject to the terms and conditions of this
Agreement, effective upon Final Acceptance, Wink grants to
Manufacturer a, non-exclusive, non-transferable (except as
provided in Section 13.3), right and license, under Wink's
Intellectual Property Rights in the Licensed Engine, to (a) use,
reproduce and have reproduced the Licensed Engine, solely for
the purpose of incorporating the Licensed Engine into a
Manufacturer Device and as necessary in the course of
distribution and support of the Wink-enabled DIRECTV System
Receiver as permitted hereunder; (b) distribute copies of the
Licensed Engine solely for incorporation into a Wink-enabled
DIRECTV System Receiver which was previously acquired (directly
or indirectly) from Manufacturer for use only with such
previously acquired unit, and not otherwise on a stand-alone
basis; and (c) distribute the Wink-enabled DIRECTV System
Receiver in the United States of America. Manufacturer's right
to distribute copies of the Licensed Engine pursuant to Section
3.1 (b), above, is subject to the condition that Manufacturer
and its Subdistributors shall observe procedures reasonably
acceptable to Wink for monitoring such stand alone distribution
of the Licensed Engine, including encryption where distributed
electronically or broadcast. All such procedures, including
related record retention and audit procedures, shall be mutually
agreed in writing by Manufacturer and Wink prior to any such
distribution.
3.2 Submanufacturers. Manufacturer shall have the right to provide
the Licensed Engine to its third party manufacturers (each a
"Submanufacturer"), provided that each Submanufacturer agrees in
a signed writing (i) to use and reproduce Licensed Engines and
Wink-enabled DIRECTV System Receivers only for Manufacturer's
account, (ii) not to sell or distribute Licensed Engines and
Wink-enabled DIRECTV System Receivers except to Manufacturer,
(iii) to keep the Licensed Engine confidential pursuant to terms
and conditions no less restrictive than the terms and conditions
described in Section 10 below and (iv) that Wink is a third
party beneficiary of such agreement and may enforce such
agreement directly against such Submanufacturer. Manufacturer's
provision of the Licensed Engine to such Submanufacturer shall
in all instances be subject to (a) Manufacturer's assurance that
it will use the same level of care in choosing Submanufacturers
for Manufacturer Devices incorporating the Licensed Engine as it
does for its other products, and will take all reasonable steps
to prevent unauthorized disclosure of Wink Confidential
Information, and (b) Manufacturer's prompt notification to Wink
if Manufacturer knows or believes that a Submanufacturer has
breached the provisions of subsection (i) - (iii) above. In the
event that Manufacturer desires to provide the Licensed Engine
to a Submanufacturer without also
70
providing such Submanufacturer with software owned by
Manufacturer, Manufacturer's provision of the Licensed Engine to
such Submanufacturer shall be subject to Wink's written approval
(not to be unreasonably withheld) of such Submanufacturer.
Manufacturer shall use commercially reasonable efforts to ensure
that all Submanufacturers abide by the terms of their written
agreements described herein and keep Wink apprised of its
activities in enforcing such agreements.
3.3 Subdistributors. Manufacturer may exercise its distribution
rights hereunder through the use of Subdistributors; provided,
that each Subdistributor must agree in a signed writing, prior
to obtaining any copy of the Licensed Engine from Manufacturer,
to be bound by all applicable restrictions on Manufacturer set
forth in this Agreement. Such writing shall provide that Wink is
a third party beneficiary of such agreement and may enforce such
agreement directly against such Subdistributor. Manufacturer
shall promptly notify Wink if Manufacturer has reason to believe
that any of Manufacturer's Subdistributors may not be abiding by
such restrictions. Manufacturer shall diligently police and
enforce such restrictions including specific measures reasonably
requested by Wink from time to time.
3.4 Proprietary Notices. All copies of the Licensed Engine
reproduced or distributed by Manufacturer shall contain
copyright and other proprietary notices in the same manner in
which Wink incorporates such notices in the Licensed Engine or
in any other manner requested by Wink. Wink's current copyright
and proprietary notices are set forth in Exhibit B. In addition,
at Wink's request, Manufacturer shall xxxx the Manufacturer
Device with such patent notices as may be permitted or required
under Xxxxx 00, Xxxxxx Xxxxxx Code. Manufacturer shall
incorporate such notices not more than 90 days after the date on
which Wink provides the form of notice and will use its best
efforts to incorporate such notices sooner.
3.5 Limitations, Manufacturer shall not modify, prepare derivative
works of, reverse engineer, disassemble, decompile, or otherwise
attempt to obtain access to the source code of the Licensed
Engine,
4. FEES
4.1 Wink agrees that there shall be no per copy license fees or
other license fees due Wink in connection with Manufacturer's
license of the Licensed Engine. Manufacturer agrees to pay the
support fees defined in Exhibit C, section 6 within thirty days
of receipt of an invoice from Wink. Manufacturer further agrees
to pay the non-recurring engineering charges ("NRE") set forth
in each Statement of Work upon acceptance of the final version
of the object
71
code for the applicable Licensed Engine ("Gold Master"). In no
event shall such NRE exceed $300,000 per Licensed Engine. Wink
agrees that such NRE shall be waived if the following conditions
are met:
(a) Manufacturer and Wink meet the deadline for delivery and
acceptance of the Gold Master, as stated in the Development
Plan, and as amended by mutual agreement between the parties. If
the parties fail to meet the deadline for delivery of the Gold
Master in the Development Plan, the parties shall evaluate the
causes of such delay. If Wink has, in Wink's sole and reasonable
opinion, contributed to such delay, the deadline shall be
extended to reflect such delay by Wink.
(b) For each full month that the acceptance of the Gold Master,
as stated in the Development Plan, is delayed through no fault
of Wink, the waiver of non-recurring engineering charges shall
be reduced by one third. After three months of a delay, the full
amount shall be due and payable on the date of acceptance of the
Gold Master by Manufacturer.
4.22 Currency; Taxes. All payments hereunder shall be in United
States dollars. All payments, if any, by Manufacturer shall be
made free and clear of, and without reduction for, any sales,
use, value added, or similar taxes, other than taxes based on
the net income of Wink, including foreign withholding tax. Any
such taxes which are otherwise imposed on payments to Wink shall
be the sole responsibility of Manufacturer.
5. WARRANTY
5.1 Product Warranty. Wink warrants to Manufacturer that under
ordinary use the Licensed Engine shall function substantially in
conformance with the Specifications for a period of no less than
ninety (90) days after Manufacturer's Final Acceptance.
5.2 Defects not Covered by Warranty. Wink's warranty shall not extend
to problems in the Licensed Engine that result from: (i)
Manufacturer's, or any of its customer's, failure to implement
any Updates to the Licensed Engine which are, provided by Wink;
(ii) changes to the operating system or environment or to
Manufacturer Devices which adversely affect the Licensed Engine;
(iii) any alterations of or additions to the Licensed Engine
performed by parties other than Wink without Wink's prior written
authorization; (iv) use of the Licensed Engine in a manner
inconsistent with the Specifications or in a manner in which it
was not intended; or (v) combination of the Licensed Engine with
other products not supplied by Wink or specifically identified in
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the applicable Specifications as compatible with the Licensed
Engine, which problems do not affect the Licensed Engine
standing alone.
5.3 Exclusive Remedy. Wink's sole obligation and Manufacturer's
exclusive remedy under the above warranty shall be for Wink to
use commercially reasonable efforts at Wink's facilities to
correct reproducible errors in the Licensed Engine to the extent
necessary bring it into conformity with Wink's warranty set
forth above.
5.4 Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, WINK
MAKES AND MANUFACTURER RECEIVES NO WARRANTIES WITH RESPECT TO
THE LICENSED ENGINE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
AND WINK SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE. Wink does not warrant that operation of the Licensed
Engine will be error free.
6. PROPERTY RIGHTS
Manufacturer agrees that as between Manufacturer and Wink, Wink owns all
right, title and interest in the Licensed Engine and all modifications and
derivatives thereof including all Intellectual Property Rights. Except as
expressly provided in Section 3, Wink does not grant to Manufacturer any right,
title or interest in the Licensed Engine, whether by implication, estoppel or
otherwise. All rights with respect to the Licensed Engine not specifically
granted herein are reserved to Wink.
7. MARKETING; TRADEMARKS AND TRADE NAMES
7.1 USE OF TRADEMARKS.
7.1.1 Promotion and Advertising. During the term of this
Agreement, in the event that Manufacturer or any
Subdistributor advertises, promotes or markets the
functionality of the Licensed Engine, Manufacturer may,
and may require its Subdistributors to, use the
trademarks, marks, trade names, logos, and other product
and company identifiers of Wink that Wink may adopt,
from time to time ("Wink Trademarks"). Use of the Wink
Trademarks shall be consistent with Wink's trademark
usage policy which Wink may adopt from time to time and
of which Wink has notified Manufacturer. Manufacturer
and its Subdistributors may use trade names, marks or
trademarks in addition to the Wink Trademarks in
connection with the Wink-enabled DIRECTV System
Receiver.
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7.1.2 Approval of Representations. All representations of
Wink's Trademarks that Manufacturer or its
Subdistributors intend to use shall first be submitted
to Wink for approval (which shall not be unreasonably
withheld) of design, color, and other details, or shall
be exact copies of those used by Wink. To ensure
trademark quality, within a reasonable time prior to
Manufacturer's first commercial shipment of the
Wink-enabled DIRECTV System Receiver bearing one or more
Wink Trademarks, Manufacturer shall supply to Wink one
such Wink-enabled DIRECTV System Receiver for inspection
and testing by Wink to ensure that such Wink-enabled
DIRECTV System Receiver conforms to Wink's standards of
quality for products sold under the Wink Trademarks. In
no event shall Manufacturer commence commercial shipment
of any such Wink-enabled DIRECTV System Receiver (except
as set forth above) under the Wink Trademarks without
Wink's prior written approval.
7.1.3 Restrictions. At no time during or after the term of
this Agreement shall either party register, attempt to
register or cause the registration of any of the
trademarks of the other party which give rise to the
likelihood of confusion. Except as expressly set forth
herein, nothing herein shall grant to either party any
right, title or interest in the other party's
trademarks. At no time during or after the term of this
Agreement shall either party challenge or assist others
to challenge the other party's trademarks or the
registration thereof or attempt to register any
trademarks, marks or trade names confusingly similar to
those of the other party.
7.2 Marketing and Promotion. Manufacturer shall promote the
functionality of the Licensed Engine in its presentations to
customers and in its marketing materials as a prominent feature
of the Wink-enabled DIRECTV System Receiver.
7.3 Wink Markings and User Interface Elements.
7.3.1 Remote Button. All remote controls that Manufacturer
markets for use with Wink-enabled DIRECTV System
Receivers shall contain a dedicated button for enabling
the functionality of the Licensed Engine ("Wink
Button"). The Wink Button shall include a marking chosen
by Wink, on and/or adjacent to the Wink Button. For each
remote, the location and size of the Wink Button shall
be mutually agreed upon, but shall be as prominent as
buttons and markings for the menu, info, guide and
select options on any such remote.
74
7.3.2 Manuals. Manufacturer shall ensure that manuals, or any
other documentation describing functionality of the
Licensed Engine will contain information on use of the
Licensed Engine functionality and Wink copyright and
proprietary notices. The content and location of such
information and notices shall be mutually agreed upon,
but shall be in the same place, the same size and same
prominence as similar information for other
functionality.
7.3.3 Device Specific and On-screen Information. Wink will
provide to Manufacturer artwork for a logo that may be
placed on all Wink- enabled DIRECTV System Receivers.
Manufacturer may silk screen or similarly affix this
logo on each Wink-enabled DIRECTV System Receiver.
Manufacturer shall ensure that: (i) if a Wink-enabled
DIRECTV System Receiver has a main menu or menu with
similar functionality, a menu item will be reserved for
Wink, which will allow users to access information
regarding the Licensed Engine functionality, the content
of screen and name of menu item in menu shall be
mutually agreed upon by the parties; and (ii) if a
Wink-enabled DIRECTV System Receiver has the capability
to display help screens that include descriptions of
device or remote control functionality, information
regarding Licensed Engine functionality shall be
provided, the content and style of such information
shall be mutually agreed to by the parties.
7.3.4 Splash Screens. Wink shall have the right to include a
splash screen that shall be displayed from time to time
and that will contain information, including without
limitation, Wink markings, and copyright and other
proprietary right notices to be mutually agree upon with
respect to placement and timing.
7.4 Press Releases. The parties intend to cooperate and
participate in public relations programs to promote the
Licensed Engine and the relationship between the
parties. Appropriate personnel from each party shall
participate in such public relations programs. The
parties shall cooperate with respect to and mutually
approve (not to be unreasonably withheld or delayed) all
press releases issued by either party with respect to
this Agreement or the parties' relationship. Unless
otherwise agreed in writing by the parties, each press
release issued pursuant to this Section shall contain:
(i) in the body of the release, the name and location of
both parties and a quote from an executive of both
parties; (ii) in a footnote at the end of the release,
both parties' proprietary notices with respect to
technology discussed in the body of the release.
Whenever feasible, the press release shall also include
the logo of each party.
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7.5 Disclosures of Terms. Each party agrees not to disclose the terms
of this Agreement to any third party without the other's written
consent in its sole discretion, except to such party's
accountants, attorneys and other professional advisors, or as
required by securities or other applicable laws; provided,
however, that the parties agree that DIRECTV, Inc. shall be
provided with an executed copy of this Agreement, and all
schedules, attachments and exhibits attached hereto, within
thirty (30) days of the Effective Date. Notwithstanding this
paragraph, each party shall have the right to say the following
in meetings with customers, prospective customers, or prospective
investors:
- Manufacturer and Wink are working together,
- Manufacturer is licensing Wink's technology.
- Wink is porting the Wink Engine to Manufacturer set-tops.
8. TRAINING, SUPPORT AND MAINTENANCE
8.1 Maintenance. Wink agrees to make available to Manufacturer, at no
charge to Manufacturer, all Updates released by Wink and permit
Manufacturer to distribute Updates to its Subdistributors and
Submanufacturers for their use consistent with this Agreement,
Manufacturer shall promptly notify its Submanufacturers and
Subdistributors of the availability of each Update and
Manufacturer shall require its Submanufacturers and shall use
reasonable commercial efforts to require its Subdistributors to
promptly begin using each such Update in place of the previous
version of the Licensed Engine. Manufacturer shall be responsible
for making such Updates available to its customers,
8.2 Technical Support. Wink shall make available to Manufacturer
technical support, as set forth in Exhibit C. Wink may
subcontract its technical support obligations and shall notify
Manufacturer as to the appropriate contact to obtain support.
8.3 Equipment. In order to facilitate Wink's performance of the
support activities contemplated herein, Manufacturer shall, at
its own expense, continue to provide Wink with Equipment (as
defined in Section 2.3). In the event that Manufacturer fails to
provide Equipment or is late in the performance of its
obligations with respect to this Section and such delay affects
Wink's obligations under this Section, Wink's performance of such
affected obligations shall be delayed by an appropriate time
period.
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8.4 Training. Wink shall make available, at Wink's facilities,
training for Manufacturer employees from time to time as mutually
agreed, at rates and costs to be agreed upon but not to exceed
$1000 per person per day.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and
shall continue in full force and effect until the earlier of (a)
five (5) years from the first commercial shipment of Wink-enabled
DIRECTV System Receiver by Manufacturer, and (b) the term of the
Master Agreement. The term of this Agreement may be extended by
mutual agreement of the parties. Notwithstanding the foregoing,
if the Master Agreement is extended, this Agreement shall be
automatically extended until the Master Agreement lapses or is
terminated. Wink agrees to provide written notice to Manufacturer
in the event of any such extension of the Master Agreement.
9.2 Termination for Cause. If either party materially defaults in the
performance of any provision of this Agreement, the
non-defaulting party may give written notice to the defaulting
party that if the default is not cured within thirty (30) days
this Agreement shall be terminated, If the non-defaulting party
gives such notice and the default is not cured within thirty (30)
days, this Agreement shall terminate immediately upon notice by
the non-defaulting party. For the purposes of determining a
material default by Wink based on late or non-delivery of a
Deliverable, Wink shall not be in material default of this
Agreement unless it fails to deliver a Deliverable within six (6)
months of the date such Deliverable is due; provided that
Manufacturer has fulfilled all its obligations with respect to
such Deliverable and in such event the cure period provided for
above shall be ninety (90) days.
9.3 Termination for Insolvency. Either party may terminate this
Agreement upon written notice upon: (i) the institution by or
against the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of the
other party's debts, (ii) the other party's making an assignment
for the benefit of its creditors, or (iii) the other party's
dissolution or ceasing to conduct business as a going concern.
9.4 Effect of Termination. Upon the expiration or termination of this
Agreement, the following provisions shall take effect:
9.4.1 Subject to the provisions of Section 9.5, the rights and
licenses granted to Manufacturer under this Agreement
shall automatically terminate, and Manufacturer and its
Subdistributors shall immediately
77
cease distribution of Licensed Engines and use of the Wink
Trademarks, provided, however, that if the Agreement is
terminated by Manufacturer due to Wink's material breach or
insolvency, Manufacturer may, at its option, continue to use,
reproduce, and distribute the Licensed Engine under the right
and license granted hereunder, subject to the payment of the
royalties and other provisions of Section 4;
9.4.2 Rights of end users to use the Licensed Engine as part of a
Wink-enabled DIRECTV System Receiver shall continue in effect;
9.4.3 Within ten (10) days after such expiration or termination,
except as provided in Section 9.6, or the case where
Manufacturer elects to continue the license pursuant to Section
9.4.1 above, Manufacturer shall return, and shall certify to
Wink the return of, all copies of the Licensed Engine and all
Wink Confidential information (as defined in Section 10.1) in
its or its Submanufacturers' possession at the time of
expiration or termination. Wink shall return, and shall certify
to Manufacturer the return of, all Manufacturer Confidential
Information in its possession at the time of expiration or
termination. Notwithstanding the foregoing, Manufacturer may
except upon termination by Wink (i) maintain a single copy of
the Licensed Engine and (ii) retain any Confidential Information
necessary for support, subject to the provisions of Section 10,
solely to provide support to its permitted Subdistributors and
end users.
The parties agree to enter into a source code escrow agreement
with a mutually selected escrow agent, Wink agrees to deposit
the Wink Engine source code upon final technical acceptance of
the Wink Engine by Manufacturer. Manufacturer shall be entitled
to the release of such source code during any time period in
which: (i) Wink is subject to the jurisdiction of any bankruptcy
court or (ii) Wink is material of the provisions of section 5,
which material breach has not been cured within (90) days after
Manufacturer's written notice to Wink thereof. The foregoing is
subject, however, to the condition that Manufacturer is not at
that time in material breach of any of its obligations under
this Agreement, and such breach has not been cured within (90)
days after written notice thereof by Wink. Manufacturer shall
assume all start-up fees, annual renewal fees, deposit fees and
any and all other fees due to such escrow agent.
Upon any release of the Wink Engine source code to
Manufacturer, (i) Manufacturer shall have a non-exclusive, non-
78
[*]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
79
9.4.4 Manufacturer shall pay all outstanding amounts owed to
Wink within thirty (30) days. In the event Wink is
performing development tasks for Manufacturer at the
time of any termination, Manufacturer shall also pay to
Wink the portion of the next milestone that is
proportional to the amount of work completed by Wink for
that milestone.
9.4.5 The provisions of Sections 4.7, 5, 6, 9, 10, 11, 12, and
13 shall survive the expiration or termination of this
Agreement for any reason.
9.5 Sell-off Period. In the event of the expiration of this
Agreement or a termination by Manufacturer, Manufacturer may,
dispose of its inventory of Wink-enabled DIRECTV System
Receivers on hand, for a period not to exceed sixty (60) days
after the effective date of such expiration or termination (the
"Sell-Off Period"), and in connection therewith, Manufacturer
shall use the Wink Trademarks during the Sell-Off Period
pursuant to the provisions of Section 7.
9.6 Destruction of Inventory. Within ten (10) days after the end of
the Sell-Off Period, Manufacturer shall destroy, and shall
certify to Wink the destruction of, all copies of the Licensed
Engine in its or its Subdistributors' or Submanufacturers'
possession.
10. CONFIDENTIALITY
10.1 Obligation of Confidentiality. The parties acknowledge that each
may have access to certain information and materials concerning
the other's business, plans, customers, technology and products
that is confidential ("Confidential Information"). Each party
agrees that it shall not use in any way, for its own account or
the account of any third party, nor disclose to any third party,
except as may be expressly permitted under this Agreement, any
such Confidential Information revealed to it by the other party
and shall take every reasonable precaution to protect the
confidentiality of such information. Upon request by either
party, the other party shall advise whether or not it considers
any particular information or materials to be confidential.
10.2 Exceptions. Information shall be deemed not to be Confidential
Information hereunder if such information:
10.2.1 Is or becomes part of the public domain through no fault
or breach on the part of the receiving party;
10.2.2 Is known to the receiving party prior to the disclosure
by the disclosing party and such knowledge can be shown
by written records;
80
10.2.3 Is subsequently rightfully obtained by the receiving
party from a third party who has the legal right to
disclose it;
10.2.4 Is independently developed by the receiving party
without the use of any Confidential Information or any
breach of this Agreement;
10.2.5 Is approved for public release by the disclosing party;
or
10.2.6 Is required to be disclosed by judicial action provided
that the F receiving party has first given the
disclosing party reasonable notice of such requirement
and fully cooperates with the disclosing party in
seeking confidential treatment for any such disclosure.
10.3 Injunctive Relief. The parties acknowledge that any breach of the
provisions of this Section may cause irreparable harm and
significant injury to an extent that may be extremely difficult
to ascertain. Accordingly, each party agrees that each will have,
in addition to any other rights or remedies available to it at
law or in equity, the right to seek injunctive relief to enjoin
any breach or violation of this Section.
11. INTELLECTUAL PROPERTY, WARRANTY AND INDEMNITY
11.1 Representations and Warranties. Each party represents and
warrants that neither the execution or performance by such party
of this Agreement will violate any law, order, regulation or
ruling applicable to such party or its efforts hereunder. In
addition, Wink represents and warrants that as of the Effective
Date, no action or proceeding alleging intellectual property
infringement by the Wink Engine is proceeding against Wink.
11.2 Indemnity. Wink agrees, at its expense, to defend, or at its
option to settle, any claim, suit, action or proceeding brought
against Manufacturer, Subdistributors, and/or Customers by a
third party alleging that the Licensed Engine used as authorized
hereunder infringes the copyright, trade secret, trademark or
U.S. patent rights of such third party (an "Action"), and to pay
any settlement or final judgment entered thereon against
Manufacturer, subject to the limitations set forth hereafter.
Wink shall be relieved of its obligations hereunder unless
Manufacturer gives Wink (i) prompt written notice of an Action,
(ii) sole control over the defense or settlement of the Action
and (iii) reasonable assistance in the defense or settlement
thereof. If it is, or in the opinion of Wink may be, determined
by competent authority that the Licensed Engine or any part
thereof, or the sale, distribution or use thereof as permitted
hereunder infringes any patent, copyright, trade secret or
81
trademark of a third party or is enjoined, then Wink at its sole
option and expense may: (a) procure for Manufacturer the right
under such patent, copyright, trade secret or trademark to use,
as mentioned in this Agreement reproduce and distribute the
Licensed Engine or such part thereof or such trademark as
authorized in this Agreement; (b) replace the Licensed Engine or
such part thereof or such trademark with other suitable software
or trademark without material degradation in performance or
functionality; (c) modify the Licensed Engine or such part
thereof or such trademark to avoid infringement without material
degradation in performance or functionality; (d) if (a)(b) or (c)
are not commercially reasonable, (d) replace or modify the
Licensed Engine or portion thereof to disable the infringing
portion reducing performance or functionality but retaining some
commercial viability of the product or (e) if none of the
foregoing are commercially reasonable after diligent attempts by
Wink to pursue such alternatives, terminate this Agreement with
respect to the infringing product in whole or in part.
11.3 Limitations. The foregoing indemnity shall not apply to an Action
to the extent it arises out of (i) any modification of the
Licensed Engine by a party other than Wink, (ii) any combination
of the Licensed Engine with hardware and/or software (including
software written using the Wink Authoring Tool or using the Wink
APIs) not supplied by Wink, or (iii) any trademarks, trade names
or other brandings not supplied by Wink.
11.4 Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE
ENTIRE LIABILITY AND OBLIGATION OF WINK AND THE EXCLUSIVE REMEDY
OF MANUFACTURER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL
PROPERTY RIGHT.
12.0 INDEMNITY BY MANUFACTURER
Except with respect to any claim, suit, action or proceeding for which
Wink is obligated to indemnify under Section 11, Manufacturer agrees, at its
expense, to defend, or at its option to settle, any claim, suit, action or
proceeding brought against Wink by a third party arising out of Manufacturer's
use of the Licensed Engine or exercise of the rights and licenses granted
hereunder, and to pay any settlement or final judgment entered thereon against
Wink, subject to the limitations set forth hereafter. Manufacturer shall be
relieved of its obligations hereunder unless Wink gives Manufacturer (i) prompt
written notice upon becoming aware of the existence of any such claim, suit,
action or proceeding, (ii) sole control over the defense or settlement of such
claim, suit, action or proceeding and (iii) reasonable assistance in the defense
or settlement thereof.
13.0 GENERAL
82
13.1 Governing Law and Jurisdiction. This Agreement shall be governed
by and construed under the laws of the State of California,
without reference to conflict of laws principles.
13.2 Import & Export Controls. Manufacturer understands that Wink is
subject to regulation by agencies of the U.S. government which
prohibit export or diversion of certain products and technology
to certain countries. Any and all obligations of Wink including
without limitation obligations to provide products, technology,
documentation, or technical assistance, will be subject in all
respects to such United States laws and regulations that will
from time to time govern the license and delivery of technology
and products abroad or to foreign nationals by persons subject to
the jurisdiction of the United States. Manufacturer warrants that
it will comply in all respects with all applicable export and
re-export restrictions. Manufacturer warrants that it will not,
and will take all actions which may be reasonably necessary to
assure that its Subdistributors and end users do not, contravene
such United States laws or regulations.
13.3 No Assignment. This Agreement shall not be assigned by either
party without the prior written consent of the other party, which
consent shall not be unreasonably withheld, except that either
party may assign its rights and obligations hereunder to any
entity (i) which controls, is controlled by or is under common
control with such party or (ii) which acquires all or
substantially all of the assets or business of such party to
which this Agreement pertains, provided in both cases that such
entity shall assume in writing or by operation of law such
party's obligations under this Agreement. Subject to the
foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
13.4 Independent Contractors. The relationship of the parties
established by this Agreement is that of independent contractors,
and nothing contained in this Agreement shall be construed to (i)
give either party the power to direct and control the day-to-day
activities of the other, (ii) constitute the parties as partners,
joint venturers, co-owners or otherwise as participants in a
joint or common undertaking, or (iii) allow either party to
create or assume any obligation on behalf of the other party for
any purpose whatsoever.
13.5 Compliance with Laws. In exercising its rights under this
license, each party shall fully comply with the requirements of
any and all applicable laws, regulations, rules and orders of any
governmental body having jurisdiction over the exercise of rights
under this license.
83
13.6 Notices. All notices under this Agreement shall be in writing and
sent by (i) certified air mail, return receipt requested, postage
prepaid or (ii) commercial courier service. If properly addressed
to or delivered at the address for each party set forth above, a
notice shall be deemed given upon delivery or, where delivery
cannot be effected due to the actions of the addressee, upon
tender.
13.7 Entire Agreement. This Agreement represents the entire agreement
of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous agreements,
understandings, proposals and representations by the parties.
13.8 No Waiver. Failure by either party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement
of that or any other provision.
13.9 No Oral Modification. No alteration, amendment, waiver,
cancellation or any other change in any term or condition of this
Agreement shall be valid or binding on either party unless
mutually agreed in writing.
13.10 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions
hereof in any other language shall not be binding on the parties.
All communications and notices to be made or given pursuant to
this Agreement shall be in the English language.
13.11 Use of "Including". Use of the word "including" in this Agreement
is intended to be illustrative and not limiting.
13.12 Limitation of Liability. EXCEPT WITH RESPECT TO WINK'S
OBLIGATIONS TO INDEMNIFY FOR COPYRIGHT, TRADE SECRET OR TRADE
XXXX INFRINGEMENT CLAIMS (BUT NOT PATENT) UNDER SECTION 11, IN NO
EVENT SHALL WINK BE LIABLE TO MANUFACTURER OR ANY THIRD PARTY IN
THE AGGREGATE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID (AND
THE AMOUNTS WHICH HAVE ACCRUED HEREUNDER BUT HAVE NOT BEEN PAID)
BY MANUFACTURER HEREUNDER. IN NO EVENT SHALL WINK BE LIABLE TO
MANUFACTURER, SUBDISTRIBUTORS, AND/OR CUSTOMERS FOR LOST PROFITS,
LOSS OF DATA OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
INDIRECT DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION
SHALL APPLY EVEN IF WINK KNOWS OR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND
84
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY PROVIDED FOR HEREIN.
13.13 Counterparts. This Agreement may be executed in any number of
counterparts and when so executed and delivered shall have the
same force and effect as though all signatures appeared on one
document.
13.14 Severability. The provisions of this Agreement shall be
severable, and if any provision of this Agreement shall be held
or declared to be illegal, invalid, or unenforceable, such
illegal, invalid or unenforceable provision shall be severed from
this Agreement and the remainder of the Agreement shall remain in
full force and effect, and the parties shall negotiate a
substitute, legal, valid and enforceable provision that most
nearly reflects the parties' intent in entering into this
Agreement.
13.15 Basis of Bargain. Wink and Manufacturer acknowledge and agree
that Wink's entering into this Agreement and the amount of
Manufacturer's royalty hereunder have been done or set in
reliance upon the limitations of liabilities and disclaimers of
warranty set forth in this Agreement, and that the same form an
essential basis of the parties' bargain.
IN WITNESS WHEREOF, the parties by their duly authorized representatives
have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. MANUFACTURER
By: By:
Name: Name:
Title: Title:
85
EXHIBIT A-1
[SAMPLE] STATEMENT OF WORK
1. Device
Wink and Manufacturer agree that Wink shall port the Wink Engine to
the Manufacturer DIRECTV System Receiver.
2. Specifications
See attached Addendum to Exhibit A-1
3. Development Activities and Schedule
Responsible Completion Milestone
Task Party Date Payment
Signing of Agreement Manufacturer no
Delivery of development equipment as required to a Manufacturer no
location specified by Wink
Delivery by Wink of Project Plan for development of Wink no
Wink Engine Version 2.0 as customized for
Manufacturer
First Delivery of Equipment to Wink Manufacturer no
On-site support at Wink to set up Equipment Manufacturer no
Delivery by Wink of Alpha version of object code of Wink no
Wink Engine Version 2.0 as customized for __
Final Delivery of Equipment to Wink Manufacturer no
Delivery by Wink of Beta version of object code of Wink Wink no
Engine Version 2.0 as customized for
Acceptance of final version of object code of Wink Manufacturer no
Engine Version 2.0 as customized for
4. Materials and Equipment
First Delivery of Equipment
To be defined
Final Delivery of Equipment
To be defined
5. Payment Schedule: All amounts in US Dollars.
86
EVENT NRE PAYMENT ROYALTY PAYMENT
Signing of Agreement [ $0] [ $0 ]
Delivery by Wink of Project Plan for development [ $0 ] [ $0 ]
of Wink Engine Version 2.0 as customized for
Manufacturer____
Delivery by Wink of Alpha version of object code [ $0 ] [ $0 ]
of Wink Engine Version 2.0 as customized for
Acceptance of final version of object code of Wink [ $0 ] [ $0 ]
Engine Version 2.0 as customized for
Totals: [ $0 ] [ $0 ]
WINK COMMUNICATIONS INC MANUFACTURER
By: By:
Name: Name:
Title: Title:
87
EXHIBIT B
PROPRIETARY NOTICES
1. Screens displayed to the End-Users from time to time shall contain, at a
minimum, the following:
Copyright 199_ Wink Communications, Inc.
Patent Pending.
2. Wink, the Wink eye and "i" shall be marked with either "Registered in U.S.
Patent and Trademark Office" or with the letter R enclosed within a circle.
88
EXHIBIT C
SUPPORT
The following provisions govern the support to be provided by Wink to
Manufacturer for the Licensed Engine.
1. Contact People. Manufacturer shall appoint two (2) individuals within
its organization who will serve as primary contacts between it and Wink
to receive support ("Contact People"). All of Manufacturer's support
inquiries shall be initiated through the Contact People.
2. Support Obligations. Manufacturer will be responsible for providing
First Level Support and Second Level Support (as defined below) to its
Subdistributors and other customers with respect to the Licensed Engine.
Wink will provide Third Level Support (as defined below) for the
Licensed Engine in the manner specified in these support terms.
3. Support Levels. Levels of customer support are defined as follows:
(a) "First Level Support" shall mean: (i) generating product
information; (ii) providing configuration support; (iii)
collection of relevant technical problem identification
information; (iv) filtering user errors from real technical
problems; and (v) solving simple problems by reference to
existing documentation.
(b) "Second Level Support" shall mean First Level Support plus
providing the following areas of support: (i) isolating the
problem to determine that it is a problem with the Licensed
Engine; (ii) recreating the problem in a lab simulation and/or
through interoperability testing; (iii) determining whether or
not the problem is a defect; (iv) collecting and analyzing
diagnostic data; and (v) defining an action plan with the
customer to solve the problem.
(c) "Third Level Support" shall mean: (i) confirming duplication of
the problem and validating that it's a defect; (ii) fixing
software bugs or generating workarounds.
4. Third Level Support.
(a) Escalation. Manufacturer can escalate a problem to Third Level
Support, once Manufacturer exhausts the items enumerated above
in First and Second Level Support. When escalating, Manufacturer
shall provide enough information to allow Wink to duplicate the
problem.
89
(b) Assignment of Severity Level. When a Third Level support call
comes into Wink from Manufacturer, the parties will mutually
assign a Severity Level as specified below that describes the
nature of the call and how critical it is to Manufacturer's
customer base(s).
(c) Response: Wink agrees to use commercially reasonable efforts to
meet the response times for the respective problems commensurate
with the severity of the error as specified below:
Severity First Response Frequency of
Level Definition Time Status Update
Critical Bug causes a crash and/or data 4 business hours Each business day
loss to a part or all of the system
High Bug causes a feature to violate a 4 business hours Each business day
performance specification (i.e.,
feature consistently does not work
as specified, or not at all)
Medium Bug causes an occasional failure 1 business day Weekly
of a feature (i.e., feature fails in
specific cases)
Low Bug is characterized by a "glitch" 1 business day Weekly
that does not affect a feature's performance
(e.g., confusing messages, typo-graphical
errors, visual abnormalities, etc.)
Doc Error Error in documentation 2 business days
(d) Support. Wink agrees to provide Third Level Support from 9 a.m.
to 6 p.m. (San Francisco time) on business days ("Support
Hours"). Support requests shall be submitted by Manufacturer via
email.
5. Exclusions. Wink's support obligations shall not extend to problems that
result from: (i) Manufacturer's failure to implement any Updates to the
Licensed Engine which are provided by Wink; (ii) changes to the
operating system or environment or Manufacturer Devices which adversely
affect the Licensed Engine; (iii) any alterations of or additions to the
Licensed Engine performed by parties other than Wink or Wink's
authorized Subcontractors; (iv) use of the Licensed Engine in a manner
inconsistent with the applicable Specifications or in a manner for which
such Licensed Engine was not intended; or (v) combination of the
Licensed Engine with
90
other products not supplied by Wink, which problems do not affect the
Licensed Engine standing alone. Errors arising from the foregoing may be
addressed by Wink at its then current hourly rates.
6. Fees. In consideration for the support of the Licensed Engine provided
by Wink under this Exhibit, Manufacturer shall pay an annual fee of
25,000 as prepaid support for fees for up to 125 hours of support. Any
additional support will be provided at Wink's then current hourly rates.
The fee does not include travel expenses (air, lodging, food, local
transport). The first support period will begin on the date of Final
Acceptance and the fees for such period are due upon execution of this
Agreement. The fees for any renewal period are due in advance within 60
days prior to the beginning of the renewal period. Travel availability
is not guaranteed. The support terms will automatically renew unless one
party notifies the other of its intent not to renew.
7. Change. These support terms are subject to change annually. Any changes
will be documented in writing at least 90 days prior to the renewal
date.
91
EXHIBIT J.: EQUIPMENT PROVIDED BY WINK
- Sun Spare Servers (primary + back-up) as necessary to operate the Wink
Broadcast Server and Server Module Engine for the Interactive Wink
Programs supplied by Programmers and the Wink virtual Channels.
- Norpak VBI readers for all incoming national video signals which contain
Interactive Wink Programs and which DIRECTV has agreed to pass through
to Wink-enabled DIRECTV System Receivers (including 2 spare units that
can be "swapped" for defective ones by DIRECTV staff)
- All modems, servers and other equipment associated with the Wink
Response Network
Proprietary and Confidential
36
92
EXHIBIT K.: WINK RESPONSE ROUTING PRICING
All products and services are billed Net/45. A Purchase Response shall be
defined as any Wink Transaction which constitutes an agreement to purchase a
product or service, regardless of the method of payment. An RFI Response shall
be defined as any other Wink Transaction. A Poll Response shall be defined as a
Wink Response generated by a Wink "vote/poll" script. The purpose of Poll
Responses is to measure responses to specific questions, and may serve to
aggregate both multiple choice and free form responses.
WINK TRANSACTIONS/MO. PRICE/WINK TRANSACTION
PURCHASE RESPONSES $[*] min./mo. per Interactive Wink Program
creating Purchase Responses
1-5,000 [*]
5,001 - 25,000 [*]
25,001 - 100,000 [*]
100,001 - 250.000 [*]
250,001 - 500,000 [*]
500, 001 + [*]
RFI RESPONSES $250 min./mo. per Interactive Wink Program
creating RFI Responses
1-5,000 [*]
5,001 - 25,000 [*]
25,001 - 100,000 [*]
100,001 - 250,000 [*]
250,001 - 500,000 [*]
500, 001 + [*]
Polls - report only $[*] min./mo. per Interactive Wink Program creating Poll
Responses
1-250,000 Wink Responses [*]
250, 001 + [*]
1. Minimum monthly charges per application include UIC (Universal ICAP
code) registration.
2. All volume price breaks are based on DIRECTV's monthly transaction
volume by response category. The price breaks are based on the "average"
for the month. That is, the lowest price applies to all transactions for
the month.
Purchase and Request Response Fees Include;
1. Daily name & address lists delivered by fax, e-mail, or electronic FTP
or mailbox.
2. UIC and application registration.
3. Standard report showing number of Wink Responses per day per Interactive
Wink Program per city.
Polls
The fixed charge includes UIC and application registration, and a
standard reporting that summarizes all Poll responses by type by city.
If the application asks the viewer for telephone prefix or zip code, the
summary includes those totals.
Custom Usage Reports or other Custom Reporting
Custom reports are quoted by the Wink Response Center.
Proprietary and Confidential 37
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
93
EXHIBIT M.: DIRECTV TRADEMARK AND STYLE GUIDELINES
DIRECTV Trademark and Style Guide, dated December 1998 (and as amended by
DIRECTV in the future in it's sole discretion.
Proprietary and Confidential 38
94
[ * ]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
95
EXHIBIT N
DIRECTV CUSTOMER SERVICE STANDARDS
Metrics: Wink Standard Goal
[*] [*]
Service Level (percentage of calls
answered within 30 seconds)
Attendance [*] [*]
Call Abandon Rate [*] [*]
Call Busy Rate [*] [*]
% Calls Handled [*] [*]
Average Speed of Answer [*] [*]
Average Call Handle Time [*] [*]
Average Call Hold Time [*] [*]
Longest Call Waiting [*] [*]
% Calls Transferred [*] [*]
QUALITY:
EC calls are rated at a Meets or Ex [*] [*]
% of calls where EC is polite and r [*] [*]
% of calls that have one call resol [*] [*]
LEGAL COMPLIANCE [*] [*]
Call Monitoring per EC per month [*] [*]
SYSTEMS:
Telemarketing - available [*] [*]
Telecom - available [*] [*]
Networks - available [*] [*]
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Proprietary and Confidential 39
96
FIRST AMENDMENT TO THE MASTER AFFILIATION AGREEMENT
BY AND BETWEEN
WINK COMMUNICATIONS, INC. AND DIRECTV, INC.
This First Amendment (the "First Amendment") to that certain MASTER
AFFILIATION AGREEMENT dated as of December 22, 1998 (the "Agreement") by and
between Wink Communications, Inc., a California corporation ("Wink") with
offices at 0000 Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and DIRECTV, Inc., a
California corporation with offices at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xx Xxxxxxx,
XX 00000 ("DIRECTV"), is hereby made and entered into this 8th day of March,
1999, as follows:
1. Amendment. For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto amend the
Agreement, pursuant to Section 14.2 thereof, as hereby follows;
A. Section 5.8. The Paragraph immediately following Paragraph
(d) of Section 5.8 is hereby amended to read as follows:
If DIRECTV HAS NOT REACHED A MINIMUM OF ONE MILLION (1,000,000)
WINK-ENABLED DIRECTV SYSTEM SUBSCRIBERS BY THE FIRST ANNIVERSARY OF THE
MEASUREMENT DATE, BUT DOES REACH A MINIMUM OF ONE MILLION (1,000,000)
WINK-ENABLED DIRECTV SYSTEM SUBSCRIBERS WITHIN EIGHTEEN (18) MONTHS OF
THE MEASUREMENT DATE, AND (x) XXXXXX NETWORK SYSTEMS, PHILIPS CONSUMER
ELECTRONICS OR SONY ELECTRONICS SHIPS OVER 10,000 UNITS OF A
WINK-ENABLED DIRECTV SYSTEM RECEIVER TO RESIDENTIAL CUSTOMERS PRIOR TO
MARCH 31, 2000, AND (y) SUCH WINK-ENABLED DIRECTV SYSTEM RECEIVER MODEL
IS REASONABLY ANTICIPATED BY SUCH PARTICIPATING MANUFACTURER TO BE ITS
HIGHEST VOLUME MODEL DURING THE APPLICABLE MODEL YEAR, WINK AGREES TO
GUARANTEE CERTAIN REVENUES FOR DIRECTV AS FOLLOWS:
2. Counterparts. This First Amendment may be executed in counterparts,
each of which shall be deemed an original, and all such counterparts together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this First Amendment
through their duly authorized representatives as of the date first set forth
above.
ACCEPTED AND AGREED TO:
Wink Communications, Inc. DIRECTV, Inc.
By: /s/ XXXXX THYGESN By: /s/ XXXXXXX XXXXX
--------------------------------- -------------------------------------
Name: Xxxxx Thygesn Name: Xxxxxxx Xxxxx
------------------------------- -----------------------------------
Title: SVP Title: Vice President
------------------------------ ----------------------------------
1
