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EXHIBIT 10.8
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the Eighth day of December, 1997, by and between
Wink Communications, Inc., a California corporation ("Wink"), whose address is
0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and Cable News Network Inc., a
Georgia corporation ("Programmer"), whose address is Xxx XXX Xxxxxx, Xxxxxxx, XX
00000.
1. GRANT OF LICENSE
1.1 Wink hereby grants to Programmer the non-exclusive license to use Wink
ITV Studio, Server Studio, Wink ITV Broadcast Server, and Wink provided
Server Modules version 1.0 and 1.x updates (hereinafter collectively
referred to as "Wink Software") to deliver interactive program(s)
developed by or on behalf of Programmer which utilize the vertical
blanking interval ("VBI") or an MPEG private data stream provided.
concurrently with the corresponding video signal and are compliant with
the Wink interactive communications application protocol described in
Exhibit D, Attachment 1 attached hereto ("Interactive Programs") to the
subscribers of any multi channel video operator in the United States or
Canada with whom Programmer has an agreement for carriage of
Programmer's First Programming Services, as described in Exhibit A
("System Operators").
1.2 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, which consent shall not be unreasonably denied or
withheld.
1.3 Programmer can only use the Wink Software to provide Interactive
Programs with the video programming services listed in Exhibit A.
Programmer must notify Wink in writing at least 30 days prior to
commencing transmission of Interactive Programs with a video programming
service other than the First Programming Service listed in Exhibit A.
Programmer agrees to adhere to the technical specifications for the
insertion of Interactive Programs provided in Exhibit A. Exhibit A,
including the programming services enabled to insert Interactive
Programs in their video signal, may be amended from time to time by
written mutual agreement of the parties.
2. TERM
2.1 The term of this Agreement shall commence on the date of execution of
this Agreement and terminate twelve (12) months after, the first airing
of Programmer's Interactive Programs on the programming service listed
as the First Programming Service in Exhibit A ("First Air Date").
2.2 Programmer has the option to use the Wink Software to provide
Interactive Programs with the Other Programming Services listed in
Exhibit A within twelve months following the First Air Date subject to
the pricing schedule defined in Exhibit F, the programming requirement
defined in section 3.5 below, and provided that such programming would
not be eligible for the payments from Wink defined in section 3.8.
2.3 Programmer may elect to renew this Agreement for additional successive
two (2) year periods on the terms and conditions herein or as otherwise
agreed. Programmer must notify Wink of its intent to renew the Agreement
at least ninety (90) days prior to the end of the then current term.
3. INTEGRATION AND PROGRAMMING
3.1 Unless Wink agrees in writing to waive this requirement, Programmer will
distribute the Interactive Programs with the national feed for the First
Programming Service defined in Exhibit A, or in the absence of a single
national feed, through the feed with the largest household reception
area in the United States and on any additional feeds that reach
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at least 5% of Programmer's potential audience. Such distribution will
take place through Programmer's national uplink or broadcast facilities.
3.2 Programmer and Wink agree to collaborate in good faith to enable the
installation and integration of the Wink Software into Programmer's
facilities, and to ensure the reliable transmission of the Interactive
Programs. Wink shall provide training to Programmer in accordance with
Exhibit C and, at no cost to Programmer, any additional on-going
training necessary to ensure successful implementation of the
Interactive Programs. Wink is responsible for providing all equipment
necessary to run the Wink ITV Broadcast Server and Wink Server Module to
enable insertion of Interactive Programs into the appropriate Video
signals. This equipment is the property of Wink and must be surrendered
by Programmer upon the termination of this Agreement. Programmer is
responsible for providing the equipment necessary to run Wink ITV Studio
and Server Studio as specified in Exhibit E. Exhibit E provides a
preliminary list of equipment for which Wink and Programmer are
responsible, and is subject to a final site visit by Wink's Operations
department. Programmer will be presented with a final list of equipment
no later than 21 days following the execution of this agreement, subject
to completion of the site visit referred to above. Any additional
equipment that is required shall be provided by Wink at its cost.
3.3 Upon airing of each Programming Service Wink agrees to provide at no
cost to Programmer weekly usage reporting to Programmer of all response
traffic generated by Programmer viewers and collected by Wink's Data
Center. Programmer accepts Wink's terms for all other response traffic
and reporting, including polling by zip code and polling by system as
outlined in Exhibit B.
3.4 Beginning on the First Air Date, Programmer agrees to air Interactive
Programs on the First Programming Service in the following two forms:
(a) a news headline application with an associated "virtual channel"
that viewers access by hyperlinking from Programmer's video
channel or by tuning directly. The virtual channel and headline
application must feature news headlines and stories updated at
least once every two to three hours or as frequently as the
underlying data sources are updated, and be available to viewers
24 hours a-day, 7-days a week. The headline application and
virtual channel will contain content, and if applicable,
advertisements, generated exclusively by Programmer. Programmer
will provide this headline service and this virtual channel in
the VBI or MPEG of either CNN or CNN Headline News, with the
understanding that either application may be inserted on either
channel. Finally, Wink may - at it's sole option, and at its cost
- choose to electronically distribute and locally insert this
virtual channel service in the VBI of either CNN or Headline
News.
(b) program-related enhancements to at least [ * ]. Such [ * ]
enhanced programming may include repeat programming. Programmer
will use reasonable efforts to air at least [ * ] of the
enhanced video programming between 7 PM and midnight Eastern Time
over the course of the week. Programmer has complete discretion
over which programs are enhanced with Interactive Programs.
3.5 Programmer agrees that any Other Programming Services listed in Exhibit
A in connection with which Programmer elects to provide Interactive
Programs must air a minimum of [ * ] of Interactive Programs a week.
Programmer may decide which shows include Interactive Programs, as long
as the total number of hours per week is reached.
3.6 Programmer is responsible for payment, if applicable, to third party
providers of news, content, or sports data to enable the creation or
transmission of Interactive Programs. Wink will, within thirty (30) days
following request, reimburse Programmer for actual expenses incurred by
Programmer to secure the right to transmit such third party
----------
* 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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data as part of Wink Interactive Programs, up to a total amount of
[ * ]. All requests for such reimbursements must be submitted to Wink,
in writing, with actual receipts attached. If Programmer determines,
subsequent to the execution of this Agreement, that such fees Will
exceed the [ * ] maximum, Wink may elect to reimburse those fees or
terminate this Agreement in accordance with the terms set forth in this
Section 3.6. Programmer agrees to use its reasonable efforts to
eliminate or minimize such third party data fees.
Notwithstanding anything herein to the contrary, upon receipt of written
notice by Programmer that Wink intends to terminate the Agreement in
accordance with this Section 3.6, Programmer shall have the right to pay
all fees that exceed the [ * ] maximum and Wink's right to terminate the
Agreement will immediately be withdrawn. Programmer will notify Wink
within thirty (30) days following receipt of such notice as to whether
it intends to pay such fees. If Programmer elects not to pay such fees
and Wink terminates the Agreement prior to the First Air Date, upon
termination (1)[ * ], (ii) Wink shall reimburse Programmer [ * ] per
moth for any actual salary costs (excluding benefits) incurred by
Programmer as a result of employing a full time staff member to work
exclusively on Wink related Interactive Programs, and (iii) Programmer
shall return to Wink all equipment provided by Wink pursuant to Section
3.2. If Programmer elects not to pay such fees and Wink terminates the
Agreement after the First Air Date, upon termination, (i) Programmer
shall retain the [ * ] paid by Wink pursuant to Section 3.8(b), (ii)
Wink shall pay Programmer [ * ] per month for each month that
Interactive Programs aired during the term of the Agreement (Wink shall
receive a credit against such amount for any quarterly payments made by
Wink to Programmer pursuant to Section 3.8(b)), (iii) Wink shall pay
Programmer [ * ] as reimbursement for rights fees incurred by
Programmer, (iv) Wink shall reimburse Programmer [ * ] per month for any
actual salary costs (excluding benefits) incurred by Programmer as a
result of employing a full time staff member to work exclusively on Wink
related Interactive Programs (Wink shall receive credit against such
amount for any payments made by Wink to Programmer pursuant to Section
3.8(a)), and (v) Programmer shall return to Wink all equipment provided
by Wink pursuant to Section 3.2.
3.7 The parties expect that the Interactive Programs defined in 3.4.a and
3.4.b will require bandwidth equivalent to one VBI line for the program
synchronous Interactive Programs described in 3.4.b and one VBI line for
the 24 x 7 headline news and virtual channel application, or two in
total. Programmer agrees to consider the allocation of one additional
VBI line for the virtual channel application at a later date. VBI for
pro-synchronous applications must be allocated on CNN only to enhanced
CNN programming. Virtual channel VBI may be allocated on either CNN or
Headline News, if Programmer determines CNN VBI allocation to be
constrained. Programmer may elect to use additional VBI lines in it's
sole discretion.
3.8 Wink agrees to provide Programmer with:
[ * ]
3.9 Wink agrees that any Interactive Programs created or developed by or on
behalf of Programmer, with or without the assistance of Wink staff
members, will remain the intellectual property of Programmer including,
but not limited to, all copyrights, patents, or trade secrets therein.
Wink agrees that Programmer may license Interactive Programs (or
derivatives thereof) to third parties on any terms that the Programmer
and the third party. can mutually agree upon. Programmer can not
sub-license Wink Software, or act as an agent for Wink.
4. RATES AND DEPLOYMENT
4.1 Programmer agrees to provide Interactive Programs in accordance with the
terms of this Agreement.
4.2 If Programmer elects to renew this Agreement, Programmer agrees to remit
the license fees and other payments, if any, as described in Exhibit C,
or as otherwise negotiated, on a timely basis.
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4.3 Programmer agrees to provide the Interactive Programs to any System
Operator under the terms described in Exhibit D, and agrees that Wink
may provide a copy of Exhibits A and D to any System Operator as
evidence of Programmer's agreement to supply the Interactive Programs
under such terms.
4.4 Programmer may choose to utilize other products and services of Wink
from time to time. These services will be extended by Wink to Programmer
at the then prevailing retail rate.
5. PAYMENT TERMS
5.1 On or before the thirtieth (30th) day following receipt of invoice
throughout the term of this Agreement, Programmer shall remit to Wink
all fees owed for licenses provided and services rendered in the
previous month, if any, according to the price schedules provided in
Exhibit C.
5.2 Past due payments shall bear interest at a rate equal to the lesser of
(i) one and one-half percent (1-1/2%) per month or (ii) the maximum
legal rate permitted under law, and Programmer shall be liable for all
reasonable costs and expenses (including, without limitation, reasonable
court costs and attorneys' fees) incurred by Wink in collecting any past
due payments.
6. PROMOTION AND RESEARCH
6.1 The parties agree to use reasonable efforts to issue a press release by
December 10, 1997. Wink will provide Programmer with a draft of this
release by December 3, 1997.
6.2 Wink agrees to provide Programmer with notice within (30) days of new
System Operators having enabled their subscribers to receive
Programmer's Interactive Programs.
6.3 Wink agrees to promote and feature Programmer's Interactive Programs in
Wink's marketing literature, during meetings with cable operators and
the press, and during industry trade shows, provided that any materials
produced by Wink which feature screen shots, logos or video clips
belonging to Programmer or appearing on Programmer's network(s) shall be
subject to Programmer's prior written approval. In addition, Wink agrees
that mention of Programmer's name or mention of Programmer's Interactive
Programs in such meetings and during such industry trade shows will be
in a manner consistent with previously approved announcements and actual
airings of Programmer's Interactive Programs with the understanding that
any written press announcements will be subject to Programmer's written
approval. Wink will also use reasonable efforts to assist Programmer in
achieving it's marketing objectives in materials prepared by third
parties, such as cable equipment manufacturers and cable operators.
Programmer agrees to serve as a press reference for Wink during the
effective term of the agreement.
6.4 Programmer agrees to use reasonable efforts to cooperate with Wink and
System Operators in promoting Programmer's Interactive Programs. Wink
and System Operators may prepare marketing materials relating to the
Interactive Programs and may use Programmer's name, logo and such screen
shots and video clips as may be selected and/or cleared by Programmer
(collectively, "Programmer's Marks") from the Interactive Programs in
accordance with the requirements of Section 6.3 above. Wink hereby
acknowledges and agrees that, as between Wink and Programmer, Programmer
is the sole owner of all right, title and interest in and to the
Programmer's Marks including, but not limited to, trademarks and
copyrights. All uses of the Programmer's Marks shall inure to the
benefit of Programmer. Upon any expiration or termination of this
Agreement, Wink shall delete and discontinue all use of the Programmer's
Marks. At no time during or after the term of this Agreement shall Wink
challenge or assist others to challenge the Programmer's Marks or the
registration thereof or attempt to assist another in the attempt to
register any trademarks, marks or similar rights for marks the same as
or confusingly similar to the Programmer's Marks.
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6.5 Wink may, from time to time, undertake marketing tests and surveys,
rating polls and other research in collaboration with Programmer.
Programmer shall provide Wink with reasonable assistance at no cost to
Programmer in conducting such research with respect to Programmer's
viewers. Programmer agrees that Wink will have access to all such
research regarding the deployment, launch, and usage of Wink service by
Programmer viewers. Wink agrees to provide copies of final reports from
such research activity to Programmer at no cost to Programmer.
6.6 Programmer understands and accepts that Wink will be providing summary
reports on viewer responses to the Interactive Programs to System
Operator(s) for responses that originate from such System Operator's
subscribers, and to advertisers and other parties for responses that
solely originate from Interactive Programs paid for or sponsored by such
parties. Wink agrees that reports providing specific data regarding
individual viewer responses to Programmer's Interactive Programs,
including, but not limited to, data on Wink viewer responses to
advertising on Programmer's Programming Services, will not be made
available to other broadcast or cable networks, the press, analysts or
any other third party, except in aggregated form that does not identify
Programmer or specific Programmer viewer data. Individual viewer
responses may be provided to advertisers and other parties for the
purpose of fulfilling viewer requests.
7. WARRANTY
Wink hereby represents and warrants to Programmer that the Wink Software
(and subsequent revisions and upgrades to same provided by Wink to
Programmer) will operate and perform in accordance with all published
specifications with respect thereto.
8. INDEMNIFICATION
Wink shall indemnify, defend and hold harmless Programmer, its parents,
subsidiaries, and affiliates and their respective officers, directors,
employees and agents from and against any and all damages, liabilities,
costs and expenses (including, without limitation, reasonable attorneys
fees and amounts paid in settlement) they may suffer or incur which
arises out of or as a result of any, claim, demand, action, suit or
proceeding in which it is alleged that the Wink Software (and subsequent
revisions and upgrades to same provided by Wink to Programmer) or any
part thereof violates or infringes any patent or copyright or other
intellectual property right of any third party or constitutes a
misappropriation of any third party's trade secrets.
9. NOTICES
All notices, statements, and other communications given hereunder shall
be in writing and shall be delivered by facsimile transmission, personal
delivery, certified mail, return receipt requested, or by next day
express deliver, addressed, to the addresses provided in the first
paragraph of this Agreement, and to the attention of:
If to Wink:
Vice President, Content
Facsimile: 000-000-0000
If to Programmer:
Xxxxx Xxxxxx
CNN Interactive/10 South
Vice President, Business Development
Facsimile: 000-000-0000
With a copy to:
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General Counsel
The date of such facsimile transmission, telegraphing or personal
delivery or the next day if by express delivery, or the date three (3)
days after mailing, shall be deemed the date on which such notice is
given and effective.
10. WINK TRADEMARKS
All rights, title and interest in and to the Wink Software, related
thereto shall remain the property of Wink. Further, Programmer
acknowledges that all names, logos, marks, copyright notices or
designations utilized by Wink in connection with the service are the
sole and exclusive property of Wink, and no rights or ownership are
intended to be or shall be transferred to Programmer.
11. REPRESENTATION
11.1 Wink represents and warrants to Programmer that (i) it is a corporation
duly organized and validly existing under the laws of the State of
California; (ii) Wink has the corporate power and authority to enter
into this Agreement, to fully perform its obligations hereunder and to
grant the rights provided herein to Programmer (iii) Wink is under no
contractual or other legal obligation which in any way interferes with
its ability to fully, promptly and completely perform hereunder.
11.2 Programmer represents and warrants to Wink that (i) Programmer is a
corporation duly organized and validly existing under the laws of the
State of Georgia (ii) Programmer has the requisite power and authority
to enter in this Agreement and to fully perform its obligations
hereunder; and (iii) Programmer is under no contractual or other legal
obligation which in any way interferes with its ability to fully,
promptly and completely perform hereunder.
12. CONFIDENTIALITY
12.1 Each party agrees that it will not use, except in the performance of its
obligations under this Agreement, and will not disclose or give to
others, any of the other party's Confidential Information (as defined
below). Without limiting the generality of the foregoing, each party
will (i) restrict the disclosure of the other party's Confidential
Information to those of its employees who require such information for
purposes of performing its obligations hereunder, (ii) inform each such
employee of the confidential nature of the information disclosed, (iii)
use reasonable efforts to prevent the use or disclosure by its employees
of such Confidential Information, except as provided herein, and (iv)
promptly notify the other party of any use or disclosure of the
Confidential Information whether intentional or not, which violates the
provisions of this Paragraph 12.1 For purposes of this Agreement, the
term "Confidential Information" means all technical, business and other
information disclosed by one party to the other that derives economic
value, actual or potential, from not being generally known to other
persons that is designated confidential, including, without limitation,
technical and non-technical data, devices, methods, techniques,
drawings, processes, computer programs, algorithms, methods of
operation, financial data, financial plans, product plans, and lists of
actual or potential customers or suppliers. Confidential Information
does not include information which does not constitute a trade secret
under applicable law after the second anniversary date of the expiration
of this Agreement. The parties agree to keep the terms of this Agreement
confidential, but acknowledge that certain disclosures may be required
by law.
12.2 [ * ]
12.3 Programmer understands and acknowledges that Wink may provide copies of
Exhibits A and D to System Operators.
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13. TERMINATION
13.1 Except as otherwise provided herein, neither Programmer nor Wink may
terminate this Agreement except upon thirty (30) days prior written
notice and then only if the other has made a misrepresentation herein or
breaches any of its material obligations hereunder and such
misrepresentation or breach (which shall be specified in such notice) is
not or cannot be cured within thirty (30) days following receipt of such
notice.
13.2 Upon expiration of the term (including any extensions thereof) of this
Agreement or upon the termination of this Agreement or of any license
granted hereunder for any reason, all rights of Programmer to use the
Wink Software will cease and Programmer will immediately and on
reasonable terms and with reasonable notice (i) grant to Wink access to
its business premises and the Wink Software and allow Wink to remove the
hardware (which removal shall be done with as little disturbance as
possible to Programmer's business operations), (ii) purge all copies of
all Wink Software from all computer processors or storage media on which
Programmer has installed or permitted others to install such Wink
Software, and (iii) when requested by Wink, certify to Wink in writing,
signed by an officer of Programmer, that all copies of the Wink Software
have been returned to Wink or destroyed and that no copy of any Wink
Software remains in Programmer's possession or under its control.
13.3 Programmer has the right to suspend the airing of Interactive Programs
if the transmission interferes with the airing of Programmer's video
programming or Wink fails to provide weekly reports regarding usage of
Programmer's Interactive Programs, and may continue such suspension
until Wink has resolved such problems to Programmer's satisfaction.
14. GENERAL
The parties agree that in the event it is necessary to employ attorneys
to enforce the terms of this Agreement, the prevailing party in any
lawsuit shall be entitled to an award of reasonable attorneys' fees and
court costs.
a) This Agreement may not be assigned without prior written mutual
consent of Programmer and Wink.
b) This Agreement may be amended only by an instrument in writing,
executed by Programmer and Wink.
c) This Agreement will be governed in all respects by the laws of
the State of Georgia.
d) This Agreement represents the entire agreement between the
parties and supersedes and replaces all prior oral and written
proposals, communications and agreements with regard to the
subject matter hereof between Programmer and Wink.
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IN WITNESS WHEREOF, the parties by their duly authorized representatives
have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. Cable News Network Inc.,
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxx Xxxxxx
Title: President, CEO Title: VP Level., CNN Interactive
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EXHIBIT A: PROGRAMMING SERVICES
DESCRIPTION OF PROGRAMMING SERVICES:
NAME START OF WINK VIDEO ICAP VIRTUAL INSERTION
PROGRAMMING* (A/D) LOCATION CH? POINT
First Programming Service
CNN February-1, 1998 Analog 1 VBI Line* No Atlanta
CNN/HN February 1, 1998 Analog 1 VBI Line* Yes Atlanta
*As described in Paragraph 3.7 of this Agreement
Other Programming Services
CNNfn XXX XXX XXX XXX Atlanta
CNNSi XXX XXX XXX XXX Atlanta
CNN En Espanol XXX XXX XXX XXX Atlanta
These programming services may be added subject to pricing in Exhibit F under
Wink's standard Charter Programmer terms.
Contact Information:
ISSUE ADDRESS CONTACT(S) PHONE /FAX/E-MAIL
Technical Xxxxx Xxxxxxx
Additional Contact Info: -TBD
*Subject to successful implementation and functioning of the Wink Software
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EXHIBIT B: WINK RESPONSE CENTER SERVICES
POLLS BY ZIP - report only [ * ]
1-100,000 [ * ]
100,001 + [ * ]
POLLS BY SYSTEM - report only. [ * ]
[ * ]
1-250,000 [ * ]
250,001 + [ * ]
1. Minimum monthly charges per application include UIC (Universal ICAP
code) registration.
2. All volume price breaks are based on total monthly transaction volume by
advertiser registering for the Wink Response Network service. 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 TRANSACTION FEES INCLUDE / EXCLUDE:
1. Daily name & address lists delivered by fax, email, or electronic FTP or
mailbox.
2. UIC and application registration.
3. Standard report showing number of responses per day per ad per city.
4. Interface to standard EDI VAN for [ * ].
POLL BY SYSTEM FEES:
The fixed charge includes UIC and application registration, and a standard
reporting that summarizes all responses by type by city. If the application asks
the viewer for telephone prefix or zip code, the summary includes those totals.
FULFILLMENT EDI/API:
* Standard interface set-up fee [ * ]
* Non-standard Interface [ * ]
* Interface License/Maintenance fee [ * ]
SET UP FEES-RESPONSE SERVICES:
* Standard Cable System Billing interface [ * ]
-- or-- [ * ]
* Non-standard billing interface [ * ]
REPORT GENERATION FEES: [ * ]
RESPONSE DATA CENTER PRODUCTS:
* Purchase confirmation mailer [ * ]
* List of responders who do not respond
to purchase confirmation mailers [ * ]
* Branded envelope [ * ]
* Advertiser/Programmer Purchase Points Club [ * ]
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EXHIBIT C: WINK SOFTWARE AND SERVICES PRICING
This pricing is available to the First Programming Service only.
All on-going annual fees are paid one twelfth each month, and are due the first
of the month.
On-going Annual First Year Years 2-3 Total
Or One- Retail Price Price/ Savings/
Time-costs Price Network Network
(3 Years)
Broadcast Server On-going [ * ] [ * ] [ * ] [ * ]
Server Module On-going [ * ] [ * ] [ * ] [ * ]
Tech Support On-going [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ON-GOING [ * ] [ * ] [ * ] [ * ]
Server hardware One-time [ * ] [ * ] [ * ] [ * ]
Data Insertion Unit One-time [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ]
Installation and One-time [ * ] [ * ] [ * ] [ * ]
integration
Studio site license One-time [ * ] [ * ] [ * ] [ * ]
(5 seats)
Server Studio site One-time [ * ] [ * ] [ * ] [ * ]
license (5 seats)
Studio/Server One-time [ * ] [ * ] [ * ] [ * ]
training (3x2days)
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ]
TOTAL BOTH [ * ] [ * ] [ * ] [ * ]
The above pricing for installation and integration covers all work necessary to
enable scheduling and transmission of program enhancements based on Wink Studio
templates. It does not cover detailed integration with Programmer's ad insertion
system for the purpose of enabling enhancements to spot advertising.
OPTIONAL SERVICES
Ad insertion interface [ * ]
Custom Interface work (ad insertion and traffic systems, etc.) [ * ]
Phone training and consulting beyond standard package [ * ]
Application development [ * ]
Travel expenses are billed separately at cost.
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EXHIBIT D: PROGRAMMER'S TERMS FOR CARRIAGE OF INTERACTIVE PROGRAMS
Programmer: Cable News Network Inc.
Programming Service: CNN and CNN/Headline News
This Interactive Program Carriage Agreement ("IP Carriage Agreement") sets forth
the terms and conditions for the national distribution of Wink ITV Applications
("Interactive Programs") to any multi channel video operator in the United
States or Canada with whom Programmer has an agreement for carriage of
Programmer's video programming ("System Operator").
1. BACKGROUND
Programmer has created one or more Interactive Programs which are compliant with
the Wink Communications, Inc. ("Wink") interactive communications application
protocol set forth in Attachment 1 hereto. The Interactive Programs are
transmitted by Programmer using either the vertical blanking interval ("VBI") of
the corresponding video signal, or using MPEG private data streams provided
concurrently with the corresponding video signal(s).
System Operator distributes one or more of Programmer's signals through one or
more of the following: cable, satellite or MMDS (wireless cable).
2. EFFECTIVE DATE AND TERM
The term of this IP Carriage Agreement shall commence on the date of
Programmer's execution of this IP Carriage Agreement and terminate three (3)
years after the First Air Date of Interactive Programs, unless Programmer and
Wink terminate their Charter Programmer Affiliation Agreement in accordance with
the terms of that agreement. This IP Carriage Agreement will automatically
terminate in the event the Charter Programmer Affiliation Agreement between Wink
and Programmer Is terminated.
3. INTEGRITY OF INTERACTIVE PROGRAMS
Programmer will ensure that the Interactive Programs meet Wink's criteria for
Wink compliant applications (See Attachment 1). Programmer agrees that each
Interactive Program shall have been either successfully tested by Programmer or
certified as compliant by Wink prior to the Delivery to System Operator for
distribution.
Programmer understands that failure to meet the above criteria could result in
System Operator suspending the distribution of one or more Interactive Programs
until such time as all Interactive Programs are certified by Wink to be in
compliance.
4. DISTRIBUTION
Programmer hereby grants System Operator a non-exclusive license during the term
of this IP Carriage Agreement to distribute the Interactive Programs delivered
in the VBI or MPEG of Programmer's video signal. Programmer agrees that each
Interactive Program shall have been either successfully tested by Programmer or
certified as compliant by Wink prior to the Delivery to System Operator for
distribution, and shall bear any associated costs of such testing.
Programmer agrees not to charge System Operator fees associated with Interactive
Programs for the term of this IP Carriage Agreement. Likewise, System Operator
agrees that no fees or charges will be due from Programmer for carriage or
retransmission of the Interactive Programs as provided for hereunder.
Programmer will provide System Operator written notice at least 30 days prior to
discontinuing national transmission of all Interactive Programs.
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It is a condition of System Operator's right to carry the Interactive Programs
that System Operator shall distribute Programmers Interactive Programs without
modification, and that System Operator may not modify or enhance any VBI lines
described in Exhibit A. Programmer agrees that System Operator may copy the
Interactive Programs for simultaneous transmission in different encoding formats
other than what Programmer currently uses including but not limited to, other
VBI formats, out of band channels, and MPEG2 private data streams; provided such
Interactive Programs are presented together with the original corresponding
video to System Operator's subscribers, and that such copying is done to enable
System Operator's subscribers to properly receive and display the Interactive
Programs on their set top box or television set.
System Operator can, if permitted in Exhibit A, locally insert Interactive
Programs as instructed by Programmer. System Operator is solely responsible for
any costs associated with such local insertion Programmer will notify System
Operator of changes to any such permissions through amendments to Exhibit A
provided at least 30 days prior to the effective date of such requirements.
System Operator may suspend transmission of the Interactive Program during the
insertion by System Operator of local advertising avails as authorized in any
separate agreements between Programmer and System Operator.
5. RESPONSE NETWORK
Programmer agrees to utilize the Wink Response Network for two-way Interactive
Programs. Programmer also agrees to use Wink Communication's standard scripts
and guidelines for response applications. Programmer will have the opportunity
to review such scripts.
6. MARKETING MATERIALS
System Operator may prepare marketing materials relating to the Interactive
Programs and may use Programmer's name, logo, and screen shots (collectively
"Programmer's Xxxx") from the Interactive Programs in such marketing materials,
provided that such materials are submitted to Programmer for review and approval
prior to distribution. Such materials may not be used without Programmers prior
written approval. Programmers approval of such marketing materials shall not be
unreasonably withheld or delayed.
7. SCOPE
This IP Carriage Agreement does not interfere with or negate other Agreements
between Programmer and System Operator. This IP Carriage Agreement represents
all of the terms and conditions for Programmer providing Interactive Programs.
This IP Carriage Agreement may be updated and amended from time to time only by
express written consent of Programmer.
PROGRAMMER
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: VP Bus. Devel., CNN Interactive
Date: 2-12-98
CONFIDENTIAL
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EXHIBIT D, ATTACHMENT 1: CRITERIA FOR WINK COMPLIANT APPLICATION
* All applications must be registered and contain a unique universal ICAP
code (UIC) prior to being broadcast.
* Registered applications have passed a standard set of tests which
validate:
* that the application can be delivered through the VBI, will
arrive as appropriate, and can be decoded in the Wink engine.
* that the application does not generate error messages.
* that the application receives scheduled updates, if applicable.
* that the application passes minimum acceptable latency standards
determined jointly by Wink and Programmer.
* that the application does not cause System Operator technical or
operational problems.
* that the application, if two-way, generates the appropriate
routing address and usage data.
CONFIDENTIAL
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EXHIBIT E: PRELIMINARY EQUIPMENT LIST
Wink Provided Equipment:
Wink Broadcast Server and Server Modules
* Sun Ultra 1 or faster, with 64MB RAM, 1 GB+ hard disk, 17" monitor,
CD-ROM, Solaris 2.5, CD-ROM, Ethernet connection to Programmer's LAN,
dial-up modem, Sun Silver support package (one per uplink)
* Norpak TES-3 VBI data inserter (One per channel with the capability to
utilize 2 VBI lines on Headline News)
* LAN/serial connections to master control system, ftp site (for data),
other hardware as necessary
Test equipment
* GI CFT-2200 set top box, marketing firmware
Programmer Provided Equipment:
* PC w/ Windows 95 and Ethernet connection to run WBS remote GUI (can run
GUI and Wink Studio on same machine)
* High grade video source (Beta SP or better) for testing
* Coax Modulator for testing
* To run Wink Studio: Pentium Windows PC with 16MB+ RAM, 1 GB+ hard disk,
1024x768x256 color graphics, 17"+ monitor, Ethernet connection to enable
electronic delivery of applications to the WBS, Internet access to
enable electronic access to Wink's Data Center
CONFIDENTIAL
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EXHIBIT F: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 2
This pricing is available to all Programming Services other than the First
Programming Service owned and operated by Programmer, subject to the terms of a
standard Charter Programmer Agreement.
All on-going annual fees are paid one twelfth each month, and are due the first
of the month.
On-going Annual First Year Years 2-3 Total
Or One- Retail Price Price/ Savings/
Time-costs Price Network Network
(3 Years)
Broadcast Server On-going * ] [ * ] [ * ] [ * ]
Server Module On-going [ * ] [ * ] [ * ] [ * ]
Tech Support On-going [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ON-GOING [ * ] [ * ] [ * ] [ * ]
Server hardware One-time [ * ] [ * ] [ * ] [ * ]
Data Insertion Unit One-time [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ]
Installation and One-time [ * ] [ * ] [ * ] [ * ]
integration
Studio site license One-time [ * ] [ * ] [ * ] [ * ]
(5 seats)
Server Studio site One-time [ * ] [ * ] [ * ] [ * ]
license (5 seats)
Studio/Server One-time [ * ] [ * ] [ * ] [ * ]
training (3x2days)
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ]
TOTAL BOTH [ * ] [ * ] [ * ] [ * ]
Wink reserves the right to increase license fees annually after the first 12
months of the contract period by the percentage increase in the consumer price
index (CPI) for goods and services for the prior 12 months.
The above pricing for installation and integration covers all work necessary to
enable scheduling and transmission of program enhancements based on Wink Studio
templates. It does not cover detailed integration with Programmer's ad insertion
system for the purpose of enabling enhancements to spot advertising.
OPTIONAL SERVICES
Ad insertion interface [ * ]
Custom interface work (ad insertion and traffic systems, etc.) [ * ]
Phone training and consulting beyond standard package [ * ]
Application development [ * ]
Travel expenses are billed separately at cost.
CONFIDENTIAL
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