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EXHIBIT 10.6
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the 9th 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 ESPN Inc., a Delaware corporation
("Programmer"), whose address is 000 Xxxxx Xxxxxx, Xxx Xxxx, 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) 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
("Interactive Wink Programs") to all Programmer viewers in the
continental United States, Alaska, Hawaii, the US territories in the
Caribbean and Canada.
1.2 Wink agrees to provide all applicable upgrades of all Wink Software to
Programmer at no charge during the initial term of this agreement.
1.3 This License is not transferable, nor may any rights hereunder be
transferred, assigned or sub-licensed in whole or in part by either
party without the prior written consent of the other party.
1.4 Programmer can only use the Wink software to provide Interactive Wink
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 Wink Programs with a video
programming service. Programmer agrees to adhere to the technical
specifications for the insertion of Interactive Wink Programs provided
in Exhibit A. Exhibit A, including the programming services enabled to
insert Interactive Wink Programs in their video signal, may be amended
from time to time by mutual agreement.
2. TERM
2.1 The term of this Agreement shall commence on the date of execution of
this Agreement and terminate on the earlier of (a) March 1, 1999 or (b)
twelve (12) months after the first airing of Programmer's Interactive
Wink Programs on the programming service listed as the First Programming
Service in Exhibit A ("First Air Date"). Notwithstanding the foregoing,
if Wink has not made arrangements with various System Operators (as
defined in section 4.3 herein) for distribution of Wink service in at
least 250,000 households in the United States by not later than ninety
days after Programmer's First Air Date, Programmer may terminate this
Agreement. The parties agree that the First Air Date shall be the first
day that Programmer airs Interactive Wink Programs, and regular cable
subscriber households (not System Operator employees) are able to
receive such Interactive Wink Programs. Broadcasts of Interactive Wink
Programs to test transmission and reception reliability are not
applicable. Notwithstanding the foregoing, if Wink causes or allows any
other programmer to enter into an agreement with any System Operator on
terms and conditions more favorable to the programmer than those
enumerated in Exhibit D,
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Wink will notify Programmer to that effect and Programmer then will have
the right during the next 60 days after its receipt of said notice to
terminate this Agreement with no resulting liability.
2.2 Programmer may extend the Agreement and the licenses granted herein for
up to four (4) additional years, with the understanding that the license
fees provided in Exhibit C would apply for extension. The renewal
following the initial term must be for at least two years. Subsequent
renewals can be for not less than additional one additional year each.
Programmer agrees to provide Wink with notice of Programmer's decision
to renew or to let the Agreement expire at least 30 days prior to the
expiration of the then current term. Programmer can also elect to add
additional wholly-owned programming services within twelve months of the
First Air Date, or anytime during the effective extended term, if any.
Additional wholly-owned programming services would be eligible for the
pricing defined in Exhibit F, and would not be eligible for the
quarterly payments in 3.5 or for the equipment "earn-out" option in 3.2.
2.3 Wink agrees to extend terms substantially similar to those defined in
this Agreement to the ABC Television Network and to the Disney Channel,
provided the agreements with each programming service is executed no
later than June 1, 1998. If the ABC Television Network exercises its
option to enter into a substantially identical agreement with Wink
within this timeframe, Wink agrees to offer the pricing defined in
Exhibit F to ABC's wholly owned and operated affiliate stations and the
pricing defined in Exhibit G to ABC affiliates not wholly owned by ABC
during the effective initial term of the agreement between ABC and Wink.
Programmer agrees that the following terms are unique to Programmer, and
will not be extended to the programming services covered in this
paragraph: equipment "earn-out" terms in 3.2, weekly limit on
poll-related fees in 3.4 and quarterly payments from Wink in 3.5.
Programmer also agrees that the ad insertion "earn-out" terms in 4.5 are
only available to Programmer, the ABC Television Network and the Disney
Channel. Programmer understands and accepts that any network not owned
and operated by Programmer must commit to providing Interactive Wink
Programs for at least 10 hours of programming per week to be eligible
for the pricing defined in Exhibits C, F and G. Not with standing the
foregoing, Wink agrees that such networks would only be required to
provide Interactive Wink Programs for at least 5 hours of programming
per week for the first ninety (90) days following those networks' First
Air Date.
3. INTEGRATION AND PROGRAMMING
3.1 Programmer will distribute the Interactive Wink Programs with the
national feed for each 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 country and on any additional feeds that
reach 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 to enable the installation and
integration of the Wink Software into Programmer's facilities, and to
ensure the reliable transmission of the Interactive Wink Programs. Wink
is responsible for providing all equipment (including taxes and freight)
necessary to run the Wink Software and to enable insertion of
Interactive Wink Programs into
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the appropriate video signals, including but not limited to the
equipment listed on Exhibit E hereto. Programmer will reimburse Wink for
all costs of such equipment up to a maximum of $21,000 for the equipment
listed in Exhibit E hereto, such reimbursements to accrue as an
obligation of Programmer at the rate of $1,750 per month, and will be
paid by Programmer to Wink out of any incremental revenue received by
Programmer attributable to the Interactive Programs, after Programmer
retains the first [*]%of such revenue (such reimbursements and
incremental revenue to be calculated for on a monthly basis). At
whatever point this agreement terminates for any reason, Programmer will
not have any obligation to pay Wink any then-unpaid balance, but Wink
will have the right to regain custody and ownership of all such
equipment. Wink acknowledges that Programmer's uplink facility is
constrained in rack space, and accepts that Programmer may terminate if
the total rack space required to support the First and Second
Programming Services exceeds that occupied by two Norpak TES-3 data
inserters.
3.3 Programmer agrees to use reasonable efforts to commence transmission of
Interactive Wink Programs on the First Programming Service on or before
February 1, 1998. Wink understands and accepts that this First Air Date
is contingent upon a successful installation of the Wink Software and
associated hardware, and upon completion of training of Programmer
staff.
3.4 Wink agrees to provide weekly reporting to Programmer of all response
traffic generated by Programmer viewers and collected by Wink's Data
Center. Wink also agrees to provide Programmer daily reports on all
Interactive Wink Programs featuring Wink polls that are originated by
Programmer. [ * ] Poll reports will be provided by ZIP or by cable
system, at Programmer's option. The parties agree to review the number
of responses, the number of polls and Wink's costs in preparing poll
reports for Programmer on a quarterly basis, and Programmer agrees that
Wink may impose certain restrictions on the number of polls aired by
Programmer, if the operational implications of supporting such polls
becomes too onerous for Wink. Programmer accepts Wink's preferred terms
for all other response traffic and reporting, as outlined in Exhibit B,
except that any charges related to polls will be subject to the weekly
maximums defined above.
3.5 Beginning on the First Air Date, Programmer agrees to air Interactive
Wink Programs at least [ * ] on the First Programming Service, and an
additional [*] hours per week on the First and/or the Second Programming
Service combined. Programmer can determine the amount, if any, of
Programming on the Second Programming Service in its sole discretion,
and is not obligated to air any Programming on the Second Programming
Service. Programmer understands and accepts that any additional wholly
owned programming services which take advantage of the terms provided in
this Agreement must air a minimum of [ * ] of Interactive Wink Programs
a week. Programmer may decide which shows include Interactive Wink
Programs, as long as the total number of hours per week is reached. The
parties expect that some
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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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of Programmer's Interactive Wink Programs will provide viewers with
on-demand access to scores, statistics, breaking news, and other
material deemed relevant by Programmer. During the initial term, Wink
agrees to pay Programmer [ * ] in which the programming commitment
defined in this paragraph has been met.
3.6 Programmer may suspend any individual Interactive Program at any time
and for any reason.
3.7 Programmer is responsible for payment to third party providers of sports
data or news, leagues, and other entities to which Programmer deems it
necessary to make payments to enable the creation or transmission of
Interactive Wink Programs.
3.8 The parties agree that the Interactive Wink Programs will require
bandwidth equivalent to one dedicated line of VBI on each programming
service. Programmer may elect to use additional VBI lines in it's sole
discretion. Programmer has the right to terminate this Agreement if
Programmer's Interactive Wink Programs (a) cause any degradation in
Programmer's video signal quality or (b) are not comparable in graphical
resolution and appearance to those examples provided by Wink on Wink's
demonstration video tapes prior to the signing of this Agreement.
3.9 Wink agrees that any Interactive Wink Programs created by Programmer,
with or without the assistance of Wink staff members, will remain the
intellectual property of Programmer. Wink agrees that Programmer may
license Interactive Wink Programs (or derivatives thereof) that
Programmer creates 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.
3.10 Programmer acknowledges that Wink may elect to offer a nationally or
locally inserted full screen Interactive Wink Program to System
Operators featuring sports scores and other sports related news ("Wink
Sports Virtual Channel") during the initial term. Wink agrees to
negotiate in good faith with Programmer to provide the sports data and
the branding of the Wink Sports Virtual Channel, to conduct such
negotiations with Programmer prior to entering into any such
negotiations with any other sports programming service, and to offer
Programmer a right to match any offer Wink has received for sports data
and branding of the Wink Sports Virtual Channel prior to entering into
an agreement. Programmer agrees to match or decline any such offer with
two weeks of its receipt of written notification ( Wink agrees to
provide) of all material terms of such offer. If Wink does not receive a
written response matching or declining to match the offer(s) presented
in two weeks from the date of presentation to Programmer, Programmer's
right to match will expire.
4. RATES AND DEPLOYMENT
4.1 Programmer agrees to provide Interactive Wink Programs as described in
this Agreement for the programming services listed in Exhibit A.
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4.2 Programmer agrees to remit the license fees and other payments as
described in Exhibit C on a timely basis.
4.3 Programmer agrees to provide the Interactive Wink Programs to any
multichannel video operator in the United States or Canada with whom
Programmer already has an agreement for carriage of Programmers video
programming ("System Operators") 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 Wink Programs under such terms.
4.4 Programmer may choose to utilize other products and services of Wink not
quoted elsewhere in this Agreement from time to time. These services
will be extended by Wink to Programmer at the lower of the then
prevailing retail rate or the lowest rate offered any cable programmer
for the same products and services.
4.5 Programmer may request that Wink develop and install a Wink Server
Module for spot ad insertion which would enable the automatic triggering
of the insertion of Interactive Wink Programs related to ads aired by
the First or Second Programming Service ("Ad Insertion Server Module" or
"AISM"). Programmer may order this optional Wink Software at any time
under the standard terms and conditions defined in Exhibit C, or may
chose the following special terms during the initial term:
(a) Programmer commits to use it's best efforts to trial Wink enhanced
national spot ads with at least 5 advertisers. Programmer agrees to
support the sales efforts for such ads by arranging joint
Programmer/Wink presentations with at least 3 existing advertisers
within 60 days of ordering the AISM, and by responding on a timely basis
to requests from other advertisers for rates for Wink-enhanced ads.
(b) Wink agrees to defer the normal AISM license fees during the initial
term of this Agreement as follows. License fees accrue monthly. 75% of
any incremental revenues attributable to the value of the Wink
enhancements to the applicable spot advertisement received by Programmer
from such enhanced advertisements airing on Programmer's networks are
applied against the accrued license fees outstanding and paid to Wink
until the accrued license fees are earned out. In the event that
Programmer earns more than the accrued license fees, Wink may apply such
unapplied revenue towards future license fees, as they accrue. If
Programmer does not elect to extend the Agreement beyond the initial
term, Programmer and Wink will prepare a final report resolving accrued
license fees and Programmer Wink ad revenue no later than 45 days after
the last effective day of this Agreement. Any net license fees for the
AISM outstanding after this final report will be waived by Wink. If
Programmer elects to extend the Agreement, Wink may continue to earn
back the deferred AISM license fees from the initial term during renewal
years, until fully recouped.
5. PAYMENT TERMS
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5.1 On or before the thirtieth (30th ) day following each month throughout
the term of this Agreement, Programmer shall remit to Wink all fees owed
for licenses provided and services rendered in the previous month,
according to the price schedules provided in Exhibit C.
5.2 Wink's failure, for any reason, to send an invoice for a particular
monthly payment shall not relieve Programmer of its obligation to make
any payment in a timely manner consistent with the terms of this
Agreement. 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. Wink agrees that no interest shall be
due if the parties have a bona fide dispute over payments.
6. PROMOTION AND RESEARCH
6.1 After execution of this Agreement, the parties agree to issue a press
release acceptable to both parties announcing this agreement on or
before December 9, 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 Wink Programs. Wink further agrees to
immediately notify Programmer as to the first day subscribers in Wink's
first five (5) cable systems are able to receive Programmer's
Interactive Wink Programs.
6.3 Wink agrees to promote and feature Programmers Interactive Wink Programs
as prominently as any other cable programming service in Wink's
marketing literature, during meetings with cable operators and the
press, and during industry trade shows. 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 promote it's
participation as a charter Wink programmer to cable operators (provided
such promotion requires no material incremental expense or change to
Programmer's current marketing materials), and to serve as a press
reference for Wink during the effective term of the agreement.
6.4 Programmer agrees to cooperate with Wink and System Operators in
promoting Programmer's Interactive Wink Programs. Wink and System
Operators may prepare marketing materials relating to the Interactive
Wink Programs and may use Programmer's name, logo and screen shots
(collectively, "Programmer's Marks") from the Interactive Wink Programs,
provided that such materials are submitted to Programmer for review and
written approval prior to distribution. Programmer agrees to use
reasonable efforts to respond promptly to such requests for approval.
Wink hereby acknowledges that, Programmer is the sole owner of all
right, title and interest in and to the Programmer's Marks and any
marks, notices or designations utilized by Programmer in connection with
Programmer's business, and that no rights or ownership are intended to
be or shall be transferred to Wink. 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
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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 Programmers Marks.
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, subject to applicable consumer privacy laws. Wink
agrees to provide copies of final reports from such research activity to
Programmer.
6.6 Programmer understands and accepts that Wink will be providing reports
on viewer responses to the Interactive Wink Programs to System
Operator(s) for responses that originate from System Operator's
subscribers, and to advertisers and other parties for responses that
originate from Interactive Wink Programs paid for or sponsored by such
parties. Wink agrees that reports providing specific data regarding
viewer responses to Programmer's Interactive Wink Programs, including
data on Wink viewer responses to advertising on Programmer's Programming
Services, will not be made available to the press or other broadcast and
cable networks, except in aggregated form that does not identify
Programmer or specific Programmer viewer data.
7. WARRANTY
7.1 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. Wink also represents and warrants
that as of this signing of this Agreement, Wink is not aware of any
claims against Wink's patents, copyrights or other intellectual
property.
7.2 Wink hereby warrants and represents that the terms contained herein for
licensing of Wink software, provision of Wink services and Programmer's
commitment for Interactive Wink Programs are, as a whole, as favorable
as any other similar agreement Wink has entered into or will enter into
with other North American cable programming entities.
8. INDEMNIFICATION
8.1 Wink will indemnify and hold harmless Programmer, its parent and
subsidiary companies and their respective employees, directors, agents,
other representatives against any and all claims, causes of action,
damages and all other related expenses arising out of the breach or
alleged breach of any of its representations and warranties or any of
its other material obligations stated herein or any of its other
business activities directly related to Programmer or this Agreement.
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8.2 Programmer will indemnify and hold harmless Wink, its parent and
subsidiary companies and their respective employees, directors, agents,
other representatives against any and all claims, causes of action,
damages and all other related expenses arising out of the breach or
alleged breach of any of its representations and warranties or any of
its other material obligations stated herein or any of its other
business activities directly related to Wink or this Agreement.
8.3 In any case in which indemnification is sought hereunder, the party
seeking indemnification shall promptly notify the other in writing of
any claim or litigation to which the indemnification relates and the
party seeking indemnification shall afford the other the opportunity to
participate in and, at the other party's option, fully control any
compromise, settlement, litigation or other resolution or disposition of
such claim or litigation.
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
If to Programmer:
Senior Vice President, ESPN Enterprises
With a copy to:
Xxx Xxxx, Assistant General Counsel, ESPN
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 or other
rights, of whatever nature, related thereto shall remain the property of
Wink. Further, Programmer acknowledges and agrees that all Wink's 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
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authority to enter into this Agreement and to fully perform its
obligations hereunder (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 Delaware; (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
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)
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. 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,
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. Programmer understands and
acknowledges that Wink may provide copies of Exhibits A and D to System
Operators.
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 of such notice.
13.2 Notwithstanding the above, Wink will have the right to terminate this
Agreement or all or any licenses granted herein if Programmer fails to
comply with any of its material obligations, including but not limited
to timely payment of license fees and other fees due Wink, under this
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Agreement. Should Wink elect to exercise this right to terminate for
nonperformance, it must be done in writing specifically setting forth
those items of nonperformance. Programmer will then have thirty (30)
days from receipt of notification to remedy the items of nonperformance.
Should Programmer fail to correct these items of nonperformance, then
Wink may terminate this agreement and any license granted herein. Wink's
termination of this Agreement shall be without prejudice to any other
remedies Wink may have, including, without limitation, all remedies with
respect to the unperformed balance of this Agreement; provided, however,
that if Programmer has not made payment of the fees or charges due
hereunder and such nonpayment continues after thirty (30) days prior
written notice by Wink, then Wink may terminate this Agreement or any
license granted herein.
13.3 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 (i) grant to Wink access to its business premises and
the Wink Software and allow Wink to remove the Wink Software and any
equipment provided or financed by Wink (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.
13.4 Programmer has the right to suspend the airing of Interactive Wink
Programs if the transmission interferes with the airing of Programmer's
video programming, as determined in its sole discretion or if Wink fails
to provide weekly reports regarding usage of Programmer's Interactive
Wink 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. Consent shall not be required for assignment to
a corporate affiliate, assuming that the programming services providing
Interactive Wink Programs remain as defined in Exhibit A.
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 California.
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. ESPN INC.
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ----------------------------------
Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: President & CEO Title: Senior Vice President
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EXHIBIT A: PROGRAMMING SERVICES
DESCRIPTION OF PROGRAMMING SERVICES:
START OF WINK VIDEO VBI LINE VIRTUAL INSERTION
NAME PROGRAMMING (A/D) LOCATION CH? POINT
First Programming Service
ESPN February 1, 1998 Analog XXX XXX Bristol
Second Programming Service*
ESPN2 February 1, 1998 Analog XXX XXX Bristol
Other Programming Service*
ESPNEWS XXX XXX XXX XXX Bristol
Classic Sports XXX XXX XXX XXX Bristol
* Programmer is under no obligation to include programming services other than
ESPN in this Agreement
Contact Information:
ISSUE ADDRESS CONTACT(S) PHONE FAX/E-MAIL
Actual Contact Info:
Operations (site visits, VBI insertion, etc.)
Xxxxx Xxxxxx, VP of Ops, Eng. And Proj Dev
000-000-0000
Programming (development and scheduling of Interactive Wink Programs, reports,
etc.)
Xxxxxxx Xxxx
212.916.9244
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EXHIBIT B: WINK RESPONSE CENTER SERVICES
TRANSACTIONS/MONTH PRICE/TRANSACTION
PURCHASE TRANSACTION FEES [
(NAME, ADDRESS, CREDIT CARD)
1-5,000
5,001 - 25,000
25,001 - 100,000
100,001 - 250,000
250,001 - 500,000
500,001 +
Request Transaction Fees
(Name, address)
1-5,000
5,001 - 25,000
25,001 - 100,000 *
100,001 - 250,000
250,001 - 500,000
500,001 +
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.
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EXHIBIT B CONTINUED...
PURCHASE AND REQUEST TRANSACTION FEES INCLUDE:
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.
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.
EDI
- Standard interface set-up fee [ * ]
- Non-standard Interface Quoted
- 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
If at any time during the term of this agreement, any other cable programmer
receives any more favorable rates than those listed above, such more favorable
rates shall supersede the applicable rate(s) specified above.
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EXHIBIT C: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 1
This pricing is available to the First and Second Programming Services, the ABC
TV Network and the Disney Channel, and is subject to the terms of the Agreement.
On-going annual fees are paid one twelfth each month, and are due the first of
the month.
ON-GOING ANNUAL FIRST YRS 2-5 SAVINGS/
OR ONE-TIME RETAIL YEAR PRICE/ NETWORK
COSTS PRICE PRICE NETWORK (5 YEARS)
Broadcast Server On-going [
Server Module On-going
Tech Support On-going
SUBTOTAL ON-GOING
Server hardware One-time
Data Insert. Unit(1) One-time
Set-top box, misc. One *
SUBTOTAL ONE-TIME
Installation and integr. One-time
Studio site license (5 seats) One-time
Svr Studio license (5 seats) One-time
Training (3x2days) (2) One-time
SUBTOTAL ONE-TIME
TOTAL BOTH ]
* For ESPN and ESPN2, section 3.2 shall apply.
(1) One required per network. Thus, if ESPN desires to enable both ESPN and
ESPN2, two data insertion units will be required. Total hardware costs would
then be [ * ].
(2) This base training package provides training on the Broadcast Server, Wink
Studio and Server Studio, and will enable Programmer's staff to create, schedule
and air Interactive Wink Programs as contemplated by this Agreement. Wink will
also provide reasonable additional training to those same staff as may be
required and agreed upon between the parties.
Wink reserves the right to increase license fees annually after the first 24
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
does not cover detailed integration with Programmer's ad insertion system.
OPTIONAL SERVICES
Ad insertion interface license [ * ]
Custom interface work (ad insertion and traffic systems, etc.) [ * ]
Phone training and consulting beyond standard package [ * ]
Application development [ * ]
Travel expenses for optional services are billed separately at cost.
(Note 3) During the initial term, Programmer may elect to compensate Wink for
the ad insertion license fees out of actual revenues generated from the sale of
Wink advertisements or sponsorships, as described in section 4.5.
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EXHIBIT D: PROGRAMMER'S TERMS FOR CARRIAGE OF INTERACTIVE WINK PROGRAMS
Programmer: ESPN Inc.
Programming Services: ESPN1 and ESPN2
This agreement (the "IWP Carriage Agreement") sets forth the terms and
conditions for the national distribution of Wink ITV Applications ("Interactive
Wink Programs") to any multichannel video operator in the United States or
Canada with whom Programmer already has an agreement for carriage of
Programmer's video programming ("System Operator").
1. BACKGROUND
Programmer has created one or more Interactive Wink Programs which are compliant
with the Wink Communications, Inc. (Wink") interactive communications
application protocol. The Interactive Wink 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 and MMDS (wireless cable).
2. EFFECTIVE DATE AND TERM
The term of this IWP Carriage Agreement shall commence on the date of
Programmers execution of this IWP Carriage Agreement. The parties acknowledge
that Programmer has an agreement with Wink for distribution of Interactive Wink
Programs (the "Wink-Programmer Agreement") for one year after the first
transmission of Interactive Wink Programs by Programmer (the "Initial Term").
If, as is its right in its sole discretion, Programmer exercises its option to
extend the Wink-Programmer Agreement, that renewal will be for a period of not
less than two additional years ("Initial Renewal"). The terms and conditions of
this IWP Carriage Agreement shall govern during the Initial Term and, if
applicable, the Initial Renewal, unless Programmer and Wink terminate their
Charter Programmer Affiliation Agreement earlier in accordance with the terms of
that agreement.
3. INTEGRITY OF INTERACTIVE WINK PROGRAMS
Programmer will ensure that the Interactive Wink 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.
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Programmer understands that failure to meet the above criteria could result in
System Operator suspending the distribution of one or more Interactive Wink
Programs until such time as all Interactive Wink Programs are certified by Wink
to be in compliance.
4. DISTRIBUTION
Programmer hereby grants System Operator a non-exclusive license to distribute
the Interactive Wink 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
Wink Programs for the term of this Agreement. Likewise, System Operator agrees
that no fees or charges will be due from carriage or retransmission of the
Interactive Wink Programs as provided for hereunder.
Programmer will provide Wink written notice at least 30 days prior to
discontinuing national transmission of all Interactive Wink Programs. Wink has
agreed to provide such notices to System Operator, bur System Operator agrees
that Programmer has no liability or other obligations to System Operator, should
Wink fail to do so.
It is a condition of System Operator's right to carry the Interactive Wink
Programs that System Operator shall distribute Programmer's Interactive Wink
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 Wink 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 Wink 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 Wink Programs on their set top box or television
set.
System Operator can, if permitted in Exhibit A, locally insert Interactive Wink
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.
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5. RESPONSE NETWORK
Programmer agrees to utilize the Wink Response Network for two-way Interactive
Wink Programs. Programmer also agrees to use Wink Communication's standard
scripts and guidelines for response applications.
6. MARKETING MATERIALS
System Operator may prepare marketing materials relating to the Interactive Wink
Programs and may use Programmer's name, logo, and screen shots from the
Interactive Wink Programs in such marketing materials, provided that such
materials are submitted to Programmer for review and written approval prior to
distribution. Programmer agrees to use reasonable efforts to respond to such
requests for approval in a timely fashion.
7. SCOPE
This Agreement does not interfere with or negate other Agreements between
Programmer and System Operator. This Agreement represents all of the terms and
conditions for Programmer providing Interactive Wink Programs. This Agreement
may be updated from time to time only by express written consent of Programmer.
PROGRAMMER
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Senior Vice President
------------------------------
Date: 1/8/97
------------------------------
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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.
- 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.
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20
EXHIBIT F: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 2
Subject to the other terms and conditions of this agreement, this pricing is
available to all Programming Services owned and operated by Programmer and to
network affiliates owned and operated by ABC, and is subject to the terms of the
Agreement. On-going annual fees are paid one twelfth each month, and are due the
first of the month.
ON-GOING ANNUAL FIRST YRS 2-5 SAVINGS/
OR ONE-TIME RETAIL YEAR PRICE/ NETWORK
COSTS PRICE PRICE NETWORK (5 YEARS)
Broadcast Server On-going [
Server Module On-going
Tech Support On-going
SUBTOTAL ON-GOING
Server hardware One-time
Data Insert. Unit(1) One-time
Set-top box, misc. One
SUBTOTAL ONE-TIME *
Installation and integration One-time
Studio site license (5 seats) One-time
Server Studio site One-time
license (5 seats)
Studio/Server training One-time
(3x2days)
SUBTOTAL ONE-TIME
TOTAL BOTH ]
(1) One required per network. More than one VBI line per network requires an
additional license from Norpak in the amount of [ * ]/VBI line.
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 for optional services are billed separately at cost.
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EXHIBIT G: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 3
This Pricing is available to all ABC network affiliates, subject to the terms of
the Agreement. On-going annual fees are paid one twelfth each month, and are due
the first of the month.
TOTAL
ON-GOING 1997 FIRST YRS 2-5 SAVINGS/
OR ONE-TIME RETAIL YEAR PRICE/ NETWORK
COSTS PRICE PRICE NETWORK (5 YEARS)
Broadcast Server On-going [
Server Module On-going
Tech Support On-going
SUBTOTAL ON-GOING
Server hardware One-time
Data Insert. Unit(1) One-time
Set-top, misc. One-time *
SUBTOTAL ONE-TIME
Installation and integration One-time
Studio site license (5 seats) One-time
Server Studio site One-time
license (5 seats)
Studio/Server One-time
training (3x2days)
SUBTOTAL ONE-TIME
TOTAL BOTH ]
(1) One required per network. More than one VBI line per network requires an
additional license from Norpak in the amount of [ * ]/VBI line.
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 for optional services are billed
separately at cost.
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