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EXHIBIT 10.6
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the 23rd day of February, 1999 ("Effective Date"),
by and between Wink Communications, Inc., a California corporation ("Wink"),
whose address is 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and ABC, Inc.,
a NY corporation ("Programmer"), whose address is 00 Xxxx 00xx 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 2.0 and 2.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 and possessions, including
Puerto Rico, and Canada and on U.S. registered aircraft and vessels
(the "Licensed Territory"). Programmer shall have the further right
to use the Wink Software to distribute Interactive Wink Programs to
viewers located outside the Licensed Territory upon monetary terms to
be negotiated in good faith, which shall not be higher than Wink's
prevailing rates for most favored 'customers in the applicable
markets. Unauthorized reception and viewing of Programmer's
Interactive Wink Programs outside the Licensed Territory shall not be
deemed a distribution outside the Licensed Territory.
1.2. "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, unless such major enhancements occur prior to the
First Air Date (as defined below). Wink shall provide a license to
all Updates (and major enhancements created prior to the First Air
Date) at no charge to Programmer during the term of this Master
Agreement and Programmer, in its sole discretion, shall have the
option to utilize such Updates in providing Interactive Wink Programs
to Programmer subscribers. "New Release" shall mean a major release
of the Wink Software which occurs subsequent to the First Air Date,
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 Programmer 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
broadcast and cable networks in the Licensed Territory, for the
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provision of the New Releases, provided, however, that in no event
shall Programmer's decision not to license any New Release have any
impact whatsoever on the functionality of the current Wink Software
or Programmer's ability to provide Interactive Wink Programs to
Programmer viewers throughout the Term, and provided that Programmer
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 Programmer 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 Programmer. Notwithstanding the foregoing, if Programmer
elects not to license any New Releases on the terms offered by Wink,
Programmer shall nevertheless have the right at its election to
license such New Releases at the applicable price specified in
Exhibit C for existing Wink Software (i.e. at no cost beyond what
would have been paid for the existing Wink Software) through the next
Termination Option Date (as defined below). If such New Release is
created after the last Termination Option Date, then the foregoing
usage rights will apply through the end of the Term. Upon reaching
such Termination Option Date, Programmer shall discontinue use of the
New Releases unless agreement has been reached with Wink for
continued use (Programmer shall not, however, be required to
discontinue use of any earlier versions of Wink Software).
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, except to
an entity in control of, controlled by or in common control with
either party.
1.4 Programmer can only use the Wink software to provide Interactive Wink
Programs with the video programming services described 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 and with such notice will also provide the
Technical Information specified in Exhibit A for such service.
Programmer further agrees to provide Wink with 30 days notice of any
changes in such Technical Information Exhibit A. Programmer will
provide the Contact Information set forth in Exhibit A for the first
Programming Service within a reasonable time after the Effective
Date.
2. TERM
2.1 The term of this Agreement (the "Term") shall commence on the date of
execution of this Agreement and terminate eight years 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"). The parties agree that the First Air Date shall be the
first day that Programmer airs Interactive Wink Programs on the First
Programming Service (as defined in Exhibit A), and
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commercial cable subscriber households (not employees of System
Operators, as defined below) are able to receive such Interactive
Wink Programs. Broadcasts of Interactive Wink Programs to test
transmission and reception reliability shall not qualify as the First
Air Date.
2.2 The parties agree that Programmer may unilaterally terminate this
Agreement on any of the following dates: twelve (12) months after the
Effective Date, three years after the Effective Date, and five years
after the Effective Date (each referred to as a "Termination Option
Date"). Programmer must provide Wink with notice of Programmer's
decision to terminate at least 30 days prior to the each Termination
Option Date. If such notice is not provided in writing by this date,
the applicable termination option shall have lapsed.
3. INTEGRATION AND PROGRAMMING
3.1 Programmer agrees to ensure that Programmer's Interactive Wink
Programs are passed through to viewers unchanged by Programmer's
owned stations ("Programmer Owned Stations "), to the extent that
they clear the ABC Network programs carrying the Interactive Wink
Programs and Interactive Wink Programs can be carried without signal
degradation, and to use its reasonable commercial efforts to ensure
such passage by local affiliates with whom Programmer has an
affiliate agreement and which are not owned by Programmer ("Other
Programmer Affiliates").
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 the primary East and West
video signal feeds for the First Programming Service and for the
Second Programming Service (if Programmer's chooses to exercise it's
option to add the Disney Channel as the Second Programming Service),
including but not limited to the equipment listed on Exhibit E
hereto. At whatever point this agreement terminates for any reason,
Wink will have the right to regain custody and ownership of all such
equipment.
3.3 Programmer agrees to have at least two staff members trained in the
usage of Wink Software to develop and schedule Interactive Wink
Programs within sixty (60) days of execution of this Agreement. Wink
agrees to provide such training at no charge to Programmer as defined
in Exhibit C.
3.4 Programmer agrees to use its reasonable efforts to commence
transmission of Interactive Wink Programs on the First Programming
Service on the later of May 31, 1999 and ninety (90) days after the
Effective Date (the "Target Date"). Wink understands and accepts that
this Target Date is contingent upon a successful installation of the
Wink Software and associated hardware, and
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upon completion of training of Programmer staff. If Wink fails to
accomplish the milestones within ninety (90) days of the Target Date,
Programmer may in its sole discretion terminate this Agreement upon
written notice
3.5 Programmer agrees to cooperate with Wink in the development and
deployment of a Wink Server Module which would enable the automatic
suspension of non-advertising related Interactive Wink Programs
during advertising breaks and the automatic triggering of the
insertion of Interactive Wink Programs related to ads on the First
Programming Service ("Automation Server Module" or "ASM") The parties
agree that Wink is solely responsible for the development of the
Automation Server Module, and that Programmer's obligations under
this Agreement are solely to make technical staff and documentation
readily available to Wink for the specification, development and
integration of such module into Programmer's operations. The parties
further agree that Wink's inability to deliver an Automation Server
Module shall not be considered a material breach under this
Agreement.
3.6 Wink agrees to provide software to enable Programmer to parse
Programmer's existing HTML content for use in Wink applications. The
software used to author such parsing routines is referred to as "Wink
Server Studio", and the software used to execute such parsing
routines on the Wink Broadcast Server is referred to as the "Wink
Server Module" throughout this Agreement.
3.7 For the first twelve months following the First Air Date, Wink agrees
to provide Programmer daily standard reports on all Interactive Wink
Programs featuring Wink polls that are originated by Programmer. The
fees for such poll reports will be subject to a weekly maximum of
$500, regardless of the number of responses generated by Programmer's
polls or the number of different polls aired. 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 in Wink's good
faith judgment becomes commercially infeasible.
3.8 For purposes of this Agreement, the following definitions shall
apply:
(a) A "Wink-enabled Viewer" is any television viewer which is
able to receive and interact with Interactive Wink
Programs.
(b) A "Wink Response" is any response data generated by a
Wink-enabled Viewer when using an Interactive Wink Program
and collected electronically by Wink.
(c) A "Wink Revenue Response" is a Wink Response in which the
Wink-enabled Viewer requests products or services through
the Interactive
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Wink Program, whether such products and services are
either provided at no charge to the Wink-enabled Viewer or
require payment by the Wink-enabled Viewer, and where the
fulfillment of that request requires the release of
Wink-enabled Viewer specific information, such as name and
address.
Commencing on the First Air Date and throughout the remainder of the
Term, Wink shall, no later than Wednesday of each week, provide to
Programmer standard weekly reporting, at no charge to Programmer, of
all Wink Responses generated by Interactive Wink Programs aired on
Programmer's networks or affiliates during the previous week.
Programmer accepts Wink's terms for all other reporting regarding
Wink Responses, as defined in Exhibit B, and as amended in section
4.7 below. 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 programmer, for the provision
of the same or similar services. Wink further agrees to promptly
notify Programmer in writing, should Wink decide to enter into new
agreements or amend existing agreements with any United States
programmer to include more favorable terms for services similar to
those defined in Exhibit B and to immediately offer such terms to
Programmer. Wink agrees to provide all reports described above in
hard copy or electronic form, per Programmer's instructions. In
addition, Wink agrees that it shall provide Programmer with any
improvements or additions to the amount and type of data that Wink
generally provides to any other programmer with respect to Wink
Responses or Wink Revenue Responses. All Wink Responses and Wink
Revenue Responses shall be undertaken by Wink or its agents in
accordance with applicable law, including, without limitation, truth
in advertising and customer privacy laws.
3.9 During the Term of this Master Agreement, Wink shall pay to
Programmer, on a monthly basis, [ * ] percent of the fees on each
Wink Response or Wink Revenue Response (including fees which have
been paid by Programmers and its related entities) that is generated
by Interactive Wink Programs airing on the First Programming Service.
Such payments will be made with 30 days of the end of each calendar
quarter, and will be accompanied by a detailed report showing Wink
Revenue Responses by Interactive Wink Program, and the revenues
generated by Wink's Data Center from each Interactive Wink Program.
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 Wink shall be liable for
all reasonable costs and expenses (including, without limitation,
reasonable court costs and attorneys' fees) incurred by Programmer in
collecting any past due payments. Programmer agrees that no interest
shall be due if the parties have a bona fide dispute over payments.
In the event Wink offers a revenue sharing arrangement to any other
programmer relating to distribution of Interactive Wink Programs on
platforms other than an over-the-air broadcast network,
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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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Wink will offer such arrangement to Programmer for any Programming
Service hereunder distributed on similar platforms.
3.10. Beginning on the First Air Date, Programmer agrees to distribute
Interactive Wink Programs at least [ * ] hours a week on the First
Programming Service, and agrees to increase such programming to [ * ]
hours a week within 90 days of the First Air Date. For the purposes
of this Agreement, references to the number of hours in this context
shall mean that an Interactive Wink Program is inserted at least once
every thirty (30) minutes during such hours of programming and that
the Interactive Wink Program is offered to distribution media that
reach in the aggregate at least 70% of the television households in
the United States (i.e., provided Programmer has offered these
programs to this percentage of distribution media and has otherwise
adhered to its obligations in Paragraph 3.1. Programmer will have
fulfilled the distribution obligation even if the programs are not
actually broadcast by these media). Programmer will solely determine
which shows include Interactive Wink Programs. Programmer will have
complete editorial control and approval of the form, nature and scope
of the Interactive Wink Programs and may suspend any individual
Interactive Wink Program at any time and for any reason. In addition,
Wink shall provide Programmer with the ability to control whether
third party advertisements and commercials are broadcast with related
Interactive Wink Programs through the Wink Broadcast Server.
Interactive Wink Programs for cable programming services must be
related to the content, nature and intended audience of the video
programming with which they are broadcast. Wink's sole remedy in the
event Programmer does not offer the foregoing minimum number of hours
of Interactive Wink Programs will be to terminate this Agreement.
Such notice of termination must be given in writing 30 days before
the effective date of termination and within the 30 day notice
period, Programmer will have the opportunity to cure by distributing
enough additional Interactive Wink Programs to reach the minimum
requirement. In the event of such "cure", the termination notice will
be deemed rescinded.
3.11. Programmer is responsible for payment 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 to enable
the creation or transmission of Interactive Wink Programs.
3.12. The parties agree that the Interactive Wink Programs will require
bandwidth equivalent to one dedicated line of VBI on each programming
service. Notwithstanding the above, Programmer may utilize this VBI
line for other purposes, provided that such usage does not in any way
interfere with the transmission of Interactive Wink Programs, or
reduce Programmer's ability to transmit Interactive Wink Programs
related to Programmer's video programming and advertising. Programmer
may elect to use additional VBI lines in its sole discretion.
Programmer has the right to terminate this
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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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Agreement if Programmer's Interactive Wink Programs cause any
degradation in Programmer's video signal quality or ability to
distribute its signal.
3.13. Wink agrees that any Interactive Wink Programs created by or for
Programmer will be the sole property of Programmer and Programmer
shall own the copyright and all other interests therein. To the
extent Wink staff members assist in the creation of the Interactive
Wink Programs, their contributions will be deemed "works for hire"
prepared for audiovisual works and such contributions will be deemed
the intellectual property of Programmer. Programmer may use and
exploit the Interactive Wink Programs in any and all media throughout
the world in perpetuity as it elects. In particular, Wink agrees that
Programmer may license the Interactive Wink Programs (or derivatives
thereof) that Programmer creates, with or without the help of Wink,
to third parties on any terms that the Programmer and the third party
can mutually agree upon. Programmer cannot sub-license Wink Software,
or act as an agent for Wink.
3.14. Subject to Programmer's prior written request, Wink agrees to
collaborate with Programmer in the development of specifications for
a full screen graphics and text channel based on electronic content
provided by Programmer or other entities affiliated with the Wait
Disney Company ("Programmer Virtual Channel") for distribution by
System Operators (as defined below). Upon mutual agreement on the
specification of the Programmer Virtual Channel, Wink-agrees to
create and deliver in final electronic form, at its sole cost and
expense, the Programmer Virtual Channel.
4. RATES, DEPLOYMENT AND OTHER PROGRAMMING SERVICES
4.1. Programmer agrees to remit the license fees and other payments as
described in Exhibit C on a timely basis. The parties agree that it
is optional for Programmer to license the Automation Server Module.
4.2. Programmer agrees to provide the Interactive Wink Programs to any
multi-channel video operator in the United States or Canada with whom
Programmer then has an agreement for carriage or re-transmission of
Programmer's video programming ("System Operators"), pursuant to the
terms of such agreement. In the case of Interactive Wink Programs
associated with cable or other non-broadcast programming, Programmer
will provide the Interactive Wink Programs to System Operators under
the terms described in Exhibit D, if such terms are not already
contained in its carriage agreement with the System Operator. The
terms in this section will not apply to the First Programming Service
(the ABC Network) or to Interactive Wink Programs broadcast by any
Programmer Owned Station or Other Programmer Affiliate unless the
terms duplicate such entities' re-transmission agreements with the
System Operators or required by law. With respect only to Interactive
Wink Programs contained in
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non-broadcast services, Wink may also supply System Operators with a
copy of Exhibit D as evidence of Programmer's agreement to supply the
Interactive Wink Programs under such terms.
4.3 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 programmer
for the same products and services.
4.4 Programmer can elect to add additional programming services which are
(a) wholly-owned or partially owned by Programmer or the Xxxx Disney
Company (minimum 20% equity stake) or (b) Other Programmer Affiliates
during the term of this Agreement. Such additional programming
services are eligible for pricing as follows:
The Disney Channel - Exhibit C
Programmer O&O Affiliates - Exhibit F
Other Programmer Affiliates, cable network partially owned by
Programmer or the Xxxx Disney Company - Exhibit G
4.5 Programmer understands and accepts that any network or affiliate
(other than the ABC Network) wishing to take advantage of the
applicable pricing in section 4.4 must commit to providing
Interactive Wink Programs for at least 10 hours of programming per
week. Notwithstanding 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.
4.6 Programmer also understands and accepts that Wink is not obligated
under this Agreement to:
(a) provide equipment to any other programming service other
than the First Programming Service, the Second Programming
Service, the Programmer Owned Stations and Other
Programmer Affiliates at the prices (or free of charge) as
provided in the applicable Exhibits herein.
(b) provide the transaction revenue share offered to
Programmer in section 3.9 to any programming service other
than the First Programming Service, except as provided in
such section.
(c) provide Wink poll reporting under terms other than those
defined in Exhibit B (The parties agree that the weekly
maximum on poll charges defined in section 3.7 and
referenced in Exhibit B are not applicable to other
programming services).
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4.7 Notwithstanding anything to the contrary herein, Wink shall provide
Programmer and entities in which the Xxxx Disney Company has at least
a 50% interest and, in addition, the Arts and Entertainment, History,
and E! channel with preferred pricing for Purchase Responses (as
defined in Exhibit B) that is the lower of the following:
(a) a [ * ] discount on the pricing quoted in Exhibit B
(b) [ * ]/response, regardless of volume
(c) the most favorable pricing extended for Purchase Responses
to any other broadcast or cable network, or to any third
party advertiser which has contracted with Wink for the
capturing and routing of Purchase Responses. This most
favorable pricing protection shall also extend to the "RFI
Responses" described in Exhibit B.
The preferred pricing described in sections (a) through (c) above
shall be extended for any Purchase Response (and, in the case of (c),
RFI Responses) generated by Interactive Wink Programs aired on the
First Programming Service or the Second Programming Service, provided
such Purchase Responses are in responses to offers for merchandise or
services sold by or on behalf of entities wholly owned by the Xxxx
Disney Company.
4.8 Wink may provide System Operators with a listing of VBI lines used
for transmission of Interactive Wink Programs by Programmer,
Programmer Owned Stations and Other Programmer Affiliates
5. PAYMENT TERMS
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 will send invoices for all payments due hereunder, 30 days in
advance of the due date. Wink's failure, for any reason, to send an
invoice for a particular monthly payment due in years two through
eight of the Term for the Broadcast Server, Server Module Engine,
Automation Server Module or Tech Support shall not relieve Programmer
of its obligation to make these payments 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 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.
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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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6. PROMOTION AND RESEARCH
6.1 Programmer acknowledges Wink's intent to issue a press release
announcing this Agreement within 30 days of the Effective Date. This
press release shall be subject to Programmer's prior written
approval. Programmer agrees to use reasonable efforts to provide
quotes from an executive of Programmer or The Xxxx Disney Company for
such press release.
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, if requested and approved by Programmer, promote and
feature Programmer's Interactive Wink Programs as prominently as any
other 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 its marketing objectives in materials
prepared by third parties, such as equipment manufacturers, retailers
and cable operators. Programmer agrees to advise Programmer Owned
Stations and Other Programmer Affiliates of its use of the Wink
Software and the availability to them of preferred terms for
licensing Wink Software within sixty (60) days of the Effective Date.
6.4 Wink, equipment manufacturers, retailers 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. Programmer,
the Programming Services, Programmer Owned Stations and Other
Programmer Affiliates may use and authorize the use of Wink's name,
logo and related elements (collectively "Wink's Marks") in the
production and distribution of Interactive Wink Programs and in
advertising and publicity therefor. Each party must submit materials
containing the other's Marks to the other party for review and
written approval prior to distribution. The other party agrees to use
reasonable efforts to respond promptly to such requests for approval,
and retains sole discretion over such approvals, if any. 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 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
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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. Likewise, Programmer hereby acknowledges that
Wink is the sole owner of all right, title and interest in and to the
Wink's Marks and any marks, notices or designations utilized by Wink
in connection with Wink's business, and that no rights or ownership
are intended to be or shall be transferred to Programmer. All uses of
the Wink's Marks shall inure to the benefit of Wink. Upon any
expiration or termination of this Agreement, Programmer shall delete
and discontinue all use of the Wink's Marks. At no time during or
after the term of this Agreement shall Programmer challenge or assist
others to challenge the Wink'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 Wink's 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, provided
Programmer is permitted to do so under applicable agreements with
research services and can do so at no cost, in conducting such
research with respect to Programmer's viewers. Programmer agrees that
Wink may use all such research regarding the deployment, launch, and
usage of Wink service by Programmer viewers, subject to applicable
consumer privacy laws, only for internal purposes unless Wink has
received prior written-approval from Programmer. 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 Wink Responses to the Interactive Wink Programs to System
Operator(s) for Wink Responses that originate from System Operator's
subscribers, to equipment manufacturers for Wink Responses that
originate from Wink-enabled equipment sold by such manufacturers, and
to advertisers and other parties, authorized by Programmer, for Wink
Responses that originate from Interactive Wink Programs paid for or
sponsored by such parties (collectively, the "Recipients"). Such
reports to Recipients shall be restricted to aggregate reports about
Wink Responses , and detailed reports on individual Wink Revenue
Responses, which shall only be forwarded to the Recipient fulfilling
such viewer requests, or such party's designated agent. Wink agrees
that reports providing specific data regarding viewer responses to,
usage of, and/or exposure to Programmer's Interactive Wink Programs,
including data on Wink viewer responses to advertising on Programmer
owned or affiliated programming services, will not be made available,
except in aggregated form that does not identify Programmer or
specific Programmer viewer data, to any third party except Recipients
pursuant to this paragraph. Wink acknowledges and agrees that any
reports provided to Recipients or other third parties must adhere to
applicable consumer privacy laws. Information regarding the nature
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of Winks Responses or the Wink Viewers shall not be used for any
other purpose without the express consent of Programmer.
6.7 Programmer may require that Xxxx xxxx Programmer or an entity wholly
owned by Programmer or the Xxxx Disney Company for Wink Revenue
Responses generated by Interactive Wink Programs aired by third party
advertisers on the First Programming Service or other programming
services owned and operated by Programmer ("Private Label
Responses"). The Private Label Response requirement shall be made by
Programmer in writing on or before the First Air Date, or at any time
with thirty (30) days prior written notice by an authorized official
of Programmer. Once such notice has been given, Programmer shall
provide thirty (30) days notice of intent to terminate such private
label response routing. Wink agrees to notify Programmer if Wink has
agreements with specific third party advertisers for the routing and
reporting of Wink Revenue Responses, in which case Wink must receive
written approval from the advertiser to change the billing
instructions for Wink Revenue Responses. Wink will forward Private
Label Responses directly to the advertiser or their designated third
party fulfilling the requests, and will provide weekly summary
reports of such Wink Revenue Responses to Programmer. Programmer
shall be solely responsible for billing the advertiser for Private
Label Responses.
If Programmer has required that Wink provide Private Label Responses,
then [*] and shall notify prospective advertisers requesting Wink's
services for capturing and routing of Wink Responses from Interactive
Wink Programs of Programmer's right to Private Label Response
treatment (if applicable). Wink also agrees to refer advertisers who
are receiving Private Label Responses (or who Programmer wishes to
receive Private Label Responses) [*] except to the extent necessary
to fulfill responses as noted above. The parties agree that the
pricing for Private Label Responses shall be lower of:
(a) The pricing available to such advertiser based on that
advertisers total transaction volume with Wink, according to
Wink's then current pricing schedule, and
(b) The best pricing available to any third party advertiser
(excluding the Xxxx Disney Company and other entitles covered
by section 4.7) generating an equal to or lesser transaction
volume with Wink.
The parties agree to use commercially reasonable efforts to resolve
any operational issues that would prevent Programmer from controlling
the billing of third party advertisers for Private Label Responses,
and to identify a point person at each company for regular
communication between the parties regarding any potential advertiser
account management issues. The parties also agree that Wink shall pay
revenue share as defined in section 3.9 to Programmer for Private
Label Responses airing on the First Programming Service.
-------------
* 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.
CONFIDENTIAL - PAGE 12
13
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 (e.g. Wink's published
specifications for the Interactive Communications Application
Protocol, as updated by Wink, and Wink's then current documentation
and manuals), in accordance with the criteria defined in Exhibit H
and as demonstrated to Programmer prior to this Agreement. 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, except for the "Xxxxxx" claim. Wink
further represents that the Wink Software (and subsequent revisions
and upgrades to same provided by Wink to Programmer) is Year 2000
compliant.
7.2 Wink hereby warrants and represents that the terms contained herein
for licensing of Wink software, provision of Wink services, sharing
of Wink's revenues from routing of Wink Revenue Responses 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 broadcast and cable programming
entities.
7.3 Wink warrants and represents that the terms and conditions in Exhibit
D are as favorable to Programmer as any agreement Wink has caused or
allowed other programmers to enter into with System Operators. If
Wink causes or allows any. other broadcast or cable 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, 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 assume such more favorable terms and amend Exhibit D
accordingly.
7.4 Wink hereby warrants and represents that the terms contained herein
for licensing of Wink software, provision of Wink services, and the
Programmer Owned Stations' 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 broadcast programming
entities for their owned affiliate stations.
-------------
* 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.
CONFIDENTIAL- PAGE 13
14
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 Wink's representations and
warranties or any of Wink's other material obligations stated herein
or the use of any technology or equipment provided by Wink to
Programmer hereunder. Notwithstanding the above, the parties agree
that Wink is specifically not liable or obligated to indemnify
Programmer or other parties for:
(a) any and all expenses arising out of claims or causes of
action related to the content, nature or form of the
Interactive Wink Programs.
(b) any and all expenses arising out of claims or causes of
action in which it is alleged that the Interactive Wink
Programs created a malfunction or other technical problem
on a Wink-enabled television set or multi-channel set top
receiver, and in which Programmer has been negligent in
testing such Interactive Wink Programs or otherwise have
failed (unless through the fault of Wink) to adhere to
Wink's standard Criteria for Compliant Interactive-Wink
Programs, as defined in Exhibit D, Attachment 1.
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.
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 delivery,
CONFIDENTIAL - PAGE 14
15
addressed, to the addresses provided in the first paragraph of this
Agreement, and to the attention of:
If to Wink:
Xxxxx X. Xxxxxxxx
Senior Vice President, Programming and Advertising
If to Programmer:
Xxxx Xxxxxxx
ABC, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxxx Xxxxxxxx
Vice President, Cable and New Media
Legal Department
ABC, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
and to:
Xxxxx Xxxxx
Senior Vice President, Strategic Planning
The Xxxx Disney Company
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 SOFTWARE
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.
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 and to fully perform its obligations
hereunder (iii) Wink is under no contractual or other
CONFIDENTIAL - PAGE 15
16
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 NY; (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 and specifically identified in writing as "Confidential"
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. Also, "Confidential
Information" shall not include information which, (a) is or becomes
publicly known through no act or failure to act on the part of the
recipient, (b) was rightfully in the recipient's possession prior to
disclosure by the disclosing party, (c) becomes rightfully known to
the recipient from a third party not subject to any independent
confidential or proprietary restriction, (d) is approved by the
disclosing party for disclosure without restriction, in a written
document that is signed by a duly authorized officer of that party,
(e) is disclosed after the termination of the recipient's duty of
confidentiality as specified herein or (f) is or was developed
independently by the recipient without use of or reference to any of
the Confidential Information and without violation of any
confidentiality restriction. The parties agree to keep the terms of
this Agreement confidential, but acknowledge that certain disclosures
may be required by law.
CONFIDENTIAL - PAGE 16
17
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. The
parties agree that Wink's failure to perform materially any services
or provide any technology or equipment in accordance to this
Agreement shall be considered a material breach. The parties also
agree that failure by Programmer to make timely payments of license
fees and other fees due Wink under this Agreement, and failure by
Wink to make timely payments of Programmer's share of Wink's gross
revenues, net of returns, refunds and credits, from Wink Revenue
Responses shall be considered material breaches, and that the
terminating party's termination of this Agreement shall be without
prejudice to any other remedies the terminating party may have,
including, without limitation, all remedies with respect to the
unperformed balance of this Agreement.
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 (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.
14. GENERAL
(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.
CONFIDENTIAL - PAGE 17
18
(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.
IN WITNESS WHEREOF, the parties by their duly authorized
representatives have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. ABC INC.
By: By:
Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: President/CEO Title: Vice President
CONFIDENTIAL - PAGE 18
19
EXHIBIT A: PROGRAMMING SERVICES
Description of Each Programming Service
FIRST PROGRAMMING SERVICE
ABC Television Network (all analogue feeds)
SECOND PROGRAMMING SERVICE *
The Disney Channel
OTHER PROGRAMMING SERVICES *
ABC Owned Stations
Other Programming Affiliates as described in Paragraph 4.4
*Programmer is under no obligation to include programming services other than
ABC in this Agreement
TECHNICAL INFORMATION TO BE PROVIDED FOR EACH PROGRAMMING SERVICE**
1. Commencement Date for Wink Programming
2. VBI line Location
3. Virtual Channel
4. Insertion Point
CONTACT INFORMATION**
1. Nature of Issue (Operation, Programming or Marketing)
2. Address
3. Contact Person(s)
4. Phone
5. Fax/Email
ADDITIONAL INFORMATION
Operations (site visits, VBI/MPEG insertion, etc.)
TBD**
Programming (development and scheduling of Interactive Wink Programs, reports,
etc.)
TBD**
Marketing (affiliate marketing, approvals of promotional materials)
TBD**
**All to be determined by Programmer, in its sole discretion
CONFIDENTIAL- PAGE 19
20
EXHIBIT B: WINK RESPONSE CENTER SERVICES
All products and services are billed Net/45. A Purchase Response shall be
defined as any Wink Revenue Response 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 Revenue Response. A Poll Response shall be defined
as a Wink Response generated by a Wink "vote/poll" script. Programmer shall have
no liability for payment for Reports, Polls, Wink Responses or Wink Purchase
Responses commissioned by third parties such as advertisers on the Programming
Services hereunder. These will be subject to separate agreement between the
third parties and Wink.
PRICE/WINK TRANSACTION
WINK TRANSACTIONS/MO. $[*] min./mo. per Interactive Wink Program
PURCHASE RESPONSES creating Purchase Responses
1-5,000 [*]
5,001 - 25,000 [*]
25,001 - 100,000 [*]
100,001 - 250,000 [*]
250,001 - 500,000 [*]
500,001 + [*]
$[*] min./mo. per Interactive Wink Program
RFI RESPONSES 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 Programmer'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.
3. For purposes of minimum charges, if an Interactive Wink Program is part of
a program "Series", the minimum shall be deemed to apply to the Series, not
each episode in the Series.
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.
CONFIDENTIAL - PAGE 20
-------------
* 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.
21
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.
CONFIDENTIAL - PAGE 21
22
EXHIBIT C: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE
This pricing is available to 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 First Yrs 2-8
or one- year Price/
time costs Price Network
Broadcast Server On-going Free $48,000
Server Module Engine On-going Free $12,000
Automation Server Module (3) On-going Free $24,000
Tech Support On-going Free $ 6,000
SUBTOTAL ON-GOING $0 $90,000
Server hardware (4) One-time Free N/A
Data Insert. Unit (4) One-time Free N/A
Set-top box, misc. (4) One-time Free N/A
SUB-TOTAL ONE-TIME $0 N/A
Installation and integration (2) One-time Free N/A
Studio site license (5 seats) One-time Free N/A
Svr Studio license (5 seats) One-time Free N/A
Training (3x2days) (1) (2) One-time Free N/A
SUBTOTAL ONE-TIME $0 N/A
TOTAL BOTH $0 $90,000
(1) 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.
(2) Travel expenses are billed separately at cost
(3) Optional after the first year
(4) Provided free by Wink, per Exhibit E.
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
Custom interface work (ad insertion and traffic systems, etc.) $1,000/day
Phone training and consulting beyond standard package $125/hr
Application development $2,500 min., $125/hr
CONFIDENTIAL - PAGE 22
23
EXHIBIT D: PROGRAMMER'S TERMS FOR CARRIAGE OF INTERACTIVE WINK PROGRAMS
OTHER THAN RETRANSMISSION OF OVER-THE-AIR BROADCASTS
Programmer:
Programming Services:
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 multi-channel 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
Programmer's execution of this IWP Carriage Agreement. The parties acknowledge
that Programmer has an agreement with Wink for distribution of Interactive Wink
Programs (the "Charter Programmer Affiliation Agreement") for eight years after
the first transmission of Interactive Wink Programs by Programmer. The terms and
conditions of this IWP Carriage Agreement shall govern during the entire term of
the Charter Programmer Affiliation Agreement, 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 use its best efforts to ensure that the Interactive Wink
Programs meet Wink's criteria for compliant Interactive Wink Programs (See
Attachment 1). Programmer agrees that each Interactive Wink 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 is not responsible for any
malfunction of the Interactive Wink Programs that can not be detected by
adhering to the criteria in Attachment 1.
CONFIDENTIAL - PAGE 23
24
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 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, but 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 of the Charter. Programmer
Affiliation Agreement between Programmer and Wink and amendments to same, as
provided to System Operator. 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.
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 to generates viewer responses to two-way Interactive Wink
Programs.
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
CONFIDENTIAL - PAGE 24
25
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. If Programmer
fails to adhere to its' obligations in sections 3 and 5 of this Agreement,
System Operator sole remedy shall be to decline carriage or retransmission of
the Interactive Wink Programs. This Agreement may be updated from time to time
only by express written consent of Programmer.
PROGRAMMER
By:
Name:
Title:
Date:
CONFIDENTIAL - PAGE 25
26
EXHIBIT D, ATTACHMENT 1: CRITERIA FOR COMPLIANT INTERACTIVE WINK PROGRAMS
- All Interactive Wink Programs must be registered and contain a unique
universal ICAP code (UIC) prior to being broadcast.
- Registered Interactive Wink Programs have passed a standard set of tests
which validate:
- that the Interactive Wink Programs can be delivered through the VBI,
will arrive as appropriate, and can be decoded in the Wink engine.
- that the Interactive Wink Programs does not generate error messages.
- that the Interactive Wink Programs receives scheduled updates, if
applicable.
- that the Interactive Wink Programs passes minimum acceptable latency
standards.
- that the Interactive Wink Programs does not cause System Operator
technical or operational problems.
- that the Interactive Wink Programs, if two-way, generates the
appropriate routing address and usage data.
CONFIDENTIAL - PAGE 26
27
EXHIBIT E: EQUIPMENT TO BE PROVIDED BY WINK
- Sun Ultra server hardware, configured to support Wink Broadcast Server 2.x,
two Ethernet LAN cards, dial-up modem for remote diagnostic use
- 0 Xxxxxx XXX-0 data insertion units with software module for 1 VBI line,
one each for the main East Coast and West Coast feeds and one for in-house
testing
- 2 GI CFT-2200 advanced analog cable set tops for development and test
ABC will provide cabling and Pentium PC running Windows 95 or Windows NT for the
Broadcast Server User Interface, Wink Studio and Wink Server Studio. These
applications may reside on one or several PCs, none of which need to be
dedicated to the Wink software. Each PC must be connected to the Broadcast
Server via an Ethernet LAN interface.
CONFIDENTIAL - PAGE 27
28
EXHIBIT F: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 2
Subject to the other terms and conditions of this agreement, this pricing is
available to Programmer Owned Stations.
On-going annual fees are paid one twelfth each month, and are due the first of
the month.
ON-GOING FIRST YEARS 2-8
OR ONE- YEAR PRICE/
TIME COSTS PRICE NETWORK
---------- -------- --------
Broadcast Server On-going $ 48,000 $ 48,000
Server Module On-going Free $ 12,000
Tech Support On-going Free $ 6,000
SUBTOTAL ON-GOING $ 48,000 $ 66,000
Server hardware One-time $ 9,500 N/A
Data Insert. Unit (1) One-time $ 5,600 N/A
Set-top box, misc One-time $ 700 N/A
SUB-TOTAL ONE-TIME $ 15,800 N/A
Installation and One-time $ 15,000 N/A
integration (2)
Studio site license (5 One-time Free N/A
seats)
Server Studio site One-time Free N/A
license (5 seats)
Studio/Server training One-time Free N/A
(3x2days) (2)
SUBTOTAL ONE-TIME $ 15,000 N/A
TOTAL BOTH $ 78,800 $ 66,000
(1) One required per network. More than one VBI line per network requires an
additional license from Norpak in the amount of $1,500/VBI line.
(2) Travel expenses are billed separately at cost.
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.
OPTIONAL SERVICES
Automation Server Module $24,000 annual license
Custom interface work (ad insertion and traffic systems, etc.) $1,000/day
Phone training and consulting beyond standard package $125/hr
Application development $2,500 min., $125/hr
CONFIDENTIAL - PAGE 28
29
EXHIBIT G: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 3
This pricing is subject to the terms of the Agreement, and is available to all
Other Programmer Affiliates, and to programming Services in which Programmer or
the Xxxx Disney Corporation owns at least a 20% stake. On-going annual fees are
paid one twelfth each month, and are due the first of the month.
ON-GOING FIRST YEARS 2-8
OR ONE- YEAR PRICE/
TIME COSTS PRICE NETWORK
---------- -------- --------
Broadcast Server On-going $ 62,000 $ 62,000
Server Module On-going $ 12,000 $ 12,000
Tech Support On-going $ 6,000 $ 6,000
SUBTOTAL ON-GOING $ 80,000 $ 80,000
Server hardware One-time $ 9,500 N/A
Data Insert. Unit (1) One-time $ 5,600 N/A
Set top, misc One-time $ 700 N/A
SUB-TOTAL ONE-TIME $ 15,800 N/A
Installation and One-time $ 20,000 N/A
integration (2)
Studio site license (5 One-time $ 3,000 N/A
seats)
Server Studio site One-time $ 5,000 N/A
license (5 seats)
Studio/Srvr training One-time $ 6,000 N/A
(3x2days) (2)
Subtotal One-time $ 39,000 N/A
TOTAL BOTH $134,800 $ 80,000
(1) One required per network. More than one VBI line per network requires an
additional license from Norpak in the amount of $1,500NBI line.
(2) Travel expenses are billed separately at cost.
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.
OPTIONAL SERVICES
Automation Server Module $36,000 annual license
Custom interface work (ad insertion and traffic systems, etc.) $1,000/day
Phone training and consulting beyond standard package $125/hr
Application development $2,500 min., $125/hr
CONFIDENTIAL - PAGE 29
30
EXHIBIT H: PERFORMANCE STANDARDS FOR WINK SOFTWARE AND SERVICES
The parties agree that Wink Software and Services must meet the following
standards:
1) Programmer can create Interactive Wink Programs that adhere to Exhibit D,
Attachment 1: "Criteria for Compliant Interactive Wink Programs" using
Wink Studio and Wink Server Studio.
2) Programmer can schedule Interactive Wink Programs to be inserted into
Programmer's analog video programming using the Wink Broadcast Server and
the associated PC-based user interface programs provided by Wink.
3) Programmer can insert Interactive Wink Programs into Programmer's analog
video programming using the Wink Broadcast Server, VBI data insertion
units and other software hardware and services provided by Wink. Such
insertion shall have no effect on the visible portion of the Programmer's
video signal.
4) Programmer can parse Programmer's existing standard HTML content for use
in Interactive Wink Programs using Wink Server Studio and standard LAN
connections between the Wink Broadcast Server and the Programmer's web
servers.
5) Programmer can create, schedule and insert Interactive Wink Programs that
are capable of generating Wink Revenue Responses.
Subject to availability of a live connection to either two-way cable plant or
other return path, and to System Operator's reasonable support and operational
readiness, Wink can:
6) collect Wink Revenue Responses from viewer homes,
7) prepare aggregate reports of subscriber usage of the Interactive Wink
Programs
8) forward Wink Revenue Responses to the party having registered the
Interactive Wink Program with Wink's Response Center (subject to billing
system interface or other means of capturing subscriber address and
payment information).
CONFIDENTIAL - PAGE 30
