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EXHIBIT 10.7
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the 23rd day of March 1999, (the "Effective Date")
by and between Wink Communications, Inc., a California corporation ("Wink"),
whose address is 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and CBS
Corporation, a Pennsylvania corporation ("Programmer"), whose principal business
address is 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000.
1. THIS SECTION INTENTIONALLY LEFT BLANK
2. GRANT OF LICENSE
2.1 Wink hereby grants to Programmer the non-exclusive license to use Wink
Studio, Server Studio, Wink Broadcast Server, Automation Server Module
and Wink provided Server Modules version 2.0 and 2.x updates
(hereinafter collectively referred to as "Wink Software") and to use any
other Wink software necessary to create and deliver interactive
program(s) (as demonstrated to Programmer prior to entering into this
Agreement) 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, Canada, Bermuda, and
on U.S. registered aircraft and vessels. Wink agrees to provide
Programmer with a copy of the current specification for the interactive
communications application protocol within one week of the Effective
Date. Such specification shall be considered Confidential Information
under this Agreement (as defined in section 13 below).
2.2 "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. Wink
shall provide a license to all Updates 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
Effective 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 United
States broadcast and cable networks, for the provision of the New
Releases; provided, however, that in no event shall Programmer's
decision not to license any New Release have
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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 and
documented in writing to Programmer. In the event that actual costs of
developing and testing any such New Release are lower than said
estimated costs, Wink agrees to so notify Programmer and adjust the cost
of such license accordingly. Wink warrants and represents that the
definition of "New Releases" is at least as favorable to Programmer as
that provided to any other broadcaster or cable programmer and that Wink
did not include in any license of the Wink Software to any other
broadcaster or cable programmer a license of any New Releases as part of
the initial license consideration. Wink further agrees promptly to
notify Programmer in writing should Wink agree in any future agreements
or amendments to any more favorable terms and to immediately offer such
terms to Programmer.
2.3 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, provided,
however, that Programmer shall have the right to freely assign this
Agreement to any entity acquiring all or substantially all of
Programmer's assets. Wink agrees that Programmer shall have the right to
assign this Agreement to any subsidiary or affiliated entity, provided
that Programmer shall remain liable for the performance of all of its
obligations hereunder. Wink agrees to provide notice to Programmer of
any change of control of Wink in which any broadcast network gains a
controlling interest in Wink. In such event, Programmer shall have the
immediate right to terminate this Agreement without further obligation
hereunder and Wink agrees to refund a pro-rated portion of any license
fees or other charges paid by Programmer.
2.4 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 provide notice to Wink of the
technical information required by 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 Programmer.
2.5 Wink hereby acknowledges that this Agreement is non-exclusive and in no
way prohibits Programmer from entering into any agreement with third
party providers for the same or similar services ("Other Providers") at
any time during the Term hereof, including, without limitation,
providers of software and/or
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hardware enabling the creation and/or delivery of interactive
enhancements to commercial cable subscriber households or other
Programmer viewers. Wink represents and warrants that the installation
and integration of the Wink Hardware and Wink Software into Programmer's
facilities contemplated hereunder shall in no way prevent or inhibit
Other Providers from using Programmer's facilities to create and deliver
interactive enhancement programs.
3. TERM
3.1 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 includes an Interactive Wink Program on a program airing
the First Programming Service (as defined in Exhibit A), and transmits
the signal on feeds intended to reach at least 70% of the television
household in the United States, Broadcasts of Interactive Wink Programs
to test transmission and reception reliability shall not qualify as the
First Air Date.
3.2 The parties agree that Wink shall provide notice to Programmer that it
has "enabled the system" as defined in paragraph 4.4 below. If Wink
fails to "enable the system" within one hundred twenty (120) days of the
Effective Date then subject to a sixty (60) day cure period, Programmer
shall have the right to terminate this agreement without any further
obligations (whether payment or otherwise) hereunder. In such event Wink
shall refund any and all fees paid by Programmer.
3.2 The parties agree that Programmer may unilaterally terminate this
Agreement on any of the following dates: eighteen (18) months from the
earlier of First Air Date or 30 days from the Effective Date, forty two
(42) months from the earlier of the First Air Date or 30 days from the
Effective Date, and sixty six (66) months from the earlier of First Air
Date or 30 days from 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. Wink
warrants and represents that no broadcast or cable programmer has a
license agreement with Wink for Wink Software with a longer term or with
more Termination Option Dates.
4. INTEGRATION AND PROGRAMMING; REVENUE PARTICIPATION; ADVERTISER
AGREEMENTS
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4.1 Programmer agrees to ensure, except in the event of force majeure, or
other customary program suspension or interruption, that the First
Programming Service's Interactive Wink Programs are passed through to
viewers unchanged by Programmer's owned stations ("Programmer Owned
Stations "), to the extent (i) that Programmer Owned Stations clear the
CBS Network programs carrying the Interactive Wink Programs; (ii) that
such Owned Stations receive a network feed which includes the
Interactive Wink Programs; (iii) that Interactive Wink Programs can be
carried without signal degradation and without causing any other
technical or operational incompatibility, interference or impairment;
and (iv) that carriage is not inconsistent with any obligations or
rights of such Programmer Owned Stations under contract, law or
otherwise or will otherwise cause an adverse financial impact on
Programmer. Programmer agrees to use its reasonable commercial efforts
(which Wink hereby acknowledges does not include, in any event, the
obligation to incur any costs, make any payments or to provide any other
form of compensation) to encourage such passage by local affiliates with
whom Programmer has an affiliation agreement and which are not owned by
Programmer ("Other Programmer Affiliates"). Wink's sole remedy in the
event Programmer does not fulfill its obligations hereunder 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 days period Programmer shall have the opportunity to cure. In the
event of such "cure" the notice will be deemed rescinded.
4.2 Wink agrees to; (i) "enable the system", (ii) ensure the reliable
transmission of the Interactive Wink Programs, (iii) maintain all Wink
Software and Wink Hardware (as defined below) and (iv) complete the
tailoring and deployment of the Automation Server Module (as defined in
section 4.5 below); all at the sole cost and expense of Wink. Programmer
agrees to cooperate with Wink in connection with Wink's installation and
maintenance responsibilities set forth above. 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 (as defined in Exhibit A), including but not limited
to the equipment listed as "Wink Hardware" on Exhibit E ("Wink
Hardware"), and with the exception that standard Microsoft Windows based
PCs are to be provided by Programmer, as described in Exhibit E.
Programmer agrees to pay Wink $27,000 upon delivery and acceptance of
the equipment, and $25,000 upon acceptance of the installation of the
Wink Software and having Wink "enabled the system". The parties agree
that Wink shall be solely responsible for any additional software,
hardware (including installation and integration) equipment and
equipment related expense that exceeds this payment by Programmer (and
other payments set forth in the attached Exhibits) and is required to
meet Wink's obligations under this Agreement.
4.3 Programmer agrees to make at least two of its personnel available to
complete Wink's basic training in the usage of Wink Software to develop
and schedule
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Interactive Wink Programs within sixty (60) days of the Effective Date
of this Agreement. In addition, Wink agrees to provide an additional
training day for such personnel within sixty (60) days prior to the
schedule First Air Date. Wink agrees to provide such training at no
charge to Programmer as defined in Exhibit C. Programmer agrees to
assign a project coordinator who has completed the training referenced
in this section to serve as a contact point for Wink, and to assign
resources equivalent to a full time staff member to work exclusively on
creating and scheduling Interactive Wink Programs within forty-five (45)
days of the last party's execution of this Agreement.
4.4 Programmer agrees to use its reasonable efforts to commence transmission
of Interactive Wink Programs on the First Programming Service on the
later of one hundred twenty (120) days after the Effective Date and
forty-five (45) days after Wink has "enabled the system". Wink shall
have "enabled the system" upon the last to occur of the following: (i)
successful installation and integration at Programmer's facility of all
Wink Software and Wink Hardware necessary to produce and deliver
Interactive Wink Programs to commercial cable subscriber households,
without signal degradation and without causing any other technical or
operational incompatibility, interference, or impairment, (ii)
satisfactory completion of testing of all Wink Software and Wink
Hardware, to be performed by Wink subsequent to installation and
integration of Wink Software and Wink Hardware into Programmer
facilities, (iii) training of Programmer personnel in the use and
operation of Wink Software and Wink Hardware, and (iv) reception
capacity by commercial cable subscriber households. Programmer agrees to
use reasonable efforts to identify video programming for which
Interactive Wink Programs can be developed and broadcast and to
facilitate demonstrations and presentations by Wink staff to appropriate
executives selected by Programmer from its major programming
departments.
4.5 Programmer agrees to cooperate with Wink in tailoring and deployment of
a Wink Server Module specific to Wink's Programmer which would enable
the automatic suspension of program enhancements 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 tailoring 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. Once Wink has delivered a functional Automation
Server Module, Programmer agrees to use reasonable efforts (at no cost
to Programmer) to test the airing of Interactive Wink Programs related
to advertisements bought by third party advertisers.
4.6 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
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software used to execute such parsing routines on the Wink Broadcast
Server is referred to as the "Wink Server Module" throughout this
Agreement.
4.7 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 request products or services through the Interactive Wink
Program, whether such products and services are 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. Wink warrants and represents that Exhibit B and
each and all of its terms are as favorable or more favorable than the
terms of any agreement relating to the licensing of Wink software Wink
has entered into with other United States programmer. 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 one or more more favorable terms than 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. All Wink Revenue
Responses and Wink Responses shall be undertaken by Wink or its agents
in accordance with applicable law, including, without limitation, truth
in advertising and customer privacy laws. In addition, Wink agrees that
it will correctly route all Wink Revenue Responses and all attendant
information on a timely basis in accordance with the instructions of the
entity sponsoring the enhancement and agrees to indemnify and hold
Programmer harmless from and against any claims arising out of any
breach or alleged breach of that obligation.
Upon no less than two (2) weeks notice to Wink, Programmer shall have
the right to appoint a third party auditor, who shall be permitted,
during regular business hours, to inspect all of Wink's books and
records, whether electronic or otherwise, relating to Wink Responses,
Wink Revenue Responses, and all other revenues generated by Wink's Data
Center from Interactive Wink Programs sourced to Programmer under this
Agreement. Programmer shall
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also have the right to audit all "most favored nations provisions"
hereunder, provided that Programmer shall require that its auditors
shall not disclose any terms of Wink's agreements with other broadcast
and cable programmers to Programmer, except when directly related to the
most favored nations clauses in this Agreement and then only in a form
that does not identify by name the holder of such more favorable term.
4.8 During the Term of this Master Agreement, Wink shall pay to Programmer,
on a monthly basis, [ * ] percent of Attributable Revenue. Attributable
Revenue shall be defined as the gross fees earned by Wink directly
sourced to Interactive Wink Programs airing on the First Programming
Service, including, without limitation, Wink Revenue Responses and Wink
Response fees and fees from third party reports (less only amounts
refunded or credited for return), regardless of whether such Interactive
Wink Programs are paid for or sponsored by a third party or Programmer.
Wink warrants and represents that the definition of Attributable Revenue
(i.e. the revenue base) is as beneficial to Programmer as any definition
which Wink has provided to any other entity for purposes of calculating
revenue share for such entity. Wink further warrants and represents that
if it enters into any agreements or amendments offering a more favorable
revenue base definition, it will notify Programmer and Programmer shall
have the right to substitute that definition for the definition
hereunder. Such payments will be made within thirty (30) days of the end
of each month, and will be accompanied by a detailed report showing Wink
Revenue Responses by Interactive Wink Programs, and all revenues
generated by Wink's Data Center from all Wink Revenue Responses
generated by Interactive Wink Program aired on the First Programming
Service (and any other revenues for which Wink is obligated to share
revenue with Programmer according to this Agreement) . Past due payments
shall bear interest at a rate equal to the lesser of (i) one and
one-half percent (11/2%) 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, Wink will offer such arrangement to
Programmer for any Programming Service hereunder distributed on similar
platforms.
4.9 Beginning within 14 days on the First Air Date, Programmer agrees to use
reasonable efforts to enhance at least ten (10) hours a week of
programming broadcast by the First Programming Service with Interactive
Wink Programs and to offer the "Enhanced Programming" to distribution
outlets that reach in the aggregate at least 70% of the television
households in the United States
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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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(the "Programming Commitment"). "Enhanced Programming" shall be defined
as programming which includes Interactive Wink Program(s) in the First
Programming Service's VBI or an MPEG private data stream concurrently
with the corresponding signal for the programming. Enhanced Programming
shall count toward fulfillment of the Programming Commitment based on
the broadcast time of the "Enhanced Programming". Wink hereby
acknowledges that the Programming Commitment is subject to the
following: (i) Any Programmer agreements affected by or otherwise
limiting Programmer's opportunities and/or ability to fulfill the
Programming Commitment including, without limitation, agreements with
advertisers, licensors, affiliates, cable system operators and/or other
transmitters or re-transmitters of Programmer's signal (ii) all
collective bargaining agreements to which Programmer is a party and
(iii) all laws and/or regulations pertaining to any performance of the
obligations contemplated under this Agreement (subsections (i) - (iii)
above are collectively referred to herein as the "Restrictive
Obligations")In the event that the Restrictive Obligations render
fulfillment of the Programming Commitment unreasonable or impracticable
(e.g. the available hours of programming in which to deliver the
Interactive Wink Programs are substantially reduced), the Programming
Commitment shall be reduced accordingly to the number of hours per week
that is reasonable ("Revised Programming Commitment") and Programmer
shall be obligated to use reasonable efforts to broadcast Interactive
Wink Programs on the First Programming Service according to the Revised
Programming Commitment. Programmer has the sole right to select, in its
sole discretion, the programs to be enhanced toward fulfillment of the
Programming Commitment. Fulfillment of the Programming Commitment shall
be measured by determining at the end of each calendar month the average
weekly broadcast time of Enhanced Programming over the previous eight
(8) weeks. It is understood and agreed that if Programmer has offered
the Enhanced Programming as set forth herein and has otherwise adhered
to its obligations in Paragraph 4.1, Programmer will have fulfilled its
obligations hereunder even if the Interactive Wink Programs are not
actually broadcast (or transmitted) by these media outlets or
distributors. Programmer has the sole and absolute control and approval
of the Interactive Wink Programs, including, without limitation, the
content, nature, form, scope and placement of the Interactive Wink
Programs, and may suspend any individual Interactive Wink Program at any
time and for any reason. 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 meet the foregoing Programming
Commitment 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 sufficient Enhanced Programming
to reach the minimum requirement. In the event of such "cure", the
termination notice will be deemed rescinded.
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4.10 Programmer is responsible for payment of third party fees and royalties
arising out of the content of the Interactive Wink Programs aired by
Programmer, including but not limited to fees and royalties owed to
studios, on-air and other talent, news and sports data providers and
professional and college sports leagues or teams. Wink shall be
responsible for all third party fees and royalties arising out of
Programmer's use of the Wink Hardware and/or Software, excluding such
fees and royalties owed by Programmer hereunder.
4.11 The parties agree that the Interactive Wink Programs will require
bandwidth equivalent to both fields of one dedicated line of VBI on each
programming service. Programmer may elect to use additional VBI lines in
its sole discretion. Programmer has the right, without limiting its
rights or remedies, immediately to suspend its obligations (including
without limitation payment obligations and the Programming Commitment)
and to terminate this Agreement if Programmer's Interactive Wink
Programs cause any degradation in Programmer's (or any transmitter's or
retransmitter's) video signal quality, or cause any other technical or
operational incompatibility, impairment or interference. Programmer
agrees that such termination shall be subject to the thirty (30) day
cure period defined in section 14.1 below.
4.12. Wink agrees that Programmer shall own all rights (including copyright)
in any Interactive Wink Programs created by Programmer, with or without
the assistance of Wink staff members. 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.
4.13. Wink acknowledges and agrees [*] for purposes of airing Interactive Wink
Programs with such advertiser's video advertising on the First
Programming Service or any other Programmer owned programming service
opting to exercise its rights hereunder to license Wink Software ("Other
Licensors"). The parties agree that Wink shall provide Programmer and
Other Licensors with a standard agreement for collection, aggregation
and reporting of Wink Responses to advertiser's Interactive Wink
Programs for use in representing Wink's terms to advertiser's, and that
the terms of such agreement shall be as favorable to Programmer's and
Other Licensor's advertiser as those provided to any other advertiser or
broadcast and cable network representing Wink terms for collection,
aggregation and reporting of Wink Responses to their advertisers. Wink
has provided a copy of the current standard advertiser agreement,
attached hereto as Exhibit I. 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 advertiser to
include more favorable terms, and to immediately offer Programmer's
advertisers such more favorable terms.
Without limiting the foregoing, Wink acknowledges and agrees that it has
not and will not during the Term of this Agreement enter into any
agreements with any advertiser containing any provision which (i)
establishes any pricing structure for any Interactive Wink Programs that
adjusts pricing based on identity or performance (demographic or
otherwise) of broadcaster, telecaster, or on anticipated or actual
performance (demographic or otherwise) of any programming containing
Wink enhanced commercials; (ii) establishes any pricing discounts or
adjustments for any enhanced advertisements, which discounts/adjustments
are applicable only to enhancements being telecast on a particular
video programming service (e.g. establishes one price for Wink
Transactions on First Programming Service based on advertiser's
transaction volume on the First Programming Service and another price
for Wink Transactions on another broadcaster/telecaster); and/or (iii)
prohibits (or otherwise impairs or hinders) advertiser from enhancing,
or otherwise adding any interactive elements to, its commercials through
use of any third party software, hardware, or equipment.
With respect to any enhanced commercials aired by Programmer and paid
for by advertisers who have entered into agreements with Wink which
provide for any [*] pricing (i.e. any Wink transaction fees other than
those set forth in Exhibit A to Exhibit I), Wink agrees that for each
such enhanced commercial it will nevertheless impute to the Attributable
Revenue (from which Programmer receives its [*] share) an amount equal
[*]. Wink further agrees that for any "Special Programming" (as defined
hereinbelow), provided Programmer has furnished to Wink at least [*]
days notice, Programmer shall have the right to contract exclusively and
directly with an advertiser regarding transaction fees for commercial
enhancements in such Special Programming. In such event, Wink will
assign a unique identifier to enhancements in the Special Programming.
In such event, Programmer will xxxx advertiser for and collect all
transaction fees at the agreed upon rate between advertiser and First
Programming Service and will remit to Wink the applicable Wink
transaction fees otherwise owed by such advertiser (but in no event more
than the then current uniformly applied standard advertiser price
structure, the current version of which is set forth in Exhibit A to
Exhibit I). In such event, Wink will furnish to Programmer all necessary
information regarding the advertiser transaction volume sourced to such
Special Programming. "Special Programming" shall be defined as any
programming being broadcast by First Programming Service which First
Programming Service determines to be appropriate for enhanced or premium
transaction fee pricing, based on the anticipated performance of the
programming, the unique nature of the programming and/or any unique
value created for one or more advertiser(s) in such programming (e.g.
event programming). If Programmer exercises its Special Programming
option above, it will reimburse Wink (on a time and materials basis
only) for Wink's verifiable direct, out-of-pocket incremental costs
incurred to separately invoice and aggregate data to enable such direct
billing between Programmer and advertiser.
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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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[*]
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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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5. RATES, DEPLOYMENT AND OTHER PROGRAMMING SERVICES
5.1 Programmer and Wink each agree to remit the license fees and other
payments under this Agreement on a timely basis, on or before the 30th
day following each month of the Term.
5.2 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 the
First Programming Service's video programming as carried by Programmer's
Owned Stations ("System Operators"), to the extent that the terms of
such carriage or retransmission are not inconsistent with this
Agreement, but only if, in so doing, Programmer is not subject to any
additional obligations under any such agreements. Programmer shall not
be required to contest in any legal proceeding or otherwise a
determination by a System Operator that it is not required to pass
through to its subscribers Wink Interactive Programs carried by any
Programmer Owned Stations.
5.3 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 and the lowest rate offered any programmer for
the same products and services.
5.4 Wink agrees to extend the following license rights to programming
entities which are owned by Programmer or affiliated with the First
Programming Service:
(a) Programmer can elect to license the Wink Software for Programmer
Owned Stations at any time during the Term, subject to the license and
other fees in Exhibit F, and acknowledging that such license terms are
subject to a 10-hour "Programming Commitment" per week (as defined in
4.9 above) for Interactive Wink Programs. Programmer acknowledges and
agrees that the equipment, installation and integration charges will be
invoiced to Programmer on a time and material basis for Wink's
verifiable, direct, out-of-pocket costs, not to exceed the amount set
forth in Exhibit F. Notwithstanding the foregoing, if Programmer elects
instead to provide any equipment or to use its appropriately trained
personnel to install and integrate the applicable Wink system, then the
one-time equipment, installation and integration charges will be reduced
accordingly.
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(b) Programmer can elect to license the Wink Software for its cable
programming services at any time during the Term, subject to the license
and other fees in Exhibit G, and acknowledging that such license terms
are subject to a 10-hour "Programming Commitment" per week (as defined
in 4.9 above) for Interactive Wink Programs and to the execution of
Exhibit D. Notwithstanding the foregoing, Wink has agreed that, with
respect to Country Music Television, if it elects to become Wink
enhanced and provided Wink's agreement with the The Nashville Network is
still in effect, Wink will (a) provide all licenses of software free of
charge for a one-year period; and (b) will install and integrate the
system on a time and materials basis for Wink's verifiable, direct,
out-of-pocket costs not to exceed $16,000.
(c) [*]
(d) Wink agrees to offer a license of Wink Software to any Other
Programmer Affiliate at prices no less favorable then those contained in
Exhibit H1, provided however that such license terms shall be subject to
a commitment to air Interactive Wink Programs for at least 10 'hours of
programming per week. Wink acknowledges that Programmer has no authority
to and does not hereby make any commitments on behalf of Other
Programmer Affiliates. At Programmer's request, Wink agrees to train
Programmer's personnel to enable Programmer to install and integrate
Wink Software and Hardware and thereby reduce otherwise applicable
installation and integration fees. Programmer also understands and
accepts that Wink is not obligated under this Agreement to provide the
transaction revenue share offered to Programmer in section 4.8 to any
programming service other than 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
Except as noted above, if Programmer elects to exercise its right to
license Wink Software and Hardware for any of its Owned Stations or its
cable programming services all terms and conditions of this Agreement
which are applicable to a programming service of such nature shall
apply.
6. PAYMENT TERMS
6.1 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. Failure by Programmer to make such payments in
the absence of an invoice shall not be considered a material breach
under 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.
7. PROMOTION AND RESEARCH
7.1 The parties agree to use good faith efforts to issue a joint press
release after execution of this agreement subject to written approval by
both parties announcing this Agreement within fourteen (14) days of the
Effective Date of this Agreement. Wink shall be solely responsible for
providing a draft for Programmer's review on a timely basis.
7.2 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.
7.3 Subject to the approvals of 7.4: Wink agrees to promote and feature
Programmer's Interactive Wink Programs as prominently as any other
programming service in Wink's promotion, advertisements and/or marketing
materials (in any and all media), 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. At its election,
Programmer shall have the right to promote its participation as a
charter Wink programmer to cable operators, and upon
CONFIDENTIAL - PAGE 13
14
written approval to serve as a press reference for Wink during the
effective term of the agreement.
7.4 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 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.
7.5 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
CONFIDENTIAL - PAGE 14
15
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 of Winks Responses or the
Wink Viewers shall not be used for any other purpose without the express
consent of Programmer. Notwithstanding the foregoing, Wink agrees that
it shall not include in any of its standard and/or customized reports
any information other than raw data, including aggregate and accumulated
data, program ratings, demographic data, the number of applicable Wink
viewers and other similar "objective" data. [ * ]
8. WARRANTY
8.1 Wink hereby represents and warrants to Programmer that the Wink Software
and Wink Hardware (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 H2 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.
8.2 Wink hereby warrants and represents that the terms contained herein for
licensing of Wink software, provision of Wink services (excluding
one-time deployment charges), sharing of Wink's revenues and for
Programmer's commitment for Interactive Wink Programs, including without
limitation the terms of Exhibits B and C, (collectively, the "Major
Provisions") are as favorable to Programmer as any other agreement Wink
has entered into with other broadcast and cable programming entities.
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 Major
Provisions. Programmer shall have the right during the
-------------
* 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 15
16
next 60 days after its receipt of said notice to assume such new Major
Provisions in their entirety, effective as of the date such Major
Provisions were first agreed to with another Programmer, and amend this
Agreement accordingly. Wink acknowledges and agrees that to obtain the
benefits of such new Major Provisions, Programmer shall only be required
to meet those terms relating to comparable Programmer assets. If
Programmer has no comparable assets, Wink agrees to negotiate in good
faith to determine if other' Programmer assets could be substituted to
allow Programmer to benefit from the terms related to such un-comparable
assets.
8.3 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 cable programmers to enter into with System Operators. If
Wink causes or allows any other 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.
8.4 Wink hereby warrants and represents that the terms contained herein for
licensing of Wink software, provision of Wink services and equipment,
and the Programmer Owned Stations' commitment for Interactive Wink
Programs, including without limitation the terms of Exhibit F,
(collectively, "Owned Stations' Major Provisions") are as favorable as
any other similar agreement Wink has entered into with other broadcast
programming entities for their owned and affiliated stations. 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 broadcast network to include more favorable Owned
Stations' Major Provisions for such network's owned stations. Programmer
shall have the right during the next 60 days after its receipt of said
notice to assume such Owned Stations' Major Provisions in their
entirety, effective as of the date such Owned Stations' Major Provisions
were first agreed to with another broadcast programming entity, and
amend this Agreement accordingly.
8.5 [*]
-------------
* 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 16
17
Section 13 - Confidentiality
Section 14 - Termination
[*]
9. INDEMNIFICATION
9.1 Wink will indemnify and hold harmless Programmer, its parent and
subsidiary companies and Programmer's affiliated television stations
carrying Interactive Wink Programs and each of their respective
employees, directors, agents, and 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 obligations stated
herein or the use of any software, technology or equipment provided by
Wink to Programmer hereunder (including without limitation the Wink
Software and Hardware), or any of Wink's other business activities
directly related to Programmer or this Agreement. 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, but only to the extent that the
malfunction or problem is caused by Programmer's negligent testing of
such Interactive Wink Programs or other negligent failure to adhere to
Wink's standard Criteria for Compliant Interactive Wink Programs, as
defined in Exhibit D, Attachment 1.
9.2 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 obligations stated herein, or any of Programmer's other
business activities directly related to Wink or this Agreement.
-------------
* 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 17
18
9.3. 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 party 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. Notwithstanding the foregoing,
the indemnified party shall have the right, with respect to any claim or
litigation, to retain its own counsel (in addition to counsel retained
by the indemnifying party on the indemnified party's behalf), at its own
expense, and counsel for the indemnified party shall cooperate fully
with the counsel of the indemnified party. Nothing contained herein
shall give the indemnifying party any right, as part of any compromise
or settlement, to impose any obligations upon the indemnified party.
9.4. Wink shall, at its expense, use best efforts to obtain and maintain for
such length of time as is necessary to cover any and all claims arising
in connection with this Agreement, the following insurance policies
acceptable to Programmer: Comprehensive General Liability, including,
without limitation, contractual, product and completed operations
insurance, having a combined single limit (contractual and property
damage) of at least [ * ]; and Professional Liability Insurance,
specifically insuring against any claims, causes of action, damages and
all other related expenses arising pursuant to paragraph 9.1 of this
Agreement, having a combined single limit (contractual and property
damage) of at least [ * ]. Each of the policies required herein shall
include a provision requiring the insurance company to give Programmer
prompt notice, of at least 30 days, of any revision, modification or
cancellation thereof. No revision, modification or cancellation of such
policies which may affect Programmer's rights hereunder shall be made by
Wink without first obtaining the prior written approval of Programmer.
Promptly after securing such policies, Wink shall furnish Programmer
with copies of the certificates of insurance and, at Programmer's
request, copies of the insurance policies. CBS Corporation and CBS
Broadcasting Inc. shall be included as additional insureds in all
policies of insurance (except Workers' Compensation) obtained by Wink in
compliance with this paragraph and all such insurance shall be primary
and not contributing with any similar insurance in effect in the name of
and for the benefit of CBS Broadcasting Inc. or CBS Corporation. Wink
further agrees to maintain Workers' Compensation and Employer's
Liability Insurance according to the requirements of California State
Law.
10. 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 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 18
19
addressed, to the addresses provided in the first paragraph of this
Agreement, and to the attention of:
if to Wink:
Senior Vice President, Programming
with a copy to:
Chief Financial Officer
If to Programmer: Chief Financial Officer
with a copy to: General Counsel
The date of such facsimile transmission, telegraphing or personal
delivery or the next day if by express delivery, or the date three (3)
days after mailing, shall be deemed the date on which such notice is
given and effective.
11. 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.
12. REPRESENTATION
12.1 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 legal obligation which in any way
interferes with its ability to fully, promptly and completely perform
hereunder; (iv) it has all rights necessary to grant the licenses and
rights granted hereunder; and (v) Programmer's exercise of its license
and rights hereunder will not infringe upon the rights of any third
party entity(ies).
12.2 Programmer represents and warrants to Wink that (i) Programmer is a
corporation duly organized and validly existing under the laws of the
State of Pennsylvania; (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.
13. CONFIDENTIALITY
13.1 Each party agrees that it will not use, except in the performance of its
obligations under this Agreement, and will not disclose or give to
others, any of the other party's Confidential Information (as defined
below). Without limiting the generality of the foregoing, each party
will (i) restrict the disclosure of the
CONFIDENTIAL - PAGE 19
20
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 13. 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 nontechnical 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. Programmer understands and acknowledges that Wink may provide
copies of Exhibits A and D to System Operators.
14. TERMINATION
14.1 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 with 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 Attributable Revenue shall be
considered material breaches, and that the terminating party's
termination of this
CONFIDENTIAL - PAGE 20
21
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.
14.2 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, excluding Wink Hardware (which
removal shall be done with as little disturbance as possible to
Programmer's business operations at Wink's sole expense), (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.
15. 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) Except pursuant to paragraph 2.3, 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.
CONFIDENTIAL - PAGE 21
22
(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. CBS CORPORATION
Name: Name:
Title: Title:
CONFIDENTIAL - PAGE 22
23
Exhibit A: Programming Services
Description of Programming Services:
NAME Start of Wink Video VBI line Virtual Insertion
Programming (A/D) Location Ch? Point
First Programming Service
CBS First Air Date Analog XXX XXX New York
Television
Network
Other Programming Services *
CBS Owned
Stations XXX XXX XXX XXX TBD
* Programmer is under no obligation to include programming services other than
the CBS Television Network in this Agreement
Contact Information:
Issue Address Contact(s) Phone /Fax/E-mail
Operations (site visits, VBI insertion, etc.)
TBD
Programming (development and scheduling of Interactive Wink Programs, reports,
etc.)
TBD
Marketing (affiliate marketing, approvals of promotional materials)
TBD
CONFIDENTIAL - PAGE 23
24
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, unless Programmer exercises Its election to contract
directly with Wink on any such advertiser enhancement. All Wink Transaction Fees
will be charged net of credits, refunds and returns.
Wink Transactions/mo. Price/Wink Transaction
Purchase Responses $[*] min./mo. per Interactive Wink Program
creating Purchase Responses
1-5,000 [*]
5,001 - 25,000 [*]
25,001 - 100,000 [*]
100,001 - 250,000 [*]
250,001 - 500,000 [*]
500, 001 + [*]
RFI Responses $[*] min./mo. per Interactive Wink Program
creating RFI Responses
1-5,000 [*]
5,001 - 25,000 [*]
25,001 - 100,000 [*]
100,001 - 250,000 [*]
250,001 - 500,000 [*]
500, 001 + [*]
Polls - report only $[*] min./mo. per Interactive Wink Program creating Poll Responses
1-250,000 Wink Responses [*]
250,001 + [*]
1. Minimum monthly charges per application include UIC (Universal ICAP
code) registration.
2. All volume price breaks are based on 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.
PURCHASE AND REQUEST RESPONSE FEES INCLUDE;
1. Daily name & address lists delivered by fax, e-mail, or electronic FTP
or mailbox.
2. UIC and application registration.
3. Standard report showing number of Wink Responses per day per Interactive
Wink Program per city.
POLLS
The fixed charge includes UIC and application registration, and a standard
reporting that summarizes all Poll responses by type by city. If the application
asks the viewer for telephone prefix or zip code, the summary includes those
totals.
Custom Usage Reports or other Custom Reporting
Custom reports are quoted by the Wink Response Center.
New Fee Structure
CONFIDENTIAL - PAGE 24
-------------
* 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.
25
Wink agrees to provide a new Wink Transaction fee structure for Purchase and RFI
Responses within 60 days of the Effective Date of the Agreement. Programmer is
and will continue to be on a "most favored nations" basis with all broadcasters
and cable networks on all terms contained in this Exhibit B.
CONFIDENTIAL - PAGE 25
26
EXHIBIT C: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 1
This pricing is available to the CBS TV Network 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 On-going Free $24,000
Tech Support On-going Free $6,000
Subtotal On-going $0 $90,000
Server hardware One-time $9,500 N/A
Data Insert. Unit(2) One-time $16,800 N/A
Set-top boxes, misc. One-time $700 N/A
Sub-total One-time $27,000 N/A
Installation and integration One-time $25,000 N/A
Studio site license (5 seats) One-time Free N/A
Svr Studio license (5 seats) One-time Free N/A
Training (3days)(1) One-time Free N/A
Subtotal One-time $0 N/A
TOTAL (3) Both $52,000 $90,000
(1) This base training package provides training on the Wink Software and
Hardware 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) Three units and software modules for one VBI line each.
The above pricing for installation and integration covers all work necessary to
enable scheduling and transmission of program and/or commercial enhancements.
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 26
27
EXHIBIT D: PROGRAMMER'S TERMS FOR CARRIAGE OF INTERACTIVE WINK PROGRAMS
OTHER THAN RETRANSMISSION OF OVER-THE-AIR BROADCASTS
Programmer: CBS Corporation
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 Programming Service already has an agreement for carriage of
Programming Service's video programming ("System Operator").
1. BACKGROUND
Programming Service's 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 Programming Services 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 Programming Services' 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
Programming Services' execution of this IWP Carriage Agreement. The parties
acknowledge that Programming Services 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 Programming Services. The terms and conditions of this IWP Carriage
Agreement shall govern during the entire term of the Charter Programmer
Affiliation Agreement, unless Programming Services and Wink terminate their
Charter Programmer Affiliation Agreement earlier in accordance with the terms of
that agreement.
3. INTEGRITY OF INTERACTIVE WINK PROGRAMS
Programming Services will ensure that the Interactive Wink Programs meet Wink's
criteria for compliant Interactive Wink Programs (See Attachment 1). Programming
Services agrees that each Interactive Wink Program shall have been either
successfully tested by Programming Services or certified as compliant by Wink
prior to the Delivery to System Operator for distribution, and shall bear any
associated costs of such testing.
CONFIDENTIAL - PAGE 27
28
Programming Services 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
Programming Services hereby grants System Operator a non-exclusive license to
distribute the Interactive Wink Programs delivered in the VBI or MPEG of
Programming Services' video signal.
Programming Services 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 as a result of carriage or
retransmission of the Interactive Wink Programs as provided for hereunder.
Programming Services 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 Programming Services 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 Programming Services' 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
Programming Services agrees to utilize the Wink Response Network for two-way
Interactive Wink Programs. Programming Services also agrees to use Wink
Communication's standard scripts and guidelines to generate viewer responses to
two-way Interactive Wink Programs.
6. MARKETING MATERIALS
CONFIDENTIAL - PAGE 28
29
System Operator may prepare marketing materials relating to the Interactive Wink
Programs and may use Programming Services' name, logo, and screen shots from the
Interactive Wink Programs in such marketing materials, provided that such
materials are submitted to Programming Services for review and written approval
prior to distribution. Programming Services agrees to use reasonable .efforts to
respond to such requests for approval in a timely fashion, provided that such
approval shall be in Programming Services' sole discretion.
7. SCOPE
This Agreement does not supersede or affect other Agreements between Programming
Services and System Operator, This Agreement represents all of the terms and
conditions for Programming Services providing Interactive Wink Programs. This
Agreement may be updated from time to time only by express written consent of
Programming Services.
PROGRAMMER
By:
Name:
Title:
Date:
CONFIDENTIAL - PAGE 29
30
EXHIBIT D, ATTACHMENT 1: CRITERIA FOR COMPLIANT INTERACTIVE WINK PROGRAMS
o All Interactive Wink Programs must be registered and contain a unique
universal ICAP code (UIC) prior to being broadcast.
o Registered Interactive Wink Programs have complied with the Wink testing
procedures established to 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 do not cause System Operator
technical or operational problems.
that the I nteractive Wink Programs, if two-way, generates the
appropriate routing address and usage data.
CONFIDENTIAL - PAGE 30
31
EXHIBIT E: EQUIPMENT TO BE PROVIDED BY WINK (PRELIMINARY)
1. WINK HARDWARE (PRELIMINARY)
o Sun Ultra server hardware, configured to support Wink Broadcast
Server 2.x, two Ethernet LAN cards, dial-up modem for remote
diagnostic use
o Norpak TES-3 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
o 2 GI CFT-2200 advanced analog cable set tops for development and
test
2. Programmer Equipment:
Programmer 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 31
32
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 or First year Price Years 2-8
one-time costs Price/
network
Broadcast Server On-going [*] [*]
Automation Server Module(3) On-going [*] [*]
Server Module Engine On-going [*] [*]
Tech Support On-going [*] [*]
Subtotal On-going [*] [*]
Server hardware One-time [*] [*]
Data Insert. Unit(1) One-time [*] [*]
Set-top box, misc. One-time [*] [*]
Sub-total One-time [*] [*]
Installation and integration(2) One-time [*] [*]
Studio site license (5 seats) One-time [*] [*]
Server Studio site license (5 seats) One-time [*] [*]
seats)
Studio/Server training (3x2days)(2) One-time [*] [*]
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 $1,500/VBI line.
(2) $25,000 if including Automation Server Module.
(3) Optional
The above pricing for installation and integration covers all work necessary to
enable scheduling and transmission of program and/or commercial enhancements
based on Wink Studio templates.
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 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 32
33
EXHIBIT G: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 3
Subject to the other terms and conditions of this agreement, this pricing is
available to Programmer's cable programming services. On-going annual fees are
paid one twelfth each month, and are due the first of the month.
Years 2-8
On-going or First year Price/
one-time costs Price network
Broadcast Server On-going $48,000 $48,000
Automation Server Module(3) On-going Free $24,000
Server Module Engine On-going Free $12,000
Tech Support On-going Free $6,000
Subtotal On-going $48,000 $90,000
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 integration(2) One-time $15,000 N/A
Studio site license (5 seats) One-time Free N/A
Server Studio site license (5 seats) One-time Free N/A
Studio/Server training (3x2days)(2) One-time Free N/A
Subtotal One-time $15,000 N/A
TOTAL Both $78,800 $90,000
(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) $25,000 if including Automation Server Module.
(3) Optional
The above pricing for installation and integration covers all work necessary to
enable scheduling and transmission of program and/or commercial enhancements
based on Wink Studio templates.
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 33
34
EXHIBIT H1: WINK SOFTWARE AND SERVICES PRICING, SCHEDULE 4
This pricing is subject to the terms of the Agreement, and is available
to all Other Programmer Affiliates. On-going annual fees are paid one
twelfth each month, and are due the first of the month.
On-going
or one- Years 2-8
time First year Price/
costs Price network
Broadcast Server On-going $62,000 $62,000
Server Module On-going $12,000 $12,000
Engine
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 seats) One-time $3,000 N/A
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 $1,500/VBI line.
The above pricing for installation and integration covers all work necessary to
enable scheduling and transmission of program and/or commercial 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 34
35
EXHIBIT H2: 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 will:
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 35
36
EXHIBIT I: CURRENT WINK ADVERTISER AGREEMENT
ADVERTISER AFFILIATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the day of , 1999 (the "Effective
Date"), by and between Wink Communications, Inc., a California corporation
("Wink"), whose address is 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and
____________, ____________a ____________. corporation ("Advertiser"), whose
address is
1. DEFINITIONS
1.1 "Interactive Wink Program" or "IWP" shall mean an interactive
application that is transported via the vertical blanking interval ("VBI") or an
MPEG private data stream provided concurrently with a video signal in a format
that is compliant with the Wink interactive communications application protocol.
1.2 "Broadcaster" shall mean an entity which delivers television programming
and inserts third-party advertising into such programming, and shall include but
not be limited to: broadcast networks; broadcast network affiliates or other
broadcast stations; operators (both local operators and their parent companies,
if any) of multi-channel systems, including but not limited to cable systems and
direct broadcast satellite systems; and cable networks and other programmers
providing video programming to such operators of multi-channel systems.
1.3 "Wink Tools" shall mean the Wink Studio authoring tool, and other
authoring software or materials which Wink, in it's sole discretion, may provide
in conjunction with Wink Studio.
2. TERM
The term of this Agreement (the "Term") will begin on the Effective Date and
will end on twenty four months later (the "Termination Date").
3. CREATION AND DISTRIBUTION OF WINK-ENHANCED ADS
3.1 Advertiser may contract with any then current licensee of Wink's
authoring tools ("Wink Tools", as defined below) for the creation of IWPs.
Optionally, Advertiser may:
(a) Purchase from Wink a Wink Authoring Starter Kit for $[*], which
includes:
o a five-seat non-exclusive site license to use the Wink Tools
(and all applicable upgrades of same released by Wink during the Term)
at one site of Advertiser during the Term
o a two-day training session at Wink's facilities for up to two
employees (scheduled at Wink's discretion, with reasonable notice to
Advertiser)
o eight (8) hours of IWP phone support for training, consulting or
design assistance
(b) Purchase from Wink creative and consulting services for IWP development
at a rate of $125 per hour, with a $1,000 minimum.
3.2 Before distributing any IWP to a Broadcaster, Advertiser will ensure
that the Interactive Wink Programs follow the Guidelines for Fair Treatment of
Viewers Using Wink, and meet Wink's criteria for technical compliance with the
Wink system. Advertiser agrees that each Interactive Wink Program shall be
certified as technically compliant by Wink prior to the delivery of the IWP to
Broadcasters. It is expected that Wink will complete review of a IWP within one
week of submission by Advertiser. If the IWPs fails certification, Wink shall
provide Advertiser information so as to reasonably enable Advertiser to resolve
any problems preventing certification.
4. WINK RESPONSE NETWORK & OTHER WINK PRODUCTS & SERVICES
CONFIDENTIAL - PAGE 36
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
37
4.1 Advertiser agrees to exclusively use the data center that Wink has
established (the "Wink Response Network") to collect response data from
television viewers which are able to receive and interact with IWP
("Wink-enabled Viewers"). Wink agrees to make such data available for purchase
by Advertiser. Such data shall be prepared in two categories of reports: reports
that document aggregated usage of IWPs ("Usage Reports"), and reports that
provide individual response in which Wink Revenue Responses (as defined below)
from Advertiser's IWPs ("Transaction Reports"). A "Wink Revenue Response" is a
Wink Response in which the Wink-enabled Viewer request products or services
through the IWPs, whether such products and services are 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. Usage Reports and
Transaction Reports are subject to the pricing in Exhibit A, are available in
standard formats, and shall be delivered via electronic mail ("Email") or FTP
formats and protocols to an address specified by Advertiser. Custom-formatted
reports and other products and services shall be made available at prices to be
quoted by Wink upon request. In addition, if Advertiser wishes Wink to transfer
data, reports, or other information in a manner other than Wink's standard Email
or FTP formats and protocols, Wink and Advertiser shall agree on the terms of
such transfer, including but not limited to details and fees regarding EDI
service.
4.2 Advertiser understands and accepts that Wink may provide reports on
aggregated viewer responses to the IWPs to each Broadcaster whose viewers
responded to or are otherwise known to have viewed Advertiser's IWPs. Such
reports shall be noted as Confidential Information under Wink's agreements with
such Broadcasters.
5. PAYMENT TERMS
Advertiser shall pay Wink for each Wink Revenue Response (net of returns,
refunds and credits) triggered by Advertiser's IWPs according to Exhibit A. All
payments shall be made within 30 days of presentation of invoice by Wink. Wink
reserves the right to change the pricing in Exhibit A upon 30 days prior written
notice. In the event of such change, Advertiser shall have the right to maintain
the Purchase Response and Request Response pricing in effect prior to the
effective date of such change for all IWPs registered with Wink prior to the
effective date of the price change. 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 Advertiser 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. INDEMNIFICATION
Wink will indemnify and hold harmless Advertiser, its parent and subsidiary
companies and their respective employees, directors, agents, and 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 material obligations stated herein. Advertiser will indemnify and hold
harmless Wink, any parent and subsidiary companies and their respective
employees, directors, agents, and 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 Advertiser's r material obligations
stated herein. 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.
7. INTELLECTUAL PROPERTY RIGHTS
CONFIDENTIAL - PAGE 37
38
7.1 All rights, title and interest in and to the Wink Tools or other rights,
of whatever nature, related thereto shall remain the property of Wink.
Advertiser acknowledges and agrees that all Wink's 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 Advertiser.
7.2 For purposes of this Agreement, "Viewer Information" shall be defined as
viewer names, contact information (address, phone number, etc.), demographic or
psychographic information, and any responses provided by viewers through the
Wink system or otherwise provided to Wink. Advertiser is hereby granted a
license to use such Viewer Information, but only in a manner consistent with the
Guidelines for Fair Treatment of Viewers Using Wink. Advertiser acknowledges
that any breach of such license may cause irreparable harm and significant
injury to Wink and it's Broadcaster partners to an extent that may be extremely
difficult to ascertain. Accordingly, Advertiser agrees that Wink will have, in
addition to any other rights or remedies available to it at law or in equity,
the right to seek injunctive relief to enjoin any breach or violation of this
Section 9.2.
8. TERMINATION
8.1 Except as otherwise provided herein, neither Advertiser nor Wink may
terminate this Agreement except upon thirty (30) days prior written notice and
then only if the other has breaches any of its material obligations hereunder
and such breach (which shall be specified in such notice) is not or cannot be
cured within thirty (30) days of such notice.
8.2 Upon expiration of the term of this Agreement or upon the termination of
this Agreement or of any license granted hereunder for any reason, all rights of
Advertiser to use the Wink Tools will cease and Advertiser will immediately
purge all copies of all Wink Tools from all computer processors or storage media
on which Advertiser has installed or permitted others to install such Wink
Tools.
9. 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 Advertiser and Wink. Consent shall not be required for assignment to
a corporate affiliate, including but not limited to such that occurs
upon the merger or acquisition of either party by a third party.
b) This Agreement may be amended only by an instrument in writing, executed
by Advertiser 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 Advertiser and Wink.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this
Agreement as of the Effective Date.
For Wink Communications, Inc. For Advertiser:
By: By:
Name: Name:
Title: Title:
CONFIDENTIAL - PAGE 38
39
Date: Date:
CONFIDENTIAL - PAGE 39
40
EXHIBIT A. WINK RESPONSE NETWORK PRODUCTS AND SERVICES
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.
Wink Transactions/mo. $[*] min./mo. per IWP
Purchase Responses Price/Wink Transaction creating Purchase Responses
1-5,000 [*]
5,001- 25,000 [*]
25,001 -100,000 [*]
100,001- 250,000 [*]
250,001- 500,000 [*]
500, 001 + [*]
RFI Responses $[*] min./mo. per IWP
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 IWP 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 Advertiser's monthly transaction
volume by response category. The price breaks are based on the "average"
for the month. That is, the lowest price applies to all transactions for
the month.
PURCHASE AND REQUEST RESPONSE FEES INCLUDE;
1. Daily name & address lists delivered by fax, e-mail, or electronic FTP
or mailbox.
2. UIC and application registration.
3. Standard report showing number of Wink Responses per day per IWP per
city.
4. Weekly Usage Reports in standard format 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 Wink-enabled viewer for telephone prefix or zip code, the summary
includes those totals.
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 Wink-enabled viewer for telephone prefix or zip code, the summary
includes those totals.
USAGE REPORTS
$100 monthly fee if application does not allow viewers to create a Purchase or
Request Response.
CUSTOM USAGE REPORTS OR OTHER CUSTOM REPORTING
Custom reports are quoted by the Wink Response Network.
CONFIDENTIAL - PAGE 40
-------------
* 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.
