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EXHIBIT 10.29
AGREEMENT
This Agreement ("Agreement") is made and entered into as of May 25, 1999
(the "Effective Date"), by and between WINK COMMUNICATIONS, INC., a Delaware
corporation located at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 ("Wink"),
and MICROSOFT CORPORATION, a Washington corporation located at Xxx Xxxxxxxxx
Xxx, Xxxxxxx, XX 00000 ("MS" or "Microsoft").
RECITALS
Whereas, Microsoft develops, markets and licenses computer software and
a variety of services for devices that receive and display video and data
services, including personal computers, settop boxes, televisions and internet
devices;
Whereas, Wink provides viewer response services to video broadcasters
and advertisers as well as software and tools to enable the receipt and display
of certain enhanced content over video using proprietary Wink protocols;
Whereas, contemporaneously with the execution of this Agreement
Microsoft and Wink are executing a stock purchase agreement and related warrant
purchase agreement and other related documents pursuant to which Microsoft is
acquiring an equity position in Wink in return for investing approximately
thirty million dollars ($US30,000,000); and
Whereas, pursuant to the terms of this Agreement, the parties wish to
set forth the terms under which they will cooperate to promote an open industry
standard format for enhanced content, Microsoft software and services for video
and data services and Wink viewer response services;
The parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
"Activated for Wink" means a Microsoft Video Platform Device that is
Enabled for Wink and (i) the user has registered with the Microsoft content
service for such device and Wink is provided with the necessary information to
fulfill the applicable TV viewer response, (ii) the user has registered with the
Wink Response Network Services or (iii) Wink has the right to obtain revenue
from Wink Response Network Services.
"Annual Revenue Guaranty" means the minimum annual revenue set forth in
Exhibit A to be paid by Wink to Microsoft for each Microsoft Controlled Video
Platform Device that was first Activated for Wink during the applicable Pooling
Period.
"Pooling Period" shall mean the monthly period during a given year in
which a Microsoft Controlled Video Platform Device was first Activated for Wink.
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"Revenue Share" means the gross revenues payable by Wink customers to
Wink with respect to or derived from Purchase and Request Transaction Services
in connection with Microsoft Controlled Video Platform Devices Activated for
Wink. [*]
"ATVEF Compliant" means compliant with the Specification for Interactive
Television v.1.1 of the Advanced Television Enhancement Forum.
"Deliverables" shall mean the Wink Response Network Services adapted
for use with Microsoft Video Platforms and the items identified as deliverables
in the Specifications.
"Derivative Technology" shall mean: (i) for copyrightable or copyrighted
material, any localization, translation (including translation into other
computer languages), portation, modification, correction, addition, extension,
upgrade, improvement, compilation, abridgment or other form in which an existing
work may be recast, transformed or adapted; (ii) for patentable or patented
material, any improvement thereon; and (iii) for material which is protected by
trade secret, any new material derived from such existing trade secret material,
including new material which may be protected by copyright, patent and/or trade
secret.
"Enabled for Wink" means a Microsoft Video Platform Device that has the
capability to (a) return TV viewer responses to Wink in accordance with mutually
agreed upon specifications and (b) display ATVEF Compliant content.
"Existing Contracts" shall mean the list of agreements or other
arrangements under which Wink has the obligation to deliver the Wink ICAP Engine
for use on specified Video Platform Devices as set forth in Exhibit B. [*]
"Intellectual Property" shall mean any copyrights, patents (including
patent improvements), patent applications, patent rights, trade secrets, or
other intellectual property rights (but not trademarks, trade names or service
marks) under applicable law.
"International Service Markets" shall mean those countries outside the
United States in which Wink operates a commercially competitive Wink Response
Network Service capable of providing such services to Microsoft Video Platform
Devices.
"Microsoft Controlled Video Platform Device" means a commercially
available Video Platform Device for which Microsoft exclusively controls: (1)
the operating system, (ii) application environment and (3) the content and data
services available for the device, including but not limited to services such as
the Wink Response Network Services.
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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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"Microsoft Video Platform Devices" means a Video Platform Device that
makes use of one of the Windows family of operating systems or any other
Microsoft or its subsidiary products that facilitate or enable, or when used
with other products, facilitate or enable the receipt and decoding of analog or
digital television broadcasts or transmissions on a Video Platform Device,
together with any revisions, updates, or upgrades thereto. Personal computers,
WebTV Classic and other internet only terminals shall not be considered a Video
Platform Device for purposes of this Agreement.
"Purchase and Request Transaction Services" shall mean the collection,
aggregation or processing of viewer responses in connection with any purchase,
coupon, information or other transaction, where the viewer response is generated
from content delivered as part of the broadcast signal for video programming.
"Subsidiary" shall mean a partnership, company or other entity in which
more than fifty percent (50%) of the stock entitled to vote for the election of
directors is owned by Microsoft.
"Video Platform Device" means a consumer electronics product that
receives and displays video programming.
"Current Response Network Services" means those specific operational
services for the collection and processing of TV viewer responses for Purchase
and Request and Transaction Services that Wink provides as of the Effective Date
where the TV viewer response is directed to the Wink data center by Wink
customers contracting with Wink for in-video interactive content authored by
Wink (or Wink customers that have contracted with Wink to provide Current
Response Network Services) in the current Wink ICAP format delivered solely as
part of the broadcast signal for video programming. For the avoidance of doubt,
it is understood by the parties that Current Response Network Services do not
include the collection or processing of TV viewer responses collected or
provided: (i) through a web site, (ii) email, (iii) other means managed by the
developer, distributor, advertiser, broadcaster owner, licensee or any other
party directly or indirectly responsible for the content, (iv) through internet
sites, internet portals, or interactive television links and (v) from the WebTV
Network service, MSN or their successors or replacements.
"Wink Response Network Services" means the specific operational services
for the collection and processing of TV viewer responses that Wink provides
where the TV viewer responses are directed to the Wink data center by Wink
customers contracting with Wink for ATVEF Compliant content delivered solely as
part of the broadcast signal for video programming. For the avoidance of doubt,
it is understood by the parties that Wink Response Network Services do not
include the collection or processing of TV viewer responses collected or
provided: (i) through a web site other than xxx.xxxx.xxx, (i) email, (iii) other
means managed by or on behalf of the developer, distributor, advertiser,
broadcaster owner, licensee or any other party directly or indirectly
responsible for the content, (iv) through internet sites, internet portals,
interactive television links and (v) from the WebTV Network service, MSN or
their successors or replacements.
"Wink ICAP Engine" means the proprietary software authored by Wink for
the reception and display of content using the ICAP protocol as described in
Exhibit D.
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2. AREAS OF COOPERATION
2.1 Transaction Processing
2.1.1 Microsoft and Wink will use commercially
reasonable efforts to make Enabled for Wink
those Microsoft Controlled Video Platform
Devices deployed in the United States and
International Service Markets. The parties shall
agree upon the schedules and specifications for
such work and use commercially reasonable
efforts to begin Wink Response Network Services
with respect to such Microsoft Controlled Video
Platform Devices as follows:
(a) [*]
(b) [*]
(c) [*]
2.1.2 During the term of this Agreement, for Microsoft
Controlled Video Platforms deployed in the
United States, Wink will be the exclusive
provider of Current Response Network Services
for Microsoft Controlled Video Platform Devices.
[*]
2.1.3 During the term of this Agreement, for Microsoft
Controlled Video Platforms deployed in the
United States, Microsoft shall not (i) provide
Current Response Network Services to Microsoft
Controlled Video Platforms either directly with
a Subsidiary or
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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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through a Subsidiary or (ii) contract with a
third party to provide such services.
2.1.4 Wink will maintain a commercially competitive
Wink Response Network Service.
2.1.5 Microsoft and Wink will also use commercially
reasonable efforts to make Enabled for Wink
those Microsoft Video Platforms based on the
primary Microsoft operating system product
offered by Microsoft for television and set top
box devices and its successors that are deployed
in the United States and International Service
Markets. The parties shall agree upon a schedule
and specification for such work. The parties
acknowledge that the primary Microsoft product
for such devices as of the Effective Date is
referred to by Microsoft as TVPak. [*]
2.2 Revenue Share Payments. Each calendar quarter, Wink
shall pay Microsoft [*] of the Revenue Share payable to
Wink during such quarter in connection with the
Microsoft Controlled Video Platform Devices. In the
event that the Revenue Share for a Microsoft Controlled
Video Platform Device payable to Wink during the
applicable calendar quarter exceeds [*], Wink shall pay
Microsoft [*] of the Revenue Share for such calendar
quarter. Such payments shall be remitted within thirty
(30) days of the end of each calendar quarter to such
account as Microsoft may specify from time to time by
written notice. Such payments by Wink shall be
accompanied by a statement setting forth the basis for
the calculation of amounts owed to Microsoft and shall
contain information sufficient for Microsoft to
determine and verify the basis for such calculations.
2.3 Annual Revenue Guaranty. Each Microsoft Controlled Video
Platform shall be assigned a Pooling Period based on the
date such device was Activated for Wink. On the first
anniversary date of the end of the Pooling Period
(twelve (12) months after the end of the Pooling
Period), Wink shall pay Microsoft the difference, if
any, between the total amount of the Revenue Share paid
to Microsoft with respect to such Microsoft Controlled
Video Platform Device during the previous twelve (12)
months and the Annual Revenue Guaranty. In the event
that the Microsoft Controlled Video Platform Device
continues to be capable of Purchase and Request
Transaction Services as of the first anniversary date of
the Pooling Period, Wink shall continue to pay Microsoft
the difference between the Revenue Share and the Annual
Revenue Guaranty on an annual basis as set forth above
until such time as Microsoft has been paid [*] for such
Microsoft Controlled Video Platform Device.
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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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Thereafter, on each anniversary date of the Pooling
Period, Wink shall pay Microsoft the difference, if any,
between the Revenue Share paid to Microsoft with respect
to such Microsoft Controlled Video Platform Device
during the previous twelve months and the Prorated
Annual Revenue Guaranty. The Prorated Annual Revenue
Guaranty shall be defined as the Annual Revenue Guaranty
multiplied by the percentage obtained by dividing the
number of months during the previous twelve (12) months
for which the device was capable of Purchase and Request
Transactions by twelve (12). Such payments shall be
remitted each year within thirty (30) days of the twelve
(12) month anniversary date of the applicable Pooling
Period applicable to such device. Payments shall be
remitted to such account as Microsoft may specify from
time to time by written notice and shall be accompanied
by a statement setting forth the basis for the
calculation of amounts owed to Microsoft and shall
contain information sufficient for Microsoft to
determine and verity the basis for such calculations.
2.4 Wink Response Network Services to Microsoft. Upon
request, Wink agrees to provide the Wink Network
Response Services to Microsoft. The rates charged by
Wink for such services shall be [*]. The parties shall
negotiate the rates and payment terms for such services
in good faith following execution of this Agreement.
2.5 ATVEF. Microsoft and Wink desire to enter into a broad
cooperation to promote ATVEF Compliant content, products
and services. In connection with this cooperation,
Microsoft will work to make its operating system
software for Microsoft Video Platforms ATVEF Compliant
and Wink will work to convert its line of products and
services from dependencies on ICAP protocols and the
Wink ICAP Engine to products and services that are ATVEF
Compliant. The specific obligations of each party in
connection with these ATVEF Compliant efforts are set
forth below.
2.5.1 Wink will use commercially reasonable efforts to
make its existing deployed products, platforms
and services ATVEF Compliant.
2.5.2 Wink will use commercially reasonable efforts to
make its Broadcast, Automation and Response
Servers ("Servers") ATVEF Compliant in
connection with Response Network Services
provided to Microsoft Video Platform Devices
that have been Activated for Wink.
2.5.3 Wink will use commercially reasonable efforts to
enhance its Studio Authoring tools to support
ATVEF Compliant content on all Microsoft Video
Platform Devices that have been Activated for
Wink. Wink will use commercially reasonable
efforts to provide developers the ability to
author a Wink application in Wink Studio such
that the Wink application can be successfully
delivered on all Microsoft Video
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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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Platform Devices that have been Activated for
Wink whether they support the ICAP Engine or
ATVEF Compliant content.
2.5.4 Wink shall use commercially reasonable efforts
to adapt its Broadcast, Automation and Response
Servers to make them ATVEF Compliant. [*]
2.6 Development Expenses. Each party shall bear its own
expenses in connection with the development efforts
necessary to support the parties' respective products
and services as described in this Section 2. In the
event Microsoft desires to hire Wink to provide software
development services in connection with Video Platform
Devices and the parties cooperation under this
agreement, such services shall be billed to Microsoft at
the lowest rates Wink charges for custom software
development.
2.7 Intentionally Left Blank.
2.8 Release of Certain Obligations. Thirty (30) months after
the commercial release of any Microsoft Controlled Video
Platform that is Enabled for Wink ("First Ship Date"),
Microsoft shall have the option of ending its
obligations under Section 2.1.2 and 2.1.3 by providing
Wink with six (6) months advanced written notice of such
intent. [*] In the event that Microsoft exercises this
option:
(a) Wink's obligations with respect to the Annual
Revenue Guaranty in Section 2.3 shall not apply
with respect to Microsoft Controlled Video
Platform Devices after the effective date of
such notice;
(b) the license granted to Microsoft under Section 4
with respect to the Wink ICAP Engine shall be
deemed non-exclusive;
(c) payments made to Microsoft under Section 2.2
(Revenue Share) shall be calculated against
gross revenue payable to Wink for Wink Response
Network Services in connection with Microsoft
Controlled Video Platform Devices; and
(d) Microsoft's obligations under Section 2.1.1
shall not be affected by Microsoft's election
under this Section.
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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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(e) The parties obligations with respect to Sections
3.1, 3.2 and 4.5 (d) and 4.6 shall no longer
apply.
2.9 Use of Customer Information. From time to time,
Microsoft may make available to Wink certain identifying
and other information concerning end user customers of
Microsoft Video Platform Devices. Wink agrees that it
shall use such information solely to fulfill the
specific Purchase and Request Transaction Service for
which the information has been provided by Microsoft.
Wink shall make no other use of such information without
the written permission of Microsoft in each instance.
Wink shall comply with all privacy and other laws and
regulations concerning governing the use of customer
information in every country or territory in which it
provides Purchase and Request Transaction Services for
Microsoft Video Platform Devices.
2.10 Right to Audit. During the term of this Agreement and
for three (3) years thereafter, Wink agrees to keep all
usual and proper records and books of account and all
usual and proper entries relating to the Purchase and
Request Transaction Services and any services that form
the basis for payments to Microsoft under this Agreement
sufficient to substantiate the amounts owed to
Microsoft. Wink shall maintain on Wink premises such
records for itself and for each Wink Subsidiary which
exercises rights under this Agreement.
(a) In order to verify statements issued by Wink and
Wink's compliance with the terms of this
Agreement, Microsoft may cause (i) an audit to
be made of Wink's and/or Wink's Subsidiaries'
books and records. Any audit shall be conducted
during regular business hours at Wink's and/or
Wink's Subsidiaries' facilities, with prior
notice. Any audit shall be conducted by an
independent certified public accountant selected
by Microsoft.
(b) Wink agrees to provide Microsoft's designated
audit team access to the relevant Wink's and/or
Wink's Subsidiaries' records and facilities.
(c) Prompt adjustment shall be made to compensate
for any errors or omissions disclosed by such
audit. Any such audit shall be paid for by
Microsoft unless material discrepancies are
disclosed. "Material" shall mean five percent
(5%) of the amount that was reported. If
material discrepancies are disclosed, Wink
agrees to pay Microsoft for the costs associated
with the audit. In no event shall audits be made
more frequently than annually unless the
immediately preceding audit disclosed a material
discrepancy.
2.11 Communication. From time to time the parties
shall meet to discuss additional business
opportunities and development plans.
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3. MARKETING AND PROMOTION ACTIVITIES
In order to maximize the mutual benefits of the parties' cooperation
under this Agreement, Wink and Microsoft will work to promote their respective
products and services as described below.
3.1 Promotion of Microsoft Video Platform Devices. Wink and
Microsoft will work together to evangelize and promote
the adoption of Microsoft Video Platform Devices to
potential customers of Wink Response Network Services,
including cable operators, DBS operators, television and
set top box manufacturers. Except as set forth in
Section 4.5 and 4.6, Wink shall evangelize and promote
Microsoft Video Platform Devices on a first priority
basis and shall not evangelize and promote any other
other platforms and services for Video Platform Devices,
including Video Platform Devices that make use of the
Wink ICAP Engine technology, unless such Video Platform
Devices and content for such devices are exclusively
ATVEF Compliant.
3.2 Promotion of Wink Response Network Services and ATVEF
Compliant Content. Microsoft and Wink will work together
to evangelize and promote the adoption of Wink Response
Network Services and ATVEF Compliant content to
potential customers of Microsoft Video Platform Devices,
including cable operators, DBS operators, television and
set top box manufacturers. Microsoft will also use
commercially reasonable efforts to include a reference
to such Wink Response Network Services in its functional
specifications for Microsoft Video Platform Devices. In
addition, Wink and Microsoft shall meet from time to
time to discuss marketing and promotional opportunities,
including opportunities for Wink to participate in
presentations, trade shows and sales and marketing
materials targeted to potential purchasers of Microsoft
Video Platform Devices.
3.3 [*]
4. WINK ICAP ENGINE
Wink and Microsoft acknowledge the mutual benefits to the parties of
concentrating their development and marketing resources on Microsoft Video
Platform Devices, promoting products and services that are compliant with the
industry standard ATVEF specification and offering Microsoft the option to
develop a Video Platform Device offering based on the Wink ICAP Engine or
Derivative Technology thereof. Notwithstanding this mutual objective, the
parties recognize that during a transition period is necessary and beneficial
for Wink to continue to provide Wink Response Network Services based on the Wink
ICAP Engine as set forth below.
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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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4.1 License to Wink ICAP Engine Technology. Wink hereby
grants to Microsoft under all its intellectual property,
an exclusive (except as set forth in Section 4.3),
perpetual, royalty-free, fully paid up, worldwide
(except as set forth in Section 4.5) right and license
with respect to Microsoft Video Platform Devices to:
(a) Use, copy, edit, format, modify, translate and
create Derivative Technology of the source and
object code versions of the Wink ICAP Engine;
(b) Reproduce, license, rent, lease or otherwise
distribute, and have reproduced, licensed,
rented, leased or otherwise distributed, to and
by third parties, source and/or object code
versions of the Wink ICAP Engine, and any
Derivative Technology thereof; and
(c) Grant the rights set forth in this Section 4.1
to third parties, including the right to license
such rights to further third parties.
Except as set forth in Section 4.3 below, the foregoing
rights and license rights are exclusive to all parties,
including Wink. [*] Microsoft shall be free to market
products and services based on the Wink ICAP Engine and
Derivative Technology thereof under its own brand names
and trademarks and shall be free to remove Wink brand
names and trademarks. The foregoing rights and licenses
also include a license under any current and future
patents owned or licensable by Wink to the extent
necessary to: combine the Wink ICAP Engine or Derivative
Technology thereof with any hardware and software in
connection with Video Platform Devices.
4.2 Trademarks and Logos. Wink grants to Microsoft and its
Subsidiaries a perpetual, royalty-free, fully paid up,
worldwide right and license in connection with the
promotion, marketing and distribution of its products
and services for Microsoft Video Platform Devices to use
and reproduce the names, logos and screen shots
(collectively, "Wink Marks") used by Wink in connection
with Wink Response Network Services or the Wink ICAP
Engine. Use of the Wink Marks by Microsoft and its
Subsidiaries shall be in accordance with reasonable Wink
guidelines for the Wink Marks as are generally used by
Wink with third parties. MS will maintain quality
standards with respect to its products and services for
Microsoft Video Platform Devices that meet or exceed
industry standards and are at least commensurate with
those for products and services previously distributed
by Microsoft. Wink is the sole owner of all right, title
and interest it possesses as of the Effective
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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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Date in and to the Wink Marks. No rights or ownership in
and to the Wink Marks are intended to be or shall be
transferred to Microsoft.
4.3 Reservation of Rights. All rights with respect to the
Wink ICAP Engine not granted under this Agreement are
expressly reserved by Wink. Except as otherwise provided
in this Agreement, the license grants set forth in
Section 4 shall not be construed as granting, by
implication, estoppel or otherwise, a license to any
other Wink Intellectual Property.
4.4 Limit on Certain License Rights Outside U.S. The license
rights granted by Wink with respect to the Wink ICAP
Engine shall not apply outside the United States in a
country or territory other than an International Service
Market in connection with:
(a) a Microsoft Video Platform Device deployed
outside the United States that was designed by
Microsoft primarily to display content created
in the Wink ICAP protocol format or a protocol
that was substantially and primarily derived
from the source code to the Wink ICAP Engine.
Wink acknowledges that (i) for purposes of this
Agreement the ATVEF Compliant format is not
substantially and primarily derived from the
Wink ICAP Engine source code and (ii) the
development of protocols or products similar to
the Wink ICAP protocol or Wink ICAP Engine by
persons who at one time had reviewed or worked
with such materials shall not constitute
development that is substantially or primarily
derived from the Wink ICAP protocol; and
(b) the operation of services that constitute
Current Response Network Services.
In the event that Microsoft makes use of the ICAP Engine in violation of
this Section, MS and Wink agree to negotiate a commercially reasonable fee for
such use.
4.5 Treatment of Continuing Obligations and Certain Video
Platform Devices and Customers. Subject to its
obligations with respect to ATVEF in Section 2.2, Wink
may, at its option, continue to sell Wink ICAP Engine
and Wink Response Network Services for Wink ICAP Engine
based Video Platform Devices as follows:
(a) to fulfill legal obligations under Existing
Contracts;
(b) [*]
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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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(c) [*]
(d) In the event that both Wink and Microsoft have
fulfilled their obligations under Sections 2.5
and 3, to a customer that has notified Microsoft
of their final decision not to deploy Microsoft
Video Platform Devices and the customer has
elected to deploy a Video Platform Device that
can display ATVEF: Compliant content, the Wink
products or services offered to such customer
for the applicable Video Platform Devices shall
be capable of displaying ATVEF Compliant content
but not content that makes use of the ICAP
protocol. If the customer has elected to deploy
a device that is not capable of displaying ATVEF
Compliant content, the Wink products and
services offered to such customer for the
applicable Video Platform Device may be capable
of displaying content that makes use of the ICAP
protocol. [*]
4.6 [*]
4.7 Error Corrections. Wink shall continue to be responsible
for customer support and error corrections for its line
of Wink ICAP Engine related products, services, tools
and content sold, distributed or licensed by or on
behalf of Wink or its Subsidiaries.
5. NON-ASSERTION OF PATENTS.
[*]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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Wink for inventions made prior to [*], or for which Wink has or acquires rights
prior to that date.
6. INVESTMENT
Contemporaneously with the execution of this Agreement, Wink and MS
shall enter into a Series D Preferred Stock Purchase Agreement and Related
Warrant Purchase Agreement that set forths the terms and conditions under which
Microsoft will invest approximately $30 million in Wink. This Agreement shall
have no effect until such time as the Stock Purchase Agreement has been executed
and its conditions to funding have been satisfied.
7. CONFIDENTIALITY
The information exchanged by the parties hereunder, including the terms
and conditions hereof, shall be subject to the Non-Disclosure Agreement between
the parties dated May 25, 1999.
8. WARRANTIES
8.1 Wink. Wink warrants and represents that:
8.1.1 It has the full power to enter into this
Agreement and make the assignments and license
rights set forth herein;
8.1.2 It has not previously and will not grant any
rights to any third party that are inconsistent
with the rights granted to Microsoft herein;
8.1.3 Microsoft's exercise of rights granted to
Microsoft hereunder in the Deliverables shall
not infringe any copyright or misappropriate any
trade secret or any other proprietary rights,
other than patent rights, held by any third
party; and
8.1.4 To the best of Wink's knowledge, Microsoft's
exercise of rights granted to Microsoft
hereunder in the Deliverables shall not infringe
or misappropriate any patent rights held by any
third party.
8.1.5 Neither Wink's execution nor performance of this
Agreement will result in a breach of any other
agreement or obligation by which Wink is bound.
8.2 Microsoft. Microsoft warrants and represents that:
8.2.1 It has the full power to enter into this
Agreement and make the assignments and license
rights set forth herein;
8.2.2 It has not previously and will not grant any
rights to any third party that are inconsistent
with the rights granted to Wink herein; and
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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8.2.3 Neither Microsoft's execution nor performance of
this Agreement will result in a breach of any other
agreement or obligation by which Microsoft is
bound.
8.3 Disclaimer. THIS SECTION 8 CONTAINS THE ONLY WARRANTIES
MADE BY MICROSOFT AND WINK. ANY AND ALL OTHER WARRANTIES
ARE EXPRESSLY EXCLUDED AND DECLINED. EXCEPT AS
EXPLICITLY SET FORTH IN SECTION 8, EACH PARTY DISCLAIMS
ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS,
INCLUDING IMPLIED OR STATUTORY WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE.
9. TERMINATION
9.1 Term. The term of this Agreement shall commence as of
the Effective Date and shall continue for a period of
ten (10) years or until terminated as provided in this
Section 10.
9.2 Termination for Cause. Either party may suspend
performance and/or terminate this Agreement immediately
upon written notice at any time if:
(a) The other party is in material breach of any
material warranty, term, condition or covenant
of this Agreement, other than those contained in
Section 7, and fails to cure that breach within
thirty (30) days after written notice thereof;
or
(b) The other party is in material breach of Section
7.
A party shall not be considered to be in breach for
purposes of this Section if such breach is directly as a
result of a delay or failure by the other party to
perform an obligation under this Agreement or deliver a
Deliverable for which it is responsible and the first
party has given notice of the breach to the other party
who then fails to cure such breach.
9.3 Effect of Termination. Sections 1, 2.5, 3.3, 7-11 shall
survive termination or expiration of this Agreement. At
Microsoft's option, Sections 2.2 and 2.3 shall survive
expiration or termination of this Agreement with respect
to Microsoft Controlled Video Platform Devices that are
Activated for Wink prior to the expiration or
termination of this Agreement, provided that in the
event MS makes this election, Microsoft's obligations
under Sections 2.1.2 and 2.1.3 shall also survive with
respect to such devices. [*]
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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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10. LIMITATION OF LIABILITIES
10.1 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES,
INCLUDING COSTS OF COVER, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN
THE EVENT THAT THE WARRANTIES AND REMEDIES SET FORTH
HEREIN ARE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL
PURPOSE. IN NO EVENT SHALL EITHER PARTIES' LIABILITY
(WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF ANY CLAIM OR ACTION BASED
UPON OR RELATED TO THIS AGREEMENT EXCEED [*].
10.2 THIS PROVISION HAS NO APPLICATION TO SECTION 7.
11. GENERAL
11.1 Notices. All notices and requests in connection with
this Agreement shall be deemed given as of the day they
are received either by messenger, delivery service, or
in the United States of America mails, postage prepaid,
certified or registered, return receipt requested, and
addressed as follows:
To Wink: To Microsoft:
Wink Communications, Inc. Microsoft Corporation
0000 Xxxxxx Xxxxxxx Xxxxxxx Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attention: Chief Financial Officer Attention: V.P., Consumer
& Commerce Group
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Copy to: Copy to:
Senior Vice President, US Operations Law & Corporate Affairs
Fax: 000-000-0000
or to such other address as a party may designate pursuant to
this notice provision.
11.2 Independent Contractors. Wink is an independent
contractor for Microsoft, and nothing in this Agreement
shall be construed as creating an employer-
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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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16
employee relationship, a partnership, or a joint venture
between the parties. Each party shall be solely
responsible for its salaries, benefits, and any
applicable taxes, and in no event shall the employees of
one party be considered common law employees of the
other party.
11.3 Taxes. In the event taxes are required to be withheld on
payments made under this Agreement by any U.S. (state or
federal) or foreign government, the paying party may
deduct such taxes from the amount owed the receiving
party and pay them to the appropriate taxing authority.
The paying party shall in turn promptly secure and
deliver to the receiving party an official receipt for
any taxes withheld. The paying party will use reasonable
efforts to minimize such taxes to the extent permissible
under applicable law.
11.4 Governing Law. This Agreement shall be governed by the
laws of the State of Washington as though entered into
between Washington residents and to be performed
entirely within the State of Washington, and Wink
consents to jurisdiction and venue in the state and
federal courts sitting in the State of Washington, King
County. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any
provision of this Agreement the prevailing party shall
be entitled to recover its costs, including reasonable
attorneys' fees.
11.5 Assignment. This Agreement shall be binding upon and
inure to the benefit of each party's respective
successors and lawful assigns. Neither party may assign
this Agreement, whether by contract, sale of assets,
operation of law, merger or otherwise, without the prior
written approval of the other party, which approval may
be withheld in the approving party's sole discretion. In
the event that Microsoft withholds such approval in
connection with a merger by Wink or sale of all or
substantially all of Wink's assets, then Wink shall have
the right to terminate this Agreement in accordance with
its terms upon [*] days prior written notice to
Microsoft.
11.6 Construction. If for any reason a court of competent
jurisdiction finds any provision of this Agreement, or
portion thereof, to be unenforceable, that provision of
the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in
full force and effect. Failure by either party to
enforce any provision of this Agreement will not be
deemed a waiver of future enforcement of that or any
other provision. This Agreement has been negotiated by
the parties and their respective counsel and will be
interpreted fairly in accordance with its terms and
without any strict construction in favor of or against
either party.
11.7 Force Majeure. Neither party shall be liable for failure
or delay in the performance of any of its obligations
under this Agreement if such delay or failure is caused
by circumstances beyond the control of the party
affected.
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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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Strikes or other labor difficulties that are only
capable of being terminated on terms reasonably
unacceptable to the party affected shall not be
considered circumstances within the control of such
party.
11.8 Publicity and Press Matters. The parties anticipate that
they will make a mutually agreed upon announcement or
press release concerning this Agreement at a mutually
agreed upon time based on the following themes: (a) the
parties cooperation around ATVEF Compliant products and
services, (b) promotion by Wink of Microsoft Video
Platforms and (c) promotion by Microsoft of Wink
Response Network Services. Neither party shall make any
other public press release or announcement about this
Agreement or the parties' discussions without the
written consent of the other party.
11.9 Entire Agreement. This Agreement does not constitute an
offer by Microsoft and it shall not be effective until
signed by both parties. This Agreement, the
Non-Disclosure Agreement referenced in Section 7 and the
Exhibits identified below, together constitute the
entire agreement between the parties and merges and
supersedes all prior and contemporaneous communications.
It shall not be modified except by a written agreement
dated subsequent to the date of this Agreement and
signed on behalf of Wink and Microsoft by their
respective duly authorized representatives. This
Agreement may be executed by the parties in
counterparts.
12. EXHIBITS
The following Exhibits are hereby made part of this Agreement
Exhibit A Annual Revenue Guaranty
Exhibit B Existing Contracts
Exhibit C Schedule
Exhibit D Wink ICAP Engine
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the Effective Date written above.
MICROSOFT CORPORATION WINK COMMUNICATIONS, INC.
/s/ Xxx XxXxxx /s/ Xxxxxx Xxxxxxxxxxx
------------------------------- -------------------------------
By (Sign) By (Sign)
Xxx XxXxxx Xxxxxx Xxxxxxxxxxx
------------------------------- -------------------------------
Name (Print) Name (Print)
VP President & CEO
------------------------------- -------------------------------
Title Title
5/25/99 5/25/99
--------------- ---------------
Date Date
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EXHIBIT A
ANNUAL REVENUE GUARANTY
[*]
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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.
20
EXHIBIT B
EXISTING CONTRACTS
1. Bresnan Communications, Co. Cable Affiliation Agreement dated 7/29/98
2. Century Communications Corp. Programming Agreement dated 11/21/97
3. Charter Communications Cable Affiliation Agreement dated 10/8/97 with
Attachment D dated 3/16/98 and Attachment E dated 3/12/99
4. Comcast Corporation Cable Affiliation Agreement dated 12/10/98
5. Cox Palos Verdes Cable Affiliation Agreement dated 1/15/99
6. DIRECTV, Inc. Master Affiliation Agreement dated 12/22/98
7. General Instrument Corporation Development and License Agreement dated
6/8/95; Addendum No. 1 dated 1/24/97; Addendum No. 2 dated 8/18/97;
Statement of Work dated 7/10/98 (aka Digital Agreement)
8. Xxxxx Programming Services Inc. Cable Affiliation Agreement dated 5/3/98
9. Pioneer Electronic Corporation Development & License Agreement dated
1/5/98
10. Satellite Services, Inc. Agreement dated 1/1/99 (aka TCI deal)
11. Scientific-Atlanta Development & License Agreement dated 1/15/96;
Amendment No. 1 dated 1/27/98
12. Scientific-Atlanta, Inc. Joint Marketing and Support Agreement dated
8/21/98 (aka Digital Agreement)
13. Thomson Consumer Electronics, Inc. Development and License Agreement
dated 4/14/99
14. Time Warner Cable Master Cable Affiliation Agreement dated 9/23/98
15. Time Warner Cable of New York City System Addendum dated 11/25/98
16. Toshiba American Consumer Products, Inc. Engine License Agreement dated
10/6/97
17. Toshiba Corporation Wink Engine License Agreement dated 9/30/97 and
Amendment No. 1 dated 9/30/97: Amendment dated 1/15/98; Amendment No. 2
dated 12/31/98
18. Toshiba Corporation Wink Online Server for Intertext License Agreement
dated 9/30/97 & Amendment dated 9/30/97; Amendment No. 1 dated 12/31/98
19. Toshiba Corporation Wink Application Server License Agreement & Addendum
dated 9/30/97; Amendment No. 1 dated 4/1/98; Amendment No. 2 dated
4/31/98
20. Toshiba Corporation Agreement of Development of Demonstration Software
dated 1/25/99, Amendment No. 1 dated 2/25/99
21
EXHIBIT C
SCHEDULE
22
EXHIBIT D
WINK ICAP ENGINE
The Wink ICAP Engine shall mean the following:
1. Version 1 and 2 of the source and object code for the Wink ICAP
Engine contained in Wink's software control library, including
any tools, compilers and other products or programs necessary to
compile and create the build environment for the Wink ICAP
Engine.
2. Any related documentation which Wink has, or future
documentation which Wink may create in its sole discretion.
