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EXHIBIT 10.21
DEVELOPMENT AND LICENSE AGREEMENT
THIS DEVELOPMENT AND LICENSE AGREEMENT (the "Agreement") is made
as of Jan 5, 1998 (the "Effective Date"), between Wink Communications, Inc., a
California corporation with offices at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX
00000 ("Wink") and Pioneer Electronic Corporation Ltd., a Japanese corporation
having a principal place of business at 00-0, Xxxxxx-xxxxx, 0-xxxxx, Xxxx-xx,
Xxxxx, 143 0-0 ,Xxxxxx-Xx, Xxxxx, X000, Xxxxx ("Pioneer").
BACKGROUND
A. Wink is a software developer that has been developing a
software protocol for delivering interactive applications synchronized with or
independent of television programs and advertisements. Wink is in the business
of customizing and licensing its software engine (the "Wink Engine") that
decodes the protocol and displays the interactive applications overlaid on a
television screen.
B. Pioneer is a manufacturer of television set top boxes and
video products.
C. Wink and Pioneer desire that Wink grant to Pioneer the right
to embed a customized version of the Wink Engine on certain Pioneer products to
be distributed worldwide and to provide for future customization for other
products.
AGREEMENT
1. DEFINITIONS
1.1 "ICAP" means the Interactive Communicating Applications Protocol
developed by Wink. ICAP defines a method for delivering
self-contained, compact, platform independent, graphical
interactive applications which are decoded and executed by the
Wink Engine in the Combined Product.
1.2 "Wink Engine" means Winks proprietary platform- and user
interface-independent software engine that implements Wink's
Interactive Communicating Applications Protocol for the
interpretation of interactive graphical applications.
1.3 "Statement of Work" means one or more document(s) to be mutually
agreed upon and executed by the parties and attached as Exhibit
A (and numbered successively, X-0, X-0, etc.) setting forth the
Development Plan, Specifications, Deliverables, each party's
respective development obligations, payment and related terms
and conditions with respect to each Pioneer product for which
the Wink Engine is customized and
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each development project undertaken otherwise relating to
customize the Wink Engine.
1.4 "Development Plan" means the schedule and plan for completion of
the development activities under this Agreement as set forth in
each Statement of Work.
1.5 "Specifications" means the technical and other specifications for
the Deliverables to be developed by the parties under this
Agreement as set forth in each Statement of Work.
1.6 "Deliverables" means each item identified as a deliverable in
each Statement of Work.
1.7 "Licensed Engine" means version 1.0 of the Wink Engine as
customized under each Statement of Work in object code format and
any Updates, and any related documentation which Wink may create,
in Wink's sole discretion.
1.8 "Update" means a release of the Licensed Engine which contains
error corrections or minor enhancements, but which is not a new
version containing significant new features or functionality, in
each case as determined in Winks sole discretion. An Update shall
be designated by a change in the digit or digits only to the right
of the decimal point in the version number.
1.9 "Pioneer Device" means the television, television set top box, VCR
or similar audio-visual product as identified in each Statement of
Work.
1.10 "Combined Product" means a Pioneer Device containing the Licensed
Engine or a Pioneer Device that contains a memory component into
which the Licensed Engine may be loaded or transmitted.
1.11 "Subdistributors" means entities authorized by Pioneer to
distribute the Combined Product(s) including subsidiaries,
affiliates, distributors, resellers, value-added resellers,
dealers or sales representatives.
1.12 "Intellectual Property Rights" means all current and future
worldwide patents and other patent rights, copyrights, mask work
rights, trade secrets, know-how and all other intellectual
property rights, including without limitation all applications and
registrations with respect thereto.
2. DEVELOPMENT, DELIVERY AND ACCEPTANCE
2.1 Development. Wink agrees to use reasonable commercial efforts to
customize the Wink Engine for the Pioneer Device identified in
each Statement of Work or to complete any additional development
of a Licensed Engine after Final Acceptance as set forth in each
respective Statement of Work. Wink's obligations under this
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Agreement are contingent upon mutual agreement to each Statement
of Work. The terms of this Agreement shall apply to all such
development efforts except to the extent expressly set forth in a
particular Statement of Work.
2.2 Cooperation and Assistance. Pioneer shall (i) assist Wink in
producing the Specifications and (ii) provide other necessary
materials and information, as mutually agreed by the parties in
the Development Plan or otherwise.
2.3 Provision of Software, Hardware and Equipment. Pioneer shall
provide to Wink free of charge all hardware, software, and
equipment reasonably necessary for Wink to complete development
and duplicate the Pioneer environment ("Equipment"). A preliminary
list of Equipment shall be included in each Statement of Work and
may be updated from time to time by mutual agreement. Pioneer
shall retain ownership of all such Equipment, and Wink shall
return all such Equipment to Pioneer upon written request and at
Pioneer's expense. Wink will exercise the same degree of care with
the Equipment as Wink does for its own equipment.
2.4 Modifications. Wink may alter the Specifications commensurate
with good faith efforts to finalize and refine the Deliverables in
accordance with Pioneer's needs and objectives for the Licensed
Engine. Any such changes will be documented in writing and
provided to Pioneer. Any other changes to a Statement of Work may
only be made by mutual agreement and all provisions affected by
such changes shall be appropriately adjusted.
2.5 Delays. In the event Pioneer is late in the performance of its
obligations in accordance with the Development Plan, and such
delay affects Wink's obligations hereunder, Wink's performance of
such affected obligations shall be delayed by the time period
necessary to account for such delay.
2.6 Delivery and Acceptance. Upon completion, Wink shall deliver to
Pioneer each Deliverable. Accompanying the final Deliverable for a
given Statement of Work, Wink shall include test criteria that
will exercise critical functionality of such deliverables. Test
criteria will include test cases and test applications that test
for cross-platform compatibilities and for Pioneer-specific
implementation features. Within thirty (30) days after receipt,
Pioneer shall review and evaluate each Deliverable according to
Wink's test criteria if applicable and shall provide Wink with a
written acceptance of the Deliverables or a written statement of
material errors to be corrected ("Statement of Errors"). Pioneer
shall not withhold acceptance of any Deliverable unless such
Deliverable materially deviates from the Specifications. Wink and
Pioneer recognize that the Deliverables will not be effort-free.
If Pioneer provides a Statement of Errors, Wink shall use
reasonable commercial efforts to correct such errors as are
validated by Wink, if any, as soon as practicable, and to return a
copy of the updated Deliverables to Pioneer for review and
reevaluation. The foregoing procedure shall be repeated until
acceptance by Pioneer of the Deliverables
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or the parties mutually agree to cease development and terminate
this Agreement or the applicable Statement of Work. Pioneer's
failure to accept or provide a Statement of Errors within such
thirty day period shall be deemed an acceptance of such
Deliverables.
2.7 Transfer of Software. Upon Pioneer's acceptance of the completed
Licensed Engine ("Final Acceptance"), Wink shall deliver to
Pioneer a master diskette or other digital storage media for use
by Pioneer in accordance with the terms of this Agreement.
2.8 Right to Pursue Other Projects. Wink is in the business of
developing and modifying the Wink Engine for itself and for
others. This Agreement shall not be construed as prohibiting Wink
from granting rights to the Licensed Engine to third parties or
Wink's further development, modification or distribution of the
Wink Engine.
2.9 Non-Recurring Engineering. In consideration of the duties and
obligations of Wink under this Section, Pioneer shall pay Wink the
nonrecurring engineering charges set forth in the applicable
Statement of Work, at the times set forth in the applicable
Statement of Work.
3. GRANT OF RIGHTS
3.1 Licensed Engine. Subject to the terms and conditions of this
Agreement, effective upon Final Acceptance, Wink grants to Pioneer
a worldwide, non-exclusive, non-transferable (except as provided
in Section 13.3), right and license, under Wink's Intellectual
Property Rights in the Licensed Engine, to (a) use, reproduce and
have reproduced the Licensed Engine, solely for the purpose of
incorporating the Licensed Engine into a Pioneer Device and as
necessary in the course of distribution and support of the
Combined Product as permitted hereunder; (b) distribute copies of
the Licensed Engine solely for incorporation into a Combined
Product which was previously acquired (directly or indirectly)
from Pioneer for use only with such previously acquired unit, and
not otherwise on a stand-alone basis; and (c) distribute the
Combined Product. Pioneer's right to distribute copies of the
Licensed Engine pursuant to Section 3.1 (b), above, is subject to
the condition that Pioneer and its Subdistributors shall observe
procedures reasonably acceptable to Wink for monitoring such stand
alone distribution of the Licensed Engine, including encryption
where distributed electronically or broadcast. All such
procedures, including related record retention and audit
procedures, shall be mutually agreed in writing by Pioneer and
Wink prior to any such distribution.
3.2 Submanufacturers. Pioneer shall have the right to provide the
Licensed Engine to its third party manufacturers (each a
"Submanufacturer"), provided that each Submanufacturer agrees in a
signed writing (i) to use and reproduce Licensed Engines and
Combined Products only for Pioneer's account, (ii) not to sell or
distribute Licensed Engines and Combined Products except to
Pioneer, (iii) to keep the
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Licensed Engine confidential pursuant to terms and conditions no
less restrictive than the terms and conditions described in
Section 10 below and (iv) that Wink is a third party beneficiary
of such agreement and may enforce such agreement directly against
such Submanufacturer. Pioneer's provision of the Licensed Engine
to such Submanufacturer shall in all instances be subject to (a)
Pioneer's assurance that it will use the same level of care in
choosing Submanufacturers for Pioneer Devices incorporating the
Licensed Engine as it does for its other products, and will take
all reasonable steps to prevent unauthorized disclosure of Wink
Confidential Information, and (b) Pioneer's prompt notification to
Wink if Pioneer knows or believes that a Submanufacturer has
breached the provisions of subsection (i) - (iv) above. In the
event that Pioneer desires to provide the Licensed Engine to a
Submanufacturer without also providing such Submanufacturer with
software owned by Pioneer, Pioneer's provision of the Licensed
Engine to such Submanufacturer shall be subject to Wink's written
approval (not to be unreasonably withheld) of such
Submanufacturer. Pioneer shall use commercially reasonable efforts
to ensure that all Submanufacturers abide by the terms of their
written agreements described herein and keep Wink apprised of its
activities in enforcing such agreements.
3.3 Subdistributors. Pioneer may exercise its distribution rights
hereunder through the use of Subdistributors; provided, that each
Subdistributor must agree in a signed writing, prior to obtaining
any copy of the Licensed Engine from Pioneer, to be bound by all
applicable restrictions on Pioneer set forth in this Agreement.
Such writing shall provide that Wink is a third party beneficiary
of such agreement and may enforce such agreement directly against
such Subdistributor. Pioneer shall promptly notify Wink if Pioneer
has reason to believe that any of Pioneer's Subdistributors may
not be abiding by such restrictions. Pioneer shall diligently
police and enforce such restrictions including specific measures
reasonably requested by Wink from time to time.
3.4 Proprietary Notices. All copies of the Licensed Engine reproduced
or distributed by Pioneer shall contain copyright and other
proprietary notices in the same manner in which Wink incorporates
such notices in the Licensed Engine or in any other manner
requested by Wink. Wink's current copyright and proprietary
notices are set forth in Exhibit B. In addition, at Wink's
request, Pioneer shall xxxx the Pioneer Device with such patent
notices as may be permitted or required under Xxxxx 00, Xxxxxx
Xxxxxx Code. Pioneer shall incorporate such notices not more than
90 days after the date on which Wink provides the form of notice
and will use its best efforts to incorporate such notices sooner.
3.5 Limitations. Pioneer shall not modify, prepare derivative works
of, reverse engineer, disassemble, decompile, or otherwise attempt
to obtain access to the source code of the Licensed Engine.
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3.6 System Operator License Terms. Pioneer shall ensure that it and
any of its Subdistributors supply the Combined Product subject to
written agreements incorporating the system operator license terms
attached as Exhibit C.
4. LICENSE FEES
4.1 Per-Copy Royalty. In consideration for the rights and licenses
granted to it under Section 3 above. Pioneer shall pay a per-copy
royalty as set forth in the applicable Statement of Work. The
royalty shall be due either at the time of distribution of the
Combined Product or at the time of distribution of a Licensed
Engine for incorporation into a previously distributed Pioneer
Device as set forth in the Statement of Work with respect to the
particular Combined Product.
4.2 Payments. Pioneer shall make royalty payments to Wink within
forty-five (45) days after the end of each calendar quarter, with
respect to Combined Products or Licensed Engines, as applicable
distributed in such calendar quarter. Such payments shall be
accompanied by a written report which details by product and
customer, with respect to the applicable calendar quarter (i) the
number of Combined Products distributed by Pioneer to
Subdistributors, (ii) the number of copies of the Licensed Engine
distributed by Pioneer and its Subdistributors, (iii) the royalty
due Wink with respect to Combined Products or Licensed Engines, as
applicable distributed during such calendar quarter showing a
calculation of such amounts, and (iv) the number of copies of the
Licensed Engine (including without limitation Updates) or Combined
Products distributed by Pioneer or its Subdistributors for which
no royalty is due under Sections 4.4 or 4.5. Wink acknowledges
that specific customer information is Confidential Information.
4.3 Advance Royalties. Pioneer shall pay Wink the non-refundable
advance royalty payments set forth in each applicable Statement of
Work, at the times set forth in each applicable Statement of Work.
All advances paid by Pioneer hereunder shall be credited against
Pioneer's, royalty payments under Section 4.2.
4.4 Distribution of Updates. Pioneer shall not incur a royalty with
respect to its or its Subdistributors distribution of Updates to a
previously distributed version of the Licensed Engine.
4.5 Promotional Units. Pioneer may distribute a reasonable number of
Combined Products (not to exceed 200 per calendar quarter) as
promotional units, without incurring a royalty therefor to Wink,
provided such promotional units are distributed by Pioneer free of
charge.
4.6 Currency; Taxes. All payments hereunder shall be in United States
dollars. All payments by Pioneer shall be made free and clear of,
and without reduction for, any sales, use, value added, or similar
taxes, other than taxes based on the net income of
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Wink, including Japanese withholding tax. Any such taxes which are
otherwise imposed on payments to Wink shall be the sole
responsibility of Pioneer. With respect to that portion of the
Wink payments attributable to a royalty or license fee and that
portion of the Support Fees attributable as a royalty or license
fee, Pioneer shall withhold the amount of income taxes levied by
the Government of Japan and shall promptly make payment of the
withheld amount to the appropriate tax authorities of the
Government of Japan and shall transmit to Wink tax certificates
issues by said tax authorities sufficient to enable Wink to
support a claim for United States foreign tax credit in respect to
such withheld taxes so paid by Pioneer. Pioneer shall send Wink
copies of the "Application Form for Income Tax Convention between
the USA and Japan" (the "Form") to be filed with the appropriate
tax authorities of the Government of Japan in order to take
advantage of the lower tax rate of ten percent (10%) instead of
the standard twenty percent (20%), as those percentages may be
amended form time to time. Upon receipt of the Form, Wink shall
execute the Form and promptly return two executed copies of the
Form to Pioneer so that Pioneer may file the executed Form with
the appropriate tax authorities prior to Pioneer's remittance. In
case that Wink fails to return the Form in due course, Wink agrees
that the rate of twenty percent (20%) or amended rate shall apply
until Wink returns the executed Form to Pioneer.
4.7 Books and Records; Audit. Pioneer agrees to maintain, and to
require that each third party who distributes the Licensed Engine
maintain and provide to Pioneer, until two (2) years after the
earlier of (i) the termination of this Agreement or (ii) the last
shipment of a Combined Product or the Licensed Engine hereunder,
complete and current books, records and accounts regarding all
copying and distribution activities pursuant to this Agreement and
the payments due to Wink thereon. Pioneer agrees to allow Wink or
its designee to audit and examine such books, records and accounts
and media delivered to Pioneer no more than once each calendar
quarter, during Pioneer's normal business hours, to verify the
accuracy of the reports and payments made to Wink under this
Section 4 and compliance with the terms of this Agreement. In the
event such audit determines that Pioneer has not paid for all of
the copies of Combined Products and Licensed Engines distributed,
Pioneer agrees to pay, in addition to any damages to which Wink
might be entitled, the amount of such shortfall plus interest at a
rate of one and one-half percent (1.5%) per month or the highest
rate allowed by law, whichever is lower. The cost of such audit
shall be borne by Wink, provided that if any such audit reveals an
underpayment to Wink of at least five percent (5%), Pioneer shall
reimburse to Wink its costs of such audit.
5. WARRANTY
5.1 Product Warranty. Wink warrants to Pioneer that under ordinary use
the Licensed Engine shall function substantially in conformance
with the Specifications for a period of ninety (90) days after
Pioneer's Final Acceptance.
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5.2 Defects not Covered by Warranty. Wink's warranty shall not extend
to problems in the Licensed Engine that result from: (i) Pioneer's
or any of its customer's failure to implement any Updates to the
Licensed Engine which are provided by Wink; (ii) changes to the
operating system or environment or to Pioneer Devices which
adversely affect the Licensed Engine; (iii) any alterations of or
additions to the Licensed Engine performed by parties other than
Wink without Wink's prior written authorization; (iv) use of the
Licensed Engine in a manner inconsistent with the Specifications
or in a manner in which it was not intended; or (v) combination of
the Licensed Engine with other products not supplied by Wink or
specifically identified in the applicable Specifications as
compatible with the Licensed Engine, which problems do not affect
the Licensed Engine standing alone.
5.3 Exclusive Remedy. Wink's sole obligation and Pioneer's exclusive
remedy under the above warranty shall be for Wink to use
commercially reasonable efforts at Wink's facilities to correct
reproducible errors in the Licensed Engine to the extent necessary
bring it into conformity with Wink's warranty set forth above.
5.4 Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, WINK
MAKES AND PIONEER RECEIVES NO WARRANTIES WITH RESPECT TO THE
LICENSED ENGINE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND
WINK SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE. Wink does not warrant that operation of the Licensed
Engine will be error free.
6. PROPERTY RIGHTS
Pioneer agrees that as between Pioneer and Wink, Wink owns all
right, title and interest in the Licensed Engine and all modifications and
derivatives thereof including all Intellectual Property Rights. Except as
expressly provided in Section 3, Wink does not grant to Pioneer any right, title
or interest in the Licensed Engine, whether by implication, estoppel or
otherwise. All rights with respect to the Licensed Engine not specifically
granted herein are reserved to Wink.
7. MARKETING; TRADEMARKS AND TRADE NAMES
7.1 Use of Trademarks.
7.1.1 Promotion and Advertising. During the term of this
Agreement, in the event that Pioneer or any Subdistributor
advertises, promotes or markets the functionality of the
Licensed Engine, Pioneer shall, and shall require its
Subdistributors to, use the trademarks, marks, trade names,
logos, and other product and company identifiers of Wink
that Wink may adopt, from time to time ("Wink Trademarks").
Use of the Wink Trademarks shall be consistent with Wink's
trademark usage policy which Wink may adopt from time to
time
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and of which Wink has notified Pioneer. Pioneer and its
Subdistributors may use trade names, marks or trademarks in
addition to the Wink Trademarks in connection with the
Combined Product.
7.1.2 Approval of Representations. All representations of Wink's
Trademarks that Pioneer or its Subdistributors intend to
use shall first be submitted to Wink for approval (which
shall not be unreasonably withheld) of design, color, and
other details, or shall be exact copies of those used by
Wink. To ensure trademark quality, within a reasonable time
prior to Pioneer's first commercial shipment of the
Combined Product bearing one or more Wink Trademarks,
Pioneer shall supply to Wink one such Combined Product for
inspection and testing by Wink to ensure that such Combined
Product conforms to Wink's standards of quality for
products sold under the Wink Trademarks. In no event shall
Pioneer commence commercial shipment of any such Combined
Product (except as set forth above) under the Wink
Trademarks without Wink's prior written approval.
7.1.3 Restrictions. At no time during or after the term of this
Agreement shall either party register, attempt to register
or cause the registration of any of the trademarks of the
other party which give rise to the likelihood of confusion.
Except as expressly set forth herein, nothing herein shall
grant to either party any right, title or interest in the
other party's trademarks. At no time during or after the
term of this Agreement shall either party challenge or
assist others to challenge the other party's trademarks or
the registration thereof or attempt to register any
trademarks, marks or trade names confusingly similar to
those of the other party.
7.2 Marketing and Promotion. Pioneer shall promote the functionality
of the Licensed Engine in its presentations to customers and in
its marketing materials as a prominent feature of the Combined
Product.
7.3 Wink Markings and User Interface Elements.
7.3.1 Remote Button. All remote controls that Pioneer markets
for use with Combined Products shall contain a dedicated button
for enabling the functionality of the Licensed Engine ("Wink
Button"). The Wink Button shall include a marking chosen by Wink,
on and/or adjacent to the Wink Button. For each remote, the
location and size of the Wink Button shall be mutually agreed
upon, but shall be as prominent as buttons and markings for the
menu, info, guide and select options on any such remote.
7.3.2 Manuals. Pioneer shall ensure that manuals, or any other
documentation describing functionality of the Licensed
Engine will contain information on use of the Licensed
Engine functionality and Wink copyright and proprietary
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notices. The content and location of such information and
notices shall be mutually agreed upon, but shall be in the
same place, the same size and same prominence as similar
information for other functionality.
7.3.3 Device Specific and On-screen Information. Wink will
provide to Pioneer artwork for a logo to be placed on all
Combined Products. Pioneer agrees to silk screen or
similarly affix this logo in a prominent location on each
Combined Product. Pioneer shall ensure that: (i) if a
Combined Product has a main menu or menu with similar
functionality, a menu item will be reserved for Wink, which
will allow users to access information regarding the
Licensed Engine functionality, the content of screen and
name of menu item in menu shall be mutually agreed upon by
the parties; and (ii) if a Combined Product has the
capability to display help screens that include
descriptions of device or remote control functionality,
information regarding Licensed Engine functionality shall
be provided, the content and style of such information
shall be mutually agreed to by the parties.
7.3.4 Splash Screens. Wink shall have the right to include a
splash screen that shall be displayed from time to time and
that will contain information, including without
limitation, Wink markings, and copyright and other
proprietary right notices to be mutually agree upon with
respect to placement and timing.
7.4 Press Releases. The parties intend to cooperate and participate in
public relations programs to promote the Licensed Engine and the
relationship between the parties. Appropriate personnel from each
party shall participate in such public relations programs. The
parties shall cooperate with respect to and mutually approve (not
to be unreasonably withheld or delayed) all press releases issued
by either party with respect to this Agreement or the parties'
relationship. Unless otherwise agreed in writing by the parties,
each press release issued pursuant to this Section shall contain:
(I) in the body of the release, the name and location of both
parties and a quote from an executive of both parties; (ii) in a
footnote at the end of the release, both parties' proprietary
notices with respect to technology discussed in the body of the
release. Whenever feasible, the press release shall also include
the logo of each party.
7.5 Disclosures of Terms. Each party agrees not to disclose the terms
of this Agreement to any third party without the other's written
consent in its sole discretion, except to such party's
accountants, attorneys and other professional advisors, or as
required by securities or other applicable laws. Notwithstanding
this paragraph, each party shall have the right to say the
following in private meetings with customers, prospective
customers, or prospective investors:
o Pioneer and Wink are working together.
o Pioneer is licensing Wink's technology.
o Wink is porting the Wink Engine to Pioneer set-tops.
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8. TRAINING, SUPPORT AND MAINTENANCE
8.1 Maintenance. Wink agrees to make available to Pioneer, at no
charge to Pioneer, all Updates released by Wink and permit Pioneer
to distribute Updates to its Subdistributors and Submanufacturers
for their use consistent with this Agreement. Pioneer shall
promptly notify its Submanufacturers and Subdistributors of the
availability of each Update and Pioneer shall require its
Submanufacturers and shall use reasonable commercial efforts to
require its Subdistributors to promptly begin using each such
Update in place of the previous version of the Licensed Engine.
Pioneer shall be responsible for making such Updates available to
its customers.
8.2 Technical Support. Wink shall make available to Pioneer technical
support, as set forth in Exhibit D. Wink may subcontract its
technical support obligations and shall notify Pioneer as to the
appropriate contact to obtain support.
8.3 Equipment. In order to facilitate Wink's performance of the
support activities contemplated herein, Pioneer shall, at its own
expense, continue to provide Wink with Equipment (as defined in
Section 2.3). In the event that Pioneer fails to provide Equipment
or is late in the performance of its obligations with respect to
this Section and such delay affects Wink's obligations under this
Section, Wink's performance of such affected obligations shall be
delayed by an appropriate time period.
8.4 Training. Wink shall make available, at Wink's facilities,
training for Pioneer employees from time to time as mutually
agreed, at rates and costs to be agreed upon but not to exceed
$1000 per person per day.
8.5 Travel Requirements. If in the performance of Wink's obligations
under this Agreement the parties mutually agree that Wink
employees or contractors must travel from Wink's facility, Pioneer
shall pay and/or promptly reimburse Wink for, all reasonable
travel (if by air, coach class), room and board, car rental and
other similar expenses associated with such travel. Any travel
expenses approved in writing by Pioneer shall be deemed reasonable
by virtue of such approval.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and
shall continue in full force and effect for a term of five (5)
years from the first commercial shipment of Combined Product by
Pioneer. The term of this Agreement may be extended by mutual
agreement of the parties.
9.2 Termination for Cause. If either party materially defaults in the
performance of any provision of this Agreement, the non-defaulting
party may give written notice to the defaulting party that if the
default is not cured within thirty (30) days this Agreement shall
be terminated. If the non-defaulting party gives such notice and
the default is
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not cured within thirty (30) days, this Agreement shall terminate
immediately upon notice by the non-defaulting party. For the
purposes of determining a material default by Wink based on late
or non-delivery of a Deliverable, Wink shall not be in material
default of this Agreement unless it fails to deliver a Deliverable
within six (6) months of the date such Deliverable is due;
provided that Pioneer has fulfilled all its obligations with
respect to such Deliverable and in such event the cure period
provided for above shall be ninety (90) days.
9.3 Termination for Insolvency. Either party may terminate this
Agreement upon written notice upon: (i) the institution by or
against the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of the
other party's debts, (ii) the other party's making an assignment
for the benefit of its creditors, or (iii) the other party's
dissolution or ceasing to conduct business as a going concern.
9.4 Effect of Termination. Upon the expiration or termination of this
Agreement, the following provisions shall take effect:
9.4.1 Subject to the provisions of Section 9.5, the rights and
licenses granted to Pioneer under this Agreement shall
automatically terminate, and Pioneer and its
Subdistributors shall immediately cease distribution of
Licensed Engines and a use of the Wink Trademarks,
provided, however, that if the Agreement is terminated by
Pioneer due to Wink's material breach or insolvency,
Pioneer may, at its option, continue to use, reproduce, and
distribute the Licensed Engine under the right and license
granted hereunder, subject to the payment of the royalties
and other provisions of Section 4;
9.4.2 Rights of end users to use the Licensed Engine as part of a
Combined Product shall continue in effect according to
their terms and conditions;
9.4.3 Within ten (10) days after such expiration or termination,
except as provided. in Section 9.6, or the case where
Pioneer elects to continue the license pursuant to Section
9.4.1 above, Pioneer shall return, and shall certify to
Wink the return of, all copies of the Licensed Engine and
all Wink Confidential information (as defined in Section
10.1) in its or its Submanufacturers' possession at the
time of expiration or termination. Wink shall return, and
shall certify to Pioneer the return of, all Pioneer
Confidential Information in its possession at the time of
expiration or termination. Notwithstanding the foregoing,
Pioneer may except upon termination by Wink (i) maintain a
single copy of the Licensed Engine and (ii) retain any
Confidential Information necessary for support, subject to
the provisions of Section 10, both solely to provide
support to its permitted Subdistributors and end users; and
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(b) The parties agree to enter into a source code escrow
agreement with a mutually selected escrow agent. Wink
agrees to deposit the Wink Engine source code upon final
technical acceptance of the Wink Engine by Pioneer. Pioneer
shall be entitled to the release of such source code during
any time period in which: (i) Wink is subject to the
jurisdiction of any bankruptcy court or (ii) Wink is
material breach of the provisions of section 5, which
material breach has not been cured within (90) days after
Pioneer's written notice to Wink thereof. The foregoing is
subject, however, to the condition that Pioneer is not at
that time in material breach of any of its obligations
under this Agreement, and such breach has not been cured
within (90) days after written notice thereof by Wink.
Pioneer shall assume all start-up fees, annual renewal
fees, deposit fees and any and all other fees due to such
escrow agent.
Upon any release of the Wink Engine source code to
Pioneer, (i)Pioneer shall have a non-exclusive,
non-transferable license to use such source code solely to
support and maintain the Combined Product until the
expiration or termination of Pioneer's rights subject to
section 9.4.1 and only during the time that the release
condition exists, (ii) such source code shall be treated by
Pioneer as Confidential Information of Wink under the
provisions of Section 10 hereof . As soon as the release
condition ceases to exist, Pioneer shall immediately return
the source code and all modifications thereto made by
Pioneer, as well as the current source code version
provided by Wink, to the escrow agent for re-deposit and
Pioneer shall delete any and all copies of the source code
from Pioneer computers or electronic storage media and
destroy all paper copies of source code.
Pioneer will use the source code at only one
facility, to be designated by Pioneer and communicated in
writing to Wink and the escrow agent prior to release of
the source code. The source code will be installed on a
computer system at the designated location which is (a)
accessible only to Pioneer employees who need access in
order to effect the purposes of this Agreement and (b) not
accessible through a modem, network, or other means of
external communications. Pioneer agrees to keep a written
record of all persons authorized to access the source code
and will store the source code in a locked facility with
limited access when not in use. In addition, Pioneer agrees
to inform all employees who are given access to the source
code that they are the confidential material of Wink
licensed to Pioneer as such. Access to the source code will
be limited to those Pioneer employees needing such access
to effect the purposes of this Agreement. Pioneer will be
fully responsible for the conduct its employees, agents,
and representatives who in any way breach this agreement.
Pioneer will enter into a confidentiality agreement with
each Pioneer employee who is given access to the source
code, which agreement will incorporate the protections and
restrictions set forth herein. Pioneer will notify Wink
promptly in the event of any breach of its security where
it
-13-
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appears that any source code was misappropriated, disclosed
in violation of this Agreement or exposed to loss, and
Pioneer will take all actions required to recover the
source code in the event of loss or misappropriation or to
otherwise prevent its unauthorized disclosure or use. At
any time upon request by Wink, Pioneer will provide Wink
with the names of all persons who have access the source
code.
9.4.4 Pioneer shall pay all outstanding amounts owed to Wink
within ninety (90) days. In the event Wink is performing
development tasks for Pioneer at the time of any
termination, Pioneer shall also pay to Wink the portion of
the next milestone that is proportional to the amount of
work completed by Wink for that milestone.
9.4.5 The provisions of Sections 4.7, 5, 6, 9, 10, 11, 12, and 13
shall survive the expiration or termination of this
Agreement for any reason.
9.5 Sell-off Period. In the event of the expiration of this Agreement
or a termination by Pioneer, Pioneer may, subject to the
provisions of Section 4 (including without limitation Pioneer's
obligation to pay royalties in connection with all distributions)
dispose of its inventory of Combined Products on hand, for a
period not to exceed sixty (60) days after the effective date of
such expiration or termination (the "Sell-Off Period"), and in
connection therewith, Pioneer shall use the Wink Trademarks during
the Sell-Off Period pursuant to the provisions of Section 7.
9.6 Destruction of Inventory. Within ten (10) days after the end of
the Sell-Off Period, Pioneer shall destroy, and shall certify to
Wink the destruction of, all copies of the Licensed Engine in its
or its Subdistributors' or Submanufacturers' possession.
10. CONFIDENTIALITY
10.1 Obligation of Confidentiality. The parties acknowledge that each
may have access to certain information and materials concerning
the other's business, plans, customers, technology and products
that is confidential ("Confidential Information"). Each party
agrees that it shall not use in any way, for its own account or
the account of any third party, nor disclose to any third party,
except as may be expressly permitted under this Agreement, any
such Confidential Information revealed to it by the other party
and shall take every reasonable precaution to protect the
confidentiality of such information. Upon request by either party,
the other party shall advise whether or not it considers any
particular information or materials to be confidential.
10.2 Exceptions. Information shall be deemed not to be Confidential
Information hereunder if such information:
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15
10.2.1 Is or becomes part of the public domain through no fault
or breach on the part of the receiving party;
10.2.2 Is known to the receiving party prior to the disclosure by
the disclosing party and such knowledge can be shown by
written records;
10.2.3 Is subsequently rightfully obtained by the receiving party
from a third party who has the legal right to disclose it;
10.2.4 Is independently developed by the receiving party without
the use of any Confidential Information or any breach of
this Agreement;
10.2.5 Is approved for public release by the disclosing party; or
10.2.6 Is required to be disclosed by judicial action provided
that the receiving party has first given the disclosing
party reasonable notice of such requirement and fully
cooperates with the disclosing party in seeking
confidential treatment for any such disclosure.
10.3 Injunctive Relief. The parties acknowledge that any breach of the
provisions of this Section may cause irreparable harm and
significant injury to an extent that may be extremely difficult to
ascertain. Accordingly, each party agrees that each 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.
11. INTELLECTUAL PROPERTY, WARRANTY AND INDEMNITY
11.1 Representations and Warranties. Each party represents and warrants
that neither the execution or performance by such party of this
Agreement will violate any law, order, regulation or ruling
applicable to such party or its efforts hereunder. In addition,
Wink represents and warrants that as of the Effective Date, no
action or proceeding alleging intellectual property infringement
by the Wink Engine is proceeding against Wink.
11.2 Indemnity. Wink agrees, at its expense, to defend, or at its
option to settle, any claim, suit, action or proceeding brought
against Pioneer, Subdistributors, and/or Customers by a third
party alleging that the Licensed Engine used as authorized
hereunder infringes the copyright, trade secret, trademark or U.S.
patent rights of such third party (an "Action"), and to pay any
settlement or final judgment entered thereon against Pioneer,
subject to the limitations set forth hereafter. Wink shall be
relieved of its obligations hereunder unless Pioneer gives Wink
(i) prompt written notice of an Action, (ii) sole control over the
defense or settlement of the Action and (iii) reasonable
assistance in the defense or settlement thereof. If it is, or in
the opinion of Wink may be, determined by competent authority that
the Licensed Engine or any part
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16
thereof, or the sale, distribution or use thereof as permitted
hereunder infringes any patent, copyright, trade secret or
trademark of a third party or is enjoined, then Wink at its sole
option and expense may: (a) procure for Pioneer the right under
such patent, copyright, trade secret or trademark to use, as
mentioned in this Agreement reproduce and distribute the Licensed
Engine or such part thereof or such trademark as authorized in
this Agreement; (b) replace the Licensed Engine or such part
thereof or such trademark with other suitable software or
trademark without material degradation in performance or
functionality; (c) modify the Licensed Engine or such part thereof
or such trademark to avoid infringement without material
degradation in performance or functionality; (d) if (a)(b) or (c)
are not commercially reasonable, (d) replace or modify the License
Engine or portion thereof to disable the infringing portion
reducing performance or functionality but retaining some
commercial viability of the product or (e) if none of the
foregoing are commercially reasonable after diligent attempts by
Wink to pursue such alternatives, terminate this Agreement with
respect to the infringing product in whole or in part.
11.3 Limitations. The foregoing indemnity shall not apply to an Action
to the extent it arises out of (i) any modification of the
Licensed Engine by a party other than Wink, (ii) any combination
of the Licensed Engine with hardware and/or software (including
software written using the Wink Authoring Tool or using the Wink
APIs) not supplied by Wink, or (iii) any trademarks, trade names
or other brandings not supplied by Wink.
11.4 Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE
ENTIRE LIABILITY AND OBLIGATION OF WINK AND THE EXCLUSIVE REMEDY
OF PIONEER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY
RIGHT.
12. INDEMNITY BY PIONEER
Except with respect to any claim, suit, action or proceeding for which
Wink is obligated to indemnify under Section 11, Pioneer agrees, at its expense,
to defend, or at its option to settle, any claim, suit, action or proceeding
brought against Wink by a third party arising out of Pioneer's use of the
Licensed Engine or exercise of the rights and licenses granted hereunder, and to
pay any settlement or final judgment entered thereon against Wink, subject to
the limitations set forth hereafter. Pioneer shall be relieved of its
obligations hereunder unless Wink gives Pioneer (i) prompt written notice upon
becoming aware of the existence of any such claim, suit, action or proceeding,
(ii) sole control over the defense or settlement of such claim, suit, action or
proceeding and (iii) reasonable assistance in the defense or settlement thereof.
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13. GENERAL
13.1 Governing Law and Jurisdiction. This Agreement shall be governed
by and construed under the laws of the State of California,
without reference to conflict of laws principles.
13.2 Import & Export Controls. Pioneer understands that Wink is subject
to regulation by agencies of the U.S. government which prohibit
export or diversion of certain products and technology to certain
countries. Any and all obligations of Wink including without
limitation obligations to provide products, technology,
documentation, or technical assistance, will be subject in all
respects to such United States laws and regulations that will from
time to time govern the license and delivery of technology and
products abroad or to foreign nationals by persons subject to the
jurisdiction of the United States. Pioneer warrants that it will
comply in all respects with all applicable export and reexport
restrictions. Pioneer warrants that it will not, and will take all
actions which may be reasonably necessary to assure that its
Subdistributors and end users do not, contravene such United
States laws or regulations.
13.3 No Assignment. This Agreement shall not be assigned by either
party without the prior written consent of the other party, which
consent shall not be unreasonably withheld, except that either
party may assign its rights and obligations hereunder to any
entity (i) which controls, is controlled by or is under common
control with such party or (ii) which acquires all or
substantially all of the assets or business of such party to which
this Agreement pertains, provided in both cases that such entity
shall assume in writing or by operation of law such party's
obligations under this Agreement. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.
13.4 Independent Contractors. The relationship of the parties
established by this Agreement is that of independent contractors,
and nothing contained in this Agreement shall be construed to (i)
give either party the power to direct and control the day-to-day
activities of the other, (ii) constitute the parties as partners,
joint venturers, co-owners or otherwise as participants in a joint
or common undertaking, or (iii) allow either party to create or
assume any obligation on behalf of the other party for any purpose
whatsoever.
13.5 Compliance with Laws. In exercising its rights under this license,
each party shall fully comply with the requirements of any and all
applicable laws, regulations, rules and orders of any governmental
body having jurisdiction over the exercise of rights under this
license.
13.6 Notices. All notices under this Agreement shall be in writing and
sent by (i) certified air mail, return receipt requested, postage
prepaid or (ii) commercial courier service.
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If properly addressed to or delivered at the address for each
party set forth above, a notice shall be deemed given upon
delivery or, where delivery cannot be effected due to the actions
of the addressee, upon tender.
13.7 Entire Agreement. This Agreement represents the entire agreement
of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous agreements,
understandings, proposals and representations by the parties,
including without limitation the memorandum of understanding
between, the parties dated July 1, 1996.
13.8 No Waiver. 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.
13.9 No Oral Modification. No alteration, amendment, waiver,
cancellation or any other change in any term or condition of this
Agreement shall be valid or binding on either party unless
mutually agreed in writing.
13.10 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions
hereof in any other language shall not be binding on the parties.
All communications and notices to be made or given pursuant to
this Agreement shall be in the English language.
13.11 Use of "Including". Use of the word "including" in this Agreement
is intended to be illustrative and not limiting.
13.12 Limitation of Liability. EXCEPT WITH RESPECT TO WINK'S OBLIGATIONS
TO INDEMNIFY FOR COPYRIGHT, TRADE SECRET OR TRADE XXXX
INFRINGEMENT CLAIMS (BUT NOT PATENT) UNDER SECTION 11, IN NO EVENT
SHALL WINK BE LIABLE TO PIONEER OR ANY THIRD PARTY IN THE
AGGREGATE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID (AND THE
AMOUNTS WHICH HAVE ACCRUED HEREUNDER BUT HAVE NOT BEEN PAID) BY
PIONEER HEREUNDER. IN NO EVENT SHALL WINK BE LIABLE TO PIONEER,
SUBDISTRIBUTORS, AND/OR CUSTOMERS FOR LOST PROFITS, LOSS OF DATA
OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES
ARISING IN ANY WAY OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF WINK
KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED FOR HEREIN.
13.13 Counterparts. This Agreement may be executed in any number of
counterparts and when so executed and delivered shall have the
same force and effect as though all signatures appeared on one
document.
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13.14 Severability. The provisions of this Agreement shall be severable,
and if any provision of this Agreement shall be held or declared
to be illegal, invalid, or unenforceable, such illegal, invalid or
unenforceable provision shall be severed from this Agreement and
the remainder of the Agreement shall remain in full force and
effect, and the parties shall negotiate a substitute, legal, valid
and enforceable provision that most nearly reflects the parties'
intent in entering into this Agreement.
13.15 Basis of Bargain. Wink and Pioneer acknowledge and agree that
Wink's entering into this Agreement and the amount of Pioneer's
royalty hereunder have been done or set in reliance upon the
limitations of liabilities and disclaimers of warranty set forth
in this Agreement, and that the same form an essential basis of
the parties' bargain.
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IN WITNESS WHEREOF, the parties by their duly authorized
representatives have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. PIONEER ELECTRONIC CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Hiroshi Aiba
----------------------- ---------------------------------
Name: Xxxxxx Xxxxxxxxxxx Name: Hiroshi Aiba
Title: President & CEO Title: Managing Director, President,
Business Systems Company
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EXHIBIT A-1
STATEMENT OF WORK
1. Device
Wink and Pioneer agree that Wink shall port the Wink Engine to the Pioneer
BA-V2000 Set-Top Box.
2. Specifications
See attached Addendum to Exhibit A-1
3. Development Activities and Schedule
RESPONSIBLE COMPLETION MILESTONE
TASK PARTY DATE PAYMENT
---- ----------- ----------- ----------
Signing of Letter of Intent Pioneer 1 July 1996 yes
Delivery of development equipment as required to a location Pioneer 1 Aug 1996 no
specified by Wink
Delivery by Wink of BA-V2000 Emulator for use in Wink Wink 15 Oct 1996 yes
Studio
Delivery of Technology License Agreement Wink 11 Nov 1996 . no
Signing of Technology License Agreement Pioneer 1 May 1997 yes
Delivery by Wink of Project Plan for development of Wink Wink 1 May 1997 yes
Engine Version 1.0 as customized for Pioneer BA-V2000
First Delivery of Head-End Materials and Equipment to Wink Pioneer 5 May 1997 no
On-site support at Wink to set up head-end and set-top boxes Pioneer 5 May 1997 no
Delivery by Wink of Alpha version of object code of Wink Wink 15 May 1997 yes
Engine Version 1.0 as customized for BA-V2000
Final Delivery of Head-End Materials and Equipment to Wink Pioneer 1 June 1997 no
Delivery by Wink of Beta version of object code of Wink Wink 15 June 1997 no
Engine Version 1.0 as customized for BA-V2000
Acceptance of final version of object code of Wink Engine Pioneer 1 Aug 1997 yes
Version 1.0 as customized for BA-V2000
22
4. Materials and Equipment
First Delivery of Head-End Materials and Equipment
XIV. 1 Norpak DIU, capable of inserting data on two
lines of VBI on one channel
XV.1 Modulator
XVII. 1 Out-of-band transmitter
XVII. 1 copy Zeus Controller Software, or equivalent
software/hardware necessary to mimic functionality
XVIII. 2 Receivers
XIX. 1 set of licenses for development software for STB,
including pSOS, MRI compiler, SDS, SourceSafe, and
NMAKER
XX. 1 Pioneer BA-V2000 STB
Final Delivery of Head-End Materials and Equipment
I. Additional Norpak DIU(s), altogether capable of inserting data on
two lines of VBI on three separate channels
II. 3 Additional Modulators
III. 5 Additional Pioneer BA-V2000 STBs
5. Payment Schedule: All amounts in US Dollars.
ROYALTY
EVENT NRE PAYMENT PAYMENT
Signing of Letter of Intent [ * ] [ * ]
Delivery by Wink of BA-V2000 Emulator for use in [ * ] [ * ]
Wink Studio
Signing of Technology License Agreement [ * ]
Delivery by Wink of Project Plan for development of [ * ]
Wink Engine Version 1.0 as customized for
Pioneer BA-V2000
Delivery by Wink of Alpha version of object code of [ * ]
Wink Engine Version 1.0 as customized for BA-
V2000
Acceptance of final version of object code of Wink [ * ] [ * ]
Engine Version 1.0 as customized for BA-V2000
Totals: [ * ] [ * ]
----------
* 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 portion shave been filed with the Commission.
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6. Per Copy Royalty: [ * ]
WINK COMMUNICATIONS, INC. PIONEER ELECTRONIC CORPORATION LTD.
/s/ Xxxxxx Xxxxxxxxxxx /s/ Hiroshi Aiba
--------------------------------- -------------------------------------
Signature Signature
Xxxxxx Xxxxxxxxxxx Hiroshi Aiba
--------------------------------- -------------------------------------
Name Name
Managing Director
President
President/CEO Business Systems Company
--------------------------------- -------------------------------------
Title Title
1/5/98 12/26/97
--------------------------------- -------------------------------------
Date Date
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EXHIBIT B
PROPRIETARY NOTICES
1. Screens displayed to the End-Users from time to time shall contain, at a
minimum, the following:
Copyright 199_ Wink Communications, Inc.
Patent Pending.
2. Wink, the Wink eye and "i" shall be marked with either "Registered in U.S.
Patent and Trademark Office" or with the letter R enclosed within a circle.
25
EXHIBIT C
SYSTEM OPERATOR LICENSE TERMS
Use of the Wink Engine software ("the Software") that operates
with the [PIONEER DEVICE] is subject to these license terms.
THE SOFTWARE IS OWNED BY WINK COMMUNICATIONS, INC. ("WINK") AND
ITS SUPPLIERS AND IS COPYRIGHTED AND LICENSED TO YOU ("System Operator" or
"You") NOT SOLD.
System Operator has the nonexclusive revocable right to use the
Software only with the [PIONEER DEVICE] in connection with providing a cable or
similar service to end users who will be using the device and tile Software
functionality. You may not copy, sublicense, modify, reverse engineer,
decompile, or disassemble (except to the extent applicable laws specifically
prohibit such restriction) the Software, in whole or in part, or disclose any of
the Software to third parties. You may not transfer or distribute the Software
or your license separately from the [PIONEER DEVICES] on which it operates. If
you do any of these acts, your license and right to use the Software is
automatically terminated. Wink has the right to terminate your license if you
fail to comply with these license terms. You will not remove any copyright
notice from the Software and agree to prevent any unauthorized copying of the
Software.
THE SOFTWARE IS PROVIDED "AS IS". WINK MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR NONINFRINGEMENT. YOU BEAR THE RISK RELATING TO OPERATION OF THE SOFTWARE.
WINK SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES HOWEVER BASED ARISING OUT OF OR IN
CONNECTION WITH THIS LICENSE OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR
RELATING TO THE USE OF THE SOFTWARE.
You are responsible for operation of your system and service.
Wink assumes no liability relating to the service and System Operator hereby
indemnifies Wink from any claims or liabilities arising out of or relating to
the products or services provided by System Operator.
Government Use. If Licensee is an agency, department, or other
entity of the United States Government ("Government"), Licensees use,
duplication, reproduction, release, modification, disclosure or transfer of the
Licensed Products, or of any related documentation of any kind, including
technical data, is restricted in accordance with Federal Acquisition Regulation
("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation
Supplement ("DFARS") 227.7202 for military agencies. The Licensed Products are
commercial. The use of the Licensed Products by any Government agency,
department, or other entity of the Government, is further restricted in
accordance with the terms of this Agreement, or any modification hereto.
Licensee will
26
affix the following legend upon delivery of each of the Licensed Products which
are the subject of this Agreement:
Use, duplication, reproduction, release, modification, disclosure
or transfer of this commercial product and accompanying
documentation, is restricted in accordance with FAR 12.212 and
DFARS 227.7202, and by a license agreement.
Contractor/manufacturer is: Wink Communications. The Software and
accompanying documentation are deemed to be "commercial computer
software" and "commercial computer software documentation",
respectively, pursuant to DFAR Section 227.7202 and FAR Section
12.212, as applicable. Any use, modification, reproduction,
release, performing, displaying or disclosing of the software and
accompanying documentation by the U.S. Government shall be
governed solely by the terms of this Agreement and shall be
prohibited except to the extent expressly permitted by the terms
of this Agreement.
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EXHIBIT D
SUPPORT
The following provisions govern the support to be provided by Wink to Pioneer
for the Licensed Engine.
1. Contact People. Pioneer shall appoint two (2) individuals within
its organization who will serve as primary contacts between it
and Wink to receive support ("Contact People"). All of Pioneer's
support inquiries shall be initiated through the Contact People.
2. Support Obligations. Pioneer will be responsible for providing
First Level Support and Second Level Support (as defined below)
to its Subdistributors and other customers with respect to the
Licensed Engine. Wink will provide Third Level Support (as
defined below) for the Licensed Engine in the manner specified in
these support terms.
3. Support Levels. Levels of customer support are defined as follows:
(a) "First Level Support" shall mean: (i) generating product
information; (ii) providing configuration support; (iii)
collection of relevant technical problem identification
information; (iv) filtering user errors from real technical
problems; and (v) solving simple problems by reference to existing
documentation.
(b) "Second Level Support" shall mean First Level Support plus
providing the following areas of support: (i) isolating the
problem to determine that it is a problem with the Licensed
Engine; (ii) recreating the problem in a lab simulation and/or
through interoperability testing; (iii) determining whether or not
the problem is a defect; (iv) collecting and analyzing diagnostic
data; and (v) defining an action plan with the customer to solve
the problem.
(c) "Third Level Support" shall mean: (i) confirming duplication of
the problem and validating that it's a defect; (ii) fixing
software bugs or generating workarounds.
4. Third Level Support.
(a) Escalation. Pioneer can escalate a problem to Third Level Support,
once Pioneer exhausts the items enumerated above in First and
Second Level Support. When escalating, Pioneer shall provide
enough information to allow Wink to duplicate the problem.
(b) Assignment of Severity Level. When a Third Level support call
comes into Wink from Pioneer, the parties will mutually assign a
Severity Level as specified below that describes the nature of the
call and how critical it is to Pioneer's customer base(s).
28
(c) Response: Wink agrees to use commercially reasonable efforts to
meet the response times for the respective problems commensurate
with the severity of the error as specified below:
Frequency of
Severity Level Definition First Response Time Status Update
-------------- -------------------------------------------- ------------------- ------------------
Critical Bug causes a crash and/or data loss to 4 business hours Each business day
a part or all of the system
High Bug causes a feature to violate a 4 business hours Each business day
performance specification (i.e.,
feature consistently does not work as
specified, or not at all)
Medium Bug causes an occasional failure of a 1 business day Weekly
feature (i.e., feature fails in specific
cases)
Low Bug is characterized by a "glitch" that 1 business day Weekly
does not affect a feature's
performance (e.g., confusing
messages, typo-graphical errors,
visual abnormalities, etc.)
Doc Error Error in documentation 2 business days
(d) Support. Wink agrees to provide Third Level Support
from 9 a.m. to 6 p.m. (San Francisco time) on
business days ("Support Hours"). Support requests
shall be submitted by Pioneer via email.
5. Exclusions. Wink's support obligations shall not extend to problems that
result from: (i) Pioneer's failure to implement any Updates to the
Licensed Engine which are provided by Wink; (ii) changes to the operating
system or environment or Pioneer Devices which adversely affect the
Licensed Engine; (iii) any alterations of or additions to the Licensed
Engine performed by parties other than Wink or Wink's authorized
Subcontractors; (iv) use of the Licensed Engine in a manner inconsistent
with the applicable Specifications or in a manner for which such Licensed
Engine was not intended; or (v) combination of the Licensed Engine with
other products not supplied by Wink, which problems do not affect the
Licensed Engine standing alone. Errors arising from the foregoing may be
addressed by Wink at its then current hourly rates.
6. Fees. In consideration for the support of the Licensed Engine
provided by Wink under this Exhibit, Pioneer shall pay an annual fee of
25,000 as prepaid support for fees for up to 125 hours of support. Any
additional support will be provided at Wink's then current hourly rates.
The fee does not include travel expenses (air, lodging, food, local
transport). The first support period
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29
will begin on the date of Final Acceptance and the fees for such period
are due upon execution of this Agreement. The fees for any renewal period
are due in advance within 60 days prior to the beginning of the renewal
period. Travel availability is not guaranteed. The support terms will
automatically renew unless one party notifies the other of its intent not
to renew.
7. Change. These support terms are subject to change annually. Any
changes will be documented in writing at least 90 days prior to the
renewal date.
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