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EXHIBIT 10.25
WINK ONLINE SERVER FOR INTERTEXT
LICENSE AGREEMENT
THIS AGREEMENT (the "Agreement") is executed as of this 30th day of September
1997 ("Execution Date") to memorialize the parties relationship and its terms
are intended to be effective as of October 31, 1994, (the "Effective Date"),
between Wink communications, Inc., a California corporation with offices at 0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 ("Wink") and Toshiba Corporation, with
offices at 1-1, Shibaura 1-Chome, Xxxxxx-xx, Xxxxx 000-00, Xxxxx ("Toshiba").
BACKGROUND
A. Wink is a software developer and has developed its interactive
television system of technology and related products, services, processes and
materials (the "Wink ITV System"), which includes a software protocol for
delivering interactive applications synchronized with or independent of
television programs and advertisements. Also included without limitation in the
Wink ITV System are an authoring tool, server software and the Wink Engine TM
that decodes the protocol and displays the interactive applications overlaid on
a television screen.
B. Wink and Toshiba desire that Wink develop and grant to Toshiba the right
to use and embed certain Wink products in Toshiba products identified by the
parties from time to time. Wink and Toshiba are therefore executing a series of
agreements to accomplish this desired goal:
(i) this Agreement,
(ii) Wink Engine License Agreement, and
(iii) Wink Application Server License Agreement
(together, the "Wink/Toshiba Agreements").
C. The Wink Online Server software is among the Wink Products that Toshiba
desires that Wink modify and grant to Toshiba the right to use and distribute in
Toshiba's products, as Toshiba wishes to include it in Toshiba's online server
product.
1 DEFINITIONS
1.1 "WOS/IT" shall mean the Wink online server software in machine
executable format, as modified to meet the Specifications.
1.2 "Licensed WOS Technology" shall mean the WOS/IT version 1.0 for
InterText and any related documentation, know-how and technical
information which Wink may provide to Toshiba under this Agreement, and
any Updates that may be provided by Wink to Toshiba from time to time.
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1.3 "Toshiba Online Server Product" shall mean a Toshiba online server
hardware and software product which has the functionality described on
Exhibit B.
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1.4 "Combined Online Server Product" shall mean a Toshiba Online Server
Product which incorporates the Licensed WOS Technology as permitted
under this Agreement.
1.5 "Deliverables" shall mean each deliverable identified in the Development
Plan.
1.6 "Development Plan" shall mean the plan for completion of the development
activities including the Specifications, each party's respective
development obligations, milestones, a schedule, Deliverables, and other
relevant items all as mutually agreed upon and as set forth in Exhibit A
attached hereto for the delivery of the Licensed WOS Technology and, if
specified by the Parties in a mutually agreed amendment to Exhibit B, to
Updates.
1.7 "Specifications" shall mean the technical and other specifications for
the Licensed WOS Technology as set forth in the Development Plan.
1.8 "Updates" shall mean updates containing error corrections or minor
enhancements to the Licensed WOS Technology created by or for Wink after
the Effective Date and designated by a change in version number to the
right of the decimal point. Updates do not include major enhancements to
the Licensed WOS Technology designated by changes in the version number
to the left of the decimal point. Because the functionality of the
Licensed WOS Technology can be modified by either changing the WOS
itself or by creating or revising an external application that
communicates with and controls the WOS through a defined API (such an
external applications to be known as a "Server Module"), either minor or
major enhancements may be provided in the form of a revision to WOS code
or in the form of a new or revised Server Module.
1.9 "Intellectual Property Rights" shall mean all current and future
worldwide patents and other patent rights, copyrights, mask work rights,
trade secrets, know-how, technical information, and all other
intellectual property rights, including without limitation all
applications and registrations with respect thereto.
2 DEVELOPMENT
2.1 Development Efforts. Each party will use reasonable commercial efforts
to perform its development activities in accordance with the Development
Plan. In connection therewith, each party shall (i) cooperate with the
other party to produce the Specifications, and (ii) cooperate in
providing the other party with additional materials and information, as
mutually agreed. Toshiba shall provide the equipment and other materials
identified on Exhibit C "Equipment") for use by Wink to execute the
Development Plan, to create Updates and new versions and to perform
Wink's support obligations. Toshiba shall remain the owner of such
Equipment. Wink may, upon written approval by Toshiba in each instance,
which approval shall not be unreasonably withheld, alter the
Specifications commensurate with good faith efforts to finalize and
refine the Deliverables in accordance with Toshiba's needs and
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objectives for the Licensed WOS Technology. The parties may agree on
additional development activities by amending Exhibit A. All development
shall be at each party's sole expense, except as set forth in Section 4
(entitled "Royalties") or Section 10 (entitled "Training, Support and
Maintenance") or Exhibit H (entitled "Support") below. Except as
provided in this Section 2, Toshiba shall be solely responsible for
development of the Toshiba Online Server Product and the Combined Online
Server Product.
2.2 Delivery and Acceptance. In the event either party is late in the
performance of its obligations with respect to the Development Plan, the
other party's obligations as to those items shall be delayed by a period
necessary as a result of the delay. The parties shall mutually agree on
testing criteria and evaluation procedures for the Deliverables which
shall be set forth in the Development Plan. Upon delivery to Toshiba of
each Deliverable, Toshiba shall have thirty (30) days to test such
Deliverable, unless a longer period is specifically agreed to by the
parties in writing, in accordance with the mutually agreed criteria and
procedures, for conformance to the applicable Specifications and to
accept such Deliverable or deliver to Wink a written Statement of
Defects to be corrected. Failure to provide a Statement of Defects shall
be deemed acceptance. If Toshiba provides a written Statement of
Defects, Wink shall use reasonable commercial efforts to correct such
defects as soon as practicable and resubmit the Deliverable to Toshiba.
These procedures shall be repeated until Toshiba accepts the Deliverable
or the parties mutually agree to terminate this Schedule.
2.3 Transfer. Upon Toshiba's acceptance of the final Deliverable ("Final
Acceptance"), Wink shall deliver to Toshiba a master diskette or other
digital storage media containing the Licensed WOS Technology for use by
Toshiba in accordance with the terms of this Agreement.
2.4 Other Projects. Toshiba acknowledges that Wink is in the business of
customizing its software products for other third parties and nothing in
this Agreement restricts Wink's rights to provide the Licensed WOS
Technology or other versions of the WOS/IT or other components of the
Licensed WOS Technology to any other party.
2.5 Further Development. Any additional development or testing of the
Licensed WOS Technology after acceptance under Section 2.2, including
the development of enhancements with particular functionality, or new
versions, will be subject to mutual agreement. If the parties agree upon
terms and conditions for such development the parties will attach an
addendum to this Agreement setting forth all such terms and conditions
or will amend this Agreement as necessary to account for such additional
development.
3 LICENSE
3.1 Grant. Subject to the terms and conditions of this Agreement, Wink
hereby grants to Toshiba a non-exclusive, non-transferable, right and
license under Wink's Intellectual property Rights in
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and to the Licensed WOS Technology, to (a) reproduce and have reproduced
the Licensed WOS Technology solely for incorporation into a Toshiba
Online Server Product, (b) to use internally the Licensed WOS Technology
for the purposes of 3.1 (a), and (c) to distribute the Combined Online
Server Products only in Japan and any other countries which both parties
may agree to in a mutually signed writing. Toshiba shall have no right
to distribute the Licensed WOS Technology on a standalone basis except
that Toshiba may distribute Updates provided by Wink to existing
customers of Combined Online Server Products for incorporation into such
Combined Online Server Products provided that such distribution shall be
subject to procedures reasonably acceptable to Wink to monitor such
distribution, including encryption procedures where distributed
electronically. The parties shall mutually agree on such procedures
prior to any such distribution and Toshiba shall ensure that its
subdistributors comply with all such procedures. Toshiba shall have no
right to sublicense the foregoing rights except to the extent a
sublicense may be deemed to have been granted in connection with the
exercise by Toshiba of its rights to engage submanufacturers and
subdistributors as described herein. Except as expressly provided in
this Agreement, Wink reserves all rights and ownership to the Licensed
WOS Technology.
3.1.1 Toshiba Subsidiaries. The grant in Section 3.1 (entitled
"Grant") shall also apply to any direct or indirect subsidiary
of Toshiba that is majority-owned and controlled by Toshiba and
only for so long as it remains majority owned and controlled by
Toshiba and that is listed in Exhibit D (entitled "Toshiba
Subsidiaries") provided that Toshiba, prior to the exercise of
any such rights by a subsidiary, obtains in writing such
subsidiary's agreement to be bound by all the applicable
restrictions and obligations under this Agreement. Upon request
of Wink, Toshiba promptly shall provide Wink a copy of each such
written agreement. Toshiba hereby guarantees the performance of
such obligations and restrictions by each subsidiary exercising
any rights under Section 3.1 as primary obligor and not merely
as surety. Toshiba shall provide Wink with the name and contact
information for an appropriate manager at each subsidiary in
Exhibit D. Failure to list a subsidiary in Exhibit D shall have
no effect on the obligations of Toshiba as set forth in this
Section 3.1.1.
3.1.2 Translations. Wink grants Toshiba the right to localize into the
Japanese language the user documentation provided by Wink for
WOS/IT ("Wink Manuals") and text resources in WOS/IT ("Wink Text
Resources", which together with Wink Manuals shall comprise
"Wink Documentation"). Wink grants Toshiba the non-exclusive,
non-transferable right to use, copy and distribute the Wink
Manuals, the translated Wink Manuals ("Translated Wink
Manuals"), and the translated Wink Text Resources in Japan. The
Translated Wink Manuals shall be a "derivative" work of the Wink
Manuals, and Translated Wink Manuals contain content which is
copyrighted material of Wink. Therefore, Toshiba's rights in the
Translated Wink Manuals are subordinate to Wink's rights in the
Wink Manuals, and the Translated Wink Manuals may only be used,
copied, or distributed in accordance with specific written
permission by Wink. The translated Wink Text Resources shall be
owned by Wink and are copyrighted property of Wink, and Toshiba
hereby assigns to Wink all rights Toshiba might otherwise have
in the translated Wink
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Text Resources. Before distributing any translated Wink
Documentation or changes to translated Wink Documentation,
Toshiba shall submit copies (in "soft copy" form if available)
to Wink for review and written approval, such approval not to be
unreasonably denied or delayed. Wink also grants to Toshiba the
right to use and copy the Wink Manuals and other
non-confidential and copyrighted materials provided by Wink to
create its own user-oriented documentation in the Japanese
language ("Toshiba Manuals"). Toshiba shall own the Toshiba
Manuals as a derivative of Wink copyrighted material. Toshiba
hereby grants to Wink an irrevocable, royalty-free non-exclusive
right to (i) use, copy and distribute the Translated Wink
Manuals and Toshiba manuals worldwide and (ii) translate for
use, copying, and distribution worldwide. Toshiba may distribute
Toshiba Manuals in lieu of Wink Manuals or Translated Wink
Manuals in Japan upon specific written approval by Wink, such
approval not to be unreasonably withheld or delayed. The
Translated Wink Manuals and Toshiba Manuals shall be marked as
follows: "Copyright (c) Toshiba Corporation, [year]. Based on
Copyrighted material of Wink Communications, Inc.."
3.2 Have Reproduced. Toshiba shall have the right to provide the Licensed
WOS Technology to its third party manufacturers of Combined Online
Server Products (each a "Submanufacturer"), provided that each
Submanufacturer shall agree in a signed writing to be bound by the
applicable instructions on Toshiba set forth in this Agreement with
respect to the Licensed WOS Technology, which include but is not limited
to the agreement to use and copy the Licensed WOS Technology solely to
create Combined Online Server Products and only for Toshiba and to keep
the Licensed WOS Technology confidential according to the applicable
terms of this Agreement. Toshiba shall provide the name of such
Submanufacturer to Wink promptly upon contracting with such
Submanufacturer regarding services concerning the Licensed Engine
Product. Upon request of Wink, Toshiba promptly shall provide to Wink a
copy of such signed writing with each Submanufacturer, and Toshiba shall
ensure that its Submanufacturer abides by such restrictions. Toshiba
agrees to indemnify, defend and hold Wink harmless from and against any
loss, cost, liability or expense (including Wink's reasonable attorneys'
fees) arising out of or related to a breach of the foregoing provisions
by Submanufacturers. Toshiba shall promptly notify Wink if Toshiba knows
or believes that a Submanufacturer has breached the provisions of this
Section 3.2.
3.35 Subdistributors. Toshiba may exercise its distribution rights hereunder
through the use of subdistributors; provided, that each subdistributor
agrees in writing, prior to obtaining the Combined Online Server Product
from Toshiba, to be bound by all applicable restrictions on Toshiba set
forth in this Agreement with respect to the Licensed WOS Technology.
Toshiba shall provide the name of such subdistributor to Wink promptly
upon contracting with such subdistributor regarding services concerning
the Licensed Engine Product. Upon request of Wink, Toshiba promptly
shall provide to Wink a copy of such signed writing with each
subdistributor, and Toshiba shall ensure that each subdistributor abides
by such restrictions. Toshiba agrees to indemnify, defend and hold Wink
harmless from and against any loss, cost, liability or expense
(including Wink's reasonable attorneys' fees) arising out of or related
to a
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breach of the foregoing provisions by subdistributors. Toshiba shall
promptly notify Wink if Toshiba knows or believes that a subdistributor
has breached the provisions of this section.
3.4 Obligation. Toshiba shall include the Licensed WOS Technology in every
Toshiba server product with the functionality of maintaining a two-way
communications session with an InterText client device (television,
settop box, VCR, etc.) that contains a Wink Engine.
4 ROYALTIES
4.1 Per-Unit Royalty. In consideration for the rights and licenses granted
to it under Section 3 above, for each copy of the Licensed WOS
Technology distributed by Toshiba, Toshiba shall pay Wink the royalty
set forth in Exhibit E. In addition, Toshiba shall pay Wink the
royalties set forth in Exhibit E for distribution of manuals. All such
royalties shall accrue upon shipment or other transfer by Toshiba.
4.2 Distribution of Updates. No royalty will be payable for Toshiba's
distribution of Updates alone.
4.3 Promotional Units. Toshiba may distribute a reasonable number of
Combined Online Server Products as promotional units, without incurring
a royalty payable to Wink under the provisions of Section 4.1 provided
that such units are distributed by Toshiba and its subdistributor, if
any, free of charge. Toshiba shall pay Wink the royalty pursuant to
Section 4.1 above whenever Toshiba or its subdistributor imposes any
charge on or related to a Combined Online Server Product.
4.4 Development & Testing Units. Toshiba may distribute internally
(i.e., within Toshiba Corporation) a reasonable number of Combined
Online Server Products, not to exceed three (3) total, as development
units ("Development Units"), without incurring a royalty to Wink under
the provisions of Section 4.1 provided that no part of Toshiba or any
subdistributor imposes any charge or recognizes any revenue from the
distribution of such units of Combined Online Server Products, and
provided that the Development Units are not used in any commercial
activity, including but not limited to the provision of services to any
customers of Toshiba (for example, but not limited to, MediaServe).
4.5 Payments. Toshiba shall make royalty payments to Wink due under this
Agreement within forty-five (45) days after the end of each calendar
quarter during the term of this Agreement, with the first payment to
occur within sixty (60) days after the Execution Date. Such payments
shall be accompanied by a written report in a form reasonably acceptable
to Wink which details with respect to the applicable period: (i) the
number of Combined Online Server Products distributed by Toshiba under
this Agreement including the identity of each customer unless such
customer has specifically required Toshiba in writing to keep their name
confidential, in which case such name shall be revealed to Wink or Wink
Japan as soon as this requirement expires or terminates, (ii) the
royalty due Wink with respect to such Combined Online Server Products
accrued during such period showing the calculation of such amounts, and
(iii) if applicable, the
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number of Combined Online Server Products distributed by Toshiba or its
subdistributors for which no royalty is due. Any amount not paid when
due under this Section will be subject to a late charge of 1.5% per
month, or the maximum permitted by law, whichever is greater.
4.6 Currency; Taxes. All payments hereunder shall be in United States
dollars. All payments by Toshiba shall be made free and clear of, and
without reduction for, any and all taxes, including, without limitation,
sales, use, value added, withholding, or similar taxes, other than taxes
which are imposed by the United States or any political subdivision
thereof based on the net income of Wink. Notwithstanding the foregoing,
Wink agrees that, if any income taxes are imposed by the Japanese
government on the payment to be made under this Agreement, Toshiba shall
withhold such amount of taxes ("Japan Royalty Income Withholding Tax"),
up to a maximum of 10% of such payments and pay the withheld amount to
the Japanese tax authorities to the extent that Toshiba is legally
required to do so. Excluding the Japan Royalty Income Withholding Tax,
any such taxes which are otherwise imposed on payments to Wink shall be
the sole responsibility of Toshiba. Toshiba shall provide Wink with
official receipts issued by the appropriate taxing authority or such
other evidence as is reasonably requested by Wink to establish that such
taxes have been paid.
4.7 Books and Records; Audit. Toshiba agrees to maintain, and to require
that each Submanufacturer and subdistributor who reproduces or
distributes the Licensed WOS Technology maintain and provide to Toshiba,
until three (3) years after the termination or expiration of this
Agreement, complete and current books, records and accounts regarding
all copying and distribution activities pursuant to this Agreement and
to document compliance with the licenses granted. Toshiba agrees to
allow an independent certified public accountant hired by Wink to audit
and examine such books, records and accounts no more than once each
calendar year, during Toshiba's normal business hours, to verify the
accuracy of the reports and payments made to Wink under this Agreement
and this Section and compliance with the restrictions of this Agreement.
In the event such audit determines that Toshiba has not paid Wink all of
the royalties due Wink, Toshiba 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%), Toshiba shall
reimburse to Wink its costs of such audit.
5 PROPERTY RIGHTS
5.1 Toshiba Property Rights. Toshiba owns all right, title and interest in
those items relating to the Toshiba Online Server Product (the "Toshiba
Property"), as set forth in Exhibit F. All modifications and derivatives
of Toshiba Property shall belong to Toshiba. Toshiba shall own all
files, code, or technology not listed in Exhibit F as being owned by
Toshiba that is related to the Toshiba Property, provided that such
files, code, or technology are not listed in Exhibit G.
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5.2 Wink Property Rights. Except for the Toshiba Property, Wink owns and
shall own all right, title and interest in and to (a) Licensed WOS
Technology and all modifications and derivatives thereof, (b) all
Intellectual Property Rights relating to the design, manufacture,
marketing, operation or service of the Licensed WOS Technology and the
Wink ITV System, (c) all files, code, or technology not listed in
Exhibit G as being owned by Wink that is related to the Licensed WOS
Technology (collectively, the "Wink Property"), provided that such
files, code, or technology are not listed in Exhibit F. Notwithstanding
anything to the contrary in this Agreement, those items listed as owned
by Wink, as set forth in Exhibit G attached hereto, are included in Wink
Property.
5.3 Assignment. Toshiba hereby assigns to Wink all right, title and
interest, including all Intellectual Property Rights, in and to all Wink
Property developed in whole or part by Toshiba. Wink hereby assigns to
Toshiba all right, title and interest, including all Intellectual
Property Rights, in and to all Toshiba Property developed in whole or
part by Wink. Each party shall sign any further documentation requested
by the other party to effect such assignment of rights. In the event a
party fails to take such action within a reasonable period, such party
hereby appoints the other party its attorney-in-fact for the purpose of
executing such documents, which appointment shall be deemed a power
coupled with an interest and shall be irrevocable.
5.4 Correction of Errors in Property Lists. If Toshiba has omitted any item
from Exhibit F (entitled "Toshiba Property") or if Wink has omitted any
item from Exhibit G (entitled "Wink Property"), the omitting party shall
notify the other party of its claim to ownership of the omitted item.
The parties shall agree upon ownership of such omitted item within
thirty (30) days.
5.5 Rights. The parties acknowledge that each party has at times been
provided and may in the future be provided with access to source code
developed by the other for the purpose of speeding the development or
support activities related to this Agreement. Irrespective of such
access and development, all Intellectual Property Rights shall be as set
forth in this Agreement.
5.6 Notice. Toshiba shall not modify, alter or obscure any proprietary
notices contained on or within any Licensed WOS Technology, and all
copies of the Licensed WOS Technology reproduced or distributed by or
for Toshiba shall contain copyright and other proprietary notices in the
same manner in which Wink incorporates such notices in the Licensed WOS
Technology and the documentation.
5.7 Limitations. Toshiba shall not modify, prepare derivative works of,
reverse engineer, disassemble, decompile, or otherwise attempt to obtain
access to the source code of any Licensed WOS Technology or any Wink
product. To the extent that access to source code is provided by Wink to
Toshiba under Section 5.5, such access shall not be a violation of this
Section 5.7.
6 PRODUCT QUALITY WARRANTY, WARRANTY
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6.1 Product Quality Warranty. Wink warrants to Toshiba that for a period of
three (3) months after Final Acceptance the Licensed WOS Technology and
Toshiba-Requested Updates and after delivery of any other Updates, such
Licensed WOS Technology or Updates of any kind will operate under
ordinary use in substantial conformance with the Specifications. Wink
does not warrant that the Licensed WOS Technology will be error free or
meet all of Toshiba's requirements. (This Section 6.1 lists separately
Licensed WOS Technology and the different kinds of Updates for
clarification for purposes only. Unless otherwise noted, in other
sections of this Agreement, the definition of Licensed WOS Technology
includes Updates, pursuant to Section 1.2.)
6.2 Items not Covered by Warranty. Wink's warranty shall not extend to
problems in the Licensed WOS Technology that result from: (i) Toshiba's
failure to implement any Updates provided by Wink; (ii) changes to the
operating system or environment or Toshiba Online Server Product or
other non-Wink products which adversely affect the Licensed WOS
Technology; (iii) any alterations of or additions to the Licensed WOS
Technology or other Wink products performed by parties other than Wink;
(iv) use of the Licensed WOS Technology in a manner inconsistent with
the Specifications or in a manner for which it was not intended; (v)
combination of the Licensed WOS Technology with other products not
supplied by Wink (unless such products are specifically identified in
the Specifications as compatible with the Licensed WOS Technology and
are tested and confirmed in writing as compatible by Wink in the
configuration and conditions deployed by Toshiba) which problems do not
affect the Licensed WOS Technology standing alone; or (vi) operation of
the Licensed WOS Technology outside of environmental specifications;
unless, with respect to items (ii), (iii), (v) and (vi), Wink was given
the opportunity and time to test such products or changes for
compatibility, and Wink provided Toshiba written confirmation of
compatibility.
6.3 Exclusive Remedy. Wink's sole obligation and Toshiba's exclusive remedy
under the above warranty shall be for Wink to use commercially
reasonable efforts to bring the Licensed WOS Technology into conformity
with Wink's warranty set forth in Section 6.1 (entitled "Product Quality
Warranty") above, at no cost to Toshiba (other than as provided for in
Section 10.1-10.2 entitled "Updates" and "Support", respectively);
provided, that Wink shall have no obligation to correct all errors.
6.4 Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, WINK MAKES
AND TOSHIBA RECEIVES NO WARRANTIES WITH RESPECT TO THE LICENSED WOS
TECHNOLOGY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WINK
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
7 LIMITATION OF LIABILITY.
WINK'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE
AMOUNTS RECEIVED FROM TOSHIBA HEREUNDER. IN NO EVENT SHALL EITHER
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PARTY BE LIABLE FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY NOR SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT THAT, WITH RESPECT TO CLAIMS BY
WINK AGAINST TOSHIBA FOR BREACH OF THE SCOPE OF LICENSES GRANTED IN THIS
AGREEMENT, WINK SHALL BE ENTITLE TO RECOVER LOST PROFITS. THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
8 INDEMNITY
8.1 Obligation. Wink shall defend, or at its option, settle any claims
brought against Toshiba and shall hold Toshiba harmless from any
judgments, damages, costs or expenses incurred by Toshiba, including
reasonable attorney's fees, resulting from any claim that the Licensed
WOS Technology infringes the copyright, trade secret or trademark rights
of a third party or the U.S. patent rights or the corresponding Japanese
patent rights that are identical in scope, where such U.S. or Japanese
patents have been granted prior to the first shipment of a Combined
Online Server Product by Toshiba, provided that Toshiba notifies Wink of
such claim promptly in writing of and gives Wink the exclusive authority
to defend or settle such claim and provided that such patents owned by,
controlled by, or licensed to only parties other than Toshiba or its
subsidiaries. Toshiba shall provide proper and full information and
assistance to settle or defend any such claim. If the Licensed WOS
Technology becomes, or if Wink reasonably believes it may become, the
subject of any claim for infringement or is adjudicatively determined to
infringe then Wink may, at its option and expense, either (i) procure
for Toshiba the right to sell or use, as appropriate, the Licensed WOS
Technology or (ii) replace or modify the Licensed WOS Technology with
other suitable and reasonably equivalent software so that the Licensed
WOS Technology becomes noninfringing or (iii) if (i) and (ii) are not
commercially practicable, Wink may terminate this Agreement.
8.2 Limitations. The foregoing obligations shall not apply to (i) the
Licensed WOS Technology used in conjunction with other products if the
Licensed WOS Technology used alone would not infringe, (ii)
modifications to the Licensed WOS Technology made by any party other
than Wink or made according to another party's specifications if the
Licensed WOS Technology would not infringe but for such modifications,
(iii) use of any version of the Licensed WOS Technology other than the
then-current version if the claim could have been avoided by use of such
version or (iv) any trademark claims regarding any marking or branding
not applied or approved by Wink.
8.3 Entire Liability and Obligation. THE FOREGOING PROVISIONS OF THIS
SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF WINK TO TOSHIBA
WITH
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RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS
BY THE LICENSED WOS TECHNOLOGY LICENSED TO TOSHIBA BY WINK PURSUANT TO
THIS AGREEMENT.
8.4 Toshiba Indemnification. Except with respect to those matters for which
Wink has agreed to indemnify Toshiba under Sections 8.1-8.3 above,
Toshiba agrees to indemnify and hold Wink harmless from and against any
and all claims, actions, liabilities, and costs, including reasonable
attorney's fees, arising with respect to its use and distribution of the
Licensed WOS Technology.
9 MARKETING
9.1 Wink Markings. From time to time, Wink shall provide Toshiba for its use
and its subdistributors use a list of permitted uses of Wink's
trademarks and logos that Wink may adopt, from time to time and include
in an amendment to Exhibit I (the "Wink Marks"), which shall be amended
by Wink subject to agreement by Toshiba, such agreement not to be
unreasonably withheld.
9.2 No Registration of Wink Marks. Except as expressly set forth in this
Agreement, nothing shall grant to Toshiba or its subdistributors any
right, title or interest in the Wink Marks. At no time during the term
of this Agreement shall Toshiba register, attempt to register or cause
the registration of any of the Wink Marks other than in Wink's name and
at Wink's specific written request, except in the event Toshiba adopts,
uses or acquires a trademark, xxxx or trade name substantially similar
to a Wink Xxxx xxxxx to Wink's adoption, use or acquisition of such Xxxx
Xxxx. Except to the extent such acts may not be prohibited by applicable
law, at no time during the term of this Agreement shall Toshiba or its
subdistributors challenge or assist others to challenge the Wink Marks
or the registration thereof.
9.3 Press Releases. The parties intend to cooperate and participate in
public relations programs to promote the Licensed WOS Technology and the
relationship between the parties. Appropriate personnel from each party
shall participate in such public relations program. 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. Such approval is
intended to protect the timing of disclosure of the availability of the
Licensed WOS Technology and of the existence of the parties'
relationship, as well as to ensure proper references, accurate
information and correct proprietary notices and information. The
contents of each press release shall be agreed upon between the parties
from time to time.
9.4 Disclosures of Terms and Relationship. 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.
10 TRAINING, SUPPORT AND MAINTENANCE
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10.1 Updates. Wink, in its sole discretion, shall make Updates available to
Toshiba from time to time for use and distribution consistent with this
Agreement. The Toshiba-Requested Updates, as defined in Exhibit H, shall
be accepted by Toshiba in accordance with the acceptance procedure
provided in Section 2.2 (entitled "Delivery and Acceptance"). Wink is
not responsible for the distribution of Updates to Toshiba's
subdistributors, Submanufacturers, or end-users. Unless an end-user
specifically refuses to accept a given Update, Toshiba promptly shall
make Updates available to all subdistributors and end-users. Toshiba
shall implement each Update to new production in its own facilities or
at Submanufacturers' facilities promptly after receipt of such Update
from Wink, but no later than forty-five (45) days after receipt.
10.2 Support. Toshiba shall be responsible for providing all support to its
subdistributors, subsidiaries, and end-user customers of the Combined
Online Server Products. Toshiba shall also be responsible for all
testing of the Combined Online Server Products containing accepted
Licensed WOS Technology with new versions of hardware and software
provided by parties other than Wink. Wink shall make available to
Toshiba support services as set forth in Exhibit H (entitled "Support"),
10.3 Equipment. The parties intend that Wink have an environment in which to
recreate field situations, to allow Wink to replicate problems which may
occur in the field and to test solutions for such problems. In order to
facilitate Wink's performance of the support activities contemplated
herein, Wink shall retain the Equipment provided pursuant to Section 2.1
which is reasonably necessary to functionally replicate a Combined
Online Server Product. Upon expiration or termination of this Agreement,
Wink shall return all of the Equipment to Toshiba. Wink shall return all
such Equipment to Toshiba promptly upon request by Toshiba; provided
that Wink's development and support obligations under this Agreement
shall terminate to the extent Equipment returned to Toshiba is required
by Wink to fulfill its obligations.
10.4 Training. Wink shall provide training for Toshiba employees as mutually
agreed from time to time at current Wink training rates at the time
training is provided.
10.5 Travel Expenses. In the event that, in the performance of its services
under this Section 10 (entitled "Training, Support and Maintenance") it
is mutually agreed by the parties that employees or contractors of Wink
will travel from Wink's facility, Toshiba shall pay and/or promptly
reimburse Wink for, all reasonable travel, room and board, car rental
and other similar expenses associated with such travel. Notwithstanding
the above, if both parties agree that travel by Wink employees or
contractors is necessary to fix bugs that are Wink's fault, the expenses
for such travel shall be borne by Wink, unless otherwise agreed.
10.6 Source Code Escrow. At Toshiba's written request, Wink agrees to enter
into a Source Code Escrow Agreement in a form mutually agreeable
governing the release of the source code of the Licensed WOS Technology.
Expenses associated with such agreement and escrow shall be the sole
responsibility of Toshiba.
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11 TERM AND TERMINATION
11.1 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
Execution Date. The term of this Agreement may be extended by written
mutual agreement of the parties.
11.2 Termination for Cause. If either party materially breaches its
obligations under Section 11 (entitled "Confidentiality) of this
Agreement, the non-breaching party may immediately terminate this
Agreement and the remaining other Wink/Toshiba Agreements upon written
notice to the breaching party. If Toshiba breaches the scope of any
license grant under any of the Wink/Toshiba Agreements, Wink may give
written notice to Toshiba that if such breach is not cured within thirty
(30) days, this Agreement and the other Wink/Toshiba Agreements shall
terminate immediately at the end of such thirty (30) day period. If
either party breaches its material obligations under this Agreement and
fails to cure such breach within thirty (30) days from written notice to
cure, the non-breaching party may terminate this Agreement.
11.3 Termination For Insolvency. This Agreement shall terminate upon written
notice given by a party, at such party's option and without further
notice, upon the earlier of: (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,
(iii) the other party's declaration in writing of its inability to pay
debts as they become due, or (iv) the other party's dissolution or
ceasing to conduct business as a going concern.
11.4 Effect of Termination. Upon the expiration or termination of this
Agreement, the following provisions shall take effect:
11.4.1 Any and all end user licenses granted by Toshiba or its
subdistributors shall continue in effect according to their
terms and conditions;
11.4.2 Within thirty (30) days after such expiration or termination,
both parties shall return and certify to the other party the
return of all Confidential Information of the other party in its
or its Submanufacturers' possession at the time of expiration or
termination, or destroy all such Confidential Information and
certify such destruction to the other party.
11.4.3 Toshiba shall pay all outstanding amounts owed to Wink within
forty-five (45) days of the end of the quarter during which such
expiration or termination occurs. In the event Wink is
performing development tasks for Toshiba at the time of any
termination, Toshiba shall also pay to Wink the next payment due
under the development schedule for such work; and
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11.4.4 The provisions of Sections 1 ("Definitions"), 2.4 ("Other
Projects"), the grant to Wink in Section 3.1.2 ("Translations"),
4.5 ("Currency; Taxes"), 4.6 ("Books and Records; Audit"), 5
("Property Rights"), 6.4 ("Disclaimer"), 7 ("Limitation of
Liability"), 8 ("Indemnity"), 11 ("Term and Termination"), 12
("Confidentiality"), 13 ("General"), and all payment obligations
accrued at the time of expiration or termination shall survive
the expiration or termination of this Agreement for any reason.
11.5 Destruction of Inventory. Within thirty (30) days after the effective
date of termination of this Agreement, Toshiba shall destroy, and shall
certify to Wink the destruction of, all copies of the Licensed WOS
Technology in its or its subdistributors' possession. Notwithstanding
the foregoing sentence, during such thirty (30) day period, Toshiba and
its subdistributors shall have a right to sell off existing inventory of
Combined Online Server Products.
11.6 Termination of Wink Toshiba Agreements. Except as expressly provided in
Section 11.2 (entitled "Termination for Cause") above, termination of
one of the other Wink/Toshiba Agreements shall not result in termination
of or in any way affect this Agreement nor shall the termination of this
Agreement result in termination of or in any way affect the other
Wink/Toshiba Agreements.
12 CONFIDENTIALITY
12.1 Obligation of Confidentiality. The parties acknowledge that by reason of
their relationship to each other hereunder, each may have access to
certain information and materials concerning the other's business,
plans, customers, technology and products that is confidential and of
substantial value to that other party, which value would be impaired if
such information were disclosed to third parties ("Confidential
Information"). Information provided in writing shall be deemed
Confidential Information if it has been clearly identified by the
disclosing party as confidential; for Confidential Information which is
orally disclosed, the disclosing party shall indicate to the receiving
party at the time of disclosure the confidential nature of the
information and designate it as confidential in a written memorandum
sent to the receiving party within thirty (30) days of disclosure,
summarizing the confidential information sufficiently for
identification. Without limiting the foregoing, Confidential Information
shall include the source code of the Licensed WOS Technology. 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, for a period of seven (7) years after the receipt of such
Confidential Information ("Confidentiality Period"), unless another
Confidentiality Period is provided in written notice by the disclosing
party. The Confidentiality Period for source code shall be perpetual.
Upon request by either party, the other party shall advise whether or
not it considers any particular information or materials to be
confidential, provided that the Licensed WOS Technology (except for
documentation identified by Wink as public) shall at all times be deemed
Confidential
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Information of Wink. Neither party shall develop or have developed any
software programs utilizing any of the other party's Confidential
Information.
12.2 Exceptions. Information shall not be deemed Confidential Information
hereunder if such information:
12.2.1 Is or becomes part of the public domain through no fault or
breach on the part of the receiving party;
12.2.2 Is known to the receiving party prior to the disclosure by the
disclosing party and such knowledge can be shown by written
records;
12.2.3 Is subsequently rightfully obtained by the receiving party from
a third party who has the legal right to disclose it;
12.2.4 Is independently developed by the receiving party without the
use of any Confidential Information or any breach of this
Agreement;
12.2.5 Is approved for public release by the disclosing party; or
12.2.6 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.
12.3 Injunctive Relief. The parties acknowledge that any breach of the
provisions of this Section 12 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 12.
13 GENERAL
13.1 Force Majeure. Nonperformance of either party shall be excused to the
extent that performance is rendered impossible by strike, fire, flood,
earthquake, governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond the
reasonable control of and is not caused by the negligence of the
nonperforming party.
13.2 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.
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13.3 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.
13.4 Governing Law; Dispute Resolution. This Agreement shall be governed by
and construed under the laws of the State of California, without
reference to conflict of laws principles. Any dispute or claim arising
out of or in relation to this Agreement, or the interpretation, making,
performance, breach or termination thereof, shall be finally settled by
binding arbitration under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce as presently in force ("Rules")
and by three (3) arbitrators appointed in accordance with said Rules.
Judgment on the award rendered may be entered in any court having
jurisdiction thereof. The place of arbitration shall be San Francisco,
California, U.S.A. Any monetary award shall be in U.S. dollars and the
arbitration shall be conducted in the English language. The parties may
apply to any court of competent jurisdiction for temporary or permanent
injunctive relief, without breach of this Section and without any
abridgment of the powers of the arbitrator.
13.5 Import & Export Controls. Toshiba 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. Toshiba warrants that
it will comply in all respects with the export and reexport restrictions
set forth in any export licenses obtained by the Wink or Toshiba (if
necessary). Toshiba warrants that it will not, and will take all actions
which may be reasonably necessary to assure that its end-user do not,
contravene such United States laws or regulations. Wink agrees that no
technical information furnished by Toshiba hereunder or any direct
products thereof is intended to or will be exported to any destination
restricted by export control regulation of the United States and/or
Japan, without prior written authorization from appropriate governmental
authorities.
13.6 No Assignment. Neither this Agreement nor any rights or obligations of
Toshiba or Wink hereunder shall be assigned by either party without the
prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed, 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, that in both
cases 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.
13.7 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)
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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.
13.8 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.
13.9 Notices. All notices under this Agreement shall be in writing and sent
by (i) certified air mail, return receipt requested, postage prepaid,
(ii) commercial courier service, or (iii) via facsimile with a
confirming notice sent by one of the methods described in subsections
(i) or (ii) above. 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.
13.10 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.
13.11 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.
13.12 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 but not limited to the Project
Outline between the parties dated February 24, 1995.
IN WITNESS WHEREOF, the parties by their duly authorized representatives
have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC TOSHIBA CORPORATION
By:/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxx Name: X. Xxxxxxxxx
General Manager
Title: Vice President Title: Legal Affairs Division
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EXHIBIT A
DEVELOPMENT PLAN
DEVELOPMENT PLAN of WOS
1. Specifications
Specifications for the Wink Online Server/IT version 1.0 shall be
attached to this Exhibit A.
The following documents comprise the Specifications ("WOS/J" refers to the
WOS/IT):
* Diagram of WOS/J, Dated 10/10/96.
* WOS/J Shared Memory Format, Dated 2/13/96.
* Server Module Library Functions, Dated 3/28/96.
* Using the WOS/J (from a Third Party Perspective), Dated 6/06/96.
* Application Manager API for WOS/J, Dated 5/13/96.
* Error & Return Codes for WOS/J, Dated 8/20/96.
2. Development Milestones: Deliverables, Deliverer, and Completion Dates
All development milestones by both Wink and Toshiba have been completed.
3. Schedule
Completed as of the Execution Date.
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EXHIBIT B
TOSHIBA ONLINE SERVER PRODUCT
The Toshiba Online Server product is designed to maintain a two-way
communications session with a Wink Engine resident in a client device
(television, settop box, VCR, etc.). To accomplish this task, the Toshiba Online
Server product consists of various software applications (which is capable of
including the Licensed WOS Technology) running on the Sun Solaris operating
system (version 2.4) on one or more Sparc-based computers in conjunction with
the Toshiba Communications Control Processor, modem banks and other hardware and
software.
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EXHIBIT C
TOSHIBA EQUIPMENT
This list covers the Equipment as defined in the Wink Engine License Agreement,
the Wink Online Server for InterText License Agreement and the Wink Application
Server License Agreement.
In addition to the two sample units of each Combined Engine Product listed
pursuant to Section 3.2 of the Wink Engine License Agreement, Toshiba shall
provide the items listed below. For each of the following items, Toshiba shall
provide (unless already provided) the number of units of each item specified
below, including licenses for use by Wink if such licenses are required as well,
and for items noted with a "*", any documentation in Japanese and English. If
documentation is not sufficient for use by engineers, then Toshiba shall provide
reasonable assistance to Wink engineers, including but not limited to providing
Wink reasonable training, installation assistance, responses to questions by
email, and specifications in Japanese and, if available, English.
The parties agree that they will amend this list to include any other items
reasonably necessary for Wink to develop, test, or maintain, on Wink's premises,
the Licensed Engine Product, the Licensed WAS Technology, and the Licensed WOS
Technology, excluding items that Wink should reasonably be expected to obtain on
its own as part of Wink's standard business assets (including standard PCs or
workstations, except to the extent that such PC or workstation is part of an
integrated piece of equipment distributed by Toshiba or a third-party for
development, testing, support, or use of the Combined Engine Products, Combined
Online Server Products, or Combined Broadcast Server Products).
Notwithstanding the above two paragraphs, the parties recognize that given this
contract is being executed after development and testing has concluded, some
items (in one or more units) may have been provided by Toshiba during
development or testing and may have been returned to Toshiba on the expectation
that these items are no longer needed by Wink for maintenance. The list below
excludes such items (or the returned units of items listed below). If such items
(or additional units of items listed below) become reasonably necessary for Wink
to provide maintenance under this Schedule, then the parties agree that such
items shall be added to the list.
The following excludes minor items such as cables, keyboards, mice/mousepads,
EPROMs and OTP ROMs, which may have been provided by Toshiba but are not of
material cost.
Already at Wink (excluding documentation):
PCs and workstations and related equipment:
(2) HP Vectra VL 5/75 PC w/ Win 3.1J/DOS-J, PCNFS-J; CD-ROM drive
(1) HP Vectra VL2 4/66 w/ Win 3.1J/DOS-J, PCNFS-J; CD-ROM drive
(2) HP Vectra VE 4/66 w/ Win 3.1J/DOS-J, PCNFS-J; XX-XXX xxxxx
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(0) Toshiba PV3000 Pentium-133 w/ Win 3.1J/DOS-J, PCNFS-J; CD-ROM drive
(1) J-3100 (486) PC w/ Win 3.1J/DOS-J, PCNFS-J
(1) J-3100 (486) PC w/ RTM drivers
(1) Sony 17" PC monitor
(2) Toshiba PC monitors
(5) HP 15" Ergo Ultra VGA monitor
(1) Toshiba 15" color monitor
(1) Sun SPARCstation IPX w/ Sun OS 4.13
(1) Sun Monitor (approx 20")
(1) Smart5 system (Sparc4, 19" grayscale monitor, Solaris 2.4J)
(1) Smart4 system (Sparc4, 19" grayscale monitor, Solaris 2.4J)
(1) Toshiba AS-4085 workstation (equivalent to SPARC 20) w/ Solaris 2.4J
(1) Toshiba 19" monitor for AS-4085
(1) external Sun CD-ROM drive
(1) Omron 14.4k modem
(1) 10baseT hub
RTMs, RTPs and related equipment:
(5) RTM cards
*(1) RTP System -- includes: SND68, SVC-II Digital Serial Converter,
Teletext inserter, and FW2000 w/ 20" Toshiba color monitor, keyboard (Japanese,
Sun type 5).
(1) external Toshiba CD-ROM drive (came with RTP)
(1) external Toshiba QIC tape drive (came with RTP)
Other equipment:
(2) Toshiba VCRs (non-IT enabled)
(1) BS-CS Tuner CSR-110 modified for development work
(3) old Teletext decoders
(3) ASCII telephone line emulators
(5) Koden StepDown (12OV-100V) transformer (small)
(2) Nissyo DN-101 StepDown transformer
(2) Toyoden CD 117-15 StepDown transformer
(1) adapter socket for burning TV CPU
(2) 28" WideBazooka TV w/IT (prototype) and remote control (Note: one TV
is dead)
(3) 32" WideBazooka TV w/IT (prototype) and remote control (Note: one TV
is dead)
(5) development IT settop box (dead) and remote control (Note:
one settop box is dead)
(1) ShibaSoku VG22F1 teletext signal generator
Not yet at Wink:
*(1) complete installation of Toshiba broadcast equipment system,
including (but not limited to) the Licensed WAS Technology
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*(1) complete installation of Toshiba online server system, including
(but not limited to) the Licensed WOS Technology
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EXHIBIT D
TOSHIBA SUBSIDIARIES
Toshiba Information Systems (Japan) Corporation
* Marketing contact:
Xx. Xxxxxx Xxxxxx, Marketing Manager
Open Systems Division
Toshiba Information Systems (Japan) Corporation
System Development Center
0-0 Xxxxxx-xxx, Xxxxxxxx-xx, Xxxxxxxx-Xxxx 000
Xxxxx
TEL: x00-00-000-0000
FAX: x00-00-000-0000
e-mail: xxxx@xxxx.xxxxx.xx.xx
* Technical contact:
Xx. Xxxxxxx Xxxxxxxxx, Technical Manager
Open Systems Division
Toshiba Information Systems (Japan) Corporation
System Development Center
0-0 Xxxxxx-xxx, Xxxxxxxx-xx, Xxxxxxxx-Xxxx 000
Xxxxx
TEL: x00-00-000-0000
FAX: x00-00-000-0000
e-mail: xxxx@xxxx.xxxxx.xx.xx
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EXHIBIT E
ROYALTIES
Running Royalties on the Licensed WOS Technology:
For shipments (or installations) by Toshiba, on or before 1 August 1997:
[ * ] per copy of the Licensed WOS Technology.
For shipments (or installations) by Toshiba, after 1 August 1997:[ * ]
of the list price of the Toshiba Online Server software incorporating
the Licensed WOS Technology, but no less than [ * ] or no greater than
[ * ] , per copy of the Licensed WOS Technology.
Running Royalties on the manuals:
* 5% of any fee (if any) charged by Toshiba Wink Manuals, Translated
Winlink Manuals, and Toshiba Manuals regarding WOS/IT, WOS/IT Server
Modules and APIs.
--------
* 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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EXHIBIT F
TOSHIBA PROPERTY
The WOS/IT version 1.0 is provided to Toshiba as a set of Main Modules
(executables, shared libraries, header files, configuration & shell script) and
Debug/Test Modules (executables, libraries, and a source code module used to
allow testing of Wink Online Server software without use of the source code in
the GUI portion of the Toshiba Online Server product).
All files of the WOS/IT, including all source code that is compiled into
the WOS/IT modules and other files delivered to Toshiba, are owned by Wink (see
listing in Exhibit G).
Software components of Toshiba Online Server outside of WOS/IT.
[ * ]
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EXHIBIT G
WINK PROPERTY
1. FILES IN WOS/IT
A. MAIN MODULES: INCLUDED IN COMBINED ONLINE SERVER PRODUCTS
[ * ]
B. DEBUG AND TEST MODULES: DEVELOPED BY WINK FOR ITS TESTING/DEVELOPMENT
PURPOSES ONLY.
[ * ]
2. OTHER WINK PROPERTY
1. Test Plans, Test Lists, and Test Cases developed by Wink.
2. Server modules developed by Wink to test and/or demonstrate the capabilities
of the Wink technologies.
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EXHIBIT H
SUPPORT
The following provisions govern the support to be provided by Wink to Toshiba
under this Agreement.
A. General Support.
1. Contact People. Toshiba shall appoint two (2) individuals within its
organization for support under this Agreement ("Contact People"). The Contact
People will serve as primary contacts between it and Wink and to receive
support. All of Toshiba's support inquiries shall be initiated through the
Contact People.. Toshiba shall have the right to re-assign individuals to become
Contact People from time to time, but Contact People shall be adequately trained
by Toshiba or by Wink, pursuant to Section 10.4 (entitled "Training") of the
Agreement, to perform the responsibilities required of Toshiba in this Exhibit.
2. Support Obligations. Toshiba will be responsible for providing First
Level Support and Second Level Support (as defined below) to its Subsidiaries
and to customers with respect to the Products. Wink will provide Third Level
Support (as defined below) for Products 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) providing front-line
telephone support for answering day-to-day questions and collecting 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 Wink Product; (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. Toshiba can escalate a problem to Third Level
Support, once Toshiba exhausts the items enumerated above in First and Second
Level Support. When escalating, Toshiba shall provide enough information to
allow Wink to duplicate the problem. To the extent that
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Toshiba is unable to provide First and Second Level Support, the support which
Wink provides shall be charged at a rate of 50% higher than that provided for in
Section C. 1 below, and Wink may require that Toshiba arrange for training of
Toshiba's Contact People.
(b) Assignment of Severity Level. When a Third Level support call
comes into Wink from Toshiba, the parties will mutually assign a Severity Level
as specified below that describes the nature of the call and how critical it is
to Toshiba's customer base(s).
(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.
First Frequency
----- ---------
of
Severity Level Definition Response Time Status
Update
Critical Bug causes a crash and/or 4 business hours Each
business day
data loss to a part or all of
the system
High Bug causes a feature to 4 business hours Each
business day
violate a performance
specification (i.e., feature
consistently does not work
as specified, or not at all)
Medium Bug causes an occasional 1 business day Weekly
failure of a feature (i.e.,
feature fails in specific cases)
Low Bug is characterized by a 1 business day Weekly
"glitch" that 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 Weekly
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(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
Hours reflect Wink's committed level of availability, but Wink staff members are
often available outside those hours. Support requests shall be submitted by
Toshiba via email to a group list at Wink of appropriate personnel. To provide
better assurance that Wink personnel promptly receive support requests, Wink
will establish a voicemail group number and provide use instructions to Toshiba
so that Contact People can easily inform Wink personnel that a support request
email has been sent.
Exclusions. Wink's support obligations for the fees provided for in
Section C shall not extend to problems in the Products that result from: (i)
Toshiba's failure to implement any Updates to tile Products which are provided
by Wink; (ii) changes to the operating system or environment or Toshiba
Components or Toshiba Server Products which adversely affect the Products; (iii)
any alterations of or additions to the Products performed by parties other than
Wink; (iv) use of the Products in a manner inconsistent with the applicable
Specifications or in a manner for which such Product was not intended; (v)
combination of the Products with other products not supplied by Wink, which
problems do not affect the Products standing alone; or (vi) operation of the
Products outside of environmental specifications. Errors arising from the
foregoing may be addressed by Wink at its then current hourly rates.
B. Comprehensive Support.
1. Toshiba-Requested Updates. In the case that Toshiba does not wish to
wait for Wink to choose on its own to create an Update pursuant to Section 10.1,
Toshiba may request, from time to time, an Update version of the Licensed WOS
Technology ("Toshiba-Requested Updates") in order to make minor feature
enhancements in a timeframe desired by Toshiba. Wink shall use commercially
reasonable efforts to schedule the Toshiba-Requested Update in a timeframe that
meets Toshiba's requested schedule.
2. Compensation. Toshiba-Requested Updates shall be treated in the same
manner as Updates, except that Wink's work shall be compensated by Toshiba.
Compensation shall be at the rate of US$120/hour, due net/30. The compensation
terms listed herein are subject to change annually, with thirty (30) days
written notice provided by Wink to Toshiba.
3. Ownership. Ownership of the property created for the
Toshiba-Requested Update will be agreed according to the same basis as was used
in the development of the Licensed WOS Technology, Version 1.0. Payment by
Toshiba to Wink for Toshiba-Requested Updates shall not affect ownership of the
Updates or of any other Wink Property.
C. Fees on General and Comprehensive Support.
1. Fees. In consideration for the support provided by Wink in this
Exhibit, Toshiba shall pay the following fees:[ * ].
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2. Changing. The terms listed herein are subject to change annually,
with 30 days written notice provided by Wink to Toshiba.
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EXHIBIT I
XXXX XXXX(s)
The following Wink Marks are relevant to the Wink Online Server for InterText
License Agreement.
Wink ITV(TM) For use when referring in text to the
Wink interactivity system or the interactive
functionality provided by Wink's technology.
Wink Online Toolkit(TM) For use when referring in text to the Licensed WOS
Technology version 1.X
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AMENDMENT No.1 TO
WINK ONLINE SERVER FOR INTERTEXT LICENSE AGREEMENT
THIS AMENDMENT (the "Amendment") hereby amends the terms and conditions
of the "Wink Online Server For Intertext License Agreement" executed as of the
30th day of September 1997 (the "Agreement") between Wink Communications, Inc.,
a California corporation with offices at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx,
XX 00000, X.X.X. "WINK" and Toshiba Corporation with offices at 1-1 Shibaura,
1-Chome,. Xxxxxx-xx, Xxxxx 000-0000, Xxxxx ("Toshiba"). The Amendment is
effective by the parties as of this 23 day of March 1998 ("Execution Date").
Unless specifically amended in this Amendment, all terms of the
Agreement remain in force.
Amendment
1. The product and development:
(1) An addendum to Exhibit B "Toshiba Online Server Product" The
following shall be inserted at the bottom: Toshiba shall have a
product called "Compact PC WOS". It is the same as what was
described in Exhibit B before this amendment except that it runs
on the Windows NT operating system (version 4.0) on one or more
Windows NT-based computers and that it supports' phone lines
concurrently less than 144 lines.
(2) An addendum to Exhibit A "Development Plan": The following shall
be inserted at the bottom: 4. A part of "Licensed WOS
Technology" which runs on Sun Solaris version 2.4, as described
in the Agreement, shall be ported on Windows NT version 4.0
("Porting"). Porting shall be completed in April 1998.
2. Compensation and cost borne:
No compensation shall be paid between the parties for Porting. Instead
Toshiba shall send a competent engineer to Wink during the period of
Porting, on Toshiba's expenses. This engineer shall do most of the work
of Porting, under Wink's management and under the Non-Disclosure
Agreement to be executed between Wink and Toshiba.
Wink shall assign a lead engineer for Porting, who shall prepare the
environment for Porting and advise the Toshiba engineer, on Wink's expenses.
3. Ownership and rights:
No change of ownership or rights as provided in the Agreement is
effected by Porting or by Amendment, and accordingly, Licensed WOS Technology as
modified after Porting remains Wink's property.
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4. Royalties
(1) An addendum to Exhibit E "Royalties"
The following shall be added at the bottom of "Running Royalties on the Licensed
WOS Technology:":
For shipments (or installations) by Toshiba of Compact PC WOS: [ * ] per copy
of the Licensed WOS Technology.
(2) An addendum to Article 4.1 "Per-Unit Royalty" The following shall be added
at the bottom:
Wink shall not license the Compact PC WOS software to a third party for the
business in Japan in equivalent or more favorable terms and conditions than
those to Toshiba.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Amendment as of the Execution Date.
WINK COMMUNICATIONS, INC. TOSHIBA CORPORATION
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxx Name: Xxxxx Xxxxxxx
Title: VP Engineering, Title: Vice President & Group Executive
Wink Communications Information & Communication and
Control Systems Group
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