1
EXHIBIT 10.11
CABLE AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the 10th day of December 1998, by and between WINK
COMMUNICATIONS, INC., a California corporation ("Wink"), whose address is 0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and COMCAST PROGRAMMING, a Division of
COMCAST CORPORATION, a Pennsylvania corporation ("Affiliate"), whose address is
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000-0000.
1. GRANT OF LICENSE
1.1 Wink hereby grants to Affiliate the non-exclusive license to use the
Wink ITV Studio, Wink ITV Broadcast Server, and Wink ITV Response Server
versions 1.0 and 1.x (all applicable) updates (hereinafter collectively
referred to as "Wink Software") to deliver to either advanced analog
and/or digital set top boxes the Enhanced Broadcasting within its New
Haven, CT Operating Area (Launch Market), or any portion thereof, as
determined by Affiliate.
1.2 For purposes of this Agreement, the "Operating Area" of any system shall
mean, with respect to a cable television system, the geographical area
where Affiliate is authorized to construct, operate, manage or maintain
a cable television system.
1.3 Affiliate agrees to test the Wink Software on advanced analog (CFT 2200)
cable set top boxes in New Haven, CT, or any portion thereof, as
determined by Affiliate.
2. TERM
2.1 The term of this Agreement shall commence on the date of execution of
this Agreement and terminate December 31, 2001.
3. INTEGRATION
3.1 Affiliate will make commercially reasonable efforts to test Enhanced
Broadcasting in the New Haven, CT Operating Area (Launch Market), or any
portion thereof, as determined by Affiliate. For the purposes of this
Agreement, Enhanced Broadcasting consists of video originated by a
national broadcaster or a cable programming network that has been
enhanced through the use of Wink Software. It is Affiliate's intent,
subject to technical issues, to initiate such test by March 31, 1999.
3.2 Wink agrees to perform all Wink related work necessary to integrate with
advanced analog and digital cable set top boxes at no charge to
Affiliate.
Page 1 of 7
2
3.3 Affiliate agrees to allow Wink to install and use Wink Response Servers
located in individual Affiliate Operating Area headends in which
Affiliate determines to deploy Wink Software, to collect, aggregate, and
route responses for national Enhanced Broadcasting applications through
Wink's Alameda Data Center. Wink shall provide relative equipment and
perform all Wink-related installation work necessary to ensure proper
operation of the Wink Software and reliable delivery of Enhanced
Broadcasting and shall provide on-going technical support for the Wink
Software through the term of the Agreement for the Launch Market(s).
Wink is responsible to maintain and repair all Wink related head-end
components.
3.4 Wink agrees to provide weekly reporting to Affiliate of all response
traffic generated by its Wink enabled Affiliate subscribers.
4. RATES AND DEPLOYMENT
4.1 Affiliate shall have the right and option to include up to two (2)
additional 2-way Wink capable advanced analog and/or digital Operating
Areas under this Agreement as long as such Operating Areas launch prior
to or on December 31, 1999, and such Operating Areas shall each be
considered a Launch Market. Launch Market is defined as a Comcast market
that receives no license fee, installation, or integration fees for the
term of this Agreement. In the event that Comcast adds a 2nd or 3rd
market to this Agreement per the launch option above, Affiliate agrees
that such Launch Markets shall deploy WINK to all advanced analog and/or
digital households and shall be governed by the terms of this Agreement.
4.2 Affiliate understands that the Enhanced Broadcasting service is
delivered from National Broadcasters and National Cable Programming
Services (hereinafter collectively referred to as "Programmers") in the
VBI of the Programmers Video Signal. If Affiliate experiences problems
with the Enhanced Broadcasting delivery system, Affiliate will
reasonably cooperate with Wink to remedy such problems.
4.3 Wink agrees to revenue share with Affiliate on all transaction
processing fees associated with the Enhanced Broadcasting applications.
Wink agrees to share [ * ] percent of gross transaction processing
fees (including, but not limited to Purchase Transaction Fees and
Request Transaction Fees). See Schedule A.
5. PROMOTION AND RESEARCH
-------------
* 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.
Page 2 of 7
3
5.1 Affiliate agrees to promote the initial test of the Wink service to
applicable Subscribers within the Operating Area of New Haven, CT.
Advertising, promotional, marketing and/or sales materials concerning
the Wink service which are provided to Affiliate by Wink may be used at
the discretion of Affiliate.
5.2 Wink may, from time to time, undertake marketing tests and surveys,
rating polls and other research in connection with Affiliate. Affiliate
shall provide Wink with reasonable assistance in conducting such
research with respect to Affiliate's subscribers. Wink agrees to
communicate to Affiliate, 30 days in advance, of such marketing tests
and surveys. Wink shall pay for all Wink conducted research. Affiliate
agrees that Wink will have access to research regarding the deployment,
launch, and usage of Wink service by Affiliate subscribers. Wink agrees
that Affiliate will have access to research regarding the deployment,
launch, and usage of Wink service by Affiliate subscribers.
6. NOTICES
6.1 All notices, statements, and other communications given hereunder shall
be in writing and shall be delivered by facsimile transmission, personal
delivery, certified mail, return receipt requested, or by next day
express delivery, addressed, if to WINK COMMUNICATIONS, Attn: VP
Affiliate Sales at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000. If to
Affiliate, Attn: SVP, Programming, at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
XX 00000. The date of such facsimile transmission, telegraphing or
personal delivery or the next day if by express delivery, or the date
three (3) days after mailing, shall be deemed the date on which such
notice is given and effective.
7. TRADEMARKS
7.1 All right, title and interest in and to the Wink Software or other
rights, of whatever nature, related thereto shall remain the property of
Wink. Further, Affiliate acknowledges and agrees that all names, logos,
marks, copyright notices or designations utilized by Wink in connection
with the Wink Software are the sole and exclusive properly of Wink, and
no rights or ownership are intended to be or shall be transferred to
Affiliate. Wink acknowledges and agrees that all use of the name Comcast
and the concentric "C". logo shall remain the sole and exclusive
property of Affiliate, and cannot be used by Wink without express
permission by Affiliate, and no right or ownership are intended to be or
shall be transferred to Wink.
8. REPRESENTATION AND INDEMNIFICATION
Page 3 of 7
4
8.1 Wink represents and warrants to Affiliate that (i) it is a corporation
duly organized and validly existing under the laws of the State of
California; (ii) Wink has the corporate power and authority to enter
into this Agreement and to fully perform its obligations hereunder (iii)
Wink is under no contractual or other legal obligation which in any way
interferes with its ability to fully, promptly and completely perform
hereunder.
8.2 Affiliate represents and warrants to Wink that (i) Affiliate is a
corporation duly organized and validly existing under the laws of the
State of Pennsylvania; (ii) Affiliate has the requisite power and
authority to enter in this Agreement and to fully perform its
obligations hereunder; (iii) Affiliate is under no contractual or other
legal obligation which in any way interferes with its ability to fully,
promptly and completely perform hereunder.
8.3 Wink shall indemnify, defend and hold harmless any Comcast company,
Affiliate, its parents, subsidiaries, and their respective affiliates,
officers, directors, employees and agents from and against any and all
losses, settlements, claims, actions, suits, proceedings, investigation,
judgments, awards, damages, liabilities, costs and expenses including,
without limitation, reasonable attorneys' fees (collectively "Losses"
and, individually, a "Loss") which arise out of or as a result of (i)
any claim, demand, action, suit or proceeding in which it is alleged
that the Wink Software or any part thereof violates or infringes any
patent or copyright or other proprietary right of any third party or
constitutes a misappropriation of any third party's trade secrets or
(ii) arising out of or as a result of any Wink equipment.
9. CONFIDENTIALITY
9.1 Neither Affiliate nor Wink shall disclose to any third party (other than
its respective employees, in their capacity as such), any relevant
information marked "confidential" without prior written consent. The
parties agree to keep the terms of this Agreement confidential, but
acknowledge that disclosure may be made to applicable Programmers that
Enhanced Broadcasting is being broadcast with their programming and that
certain other disclosures may be required by law.
9.2 It is the intent of both parties to issue a joint press release with
respect to this Agreement within fourteen (14) days of execution of this
Agreement. Neither party shall issue any press release, with respect to
this Agreement, unless the content of such release is mutually approved.
9.3 Wink commits to Affiliate that Wink will implement high levels of
security on the network for the collection, storage, and routing of
Subscriber Data. Wink further agrees to only release individual
Subscriber Data to entities
Page 4 of 7
5
that a subscriber decides should have that information. Choice is
granted by the subscriber through their deliberate interaction with a
Wink Enhanced Broadcasting application. For purposes of this Agreement,
Subscriber Data is defined as that information which currently resides
in Affiliate's billing system, e.g. subscriber name, address, phone
number, service level, monthly billing amount, ordering activity tied to
pay-per-view and other ancillary services and Wink Software.
10. TERMINATION
10.1 Notwithstanding any other provision herein, Wink will have the right to
terminate this Agreement or all or any licenses granted herein if
Affiliate has made a misrepresentation herein or fails to comply with
any of its material obligations under this Agreement. Should Wink elect
to exercise this right to terminate, it must be done in writing
specifically setting forth those items of misrepresentation or
nonperformance. Affiliate will then have thirty (30) days from receipt
of notification to remedy the items of nonperformance.
10.2 Notwithstanding any other provision herein, Affiliate will have the
right to cease distribution of Enhanced Broadcasting and/or terminate
this Agreement or any licenses granted herein at their sole discretion,
relative to any or all Operating Areas under this Agreement.
10.3 Upon expiration of the term (including any extensions thereof) of this
Agreement or upon the termination of this Agreement or of any license
granted hereunder for any reason, all rights of Affiliate to use the
Wink Software will cease. In such instance, Wink will immediately remove
the Wink Software and any Wink equipment from Affiliate premises, and
Affiliate will allow Wink to so remove. Furthermore, Affiliate will
(i)purge all copies of all Wink Software from all computer processors or
storage media on which Affiliate has installed or permitted others to
install such Wink Software, and (ii) when requested by Wink, certify to
Wink in writing, signed by an officer of Affiliate, that all copies of
the Wink Software have been returned to Wink or destroyed and that no
copy of any Product remains in Affiliate's possession or under its
control.
11. GENERAL
The parties agree that in the event it is necessary to employ attorneys to
enforce the terms of this Agreement, the prevailing party in any lawsuit shall
be entitled to an award of reasonable attorneys' fees and court costs.
a) This Agreement may not be assigned outside of Affiliate Operating Area
without prior written mutual consent of Affiliate and Wink.
b) This Agreement may be amended only by an instrument in writing, executed
by Affiliate and Wink.
Page 5 of 7
6
c) This Agreement will be governed in all respects by the laws of the State
of California.
d) This Agreement represents the entire agreement between the parties and
supersedes and replaces all prior oral and written proposals,
communications and agreements with regard to the subject matter hereof
between Affiliate and Wink.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. COMCAST PROGRAMMING
By: By:
Xxxxxx Xxxxxxxxxxx Xxxxxx X. Xxxxxx
CEO/President Senior Vice President
Programming
Page 6 of 7
7
WINK/AFFILIATE REVENUE SHARE
-SCHEDULE A-
WINK RESPONSE SERVICE TRANSACTION FEE
[ * ] OF GROSS TRANSACTION FEE
Purchase Transaction is defined as transaction(s) initiated by Wink enabled
subscribers which result in the purchase of services or products advertised
through a Wink Enhanced Broadcast application.
Request Transaction is defined as transaction(s) initiated by Wink enabled
subscribers which result in the subscriber requesting information that must be
sent to subscriber about services or products advertised through a Wink Enhanced
Broadcast application.
Wink commits that as of this Agreement execution date, Wink's revenue share on
the transaction processing fee with any other Cable Operator (Multiple System
Operator) is not higher than [ * ].
Wink shall accord Affiliate Most Favored Nations status in any future Wink
Affiliation Agreement. This provision shall survive the expiration or
termination of this Agreement.
-------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
Page 7 of 7
