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EXHIBIT 10.27
AGREEMENT OF DEVELOPMENT OF
DEMONSTRATION SOFTWARE
THIS AGREEMENT (the "Agreement") is executed as of this 25th day of January 1999
("Execution Date") between Toshiba Corporation with offices at 0-0, Xxxxxxxx
0-Xxxxx, Xxxxxx-xx, Xxxxx 000-0000, Xxxxx ("Toshiba") and Wink Communications,
Inc., a California corporation with offices at 0000 Xxxxxx Xxxxxxx Xxxxxxx,
Xxxxxxx, XX 00000, X.X.X. ("Wink").
BACKGROUND
1. Toshiba and Wink (hereafter "Parties") have concluded "Wink Engine
License Agreement" on September 30, 1997, pursuant to which Wink is
licensing its interactive television software "Wink Engine version 1.x"
to Toshiba and Toshiba is selling interactive television receivers using
the said software.
2. Toshiba wishes to develop more advanced interactive television receivers
using more enhanced software "Wink Engine version 2.0" and an associated
authoring tool "Wink Studio version 2.0" (hereafter collectively
"version 2.0") which Wink wishes to develop under this Agreement.
Detailed specification of the version 2.0 is under discussion between
the Parties.
3. Meanwhile, Toshiba wishes to evaluate demonstration software of the
version 2.0 for the purpose of sales promotion of the version 2.0, and
the Parties have agreed on the specification of the demonstration
software of the version v2.0.
4. It is the intent but not obligation of the Parties that a separate
license agreement shall be concluded regarding the version 2.0 in the
near future when the specification of the version 2.0 is agreed upon and
that this Agreement may be possibly superseded by the said license
agreement.
5. Since development of the demonstration software has been agreed upon by
the Parties and since the license agreement of the version 2.0 is not
yet practical, the Parties execute this Agreement to memorize the
agreement between the Parties regarding development of the demonstration
software.
AGREEMENT
1. DEVELOPMENT
Wink agrees to develop the demonstration software for the version 2.0 (hereafter
the "Demonstration Software") as listed in Exhibit A (entitled "Development
items for Demonstration Software") in accordance with the mutuall-agreed-upon
specification by the end of June 1998, and releases a follow-up version to
Toshiba in object code form by the end of July 1998.
2. LICENSES
Wink hereby grants to Toshiba a right to copy and use the Demonstration Software
for demonstration purposes. In case that Toshiba should want in the future to
use the Demonstration Software in Toshiba's products for sales or for other ways
of business, the Parties shall faithfully negotiate to conclude the license
agreement as mentioned in BACKGROUND 4, above.
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3. PAYMENT
Toshiba shall pay US $76,000.00 within 30 days after the Execution Date of this
Agreement. 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 and pay the withheld amount to the Japanese tax
authorities to the extent that Toshiba is legally required to do so. Toshiba
shall send tax certificates issued by such Japanese tax authorities in order for
Wink to fully receive tax credit against the US tax authorities.
4. TERM
Upon execution of this Agreement, this Agreement shall retroactively become
effective as of June 1, 1998 and continue to be effective until terminated by
Toshiba upon a thirty (30) days written notice.
5. CONFIDENTIALITY
Any information furnished by the disclosing party to the receiving party
pursuant to this Agreement and clearly identified as confidential by the
disclosing party shall be deemed confidential information (hereinafter
"Confidential Information"). The receiving party agrees not to disclose the
Confidential Information to third parties for a period of five (5) years after
the receipt of such Confidential Information. 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 write
down such information and deliver it to the receiving party in writing within
fifteen (15) days after such disclosure. Notwithstanding above, the confidential
obligation shall not apply to the information which:
(1) is or becomes part of the public domain through no fault or
breach on the part of the receiving party;
(2) is known to the receiving party prior to the disclosure by the
disclosing party;
(3) is subsequently rightfully obtained by the receiving party from
a third party who has the legal right to disclose it;
(4) is independently developed by the receiving party without the
use of any Confidential Information or any breach of this
Agreement;
(5) 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;
(6) the disclosure is approved by the disclosing party in writing.
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6. INDEMNITY
Wink will indemnify Toshiba against any and all third party claims of
infringement of intellectual property rights which may be asserted against
Toshiba on the grounds that the Demonstration Software infringes upon such third
party's intellectual property rights. Wink will have the right to defend
against, control the defense of, and settle any action based upon any such
claims. Wink will bear all costs and expenses, including reasonable attorney's
fees, incurred in connection with the defense of any such claims or as a result
of any settlement made or judgment rendered on the basis of such claims. If any
legal action alleging infringement is commenced or any threat thereof is made
against Toshiba, Wink shall, at its expense and at its option, either secure for
Toshiba the right to continue to use the Demonstration Software or replace or
modify the Demonstration Software so that it no longer constitutes an
infringement.
7. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by and construed under the laws of the State of
California, without referece to conflict of laws principles. Any dispute or
claim arising out of or relation to this Agreement, or the interpretation,
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 arbitrators
appointed in accordance with the said Rules. Judgment on the award rendered
maybe entered in any court having jurisdiction thereof. The arbitration shall be
conducted in English and take place in USA if initiated by Toshiba, and in Japan
if initiated by Wink.
8. EXPORT CONTROL
Neither party shall export or re-export, directly or indirectly, any technical
information disclosed hereunder or direct product thereof to any destination
prohibited or restricted by the export control regulations of U.S.A. and Japan
without the prior authorization form the appropriate governmental authorities.
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: By:
Name: Name:
Title: President & CEO Title: GENERAL MANAGER
AOI GROUP
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EXHIBIT A
DEVELOPMENT ITEMS FOR DEMONSTRATION SOFTWARE
Display resolution
Color system
JPEG/PNG graphic support
Cursor-moved event script
Resident Japanese font sizes
Increased Japanese font sizes
Improvement of resident icons
Gradient fill hint
Wallpaper hint
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AMENDMENT NO.1 TO
AGREEMENT OF DEVELOPMENT
OF DEMONSTRATION SOFTWARE
THIS AMENDMENT (the "Amendment") hereby mends the terms and conditions
of the "Agreement of Development of Demonstration Software" executed as of the
25th day of January 1999 (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 00 Xxxxxxxx,
0-Xxxxx, Xxxxxx-xx, Xxxxx 000-0000, Xxxxx ("Toshiba"). The Amendment is
effective by the parties as of this 23rd day of February 1999 ("Execution
Date").
Whereas Wink and Toshiba concluded the Agreement and completed
development and payment in accordance with the Agreement.
Now Toshiba desires and Wink agrees to add more features to the
Demonstration Software in the Agreement, as provided in this Amendment.
Unless specifically amended in this Amendment, all terms of the
Agreement remain in force.
AMENDMENT
1. Added development items
Exhibit A (entitled "Development items for Demonstration Software") of
the Agreement shall be added with the items (hereafter "Added Development
Items") listed in Exhibit A' in this Amendment.
Wink shall develop these Added Development Items in accordance with the
mutually-agreed- upon specification and release to Toshiba in object code form
(hereafter "Release") by the end of March, 1999.
2. Payment
Toshiba shall pay to Wink US $150,000 for the Release of the Added
Development Items within 30 days after test and acceptance of the Release. All
provisions in "3. Payment" of the Agreement remain in force.
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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: By:
Name: Name:
Title: Title:
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EXHIBIT A
ADDED DEVELOPMENT ITEMS
The following features shall be added on the Demonstration Software for Wink
Engine version 2.0. In addition, all the features of Demonstration Software in
the Agreement shall be supported by the Demonstration Software for Wink Studio
version 2.0 in its simulator.
Added Japanese Font Styles
Translucent Hint
Blinking Cursor in Entryfield
Character Alignment Hint in Entryfield
Hint to Map Select Button on List/Entryfield Object
Vertical Auto-Scrolling Lists
TCP/IP Support for On-line Sessions
Second Level Kanji Characters in ROM
Smooth Scroll
Improvement of Resident Icons
Improvement of Resident Icons (Set 2)
Memory Available Capacity
Memo Application
Application in Cache Command
Multiple Application Request Command
Flash Memory Table Management
Check Applications Update Flag Command
Flash Memory Table Refresh Command
IT1.x On-line
App Support
with Cache
Feature IT 1.x
VBI APP
Support with
Cache Feature
Display Resolution
Vertical Auto-Scrolling Text Object
Simple Resonse Support
