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EXHIBIT 10.9
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the 9th day of December, 1997, by and between Wink
Communications, Inc., a California corporation ("Wink"), whose address is 0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and MTV Networks, a Delaware
corporation ("Programmer"), whose address is 0000 Xxxxxxxx, Xxx Xxxx, XX 00000.
1. GRANT OF LICENSE
1.1 Wink hereby grants to Programmer the non-exclusive license to use Wink
ITV Studio, Wink ITV Broadcast Server, and Wink provided Server Modules
version 1.0 and all updates (hereinafter collectively referred to as
"Wink Software") to deliver interactive program(s) which utilize the
vertical blanking interval ("VBI") or an MPEG private data stream
provided concurrently with the corresponding video signal and are
compliant with the Wink interactive communications application protocol-
("Interactive Programs") to all Programmer viewers in the continental
United States, Alaska, Hawaii, and the US territories (the "Territory").
1.2 This License is not transferable by either party, nor may any rights
hereunder be transferred, assigned or sub-licensed in whole or in part
without the other party's prior written consent.
1.3 Programmer can only use the Wink software to provide Interactive
Programs with the Programming Services defined in Exhibit A. Programmer
must notify Wink in writing at least 30 days prior to commencing
transmission of Interactive Programs with a Video Programming service.
Programmer agrees to use best efforts to adhere to the specifications
for the insertion of Interactive Programs provided in Exhibit A. Exhibit
A may be amended from time to time by mutual agreement.
2. TERM
2.1 The term of this Agreement shall commence on the date of execution of
this Agreement and terminate two (2) years thereafter.
2.2 Programmer has the unilateral right to extend the Agreement once for an
additional two years. Programmer agrees to provide Wink with notice of
Programmer's decision to renew or to let the Agreement expire at least
30 days prior to the expiration of the then current term.
2.3 Programmer can elect to notify Wink of it's intent to terminate the
later of December 31, 1998 or twelve (12) months from after the first
airing of Programmer's Interactive Programs ("the Option Date")
Programmer agrees that the option to terminate is only available until
30 days prior to the Option Date, and that Wink will receive at least 45
days notice before Programmer suspends the transmission of Interactive
Programs.
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3. INTEGRATION
3.1 Programmer will distribute the Interactive Programs with the national
feed for the Programming Services defined in Exhibit A, or in the
absence of a single national feed, through the feed with the largest
household reception area in the country and on any additional feeds that
reach at least 5% of Programmer's potential audience. Such distribution
will take place through Programmer's national uplink or broadcast
facilities, and is subject to Wink's deliver to Programmer of all
components necessary to ensure the transmission of Interactive Programs.
3.2 Programmer and Wink agree to collaborate to enable the installation and
integration of the Wink Software into Programmer's facilities, and to
use commercially reasonable efforts to ensure the reliable transmission
of the Interactive Programs. Programmer is responsible for providing all
equipment necessary to run the Wink Software and to enable insertion of
Interactive Programs into the appropriate video signals. Exhibit E
provides a preliminary list of such equipment, and is subject to a final
site visit by Wink's Operations department. Programmer will be presented
with a final list of equipment no later than 21 days following the
execution of this Agreement, subject to completion of the site visit. If
such final list exceeds 5% of the cost set forth in Exhibit E, Wink
agrees to pay for any overages in excess of such amount.
3.3 Programmer agrees to use reasonable efforts to commence transmission of
Interactive Programs on the Programming Services on or before February
15, 1998. Notwithstanding the above, Wink acknowledges that Programmer
projects a First Air Date of April 1, 1998. Wink understands and accepts
that the First Air Date is contingent upon a successful installation of
the Wink Software and associated hardware, upon completion of training
of Programmer staff, and upon completion of design and test of the
initial Interactive Programs for VH1 by the Producer provided by Wink.
The First Air Date is also subject to Programmer obtaining certain third
party rights on reasonable terms as described in 3.8 below.
3.4 Wink agrees to provide weekly reporting to Programmer of all response
traffic generated by Programmer viewers and collected by Wink's Data
Center. Programmer accepts Wink's terms for all other response traffic
and reporting, as outlined in Exhibit B.
3.5 Beginning two weeks after the First Air Date for each Programming
Service, Programmer agrees to air Interactive Programs for an average of
[ * ] measured as an average over each calendar month. In addition,
Programmer agrees to air Interactive Programs an additional [ * ] on the
"VH1" Programming Service and an additional [ * ] for on the
"Nickelodeon/Nick-at-Nite" Programming Service within 90 days of the
First Air Date.
3.6 [ * ]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portion shave been filed
with the Commission.
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3.7 Wink agrees to provide any technical staff resources necessary to (a)
integrate the Wink Software with Programmers LMS master control system
for purposes of automatic triggering of the timely delivery of
Interactive Programs, based on Programmer's, Video Programming, and (b)
support the development of Programmer's initial applications for both
networks.
3.8 Wink acknowledges that the Video Programming may be broadcast under
license from third parties, and that such third party licenses or the
business relationship with such third parties may, in Programmer's
reasonable judgment, either contractually prevent Programmer from
providing Interactive Programs with respect to particular video
programs, or cause Programmer to incur any additional rights costs, were
Programmer to air Interactive Programs. Programmer agrees to use its
reasonable commercial efforts to obtain rights to provide Interactive
Programs in connection with the Video Programming at no cost such that
the programming commitment defined in 3.4 above can be met. If, despite
such efforts, Programmer's programming services, in Programmers sole and
reasonable judgment, (i) are contractually prevented from providing
Interactive Programs with a majority of the Video Programming, or (ii)
will incur any additional rights costs caused by the airing of the
Interactive Programs, or (iii) would endanger existing important
business relationships with third parties who license programming to
Programmer, Programmer may notify Wink in writing to this effect, and
cease complying with section 3.4 30 days from the date of such written
communication on a programming service by programming service basis. The
parties further agree that the option described in this paragraph is
available through the Option Date. Programmer understands that if it
ceases to comply with 3.4 on the "VH1" programming service, Wink may
withdraw the services of the resident Wink staffer at that time.
Notwithstanding section 3.8 above, Programmer agrees that it is responsible for
payments to third party providers of Video Programming, music, news, images and
other entities that hold rights which Programmer deems necessary to obtain to
enable the airing of Interactive Programs. This shall not be deemed to include
the Wink Software or other elements of the Wink system necessary to enable
transmission of Interactive Programs.
4. RATES AND DEPLOYMENT
4.1 Programmer agrees to provide Interactive Programs for the programming
services described in Exhibit A, and subject to the programming
commitment defined in 3.4 above.
4.2 Programmer agrees to remit the license fees and other payments as
described in Exhibit C on a timely basis.
4.3 Programmer agrees to provide the Interactive Programs to any multi
channel video operator in the Territory with whom Programmer already has
an agreement for carriage of the MTV Networks services set forth herein
("System Operators") under the terms described in Exhibit D, and agrees
that Wink may provide a copy of Exhibits A and D to any System Operator
as evidence of Programmer's agreement to supply the Interactive Programs
under such terms. Wink shall require System Operators to comply with the
confidentiality provisions of section 12 below.
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4.4 Programmer may choose to utilize other products and services of Wink (as
set forth in Exhibits B or C) from time to time under this Agreement.
These services will be extended by Wink to Programmer at the rates set
forth therein; however, such prices shall at all times be extended on a
most favored nations basis with regard to all other cable programmers
utilizing such Wink services.
4.5 Wink agrees to extend certain license fee and installation terms
described in Exhibit C to other programming services Owned and operated
by Programmer or Programmer's parent company, Viacom. Such programming
services must agree to the same minimum [*] programming
commitment described in section 3.4. Wink is not obligated to provide
[*] production or technical resources, or the termination provisions in
sections 2.3 and 3.7 to such programming services
5. PAYMENT TERMS
5.1 On or before the thirtieth (30th) day following each month throughout
the term of this Agreement, Programmer shall remit to Wink all fees owed
for licenses provided and services rendered in the previous month,
according to the price schedules provided in Exhibit C.
5.2 Wink's failure, for any reason, to send an invoice for a particular
monthly payment shall not relieve Programmer of its obligation to make
any payment in a timely manner consistent with the terms of this
Agreement.
6. PROMOTION AND RESEARCH
6.1 The parties agree to issue a mutually-approved press release announcing
this agreement on or before December 9, 1997. Wink will provide
Programmer with a draft of this release by December 3, 1997.
6.2 Wink agrees to provide Programmer with notice within 30 days of new
System Operators having enabled their subscribers to receive
Programmer's Interactive Programs.
6.3 Wink agrees to actively promote and feature Programmer's Interactive
Programs in Wink's marketing literature, during meetings with cable
operators and the press, and during industry trade shows in a manner
that is at least as favorable as the position granted other cable
programmers, subject to Programmer's trademark guidelines and approval
process attached hereto as Exhibit F. Wink's commitment to promote on
such most favored nations basis does not prevent Wink from creating
marketing materials, events or exhibits that highlight particular
programming categories or partnerships. Wink will also use reasonable
efforts to assist Programmer in achieving its marketing objectives in
materials prepared by third parties, such as cable equipment
manufacturers and cable operators. Programmer agrees to promote its
participation as a charter Wink programmer to cable operators, and to
serve as a press reference for Wink during the effective term of the
agreement.
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6.4 Programmer agrees to use reasonable business efforts to cooperate with
Wink and System Operators in promoting Programmer's Interactive
Programs. Wink and System Operators may prepare marketing materials
relating to the Interactive Programs and may use Programmer's name, logo
and screen shots (collectively, "Programmer's Marks") from the
Interactive Programs, provided that such materials are submitted to
Programmer for review and approval prior to distribution subject to
Programmer's trademark guidelines and approval process attached hereto
as Exhibit F. Wink hereby acknowledges and agrees that, as between Wink
and Programmer, Programmer is the sole owner of all right, title and
interest in and to the Programmer's Marks, All uses of the Programmer's
Marks shall inure to the benefit of Programmer. Upon any expiration or
termination of this Agreement, Wink shall delete and discontinue all use
of the Programmer's Marks. At no time during or after the term of this
Agreement shall Wink challenge or assist others to challenge the
Programmer's Marks or the registration thereof or attempt to assist
another in the attempt to register any trademarks, marks or similar
rights for marks the same as or confusingly similar to the Programmer's
Marks.
6.5 Wink may, from time to time, undertake marketing tests and surveys,
rating polls and other research in collaboration with Programmer.
Programmer shall provide Wink with reasonable assistance at no cost to
Programmer in conducting such research with respect to Programmer's
viewers. Programmer agrees that Wink will have access to all such
research regarding the deployment, launch, and usage of Wink service by
Programmer viewers. Wink agrees to provide copies of final reports from
such research activity to Programmer. Wink may only use such data or
share it with third parties with Programmer's prior written approval.
6.6 Programmer understands and accepts that Wink will be providing reports
on viewer usage and responses to the Interactive Programs to System
Operator(s) for responses that originate from System Operator's
subscribers, and to advertisers and other parties for responses that
originate from Interactive Programs paid for or sponsored by such
parties. Wink agrees that reports providing specific data regarding
viewer responses to Programmer's Interactive Programs, including data on
Wink viewer responses to advertising on Programmer's Programming
Services, will not be made available to news and industry organizations,
or other broadcast and cable networks, except in aggregated form that
does not explicitly or implicitly identify Programmer or specific
Programmer viewer data. Wink further agrees that Wink's provision of any
data that identify individual viewers shall be limited to advertisers
and other entities having contracted with Wink for the provision of such
data to enable fulfillment of transactions or other individual viewer
requests made via the Interactive Programs and that such disclosure
shall be subject to applicable consumer privacy laws.
6.7 Programmer agrees that Wink may demonstrate Programmer's Interactive
Programs in customer meetings, at industry trade shows, and in other
meetings or venues deemed important by Wink.
7. WARRANTIES AND REPRESENTATIONS
7.1 Wink hereby represents and warrants that:
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(i) the Wink Software (and subsequent revisions and upgrades to same
provided by Wink to Programmer) will operate and perform in
accordance with all published specifications with respect thereto
as set forth in Wink's then current ICAP specification and other
related documents. Programmer can obtain a copy upon written
request.
(ii) the terms contained herein for licensing of Wink software,
provision of Wink services and Programmer's commitment for
Interactive Programs are, as a whole, as favorable as any other
similar agreement Wink has entered into or will enter into with
other North American cable programming entities.
(iii) it has all necessary rights and authority to execute and deliver
this Agreement and perform its obligations hereunder;
(iv) the Wink Software shall be free from defects and shall be
error-free;
(v) it shall dedicate sufficient resources to fulfill its obligations
hereunder;
(vi) the Wink Software (or any equipment, technologies, processes or
components used in the Wink Software) does not and will not
infringe any intellectual property rights of any third party;
(vii) it will comply with all applicable laws, rules, regulations or
court or administrative decrees to which it is subject;
(viii) it is a corporation duly organized and validly existing under the
laws of the State of California;
(ix) Wink is under no contractual or other legal obligation which in
any way interferes with it's ability to fully, promptly and
completely perform hereunder.
7.2 Programmer represents and warrants to Wink that (i) Programmer is a
corporation duly organized and validly existing under the laws of the
State of Delaware; (ii) to the best of Programmer's knowledge Programmer
has the requisite power and authority to enter in this Agreement and to
fully perform its obligations hereunder; and (iii) to the best of
Programmer's knowledge Programmer is under no contractual or other legal
obligation which in any way interferes with its ability to fully,
promptly and completely perform hereunder.
8. INDEMNIFICATION
Wink shall indemnify, defend and hold harmless Programmer, its parents,
subsidiaries, and affiliates and their respective. officers, directors,
employees and agents from and against any and all damages, liabilities,
costs and expenses (including, without limitation, reasonable attorneys
fees and amounts paid in settlement) they may suffer or incur which
arises out of or as a result of any, claim, demand, action, suit or
proceeding in which it is alleged that the Wink Software
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or any part thereof violates or infringes any patent or copyright or
other intellectual property right of any third party or constitutes a
misappropriation of any third party's trade secrets or as a result of
any material breach of Wink's warranties, representations or
undertakings hereunder.
9. NOTICES
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 deliver, addressed, to the addresses provided in the first
paragraph of this Agreement, and to the attention of:
If to Wink:
Vice President, Content
If to Programmer:
Senior Vice President
MTV Networks Online and Interactive Services
The date of such facsimile transmission, telegraphing or personnel
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.
10. TRADEMARKS
10.1 All rights, title and interest in and to the Wink Software or other
rights, of whatever nature, related thereto shall remain the property of
Wink. Further, Programmer acknowledges and agrees that all names, logos,
marks, copyright notices or designations utilized by Wink in connection
with the service are the sole and exclusive property of Wink, and no
rights or ownership are intended to be or shall be transferred to
Programmer.
10.2 All rights, title and interest in and to the Programmer's Marks or other
rights, of whatever nature, related thereto shall remain the property of
Programmer. Further, Wink acknowledges and agrees that all names, logos,
marks, copyright notices or designations utilized by Programmer in
connection with the service are the sole and exclusive property of
Programmer, and no rights or ownership are intended to be or shall be
transferred to Wink.
11. CONFIDENTIALITY
Each party agrees that it will not use, except in the performance of its
obligations under this Agreement, and will not disclose or give to
others, any of the other party's Confidential Information (as defined
below). Without limiting the generality of the foregoing, each party
will (i) restrict the disclosure of the other party's Confidential
Information to those of its employees who require such information for
purposes of performing its obligations hereunder, (ii) inform each such
employee of the confidential nature of the information disclosed, (iii)
prevent the use
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or disclosure by its employees of such Confidential Information, except
as provided herein, and (iv) promptly notify the other party of any use
or disclosure of the Confidential Information, whether intentional or
not, which violates the provisions of this Paragraph 11. For purposes of
this Agreement, the term " Confidential Information" means all
technical, business and other information disclosed by one party to the
other that derives economic value, actual or potential, from not being
generally known to other persons, including, without limitation,
technical and non-technical data, devices, methods, techniques,
drawings, processes, computer programs, algorithms, methods of
operation, financial data, financial plans, product plans, lists of
actual or potential customers or suppliers, and Wink usage reports and
viewer responses to Programmer's Interactive Programs (with the
exception that Wink may provide such reports and individual viewer
responses to the parties specifically permitted in paragraph 6.6 above)
Confidential Information does not include information which does not
constitute a trade secret under applicable law after the second
anniversary date of the expiration of this Agreement. The parties agree
to keep the terms of this Agreement confidential, but acknowledge that
certain disclosures may be required by law. Programmer understands and
acknowledges that Wink may provide copies of Exhibits A and D to System
Operators.
12. TERMINATION
12.1 Except as otherwise provided herein, neither Programmer nor Wink may
terminate this Agreement except upon sixty (60) days prior written
notice and then only if the other has made a misrepresentation herein or
breaches any of its material obligations hereunder and such
misrepresentation or breach (which shall be specified in such notice) is
not or cannot be cured within sixty (60) days of such notice.
12.2 Notwithstanding the above, Wink will have the right to terminate this
Agreement or all or any licenses granted herein if Programmer fails to
comply with any of its material obligations, including but not limited
to timely payment of license fees and other fees due Wink, under this
Agreement. Should Wink elect to exercise this right to terminate for
nonperformance, it must be done in writing specifically setting forth
those items of nonperformance. Programmer will then have thirty (30)
days from receipt of notification to remedy the items of nonperformance.
Should Programmer fail to correct these items of nonperformance, then
Wink may terminate this agreement and any license granted herein. Wink's
termination of this Agreement shall be without prejudice to any other
remedies Wink may have, including, Without limitation, all remedies with
respect to the unperformed balance of this Agreement; provided, however,
that if Programmer has not made payment of the fees or charges due
hereunder and such nonpayment continues after thirty (30) days prior
written notice by Wink, then Wink may terminate this Agreement or any
license granted herein.
12.3 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 Programmer to use the
Wink Software will Cease and Programmer will immediately (i) grant to
Wink access to its business premises and the Wink Software and allow
Wink to remove the Wink Software (which removal shall be done with as
little disturbance as possible to
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Programmer's business operations), or Programmer shall return the Wink
Software to Wink, at Programmer's discretion , (ii) purge all copies of
all Wink Software from all computer processors or storage media on which
Programmer has installed or permitted others to install such Wink
Software, and (iii) when requested by Wink, certify to Wink in writing,
signed by an officer of Programmer, that all copies of the Wink Software
have been returned to Wink or destroyed and that no copy of any Product
remains in Programmer's possession or under its control.
12.4 Programmer has the right to suspend the airing of Interactive Programs
if the transmission interferes with the airing of Programmer's Video
Programming or Wink fails to provide weekly reports regarding usage of
Programmer's Interactive Programs, and may continue such suspension
until Wink has resolved such problems to Programmer's satisfaction.
13. INDEPENDENT CONTRACTOR
The Parties hereto are independent contractors and nothing herein
contained shall be construed to constitute a partnership or joint
venture between them. Neither Wink or Programmer shall become bound by
any representation, act or omission of the other.
14. PROMOTIONAL MATERIALS/PRESS RELEASES
Each Party will submit to the other Party, for its prior written
approval, any marketing, advertising, press releases, and all other
promotional materials which reference the other Party and/or its trade
names, trademarks and service marks. Each Party shall solicit and
reasonably consider the views of the other Party in designing and
implementing such materials. Once written approval is obtained, the
materials may be reused in the same manner until such approval is
withdrawn in writing.
15. SURVIVAL
Sections 8, 10, 11 and 14 shall survive the completion, expiration,
termination or cancellation of this Agreement
16. 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 without prior written mutual consent
of Programmer and Wink.
b) This Agreement may be amended only by an instrument in writing, executed
by Programmer and Wink.
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c) This Agreement will be governed in all respects by the laws of the State
of New York.
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 Programmer and Wink.
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IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. MTV NETWORKS
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxxx X. Xxxxx
---------------------------- --------------------------
Title: President & CEO Title: SVP
---------------------------- -------------------------
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EXHIBIT A; PROGRAMMING SERVICES
Description of Programming Services:
NAME Start of Wink Video ICAP Virtual Insertion
Program. (A/D) Loc. Ch? Point
VH1 April 1, 1998 (*)Analog TBD No New York
Nick/nick-at-nite April 1, 1998 (*)Analog TBD No New York
(*) Programmer agrees to exert reasonable efforts to commence the transmission
of Interactive Programs by February 15, 1998.
"Video Programming": Any video programming airing on the above Programming
Services, and chosen by Programmer for use with Interactive Programs.
Contact Information:
ISSUE ADDRESS CONTACT(S) PHONE /FAX/E-MAIL
Example:
Content refresh 000 Xxxx Xxxxxx Xxxxxxx Xxxxx 212-123-4567
Xxx Xxxx, XX 00000 Director, Enhanced 000-000-0000
Broadcasting Xxxxx@xxxxxxx.xxx
Actual Contact Info:
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EXHIBIT B; WINK RESPONSE CENTER SERVICES
Polls by Zip Code-Report Only [ * ]
1-100,00 transactions/mo. [ * ]
100,000 transactions/mo. [ * ]
Polls by System-Report Only
1-250,00 transactions/mo. [ * ]
251,000 transactions/mo. [ * ]
1. Minimum monthly charges per application include UIC (Universal ICAP
code) registration.
2. All volume price breaks are based on total monthly transaction volume by
advertiser registering for the Wink Response Network service. The price
breaks are based on the "average" for the month. That is, the lowest
price applies to all transactions for the month.
PURCHASE AND REQUEST TRANSACTION FEES INCLUDE/EXCLUDE:
1. Daily name & address lists delivered by fax, email, or electronic FTP or
mailbox.
2. UIC and application registration.
3. Standard report showing number of responses per day per ad per city.
4. Viewer credit card information if it is "on file" with the WRS. If not,
for the extra [ * ], Wink will mail a "purchase confirmation" to the
viewer to add the credit card, and provide a list of viewers who did not
supply their credit card.
5. Interface to standard EDI VAN for [ * ].
FULFILLMENT EDI/API
- Standard interface set-up fee [ * ]
- Non-standard Interface [ * ]
- Interface License/Maintenance fee [ * ]
SET UP FEES-RESPONSE SERVICES
- Advertiser [ * ]
- Content Provider [ * ]
REPORT GENERATION FEES [ * ]
RESPONSE DATA CENTER PRODUCTS
- Purchase confirmation mailer [ * ]
- List of responders who do not respond to
purchase confirmation mailers [ * ]
- Branded envelope [ * ]
- Advertiser/Programmer Purchase Points Club [ * ]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. Omitted portion shave been filed
with the Commission.
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EXHIBIT C; WINK SOFTWARE AND SERVICES PRICING
All on-going fees are due the first of the month. The installation and
integration fees are due upon Programmer's acceptance of the installation of the
Broadcast Server, and transmission and receipt by Wink testers of one nationally
inserted test application defined by Wink ("First Air Date"). Technical
acceptance shall not be unreasonably withheld. License fees commence on the
first of the 13th month following the First Air Date.
On-going
Or One- First Year First Year Yr. 2 & 3 Total 3-yr
Time Price (Per Price Price (Per Charter
Costs Month) (Total) Month) Price
Broadcast Server On-going [ * ][ * ] [ * ][ * ]
Server Modules On-going [ * ][ * ] [ * ][ * ]
Tech Support On-going [ * ][ * ] [ * ][ * ]
Subtotal On-going [ * ][ * ] [ * ][ * ]
Server hardware (1) One-time [ * ][ * ] [ * ][ * ]
2 Data insertion units One-time [ * ][ * ] [ * ][ * ]
Installation and integration (2) One-time [ * ][ * ] [ * ][ * ]
Studio and Server Studio seat One-time [ * ][ * ] [ * ][ * ]
license (3)
Studio/Server training (3x2days) One-time [ * ][ * ] [ * ][ * ]
SUBTOTAL ONE-TIME [ * ][ * ] [ * ][ * ]
TOTAL BOTH [ * ][ * ] [ * ][ * ]
(1) includes server, monitor, cables, connectors, modem for remote dial in
(2) The above pricing for Installation and Integration covers all work
necessary to enable scheduling and transmission of program enhancements
based on Wink Studio templates. It does not cover detailed integration
with Programmer's ad insertion system for the purpose of enabling
enhancements to spot advertising.
(3) 5-seat licenses for both
OPTIONAL SOFTWARE AND SERVICES
BROADCAST SERVER, SERVER MODULE, TECH SUPPORT FOR OTHER PROGRAMMING SERVICES
(NOTE A):
MTV and TV Land - same pricing as VH1 and
Nick/Nick-at-Nite
Other MTVN programming services - same, except first year fees = [ * ]
Comedy Central, Viacom program services - same, except first year fees = [ * ]
HARDWARE AND INSTALLATION FEES FOR OTHER PROGRAMMING SERVICES (NOTE A):
MTV and TV Land - [ * ]
Other MTVN programming services - same as MTV and TV Land
Comedy Central, Viacom program services - same as VH1 and Nick/Nick-at-Nite
Note A: if launched within 12 months of First Air Date, US program services only
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Custom interface work (ad insertion and traffic systems, etc.) [ * ]
Phone training and consulting beyond standard package [ * ]
Application development [ * ]
Travel expenses are billed separately at cost
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EXHIBIT D; PROGRAMMER'S TERMS FOR CARRIAGE OF INTERACTIVE PROGRAMS
Programmer: MTV Networks
Programming Services: VH1 and Nickelodeon/Nick-at-Nite
This Agreement sets forth the terms and conditions for the national distribution
of Wink ITV Applications ("Interactive Programs" ) to any multi channel video
operator in the United States or Canada with whom Programmer already has an
agreement for carriage of the MTV Networks services set forth herein("System
Operator).
1. BACKGROUND
Programmer has created one or more Interactive Programs which are compliant with
the Wink Communications, Inc. ("Wink") interactive communications application
protocol. The Interactive Programs are transmitted by Programmer using either
the vertical blanking interval ("VBI") of the corresponding video signal, or
using MPEG private data streams provided concurrently with the corresponding
video signal(s).
System Operator distributes one or more of Programmer's signals through one or
more of the following: cable, satellite and MMDS (wireless cable).
2. EFFECTIVE DATE AND TERM
The term of this Agreement shall commence on the date of Programmer's execution
of this Agreement and terminate three (3) years thereafter, unless Programmer
and Wink terminate their Charter Programmer Affiliation Agreement in accordance
with the terms of that agreement.
This Agreement will automatically renew for one year periods unless either party
notifies the other at least 90 days prior to the end of the then current term of
that party's intent not to renew.
3. INTEGRITY OF INTERACTIVE PROGRAMS
Programmer will ensure that the Interactive Programs meet Wink's criteria for
Wink compliant applications (See Attachment 1). Programmer agrees that each
Interactive Program shall have been either successfully tested by Programmer or
certified as compliant by Wink prior to the Delivery to System Operator for
distribution.
Programmer understands that failure to meet the above criteria could result in
System Operator suspending the distribution of one or more Interactive Programs
until such time as all Interactive Programs are certified by Wink to be in
compliance.
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4. DISTRIBUTION
Programmer hereby grants System Operator a non-exclusive license to distribute
the Interactive Programs delivered in the VBI or MPEG of Programmer's video
signal. Programmer agrees that each Interactive Program shall have been either
successfully tested by Programmer or certified as compliant by Wink prior to the
Delivery to System Operator for distribution, and shall bear any associated
costs of such testing.
Programmer agrees not to charge System Operator fees associated with Interactive
Programs for the term of this Agreement. Likewise, System Operator agrees that
no fees or charges will be due from carriage or retransmission of the
Interactive Programs as provided for hereunder.
Programmer will provide System Operator written notice at least 30 days prior to
discontinuing national transmission of all Interactive Programs.
It is a condition of System Operator's right to carry the Interactive Programs
that System Operator shall distribute Programmer's Interactive Programs without
modification, and that System Operator may not modify or enhance any VBI lines
described in Exhibit A. Programmer agrees that System Operator may copy the
Interactive Programs for simultaneous transmission in different encoding formats
other than what Programmer currently uses including but not limited to, other
VBI formats, out of band channels, and MPEG2 private data streams; provided such
Interactive Programs are presented together with the original corresponding
video to System Operator's subscribers, and that such copying is done to enable
System Operator's subscribers to properly receive and display the Interactive
Programs on their set top box or television set.
System Operator can, if permitted in Exhibit A, locally insert Interactive
Programs as instructed by Programmer. System Operator is solely responsible for
any costs associated with such local insertion. Programmer will notify System
Operator of changes to any such permissions through amendments to Exhibit A
provided at least 30 days prior to the effective date of such requirements.
System Operator may suspend transmission of the Interactive Program during the
insertion by System Operator of local advertising avails as authorized in any
separate agreements between Programmer and System Operator.
5. RESPONSE NETWORK
Programmer agrees to utilize the Wink Response Network for two-way Interactive
Programs. Programmer also agrees to use Wink Communication's standard scripts
and guidelines for response applications.
6. MARKETING MATERIALS
System Operator may prepare marketing materials relating to the Interactive
Programs and may use Programmer's name, logo, and screen shots from the
Interactive Programs in such marketing materials, provided that such materials
are submitted to Programmer for review and approval prior to distribution.
Programmer's approval of such marketing materials shall not be unreasonably
withheld or delayed.
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7. SCOPE
This Agreement does not interfere with or negate other Agreements between
Programmer and System Operator. This Agreement represents all of the terms and
conditions for Programmer providing Interactive Programs. This Agreement may be
updated from time to time only by express written consent of Programmer.
PROGRAMMER
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
Date: 12/12/97
---------------------------------
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EXHIBIT D, ATTACHMENT 1: CRITERIA FOR WINK COMPLIANT APPLICATION
- All applications must be registered and contain a unique universal ICAP
code (UIC) prior to being broadcast.
- Registered applications have passed a standard set of tests which
validate:
- that the application can be delivered through the VBI or MPEG
private data stream, will arrive as appropriate, and can be
decoded in the Wink engine.
- that the application does not generate error messages.
- that the application receives scheduled updates, if applicable.
- that the application passes minimum acceptable latency standards.
- that the application does not cause System Operator technical or
operational problems.
- that the application, if two-way, generates the appropriate
routing address and usage data.
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EXHIBIT E; PRELIMINARY EQUIPMENT LIST
Wink Broadcast Server and Server Modules
- Sun Ultra, with 64MB RAM, 1 GB+ hard disk, Solaris 2.4 or 2.5, CD-ROM,
Ethernet connection to Programmer's LAN, dial-up modem, tape or other
backup mechanism
- 0 Xxxxxx XXX-0 VBI data inserters with VBI software modules
- LAN/serial connections to master control system, ftp site (for data),
other hardware as necessary
Wink Studio, Server Studio and Broadcast Server remote GUI
- Pentium Windows PC with 16MB+ RAM, 1 GB+ hard disk, 1024x768x256 color
graphics, 17"+ monitor, Ethernet connection to enable electronic
delivery of applications to the WBS, Internet access to enable
electronic access to Wink's Data Center
Test equipment
- GI CFT-2200 set top box, marketing firmware
- High grade video source (Beta SP or better)
- Coax Modulator
Optional (TBD)
- Annex Terminal Server for additional serial ports
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EXHIBIT F
TRADEMARK GUIDELINES
Pursuant to the Agreement, Programmer has granted to Wink the non-exclusive
right to use the Programmer name, trademark and logo as provided by Programmer
(the "Xxxx") solely in connection with this Agreement. Wink will not use the
Xxxx in any other manner other than as authorized herein.
1. All proprietary rights, title, interest and control of the Xxxx,
including any goodwill or other value generated in connection with the
use of the Xxxx, in the Territory, shall at all times rest with
Programmer, but Programmer does not thereby acquire any interest in
Wink's business or revenues derived from that business. At no time shall
Wink attempt to register the Xxxx or other materials identical,
substantially similar to, or likely to cause confusion with Programmer's
Xxxx. Wink shall comply with all reasonable requirements of Programmer
for legal, creative or artistic reasons in connection with the use of
the Xxxx in order to enable Programmer to protect and ensure consistency
in the use of the Xxxx. Wink shall at all times use its reasonable
endeavors to monitor any other unauthorized uses or misuses
("infringements") of the Xxxx, and shall promptly notify Programmer of
any such infringements it discovers. Wink agrees to use reasonable
efforts and cooperate with Programmer, upon Programmer's request and at
Programmer's expense, in terminating infringing or unauthorized or
wrongful uses of the Xxxx and undertakes to furnish any documentary
evidence or evidentiary materials which Programmer may reasonably
require for the purpose of terminating such uses. In addition, Wink
undertakes to use its reasonable efforts to assist and cooperate with
Programmer, at Programmer's expense, in the prosecution of any lawsuits,
legal actions or other proceedings which, in the opinion of Programmer,
are necessary or advisable to protect the Xxxx. The expense of such
proceedings shall be borne by Programmer. The right to protect the Xxxx,
as well as the right to determine in all respects the manner of
protection, shall at all times rest exclusively with Programmer.
As between Programmer and Wink, all proprietary right, title and
interest, including, but not limited to copyright in the Xxxx shall rest
exclusively with Programmer.
2. Wink acknowledges that Programmer is the owner of the Xxxx and of all
ideas, concepts, trademark and copyrights in copyrightable subject
matter comprised in the Xxxx. It is understood and agreed that Wink
shall not acquire and shall not claim any title to the Xxxx by virtue of
the license granted to Wink or through Wink's use of the Xxxx, the
parties agreeing that all use of the Xxxx by Wink shall inure for the
benefit of the Programmer. Wink will reasonably undertake to execute any
instruments, acknowledgments, assignments or similar documents
Programmer reasonably deems necessary or advisable to confirm or
effectuate Programmers ownership of said subject matter. Wink further
acknowledges the validity of the Xxxx and of Programmer's other
trademarks or materials, and agrees not to institute or participate in
any proceedings which challenge the validity of such Xxxx and/or other
trademark or materials, or of Programmers ownership thereof.
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3. Wink will not use the Xxxx to disparage Programmer, its products or
services, or promotional goods or for products which, in Programmers
reasonable judgment, may diminish or otherwise damage Programmers
goodwill in the Xxxx, including but not limited to uses which, could be
deemed to be obscene, pornographic, excessively violent, or otherwise in
poor taste or unlawful, or which purpose is to encourage unlawful
activities. Wink will not imitate the Xxxx in any of Wink materials,
including advertising, product packaging, and promotional materials and
press materials.
4. Wink shall obtain written consent for any advertising, promotions and
press releases using Programmer's Xxxx. Programmer shall use all
reasonable efforts to provide approval/comments on any submitted
advertising and promotions within three (3) business days or in less
time as the circumstances reasonably warrant.
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