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EXHIBIT 10.24
DEVELOPMENT AND LICENSE AGREEMENT
THIS DEVELOPMENT AND LICENSE AGREEMENT (known hereafter as "the Agreement") is
by and between WINK COMMUNICATIONS, INC., a California corporation ("WINK"),
whose address is 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and TAK
INTERACTIVE S.A., a French corporation (known hereafter as "TAK"), whose address
is 46 quai Xxxxxxxx Xx Xxxxx, 921-00 Boulogne-Billancourt, France.
BACKGROUND
A. WINK has designed and developed an interactive television system of
technology and related products, services, processes and materials which
includes a proprietary software protocol for delivering interactive applications
synchronized with or independent of television programs and advertisements.
B. TAK is involved in developing and operating services in the field of
television interactivity and desires to exploit WINK's television interactivity
technology within the European market, beginning in France and expanding into
other designated European territories.
C. TAK's strategic business objective is to develop and exploit an
interactive television system within Continental Europe and establish business
and technical relationships with key partners in the domains of direct
marketing, TV channels, system operators and media planners with a view to
aggressively build a revenue stream derived from the delivery of such
interactivity technology solutions and services. The countries comprising the
territory of Continental Europe are detailed in Exhibit D.
D. TAK and WINK desire to work together to adapt and integrate the WINK
television interactivity technology into a comprehensive interactive television
system within Europe.
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 "Deliverables" shall mean each Licensed Product deliverable and related
documentation identified in Exhibit A hereto, to be provided to TAK at the time
of completion.
1.2 "Derivative Technology" shall mean the technology based upon the Licensed
Products developed or created by WINK during the course of its performance of
the product development, maintenance and support services for TAK, including:
(i) for copyrightable or copyrighted material, any translation (including
translation into other computer languages), porting, modification,
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correction, addition, extension, upgrade, improvement, compilation, abridgement
or other form in which an existing work may be recast, transformed or adapted;
(ii) for patentable or patented material, any improvement thereon; and (iii) for
material which is protected by trade secret, any new material derived from such
existing trade secret material, including new material which may be protected by
copyright, patent and/or trade secret.
1.3 "Development Schedule" shall mean the schedule for completion of the WINK
software product development activities set forth in Exhibit A hereto.
1.3A "Effective Date" shall mean the latest date at which both the Agreement is
signed and Exhibits A through D are initialed by both TAK and WINK (and that the
same shall form an essential basis of the parties' bargain), provided that if
such Exhibits are not completely initialed by April 17, 1998, time being of the
essence, either party shall have the option, in its discretion, to notify the
other party that the Agreement is null and void and shall not become effective.
1.4 "Enabled Device" shall mean a television, videocassette recorder or set top
box that includes a circuit module containing the WINK Engine.
1.5 "Enhanced Broadcasting" shall mean interactive applications integrated with
video originated by a broadcaster, content provider, advertiser or cable
programming network using a Licensed Product.
1.6 "Intellectual Property Rights" shall mean all current and future worldwide
patents and other patent rights, copyrights, mask work rights, trade secrets,
and all other intellectual property rights, including without limitation all
applications and registrations with respect thereto.
1.7 "Interactive Television System" shall mean the software, hardware, tools,
and devices allowing TAK to operate and deliver interactive television services
to customers, and which may include WINK's Licensed Products.
1.8 "Interactive Communicating Application Protocol" or "ICAP" shall mean the
highly compact, platform-independent protocol for delivering applications over
any transport mechanism which WINK has created as a proprietary standard for
cross-platform applications which can be embedded in analog or digital
broadcasts.
1.9 "Licensed Products" shall mean the (i) WINK Engine 1.5, WINK Studio 2.0,
WINK Server Module Studio 1. 1, WINK Broadcast Server 2.0, WINK Ad Insertion
Server Module 1.0, WINK Response Server 1.0, WINK Online Server 1.0, (ii) all
Updates, Version Releases and Product Releases on all WINK software products
listed above, and (iii) any Derivative Technology.
1.10 "Maintenance" shall mean WINK's delivery to TAK of Updates, Version
Releases, and Product Releases.
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1.11 "Milestones" shall mean the development project milestones, completion
dates and related payments specified on Exhibits A and B.
1.12 "Net Revenues" shall mean gross revenues collected, directly or indirectly,
by TAK, for all TAK products and services, less the revenue sharing amounts paid
to broadcasters and content providers. Revenue sharing is defined as a
percentage of the fee collected by TAK from consumers for interactive
transactions and services.
1.13 "Product Release" shall mean a major release of a Licensed Product which
contains significant new features or functionality and/or major enhancements and
is designated by a change in the digit or digits to the left of the decimal
point in the version number.
1.14 "Revenue Sharing Arrangement" shall mean a written agreement between TAK
and a television broadcasting company, advertisers or a content provider which
obligates TAK to make revenue sharing payments to such broadcasters, advertisers
or content providers on use fees collected by TAK, directly or indirectly, from
consumers for interactive transactions and services.
1.15 "Specifications" shall mean the technical and other functional
specifications for the Deliverables to be developed by the parties as described
in Exhibit A.
1.16 "Submanufacturers" shall mean third party entities authorized by TAK to
duplicate and integrate the WINK Engine into Enabled Devices.
1.17 "Support" shall mean remote, "secondary line" technical support from WINK
to TAK via phone, fax or e-mail twenty four (24) hours a day, seven (7) days a
week. "Secondary line" technical support refers to the fact that WINK shall
field calls directly from TAK, and not from TAK's customers.
1.18 "TAK Hardware Reference Design" shall mean TAK's custom microchip-based
hardware reference design which are designed to be integrated into Enabled
Devices for the purpose of implementing TAK's service offering. The first
version of the TAK Hardware Reference Design is described in the Specifications.
1.19 "Updates" shall mean updates containing error corrections or minor
enhancements to the Licensed Products created by or for WINK and designated by a
change in version number to the right of the decimal point. Updates do not
include major enhancements to the Licensed Products designated by changes in the
version number to the left of the decimal point.
1.20 "Version Release" shall mean a release of a new version of the Licensed
Products which contains error corrections or minor new features or functionality
(but not a Product Release) and is designated by a change in the digit or digits
to the right of the decimal point in the version number.
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1.21 "WINK Ad Insertion Server Module" shall mean the object code version of
WINK's proprietary software product which enables the insertion of
advertisements or applications into video.
1.22 "WINK Broadcast Server" shall mean the object code version of WINK's
proprietary software product which schedules the addition of interactive
broadcast enhancements through vertical blanking interval lines to specific
television shows or commercials.
1.23 "WINK Engine" shall mean the (i) object code format version of WINK Engine
1.5 which decodes ICAP applications and displays the ICAP applications on a
device, and (ii) any Updates, Version Releases and Product Releases of the WINK
Engine, and (iii) other WINK-owned files that are provided with or for the WINK
Engine, and (iv) any Derivative Technology performed by WINK to customize and
adapt the WINK Engine for the TAK Hardware Reference Design and/or other
designs.
1.24 "WINK Online Server" shall mean the object code version of WINK's
proprietary software product that enables real-time two-way connections via
modem.
1.25 "WINK Response Server" shall mean the object code version of WINK's
proprietary software product that provides a mechanism to collect user responses
in a non-real time network.
1.26 "WINK Server Module Studio shall mean the object code version of WINK's
proprietary software product that authors server modules in ICAP applications
utilizing a user interface.
1.27 "WINK Studio" shall mean the object code version of WINK's proprietary
software design tool which enables television show producers, advertisers and
third party developers to create interactive television overlays and
applications.
2. TERM
2.1 This Agreement shall commence on the Effective Date, and shall continue
in effect for a period of ten (10) years ("Initial Term").
2.2 Not later than twenty-four (24) months prior to the expiration of the
Initial Term, TAK shall notify WINK in writing of TAK's intention
whether to extend the Agreement for an additional five (5) year term
(the "Extension Term"). Not later than six (6) months following WINK's
receipt of TAK's notification, WINK shall notify TAK in writing as to
whether WINK elects to accept such extension request.
2.2.1 In the event that WINK agrees to such extension request, the
license grants set forth in Sections 3.1 and 3.2 shall be so
extended provided that WINK shall have the right to adjust the
prices for the first new Version Release or Product Release of
the Licensed Products delivered after such extension date at
WINK's then current "most
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favored nation" prices. WINK acknowledges that TAK shall be
entitled at TAK's sole option to continue employing the then
current version of the Licensed Products at the pricing rates
set forth in Sections 7 and 8. Prior to the expiration of such
Extension Term, the notification provisions of Section 2.2 shall
again apply.
2.2.2 In the event that WINK does not accept TAK's extension request,
TAK shall be entitled to unilaterally extend the Agreement for
the Extension Term. In such event, the license grants set forth
in Sections 3.1 and 3.2 shall be so extended, except as
follows:(i) such licenses shall not be exclusive, and (ii) in
lieu of the royalty fees set forth in Section 7.3, TAK shall pay
WINK [ * ] of all TAK net revenues derived solely from the
exploitation of previously installed copies of the WINK Engine.
3. LICENSE GRANTS
3.1 Subject to the terms and conditions of this Agreement, WINK grants to
TAK for the Initial Term, an exclusive, nontransferable right and
license, limited to the territory of "Continental Europe", as defined in
Exhibit D, under all of WINK's Intellectual Property Rights in and to
the Licensed Products, to use and deploy the Licensed Products as part
of an Interactive Television System business in Continental Europe as
follows: (a) use and reproduce the WINK Engine solely for the purpose of
copying such product to be integrated into Enabled Devices, including
the right to sublicense Submanufacturers to perform such integration
services; (b) sublicense the WINK Engine to device manufacturers for the
purpose of manufacturing and distributing Enabled Devices to be sold and
used in Continental Europe; and (c) sublicense the Licensed Products to
application providers and/or service providers to develop, operate, sell
and transmit applications for use as part of an Interactive Television
System in Europe. The protective provisions and form of any sublicense
granted by TAK hereunder shall be substantially consistent with the
applicable protective provisions of this Agreement (provided WINK
acknowledges that the TAK sublicense agreements may be governed by other
international elements and usages specific to TAK and its licensees,
included but not limited to choice of law provisions). TAK will inform
WINK of the name of any sublicensee.
3.2 Subject to the terms and conditions of this Agreement, WINK grants to
TAK for the Initial Term. a nonexclusive, nontransferable right and
license to the territory of the United Kingdom, under all of WINK's
Intellectual Property Rights in and to the Licensed Products, to use and
deploy the Licensed Products as part of an Interactive Television System
business in the United Kingdom as follows: (a) use and reproduce the
WINK Engine solely for the purpose of copying such product to be
integrated into Enabled Devices, including the right to sublicense
Submanufacturers to perform such integration services; (b) sublicense
the WINK Engine to device manufacturers for the purpose of manufacturing
and distributing Enabled
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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 portions have been filed
with the Commission.
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Devices to be sold and used in the United Kingdom; and (c) sublicense
the Licensed Products to application providers and/or service providers
to develop, operate, sell and transmit applications for use as part of
an Interactive Television System in the United Kingdom. The protective
provisions and form of any sublicense granted by TAK hereunder shall be
substantially consistent with the applicable protective provisions of
this Agreement (provided WINK acknowledges that the TAK sublicense
agreements may be governed by other international elements and usages
specific to TAK and its licensees), included but not limited to choice
of law provisions. TAK will inform WINK of the name of any sublicensee.
3.3 TAK shall use its reasonable best efforts to fully exploit the foregoing
license rights in all of the designated territories listed in Exhibit D.
4. EXCLUSIVITY AND NONCOMPETE
4.1 Provided that WINK meets all the deliverable dates as set forth in
Exhibit A, and related acceptance tests, if TAK has not (i) launched the
Interactive Television System service to customers in France on or
before June 30, 1999, or (ii) has not launched the Interactive
Television System service to customers in two (2) additional countries
on or before December 31, 2001, or (iii) TAK sublicensees have not
shipped a combined cumulative total of not less than one million
(1,000,000) Enabled Devices incorporating the WINK Engine by December
31, 2001, then WINK shall be entitled to notify TAK no later than March
31, 2002 of its intention to convert the foregoing Section 3.1 exclusive
license grant and appointment to a nonexclusive basis for those
countries set forth in Exhibit D, provided that TAK shall have a sixty
(60) day period following such notification to establish that the
applicable performance milestone has actually been met. Thereafter, WINK
shall promptly provide a final written notice of its intention to
convert to nonexclusive status following its review of the TAK response.
In the event of such conversion, WINK will not be entitled to the [ * ]
fee on Net Revenues as provided in Section 7.3 from the effective date
of such conversion.
4.2 Further, for each of the countries listed in Exhibit D, if by June 30,
2002, TAK interactive applications are not transmitted to Enabled
Devices by at least one major television network in each such country,
WINK shall be entitled to notify TAK no later than September 30, 2002 of
its intention to convert the foregoing Section 3.1 to a nonexclusive
license grant and appointment, provided that TAK shall have a sixty (60)
day period following such notification to establish that this
performance milestone has actually been met in a particular country.
Thereafter, WINK shall promptly provide a final written notice of its
intention to convert to nonexclusive status such countries, if any, in
which the performance requirement has not been met.
4.3 If WINK is late in meeting the deliverable dates as set forth in Exhibit
A with Deliverables which comply with the acceptance tests set forth in
Section 6. 1 0, then TAK's obligations to meet its performance
milestones under Section 4.1 and 4.2 shall be postponed by the same
period of time.
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4.4 TAK understands and acknowledges that WINK will disclose valuable WINK
Confidential Information such as business plans, Specifications,
Licensed Product design concepts and other information related to the
Licensed Products during the course of performance of this Agreement. In
consideration of the WINK disclosures, TAK agrees that during the period
commencing with the Effective Date of this Agreement and for a period of
three (3) years thereafter, TAK will not use or have used any other
interactive television system technology using Teletext transport
protocol.
5. PROPERTY RIGHTS
5.1 Prior to, on and after the Effective Date, WINK owns and shall own (a)
all right, title and interest in and to the Licensed Products and
Derivative Technology developed by WINK, (b) all Intellectual Property
Rights relating to the design, manufacture, marketing, operation or
service of the Licensed Products and Derivative Technology developed by
WINK, and (c) all files, code, or technology developed by WINK that is
related to Licensed Products and Derivative Technology (collectively,
the "WINK Property"). No transfer of ownership to the Licensed Products
and Derivative Technology, intellectual property rights, files, code or
technology has occurred or shall occur as a consequence of this
Agreement. In consideration of TAK specifying and financing Derivative
Technology development through NRE Fees, WINK shall pay TAK [ * ] of
the NRE Fees as allocated to a particular Licensed Product in Exhibit B
(i.e., Wink Engine, Wink Broadcast Server, Wink Studio) for any third
party which licenses a portion of the Derivative Technology in
connection with such Licensed Product. Such royalty payments shall be
subject to the respective reporting and audit provisions set forth in
Sections 7.1 and 7.4. WINK will inform TAK of the identity of any such
third party, provided that WINK's obligations to pay TAK a percentage of
the NRE Fees shall terminate at the point when the payments made equal
the amount of NRE Fees paid by TAK to WINK. All payments due under this
Section 5.1 shall be made within thirty (30) days following the date of
WINK's invoice.
5.2 TAK shall have the right to develop its own online server based on the
WINK data, application format and WINK protocol (ICAP) with no WINK
license fees. In such case, TAK shall have the ownership of this
developed online server and shall own all right, title and interest to
this online server.
5.3 TAK owns and shall own all title and interest in and to its own
developments including, but not limited to, its own embedded software
interfacing to the WINK Engine software based on the WINK data and
application format and WINK protocol.
6. DEVELOPMENT, DELIVERY AND ACCEPTANCE
6.1 A list of Milestones that will be performed by both WINK and TAK is
provided in Exhibit A. The parties may agree on additional Development
Activities by amending Exhibit A hereto.
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6.2 In consideration of the initial non recurring engineering fees ("NRE
Fees") to be paid by TAK to WINK under this Agreement, WINK agrees to
create customized software for the WINK Engine, WINK Studio, WINK
Broadcast Server, WINK Server Module Studio, WINK Response Server/Online
Server as per the Specifications. An anticipated list of tasks to be
done by WINK is listed as Exhibit B. Any engineering work to be done by
WINK that is outside the scope of the work listed in Exhibit B shall
incur additional NRE Fees, as agreed to in advance in writing by both
WINK and TAK. In connection therewith, TAK shall (i) assist WINK in
producing the Specifications and (ii) provide other necessary materials
and information, as mutually agreed by the parties in the Specifications
or otherwise. In consideration for the engineering development provided
under Article 6, TAK shall pay WINK initial NRE Fees as detailed in
Exhibit B according to the development confirmed by TAK and WINK.
6.3 The scope of work to be performed by WINK and the Development Schedule
with a list of Milestones and Deliverables is set forth on Exhibit A.
6.4 A list of documentation to be delivered by TAK to WINK, and WINK to TAK,
appears as Exhibit C.
6.5 WINK and TAK shall use commercially reasonable efforts to complete each
Milestone in accordance with the Development Schedule. Upon completion
of each Milestone, WINK shall deliver to TAK all applicable Deliverables
for evaluation by TAK. In the event TAK is late in the performance of
its obligations with respect to each Milestone and such delay affects
WINK's obligations hereunder, WINK's performance of such affected
obligations shall be delayed by the same time period. Similarly, in the
event that WINK is late in the performance of its obligations with
respect to each Milestone and such delay affects TAK's obligations
hereunder, TAK's performance of such affected obligations shall be
delayed by the same time period.
6.6 WINK warrants to TAK that the Licensed Products as customized for TAK
shall function in conformance with the Specifications. WINK agrees to
promptly cure any nonconformity and shall provide TAK with ongoing
corrections of any errors and "bugs" found by TAK in the Licensed
Products at no charge to TAK during the term of this Agreement. EXCEPT
AS SET FORTH IN THIS SECTION 6.6 AND SECTION 14, WINK MAKES NO
PERFORMANCE WARRANTIES ON BEHALF OF THE LICENSED SOFTWARE AND HEREBY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR
PURPOSE.
6.7 In order to facilitate WINK's performance of the development and support
activities contemplated herein, TAK shall, at its own expense, provide
WINK with all of the hardware, software and equipment as specified in
Exhibit A (the "Equipment") which is reasonably necessary to
functionally replicate the Interactive Television System. TAK shall
retain ownership of all such Equipment. WINK shall clearly label the
Equipment as the property of
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TAK and shall not permit any creditor liens to attach to the Equipment.
WINK shall return all such Equipment to TAK in good working order
(reasonable wear and tear excepted) promptly upon request by TAK or on
the expiration or termination of this Agreement, whichever is sooner,
except to the extent necessary for WINK to complete its development and
support obligations to TAK.
6.8 WINK agrees to perform future software customization of its Licensed
Products for countries listed in Exhibit D, and/or future software
customization of the WINK Engine to devices, platforms or future
versions of the TAK Hardware Reference Design as reasonably agreed to in
advance in writing by the parties, and WINK shall provide a quotation to
TAK for engineering/management development at the usual WINK consulting
rate in effect at the time of the quotation.
6.9 TAK shall have the right to develop its own embedded software
interfacing to WINK Engine software based on the WINK data and
application format and WINK protocol (ICAP).
6.10 TAK shall conduct acceptance tests of Deliverables following the
delivery for a period not longer than sixty (60) days. The acceptance
will be agreed between both TAK and WINK by signature of an acceptance
report. If, during the acceptance period, TAK finds that one or many
Deliverable(s) do not meet the Specifications, TAK may at its sole
discretion, notify WINK that the Deliverables do not meet the
Specifications, and return the Deliverables to WINK. Upon such
notification by TAK of WINK's failure to meet Specifications, WINK shall
have sixty (60) days to remedy such shortcomings in the Deliverables to
meet the Specifications. WINK shall resubmit the Deliverables to TAK for
acceptance. If after the sixty (60) day remedy period, TAK rejects the
Deliverables because they still fail to meet the Specifications, then
TAK may grant WINK (i) a further period to deliver conforming
Deliverables, or (ii) terminate this Agreement pursuant to Section 17.2
and in addition to any other remedies which it may have, require a
refund from WINK of all moneys received for the concerned Deliverables.
6.11 In the event that the development or delivery of a Deliverable, or the
initiation or satisfactory completion of an acceptance test is delayed,
the party or parties responsible for such delay will assign a first
priority (including the dedication of additional staff and resources as
appropriate) and keep the other party timely informed in writing of such
efforts and resulting progress.
6.12 WINK shall authorize TAK to dispatch TAK's engineers into WINK's Alameda
office to support WINK in developing the Deliverables and to coordinate
the TAK and WINK efforts, provided that such support efforts shall in no
way relieve WINK of any of its obligations or responsibilities under
this Agreement.
6.13 Should WINK decide to cease developing new Version Releases or Product
Releases, WINK shall notify TAK in writing of such intention no later
than one year following such decision.
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7. WINK ENGINE ROYALTY FEES
7.1 In consideration for the rights and licenses granted to it in this
Agreement, TAK will pay WINK a royalty of US [ * ] for each Enabled
Device when first connected to the Interactive Television System. TAK
payments to WINK will be made within thirty (30) days of the end of each
calendar quarter. Such payments shall be accompanied by a written report
which indicates the number of Enabled Devices first connected to the
Interactive Television System each month.
7.2 TAK guarantees a minimum cumulative royalty payment to WINK of U.S.[ * ]
by the end of calendar year 1999, a minimum cumulative payment of U.S.
[ * ] by the end of calendar year 2000, and a minimum of U.S.[ * ] by
the end of calendar year 2001. Minimum cumulative royalty payments are
based on the first Enabled Device being shipped in September, 1998; if
product launch is delayed by either party, the minimum cumulative
payment schedule shall be delayed by the same period of time, The
failure to reach the number of Enabled Devices connected representing
these cumulative amounts is not a material breach of the Agreement as
set forth in Article 2.2 hereabove. TAK shall pay the guaranteed minimum
royalty payments to WINK within thirty (30) days following WINK's notice
to TAK of failure to meet the minimum cumulative royalty payment.
7.3 In addition to paying WINK the royalty of US [ * ] for each Enabled
Device when first connected to the Interactive Television System, TAK
will pay WINK a fee of [ * ] during the term of this Agreement and any
extension thereof. TAK payments to WINK will be made within thirty (30)
days of the end of each calendar quarter, and are to be accompanied by a
quarterly financial report calculating TAK's Net Revenues.
7.4 TAK agrees to allow WINK through use of a mutually agreed ("Big Six")
auditor, and bound to a confidentiality agreement to audit and examine
using reasonable professional diligence, TAK's books, records and
accounts no more than twice during each calendar year, upon reasonable
notice during TAK's normal business hours, in order to verify the
accuracy of the reports and payments made to WINK under this Section 7.
In the event such audit determines that TAK has not paid WINK the entire
amount of royalty payments or [ * ], WINK shall provide TAK with the
audit report and notify TAK of the requested shortfall. If TAK and WINK
fail to find an agreement on the requested underpayment within thirty
(30) days after WINK's notification, a new audit will be done by an
independent third party auditor agreed upon by both WINK and TAK. In the
event this second audit confirms underpayment, TAK agrees to pay, in
addition to any damages to which WINK might be entitled, the amount of
such shortfall. 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%), TAK shall reimburse to WINK its costs of such audit.
8. LICENSED PRODUCT PRICING (OTHER THAN WINK ENGINE).
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8.1 WINK Studio 2.0 license including Updates, Version Releases and Product
Releases, shall be purchased by TAK at a cost of U.S.[ * ] per
workstation. TAK shall pay [ * ] of the cost of WINK Studio for
unlimited Support, up to 100 WINK Studio packages. (Support-related
travel expenses are additional and billed to TAK at cost). After the
purchase of 100 WINK Studios , WINK and TAK agree to renegotiate the
costs for unlimited Support.
8.2 WINK Server Module Studio 1.1 license including Updates, Version
Releases and Product Releases, shall be purchased by TAK at a cost of
U.S.[ * ] per workstation. TAK shall pay [ * ] of the cost of each WINK
Server Module Studio copy for unlimited Support, up to 100 WINK Server
Module Studio packages. (Support-related travel expenses are additional
and billed to TAK at cost). After the purchase of 100 WINK Server Module
Studios, WINK and TAK agree to renegotiate the costs for unlimited
Support.
8.3 WINK Broadcast Server 2.0 license including Updates, Version Releases
and Product Releases, shall be purchased by TAK at a cost of U.S.[ * ]
per year per country, including unlimited Support. (Support-related
travel expenses are additional and billed to TAK at cost). Through the
purchase of the license, TAK shall be granted the right to copy and
install the WINK Broadcast Server software onto (i) an unlimited number
of broadcaster hardware servers having business agreements with TAK, and
(ii) a limited number of servers used by TAK and Enabled Device
manufacturers solely for the purpose of demonstrating or testing their
Enabled Devices. The WINK Broadcast Server license fee shall be paid
upfront in the fourth quarter of each year for the next year's use of
the license. The license fee for the WINK Broadcast Server shall
increase (but not decrease) by the U.S. Consumer Price Index (CPI)
annually.
8.4 WINK Ad Insertion Server Module 1.0 license including Updates, Version
Releases and Product Releases, shall be purchased by TAK at a cost of
U.S.[ * ] per year per country, including unlimited Support.
(Support-related travel expenses are additional and billed to TAK at
cost). Through the purchase of the license, TAK shall be granted the
right to copy and install the WINK Ad Insertion Server Module software
onto (i) an unlimited number of broadcaster hardware servers having
business agreements with TAK, and (ii) a limited number of servers used
by TAK and Enabled Device manufacturers solely for the purpose of
demonstrating or testing their Enabled Devices. The WINK Ad Insertion
Server Module license fee shall be paid upfront in the fourth quarter of
each year for the next year's use of the license. The license fee for
the WINK Ad Insertion Server Module shall increase (but not decrease) by
the U.S. Consumer Price Index (CPI) annually.
8.5 WINK Response Server/Online Server 1.0 license including Updates,
Version Releases and Product Releases, can be purchased by TAK at a cost
of U.S.[ * ] per year per country, including unlimited Support.
(Support-related travel expenses are additional and billed to TAK at
cost). Through the purchase of the license, TAK shall be granted the
right to copy and install the WINK Response Server/Online Server
software onto (i) an unlimited number of broadcaster hardware servers
having business agreements with TAK, and (ii) a limited
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number of servers used by TAK and Enabled Device manufacturers solely
for the purpose of demonstrating or testing the WINK Response
Server/Online Server software. The WINK Response Server/Online Server
license fee shall be paid upfront in the fourth quarter of each year for
the next year's use of the license. The license fee for the WINK
Response Server/Online Server shall increase (but not decrease) by the
U.S. Consumer Price Index (CPI) annually. TAK reserves the right to
develop its own online server based on the WINK data, application format
and WINK protocol (ICAP) with no WINK annual license fees. Should WINK
and TAK co-develop the online server, then the annual WINK license fees
will be determined at that time. Should TAK develop its own online
server, WINK shall have no service, integration or maintenance
responsibilities.
8.6 All payments due under this Section 8 shall made within thirty (30) days
following the date of WINK's invoice.
9. PROMOTION AND RESEARCH
9.1 WINK and TAK shall participate in public relations programs, starting
with an initial press release of the relationship between the two
companies at a mutually agreed upon date after the execution of this
Agreement. WINK shall provide TAK with an initial draft of the press
release. Content of that announcement shall be mutually agreed upon in
writing by the parties. No public announcement will be made without the
prior written approval of the parties.
9.2 WINK may desire to, from time to time, undertake marketing tests and
surveys, rating polls and other research in connection with TAK's
Interactive Television System. To the extent that such research is not
governed by confidential agreements with third parties, TAK agrees to
communicate at no cost to WINK any research regarding the deployment,
launch, and usage of TAK's Interactive Television System by customers
and provide WINK with reasonable assistance in conducting research with
respect to Interactive Television System customers. If WINK decides to
initiate any market research, then WINK shall pay for the cost of that
research, and communicate the research results to TAK at no cost.
10. NOTICES
10.1 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, INC. at 0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and if to TAK INTERACTIVE S.A.
at 00 xxxx X. Xx Xxxxx, 00000 Xxxxxxxx, Xxxxx Xxxxxx, attention
President Directeur General. 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.
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11. TRADEMARKS
11.1 TAK acknowledges and agrees that all names, logos, marks, copyright
notices or designations utilized by WINK are the sole and exclusive
property of WINK, and no rights or ownership are intended to be or shall
be transferred to TAK.
11.2 WINK acknowledges and agrees that all names, logos, marks, copyright
notices or designations utilized by TAK are the sole and exclusive
property of TAK, and no rights or ownership are intended to be or shall
be transferred to WINK.
11.3 TAK shall not be obligated to use any WINK names, logos, marks, or
designations (provided all copies of the Licensed Products shall include
all WINK copyright notices contained in the original masters of the
Licensed Products provided by WINK to TAK).
11.4 WINK shall provide the Licensed Products with no WINK names, logos,
marks, or designations included in or on the Licensed Products unless
expressly instructed by TAK in writing (provided that WINK shall not be
required to modify any preexisting code of the Licensed Products and
Wink hereby grants TAK a royalty-free license to use such "embedded
marks" pursuant to the provisions of Section 3.1 of this Agreement).
12. REPRESENTATIONS
12.1 WINK represents to TAK that (i) WINK 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.
12.2 TAK represents to WINK that (i) TAK is a corporation duly organized and
validly existing under the laws of France; (ii) TAK has the requisite
power and authority to enter in this Agreement and to fully perform its
obligations hereunder; (iii) TAK is under no contractual or other legal
obligation which in any way interferes with its ability to fully,
promptly and completely perform hereunder.
13. CONFIDENTIALITY
13.1 During the term of this Agreement, and for a period of ten (10) years
thereafter, each party will maintain in confidence all information which
it receives from the other party marked as "confidential" ("Confidential
Information"). Neither party will use, disclose or grant use of such
Confidential Information disclosed to it by the other party except for
TAK's sublicensees and subcontractors as expressly authorized by this
Agreement. TAK shall require its sublicensees and subcontractors to keep
confidential all WINK information that is marked "confidential". Each
party will use at least the same standard of care as it uses to
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protect its own Confidential Information to ensure that its employees,
agents or consultants do not disclose or make any unauthorized use of
such Confidential Information. Each party will promptly notify the other
upon discovery of any unauthorized use or disclosure of the Confidential
Information.
13.2 The obligations of confidentiality contained in Section 13.1 will not
apply to the extent that it can be established by a party by competent
proof that such Confidential Information:
(a) was already known to such party, other than under an obligation
of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to such party
(c) became generally available to the public or otherwise part of
the public domain after its disclosure and other than through
any act or omission of such party in breach of this Agreement;
(d) was disclosed to such party, other than under an obligation of
confidentiality, by a third party who had no obligation to the
other party not to disclose such information to others;
(e) is authorized for release in writing by the disclosing party;
(f) is developed by such party completely independently of any such
received Confidential Information; or
(g) is furnished pursuant to judicial order, a lawful requirement of
governmental agency, or by operation of law, but then only to
the extent so ordered. In such case, the receiving party shall
use its best efforts to timely advise the disclosing party prior
to disclosure.
14. WARRANTY AND INDEMNITY
INTELLECTUAL PROPERTY WARRANTY
14.1 WINK represents and warrants that to the best of its knowledge (a) as of
the Effective Date, no action or proceeding alleging intellectual
property infringement by the Licensed Products has been threatened or is
proceeding against WINK, (b) it has the right to license the
Intellectual Property Rights in and to the Licensed Products to TAK and
(c) except to the extent that an infringement or violation is caused by
TAK-provided information or the Licensed Product's interaction with TAK
hardware or software, the Licensed Products to the best of WINK's
knowledge do not infringe upon or violate any third party patent,
copyright, trade secret, trademark or any other proprietary rights.
TAK's exclusive remedy, and WINK's sole liability, for a breach by WINK
of the warranties of subsections (a), (b) and (c) above shall be WINK's
indemnity set forth in this Section 14.
14.2 WINK agrees to defend, or at its option to settle, any claim, suit,
action or proceeding brought against TAK by a third party as a result of
WINK's breach of its warranties under 14.1 (a), (b) and (c) above (an
"Action"), and to pay any settlement or final judgment,
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attorney fees, damages, and related costs entered thereon against TAK,
subject to the limitations set forth hereafter. WINK shall be relieved
of its obligations hereunder unless TAK gives WINK (i) prompt written
notice upon becoming aware of the existence of an Action, (ii) sole
control over the defense or settlement of the Action and (iii)
reasonable assistance in the defense or settlement thereof.
Notwithstanding the hereabove payments by WINK to TAK, if it is
determined by competent authority that the Licensed Products or any part
thereof, or the sale, distribution or use thereof as permitted hereunder
infringes any patent, copyright, trade secret or trademark of a third
party or is enjoined, then WINK at its sole option and expense may (a)
procure for TAK the right under such patent, copyright, trade secret or
trademark to use, reproduce and distribute the Licensed Products or such
part thereof or such trademark; (b) replace the Licensed Products or
such part thereof or such trademark with other suitable software or
trademark without material degradation in performance or functionality;
(c) suitably modify the Licensed Products or such part thereof or such
trademark to avoid infringement without material degradation in
performance or functionality; or (d) if none of the foregoing are
commercially reasonably feasible, terminate this Agreement.
14.3 The foregoing indemnity shall not apply to an infringement to the extent
it arises out of (i) any modification of the Licensed Products by a
party other than WINK or on WINK's behalf, (ii) any combination of the
Licensed Products with hardware and/or software not supplied by WINK
(except the hardware of the TAK), which infringement does not cover the
Licensed Products standing alone, or (iii) failure to implement an
Update where use of such Update would have avoided infringement of third
party intellectual property rights, provided that WINK has explicitly
mentioned to TAK when releasing such Update that it avoids said
infringement or (iv) any trademarks, trade names or other brandings not
supplied by WINK. As used in Subsection 14.3(i), "on WINK's behalf"
shall mean that WINK has given its written authorization for TAK or a
third party to perform such modifications.
14.4 THE FOREGOING PROVISIONS OF THIS SECTION 14 STATE THE ENTIRE LIABILITY
AND OBLIGATION (EXPRESS, IMPLIED, STATUTORY, IN ANY COMMUNICATION WITH
WINK OR OTHERWISE) OF WINK AND THE EXCLUSIVE REMEDY OF TAK AND ITS
SUBMANUFACTURERS AND SUBDISTRIBUTORS WITH RESPECT TO ANY ALLEGED
INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER
INTELLECTUAL PROPERTY RIGHT BY THE WINK ENGINE OR ANY PART THEREOF.
DELIVERABLE(S) WARRANTY
14.5 During the term of this Agreement and in accordance with Section 6.6
hereabove, WINK warrants that following the signature by both TAK and
WINK of the acceptance report set forth in Section 6.10, Deliverable(s)
will perform in accordance with the Specifications and WINK warrants
that Deliverables are free from defects and/or internal defects. During
the term of this Agreement, WINK shall promptly correct any errors in
the Deliverable(s) so that
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Deliverable(s) will perform in accordance with the Specifications. At
TAK's request, WINK shall repair or replace at its discretion and
without charges to TAK, all defective Deliverable(s).
15. [THIS SECTION INTENTIONALLY LEFT BLANK]
16. SOURCE CODE ESCROW
16.1 Within six (6) months following the completion and acceptance of
the Deliverables, WINK shall enter into a standard form of
source code escrow agreement ("Escrow Agreement") with Data
Securities International, Inc. ("Escrow Agent"). Such Escrow
Agreement shall provide for WINK's delivery and deposit from
time to time (including Product Releases, Version Releases and
Updates) with the Escrow Agent of source code and proprietary
materials in both electronic (e.g., CD-ROM or diskette) and
documented paper format for each piece of software ("Escrow
Materials") related to the Licensed Products and WINK shall make
such deposits. Until a condition of release ("Release
Condition") occurs as defined herein and the notice conditions
of the Escrow Agreement have been met, the Escrow Agent shall
not deliver the Escrow Materials to TAK. The fees and costs
charged by the Escrow Agent to establish and maintain the Escrow
Agreement shall be paid by WINK (provided that 50% of such
amount shall be reimbursed to WINK by TAK) Any of the following
events shall be deemed to be Release Conditions:
(i) WINK defaults on its obligation to cure a major bug,
such bug being of a nature to significantly affect TAK's
business and such default is not cured within forty-five
(45) days after written notice by TAK; or
(ii) WINK fails to deliver a major enhancement to the WINK
Engine in any four (4) year period following the date of
the last Product Release and such failure to provide
such enhancement is not cured within sixty (60) days
after written notice by TAK; or
(iii) Having notified TAK of its decision pursuant to the
provisions of Section 6.13, WINK fails to commit to
promptly develop (at WINK's normal consulting rates) any
new Version Release or Product Release requested by TAK
and such failure to provide such enhancement is not
cured within sixty (60) days after written notice by
TAK; or
(iv) WINK fails to provide Support as set forth in this
Agreement and such default is not cured within sixty
(60) days after written notice by TAK, or
(v) WINK files or there is filed against it any petition in
bankruptcy which petition has not been dismissed within
60 days of its filing, provided however, that no Release
Condition shall occur in the event the WINK is a
"debtor-in-possession" under a Chapter 11 proceeding
[and no Release Condition has otherwise occurred under
Section 16(i), (ii), (iii) or (iv) above].
17. TERMINATION AND EXPIRATION
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17.1 Termination For Cause.
17.1.1 Notwithstanding any other provision herein, WINK will have the
right to terminate this Agreement or all or any licenses granted
herein if TAK fails to comply with any of its material
obligations under this Agreement. Should WINK elect to exercise
this right to terminate for such nonperformance, it must be done
in writing specifically setting forth those items of such
nonperformance. TAK will then have sixty (60) days from receipt
of notification to remedy the items of such nonperformance.
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 TAK has not made
payment of the fees or charges due hereunder and such nonpayment
continues after sixty (60) days prior written notice by WINK,
then WINK may terminate this Agreement or any license granted
herein.
17.1.2 Notwithstanding any other provision herein, TAK will have the
right to terminate this Agreement or all or any licenses granted
herein if WINK fails to comply with any of its material
obligations under this Agreement. Should TAK elect to exercise
this right to terminate for such nonperformance, it must be done
in writing specifically setting forth those items of such
nonperformance. WINK will then have sixty (60) days from receipt
of notification to remedy the items of such nonperformance.
TAK's termination of this Agreement or such taking of possession
shall be without prejudice to any other remedies TAK may have,
including, without limitation, all remedies with respect to the
unperformed balance of this Agreement; provided, however, that
if WINK has not made payment of the fees or charges due
hereunder and such nonpayment continues after sixty (60) days
prior written notice by TAK, then TAK may terminate this
Agreement.
17.1.3 Upon the termination of this Agreement for any uncured material
breach as set forth in Section 17. 1, all rights of TAK to use
the Licensed Products will cease and TAK will immediately (i)
cease licensing of WINK Licensed Products to Submanufacturers of
Enabled Device and agree to use best efforts to have
Submanufacturers sell remaining inventory of Enabled Device
within twelve (12) months from the date of termination of this
contract (ii) purge all copies of Licensed Products from all
computer processors or storage media on which TAK has installed
and use its best efforts to cause others which have installed
such Licensed Products to purge such copies, and (iii) when
requested by WINK, certify to WINK in writing, signed by an
officer of TAK, that all copies of the Licensed Products have
been returned to WINK or destroyed and that no copy of any
Licensed Products remains in TAK's possession or under its
control.
17.2 Termination Without Cause/Expiration
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Upon termination or expiration of this Agreement (or any extension
thereof) for any reason other than a termination for uncured material
breach pursuant to Section 17.1, TAK shall be entitled to continue
exercising the license grants set forth in Sections 3.1 and 3.2, except
as follows:(i) such licenses shall not be exclusive, (ii) shall not
include the right to integrate the WINK Engine or to sublicense
additional copies of the Licensed Products, (iii) with respect to the
use of installed applications of the Licensed Products (other than the
WINK Engine) such license grant shall terminate seven (7) years
following the date of such termination or expiration, and (iv) in lieu
of the royalty fees set forth in Section 7.3, TAK shall pay WINK 1.5 %
of all TAK net revenues derived solely from the exploitation of
previously installed copies of the WINK Engine for a period of seven (7)
years following such termination or expiration date. In addition, TAK
will continue to provide Support as follows: (a) no fee shall be charged
by WINK provided that the royalty fees paid to WINK under this Section
17.2 equal at least $100,000 per calendar quarter, or (b) otherwise,
WINK shall provide ten (10) hours per month on a no fee basis provided
that any additional Support over and above the ten (10) hour quota shall
be charged at WINK's standard per diem or hourly rate as applicable.
18. GENERAL
18.1 In the event any dispute arises between the parties concerning the
making, negotiating, interpretation or enforcement of this Agreement,
either party as its exclusive dispute resolution remedy shall initiate
arbitration (the "Arbitration") of the dispute by the filing of an
application for resolution by a mutually agreed single arbitrator
appointed by and in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce (the "ICC") in
force at the time the arbitration proceeding is initiated. The exclusive
venue for the conduct of the Arbitration shall be Geneva, Switzerland
and the language of the Arbitration shall be English. The arbitrator
shall apply the law of the State of New York, U.S.A. as the law
governing the interpretation and enforcement of this Agreement. The
award of the arbitrator shall be entered as a final, binding judgment in
any Court having jurisdiction thereof. The arbitrator shall have the
right to award injunctive or other equitable relief, including specific
performance but may not award punitive damages. All costs and expenses
of the arbitrator and the ICC shall be borne equally by the parties.
Each party shall be responsible for its own attorney fees and related
costs in the Arbitration.
18.2 TAK 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. WINK agrees to provide TAK with timely notification
in reasonable detail of the significant provisions of such export and
reexport restrictions. TAK
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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 TAK (if necessary).
18.3 This Agreement and any rights or obligations of TAK or WINK hereunder
shall not be assigned by either party without the prior written consent
of the other party, which consent shall not be unreasonably withheld,
except that either party may assign its rights and obligations hereunder
to any entity (i) which controls, is controlled by or is under common
control with such party or (ii) which acquires all or substantially all
of the assets or business of such party to which this Agreement
pertains, provided in both cases that such entity shall assume in
writing or by operation of law such party's obligations under this
Agreement. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their successors
and assigns.
18.4 The relationship of the parties established by this Agreement is that of
independent contractors, and nothing contained in this Agreement shall
be construed to (i) give either party the power to direct and control
the day-to-day activities of the other, (ii) constitute the parties as
partners, joint venturers, co-owners or otherwise as participants in a
joint or common undertaking, or (iii) allow either party to create or
assume any obligation on behalf of the other party for any purpose
whatsoever.
18.5 In exercising its rights under this Agreement, 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 Agreement.
18.6 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.
18.7 LIMITATION OF LIABILITY: (i) EXCEPT WITH RESPECT TO A BREACH OF SECTION
13, IN NO EVENT SHALL WINK'S LIABILITY TO TAK EXCEED THE TOTAL AGGREGATE
AMOUNT (EXCLUDING NRE FEES) PAID BY TAK UNDER THIS AGREEMENT AND (ii)
EXCEPT WITH RESPECT TO A BREACH OF SECTIONS 3,4.2 OR 13, IN NO EVENT
SHALL TAK BE LIABLE TO WINK IN THE AGGREGATE FOR ANY AMOUNT IN EXCESS OF
THE ROYALTIES PAID BY TAK HEREUNDER AND (iii) EXCEPT FOR A BREACH OF
SECTIONS 3,4.2 OR 13, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR LOST PROFITS, LOSS OF DATA OR FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR INDIRECT DAMAGES ARISING IN ANY WAY OUT OF THIS
AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS
LIMITATION SHALL APPLY EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR HEREIN.
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18.8 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.
18.9 WINK and TAK acknowledge and agree that WINK's entering into this
Agreement and the amount of TAK's royalty hereunder have been done or
set in reliance upon the limitations of liabilities and disclaimers of
warranty set forth in this Agreement, and that the same form an
essential basis of the parties' bargain.
18.10 Any waiver of any kind by either party of a breach of this Agreement
must be in writing, shall be effective only to the extent set forth in
such writing, and shall not operate or be construed as a waiver of any
subsequent breach. Either party's delay or omission, if any, in
exercising any right, power, or remedy pursuant to a breach or default
by the other, shall not impair any other right, power, or remedy which
the non-defaulting party may have.
18.11 In the event that a party is prevented from performing its obligations
hereunder due to any force majeure, including but not limited to,
disasters, fire, civil commotion, strikes, governmental regulations or
other occurrences beyond its reasonable control and without its fault or
negligence, the provisions of this Agreement relative thereto shall be
suspended, but only as long as and so far as the impediment is existing.
In the case of any such suspension, such party shall endeavor and use
all reasonable efforts to overcome the cause and effect of such
suspension.
18.12 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.
18.13 The undersigned hereby warrant and represent that they are authorized to
sign on behalf of and commit the parties.
18.14 The provisions of Sections 13, 14,17.2, 18.1 and 18.7, shall expressly
survive the termination or expiration of this Agreement.
18.15 In the event of a conflict between a provision in a Section in the body
of this Agreement and an Exhibit attached hereto, the provision in the
Section of the body of the Agreement shall control.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Agreement as of the Effective Date.
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WINK COMMUNICATIONS, INC. TAK INTERACTIVE S.A.
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------
Name: Parish X. Xxxxxx Name: Xxxxxxx Xxxxxx
----------------------------- -----------------------------
Title: CFO Title: CEO
---------------------------- ----------------------------
Date: April 4, 1998 Date: April 6, 1998
----------------------------- -----------------------------
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EXHIBIT D
TERRITORY OF CONTINENTAL EUROPE
For the purposes of this Agreement, the countries listed below comprise the
territory of Continental Europe:
France
Spain
Portugal
Belgium
Luxembourg
Holland
Republic of Ireland
Germany
Italy
Denmark
Sweden
Finland
Norway
Iceland
Switzerland
Austria
Gibraltar
San Marino
Monaco
Liechtenstein
Andorra
Poland
Hungary
Czech Republic
Slovakia
Romania
Bulgaria
Yugoslavia
Slovenia
Croatia
Bosnia Herzegovina
Albania
Belarus
Esthonia
Latvia
Lithuania
Ukraine
Moldavia
Russian Federation
Greece
Turkey
Malta
Cyprus
23
EXHIBIT A
STATEMENT OF WORK
1. INTRODUCTION
The following sets forth the services that TAK and WINK agree to perform,
respectively, and in accordance with the Agreement, and its associated Exhibits.
This Statement of Work (SOW) shall remain effective until the Expiration Date of
the Agreement and may be modified from time-to-time as mutually agreed in
writing by TAK and WINK.
All functional and performance requirements for the TAK project are listed in
this SOW, and are further described in the following documents :
- "TAK MODULE - Hardware Requirement Specification," DO.02, 19-Mar-98, Ph.
Baudry
- "WINK Extensions Requirements Specification, TAK," A0.01, 16-Mar-98, X.
Xxxxxxx
- "Interactive (Analog) TV, System Specification Requirements," 18-Apr-97,
A Maillard.
- "TAK Module System Software Architecture," 12-Mar-98, X. Xxxxx
- "TAK Project HW & SW Needs," 11-Mar-98, Ph. Baudry
The functionality of WINK's products are described in the following documents:
- "WINK Core Engine 1.5 Functional Specification, 2/27/98"
- "WINK Studio User's Guide, WINK Studio 2.0, 2/6/98"
- "Server Module Authoring with WINK SMStudio & SMEngine, V1.1, 1/5/98"
- "WINK Automation Server Module Marketing Requirements Document V 1.0,
2/24/98"
- "WINK Broadcast Server User's Guide, 2/23/98"
Exhibit A-1
24
2. TAK MODULE
2.1 DEVELOPMENTS
2.1.1 TAK'S RESPONSIBILITIES
2.1.1.1 TAK shall specify, with the support of WINK, the software architecture
of the TAK module and the API between TAK software and version 1.5 of the WINK
Engine which includes the extensions as specified in Section 2.1.2.2.
2.1.1.2 For development, TAK shall provide 5 copies of the initial prototype of
the TAK MODULE (Hardware), TAKHW1 (a.k.a. Lab1), that conforms to the
specification "TAK MODULE Hardware requirement specification," as indicated in
module development timeline as specified in Section 2.2 . The TAKHW1 boards will
be updated with any newer cut of the Gen4 IC when possible and as appropriate,
but no later than milestone MT6. Each TAKHWI will be delivered with a "Mezzanine
board" and an "adapter" for development/integration that conforms to the
document named "TAK project HW & SW needs".
2.1.1.3 For Quality Assurance, TAK shall provide 5 additional copies of the TAK
MODULE (Hardware), version TAKHW1 equipped with the latest version of the Gen4
IC that conforms to the "TAK MODULE Hardware requirement specification," as
indicated in module development timeline as specified in Section 2.2.
2.1.1.4 For final testing, TAK shall provide 5 additional copies of the final
prototype of the TAK Module (Hardware), TAKHW2 (a.k.a. Lab2), that conforms to
the "TAK Module Hardware requirement specification," as indicated in module
development timeline as specified in Section 2.2.
2.1.1.5 "TAKHWI" and "TAKHW2" refer to the two versions that are currently
planed for printed circuit board assembly for the TAK Module. "Gen4" refers to
the integrated circuit which is being developed for the TAK Module. If there are
additional versions of the TAK Module Hardware or the Gen4 chip that are needed
by WINK to complete its development, integration or testing, TAK will either
update WINK's hardware or provide additional hardware.
2.1.1.6 TAK will provide WINK with the equipment required for 4 Engineering
development stations. This will include:
- 4 ISI PRISM development seats (PC/NT) with 2 floating ARM C compiler
licenses
- 4 "Black Ice" In-circuit emulators with their power supply
- 4 50Hz TV sets
- 2 Norpak TES3 DIUs (1 DIU that supports 3 datapipes and I DIU that
supports 2 datapipes)
- 1 50Hz Laser Disk Player
- 1 50Hz RF Modulator (Assuming that the TV Sets can receive baseband
video. If not, additional modulators will be required)
- 4 power converters
Exhibit A-2
25
- 4 Lab power supplies (e.g. METRIX AX323)
2.1.1.7 TAK will provide WINK with the equipment required for 4 QA (Quality
Assurance) test stations. This will include:
- 4 50Hz TV sets
- 1 Norpak TES3 DIUs that supports l datapipe
- 1 50Hz Laser Disk Player
All of the above equipment shall be provided by TAK in accordance with the
provisions of Section 6.7 of the Agreement, and shall remain the property of
TAK.
2.1.1.8 TAK shall provide a hardware independent software layer, according to
the milestones defined in Section 2.2, based on the following components:
- an Operating System and its associated drivers (UART, Timers,...)
- an OSD driver and a graphics API
- a modem driver and a TCP/IP/PPP socket API
- a VBI data slicer driver
- an I2C driver and interface to the TV chassis
- a non volatile memory driver and file system
2.1.1.9 TAK shall develop the resident applications on the TAK Module, as well
as the resident icons and fonts, following WINK's guidelines. These applications
include:
- TAK Module installation in the TV chassis
- Current & Next Electronic Program Guide
- TAK "On-Line" menu
- System popups
2.1.1.10 TAK shall specify and implement a system code down load mechanism in
order to update the Flash memory of the TAK Module.
2.1.1.11 TAK shall be responsible for the test and integration of the hardware
and software provided by TAK
2.1.1.12 TAK will support WINK in the integration and validation of the porting
of WINK software on the TAK Module, at WINK premises.
2.1.1.13 If requested by WINK, TAK shall recommend, as appropriate, additional
environments, and software tools for software development and for the set up of
a debug environment.
2.1.2 WINK'S RESPONSIBILITIES
Exhibit A-3
26
2.1.2.1 WINK shall port version 1.5 of the WINK Engine onto the TAK Module on
top of the TAK hardware independent software layer, according to the milestones
defined in Section 2.2.
2.1.2.2 WINK shall extend the functionality of version 1.5 of the WINK Engine
according to the following TAK business requirements. These requirements are
presented in the document entitled "WINK Extensions Requirements Specification."
- Adapted to comply to the European Teletext standard transport (Page
Format or IDL Format A, as described in ETS300708). This software
implements communication stacks compatible with the European Teletext
Transport, error correcting code offering security for the broadcast of
interactive applications, data compression algorithm and application
authentication control.
- Allow applications to write data to and read data from non-volatile
memory.
- Allow the installation and upgrade from both the VBI and the PSTN of
resident applications, resident text resources, resident icons, and
resident fonts, independent of each other and the WINK Engine.
- Allow the installation and upgrade of user profile data over the PSTN.
- Prevent the execution of applications which have not been authenticated.
- Provide the ability to query an on-line server for real-time data,
real-time application and updates.
- Support applications that are configured with a profile criteria such
that the applications are not available to the viewer if the profile
criteria is not met.
- Support applications that can appear differently for different viewers,
based on the user profile data.
- Provide the ability to pass data to external devices (e.g. through TV
Control Task or modem).
- Allow responses for an application to be sent over the PSTN at a random
time within a window of time specified by the application.
- Support the use of translucent colors.
- Provide access to the TAK device's unique ID number.
2.1.2.3 WINK shall provide simple but relevant descriptions of the behavioral
aspects of how the WINK Engine uses each interface to the TAK Module hardware
and software no later than 6 weeks before TAK is scheduled to deliver the
respective interface. These descriptions are provided so that TAK can develop
test software to ensure that TAK's software meets WINK's acceptance criteria.
2.1.2.4 WINK shall be responsible for the test, integration and validation of
version 1.5 of the WINK Engine and the extensions implemented to meet TAK's
requirements on the TAK Module and software. WINK may be supported by a person
appointed by TAK at WINK's premise, during the integration and validation of
this software.
2.1.2.5 WINK shall provide a protocol stack that provides an API that allows
TAK's software to receive WST data that has been encoded with Norpak's FEC
algorithm for use for code download. TAK's use of this software is subject to
agreement and/or licensing by Norpak.
Exhibit A-4
27
2.1.2.6 WINK shall support TAK in the development of resident fonts, icons,
system popups and resident applications.
2.1.2.7 WINK shall appoint a person to support TAK, at TAK's premises, in
developing specifications for the TAK module software architecture and the APIs
between TAK's and WINK's respective software.
2.1.2.8 If requested by TAK, WINK shall recommend, as appropriate, additional
environments, and software tools for the set up of a debug environment.
2.2 MILESTONES
MT0: Contract Signed, Timeline frozen, Overall project requirements
defined.
MT1: MT0 + 2 Weeks
MTl.D1 Common Agreement on process for reviewing, updating and
tracking versions of project related specifications
MT1.D2 Common Agreement on the initial list of specifications
MT1.D3 WINK to TAK Specification of Escalation Process
MTl.D4 TAK to WINK Specification of Escalation Process
MT2: MT1 + 4 Weeks
MT2.D1 Common Agreement on the definition & implementation of
Change Control Process
MT2.D2 Common Specifications and API finalized
MT2.D3 TAK to WINK ARM Development Tools
MT3: MT2 + 6 Weeks
MT3.D1 Common Agreement on a common procedure to track bugs
MT3.D2 Common Agreement on electronic format for End User
documentation deliverables
MT3.D3 TAK to WINK Working Development modules (TAKHW1) and
associated development environments (see "TAK
project HW & SW needs")
MT3.D4 TAK to WINK TAK's software (TAKSW1) running on the
TAKHW1 module which includes: pSOS ported to
TAKHW1 module, a Serial driver, a driver for the
OSD, and a Graphics API
MT4: MT3 + 6 Weeks
Exhibit A-5
28
MT4.D1 WINK to TAK WINK Delivers to TAK a version of the WINK
Engine (PROT01) which supports the 1.5 feature set,
runs ICAP applications which are either resident or
received via the serial port, accepts user input via the
serial port, and supports an API for delivering data
for code downloads to the TAK software. This
prototype will not support VBI data nor a return path
MT4.D2 TAK to WINK TAK will deliver a updated version of the module
software (TAKSW2) which adds an I2C driver, a VBI
driver, a functional TV Control task, a Flash driver and
a file system
MT5: MT4 + 6 Weeks
MT5.D1 WINK to TAK A version of the WINK Engine (PROT02) which
supports real VBI data and user input from the TV
control task. Will support a mechanism for
delivering data packets for code download to TAK
module software after they have been received
processed via WINK's WST/FEC code. This
prototype will not support a return path
MT5.D2 TAK to WINK QA Test Environments (see Section 2.1.1.7)
MT5.D3 TAK to WINK An updated version module software (TAKSW3)
which adds support for the modem, and a
TCP/IP/PPP stack
MT6: MT5 + 4 Weeks
QA Begins
MT6.D1 WINK to TAK WINK delivers a 3rd version of the WINK Engine (PROT03)
which supports a return path via TCP/IP over the modem,
and includes the TAK extensions
MT7: MT6 + 4 Weeks
MT7.D1 WINK to TAK WINK Software on TAKHW1 modules ready for TV
manufacture testing (PROT04). (Required for ST4)
MT7.D2 TAK to WINK Final TAK Hardware (TAKHW2) and related software changes
(TAKSW4) for testing, TAKSW4 will have identical
functionality and interfaces as XXXXX0
XX0: MT7 + 2 weeks
MT8.D1 WINK to TAK WINK Software validated on TAKHW2 modules
(FINAL)
3. AUTHORING TOOLS
Exhibit A-6
29
3.1 DEVELOPMENT
3.1.1 COMMON RESPONSIBILITIES
3.1.1.1 Refer to common responsibilities regarding extensions to WINK's products
(See Section 11.1.1.2)
3.1.2 WINK'S RESPONSIBILITIES
3.1.2.1 WINK Studio shall be based on version 2.0
3.1.2.2 WINK shall extend the functionality of the WINK Studio 2.0 according to
the following TAK business requirements. These requirements are presented in the
document entitled "WINK Extensions Requirements Specification."
- Include a GUI that has been Localized for France (refer to Section 12).
- Include a simulator for one TAK device that includes one remote control.
- Allow an author to specify a window of time to deliver responses.
- Allow colors to be semi-transparent.
- The ability to configure an application with a profile criteria such
that the application is not available to the viewer if the profile
criteria is not met.
- The ability to configure an application such that the application
displays differently based on profile criteria.
- Allow applications to be downloaded to the TAK device through a serial
connection.
- Support new script commands which allow applications:
- To write and read data from non-volatile memory
- To pass data to external devices (e.g. through TV Control Task
or modem)
- To access the unique ID of each TAK device.
3.1.2.3 WINK Server Module Studio shall be based on version 1.1 and localized
for France (refer to Section 12).
3.2 MILESTONES
Refer to Section 2.2 for milestones related to the Module Development Timeline
(e.g. MT6) Refer to common responsibilities for specification request (See
Section 11.1.1.2)
ST0: Contract Signed, Timeline frozen, Overall project requirements
defined.
ST1: ST0 + 6 Weeks
STl.D1 WINK to TAK Initial Proposal for Extensions to WINK Studio
ST2: ST1 + 2 Weeks
ST2.D1 TAK to WINK Final Approval for Extensions to WINK Studio
ST3: ST2 + 20 Weeks
Exhibit A-7
30
ST3.D1 WINK to TAK First release (beta) of WINK Studio that includes the
extensions (Required for Milestone MT6)
ST4: ST3 + 6 Weeks (Requires that
MT7 has been
completed)
ST4.D1 WINK to TAK Final release WINK Studio that includes the
extensions (Required for Milestone MT8)
4. BROADCAST PRODUCTS
4.1 DEVELOPMENT
4.1.1 COMMON RESPONSIBILITIES
4.1.1.1 Refer to common responsibilities for extensions to WINK products (See
Section 11.1.1.2).
4.1.2 WINK'S RESPONSIBILITIES
4.1.2.1 WINK will provide an Ad Insertion Server Module, based on version 1.0
that includes an interface to Louth Ad insertion system and supports the
Automation Server Module API (ASMAPI) to allow the integration with additional
ad insertion systems.
4.1.2.2 WINK will provide a WINK Broadcast Server (WBS) which is based on
version 2.0, that includes remote administration with multiple system
administration GUIs on a wide area network (WAN), supports broadcast
applications and data via the European Teletext standard by interfacing to an
appropriate NORPAK Data Insertion Unit that supports an Error correcting code
and includes an external interface for triggering events (SMAPI 2.0).
4.1.2.3 WINK shall extend the functionality of the WINK Broadcast Server
according to the following TAK business requirements. These requirements are
presented in the document entitled "WINK Extensions Requirements Specification."
- Include a User Interface and Log Messages that have been localized to
France (refer to Section 12). TAK shall evaluate if and when error
messages need to be translated.
- Provide a method, per application or resource update, to control the
maximum latency between the time when an application or resource update
is available, either because the viewer changed the channel or that new
data is ready for broadcast, and the time when viewer is able to see the
result of the broadcast.
- Provide the ability to prevent the broadcast of applications which have
not been authenticated.
- Provide the ability to transmit data that can be used to upgrade
software in the TAK module.
4.1.2.4 WINK shall provide a mechanism to TAK in order to xxxx applications as
authenticated.
Exhibit A-8
31
4.1.2.5 WINK shall extend the functionality of the WINK Broadcast Server to
support the transmission of data and applications via European Teletext standard
by interfacing to a second DIU, which is manufactured by a company other than
Norpak. TAK, with WINK's support, shall evaluate which DIU should be supported,
and determine when this support is required. At such a time when the DIU has
been selected, TAK and WINK will commonly agree on an implementation schedule
for this extension.
4.2 MILESTONES
Refer to Section 2.2 for milestone in the Module Development Timeline (e.g.
MT6).
BT0: Contract Signed, Timeline frozen, Overall project requirements
defined.
BT1: BT0 + 6 weeks
BTl.D1 WINK to TAK Initial Proposal for the Extensions to WINK
Broadcast Server
BT2: BT1 + 2 weeks
BT2.D1 WINK to TAK Final Approval for Extensions to WINK Broadcast
Server
BT3: BT2 + 16 weeks
BT3.D1 WINK to TAK Preliminary Release of WBS which includes support
for an interface to a Norpak DIU which support the
transmission of WST. (Required for MT5)
BT4: BT3 + 4 weeks
BT4.D1 WINK to TAK First release (beta) of WBS that includes the
extensions (Required for Milestone MT6)
BT5: BT4 + 4 weeks
BT5.D1 WINK to TAK Final release of WBS that includes the extensions
(Required for Milestone MT7)
5. ON-LINE SERVER
Refer to Section 2.2 for milestone in the Module Development Timeline (e.g.
MT6).
5.1.1 TAK'S RESPONSIBILITIES
5.1.1.1 TAK shall build its own on-line server. This on-line server will be used
to provide real-time data and application updates to the WINK Engine, based on a
protocol to be jointly agreed upon by WINK and TAK. TAK owns exclusively all
intellectual property rights, title and interest in and to its on-line server.
5.1.1.2 TAK shall be responsible for the development of the TAK on-line server.
Exhibit A-9
32
5.1.1.3 TAK shall drive the specification of the protocol between TAK on-line
server and the WINK Engine.
5.1.1.4 TAK shall propose a plan that allows WINK to test the WINK Engine return
path, no later than the MT4 milestone. After WINK's approval of the plan, TAK
will provide WINK with a method to test the WINK Engine return path on or before
the MT5 milestone.
5.1.1.5 TAK shall propose a plan that provides a means for WINK to perform QA
testing, at WINK's premises, of the online services and responses, no later than
the six weeks before the OT5 milestone. After WINK's approval of the plan, TAK
will provide WINK this means on or before the OT5 milestone.
5.1.2 WINK'S RESPONSIBILITIES
5.1.2.1 WINK shall support TAK in specifying the protocol of the TAK on-line
server. This protocol shall be supported by the WINK Engine.
5.1.2.2 WINK shall review the plans for testing the WINK Engine's Return Path
and for a means to provide QA testing, at WINK's premises, of the on-line
services and responses. WINK has the responsibility to reach a common agreement
with TAK on these items, no later than 4 weeks prior their respective delivery
dates.
5.2 MILESTONES
OT0: Contract Signed, Timeline frozen, Overall project requirements
defined
OT1: OT0 + 8 weeks
OTl.D1 TAK to WINK Final Specification for Interface between TAK On-
Line Server and WINK Engine
OT2: OT1 + 10 weeks
OT2.D1 TAK to WINK TAK provides a means to test the On-Line
Server I/F over a TCP/IP connection
other than the modem (Required for MT4)
OT3: OT2 + 6 weeks
OT3.D1 TAK to WINK TAK provides a means to test the On-Line Server I/F
over a TCP/IP/PPP over the modem (Required for
MT5)
OT4: OT3 + 4 weeks
OT4.D1 TAK to WINK TAK provides a means to test the On-Line Server I/F
for QA testing. (Required for MT6)
OT5: Q1, 1999
Exhibit A-10
33
OT5.D1 TAK to WINK TAK provides a means to perform QA testing at
WINK's premises for on-line services and responses
6. ACCEPTANCE PROCEDURES
6.1 INTRODUCTION
6.1.1.1 The following acceptance procedures shall be applied as the core for all
acceptance tests, including partial acceptances and acceptances of final
releases.
6.1.1.2 "Partial acceptance" concerns intermediate deliverables and includes, as
necessary, TAK's deliverables to WINK (TAKHW1, XXXXX0, XXXXX0, TAKSW3, TAKHW2
and TAKSW4), intermediate WINK's deliverables to TAK (PROTO1, PROT02, PROT03 and
PROT04) and first release of WINK's deliverables (ST3.D1 and BT4.D1).
6.1.1.3 "Acceptance of final release" covers every final release of WINK's
deliverables, i.e. the 'FINAL' WINK Engine ported on the TAK module (MT8.D1),
the WINK Studio that incorporates all TAK's extensions (ST4.D1), the Ad
Insertion module and the WINK Broadcast Server that incorporates all TAK's
extensions (BT5.D1). For "Acceptance of final release," the core acceptance
procedure described below (see section 6.2: Partial Acceptance) will be wrapped
in a more formal framework as described in Section 6.3.
6.1.1.4 Following the acceptance of the final releases of WINK's deliverables
(see Section 6.1.1.3), a system integration test shall be carried out as
specified in Section 7 and will conclude with "system final acceptance".
6.1.1.5 As part of the general project management process, WINK and TAK may
agree to modify the Acceptance Procedure Process, as necessary.
6.2 PARTIAL ACCEPTANCE
6.2.1 TAK'S DELIVERABLES
6.2.1.1 TAK shall perform development, integration and test of the software and
hardware (TAKSWxx and TAKHWxx) under its responsibility at its development
facilities.
6.2.1.2 TAK shall provide WINK with an acceptance plan which includes an
acceptance criteria for its software and hardware deliverables and defines the
necessary test environments and test procedures.
6.2.1.3 WINK shall review the TAK acceptance criteria, test procedures and test
environments submitted by TAK for TAK deliverables and has the responsibility to
reach a common agreement
Exhibit A-11
34
with TAK on these items, no later than 4 weeks prior to the beginning of the
related acceptance procedure.
6.2.1.4 After common written approval of the acceptance plan, acceptance tests
of TAK deliverables shall be executed by TAK at TAK premises under the direction
of WINK. If commonly agreed to in writing by both parties, the site of testing
can be moved, in order to make the development process more convenient.
6.2.1.5 The results of the acceptance tests will be jointly reviewed by TAK and
WINK, and a commonly agreed written plan shall be set up to specify any
corrective actions that need to be undertaken and to track their implementation.
6.2.2 WINK'S DELIVERABLES
6.2.2.1 WINK shall perform development, integration and test of the software
under its responsibility at its development facilities.
6.2.2.2 WINK shall provide TAK with an acceptance plan which includes an
acceptance criteria for its software deliverables and defines the necessary test
environment and test procedures.
6.2.2.3 TAK shall review the acceptance criteria, test procedures and test
environments submitted by WINK for WINK deliverables, and has the responsibility
to reach a common agreement with WINK on these items, no later than 4 weeks
prior to the beginning of the related acceptance procedure.
6.2.2.4 After common written approval of the acceptance plan, acceptance tests
of WINK deliverables shall be executed by WINK at WINK premises under the
direction of TAK. If commonly agreed to in writing by both parties, the site of
testing can be moved, in order to make the development process more convenient.
6.2.2.5 The results of the testing will be jointly reviewed by TAK and WINK, and
a commonly agreed written plan shall be set up to specify any corrective actions
that need to be undertaken and to track their implementation.
6.3 ACCEPTANCE OF FINAL RELEASES
6.3.1.1 WINK shall provide and execute acceptance procedures of the final
release of each of the WINK software deliverable, as described in Section 6.2.2.
6.3.1.2 Within one week following the successful execution of the acceptance of
final release test procedures, WINK shall deliver to TAK the final release of
the related deliverable and a corresponding certificate of completion letter.
Exhibit A-12
35
6.3.1.3 Within two (2) weeks following the receipt of the certificate of
completion of each final release test procedure, TAK shall deliver either 1) a
certificate of acceptance to WINK or 2) a list of issues resulting from any
verification testing by TAK. Should there be any issues, TAK and WINK shall
commonly define a corrective action plan to resolve each issue. TAK will track
the progress of each corrective action plan. As necessary, WINK shall update its
deliverables and/or documentation as agreed upon in the corrective action plan.
7. SYSTEM INTEGRATION AND SYSTEM FINAL ACCEPTANCE
7.1 INTRODUCTION
7.1.1.1 "System Integration" is the process of integrating and testing the final
versions of the Module, Studio, Broadcast Server and On-Line Server as a
complete system, and should involve, as necessary to simulate the environment in
which the system will be deployed, hundred(s) of TAK's modules. System
Integration will conclude with the completion of the System final acceptance
procedure.
7.1.1.2 TAK anticipates that System Integration may be completed in Q1, 1999.
7.1.1.3 The final acceptance procedure applies to System Integration and is
described in Section 6.10 of the Agreement.
7.1.2 TAK'S RESPONSIBILITIES
7.1.2.1 TAK shall be responsible, with WINK's support, for the overall system
integration. The overall system integration will take place at TAK premises.
7.1.2.2 TAK shall define a system integration procedure with WINK's support, no
later than 6 weeks prior to the beginning of system integration.
7.1.3 WINK'S RESPONSIBILITIES
7.1.3.1 WINK shall support TAK for the overall system test and integration, and
for final resolution concerning WINK deliverables, as commonly agreed upon.
7.1.3.2 Upon TAK's request, WINK shall have one person available at TAK's
premises to support TAK in preparation for, and execution of the system
integration.
8. THIRD PARTY VENDORS
8.1 TAK'S RESPONSIBILITIES
Exhibit A-13
36
8.1.1.1 TAK shall be responsible for all issues regarding any third party
suppliers (e.g. ISI) related to the development of TAK deliverables.
8.2 WINK'S RESPONSIBILITIES
8.2.1.1 WINK shall be responsible for all issues regarding any third party
suppliers related to the development of WINK deliverables.
8.2.1.2 WINK shall be responsible for the relationship with Norpak to develop
any enhancements required for TAK's deployment of Norpak products.
9. ENGINEERING CHANGE CONTROL
9.1 COMMON RESPONSIBILITIES
9.1.1.1 A "Change Control" common procedure is needed to minimize risk of
endangering project deadlines during the development phase. This procedure will
rely on a "Change Control Board" gathering relevant representatives of TAK and
WINK (Technical, Project or Management). Its principle will be as follows:
9.1.1.2 Specifications will be developed, assigned a version number and approved
as indicated in Section 11.1.1.2. Documents approved in this process will become
the "Change Control Reference."
9.1.1.3 If changes to a specification are required after its has been approved,
a "Change Request" will be required. A Change Request is defined as a written
description of changes that the requester proposes to make to the Change Control
Reference.
9.1.1.4 The Change Request shall be documented by requester.
9.1.1.5 The Change Request shall be communicated to the Change Control Board.
The Change Control Board shall agree on a plan of action to evaluate the request
and track the evaluation process.
9.1.1.6 At the end of the evaluation process, the Change Control Board decides
either to accept, accept partially, delay or cancel the Change Request. If the
Change Request is accepted or partially accepted, the Change Control Reference
will be updated accordingly.
9.1.1.7 If a Change Request is accepted or partially accepted, an implementation
plan is drafted and approved by the Project Representatives. The progress of
this implementation will be tracked as part of the general project management
process.
9.1.1.8 TAK and WINK shall agree on any additional details regarding to the
implementation of this common procedure no later than the MT2 milestone.
Exhibit A-14
37
9.1.1.9 As part of the general project management process, WINK and TAK may
agree to modify the Change Control Process, as necessary.
9.2 TAK'S RESPONSIBILITIES
9.2.1.1 TAK shall appoint a person, who is authorized to handle Change Requests
for TAK, to represent TAK as a member of the Change Control Board.
9.2.1.2 TAK shall present to the Change Control Board at least once per month
reports of the status of the current Change Requests concerning the TAK
deliverables.
9.3 WINK'S RESPONSIBILITIES
9.3.1.1 WINK shall appoint a person, who is authorized to handle Change Requests
for WINK, to represent WINK as a member of the Change Control Board.
9.3.1.2 WINK shall present to the Change Control Board at least once per month
reports of the status of the current Change Requests concerning the WINK
deliverables.
10. PROJECT MANAGEMENT
10.1 COMMON RESPONSIBILITIES
10.1.1.1 TAK and WINK shall work together to develop an effective project
management infrastructure, shall designate points of contact for project
management and technical issues, and shall hold meetings on a basis as needed to
ensure successful completion of the project.
10.1.1.2 The project team shall consist of all persons assigned as points of
contact for either project management or technical issues. The project team is
responsible for ensuring that all of the items related to the project are
executed.
10.1.1.3 TAK and WINK shall agree on weekly project status reporting, to review
the schedule, to address issues and to recognize major achievements.
10.1.1.4 TAK and WINK shall agree on regular (typically weekly) phone conference
meetings to address technical and project management issues.
10.1.1.5 TAK and WINK shall agree on monthly project status reporting. These
reports shall summarize and consolidate the corresponding weekly reports and
include actions, change, bug, etc.
tracking.
10.1.1.6 TAK and WINK shall agree to meet face-to-face, as necessary, to
complete technical and project management activities that are not efficiently
handled by other means of communication.
Exhibit A-15
38
It is anticipated that this will occur approximately once per month, but will be
scheduled based on the project's needs.
10.1.1.7 TAK and WINK shall agree on a common procedure to track bugs. This
procedure shall rely on a "Bug Review Committee," in charge of maintaining the
list of open bugs (including description and priority), of reviewing the
priority of bug correction, of setting up action plans, of tracking corrective
actions, of updating the bug list, and shall be established before the MT3
milestone.
10.2 TAK'S RESPONSIBILITIES
10.2.1.1 TAK shall be responsible for the consolidation of project status
reports (TAK and WINK, monthly and weekly).
10.2.1.2 TAK shall prepare weekly and monthly status reports concerning its
deliverables.
10.2.1.3 TAK shall define an escalation process to handle issues which cannot be
resolved by the project team. This process will be created and communicated to
WINK before the MT2 milestone.
10.2.1.4 TAK shall appoint a representative to the Bug Review Committee.
10.3 WINK'S RESPONSIBILITIES
10.3.1.1 WINK shall prepare weekly and monthly status reports concerning its
deliverables.
10.3.1.2 WINK shall define an escalation process to handle issues which cannot
be resolved by the project team. This process will be created and communicated
to TAK before the MT2 milestone.
10.3.1.3 WINK shall appoint a representative to the Bug Review Committee.
11. DOCUMENTATION
11.1.1.1 As required by TAK for the completion of this development, WINK shall
provide documentation about its standard products including:
- Product Descriptions
- Functional Specifications
- End User Documentation
- Protocol Specifications
11.1.1.2 Extensions to WINK products required by TAK will be processed as
follow:
Exhibit A-16
39
- TAK shall specify requirements for extensions of the WINK
products according to TAK business requirements.
- WINK shall propose extensions to TAK to meet TAK requirements.
- TAK shall review, comment and/or approve WINK extensions.
- As necessary, WINK shall incorporate TAK's comments, and
re-submit the extensions for review, comment and approval. If
the extensions are approved, WINK shall implement the approved
extensions.
11.1.1.3 During the Agreement, TAK and WINK will jointly develop, review and
approve specifications required by one or both parties to complete their
respective developments. These specification include:
- Requirement Specifications
- Architecture Specifications
- Functional Specifications
- API Specifications for interfaces between TAK's and WINK's
respective software
- Test Plan Specification (including Test Cases)
- Acceptance Criteria Specifications
11.1.1.4 As part of the general project management process, TAK and WINK will
jointly identify which specifications, along with their required content, need
to be created and maintained.
11.1.1.5 TAK and WINK shall agree on a process for creating, maintaining,
reviewing and approving documents by MTI.
11.1.1.6 WINK and TAK will agree, by Milestone MT1, on an initial list of
specifications and corresponding dates by which each specification will be
completed. As part of the general project management process, this list will be
updated as required.
12. LOCALIZATION
12.1 TAK'S RESPONSIBILITIES
12.1.1.1 TAK will support WINK by translating user interface text into French,
and by verifying that the interfaces of the localized products are correct.
12.1.1.2 TAK shall define the list of end user documentation to be translated
into French. TAK shall determine, with WINK's support, how to translate any end
user documentation, if any.
12.2 WINK'S RESPONSIBILITIES
12.2.1.1 WINK will localize its products' user interfaces for France by
incorporating translated text and adjusting the user interfaces to accommodate
the translation under the direction of TAK.
Exhibit A-17
40
12.2.1.2 WINK shall provide an electronic version of all end user documentation,
in English. WINK will define, with TAK's support, the format of this
documentation no later than Milestone MT3.
Exhibit A-18
41
EXHIBIT B
NON RECURRING ENGINEERING FEE SCHEDULE
The integration fee payment shall be made in five installments:
- A first installment of 20% of the total estimated maximum NRE fees shall be
due and payable upon the delivery by WINK to TAK of WINK's system documentation
for current products as they exist today.
- An installment of 20% of the total estimated maximum NRE fees due and payable
upon Wink delivering to TAK a master diskette or other digital media ("the
Master Media") containing the Wink Engine and associated documentation for use
by TAK and which has successfully completed the acceptance criteria at the end
of MT8 milestone (Exhibit A).
- An installment of 20% of the total estimated maximum NRE fees due and payable
upon Wink delivering to TAK a master diskette or other digital media ("the
Master Media") containing the Wink Studio and associated documentation for use
by TAK and which has successfully completed the acceptance criteria at the end
of ST4 milestone (Exhibit A).
- An installment of 20% of the total estimated maximum NRE fees due and payable
upon Wink delivering to TAK a master diskette or other digital media ("the
Master Media") containing the Wink Broadcast Server and associated documentation
for use by TAK and which has successfully completed the acceptance criteria at
the end of BT5 milestone (Exhibit A).
- A final installment of 20% of the total estimated maximum NRE fees due and
payable by TAK to Wink upon acceptance by TAK of the System Integration as
defined in Exhibit A.
Exhibit B-1
42
PROJECT COSTS
WINK ENGINE SOFTWARE DEVELOPMENT
DELIVERABLE: Refer to Paragraph E-1 of Letter of Intent
ENGINE WORK ITEMS TEAM # WEEKS TOTAL
----------------- ---- ------- -----
Tools Preparation, Troubleshooting Development 2
Learn New Operating System Development 2
Detailed Plan Preparation Development 2
Engine Port Coding Development 24
Engine/WBS Driver Coding Development 3
Engine/Test Online Server Driver Coding Development 3
Test Plan Testing 1
Test Cases Testing 2
Unit Testing Testing 4
Integration Testing Testing 5
-- WINK Engine
-- WINK Broadcast Server (WBS)
-- WINK Test Online Server
TOTAL: [ * ]
(arrow) [ * ]
WINK SERVER SOFTWARE DEVELOPMENT
DELIVERABLE: Refer to Paragraph E-5 of the Letter of Intent
SERVER WORK ITEMS TEAM # WEEKS TOTAL
----------------- ---- ------- -----
Modify WBS/Create new DIU interface Development 6
Test Plan Testing 1
Test Cases Testing 2
WBS Unit Testing 4
Data Inserter Unit Testing 2
System Integration (see Engine Testing) Testing 0
TOTAL: [ * ]
(arrow) [ * ]
Exhibit B-2
43
Project Costs
(continued)
WINK STUDIO SOFTWARE DEVELOPMENT
DELIVERABLE: Refer to Paragraph E-2 of the Letter of Intent
STUDIO WORK ITEMS TEAM # WEEKS TOTAL
----------------- ---- ------- -----
New Simulator Development 2
New Hints/Scripts Development 2
256k Color Capability Development 3
Test Plan Testing 1
Test Cases Testing 1
Studio Testing 2
System Integration (See Engine Testing) Testing 0
TOTAL: [ * ]
(arrow) [ * ]
GRAND TOTAL
PROJECT COST: [ * ]
ITEMS NOT COVERED
Travel -- Travel expenses to France to be paid by TAK. Advance written
approval required.
Equipment -- Hardware to be provided by TAK for WINK and TAK development labs
Tools -- pSOS and development tools licenses to be paid for by TAK
Exhibit B-3
44
EXHIBIT C
DOCUMENTATION AND ACCEPTANCE
(Included in Exhibit A)
Exhibit C
