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EXHIBIT 10.27
WINK ENGINE LICENSE AGREEMENT
THIS AGREEMENT (the "Agreement") is executed as of this 30 day of
September 1997 ("Execution Date") to memorialize the parties' relationship and
its terms are effective Oct 31, 1994, (the "Effective Date"), between Wink
Communications, Inc., a California corporation with offices at 0000 Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 ("Wink") and Toshiba Corporation, with
offices at 1-1, Shibaura 1-Chome, Xxxxxx-xx, Xxxxx 000-00, Xxxxx ("Toshiba").
BACKGROUND
A. Wink is a software developer and has developed its interactive
television system of technology and related products, services, processes and
materials (the "Wink ITV System"), which includes a software protocol for
delivering interactive applications synchronized with or independent of
television programs and advertisements. Also included without limitation in the
Wink ITV System are an authoring tool, server software and the Wink Engine TM
that decodes the protocol and displays the interactive applications overlaid on
a television screen.
B. Wink and Toshiba desire that Wink develop and grant to Toshiba the
right to use and embed certain Wink products in Toshiba products identified by
the parties from time to time. Wink and Toshiba are executing a series of
agreements to accomplish this desired goal: (i) this Agreement, (ii) Wink Online
Server for InterText License Agreement, and (iii) Wink Application Server
License Agreement (together, the "Wink/Toshiba Agreements").
C. The Wink Engine is among the Wink products that Toshiba desires that
Wink modify and grant to Toshiba the right to use and embed in Toshiba products.
The parties desire that Wink customize and grant Toshiba the right to use Wink's
software engine for inclusion in certain Toshiba components for distribution in
television and video products.
AGREEMENT
1. DEFINITIONS
1.1 "Wink Engine" shall mean Wink's software engine as it exists
without customization pursuant to this Agreement, in machine
executable, object code format.
1.2 "Licensed Engine Product" shall mean the Wink Engine and other
Wink-owned files that are provided with the Wink Engine, all as
customized by Wink for the TC90A01F decoder chip and other chips
that are similar enough to the TC90A01F that no change must be
made to the Wink Engine for it to run on the similar device
("TC9OA01 and Like Chips"), version 1.0, in object code format,
and any Updates that may be provided by Wink to Toshiba from
time to time.
1.3 "Toshiba Component" shall mean either (a) the InterText decoder
board containing the TC90A01F and like Chips, ROM, RAM and a
modem for insertion into a television, VCR, broadcast set-top
device or similar audio visual device, or (b) the ROM (read-only
memory) which is running on the TC90A01F and like Chips for
insertion into the InterText decoder board described in (a).
1.4 "Combined Engine Component" shall mean the Toshiba Component
with the Licensed Engine Product incorporated.
1.5 "Combined Engine Product" shall mean a television, VCR,
television set-top device or similar audio visual device that
incorporates the Combined Engine Component or other devices
which the parties shall mutually agree upon in writing.
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1.6 "Deliverables" shall mean each deliverable identified in the
Development Plan.
1.7 "Development Activities" shall mean the development work to be
performed by both parties pursuant to this Agreement and the
Development Plan
1.8 "Development Plan" shall mean the plan for completion of the
development activities including the Specifications, each
party's respective development obligations, milestones, a
schedule, Deliverables, and other relevant items all as mutually
agreed upon and as set forth in Exhibit A attached hereto for
the delivery of the Licensed Engine Product and, if specified by
the parties in a mutually agreed amendment or addendum to
Exhibit A, for Updates.
1.9 "Updates" shall mean updates containing error corrections or
minor enhancements to the Licensed Engine Product created by or
for Wink after the Effective Date and designated by a change in
version number to the right of the decimal point. Updates do not
include major enhancements to the Licensed Engine Product
designated by changes in the version number to the left of the
decimal point.
1.10 "Specifications" shall mean the technical and other
specifications for the Licensed Engine Product as set forth in
the Development Plan.
1.11 "Intellectual Property Rights" shall mean all current and future
worldwide patents and other patent rights, copyrights, mask work
rights, trade secrets, know-how, technical information, and all
other intellectual property rights, including without limitation
all applications and registrations with respect thereto.
2 DEVELOPMENT
2.1 Development Efforts. Each party will use reasonable commercial
efforts to perform its Development Activities in accordance with
the Development Plan. In connection therewith, each party shall
(i) cooperate with the other party to produce the
Specifications, and (ii) cooperate in providing the other party
with additional materials and information, as mutually agreed.
Toshiba shall provide the equipment and other materials
identified on Exhibit B ("Equipment") for use by Wink in the
development and to perform Wink's support obligations. Toshiba
shall remain the owner of such Equipment. Wink may, upon written
approval by Toshiba in each instance, which approval shall not
be unreasonably withheld, alter the Specifications commensurate
with good faith efforts to finalize and refine the Deliverables
in accordance with Toshiba's needs and objectives for the
Licensed Engine Product. The parties may agree on additional
Development Activities by amending Exhibit A. All development
shall be at each party's sole expense, except as set forth in
Section 4 (entitled "Royalties") or Section 10 (entitled
"Training, Support and Maintenance") or Exhibit E (entitled
"Support") below.
2.2 Delivery and Acceptance. In the event either party is late in
the performance of its obligations with respect to the
Development Plan, the other party's obligations as to those
items shall be delayed by a period necessary as a result of the
delay. The parties shall mutually agree on testing criteria and
evaluation procedures for the Deliverables which shall be set
forth in the Development Plan. Upon delivery to Toshiba of each
Deliverable, Toshiba shall have thirty (30) days to test such
Deliverable, unless a longer period is specifically agreed to by
the parties in writing, in accordance with the mutually agreed
criteria and procedures, for conformance to the applicable
Specifications and to accept such Deliverable or deliver to Wink
a written Statement of Defects to be corrected. Failure to
provide a Statement of Defects shall be deemed acceptance. If
Toshiba provides a written Statement of Defects, Wink shall use
reasonable commercial efforts to correct such defects as soon as
practicable and resubmit the Deliverable to Toshiba. These
procedures shall be repeated until Toshiba accepts the
Deliverable or the parties mutually agree to terminate this
Schedule.
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2.3 Transfer. Upon Toshiba's acceptance of the final Deliverable
("Final Acceptance"), Wink shall deliver to Toshiba a master
diskette or other digital storage media containing the Licensed
Engine Product for use by Toshiba in accordance with the terms
of this Agreement.
2.4 Other Projects. Toshiba acknowledges that Wink is in the
business of customizing the Wink Engine for other third parties
and nothing in this Agreement restricts Wink's rights to provide
the Licensed Engine Product or other versions of the Wink Engine
to any other party.
2.5 Further Development. Wink agrees to waive the Non-Recurring
Engineering expense ("NREs") fees associated with the
development of version 1.X of the Licensed Engine Product. Any
additional development, localization or testing of the Licensed
Engine Product after acceptance under Section 2.2 including
feature enhancements or creation of a new version will be
subject to mutual agreement. If the parties agree upon terms and
conditions for such development, the parties will attach an
addendum to this Agreement setting forth all such turns and
conditions or will amend this Agreement as necessary to account
for such development.
3 LICENSE
3.1 Licensed Engine Product. Subject to the terms and conditions of
this Agreement, Wink grants to Toshiba a worldwide,
non-exclusive, non-transferable, right and license, under all of
Wink's Intellectual Property Rights in and to the Licensed
Engine Product, to (a) use, reproduce and have reproduced the
Licensed Engine Product, solely (i) for the purpose of
incorporating the Licensed Engine Product into a Toshiba
Component to create a Combined Engine Component, and (ii) as
necessary in the course of distribution and support of a
Combined Engine Component as permitted hereunder; (b) distribute
the Combined Engine Component, directly or indirectly through
subdistributors in accordance with Section 3.4 below, to OEM's
for incorporation and use in a Combined Engine Product; and (c)
incorporate the Combined Engine Component into a Toshiba product
and distribute the Combined Engine Product. Toshiba may
distribute the Licensed Engine Product on a standalone basis
solely for incorporation into a previously transferred Toshiba
Component, provided that such distribution shall be subject to
procedures reasonably acceptable to Wink to monitor and account
for such distribution, including encryption procedures where
distributed electronically or by broadcast or other
transmission. The parties shall mutually agree in writing on
such procedures prior to any such distribution and Toshiba shall
ensure that its subdistributors comply with all such procedures.
Toshiba shall have no right to sublicense the foregoing rights
except to the extent a sublicense may be deemed to have been
granted in connection with the exercise by Toshiba of its rights
to engage submanufacturers and subdistributors as described
herein. Except as expressly provided in this Agreement, Wink
reserves all rights and ownership to the Licensed Engine
Product.
3.1.1 Toshiba Subsidiaries. The grant in Section 3.1 shall
also apply to any direct or indirect subsidiary of
Toshiba that is majority-owned and controlled by Toshiba
and only for so long as it remains majority-owned and
controlled by Toshiba and that is listed in Exhibit C
provided that Toshiba, prior to the exercise of any such
rights by a subsidiary, obtains in writing such
subsidiary's agreement to be bound by all the applicable
restrictions and obligations under this Agreement. Upon
request of Wink, Toshiba shall promptly provide Wink a
copy of each such written agreement. Toshiba hereby
guarantees the performance of such obligations and
restrictions by each subsidiary exercising any rights
under Section 3.1 as primary obligor and not merely as
surety. Toshiba shall provide Wink with the name and
contact information for an appropriate manager at each
subsidiary in Exhibit C. Failure to list a subsidiary in
Exhibit C shall have no effect on the obligations of
Toshiba as set forth in this Section 3.1.1.
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3.2 Combined Engine Product. Toshiba agrees, and will obtain the
written agreement of any OEMs to which it or its subdistributors
have distributed Combined Engine Components, to provide Wink
with a written notice describing the Combined Engine Product at
least thirty (30) days prior to the first shipment of such a
Combined Engine Product. The description of the Combined Engine
Product shall include the product type (e.g., color television),
distinguishing characteristics (e.g., 32" double-wide screen),
model # and expected Suggested Retail (List) Price. Toshiba
shall also provide two free sample units of such Combined Engine
Product, as soon as is practicable, but with a target of
providing such units at least thirty (30) days prior to the
first shipment of such a Combined Engine Product. With respect
to shipments made before the Execution Date, Toshiba will
provide such units within 30 days from the Execution Date. Wink
shall have no obligation to return such sample units.
3.3 Have Reproduced. Toshiba shall have the right to provide the
Licensed Engine Product to in third party manufactures of
Combined Engine Components or Combined Engine Products (each a
"Submanufacturer"), provided that each Submanufacturer shall
agree in a signed writing to be bound by the applicable
restrictions on Toshiba set forth in this Agreement with respect
to the Licensed Engine Product, which include but is not limited
to the agreement to use and copy the Licensed Engine Product
solely to create Combined Engine Components or Combined Engine
Products only for Toshiba and to keep the Licensed Engine
Product confidential according to the applicable terms of this
Agreement. Toshiba shall provide the name of such
Submanufacturer to Wink promptly upon contracting with such
Submanufacturer regarding services concerning the Licensed
Engine Product. Upon request of Wink, Toshiba shall promptly
provide to Wink a copy of such signed writing with each
Submanufacturer, and Toshiba shall ensure that each
Submanufacturer abides by such restrictions. Toshiba agrees to
indemnify, defend and hold Wink harmless from and against any
loss, cost, liability or expense (including Wink's reasonable
attorneys' fees) arising out of or related to a breach of the
foregoing provisions by Submanufacturers. Toshiba shall promptly
notify Wink if Toshiba knows or believes that a Submanufacturer
has breached the provisions of this Section.
3.4 Subdistributors. Toshiba may exercise its distribution rights
hereunder through the use of subdistributors; provided, that
each subdistributor must agree in a signed writing, prior to
obtaining the Licensed Engine Product or Combined Engine
Components or Combined Engine Products from Toshiba, to be bound
by all applicable restrictions on Toshiba set forth in this
Agreement with respect to the Licensed Engine Product. Toshiba
shall provide the name of such subdistributor to Wink promptly
upon contracting with such subdistributor regarding services
concerning the Licensed Engine Product. Upon request of Wink,
Toshiba shall promptly provide to Wink a copy of such signed
writing with each subdistributor, and Toshiba shall ensure that
each subdistributor abides by such restrictions. Toshiba agrees
to indemnify, defend and hold Wink harmless from and against any
loss, cost, liability or expense (including Wink's reasonable
attorneys' fees) arising out of or related to a breach of the
foregoing provisions by subdistributors. Toshiba shall promptly
notify Wink if Toshiba knows or believes that a subdistributor
has breached the provisions of this section.
4 PAYMENTS
4.1 Per-Unit Royalty. In consideration for the rights and licenses
granted to it under Section 3 above, for each unit of a Combined
Engine Component which Toshiba distributes either as a Combined
Engine Component or as part of a Combined Engine Product,
Toshiba shall pay Wink the following per-unit royalty: [ * ] .
Such royalty shall accrue upon shipment or other transfer by
Toshiba.
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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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4.2 Advance Royalties. Wink agrees to waive the royalty advances it
customarily requires of its licensees and no royalty advance
shall be due from Toshiba.
4.3 Distribution of Updates. No royalty will be payable for
Toshiba's distribution of Updates alone.
4.4 Promotional Units. Toshiba may distribute a reasonable number of
Combined Engine Products as promotional or demonstration units,
without incurring a royalty payable to Wink under the provisions
of Section 4.1, provided that such units are distributed by
Toshiba and its subdistributor, if any, free of charge. Toshiba
shall pay Wink the royalty pursuant to Section 4.1 above
whenever Toshiba or its subdistributor imposes any charge on or
related to a Combined Engine Product.
4.5 Payments. Toshiba shall make royalty payments to Wink due under
this Agreement within forty-five (45) days after the end of each
calendar quarter during the term of this Agreement, with the
first payment to occur within sixty (60) days after the
Execution Date. Such payments shall be accompanied by a written
report in a form reasonably acceptable to Wink which details all
of the following with respect to the applicable period: (i) the
number of each type of Combined Engine Product or Combined
Engine Component distributed by Toshiba under this Agreement
including, the identity of each customer for the Combined Engine
Components distributed on an OEM basis, (ii) the number of each
type of Combined Engine Product distributed by geographic
territory, (iii) the royalty due Wink with respect to such
Combined Engine Components or Combined Engine Products accrued
during such period showing the calculation of such amounts, and
(iv) if applicable, the number of Combined Engine Products or
Combined Engine Components distributed by Toshiba or its
subdistributors for which no royalty is due.
4.6 Late payments. Any amount not paid when due under Section 4.5
will be subject to a late charge of 1.5% per month, or the
maximum permitted by law, whichever is greater.
4.7 Currency; Taxes. All payments hereunder shall be in United
States dollars. All payments by Toshiba shall be made free and
clear of, and without reduction for, any and all taxes,
including, without limitation, sales, use, value added,
withholding, or similar taxes, other than taxes which are
imposed by the United States or any political subdivision
thereof based on the net income of Wink. Notwithstanding the
foregoing, Wink agrees that, if any income taxes are imposed by
the Japanese government on we payment to be made under this
Agreement, Toshiba shall withhold such amount of taxes ("Japan
Royalty Income Withholding Tax"), up to a maximum of 10% of such
payments and pay the withheld amount to the Japanese tax
authorities to the extent that Toshiba is legally required to do
so. Excluding the Japan Royalty Income Withholding Tax, any such
taxes which are otherwise imposed on payments to Wink shall be
the sole responsibility of Toshiba. Toshiba shall provide Wink
with official receipts issued by the appropriate taxing
authority or such other evidence as is reasonably requested by
Wink to establish that such taxes have been paid.
4.8 Books and Records; Audit. Toshiba agrees to maintain, and to
require that each Submanufacturer and subdistributor who
reproduces or distributes Licensed Engine Products, Combined
Engine Products or Combined Engine Components maintain and
provide to Toshiba, until three (3) years after the termination
or expiration of this Agreement, complete and current books,
records and accounts regarding all copying and distribution
activities pursuant to this Agreement and to document compliance
with the licenses granted. Toshiba agrees to allow an
independent certified public accountant hired by Wink to audit
and examine such books, records and accounts no more than once
each calendar year, during Toshiba's normal business hours, to
verify the accuracy of the reports and payments made to Wink
under this Agreement and this Section and compliance with the
restrictions of this Agreement. In the event such audit
determines that Toshiba has not paid Wink all of the royalties
due Wink, Toshiba agrees to pay, in addition to any damages to
which Wink might be entitled, the amount of such shortfall plus
interest at a rate of one and one-half percent (1.5%) per month
or the
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highest rate allowed by law, whichever is higher. The cost of
such audit shall be borne by Wink, provided that if any such
audit reveals an underpayment to Wink of at least five percent
(5%), Toshiba shall reimburse to Wink all its costs of such
audit.
5 PROPERTY RIGHTS
5.1 Toshiba Property Rights.
5.1.1 Description. Toshiba owns all right, title and interest
in and to those items listed as owned by Toshiba, as set
forth in Section 2 of Exhibit D attached hereto (the
"Toshiba Property"). The list in Section 2 of Exhibit D
includes the national and local icon images ("National
and Local Icon Set") and identifies certain Toshiba
Property as openly licensed (the "Openly Licensed
Items") which Toshiba agrees to license to Wink and
third parties at no cost in an effort to make InterText
a standard. Toshiba permits Wink to provide each of the
Openly Licensed Items to third parties. Wink shall
inform Toshiba of each sublicensee of Openly Licensed
Items.
5.1.2 License Grant. Toshiba hereby grants Wink a
non-exclusive, irrevocable, worldwide, royalty-free
right and license, including the right to sublicense,
under All of Toshiba's Intellectual. Property Rights in
and to the Openly Licensed Items to use, copy, display,
and distribute such items. Toshiba hereby grants to Wink
a non-exclusive, irrevocable, royalty-free, worldwide
right to the National and Local Icon Set, including
future modifications thereto to use, copy, display and
distribute such icons, including but not limited to the
right to distribute such icons as part of the Wink
Studio or other authoring tool which shall include a
sublicense to the use, copying, display and distribution
of such icons. Toshiba shall make the National and Local
Icon Set available for licensing at a reasonable fee to
licensees of the Wink Engine, and Wink will direct
interested licensees to the attention of a person
selected by Toshiba and informed to Wink in writing.
Nothing in this Subsection 5.1.2 shall prevent any party
from creating icons that are similar or identical to the
icons that are included in the Openly Licensed Items and
in the National and Local Icon Set, so long as they are
created without use of the data files comprising those
icons. Except as expressly provided in this Subsection
5.1.2, Toshiba does not grant Wink any right, title or
interest in the Toshiba Property, whether by
implication, estoppel or otherwise. All property rights
with respect to the Toshiba Property not specifically
granted herein are reserved to Toshiba.
5.2 Wink Property Rights.
5.2.1 Description. Except for the Toshiba Property, Wink owns
and shall own all right, title and interest in and to
(a) the Licensed Engine Product and all modifications
and derivatives thereof, (b) all Intellectual Property
Rights relating to the design, manufacture, marketing,
operation or service of the Licensed Engine Product and
the Wink ITV System, (c) all files, code, or technology
that is related to the Wink Engine or the Licensed
Engine Product (collectively, the "Wink Property").
Notwithstanding anything to the contrary in this
Agreement, those items listed as owned by Wink, as set
forth in Section 3 of Exhibit D attached hereto, are
included in Wink Property.
5.2.2 License Grant. Wink hereby grants Toshiba a
non-exclusive, irrevocable, worldwide, royalty-free
right and license, under all of Wink's Intellectual
Property Rights in and to the Wink Property identified
as 103 International Icon Images, as set forth in
Section 3 of Exhibit D attached hereto (the "Wink
Images"), to use, copy, have copied, display,
distribute, and modify the Wink Images in connection
with use of the Licensed Engine
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Product. Except as expressly provided in Section 3 of
this Agreement or this Subsection 5.2.2, Wink does not
grant Toshiba any right, title or interest in the Wink
Property, whether by implication, estoppel or otherwise.
All property rights with respect to the Wink Property
not specifically granted herein are reserved to Wink.
5.3 Assignment. Toshiba hereby assigns to Wink all right, title and
interest, including all Intellectual Property Rights, in and to
all Wink Property developed in whole or part by Toshiba. Wink
hereby assigns to Toshiba all right, title and interest,
including all Intellectual Property Rights, in and to all
Toshiba Property developed in whole or part by Wink. Each party
shall sign any further documentation requested by the other
party to effect such assignment of rights. In the event a party
fails to take such action within a reasonable period, such party
hereby appoints the other party its attorney-in-fact for the
purpose of executing such documents, which appointment shall be
deemed a power coupled with an interest and shall be
irrevocable.
5.4 Correction Of Errors in Property Lists. If Toshiba or Wink has
omitted any item from the appropriate sections of Exhibit D, the
omitting party shall notify the other party of its claim to
ownership of the omitted item. The parties shall agree upon
ownership of such omitted item within thirty (30) days.
5.5 Rights. The parties acknowledge that each party may be or have
been provided with access to source code developed by the other
party for the purpose of speeding the development or support
activities related to this Agreement. Respective of such access
and development, all Intellectual Property Rights shall be as
set forth in this Agreement.
5.6 Notices. Toshiba shall not modify, alter or obscure any
proprietary notices contained on or within the Licensed Engine
Product, and all copies of the Licensed Engine Products
reproduced or distributed by or for Toshiba shall contain
copyright and other proprietary notices in the same manner in
which Wink incorporates such notices in the Licensed Engine
Products and the documentation.
5.7 Limitations. Toshiba shall not modify, prepare derivative works
of, reverse engineer, disassemble, decompile, or otherwise
attempt to obtain access to the source code of the Licensed
Engine Product or any Wink product. To the extent that access to
source code is provided by Wink to Toshiba under Section 5.5,
such access shall not be a violation of this Section 5.7.
6 PRODUCT QUALITY WARRANTY AND WARRANTY DISCLAIMER
6.1 Product Quality Warranty. Wink warrants to Toshiba that for a
period of three (3) months after Final Acceptance of the
Licensed Engine Product and Toshiba-Requested Updates and after
delivery of any other Updates, such Licensed Engine Product or
Updates of any kind will operate under ordinary use in
substantial conformance with the Specifications. Wink does not
warrant that the Licensed Engine Product or Updates of any kind
will be error free or meet all of Toshiba's requirements. (This
Section 6.1 lists separately Licensed Engine Products and the
different kinds of Updates for clarification for purposes only.
Unless otherwise noted, in other sections of this Agreement, the
definition of Licensed Engine Product includes Updates pursuant
to Section 1.2.)
6.2 Items not Covered by Warranty. Wink's warranty shall not extend
to problems in the Licensed Engine Product that result from: (i)
Toshiba's failure to implement any Updates to any Wink product
which are provided by Wink; (ii) changes to the Toshiba
Components, the Toshiba-owned code that works with the Licensed
Engine Product (as listed in Section 2 of Exhibit D), or other
non-Wink products which adversely affect the Licensed Engine
Product; (iii) any alterations of or additions to the Licensed
Engine Product or other Wink products performed by parties other
than Wink; (iv) use
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of the Licensed Engine Product in a manner inconsistent with the
Specifications or in a manner for which it was not intended; (v)
combination of the Licensed Engine Product with other products
not supplied by Wink (unless such products, including but not
limited to Toshiba server products, are specifically identified
in the Specifications as compatible with the Licensed Engine
Product and are tested and confirmed in writing as compatible by
Wink in the configuration and conditions deployed by Toshiba)
which problems do not affect the Licensed Engine Product
standing alone; or (vi) operation of the Licensed Engine Product
outside of environmental specifications; unless, with respect to
items (ii), (iii), (v) and (vi), Wink was given the opportunity
and time to test such products or changes for compatibility and
Wink provided Toshiba written confirmation of compatibility. For
the purposes of Subsection (v) above, the Toshiba servers which
shall be tested for compatibility are those described in Exhibit
B of the Wink Application Server License Agreement and Exhibit B
of the Wink Online Server for InterText License Agreement.
6.3 Exclusive Remedy. Wink's sole obligation and Toshiba's exclusive
remedy under the above warranty shall be for Wink to use
commercially reasonable efforts to bring the Licensed Engine
Product into conformity with Wink's warranty set forth in
Section 6.1 above, at no cost to Toshiba (other than as provided
for in Section 10.1 and 10.2 below); provided, that Wink shall
have no obligation to correct all errors in the Licensed Engine
Product.
6.4 Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, WINK
MAKES AND TOSHIBA RECEIVES NO WARRANTIES WITH RESPECT TO THE
LICENSED ENGINE PRODUCT, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND WINK SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY
OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE.
7 LIMITATION OF LIABILITY
WINK'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE
AMOUNTS RECEIVED FROM TOSHIBA HEREUNDER. IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY NOR SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT THAT, WITH RESPECT TO CLAIMS BY
WINK AGAINST TOSHIBA FOR BREACH OF THE SCOPE OF LICENSES GRANTED IN THIS
AGREEMENT, WINK SHALL BE ENTITLE TO RECOVER LOST PROFITS. THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
8 INDEMNITY
8.1 Obligation. Wink shall defend, or at its option, settle any
claims brought against Toshiba and shall hold Toshiba harmless
from any judgments, damages, costs or expenses incurred by
Toshiba, including reasonable attorney's fees, resulting from
any claim that the Licensed Engine Product infringes the
copyright, trade secret or trademark rights of a third party or
the U.S. patent rights or the corresponding Japanese patent
rights that are identical in scope, where such U.S. or Japanese
patents have been granted prior to the first shipment of a
Combined Engine Component or Combined Engine Product by Toshiba,
provided that Toshiba notifies Wink of such claim promptly in
writing of and gives Wink the exclusive authority to defend or
settle such claim and provided that such patents owned by,
controlled by, or licensed to only parties other than Toshiba or
its subsidiaries. Toshiba shall provide proper and full
information and assistance to settle or defend any such claim.
If the Licensed Engine Product becomes, or if Wink reasonably
believes it may become, the subject of any claim for
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infringement or is adjudicatively determined to infringe then
Wink may, at its option and expense, either (i) procure for
Toshiba the right to sell or use, as appropriate, the Licensed
Engine Product or (ii) replace or modify the Licensed Engine
Product with other suitable and reasonably equivalent software
so that the Licensed Engine Product becomes noninfringing or
(iii) if (i) and (ii) are not commercially practicable, Wink may
terminate this Agreement.
8.2 Limitations. The foregoing obligations shall not apply to (i)
the Licensed Engine Product used in conjunction with other
products if the Licensed Engine Product used alone would not
infringe, (ii) modifications to the Licensed Engine Product made
by any party other than Wink or made according to another
party's specifications if the Licensed Engine Product would not
infringe but for such modifications, (iii) use of any version of
the Licensed Engine Product other than the then-current version
if the claim could have been avoided by use of such version or
(iv) any trademark claims regarding any marking or branding not
applied or approved by Wink.
8.3 Entire Liability a Obligation. THE FOREGOING PROVISIONS OF THIS
SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF WINK TO
TOSHIBA WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS BY THE WINK ENGINE OR THE LICENSED
ENGINE PRODUCT LICENSED TO TOSHIBA BY WINK PURSUANT TO THIS
AGREEMENT.
8.4 Toshiba Indemnification. Except with respect to those matters
for which Wink has agreed to indemnify Toshiba under Sections
8.1-8.3 above, Toshiba agrees to indemnify and hold Wink
harmless from and against any and all claims, actions,
liabilities, and costs, including reasonable attorney's fees,
arising with respect to its use and distribution of the Licensed
Engine Product.
9 MARKETING
9.1 Wink Marks and User Interface. From time to time, Wink shall
provide Toshiba for its use and its subdistributors' use a list
of required and permitted uses of Wink's trademarks and logos
that Wink may adopt, from time to time and include in an
amendment to Exhibit F (the "Wink Marks"), which shall be
amended by Wink subject to agreement by Toshiba, such agreement
not to be unreasonably withheld. With respect to distribution of
the Licensed Engine Product, Wink shall provide artwork for one
of the Wink Marks, which is a Wink logo that is designed for use
on and regarding Combined Engine Products outside Japan ("Wink
Logo") pursuant to Section 9.2. Samples of the Wink Logo are
found in Exhibit F. From time to time, Wink may change the Wink
Logo and Toshiba will begin using the new Wink Logo at its first
convenient opportunity, but no later than ninety (90) days after
Wink notifies Toshiba of the new Wink Logo.
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9.2 Use of Wink Logo.
9.2.1 Use of Wink Logo in Materials. Beginning ninety (90)
days after the Execution Date and during the term of
this Agreement:
(a) If Toshiba or its subdistributors advertise or
promote the functionality of the Licensed Engine
Product outside Japan, Toshiba shall, and shall
require its subdistributors to, use the Wink
Logo in connection with the Licensed Engine
Product as set forth in this Section, subject to
Wink's trademark usage policy then in effect.
All representations of Wink Logos Toshiba
intends to use shall first be submitted to Wink
for approval, which shall not be, unreasonably
withheld.
(b) Toshiba will include in a prominent location the
applicable Wink Logo in any product or marketing
materials that are distributed outside Japan
with or refer to the Combined Engine Component
or Combined Engine Product. It is satisfactory
for the Wink Logo to be subordinate to other
logos, such as the Toshiba logo or InterText or
Television logos, so long as the Wink Logo is
presented distinctly and legibly. To the extent
that Toshiba provides sample user documentation
or other consumer oriented materials to
purchasers of the Combined Engine Component for
distribution outside Japan, such sample user
documentation or other consumer-oriented
materials shall also include the Wink Logo.
Toshiba will also include in the user
documentation, or other materials describing
functionality of the Combined Engine Product for
distribution outside Japan, Wink copyright and
proprietary notices. The content and location of
such notices shall be agreed by the parties. To
the extent that Toshiba provides sample user
documentation or other consumer-oriented
materials to purchasers of the Combined Engine
Component for distribution outside Japan, such
sample user documentation or other
consumer-oriented materials shall also include
Wink copyright and proprietary notices, in the
same manner as presented in Toshiba's own user
documentation or other consumer-oriented
materials.
9.2.2 Use of Wink Logo on Combined Engine Products. In
recognition of the fact that Wink intends to establish
Wink's brand as a consumer-recognized enhancement to
consumer electronics products, Toshiba agrees to affix
by silk-screening or other permanent method the Wink
Logo on Combined Engine Products to be distributed
outside Japan by Toshiba or a subdistributor. The Wink
Logo must be affixed in a prominent location on such
Combined Engine Products and the remote controls for
such products. It is satisfactory for the Wink Logo to
be subordinate to other logos, such as the Toshiba logo,
so long as the Wink Logo is presented distinctly and
legibly. If the nature of the affixing requires changes
to the Wink Logo, Wink and Toshiba shall mutually agree
on such changes.
9.3 No Registration of Wink Marks. Except as expressly set forth in
this Agreement, nothing shall grant to Toshiba or its
subdistributors any right, title or interest in the Wink Marks.
At no time during the term of this Agreement shall Toshiba
register, attempt to register or cause the registration of any
of the Wink Marks other than in Wink's name and at Wink's
specific written request, except in the event Toshiba adopts,
uses or acquires a trademark, xxxx or trade name substantially
similar to a Wink Xxxx xxxxx to Wink's adoption, use or
acquisition of such Xxxx Xxxx. Except to the extent such acts
may not be prohibited by applicable law, at no time during the
term of this Agreement shall Toshiba or its subdistributors
challenge or assist others to challenge the Wink Marks or the
registration thereof.
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9.4 Press Releases. The parties intend to cooperate and participate
in public relations programs to promote the Licensed Engine
Products and the relationship between the parties. Appropriate
personnel from each party shall participate in such public
relations program. The parties shall cooperate with respect to
and mutually approve (not to be unreasonably withheld or
delayed) all press releases issued by either party with respect
to this Agreement or the parties' relationship. Such approval is
intended to protect the timing of disclosure of the availability
of the Licensed Engine Products and of the existence of the
parties' relationship, as well as to ensure proper references,
accurate information and correct proprietary notices and
information. The contents of each press release shall be agreed
upon between the parties from time to time. Unless otherwise
agreed in writing by the parties, any press release issued
outside Japan pursuant to this Section shall contain: (i) in the
body of the release, the name and location of both parties; (ii)
in a footnote at the end of the release, both parties'
proprietary notices with respect to technology discussed in the
body of the release. Whenever feasible, the press release shall
also include the logo of each party.
9.5 Disclosures of Terms and Relationship. Each party agrees not to
disclose the terms of this Agreement to any third party without
the other's written consent in its sole discretion, except to
such party's accountants, attorneys and other professional
advisors, or as required by securities or other applicable laws.
9.6 Units for Marketing and Employee Use. Upon written request from
Wink, Toshiba agrees to sell to Wink, at Toshiba's wholesale
price, a maximum of two-hundred and fifty (250) units of each
Combined Engine Product and a maximum of ten (10) Combined
Engine Components for use by Wink in its marketing programs or
for resale or gift to Wink employees or consultants
("Marketing/Employee Units"). Marketing/Employee Units shall be
shipped at Wink's cost.
10 TRAINING, SUPPORT AND MAINTENANCE
10.1 Updates. Wink, in its sole discretion shall make Updates
available to Toshiba from time to time for use and distribution
consistent with this Agreement. The Toshiba Requested Updates,
as defined in Exhibit E. shall be accepted by Toshiba in
accordance with the acceptance procedure provided in Section
2.2. Wink is not responsible for the distribution of Updates to
Toshiba's subdistributors, Submanufacturers, or end-users.
Unless an end-user specifically refuses to accept a given
Update, Toshiba promptly shall make Updates available to all
subdistributors and end-users, if applicable. Toshiba shall
implement each Update to new production in its own facilities or
at Submanufacturers' facilities promptly after receipt of such
Update from Wink, but no later than forty-five (45) days after
receipt.
10.2 Support. Toshiba shall be responsible for providing all support
to its subdistributors, subsidiaries, and end user customers.
Toshiba shall also be responsible for all testing of Combined
Engine Components and Combined Engine Products containing
accepted Licensed Engine Products with new versions of hardware
and software provided by parties other than Wink. Wink shall
make available to Toshiba support services as set forth in
Exhibit E.
10.3 Equipment. The parties intend that Wink have an environment in
which to recreate field situations, to allow Wink to replicate
problems which may occur in the field and to test solutions for
such problems. In order to facilitate Wink's performance of the
support activities contemplated herein, Wink shall retain the
Equipment provided pursuant to Section 2.1 which is reasonably
necessary to functionally replicate a Combined Engine Component
and Combined Engine Product. Upon expiration or termination of
this Agreement, Wink shall return all of the Equipment to
Toshiba. Wink shall return all such Equipment to Toshiba
promptly upon request by Toshiba; provided that Wink's
development and support obligations under this Agreement shall
terminate to the extent Equipment returned to Toshiba is
required by Wink to fulfill its obligations.
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10.4 Training. Wink shall provide training for Toshiba employees as
mutually agreed from time to time at current Wink training rates
at the time training is provided.
10.5 Travel Expenses. In the event that, in the performance of its
services under Section 10 of this Agreement it is mutually
agreed by the parties that employees or contractors of Wink will
travel from Wink's facility, Toshiba shall pay and/or promptly
reimburse Wink for, all reasonable travel, room and board, car
rental and other similar expenses associated with such travel.
Notwithstanding the above, if both parties agree that travel by
Wink employees or contractors is necessary to fix bugs that are
Wink's fault, the expenses for such travel shall be borne by
Wink, unless otherwise agreed.
10.6 Source Code Escrow. Upon written request, Wink agrees to enter
into a Source Code Escrow Agreement in a form mutually
agreeable, governing the release of the source code of the
Licensed Engine Product. Expenses associated with such agreement
and escrow shall be the sole responsibility of Toshiba.
11 TERM AND TERMINATION
11.1 Term. This Agreement shall commence on the Effective Date and
shall continue in full force and effect for a term of five (5)
years from the Execution Date. The term of this Agreement may be
extended by written mutual agreement of the parties.
11.2 Termination for Cause. If either party materially breaches its
obligations under Section 13 (entitled "Confidentiality") of
this Agreement, the non-breaching party may immediately
terminate this Agreement and the remaining other Wink/Toshiba
Agreements upon written notice to the breaching party. If
Toshiba breaches the scope of any license grant under any of the
Wink/Toshiba Agreements, Wink may give written notice to Toshiba
that if such breach is not cured within thirty (30) days, this
Agreement and the other Wink/Toshiba Agreements shall terminate
immediately at the end of such thirty (30) day period. If either
party breaches its material obligations under this Agreement and
fails to cure such breach within thirty (30) day's from written
notice to cure, the non-breaching party may terminate this
Agreement.
11.3 Termination for Insolvency. This Agreement shall terminate upon
written notice given by a party, at such party's option and
without further notice, upon the earlier of: (i) the institution
by or against the other party of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the
settlement of the other party's debts, (ii) the other party's
making an assignment for the benefit of its creditors, (iii) the
other party's declaration in writing of its inability to pay
debts as they become due, or (iv) the other party's dissolution
or ceasing to conduct business as a going concern.
11.4 Effect of Termination. Upon the expiration or termination of
this Agreement, the following provisions shall take effect:
11.4.1 Any and all end user licenses granted by Toshiba or its
subdistributors shall continue in effect according to
their terms and conditions;
11.4.2 Within thirty (30) days after such expiration or
termination, both parties shall return and certify to
the other party the return of all Confidential
Information of the other party in its or its
Submanufacturers' possession at the time of expiration
or termination, or destroy all such Confidential
Information and certify such destruction to the other
party.
11.4.3 Toshiba shall pay all outstanding amounts owed to Wink
within forty-five (45) days of the end of the quarter
during which such expiration or termination occurs. In
the event Wink is
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performing development tasks for Toshiba at the time of
any termination, Toshiba shall also pay to Wink the next
payment due under the development schedule for such
work; and
11.4.4 The provisions of Sections 1, 2.4, 4.7, 4.8, 5, 6.4, 7,
8, 11, 13 and 14, the guarantee by Toshiba in Section
3.1.1 and all payment obligations accrued at the time of
expiration or termination shall survive the expiration
or termination of this Agreement for any reason.
11.5 Destruction of Inventory. Within ninety (90) days after the
effective date of termination of this Agreement, Toshiba shall
destroy, and shall certify to Wink the destruction of, all
copies of the Licensed Engine Products in its or its
subdistributors' possession. Notwithstanding the foregoing
sentence, during such ninety (90) day period, Toshiba and its
subdistributors shall have a right to sell off existing
inventory of Combined Engine Products or Combined Engine
Components.
11.6 Termination of other Wink/Toshiba Agreements. Except as
expressly provided in Section 11.2 above, termination of one of
the other Wink/Toshiba Agreements shall not result in
termination of or in any way affect this Agreement nor shall the
termination of this Agreement result in termination of or in any
way affect the other Wink/Toshiba Agreements.
12 MOST FAVORED NATION
If Wink, during the term of this Agreement, grants to an unaffiliated
third party a license under Wink's Intellectual Property Rights to the
Wink Engine which is in all material respects equivalent to this
Agreement and which contains provisions requiring the third party to
make payments at rates of royalty and payment terms more favorable than
provided in this Agreement, then Toshiba shall be entitled to have the
same royalty rate payable by such third party provided that Toshiba
accepts all other terms and conditions of the agreement with such third
party so that after such acceptance of all other terms and conditions,
Toshiba's agreement with Wink is identical to the third party's
agreement with Wink.
13 CONFIDENTIALITY
13.1 Obligation of Confidentiality. The parties acknowledge that by
reason of their relationship to each other hereunder, each may
have access to certain information and materials concerning the
other's business, plans, customers, technology and products that
is confidential and of substantial value to that other party,
which value would be impaired if such information were disclosed
to third parties ("Confidential Information"). Information
provided in writing shall be deemed Confidential Information if
it has been clearly identified by the disclosing party as
confidential; for Confidential Information which is orally
disclosed, the disclosing party shall indicate to the receiving
party at the time of disclosure the confidential nature of the
information and designate it as confidential in a written
memorandum sent to the receiving party within thirty (30) days
of disclosure, summarizing the confidential information
sufficiently for identification. Without limiting the foregoing,
Confidential Information shall include the source code of the
Licensed Engine Products. Each party agrees that, for a period
of seven (7) years after receipt of any Confidential Information
other than source code and for an indefinite period (i.e.,
perpetually) regarding the source code, it shall not use in any
way, for its own account or the account of any third party, nor
disclose to any third party, except as may be expressly
permitted under this Agreement, any such Confidential
Information revealed to it by the other party and shall take
every reasonable precaution to protect the confidentiality of
such information. Upon request by either party, the other party
shall advise whether or not it considers any particular
information or materials to be confidential, provided that the
Licensed Engine Products (except for documentation identified by
Wink as public) shall at all times be deemed Confidential
Information of Wink. Neither party shall develop or have
developed any software programs utilizing any of the other
party's Confidential Information.
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13.2 Exceptions. Information shall not be deemed Confidential
Information hereunder if such information:
13.2.1 Is or becomes part of the public domain through no fault
or breach on the part of the receiving party;
13.2.2 Is known to the receiving party prior to the disclosure
by the disclosing party and such knowledge can be shown
by written records;
13.2.3 Is subsequently rightfully obtained by the receiving
party from a third party who has the legal right to
disclose it;
13.2.4 Is independently developed by the receiving party
without the use of any Confidential Information or any
breach of this Agreement;
13.2.5 Is approved for public release by the disclosing party;
or
13.2.6 Is required to be disclosed by judicial action provided
that the receiving party has first given the disclosing
party reasonable notice of such requirement and fully
cooperates with the disclosing party in seeking
confidential treatment for any such disclosure.
13.3 Injunctive Relief. The parties acknowledge that any breach of
the provisions of this Section 13 may cause irreparable harm and
significant injury to an extent that may be extremely difficult
to ascertain. Accordingly, each party agrees that each will
have, in addition to any other rights or remedies available to
it at law or in equity, the right to seek injunctive relief to
enjoin any breach or violation of this Section 13.
14 GENERAL
14.1 Force Majeure. Nonperformance of either party shall be excused
to the extent that performance is rendered impossible by strike,
fire, flood, earthquake, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where
failure to perform is beyond the reasonable control of and is
not caused by the negligence of the nonperforming party.
14.2 No Waiver. Failure by either party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement
of that or any other provision.
14.3 No Oral Modification. No alteration, amendment, waiver,
cancellation or any other change in any term or condition of
this Agreement shall be valid or binding on either party unless
mutually agreed in writing.
14.4 Governing; Law Dispute Resolution. This Agreement shall be
governed by and construed under the laws of the State of
California, without reference to conflict of laws principles.
Any dispute or claim arising out of or in relation to this
Agreement, or the interpretation, making, performance, breach or
termination thereof, shall be finally settled by binding
arbitration under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce as presently in force
("Rules") and by three arbitrators appointed in accordance with
said Rules. Judgment on the award rendered may be entered in any
court having jurisdiction thereof. The place of arbitration
shall be San Francisco, California, U.S.A. Any monetary award
shall be in U.S. dollars and the arbitration shall be conducted
in the English language. The parties may apply to any court of
competent jurisdiction for temporary or permanent injunctive
relief, without breach of this Section 14.4 and without any
abridgment of the powers of the arbitrator.
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14.5 Import & Export Controls. Toshiba understands that Wink is
subject to regulation by agencies of the U.S. government which
prohibit export or diversion of certain product and technology
to certain countries. Any and all obligations of Wink including
without limitation obligations to provide products, technology,
documentation, or technical assistance, will be subject in all
respects to such United States laws and regulations that will
from time to time govern the license and delivery of technology
and products abroad or to foreign nationals by persons subject
to the jurisdiction of the United States. Toshiba warrants that
it will comply in all respects with the export and reexport
restrictions set forth in any export licenses obtained by the
Wink or Toshiba (if necessary). Toshiba warrants that it will
not, and will take all actions which may be reasonably necessary
to assure that its end-user do not, contravene such United
States laws or regulations. Wink agrees that no technical
information furnished by Toshiba hereunder or any direct
products thereof is intended to or will be exported to any
destination restricted by export control regulation of the
United States and/or Japan, without prior written authorization
from appropriate governmental authorities.
14.6 No Assignment. Neither this Agreement nor any rights or
obligations of Toshiba or Wink hereunder shall be assigned by
either party without the prior written consent of the other
party, which consent shall not be unreasonably withheld or
delayed, except that either party may assign its rights and
obligations hereunder to any entity (i) which controls, is
controlled by or is under common control with such party, or
(ii) which acquires all or substantially all of the assets or
business of such party to which this Agreement pertains;
provided, that in both cases such entity shall assume in writing
or by operation of law such party's obligations under this
Agreement. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their successors and assigns.
14.7 Independent Contractors. The relationship of the parties
established by this Agreement is that of independent
contractors, and nothing contained in this Agreement shall be
construed to (i) 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.
14.8 Compliance with Laws. In exercising its rights under this
license, each party shall fully comply with the requirements of
any and all applicable laws, regulations, rules and orders of
any governmental body having jurisdiction over the exercise of
rights under this license.
14.9 Notices. All notices under this Agreement shall be in writing
and sent by (i) certified air mail, return receipt requested,
postage prepaid, (ii) commercial courier service, or (iii) via
facsimile with a confirming notice sent by one of the methods
described in subsections (i) or (ii) above. If properly
addressed to or delivered at the address for each party set
forth above (for each party, to the attention of "Legal
Department"), a notice shall be deemed given upon delivery or,
where delivery cannot be effected due to the actions of the
addressee, upon tender.
14.10 Counterparts. This Agreement may be executed in any number of
counterparts and when so executed and delivered shall have the
same force and effect as though all signatures appeared on one
document.
14.10 Severability. The provisions of this Agreement shall be
severable, and if any provision of this Agreement shall be held
or declared to be illegal, invalid, or unenforceable, such
illegal, invalid or unenforceable provision shall be severed
from this Agreement and the remainder of the Agreement shall
remain in full force and effect, and the parties shall negotiate
a substitute, legal, valid and enforceable provision that most
nearly reflects the parties' intent in entering into this
Agreement.
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14.12 Entire Agreement. This Agreement represents the entire agreement
of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous agreements,
understandings, proposals and representations by the parties,
including but not limited to the Project Outline between the
parties dated February 24, 1995.
IN WITNESS WHEREOF, the parties by their duly authorized representatives
have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. TOSHIBA CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxxxx
Name: Xxxx X. Xxxxxx Name: X. Xxxxxxxxx
General Manager
Title: VICE PRESIDENT Title: Legal Affairs Division
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EXHIBIT A
DEVELOPMENT PLAN OF WINK ENGINE
Dated as of_____________, 1997
1. Specifications
Specifications for the Licensed Engine Product are attached to this
Exhibit. The following documents comprise the Specifications:
* "Technical Specification for the Wink Engine Version 1.0 as
Customized for Xxxxxxx XX00X0X IF Decoder" to be released in
December 1996.
* "ICAP Version 1.0 Technical Specification" (to be released in
December 1996).
2. Development Milestones: Deliverables, Deliverer, and Completion Dates
All development milestones by both Wink (including but not limited to
the porting of the Wink Engine) and Toshiba (including but not limited to the
creation of driver code that provides hardware interface for communications,
graphics and user interface libraries of the Licensed Engine Product, and the
modification of icons and translation of text strings appropriate for the
Japanese market) have been completed as of the Execution Date.
3. Schedule
Completed as of Execution Date.
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EXHIBIT B
TOSHIBA EQUIPMENT
This list covers the Equipment as defined in the Wink Engine License Agreement,
the Wink Online Server for InterText License Agreement and the Wink Application
Server License Agreement.
In addition to the two sample units of each Combined Engine Product listed
pursuant to Section 3.2 of the Agreement, Toshiba shall provide the items listed
below. For each of the following items, Toshiba shall provide (unless already
provided) the number of units of each item specified below, including licenses
for use by Wink if such licenses are required as well, and for items noted with
a "*", any documentation in Japanese and English. If documentation is not
sufficient for use by Wink engineers, then Toshiba shall provide reasonable
assistance to Wink engineers, including but not limited to providing Wink
reasonable training, installation assistance, responses to questions by email,
and specifications in Japanese and, if available, English.
The parties agree that they will amend this list to include any other items
reasonably necessary for Wink to develop, test, or maintain, on Wink's premises,
the Licensed Engine Product, the Licensed WAS Technology, and the Licensed WOS
Technology, excluding items that Wink should reasonably be expected to obtain on
its own as part of Wink's standard business assets (including standard PCs or
workstations, except to the extent that such PC or workstation is part of an
integrated piece of equipment distributed by Toshiba or a third-party for
development, testing, support, or use of the Combined Engine Products, Combined
Broadcast Server Products, and the Combined Online Server Products).
Notwithstanding the above two paragraphs, the parties recognize that given this
contract is being executed after development and testing has concluded, some
items (in one or more units) may have been provided by Toshiba during
development or testing and may have been returned to Toshiba on the expectation
that these items are no longer needed by Wink for maintenance. The list below
excludes such items (or the returned units of items listed below). If such items
(or additional units of items listed below) become reasonably necessary for Wink
to provide maintenance under this Schedule, then the parties agree that such
items shall be added to the list.
The following excludes minor items such as cables, keyboards, mice/mousepads,
EPROMs and OTP ROMs, which may have been provided by Toshiba but are not of
material cost.
Already at Wink (excluding documentation): PCs and workstations and related
equipment:
(2) HP Vectra VL 5/75 PC w/ Win 3.1J/DOS-J, PCNFS-J; CD7ROM drive
(1) HP Vectra VL2 4/66 w/ Win 3.1J/DOS-J, PCNFS-1; CD-ROM drive
(2) HP Vectra VE 4/66 w/ Win 3.1J/DOS-J, PCNFS-J; CD-ROM drive
(1) Toshiba PV3000 Pentium-133 w/ Win 3.1J/DOS-J, PCNFS-J; CD-ROM
drive
(1) J-3100 (486) PC w/ Win 3.1J/DOS4, PCNFS-J
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(1) J-3100 (486) PC w/ RTM drivers
(1) Sony 17" PC monitor
(2) Toshiba PC monitors
(5) HP 15" Ergo Ultra VGA monitor
(1) Toshiba 15" color monitor
(1) Sun SPARCstation IPX w/ Sun OS 4.13
(1) Sun Monitor (approx 20")
(1) Smart5 system (Sparc4, 19" grayscale monitor, Solaris 2.4J)
(1) Smart4 system (Sparc4, 19" grayscale monitor, Solaris 2.4J)
(1) Toshiba AS-4085workstation (equivalent to XXXXX 00) w/ Solaris
2.4J
(1) Toshiba 19" monitor for AS4085
(1) external Sun CD-ROM drive
(1) Omron 14.4k modem
(1) l0 baseT hub
RTMs, RTPs and related equipment:
(5) RTM cards
*(1) RTPSystem--includes:SND68,SVC-II Digital SerialConverter,
Teletext inserter, and
FW2000 w/20" Toshiba color monitor keyboard (Japanese, Sun type 5).
(1) external Toshiba CD-ROM drive (came with RTP)
(1) external Toshiba QIC tape drive (came with RTP)
Other equipment:
(2) Toshiba VCRs (non-IT enabled)
(1) BS-CS Tuner CSR-110 modified for development work
(3) old Teletext decoders
(3) ASCII telephone line emulators
(5) Koden StepDown (120V_100V) transformer (small)
(2) Nissyo DN-101 StepDown transformer
(2) Toyoden CD 117-15 StepDown transformer
(1) adapter socket for burning TV CPU
(2) 28" WideBazooka TV w/ IT (prototype) and remote control
(Note: one TV is dead) (3) 32" WideBazooka TV w/ IT (prototype)
and remote control (Note: one TV is dead)
(5) development IT settop box (dead) and remote control (Note: one
settop box is dead)
(1) ShibaSoku VG22F1 teletext signal generator
Not yet at Wink:
*(1) complete installation of Toshiba broadcast equipment system,
including (but not limited to) the Licensed
WAS Technology
*(1) complete installation of Toshiba online/response server system,
including (but not limited to) the Licensed
WOS Technology
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EXHIBIT C
TOSHIBA SUBSIDIARIES
Toshiba Video Products Pte., Ltd.
000 Xxxxxxxxxx Xx., #00-00/00
XXX Xxxx., Xxxxxxxxx
Attn.: Mr. M. Kai, Vice President
Tel.: x00-000-0000
Fax: x00-000-0000
Toshiba Video Products Japan Co., Ltd.
1-1, Shibaura 1-chome, Xxxxxx-xx, Xxxxx 000-00, Xxxxx
Attn.: Mr. M. Kai, Vice President
Tel.: x00-0-0000-0000
Fax: x00-0-0000-0000
Toshiba Visual-Equipment Corp.
0-00-0, Xxxxxxxxx-xxx-Xxxxxxx, Xxxxxx, Xxxxxxx Pref. 366
Attn.: Technology Executive
(name & contact info to be identified by Toshiba as soon as practicable)
Tel.: x00-000-00-0000
Fax: x00-000-00-0000
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EXHIBIT D
TOSHIBA AND WINK PROPERTY
[ * ]
-Exhibit D-page 1-
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ICAP INTERNATIONAL RESIDENT ICON LIST
[ * ]
23
EXHIBIT E
SUPPORT
The following provisions govern the support to be provided by Wink to Toshiba
under this Agreement.
1. Toshiba-Requested Updates. In the case that Toshiba does not wish to
wait for Wink to choose on its own to create an Update pursuant to Section 10.1,
Toshiba may request, from time to time, an Update version of the Licensed
Engine Product ("Toshiba-Requested Updates") in order to make minor feature
enhancements in a timeframe desired by Toshiba. Wink shall use commercially
reasonable efforts to schedule the Toshiba-Requested Update in a timeframe that
meets Toshiba's requested schedule.
2. Compensation. Toshiba-Requested Updates shall be treated in the same
manner as Updates, except that Wink's work shall be compensated by Toshiba.
Compensation shall be at the rate of [ * ]. The compensation terms listed herein
are subject to change annually, with 30 days written notice provided by Wink to
Toshiba.
3. Ownership. Ownership of the property created for the
Toshiba-Requested Update will be agreed according to the same basis as was used
in the development of the Wink Engine as customized by Wink for the TC90A01F and
Like Chips, Version 1.O. The fact of that Toshiba is compensating Wink for the
time spent providing this support shall not affect ownership of the results of
the work.
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EXHIBIT F
XXXX XXXX(s)
Wink Logo: The following are samples of the Wink Logo, to be used pursuant to
Section 9.
[LOGO NOT SHOWN] [LOGO NOT SHOWN]
wink itv wink itv
Black & White Logo 3-color Logo
(e.g., for silk-screening) (e.g., for printed materials)
Other Wink Marks relevant to Wink Engine License Agreement:
Wink ITVTM For use when referring in text to the Wink interactivity system
or the interactive functionality provided by Wink's technology.
Wink EngineTM For use when referring in text to the software inside a
Wink-enabled device that enables the Inter/Text/Wink
functionality.
-Exhibit D-page 4-
25
ADDENDUM TO WINK ENGINE LICENSE AGREEMENT
THIS AMENDMENT (the "Amendment") hereby amends to the Wink Engine
License Agreement executed as of 30 September, 1997 (the "Agreement") between
Wink Communications, Inc., a corporation with offices at 0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx, XX 00000 ("Wink") and Toshiba Corporation, with offices at 1-1
Shibaura, 1-Chome, Xxxxxx-xx, Xxxxx 000-00, Xxxxx ("Toshiba"). The Amendment is
executed by the parties as of this 30 day of September 1997 ("Execution Date")
to memorialize changes to the parties' relationship and its terms are effective
as of the Execution Date.
Unless specifically amended in this Amendment, all terms of the
Agreement remain in force.
AMENDMENT
1 TOSHIBA-REQUESTED UPDATE
1.1 Development Requested and Agreed To. Pursuant to Exhibit E
(entitled "Support") of the Agreement, Toshiba has requested
that Wink create a Toshiba-Requested Update. Such
Toshiba-Requested Update shall be an updated version of the
Licensed Engine Product ("Version 1.1") to be developed in a
timeframe to meet Toshiba's desired shipment schedule of
televisions and settop boxes. Wink agrees to develop the Version
1.1. Toshiba-Requested Update, at a discounted charge to Toshiba
of [ * ], to be paid within 30 days of acceptance by Toshiba of
the object code to the Licensed Engine Product Version 1. 1.
1.2 Development Plan for Version 1.1. An addendum to Exhibit A
("Exhibit A-1.1") shall be added to the Agreement, to reflect
relevant details concerning the development plan for the Version
1.1 Toshiba-Requested Update.
1.3 Ownership of Version 1.1. An addendum to Exhibit D ("Exhibit
D-1.1") shall be added to the Agreement, to reflect relevant
details concerning the property rights of Wink and Toshiba in
the Version 1.1 code.
IN WITNESS WHEREOF, the parties by their duly authorized representatives
have entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. TOSHIBA CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxxxx
Name: Xxxx X. Xxxxxx Name: X. Xxxxxxxxx
General Manager
Title: VICE PRESIDENT Title: Legal Affairs Division
-Exhibit D-page 5-
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EXHIBIT A - 1.1
DEVELOPMENT PLAN OF LICENSED ENGINE VERSION 1.1
1. Specifications
Specifications for the Licensed Engine Product are attached to this
Exhibit. The following documents comprise the Specifications:
* "Wink Engine Functional Specification, Toshiba 1.1 TV/STB" dated
25 March l997 (author: Xxxxx Xxxxxxxx, Wink).
* "User States & Transitions" dated 10 March 1997, Document
Revision #970307 (author: Daikuhara Masao, TV Planning Dept,
Toshiba).
2. Development Milestones & Schedule: Deliverables, Deliverer, and
Completion Dates
Remaining Deliverables to the Other Party Deliverer Completion Date
----------------------------------------- --------- ---------------
(Calif. Time)
Final CPU ROM code for Toshiba Television
Version 1.1 delivered to Wink Toshiba 21 April 1997
Delivery to Toshiba of final object code,
Licensed Engine Product Version 1.1 for both
TV and Settop Box. Wink 12 May 1997*
* Note: this is committed date. Target is to provide finished object code
for Licensed Engine Product Version 1.1 for TV sooner than this date,
and to provide finished object code for Licensed Engine Product Version
1.1 for Settop Box even sooner than that.)
-Exhibit D-page 6-
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EXHIBIT D - 1.1
TOSHIBA AND WINK PROPERTY
[ * ]
Exhibit D-1.1 - Page 1-
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ICAP INTERNATIONAL RESIDENT ICON LIST
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