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EXHIBIT 10.45
Effective Date: May 1, 1998
INFORMATION SERVICES AGREEMENT
Between GE Information Services, Inc. ("XXXX"), 000 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 and Wink Communications ("Wink"), with its principal
office at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
Now Therefore, the parties herby agree to the following:
I. SERVICES PROVIDED
1.1 XXXX will provide Wink the services ("Services") as stated in this
Agreement and in the Schedule A attached hereto in accordance with
the terms of this Agreement and subject to the prices and any
special terms contained in the Schedule B attached hereto. Wink is
responsible for obtaining, installing and maintaining the equipment,
communication lines and services necessary to connect to the
Services, unless otherwise stated in the applicable Schedule.
II. TERM; CHANGES; PAYMENT; TAXES
2.1 The term of this Agreement shall commence as of May 1, 1998
("Effective Date") and shall continue for a period of sixty (60)
months, unless sooner terminated as provided herein. The term of
this Agreement may thereafter be renewed for subsequent terms of
two (2) years each upon the mutual written agreement of the
parties. The provisions of Sections 2.3, 3.2, 3.3, 3.4, 4.3, 6.1,
6.2, 7.1, 8.2 through 8.6, 10.4 and 10.7 shall survive any
termination or expiration of this Agreement.
2.2 Either party may (i) supplement or make changes to its rules of
operations, access procedures, security procedures and standards,
or (ii) modify or withdraw any particular Service; provided,
however, that any such changes referenced in this Section 2.2 shall
be subject to the following:
(a) The parties agree that any change, addition, deletion or
modification to the Services referenced in this Agreement
must be accomplished in accordance with this section,
irrespective of whether this section is expressly referenced
in connection with such Services. Either party may at any
time, by written request, propose changes, deletions or
additions to the Services. Such request shall be in a written
form clearly noting that it is a Change Order Request
("Change Order Request"). Any such Change Order Request shall
be subject to the change order process more particularly
described below:
(i) Either party may submit to the other party a Change
Order Request during the term of this Agreement. All
Change Order Requests shall state in detail the
request, including, if applicable, estimated costs
associated with the Change Order Request.
(ii) Not more than ten (10) business days from the date of
receipt of a Change Order Request, the receiving party
shall complete and return to the requesting party a
detailed response for each item on the Change Order
Request, which shall consist of proposed action items,
including, if applicable, a time frame for the
conducting of a Unix Deployment Process ("UDP"), along
with any proposed modifications to the initial Change
Order Request and a quote for any XXXX fees to Wink to
implement the Change Order Request for any non-XXXX
developed applications.
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(iii) If, after completion of steps (i) and (ii) herein
above, the parties are not in agreement with respect
to the proposed changes, including without
limitation identification of any necessary
third-party software, the parties shall meet to
negotiate in good faith any such proposed changes.
The failure of the parties to agree after what
either party, in its discretion, deems a reasonable
period of time, shall entitle either party to
provide the other with a notice of dispute and
trigger the internal dispute resolution procedures
more particularly described in Article X.
(iv) Each party shall bear its own expenses with respect
to preparing such Change Order Requests and
responses thereto, provided, however, that if a UDP
is necessary in order for a Change Order Request to
be formulated, there shall be no charge to Wink for
such UDP for XXXX-developed applications and a
maximum of [*], charged on a time and materials
basis for the deployment of any non-XXXX developed
applications.
(v) During the Change Order Process, the scope of
Services and fees, as provided herein and in the
then-current Schedule and/or Exhibit, shall remain
in full force and effect.
(b) Accepted Change Order Requests shall be incorporated into
amendments to this Agreement, which shall be executed by both
parties and incorporated herein accordingly.
2.3 Except for the items contained in the attached Schedule B, which are
inclusive of any applicable taxes, and unless agreed to otherwise by
the parties, Wink shall be responsible for any sales, use, property
or other taxes payable with respect to machines, software or
services purchased from XXXX by Wink. In lieu of paying such taxes,
Wink will provide XXXX with a tax-exemption certificate acceptable
to the taxing authorities. Wink and XXXX shall cooperate with one
another to minimize any sales or use taxes for which Wink is liable.
Wink further agrees that it shall be responsible for paying
separately all costs associated with third party software identified
in any Change Order as third party software.
2.4 Fixed monthly charges for Services initiated or terminated in
accordance with Article VIII of this Agreement during a calendar
month will be prorated. Invoices are payable upon receipt in U.S.
dollars. Invoices not paid within thirty (30) days from date of
invoice are subject to interest charges at an annual rate equal to
the prime rate listed in the Wall Street Journal for the date of
invoice plus two percentage points, or at the maximum lawful
interest rate allowable, whichever is lower. XXXX will give written
notice of any non-payment and specify a cure period of at least
fifteen (15) days. If an invoice remains unpaid after the cure
period expires, XXXX may, reserving all other legal remedies and
rights, implement the dispute resolution procedures more
particularly described in Article X below.
III. USE OF SERVICES
3.1 Wink will use the Services in accordance with applicable law,
including data privacy laws and communication regulations and
tariffs, and any applicable XXXX standard conditions of use
established by XXXX from time to time and provided to, and agreed
to, by Wink. In particular, Wink will not use any Service to export
or re-export technical data in violation of U.S. export control laws
and regulations.
(a) XXXX reserves the right to immediately terminate access or
take other actions it reasonably believes to be necessary to
comply with the law.
(b) In the event XXXX determined within its reasonable discretion
that Wink is not using the Services in accordance with the
terms and conditions of this Agreement, XXXX may
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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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terminate access or take such other action it believes
necessary to conform Wink's use of the Service to the terms
and conditions of this Agreement, provided that Wink has
failed within a reasonable period of time to discontinue using
the Services in the manner in question upon notice from XXXX.
(c) XXXX agrees to grant Wink online access to its applications
and data at all times, provided, however, that it is
understood by the parties that such applications and data may
not be available during scheduled maintenance hours and
periods of Server Unavailability (as defined in Article V).
(d) XXXX will use commercially reasonable efforts to avoid
impacting response or service level availability to the
standard access processes that may occur through the use of
SQL Read-Only queries by Wink, defined as the Application
Interface, by defining the SQL Read-Only queries with
specified priorities which are deemed lower than the
commercial service processes.
(e) XXXX will use commercially reasonable efforts to avoid
impacting response or service level availability to the
standard access process that may occur through "ad hoc"
reporting processes by defining such processes with specified
priorities which are deemed lower than the commercial service
processes.
(f) XXXX will inform Wink of proposed advances for operating and
application support software in the form of a Change Order
Request. In the event Wink elects not to proceed with the
proposed advance in operating and application support
software, and the vendor for such software discontinues
supporting that version or release of such software, the
warranties contained in Sections 5.1 and 5.2 below shall not
be applicable until such time as Wink proceeds with the
proposed advance. Wink shall pay for personnel services for
advances in operating system and application support software
at XXXX'x then-current list prices, under the applicable terms
and conditions of the Personnel Services Agreement ("PSA")
entered into by the parties on November 10, 1998 [*]
3.2 Wink shall defend, indemnify and hold XXXX harmless from and against
any and all costs and damages finally awarded or made in settlement
or compromise in a suit or proceeding by third parties against XXXX
which XXXX incurs on account of the use of the Services by Wink or
Wink's clients who have been granted access to the Services by Wink
("Wink's Clients"), including, but not limited to claims relating to
the content of materials available for online access by Wink's
Clients to the Services, provided that Wink is notified in writing
and given authority, information and assistance to defend and/or
settle or compromise such suit or proceeding. Wink, however, shall
not be responsible for any compromise or settlement of any such suit
or proceeding made without Wink's consent.
3.3 XXXX will not monitor the files, messages or other content of the
Services. If XXXX receives information that causes XXXX to
reasonably believe it may incur legal liability on account of the
type of files, messages or other content of the Services provided by
Wink or Wink's Clients, XXXX shall provide written notice to Wink of
such potential liability and has the right to remove any such
materials within a reasonable period of time, but in no event sooner
than forty-eight (48) hours after such written notice. If Wink
reasonably disagrees with XXXX'x belief, XXXX and Wink shall jointly
obtain (at joint expense) an opinion from the law firm of King and
Spalding, Washington D.C., or such other similar firm as the parties
may reasonably agree upon, as to the potential liability of Wink
and/or XXXX on account of the type of files, messages or other
content of the Services provided by Wink or Wink's Clients.
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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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3.4 XXXX shall defend, indemnify and hold Wink harmless from and
against any and all costs and damages finally awarded or made in
settlement or compromise in a suite or proceeding by third parties
against Wink which Wink incurs on account of the gross negligence
or willful misconduct of XXXX'x employees, agents or contractors
in providing the Services to Wink, provided that XXXX is notified
in writing and given authority, information and assistance to
defend and/or settle or compromise such suit or proceeding. XXXX,
however, shall not be responsible for any compromise or settlement
of any such suit or proceeding made without XXXX'x consent.
3.5 Wink will use the User Numbers (as defined herein) assigned to it
only from the country locations authorized for those Users Numbers.
In the event of use from unauthorized locations, Wink will pay the
list prices applicable to that use. Wink's payment will be without
prejudice to other legal remedies available to XXXX. For purposes
of this agreement, "User Numbers" means an identification number
assigned to Wink by XXXX for purposes of accessing teleprocessing
services and recording resources consumed.
3.6 In the event Wink is granted Administrative User (as defined
herein) capability, Wink will employ that capability in accordance
with the terms and conditions of this Agreement, promptly notify
XXXX of each User Number it validates, and safeguard the
Administrative User capability from unauthorized use. Wink is
responsible for all non-standard charges incurred as a result of
usage in User Numbers for which only Wink has Administrative User
capability. For purposes of this Agreement, "Administrative User"
means a Wink administrator that has been granted authority by XXXX
to perform security related activities.
IV. SECURITY AND CONFIDENTIALITY
4.1 XXXX will provide reasonable physical security for Wink's
computer-stored files and programs and will make reasonable security
procedures available to enable Wink to protect those files and
programs from unauthorized access. Wink is responsible for
selecting and using the security procedures made available by XXXX
as well as other procedures and measures necessary to safeguard
and back-up its files, data and programs.
4.2 Should Wink's files, data, or programs be lost or destroyed directly
due to the fault of XXXX, XXXX'x sole obligation, and Wink's
exclusive remedy, will be the reconstruction of Wink's files, data,
or programs, provided Wink furnishes the data required or the data
is available to XXXX on storage media in XXXX'x possession or
control.
4.3 Wink acknowledges that XXXX'x employees and representatives may
gain access to Wink's data in the course of providing Services to
Wink. XXXX will protect from unauthorized disclosure or access Wink
data in its possession to which its employees or representatives
gain access by using the same degree of care that XXXX takes to
protect its own data of a similar nature. However, this obligation
will not apply to Wink data which is or becomes publicly available
without fault on the part of XXXX, is already in XXXX'x possession
prior to the time XXXX gains access to the data under this
Agreement, is independently developed by XXXX, or is rightfully
obtained from third parties.
V. WARRANTIES
5.1 Commencing with the installation of Version 2 of the Wink Data
Center ("Wink Data Center"), as more fully defined in the PSA and
if used by Wink in accordance with the terms and conditions of this
Agreement and during the hours of 5:00 a.m. to 8:00 p.m., Pacific
Time, Monday through Friday, but exclusive of maintenance hours from
12:00 a.m. to 4:00 a.m., Pacific Time and XXXX-recognized holidays
("Peak Time Hours"), [*] The term "Server" means the XXXX specific
computers and their
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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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directly connected central communications processor(s) which directly
provide access to Wink files and applications.
For purposes of this agreement "Server Unavailability" will be calculated
as follows:
Each consecutive one (1) minute interval that the Server is
unavailable during a calendar month will accrue as one (1) minute of
Server Unavailability.
5.2 Commencing with the installation of Version 2 of the Wink Data Center and
if used by Wink in accordance with the terms and conditions of this
Agreement and during the hours of 8:00 p.m. to 5:00 a.m., Pacific Time,
Monday through Friday, and all hours on Saturday, Sunday and Federal
holidays, but exclusive of maintenance hours from 12:00 a.m. to 4:00 a.m.,
Pacific Time ("Off Peak Time Hours"), XXXX warrants that the Server used by
XXXX to provide the Services will be available for use ninety-five percent
(95%) of the total Off Peak Time Hours is a calendar month.
5.3 The warranties contained in Sections 5.1 and 5.2 above shall only be
applicable in the event Server unavailability is caused by XXXX and XXXX'x
sole obligation for failure to meet such warranties shall be as follows:
(a) For Server Unavailability exceeding the warranted levels contained in
Section 5.1 and 5.2 [*], no discount shall be given to Wink.
(b) For Server Unavailability exceeding the warranted levels contained in
Section 5.1 and 5.2 [*], the fees for the Services for the month
during which the Server Unavailability commenced shall be equal [*],
multiplied by the fees for the Services for the calendar month during
which the Server Unavailability commenced.
(c) For Server Unavailability exceeding the warranted levels contained in
Section 5.1 and 5.2 [*], XXXX shall [*] for the Services for the
calendar month during which the Server Unavailability commenced and
may terminate this Agreement upon notice to Wink.
5.4 XXXX further warrants that each Service, if used by Wink in accordance with
the terms and conditions of this Agreement, will perform substantially in
accordance with the applicable specifications mutually established by XXXX
and Wink (the "Specifications"). XXXX'x sole obligations for failure to
meet this warranty will be to attempt to correct any failure to meet
warranted performance which materially impairs the operation of the
affected Service. If XXXX fails to restore warranted performance within a
reasonable time, XXXX shall refund any charges paid for individual services
which did not perform as warranted. [*]
5.5 The warranties and remedies stated in this Agreement are exclusive and
shall only apply to failures which are reported to XXXX in writing within
sixty (60) days after the date of the failure or as recorded by XXXX'x
systems, as such systems are modified by XXXX to monitor such performance.
NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLY TO THE
SERVICES.
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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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5.6 XXXX DOES NOT WARRANT THAT ITS SERVICES WILL MEET WINK'S REQUIREMENTS
OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE. WINK ASSUMES THE RESPONSIBILITY TO TAKE ADEQUATE
PRECAUTIONS AGAINST DAMAGES TO ITS OPERATIONS WHICH COULD BE CAUSED BY
DEFECTS, INTERRUPTIONS, OR MALFUNCTIONS IN THOSE SERVICES.
5.7 EXCEPT AS EXPRESSLY AGREED TO IN WRITING BY THE PARTIES, WINK IS
SOLELY RESPONSIBLE FOR ALL CONTENT OF ANY DATABASE PROVIDED BY OR ON
BEHALF OF WINK AND ASSUMES THE ENTIRE RISK OF USING SUCH DATABASES.
NEITHER XXXX NOR ANY OF ITS EMPLOYEES, AGENTS, CONTRACTORS,
INFORMATION PROVIDERS, LICENSORS OR OTHER SUPPLIERS (COLLECTIVELY
"SUPPLIERS") MAKE ANY WARRANTIES OR REPRESENTATIONS CONCERNING THE
ACCURACY, COMPLETENESS, PERFORMANCE OR USEFULNESS OF THE CONTENT OF
ANY DATABASE. THE POSTING OF INFORMATION ON ANY DATABASE OR BULLETIN
BOARD IS EXPRESSLY PROHIBITED IF IT VIOLATES ANY APPLICABLE FEDERAL OR
STATE LAW OR INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OR MISUSES
PROPRIETARY INFORMATION OF A THIRD PARTY.
5.8 WINK IS SOLELY RESPONSIBLE FOR ENSURING THAT ANY POSTING MADE BY WINK
TO THE WINK DATA CENTER DOES NOT CONTAIN ANY VIRUS OR OTHER COMPUTER
SOFTWARE CODE OR ROUTINE DESIGNED TO DISABLE, ERASE, IMPAIR OR
OTHERWISE DAMAGE THE SOFTWARE OR DATA OF ANY OTHER USER OF THE
DATABASE OR CATALOG. WINK WILL INDEMNIFY AND HOLD XXXX HARMLESS FROM
ANY LIABILITY, COSTS OR DAMAGES ARISING OUT OF CLAIMS OR SUITS BY SUCH
USER CAUSED BY ANY SUCH VIRUS OR SOFTWARE.
5.9 ACCESS TO AND USE OF THE INTERNET, IF PROVIDED THROUGH XXXX, IS
PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED. XXXX WILL NOT BE LIABLE FOR ANY
DAMAGES OF ANY KIND OR NATURE WHATSOEVER RESULTING FROM THE INABILITY
OF WINK TO MAKE OR MAINTAIN ONLINE CONNECTIONS TO XXXX BY MEANS OF THE
INTERNET.
VI. LIMITATIONS OF LIABILITY
6.1 AS A MATERIAL CONDITION FOR ENTERING INTO THIS AGREEMENT, AND IN
REGARD TO ANY AND ALL CAUSES ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS OF
NEGLIGENCE, BREACH OF CONTRACT OR WARRANTY, FAILURE OF A REMEDY TO
ACCOMPLISH ITS ESSENTIAL PURPOSE OR OTHERWISE, THE PARTIES AGREE:
[*]
(b) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS OR SAVINGS, LOSS OF USE OF SERVICES,
COST OF CAPITAL, COST OF SUBSTITUTE SERVICES OR FACILITIES,
DOWNTIME COSTS, OR DAMAGES AND EXPENSES ARISING OUT OF THIRD
PARTY CLAIMS.
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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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6.2 THE REMEDIES SPECIFIED IN THIS AGREEMENT ARE EXCLUSIVE.
VII. FORCE MAJEURE
7.1 Except for the failure to make payments when due, neither party
will be liable to the other by reason of any failure in
performance of this Agreement if the failure arises out of the
unavailability of third party communication facilities or
energy sources, acts of God, acts of the other party, acts of
governmental authority, fires, strikes, delays in
transportation, riots or war, or any cause beyond the
reasonable control of that party. If any such event prevents
Wink from accessing the Services and continues for more than
one (1) month, Wink may terminate the Schedule(s) for the
affected Service(s) upon delivery of notice to XXXX.
VIII. TERMINATION
8.1 Either party may terminate this Agreement for cause if the
other party materially breaches this Agreement, and the
breaching party fails to substantially cure such breach within
ninety (90) days after receiving written notice specifying the
breach. If a breach cannot be reasonably cured within ninety
(90) days, the breaching party may provide the nonbreaching
party with a plan for cure of such breach which, if accepted by
the nonbreaching party, shall permit the breaching party to
implement the designated cure and thereafter proceed with all
due diligence to substantially cure the breach.
8.2 [*]
8.3 Upon termination of this Agreement by XXXX for non-payment or
failure of Wink to abide by applicable laws, XXXX will be under
no obligation to provide personnel services to assist in the
transition of Wink's applications and data from a XXXX-operated
facility to a Wink-operated or third party operated environment.
8.4 Upon termination of this Agreement by XXXX for cause other than
non-payment, XXXX will provide to Wink [*] of personnel
services, upon request, under the applicable terms and
conditions of the PSA, to assist in the transition of Wink's
applications and data from a XXXX-operated facility to a
Wink-operated or third party operated environment. Any such
personnel services will be provided to Wink over a two (2) month
period at XXXX'x commercial list rates therefor in effect at the
time of utilization.
8.5 Upon the expiration of this Agreement, XXXX will provide to Wink
up to one hundred days of personnel services to assist in the
transition of Wink's applications and data from a XXXX-operated
facility to a Wink-operated or third party operated environment.
Three (3) months prior to the effective date of any such
expiration, Wink and XXXX shall meet and agree upon a transition
plan reasonably designed to permit the transition and migration
of the Wink Data Center (including all software and data
thereof) from XXXX to Wink or a third party provider. Any such
personnel services will be provided to Wink over a two (2) month
period at XXXX'x commercial list rates therefor in effect at the
time of utilization.
8.6 Upon the termination or expiration of this Agreement, if
requested by Wink, XXXX will promptly return to Wink all
Wink-owned applications, data and materials in XXXX'x
possession.
IX DEFINITION OF RELATIONSHIP
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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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9.1 Each party and its employees are independent contractors in
relation to the other party with respect to all matters arising
under this Agreement. Nothing herein shall be deemed to
establish a partnership, joint venture, association or
employment relationship between the parties. Each party shall
remain responsible, and shall indemnify and hold harmless the
other party, for the withholding and payment of all Federal,
state and local personal income, wage, earning, occupation,
social security, worker's compensation, unemployment, sickness
and disability insurance taxes, payroll levies or employees
benefit requirements (under ERISA, State law or otherwise) now
existing or hereafter enacted and attributable to themselves
and their respective employees.
X. GENERAL PROVISIONS
10.1 The provisions of this Agreement are for the sole benefit of
the parties, and not for the benefit of any other persons or
legal entities.
10.2 Neither party may assign this Agreement without the prior
written consent of the other party, which consent will not be
unreasonably withheld; provided, however, that either party may
assign this Agreement, without consent, to a successor in
interest to substantially all of the business of that party to
which the subject matter of this Agreement relates.
10.3 If any part or parts of this Agreement are held to be invalid,
the remaining parts of the Agreement will continue to be valid
and enforceable provided the remainder of this Agreement can be
and is reformed to reflect the substance of the intent of the
parties.
10.4 This Agreement will be governed by the law of the State of
Maryland, excluding its conflict-of-laws rules. Each party
waives the right to jury trial in any suit based upon or
arising out of this Agreement.
10.5 The headings in this Agreement are for reference purposes only;
they will not affect the meaning or construction of the terms
of this Agreement.
10.6 Any action of any kind by either party arising out of this
Agreement must be commenced within two (2) years from the date
the right, claim, demand or cause of action shall first arise.
10.7 Before either party may initiate legal proceedings regarding
this Agreement, the party shall first refer such matter to the
chief executive officer of such party or his or her designee.
Following such referral, the chief executive officer or his or
her designee shall take all reasonable steps to resolve such
disagreement within two (2) weeks of the date of referral
thereof and shall negotiate in good faith, with each other to
such end. If the disagreement is not resolved in the course of
such negotiations between the chief executive officers or their
designees, the chief executive officers or their designees
shall consult with a neutral third party mediator and shall use
their reasonable best efforts to procure a determination from
such mediator within two (2) weeks of the date on which the
mediator was first consulted. Unless such chief executive
officers or their designees agree to the contrary in writing,
any advice or decision of the mediator shall not be binding
upon the parties. It is understood that the parties shall each
carry their own burden for any costs or associated legal fees
for any such mediation.
10.8 Any notice under this Agreement shall be given in writing by
personal delivery or by mail directed to the address of the
party which is set forth in this Agreement or to such other
address as may be substituted by notice to the other party. All
notices shall be effective upon receipt.
10.9 This Agreement (including the applicable Schedules and Exhibit)
contains the complete and exclusive understanding of the
parties with respect to the subject matter hereof. No waiver,
alteration, or modification of any of the provisions hereof
will be binding unless in writing and
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signed by a duly authorized representative of the party to be
bound. Neither the course of conduct between the parties nor
trade usage will act to modify or alter the provisions of this
Agreement. If Wink issues a purchase order or other similar
document it shall be for Wink internal purposes and, therefore,
even if it is acknowledged by XXXX, the terms and conditions of
such purchase order or similar document will have no effect on
this Agreement or the Services.
GE INFORMATION SERVICES, INC. WINK COMMUNICATIONS
By: /s/ XXXXXX XXXXXX By: /s/ XXX XXXXXXXXX
--------------------------------- ----------------------------------
Name: Xxxxxx Xxxxxx Name: Xxx Xxxxxxxxx
------------------------------- --------------------------------
Title: Mgr., Manufacturing Solutions Title: Sr. Vice-President, Operations
------------------------------ & Deployments
-------------------------------
Date: 6/14/99 Date: 6/3/99
------------------------------- --------------------------------
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SCHEDULE A
WINK DATA CENTER SERVICE DESCRIPTION
HOSTING SERVICES
The following is a description of the application hosting service that XXXX
will provide in relation to the Wink Data Center application. The hardware
used to host the Wink Data Center is currently configured with two
dedicated Sun Ultra 2300s with 512 megabites of memory and 12-16 gigabytes
of usable disk storage ("Hardware Configuration"). Primary LAN segments are
10/100 base T. The Backup and Recovery LAN is 100 megabit Ethernet. Cisco
routers are used to manage access to the hosting environment from XXXX'x
and Wink's networks. However, the actual hardware and software
configuration at any time will be dictated primarily by two factors:
XXXX STANDARD HOSTING PRACTICES: Such standard hosting practices are
generic in nature and are intended to provide Wink with a general
framework of XXXX' operating procedures. For Wink's reference, a
high-level description of GIS' standard hosting practices is contained
herein.
WINK'S SPECIFIC DEFINED REQUIREMENTS: It is expected that the specific
requirements of the Wink Data Center application will be dynamic. To
assist Wink in understanding how XXXX intends to support the Wink Data
Center application, XXXX is providing to Wink herein an outline of its
understanding of the first phase of the specific Wink-defined Wink
Data Center design and development requirements, which requirements
are intended to serve as a boundary for the applications that XXXX has
committed to host for Wink.
The manufacturer performance rating for the Hardware Configuration, using
SPECint_rate95 was 219. For the term of this Agreement, the Hardware
Configuration will equal or exceed the current Hardware Configuration and
will be capable of processing at a SPECrate_int95 of 219 or better.
Additionally, XXXX tested the Wink Data Center in its production
environment, including the abovementioned Hardware Configuration, on
November 10, 1998, using specific Wink-provided test data and with no other
applications or users consuming Hardware Configuration resources. Under
these conditions, the Wink Data Center was able to process 83 transactions
per second. Wink understands and agrees that XXXX does not make any
warranty or representation with respect to the processing or throughput
capabilities of the Wink Data Center application or the Hardware
Configuration. Wink further understands that actual throughput in the
production environment will be impacted by various factors, including, but
not limited to, software changes, reporting queries, database updates,
database capacity, applications installed on the Hardware Configuration
and/or consuming Hardware Configuration resources, and the number of users
utilizing Hardware Configuration resources.
SERVER CONFIGURATION
In general, an application may be deployed to a single server, or it may be
split among multiple specialized servers. While deployment to a single
server represents a preferred, simpler approach, a variety of factors
including security considerations, connectivity requirements and
performance requirements may drive the need to deploy to multiple servers.
The decision regarding which configuration is appropriate for Wink's hosted
applications is made by XXXX as part of the production design process.
XXXX will utilize and support the operating environment for the Wink Data
Center for all operating system and application supporting software within
XXXX ownership. Operating system and application support software shall
include but not be limited to the following initial vendor supported
systems:
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Sun Solaris 2.6
Actra ECXpert V1.0.2
Oracle 7 Workgroup Server 7.3.3
Perl 5,002
WU-FTPD 2.4.1
All operating system and application support software will operate within
two (2) levels of the applicable vendor's most recently released version for
commercial services.
High Availability
[GRAPHIC]
Application Failover Configuration
This figure illustrates a 4 + 1 configuration where each
application server fails to the spare device. The current status
of failover capability at XXXX is as follows:
Solaris: Manual failover in less than four hours. Alternatives for
automated failover are under evaluation.
STORAGE CONFIGURATIONS
Wink's storage environment initially will be configured on a high
availability disk.
BACKUP AND RECOVERY
Weekly full system backups and daily incremental backups are completed,
standard, for all storage systems. Most systems have been migrated from
using direct DAT tape backup to an automated DLT (digital linear tape)
robotics backup system, under control of Open(TM)Vision NetBackup software.
The DAT and DLT backup tapes are produced once a week and taken off-site at
each center.
PROBLEM IMPACT
XXXX uses the reported problem impact stated by Wink as the primary method
for determining escalation of a given problem. The following four classes
are used to measure the impact of a given problem in the Wink Data Center:
SEVERE: Problem has caused severe impact to the Wink Data Center.
There is no work around for the problem and because of the
nature of the problem, it is felt that the impact may go on
for a protracted period of time. Such problems are
immediately referred by XXXX Client
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Services to the appropriate on-call Processing Platform
Engineering resource. A Client Services Manager is
immediately notified of severe problems. The problem will
continue to be escalated upward as long as the problem is
open.
MAJOR: The problem impacts large portions of the Wink Data Center
for an extended period of time. Such problems are
immediately referred by XXXX Client Services to the
appropriate on-call Processing Platform Engineering
resource. A Client Service Manager is notified as soon as
reasonably possible. Further escalation will occur if
needed.
MODERATE: The problem causes moderate impact to the Wink Data Center.
An electronic ticket is generated and taken by the first
available technician within the Client Services. Moderate
problems are not escalated to on-call support after normal
XXXX support hours.
MINOR: Nuisance problems or informational inquiries are considered
minor or nominal. An electronic ticket is generated and
taken by the first available technician once higher priority
calls are addressed. Minor and Nominal problems are not
escalated to on-call support after normal XXXX support
hours.
QUALITY CALL
Ordinarily, XXXX personal conduct a "Quality Call" every XXXX business day
to escalate problems to senior management, engineering, operations, and
support personnel. Moderate, Major, and Severe problems are automatically
flagged in XXXX'x client services call tracking system to be included in
the next Quality Call. During the Quality Call, problems are reviewed and
action items are generated as needed. Resources from across the business
are called upon to assist in problem resolution. Problems are updated daily
and remain open in the Quality Calls until resolved.
CAL ESCALATION
XXXX'x Client Services uses the reported problem impact stated by Wink as
the primary method for determining the escalation of a given problem. It
is, therefore, Wink's responsibility to communicate as accurately as
reasonably possible the impact when opening a ticket and to adjust the
severity if the impact changes. A case number will identify Wink's problem
and is used to track the issue throughout the problem resolution process.
XXXX PROBLEM ESCALATION GUIDELINES
XXXX escalates problems internally, on an estimated time-frame basis, as
outlined in the following table.
IMPACT CLIENT SERVICES PROCESSING PLATFORM ENGINEERING SPECIALIST
------ --------------- ------------------------------- ----------
Severe Immediate 30 Minutes 1 Hour
Major 30 Minutes 2 Hours 4 Hours
Moderate 1 Day 2 Days (via Quality Call) 2 Days (Quality Call)
Minor None None None
Sales Escalation:
Tier 1. Minor issues are addressed by the Account Executive. The
Account Executive is authorized to use local resources to fix
the problem.
Tier 2. Minor to moderate problems are addressed by the Region Manager.
Problems are taken to this level when no additional resources
are available at the local level.
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Tier 3. Moderate to major problems are handled at the Area Level.
Problems are brought to this level when resources are no
longer available at the region level.
Tier 4. Severe problems are addressed by the applicable XXXX Vice
President or senior manager, Problems are escalated to this
level when resources have been exhausted at the area level.
LAN CONFIGURATIONS AND TECHNOLOGIES
The following diagram describes the local network architecture used in
the current XXXX Unix hosting environment:
[CHART]
HIGH LEVEL NETWORK ARCHITECTURE
SECURITY
XXXX data centers are physically secured both through electronic means
and with a 24 x 7 third-party security staff. Physical firewalls
separate major portions of the largest centers and all centers are
equipped with:
o Video surveillance, infra-red & motion detection systems
o Automated environment systems ensuring constant temperature &
humidity with remote management and alarms
o Heat, smoke and water detection systems
o Automatic fire extinguishing systems using environmentally
safe INERGEN
o Redundant power feeds from local utilities
o Uninterruptable Power Supply with battery backup & diesel
turbines
Network security is provided via packet-filtering routers which block all
services except those required to reach the application. Administrative
access to all servers is governed by firewalls which perform keystroke
logging. Systems at XXXX are audited with a Type 1 audit once every 18
months by an independent agency. Published results of these audits are
available upon request.
APPLICATION STAGING AND DEPLOYMENT
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Applications that have successfully completed a UDP review are first staged
to a pre-production environment where operability testing is performed by a
XXXX-assigned Application Engineer and Database Administrator.
APPLICATION ENGINEERS AND DBAs
A XXXX Application Engineer is assigned to the Wink Data Center
application. Application Engineers are involved in the earliest stages of
the application lifecycle, but, provided that the application has
successfully completed a UDP review, XXXX Application Engineers begin to
drive the project at the staging and deployment phase.
A XXXX Database Administrator is assigned to each application which
utilizes a relational or object relational database manager.
STAGING ENVIRONMENT
Application operability testing is performed in the Staging Environment to
the deployment of the application to the production environment. During
staging, the assigned Application Engineer and Database Administrator complete
the following tests:
o Application installation and de-installation;
o Application startup and shut down;
o Application and Database backup and recovery;
o Application and Database failover and recovery;
o Application and Database trapping on failure conditions;
o MIB definition validation;
o Application and Database performance testing;
Upon completion of operability testing, the application is deployed to
production servers.
SPECIFIC DEFINED REQUIREMENTS
The core of the Wink Data Center is Netscape's ECXpert product, which
serves to:
o receive data from cable operators and billing service providers;
o verify trading partner relationships;
o move data through appropriate processing steps;
o provide document tracking and audit trail; and
o schedule subsequent processing and data delivery;
Subscriber Accounts processing:
o provides a data store for information about Wink subscribers;
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o updated with files supplied Wink;
o may also be updated using a browser based GUI.
Response Transactions processing:
o files sent by Wink;
[*]
Order Tracking:
o Order data from responses will be saved in a tracking data store;
o Order acknowledgments from suppliers will be posted to the same data
store; and
o A browser-based GUI will provide access to the order tracking
information.
UIC Registration:
o UIC mapping and routing data will be kept in a data store;
o Updating will be accomplished with a browser based GUI;
o Response processing will use this data to decode response payloads;
and
o Reporting will use this data to generate headings and data
descriptions.
Application Administration provides data stores and browser based GUIs for:
o Unix account registration;
o Customer Service Representative Registration;
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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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o Trading Partner definition and relationships;
o Review of Exception Response Transactions; and
o ECXpert job scheduler updates.
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SCHEDULE B
WINK DATA CENTER
PRICE SCHEDULE
(U.S. ACCESS AND USE ONLY)
Subject to Section 2.4 of the Agreement, the following prices will apply during
the term of the Agreement and this Price Schedule commencing as of the date of
XXXX'x written certification that Version 1a of the Wink Data Center is
deployed and fully functional. Such prices are in lieu of any and all other
charges specified in XXXX'x Information Services Price Schedule which might
otherwise be applicable. The prices set forth below are firm for a period of
sixty (60) months, and thereafter shall be at such rate as agreed to in writing
by the parties.
[*]
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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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[*]
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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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