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EXHIBIT 10.11
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the Twelfth day of December, 1997, by and between
Wink Communications, Inc., a California corporation ("Wink"), whose address is
0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and Xxxxxx Entertainment Group,
("Programmer"), whose address is 0000 Xxxxxxxx Xxxxx X.X., Xxxxxxx, XX 00000.
1. GRANT OF LICENSE
1.1 Wink hereby grants to Programmer the non-exclusive license to use Wink ITV
Studio, Wink Server Studio, Wink ITV Broadcast Server, and Wink provided
Server Modules version 1.0 and 1.x updates (hereinafter collectively
referred to as "Wink Software") to deliver interactive program(s) which
utilize the vertical blanking interval ("VBI") or an MPEG private data
stream provided concurrently with the corresponding video signal and are
compliant with the Wink interactive communications application protocol
("Interactive Programs") to all Programmer viewers in the continental
United States, Alaska, Hawaii, and the US territories in the Caribbean and
Canada.
1.2 This License is not transferable, nor may any rights hereunder be
transferred, assigned or sub-licensed in whole or in part without Wink's
prior written consent except to Programmer's parent, subsidiary or
affiliated companies.
1.3 Programmer can only use the Wink software to provide Interactive Programs
with the video programming service(s) listed in Exhibit A. Programmer must
notify Wink in writing at least 30 days prior to commencing transmission
of Interactive Programs with a video programming service. Programmer
agrees to adhere to the technical specifications for the insertion of
Interactive Programs provided in Exhibit A. Exhibit A, including the
programming services enabled to insert Interactive Programs in
Programmer's video signal, may be amended from time to time by mutual
agreement.
2. TERM
2.1 The term of this Agreement shall commence on the date of execution and
terminate three (3) years after the first broadcast of Interactive
Programs to a commercial audience ("First Air Date") unless previously
terminated in accordance with the terms hereof.
2.2 Notwithstanding anything herein to the contrary, Programmer can elect to
terminate this Agreement twelve (12) months after the First Air Date (the
"Option Date.) Programmer agrees to use reasonable efforts to define its
audience and business objectives (the "Audience Objectives") and notify
Wink of said objectives within thirty (30) days following the execution of
this Agreement as a
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guide for Wink's performance under this Agreement. Programmer agrees in
good faith to consider Wink's success in meeting the Audience Objectives
as a factor in whether it will exercise its option to terminate. To effect
the option to terminate, Wink shall notify Programmer in writing of said
option no later than (30) days prior to the Option Date. This Agreement
will automatically terminate in the event Programmer fails to provide
written confirmation to Wink of Programmer's intent to continue its
obligations hereunder, subject to the license fees set forth in Exhibit C
and all other terms and conditions hereof, by the Option Date. Without
limiting the foregoing, Programmer will have the right to suspend the
airing of Interactive Programs under the conditions described in Paragraph
13.4 of this Agreement.
3. INTEGRATION AND PROGRAMMING
3.1 Programmer will distribute the interactive Programs with the national feed
for each Programming Service defined in Exhibit A, or in the absence of a
single national feed, through the feed with the largest household
reception area in the country and on any additional feeds that reach at
least 5% of Programmer's existing subscribers. Such distribution will take
place through Programmer's national uplink or broadcast facilities.
Programmer shall not be obligated to distribute the Interactive Programs
on any feed other than Programmer's primary national feed in the event
that such distribution requires the extension of manpower above and beyond
the requirements the parties have previously discussed.
3.2 Programmer and Wink agree to collaborate to enable the installation and
integration of the Wink Software into Programmer's facilities, and to
ensure the reliable transmission of the Interactive Programs. Programmer
is responsible for providing all equipment necessary to run the Wink
Software and to enable insertion of Interactive Programs into the
appropriate video signal. Exhibit E provides a preliminary list of such
equipment, and is subject to a final site visit by Wink's Operations
department. Programmer will be presented with a final list of equipment no
later than 21 days following the execution of this agreement subject to
completion of the site visit referenced above. Wink will bear the cost of
any equipment that is above and beyond the equipment cost estimate
provided in Exhibit C.
3.3 Wink agrees to provide to Programmer, at no cost to Programmer, weekly
reporting of all response traffic generated by Programmer viewers and
collected by Wink's Data Center. Wink will use reasonable efforts to
provide Programmer the opportunity to influence the format of and data
included in such reports as a Charter Programmer. [ * ]
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Notwithstanding the foregoing, the parties agree in good faith to review
the Response Routing Terms no later than six (6) months following
execution hereof, and to modify such Response Routing Terms as may be
deemed reasonably necessary by mutual agreement of the parties. Wink
further agrees that the Response Routing Terms contained herein, are, as a
whole, as favorable or more favorable than the terms of any agreement Wink
has entered into with other North American cable programming entities.
3.4 Beginning on the First Air Date, Programmer agrees to air Interactive
Programs [ * ] on each enrolled Programming Service (as herein defined).
Programmer understands and accepts that any additional programming
services which take advantage of the terms provided in this Agreement must
air a minimum of [ * ]. Programmer may decide which shows include
Interactive Programs and the nature of such enhancements, as long as the
total number of hours per week is reached. No later than six (6) months
following the First Air Date, Programmer will extend reasonable efforts to
air at least [ * ], subject to the availability of Programmer's internal
resources.
3.5 Programmer is responsible for payment to third party providers of sports
data or news, leagues, and other entities to which Programmer deems it
necessary to make payments to enable the creation or transmission of
Interactive Programs.
3.6 The parties expect that the Interactive Programs will require bandwidth
equivalent to one dedicated line of VBI on each programming service.
Programmer may elect to use additional VBI lines in it's sole discretion.
3.7 All rights, including, without limitation, all copyrights, in and to the
Interactive Programs and all derivatives thereof shall belong at all times
to Programmer, and nothing herein shall be construed to convey to Wink any
right, title or interest in or to such Interactive Programs. Programmer
may license, exploit or otherwise use such Interactive Programs in any
manner Programmer may deem appropriate, whether internally or in
connection with any third party. Notwithstanding the foregoing, Programmer
may not sub-license Wink Software, or act as agent for Wink.
4. RATES AND DEPLOYMENT
4.1 Programmer agrees to provide Interactive Programs as described in this
Agreement for the programming services listed in Exhibit A.
4.2 Programmer agrees to remit the license fees and other payments as
described in Exhibit C on a timely basis.
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4.3 Programmer agrees to provide the Interactive Programs to any multichannel
video operator in the United States or Canada with whom Programmer already
has an agreement for carriage of Programmer's video programming ("System
Operators") under the terms described in Exhibit D to the extent permitted
by such agreement, and agrees, that Wink may provide a copy of Exhibits A
and D to any System Operator as evidence of Programmer's agreement to
supply the Interactive Programs under such terms and any additional terms
imposed by the agreement for carriage of Programmer's video programming.
4.4 Programmer may choose to utilize other products and services of Wink from
time to time under this Agreement. These services will be extended by Wink
to Programmer at the then prevailing retail rate.
5. PAYMENT TERMS
5.1 Within sixty (60) days following receipt of detailed invoice therefor,
Programmer shall remit to Wink all fees owed for licenses provided and
services rendered in the previous month, according to the price schedules
provided in Exhibit C.
5.2 Wink's failure, for any reason, to send an invoice for a particular
monthly payment shall not relieve Programmer of its obligation to make any
payment in a timely manner consistent with the terms of this Agreement.
Past due payments shall bear interest at a rate equal to the lesser of (i)
one and one-half percent (1.5%) per Month or (ii) the maximum legal rate
permitted under law, and Programmer shall be liable for all reasonable
costs and expenses (including, without limitation, reasonable court costs
and attorneys' fees) incurred by Wink in collecting any past due payments.
6. PROMOTION AND RESEARCH
6.1 The parties agree to issue a press release announcing this agreement on or
before December 10, 1997. Wink will provide Programmer with a draft of
this release by December 3, 1997.
6.2 Wink agrees to provide Programmer with notice within 30 days of new System
Operators having enabled their subscribers to receive Programmer's
Interactive Programs.
6.3 Wink agrees to promote and feature Programmer's Interactive Programs in
Wink's marketing literature, during meetings with cable operators and the
press, and during industry trade shows, provided that any materials
produced by Wink which feature screen shots, trademarks, tradenames,
logos, or video clips or other copyrightable works belonging to or
controlled by Programmer, as well as any press releases issued by Wink
featuring Programmer or any Programming Service, shall be subject to
Programmer's prior written approval.
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Wink will also use reasonable efforts to assist Programmer in achieving
it's marketing objectives in materials prepared by third parties, such as
cable equipment manufacturers and cable operators. Programmer agrees to
serve, where possible and subject to Programmer's internal policies and
any potential conflicts of interest, as a press reference for Wink during
the effective term of the agreement.
6.4 Wink and System Operators may prepare marketing materials relating to the
Interactive Programs and may use Programmer's name, logo and such screen
shots and video clips as may be selected and/or cleared by Programmer
(collectively, "Programmer's Marks") from the Interactive Programs, which
Programmer's Marks will be made reasonably available to Wink by
Programmer, provided that such materials are submitted to Programmer for
review and written approval prior to distribution. Wink hereby
acknowledges and agrees that, as between Wink and Programmer, Programmer
is the sole owner of all right, title and interest in and to the
Programmer's Marks, the Interactive Programs and any data used in
connection therewith. All uses of the Programmer's Marks shall inure to
the benefit of Programmer. Upon any expiration or termination of this
Agreement, Wink shall delete and discontinue all use of the Programmer's
Marks. At no time during or after the term of this Agreement shall Wink
challenge or assist others to challenge the Programmer's Marks or the
registration thereof or attempt to assist another in the attempt to
register any trademarks, marks or similar rights for marks the same as or
confusingly similar to the Programmer's Marks.
6.5 Wink may, from time to time, undertake marketing tests and surveys, rating
polls and other research in collaboration with Programmer. Programmer
shall provide Wink with reasonable assistance at no cost to Programmer in
conducting such research with respect to Programmer's viewers subject to
Programmer's internal policies and guidelines governing privacy and data
collection. Programmer agrees that Wink will have access to all such
research regarding the deployment, launch, and usage of Wink service by
Programmer viewers. Wink agrees to provide copies of final reports from
such research activity to Programmer.
6.6 Programmer understands and accepts that Wink will be providing reports on
viewer responses to the Interactive Programs to System Operator(s) for
responses that originate from System Operator's subscribers, and to
advertisers and other parties for responses that originate from
Interactive Programs paid for or sponsored by such parties. Wink agrees
that reports providing specific data regarding viewer responses to
Programmer's Interactive Programs, including data on Wink viewer responses
to advertising on Programmer's Programming Services, will not be made
available to other broadcast or cable networks, except in aggregated form
that does not identify Programmer or specific Programmer viewer data.
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7. WARRANTY
Wink hereby represents and warrants to Programmer that (i) the Wink
Software (and subsequent revisions and upgrades to same provided by Wink
to Programmer) will operate and perform in accordance with all published
specifications with respect thereto; (ii) the use by Programmer of the
Wink Software or any other rights granted by Wink hereunder will not
infringe upon the patent, copyright, trademark, or other intellectual
property rights of any third party; (iii) Wink will perform all
obligations and render all services hereunder in a professional and
workmanlike manner to the best of its abilities; (iv) Wink will throughout
the Term continue to aggressively promote and license its products and
services to cable system operators and broadcasters, and will use all
reasonable efforts to achieve the Audience Objectives and (v) the terms
contained herein, including, without limitation, all license, reporting,
installation and integration fees set forth on Exhibits B and C hereto,
are, as a whole, as favorable or more favorable than the terms of any
agreement Wink has entered into with other North American cable
programming entities agreeing to a similar programming commitment for the
provision of similar services and the granting of similar rights and
licenses, it being acknowledged and agreed that nominal differences in the
agreed number of programming hours does not constitute a "dissimilar"
programming commitment for purposes of this section.
8. INDEMNIFICATION
Wink shall indemnify, defend and hold harmless Programmer, its parents,
subsidiaries, and affiliates and their respective officers, directors,
employees and agents from and against any and all damages, liabilities,
costs and expenses (including, without limitation, reasonable attorneys
fees and amounts paid in settlement) they may suffer or incur which arises
out of or as a result of any, claim, demand, action, suit or proceeding in
which it is alleged that the Wink Software or any part thereof violates or
infringes any patent or copyright or other intellectual property right of
any third party or constitutes a misappropriation of any third party's
trade secrets or otherwise arising out of any negligent action of Wink in
connection with this Agreement.
9. NOTICES
All notices, statements, and other communications given hereunder shall be
in writing and shall be delivered by facsimile transmission, personal
delivery, certified mail, return receipt requested, or by next day express
deliver, addressed, to the addresses provided in the first paragraph of
this Agreement, and to the attention of:
If to Wink:
Vice President, Content
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If to Programmer:
Xxxxx Xxxxx
The date of such facsimile transmission, telegraphing or personal delivery
or the next day if by express delivery, or the date three (3) days after
mailing, shall be deemed the date on which such notice is given and
effective.
10. WINK TRADEMARKS
All rights, title and interest in and to the Wink Software or other
rights, of whatever nature, related thereto shall remain the property of
Wink. Further, Programmer acknowledges and agrees that all names, logos,
marks, copyright notices or designations utilized by Wink in connection
with the service are the sole and exclusive property of Wink, and no
rights or ownership are intended to be or shall be transferred to
Programmer. Notwithstanding the foregoing, Programmer may use the
intellectual property of Wink referenced in this Section in any marketing
or promotional materials produced by Programmer, subject in all instances
to Wink's prior written approval.
11. REPRESENTATION
11.1 Wink represents and warrants to Programmer that (i) it is a corporation
duly organized and validly existing under the laws of the State of
California; (ii) Wink has the corporate power and authority to enter into
this Agreement and to fully perform its obligations hereunder (iii) Wink
is under no contractual or other legal obligation which in any way
interferes with its ability to fully, promptly and completely perform
hereunder.
11.2 Programmer represents and warrants to Wink that (i) Programmer is a
corporation duly organized and validly existing under the laws of the
State of Georgia; (ii) Programmer has the requisite power and authority to
enter in this Agreement and to fully perform its obligations hereunder;
and (iii) Programmer is under no contractual or other legal obligation
which in any way interferes with its ability to fully, promptly and
completely perform hereunder.
12. CONFIDENTIALITY
12.1. Each party agrees that it will not use, except in the performance of its
obligations under this Agreement, and will not disclose or give to others,
any of the other party's Confidential Information (as defined below).
Without limiting the generality of the foregoing, each party will (i)
restrict the disclosure of the other party's Confidential Information to
those of its employees who require such information for purposes of
performing its obligations hereunder, (ii) inform each such employee of
the confidential nature of the information
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disclosed, (iii) prevent the use or disclosure by its employees of such
Confidential Information, except as provided herein, and (iv) promptly
notify the other party of any use or disclosure of the Confidential
Information, whether intentional or not, which violates the provisions of
this Paragraph 12.1. For purposes of this Agreement, the term
"Confidential Information" means all technical, business and other
information disclosed by one party to the other that derives economic
value, actual or potential, from not being generally known to other
persons, including, without limitation, technical and non-technical data,
devices, methods, techniques, drawings, processes, computer programs,
algorithms, methods of operation, financial data, financial plans, product
plans, and lists of actual or potential customers or suppliers.
Confidential Information does not include information which does not
constitute a trade secret under applicable law after the second
anniversary date of this Agreement, for which is made available by Wink or
becomes available to the general public during the term. The parties agree
to keep the terms of this Agreement confidential, but acknowledge that
certain disclosures may be required by law. Programmer understands and
acknowledges that Wink may provide copies of Exhibits A and D to System
Operators.
12.2. Programmer acknowledges and agrees that any terms extended by Wink to
Cable News Network, Inc. in an agreement with that party ("The CNN
Agreement"), and specifically the Payment Terms of the CNN Agreement, of
which employees of Xxxxxx Entertainment Group may become aware in the
course of their work are also considered by Wink to be "Confidential
Information" and are subject to the confidentiality agreement in 12.1.
13. TERMINATION
13.1 Except as otherwise provided herein, neither Programmer nor Wink may
terminate this Agreement except upon sixty (60) days prior written notice
and then only if the other has made a misrepresentation herein or breaches
any of its material obligations hereunder and such misrepresentation or
breach (which shall be specified in such notice) is not or cannot be cured
within sixty (60) days of such notice.
13.2 Notwithstanding the above, either party will have the right to terminate
this Agreement or all or any licenses granted herein if the other party
fails to comply with any of its material obligations, including but not
limited to timely payment of license fees and other fees due Wink, under
this Agreement. Should either party elect to exercise this right to
terminate for nonperformance, it must be done in writing specifically
setting forth those items of nonperformance. The other party will then
have fifteen (15) days from receipt of notification to remedy the items of
nonperformance. Should such other party fail to correct these items of
nonperformance, then terminating party may terminate this agreement and
any license granted herein. The termination of this Agreement shall be
without prejudice to any other remedies the parties may have, including,
without
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limitation, all remedies with respect to the unperformed balance of this
Agreement; provided, however, that if Programmer has not made payment of
the fees or charges due hereunder and such nonpayment continues after
thirty (30) days prior written notice by Wink, then Wink may terminate
this Agreement or any license granted herein.
13.3 Upon expiration of the term (including any extensions thereof) of this
Agreement or upon the termination of this Agreement or of any license
granted hereunder for any reason, all rights of Programmer to use the Wink
Software will cease and Programmer will immediately and on reasonable
terms (i) grant to Wink access to its business premises and the Wink
Software and allow Wink to remove the Wink Software (which removal shall
be done with as little disturbance as possible to Programmer's business
operations), (ii) purge all copies of all Wink Software from all computer
processors or storage media on which Programmer has installed or permitted
others to install such Wink Software, and (iii) when requested by Wink,
certify to Wink in writing, signed by an officer of Programmer, that all
copies of the Wink Software have been returned to Wink or destroyed and
that no copy of any Wink Software remains in Programmer's possession or
under its control.
13.4 Programmer has the right to suspend the airing of Interactive Programs if
(i) utilization of the Wink Software and Wink services interferes in any
way with the airing of Programmer's programming, (iii) Wink fails to
provide weekly reports regarding usage of Programmer's Interactive
Programs, or (iii) Wink breaches any other of its obligations hereunder.
Any suspension hereunder will not extend the term of the Agreement.
14. GENERAL
The parties agree that in the event it is necessary to employ attorneys to
enforce the terms of this Agreement, the prevailing party in any lawsuit
shall be entitled to an award of reasonable attorneys' fees and court
costs.
a) This Agreement may not be assigned without prior written mutual consent of
Programmer and Wink except Programmer may assign this Agreement without
consent to any of Programmer's parent, subsidiary or affiliated companies
or in the event of a sale or redistribution of all or substantially all of
the assets of any Programmer Service in which case such assignment will
apply only to such Programmer Service.
b) This Agreement may be amended only by an instrument in writing, executed
by Programmer and Wink.
c) This Agreement will be governed in all respects by the laws of the State
of California.
d) This Agreement represents the entire agreement between the parties and
supersedes and replaces all prior oral and written proposals,
communications
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and agreements with regard to the subject matter hereof between Programmer
and Wink.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Agreement as of the Effective Date.
WINK COMMUNICATIONS, INC. XXXXXX ENTERTAINMENT GROUP
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxxxxx X. Xxxxxx
Title: President & CEO Title: EVP Finance & Admin
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EXHIBIT A: PROGRAMMING SERVICES
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Description of Programming Services:
-------------------------------------
NAME START OF WINK
VIRTUAL
INSERTION
PROGRAMMING VIDEO ICAP
CHANNEL? POINT (A/D) LOCATION
TNT February 1998 Analog TBD No Atlanta
TBS February l998 Analog TBD No Atlanta
Each programming service must air a minimum of [ * ] of Interactive
Programs per week
Contact Information:
ISSUE ADDRESS CONTACT(S) PHONE/FAX/E-MAIL
Actual Contact Info:
TBD
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EXHIBIT B: WINK RESPONSE CENTER SERVICES
Purchase Transaction Fees Price/Transaction
(Viewer name, address, credit card) [ * ]
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1 - 5,000 transactions/mo [ * ]
5,001 - 25,000 transactions/mo [ * ]
25,001 - 100,000 transactions/mo [ * ]
100,001 - 250,000 transactions/mo [ * ]
250,001 - 500,000 transactions/mo [ * ]
500,001 - up transactions/mo [ * ]
Credit Card Registration [ * ]
Request Transaction Fees [ * ]
(Viewer name, address only)
1 - 5,000 transactions/mo [ * ]
5,001 - 25,000 transactions/mo [ * ]
25,001 - 100,000 transactions/mo [ * ]
100,001 - 250,000 transactions/mo [ * ]
250,001 - 500,000 transactions/mo [ * ]
500,001 - up transactions/mo [ * ]
Polls by Zip Code - Report Only [ * ]
1 - 100,000 transactions/mo [ * ]
100,000 + transactions/mo [ * ]
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Polls by System - Report Only [ * ]
[ * ]
1 - 250,000 transactions/mo [ * ]
251,000 + transactions/mo [ * ]
1. Minimum monthly charges per application include UIC (Universal ICAP code)
registration.
2. All volume price breaks are based on total monthly transaction volume by
advertiser registering for the Wink Response Network service. The price
breaks are based on the "average" for the month. That is, the lowest price
applies to all transactions for the month.
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EXHIBIT B: WINK RESPONSE CENTER SERVICES (CONTINUED)
PURCHASE AND REQUEST TRANSACTION FEES INCLUDE / EXCLUDE;
1. Daily name & address lists delivered by fax, email, or electronic FTP or
mailbox.
2. UIC and application registration.
3. Standard report showing number of responses per day per ad per city.
4. Viewer credit card information if it is "on file" with the WRS. If not,
for the [ * ], Wink will mail a "purchase confirmation" to the viewer to
add the credit card, and provide a list of viewers who did not supply
their credit card.
5. Interface to standard EDI VAN for [ * ].
FULFILLMENT EDI/API
* Standard interface set-up fee [ * ]
* Non-standard Interface
* Interface License/Maintenance fee [ * ]
SETUP FEES-RESPONSE SERVICES
* Advertiser
* Content Provider [ * ]
REPORT GENERATION FEES [ * ]
RESPONSE DATA CENTER PRODUCTS
* Purchase confirmation mailer [ * ]
* List of responders who do not respond to
* purchase confirmation mailers [ * ]
* Branded envelope [ * ]
* Advertiser/Programmer Purchase Points Club [ * ]
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EXHIBIT C: WINK SOFTWARE AND SERVICES PRICING
All on-going fees are due within sixty (60) days following receipt of detailed
invoice therefor. The installation and integration fees are due upon successful
transmission and receipt by Wink testers of one nationally inserted test
application defined by Wink.
FIRST
ON-GOING ANNUAL TOTAL 3-YR YEAR ANNUAL TOTAL 3-YR TOTAL
OR ONE- RETAIL RETAIL XXXXXX PRICE FOR XXXXXX XXXXXX
TIME COSTS PRICE PRICE PRICE YR 2 & 3 PRICE SAVINGS
Broadcast Server (1) On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Broadcast Server On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
(2)
Server Module On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Tech Support On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ON-GOING [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Server Hardware One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
2 Data Insertion One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Units
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Installation and One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
integration (2 ch) [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Studio site license One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
(5 seats)
Server Studio site one-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
license (5 seats)
Studio/WebCore One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
training (3x2days)
SUBTOTAL (EST.) ONE-TIME [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
TOTAL BOTH [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
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(1) TNT, (2) TBS
Installation and integration will be charged at the price of time and materials,
as set forth on detailed invoice issued to Programmer by Wink, provided the
aggregate cost is no less than [ * ] and no greater than [ * ]
Additional networks may also be added subject to the following per network price
schedule:
FIRST
ON-GOING ANNUAL TOTAL 3-YR YEAR ANNUAL TOTAL 3-YR TOTAL
OR ONE- RETAIL RETAIL XXXXXX PRICE FOR XXXXXX XXXXXX
TIME COSTS PRICE PRICE PRICE YR 2 & 3 PRICE SAVINGS
Broadcast Server On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Server Module On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Tech Support On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ON-GOING [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Data Insertion Unit One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Installation and One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
integration
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
TOTAL BOTH [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
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EXHIBIT C: WINK SOFTWARE AND SERVICES PRICING, CONTINUED
Wink reserves the right to increase license fees annually after the first 12
months of the contract period by the percentage increase in the consumer price
index (CPI) for goods and services for the prior 12 months.
The pricing for installation and integration covers all work necessary to enable
scheduling and transmission of program enhancements based on Wink Studio
templates. It does not cover detailed integration with Programmer's ad insertion
system for the purpose of enabling enhancements to spot advertising.
OPTIONAL SERVICES
Custom interface work (ad insertion and traffic systems, etc.) [ * ]
Phone training and consulting beyond standard package [ * ]
Application development [ * ]
Travel expenses are billed separately at cost
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EXHIBIT D: PROGRAMMER'S TERMS FOR CARRIAGE OF INTERACTIVE PROGRAMS
Programmer:
Xxxxxx Entertainment Networks
Programming Services: TNT, TBS
This Agreement sets forth the terms and conditions for the national distribution
of Wink ITV Applications ("Interactive Programs") to any multichannel video
operator in the United States or Canada with whom Programmer already has an
agreement for carriage of Programmer's video programming ("System Operator").
1. BACKGROUND
Programmer has created one or more Interactive Programs which are compliant with
the Wink Communications, Inc. ('Wink") interactive communications application
protocol. The Interactive Programs are transmitted by Programmer using either
the vertical blanking interval ("VBI")of the corresponding video signal(s), or
using MPEG private data streams provided concurrently with the corresponding
video signal(s).
System Operator distributes one or more of Programmer's signals through one or
more of the following: cable, satellite and MMDS (wireless cable).
2. EFFECTIVE DATE AND TERM
The term of this Agreement shall commence on the date of Programmer's first
airing of Interactive Programs of this Agreement and terminate three (3) years
thereafter.
This Agreement will automatically renew for one year periods unless either party
notifies the other at least 90 days prior to the end of the then-current term of
that party's intent not to renew. THIS AGREEMENT WILL AUTOMATICALLY TERMINATE IN
THE EVENT THE CHARTER PROGRAMMER AFFILIATION AGREEMENT BETWEEN WINK AND
PROGRAMMER IS TERMINATED.
3. Integrity of Interactive Programs
Programmer will ensure that the Interactive Programs meet Wink's criteria for
Wink compliant applications (See Attachment 1). Programmer agrees that each
Interactive Program shall have been either successfully tested by Programmer or
certified as compliant by Wink prior to the Delivery to System Operator for
distribution.
Programmer understands that failure to meet the above criteria could result in
System Operator suspending the distribution of one or more Interactive Programs
until such time as all Interactive Programs are certified by Wink to be in
compliance.
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4. Distribution
Programmer hereby grants System Operator a non-exclusive license to distribute
the Interactive Programs delivered in the VBI or MPEG of Programmer's video
signal. Programmer agrees that each Interactive Program shall have been either
successfully tested by Programmer or certified as compliant by Wink prior to the
Delivery to System Operator for distribution, and shall bear any associated
costs of such testing.
Programmer agrees not to charge System Operator fees associated with Interactive
Programs for the term of this Agreement. Likewise, System Operator agrees that
no fees or charges will be due from carriage or retransmission of the
Interactive Programs as provided for hereunder.
WINK will provide System Operator written notice at least 30 days prior to
discontinuing national transmission of all Interactive Programs.
It is a condition of System Operator's right to carry the Interactive Programs
that System Operator shall distribute Programmer's Interactive Programs without
modification, and that System Operator may not modify or enhance any VBI lines
described in Exhibit A. Programmer agrees that System Operator may copy the
Interactive Programs for simultaneous transmission in different encoding formats
other than what Programmer currently uses including but not limited to, other
VBI formats, out of band channels, and MPEG2 private data streams; provided such
Interactive Programs are presented together with the original corresponding
video to System Operator's subscribers, and that such copying is done to enable
System Operators subscribers to properly receive and display the Interactive
Programs on their set top box or television set.
System Operator can, if permitted in Exhibit A, locally insert Interactive
Programs as instructed by Programmer. System Operator is solely responsible for
any costs associated with such local insertion. Programmer will notify System
Operator of changes to any such permissions through amendments to Exhibit A
provided at least 30 days prior to the effective date of such requirements.
System Operator may suspend transmission of the Interactive Program during the
insertion by System Operator of local advertising avails as authorized in any
separate agreements between Programmer and System Operator.
5. RESPONSE NETWORK
Programmer agrees to utilize the Wink Response Network for two-way Interactive
Programs. Programmer also agrees to use Wink Communication's standard scripts
and guidelines for response applications.
6. MARKETING MATERIALS
System Operator may prepare marketing materials relating to the Interactive
Programs and may use Programmer's name, logo, and screen shots from the
Interactive Programs in such marketing materials, provided that such materials
are
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submitted to Programmer for review and approval prior to distribution.
Programmer's approval of such marketing materials shall not be unreasonably
withheld or delayed.
7. SCOPE
This Agreement does not interfere with or negate other Agreements between
Programmer and System Operator. This Agreement represents all of the terms and
conditions for Programmer providing Interactive Programs. This Agreement may be
updated from time to time only by express written consent of Programmer.
PROGRAMMER
By: ____________________________
Name: ____________________________
Title: ____________________________
Date: ____________________________
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EXHIBIT D, ATTACHMENT 1: CRITERIA FOR WINK COMPLIANT APPLICATION
* All applications must be registered and contain a unique universal ICAP
code (UIC) prior to being broadcast.
* Registered applications have passed a standard set of tests which
validate:
* that the application can be delivered through the VBI, will arrive
as appropriate, and can be decoded in the Wink engine.
* that the application does not generate error messages.
* that the application receives scheduled updates, if applicable.
* that the application passes minimum acceptable latency standards.
* that the application does not cause System Operator technical or
operational problems.
* that the application, if two-way, generates the appropriate routing
address and usage data.
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EXHIBIT E: PRELIMINARY EQUIPMENT LIST
Wink Broadcast Server and Server Module
* Sun Ultra 1 or faster, with 64MB RAM, 1GB+ hard disk, TGX Graphics Sbus
Adapter, 17" Color Monitor, Sun 1.44 Internal Floppy Drive, Sun CD 12
Internal CD ROM, Sun Country Kit - UNIX (Keyboard, Mouse, Power Cords),
Sun Silver Server Support, Solaris 2.5.1, CD-ROM, Ethernet connection to
Programmer's LAN, dial-up modem (US Robotics Courier V. Everything)
* Norpak TES-3 VBI data inserters
* LAN/serial connections to master control system, ftp site (for data),
other hardware as necessary
* PC w/ Windows 95 and Ethernet connection to run WBS remote GUI
Wink Studio and Server Studio
* Pentium Windows PC with 16MB+ RAM, 1GB+ hard disk, 1024x768x256 color
graphics, 17"+ monitor, Ethernet connection to enable electronic delivery
of applications to the WBS, Internet access to enable electronic access to
Wink's Data Center
Test equipment
* GI CFT-2200 set top box, marketing firmware
* High grade video source (Beta SP with a time based corrector or better)
* Coax Modulator
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