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EXHIBIT 10.22
PERSONNEL SERVICES AGREEMENT
Agreement Effective Date:___________________
Between GE Information Services, Inc. ("XXXX"), 000 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000 and WINK COMMUNICATIONS ("Client"),with its principal
office 0000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, XX 00000
I. PERSONNEL SERVICES
1.1 In connection with the use or proposed use of services provided
by XXXX under an Information Services Agreement or a
Teleprocessing Services Agreement with Client ("Information
Services"), XXXX will provide Client the personnel services
listed below ("Services") subject to the terms and conditions of
this Agreement and the Task Description applicable to each
Service.
1.2 The Services to be provided are described in the attached Task
Descriptions which are listed below:
TASK DESCRIPTIONS
Develop requirements definition document for the following portions of
the Wink Response Network. Billing System Interface, Wink Reporting and Routing
from the Response Delivery System, Web Interface from WR Delivery System Phase
II EDI to Van.
THE TASK DESCRIPTIONS LISTED ABOVE FORM AN INTEGRAL PART OF THIS
AGREEMENT.
Additional Task Descriptions may be added by written agreement of the
parties.
1.3 Client will provide XXXX and its personnel, to the extent
reasonably required to perform Services, access to and use of
catalogs or user numbers assigned to Client under the agreement
for Information Services. Client will be responsible for payment
for this usage in accordance with the terms of the agreement for
Information Services.
II. SOFTWARE DEVELOPMENT SERVICES (If the development of software is included in
any task description, the provisions of this Article 11 shall apply.)
2.1 SOFTWARE DEVELOPMENT. XXXX will design, develop, test and install
the software program and related documentation described in the
attached Task
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Description ("Program"). The Task Description contains the full
and complete specifications for the work to be performed. Any
features, reports, formats or procedures not explicitly detailed
in the Task Description will not be developed by XXXX unless
agreed in writing in accordance with Paragraph 2.5 below.
2.2 DEVELOPMENT SCHEDULE. XXXX will use reasonable efforts to
complete development of the Program in accordance with the
schedule contained in the Task Description. It is understood that
this schedule is an estimate and is dependent upon timely receipt
from Client of all necessary authorizations to proceed and all
necessary information such a specifications, test data, and check
calculations.
2.3 PROPERTY RIGHTS. Client will own and have all right and title in
all materials first developed under this Agreement. XXXX retains
the unrestricted right to copy, use, and authorize others to use
such materials. Each of the parties will take reasonable
precautions to protect the other party's intellectual property
rights in the materials contained in the Program. XXXX grants to
Client an irrevocable, non-exclusive, worldwide, royalty-free
license to use, execute and copy any pre-existing materials
contained in the Program in connection with Client's use of
information Services. Nothing in this Agreement will be construed
to restrain XXXX or its personnel in the use of the techniques
and skills of computer operation, system design, and programming
acquired in the performance of Services.
2.4 CLIENT MATERIAL AND DATA. Client agrees that any machine readable
input furnished to XXXX will be in good and usable condition.
Client will be responsible for the correctness and completeness
of any programs data or other materials provided to XXXX. Client
will retain copies of all such materials and will provide XXXX
with an additional copy of any programs, data or other materials
lost or damaged while in XXXX' possession. If the loss or damage
results directly from any negligent or willful act of XXXX, XXXX
will reimburse Client for the reasonable cost of providing
copies. All materials provided by Client will remain the property
of Client and, within ninety (90) days after the completion of
Services, will be returned to client or disposed of in accordance
with Client's instructions.
2.5 REVIEWS AND CHANGES. Client will review the progress of the work
with XXXX no less frequency monthly. All changes requested by
Client will be in writing. XXXX will notify Client if a requested
change would either require additional time or increase XXXX'
charges in excess of that provided in the Task Description. XXXX
will perform the change only if XXXX and Client agree in writing
on additional time and/or charges.
2.6 ACCEPTANCE. XXXX will notify Client when the Program is ready for
acceptance testing by Client. Client will perform the acceptance
test specified in the Task Description ("Acceptance Test") within
the time period specified. XXXX will have the
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right to be present during the Acceptance Test. When the Program
meets all material requirements of the Acceptance Test, Client
will promptly notify XXXX in writing that it accepts the Program.
If Client fails for any reason to conduct the Acceptance Test
within the time period specified, Client will be deemed to have
accepted the Program. If the Program fails to meet all material
requirements of the Acceptance Test, Client will promptly notify
XXXX with reasonable detail of the deficiency and with sufficient
documentation and data to enable XXXX to replicate the
deficiency. XXXX will thereafter attempt to correct such
deficiencies and the Acceptance Test will then be repeated. If
XXXX fails to correct such deficiencies within a reasonable time
after receipt of Client notification of the deficiency, Client
will promptly, at its option, (i) terminate the applicable Task
Description by written notice to XXXX and return the Program and
all related materials to XXXX, or (ii) accept the Program despite
the deficiency. If Client elects to terminate the Task
Description, XXXX will promptly refund to Client all amounts paid
for the Program. If Client elects to accept the deficient
Program, the price of the Program shall be equitably reduced.
III. PAYMENT; TAXES; CHANGES
3.1. Client will be invoiced by XXXX for Services as stated in each
Task Description plus an amount. Equal to any applicable sales,
use, excise, value added, or similar taxes. In lieu of paying
such taxes, Client will provide XXXX with a tax-exemption
certificate acceptable to the taxing authorities. Fixed monthly
rates for Services initiated or terminated during a calendar
month will be prorated. In addition, Client will reimburse XXXX
for reasonable travel and living expenses incurred by XXXX for
travel approved by Client.
3.2 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 ten (10)
days. If an invoice remains unpaid after the cure period expires,
XXXX may (reserving all other remedies and rights) terminate this
Agreement without further notice to Client.
3.3 Except as otherwise expressly provided in a Task Description,
XXXX may change the prices under this Agreement or any Task
Description(s) on thirty-five (35) days prior written notice to
Client.
IV. NON-DISCLOSURE
4.1 Client acknowledges that XXXX' personnel may gain access to
Client's data in the course of providing Services to Client.
GEI'S will protect from unauthorized
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disclosure or access Client data in its possession to which its
personnel 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 Client data which is or becomes
publicly available without fault on the part of XXXX, is already
in XXXX' possession prior to the time XXXX gains access data
under this Agreement, is independently developed by XXXX, or is
rightfully obtained from third parties.
V. WARRANTY
5.1 XXXX warrants that each Service will be performed substantially
in accordance with the applicable Task Description. XXXX further
warrants that any Program developed pursuant to Article II will
conform in all material respects to the applicable Task
Description. These warranties will apply only to failures to meet
the applicable warranty which are reported to XXXX in writing
within ninety (90) days after (i) the date of the failure in the
case of Services, or (ii) the date of acceptance in the case of a
Program.
5.2 XXXX' sole obligations for failure to meet these warranties, will
be as follows: (a) For failure to perform any Service
substantially in accordance with the Task Description, XXXX will
refund any charges paid for individual services which were not
performed as warranted and will attempt to correct any such
failure. If XXXX does not restore the affected Service to
warranted performance within a reasonable time, Client may
terminate the affected Service. (b) For failures of any Program
to conform in all material respects to the Task Description, XXXX
will promptly attempt to correct such failure provided that
Client makes available to XXXX sufficient documentation and data
to enable XXXX to replicate the failure. If XXXX fails to correct
the failure within a reasonable time after receipt of Client
report of the failure, Client will promptly, at its option, (i)
terminate the applicable Task Description by written notice to
XXXX and return the Program and all related materials to XXXX, or
(ii) retain the Program despite the failure. If Client elects to
terminate the Task Description, XXXX will promptly refund to
Client all amounts paid for the Program. If Client elects to
retain the Program, the price for the Program shall be equitably
reduced.
5.3 The warranties and remedies stated in Sections 5.1 and 5.2 are
exclusive. NO OTHER WARRANTIES, EXPRESS IMPLIED, OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WILL APPLY. In addition, the warranties and
remedies stated in Sections 5.1 and 5.2 will not apply to any
Program that is modified after delivery by XXXX to Client.
5.4 XXXX DOES NOT WARRANT THAT THE SERVICES OR PROGRAMS WILL
MEET CLIENT'S REQUIREMENTS OR THAT USE OF THE SERVICES OR
PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT
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ASSUMES THE RESPONSIBILITY TO TAKE ADEQUATE PRECAUTIONS
AGAINST DAMAGES TO ITS OPERATIONS WHICH COULD BE CAUSED BY
DEFECTS, INTERRUPTIONS, OR MALFUNCTIONS IN THE SERVICES OR
PROGRAMS.
VI. EXCLUSIONS AND LIMITATION OF LIABILITY; EXCLUSIVE REMEDIES
6.1 AS A MATERIAL CONDITION OF RECEIVING XXXX' SERVICES AT THE PRICES
SPECIFIED IN THE APPLICABLE TASK DESCRIPTION, AND IN REGARD TO
ANY AND ALL CAUSES ARISING OUT OF OR RELATING TO THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO CLAIMS OF NEGLIGENCE, BREACH OF
CONTRACT OR WARRANTY, FAILURE OF A REMEDY TO ACCOMPLISH ITS
ESSENTIAL PURPOSE, OR OTHERWISE, CLIENT AGREES:
(a) THE LIABILITY OF XXXX WITH RESPECT TO ANY SERVICE WILL NOT
EXCEED, IN THE AGGREGATE, THE GREATER OF: (i) THE AMOUNTS
PAID BY CLIENT TO XXXX FOR THE SERVICE IN THE THREE (3)
MONTHS PRECEDING THE EVENT WHICH IS THE CAUSE OF LIABILITY
OR (ii) TEN THOUSAND DOLLARS ($10,000);
(b) THE LIABILITY OF XXXX WITH RESPECT TO ANY PROGRAM WILL NOT
EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY CLIENT TO
XXXX FOR THE PROGRAM, OR PART THEREOF, WHICH IS THE CAUSE
OF LIABILITY;
(c) XXXX WILL NOT BE LIABLE TO CLIENT FOR SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (EVEN IF XXXX HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS OR SAVINGS, LOSS OF USE
OF SERVICES OR PROGRAMS, COST OF CAPITAL, COST OF
SUBSTITUTE SERVICES OR PROGRAMS, DOWN TIME COSTS, OR
DAMAGES AND EXPENSES ARISING OUT OF THIRD PARTY
CLAIMS.
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 communications facilities or energy sources,
acts of God, acts of the other party, acts of governmental
authority, fires, strikes, delays in
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transportation, riots or war, or any cause beyond the reasonable
control of that party. If any such event prevents Client from
receiving any Service and continues for more than one (1) month,
Client may terminate the Task Description for the affected
Service upon delivery of written notice to XXXX.
VIII. GENERAL PROVISIONS
8.1 Client will not directly or indirectly solicit or offer
employment to, or accept from others, services by an employee of
XXXX during the performance of Services by said employee and for
six (6) months thereafter.
8.2 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.
8.3 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.
8.4 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.
8.5 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
8.6 The export or re-export of any Program by Client might require
authorization by a U.S. government agency. It is Client's
responsibility to determine and comply with any such requirement,
including, if necessary, making timely application in its own
name for any export license which might be required.,
8.7 The headings in this Agreement are for reference purposes only;
they will not affect the meaning or construction of the terms of
this Agreement.
8.8 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.
8.9 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.
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8.10 The provisions of Sections 3.2, 4.1, 6.1, 6.2, 8.5, 8.6, and 8.8
shall survive any termination or expiration of any Task
Description or of this Agreement.
8.11 This Agreement (including the applicable Task Descriptions)
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 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 Client issues a
purchase order or other similar document it shall be for Client
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
(Client)
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
Title: Region Mgr Title: VP-OPS
Date: 11/10/97 Date: 9/6/97
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