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EXHIBIT 10.12
CHARTER PROGRAMMER AFFILIATION AGREEMENT
THIS AGREEMENT is made as of the 25 day of February 1998, by and between Wink
Communications, Inc., a California corporation ("Wink"), whose address is 0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 and Showtime Networks Inc. a Delaware
corporation ("Programmer"), whose address is 0000 Xxxxxxxx, Xxx Xxxx, XX 00000.
1. GRANT OF LICENSE
1.1 Wink hereby grants to Programmer the non-exclusive license to use Wink
ITV Studio, Wink ITV Broadcast Server, and Wink provided Server Modules
version 1.0 and all revisions, enhancements and updates (hereinafter
collectively referred to as "Wink Software") to allow Programmer 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 in a manner compliant with the Wink
interactive communications application protocol, as defined in Exhibit
D, Attachment 1 ("Interactive Programs") to all Programmer viewers in
the continental United States, Alaska, Hawaii, and the US territories,
Commonwealths and Possessions (the "Territory").
1.2 This License is not transferable by either party, nor may any rights
hereunder be transferred, assigned or sub-licensed in whole or in part
without the other party's. prior written consent, provided, however,
that Programmer shall have the right, without the requirement to obtain
Wink's consent, to assign this Agreement to (i) a successor entity
resulting from a merger, acquisition of all or substantially all of
Programmer's assets or a consolidation by Programmer, or (ii) an entity
under common control, controlled by or in control of Programmer.
1.3 Programmer can only use the Wink Software to provide Interactive
Programs with the Programming Service(s) defined in Exhibit A.
Programmer agrees to use commercially reasonable efforts to adhere to
the technical specifications for the insertion of Interactive Programs
provided in Exhibit A. Exhibit A 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 of
this Agreement and terminate one (1) year thereafter.
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2.2 Programmer shall have the right to renew this Agreement for a one year
period by notifying Wink at least 90 days prior to the end of the
then-current term of Programmer's intent to renew.
3. INTEGRATION AND PROGRAMMING
3.1 Programmer will distribute the Interactive Programs with the primary
East and West Coast feeds for the Programming Service(s) defined in
Exhibit A. Such distribution will take place through Programmer's
national uplink or broadcast facilities, and is subject to Wink's
delivery to Programmer of all components necessary to ensure the
transmission of Interactive Programs.
3.2 Programmer and Wink agree to collaborate to enable the installation and
integration of the Wink Software into Programmers facilities, and to use
commercially reasonable efforts to ensure the reliable transmission of
the Interactive Programs. Programmer is responsible for providing the
equipment necessary to run the Wink Software and to enable insertion of
Interactive Programs into the appropriate video signals as set forth on
Exhibit E. Exhibit E provides a preliminary list of such equipment, and
may be amended by mutual agreement after afinal site visit by Wink's
Operations department. Programmer will be presented with a final list of
equipment no later then 21 days following the execution of this
Agreement, subject to completion of the site visit.
3.3 Programmer agrees to use reasonable efforts to commence transmission of
Interactive Wink Programs on or before February 15, 1998. For purposes
of this Agreement, the "First Air Date" shall mean the date Programmer
commences transmission of Interactive Programs as part of Programmer's
Programming Service. Wink understands and accepts that the First Air
Date is contingent upon a successful installation of. the Wink Software
and associated hardware, upon completion of training of Programmer
staff, and upon completion of design and test of the initial Interactive
Programs.
3.4 Wink agrees to provide weekly reporting to Programmer of all response
traffic generated by Programmer viewers using the Wink Response Network
and collected by Wink's Data Center. [ * ] .
--------
* 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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3.5 Beginning on the First Air Date, but subject to the other provisions of
the Agreement, Programmer agrees to air Interactive Programs for an
average of [ * ] measured as an average over each calendar month.
Programmer further agrees to air Interactive Programs an [ * ] within
120 days after the First Air Date. Notwithstanding the foregoing, in the
event Programmer fails to air the requisite number of hours as measured
over a calendar month period, Wink's sole and exclusive remedy shall be
to terminate this Agreement on thirty (30) days prior written notice to
Programmer.
3.6 Wink acknowledges that the Video Programming may be broadcast under
license from third parties, and that such third party licenses or the
business relationship with such third parties may, in Programmer's sole
but reasonable judgment, either contractually prevent Programmer from
providing, or limit the circumstances under which Programmer can
provide, Interactive Programs with respect to particular video programs,
limit the type of Interactive Programs that Programmer can provide, or
cause Programmer to incur additional rights costs, were Programmer to
air Interactive Programs. If Programmer's Programming Services, in
Programmer's sole and reasonable judgment, (i) are contractually
prevented from providing Interactive Programs with a majority of the
Video Programming, or will incur additional rights costs caused by the
Interactive Programs, or (ii) seeking such rights would endanger
existing important business relationships with third parties who license
programming to Programmer, Programmer may notify Wink in writing to this
effect, and postpone complying with section 3.5 promptly after the date
of such written communication. Programmer agrees that postponing the
airing of the Interactive Programs during this period does not relieve
Programmer of the obligation to air Interactive Programs for a total of
at least twelve (12) months.
3.7 Notwithstanding section 3.6 above, Programmer agrees that it is
responsible for payments to third party providers of Video Programming,
music, news, images and other entities that hold rights which Programmer
deems necessary to obtain to enable the airing of Interactive Programs.
This shall not be deemed to include the Wink Software or other elements
of the Wink system necessary to enable transmission of Interactive
Programs.
3.8 Wink further acknowledges that the Programming Service is broadcast by
Programmer's distributors (e.g., cable operators, DBS operators, MMDS
operators, etc) pursuant to license agreements between Programmer and
such distributors, and that nothing in this Agreement
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shall in any way be deemed to require Programmer to take or omit to take
any action or exhibit or utilize any Interactive Program that Programmer
deems, in its sole but reasonable judgment, would (i) be contractually
or otherwise prevented under any distribution agreement between
Programmer and any distributor of the Programming Service, (ii) endanger
or damage Programmer's relationships with any distributor of the
Programming Service, or (iii) cause Programmer to incur additional
costs.
4. RATES AND DEPLOYMENT
4.1 Programmer agrees to remit the license fees and other payments as
described in Exhibit C on a timely basis.
4.2 Programmer agrees to provide the Interactive Programs to any multi
channel video operator in the Territory with whom Programmer has a valid
and binding agreement for carriage of the Programming Service set forth
herein ("System Operators") under the terms described in Exhibit D, 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. Wink shall require System Operators to comply
with the confidentiality provisions of section 11 below.
4.3 Programmer may choose to utilize other products and services of Wink (as
set forth in Exhibits B or C) from time to time under this Agreement.
These services will be extended by Wink to Programmer at the rates set
forth therein; however, such prices shall at all times be extended on a
most favored nations basis with regard to all other cable programmers
utilizing such Wink services. In addition, Wink acknowledges and agrees
that premium and pay-per-view service transactions will be processed on
behalf of Programmer at no charge.
5. PAYMENT TERMS
5.1 On or before the thirtieth (30th) day following each month throughout
the term of this Agreement, 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.
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6. PROMOTION AND RESEARCH
6.1 The parties agree to issue a mutually-approved press release announcing
this Agreement on or before Tuesday, 1998. Wink will provide Programmer
with a draft of this release by January 30, 1998.
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 actively promote and feature Programmer's Interactive
Programs in Wink's marketing literature, during meetings with cable
operators and other distributors of the Programming Service and the
press, and during industry trade shows, subject to Programmer's
trademark guidelines and approval process attached hereto as Exhibit F.
Wink will also use reasonable efforts to assist Programmer in achieving
its marketing objectives in materials prepared by third parties, such as
cable equipment manufacturers, cable operators and other distributors of
the Programming Service. Programmer agrees, where reasonable, to promote
its participation as a charter Wink programmer to cable operators and
other distributors of the Programming Service, and to serve as a press
reference for Wink during the term of this Agreement.
6.4 Programmer agrees to use commercially reasonable efforts to cooperate
with Wink and System Operators in promoting Programmer's Interactive
Programs. Wink and System Operators may prepare marketing materials
relating to the Interactive Programs and may use Programmer's name, logo
and screen shots (collectively, "Programmer's Marks") from the
Interactive Programs, provided that such materials are submitted to
Programmer for review and approval prior to any distribution of such
materials and subject to Programmers trademark guidelines and approval
process attached hereto as Exhibit F. Wink shall inform System Operator
that System Operator is required to obtain Programmer's clearance prior
to distribution of such materials. 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 Programmers Marks. All uses
of the Programmers 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.
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6.5 Wink may, from time to time, undertake marketing tests and surveys,
rating polls and other research in collaboration with Programmer.
Programmer shall, if reasonably possible, provide Wink with reasonable
assistance at no cost to Programmer in conducting such research with
respect to Programmer's viewers. 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. Wink may only
use such data or share it with third parties with Programmer's prior
written approval.
6.6 Programmer understands and accepts that Wink will be providing reports
on viewer usage and responses to the Interactive Programs to System
Operator(s) for responses that originate from System Operator's
subscribers, and to advertisers and other parties acting on behalf of
advertisers or Programmer for the purpose of fulfilling requests 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 news and industry
organizations, or other broadcast and cable networks, except in
aggregated form that does not explicitly or implicitly identify
Programmer or specific Programmer viewer data. Wink further agrees that
Wink's provision of any data that identify individual viewers shall be
limited to advertisers and other entities having contracted with Wink
for the provision of such data to enable fulfillment of individual
viewer requests, and that such disclosure shall be subject to, and Wink
shall be responsible for ensuring compliance with, all applicable laws
(including without limitation applicable privacy laws).
6.7 Programmer agrees that Wink may demonstrate Programmer's Interactive
Programs in customer meetings and other private meetings deemed
important by Wink.
6.8 Programmer agrees to assist Wink in its marketing efforts by providing
[ * ] subscriptions ("Promotional Subscriptions") to subscribers
of certain System Operators with whom Wink has agreements
for carriage of Interactive Programs. Wink and Programmer agree to
jointly determine the appropriate System Operators and markets in which
such Promotional Subscriptions will be made available. Programmer may,
at its sole discretion, decline the provision of such Promotional
Subscriptions to certain System Operators, if the provision of such
Promotional Subscriptions is determined to be contrary to Programmer's
marketing and business
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objectives, provided that such action does not prohibit Wink from
delivering the number of Promotional Subscriptions agreed to herein.
Wink acknowledges that the Promotional Subscriptions may be substituted
for another mutually acceptable promotional offer of similar value to
Wink's System Operators, viewers and Programmer.
6.9 Subject to the other provisions of this Agreement, including but not
limited to Sections 3.6 and 3.8, Programmer further agrees to use
Interactive Programs to (i) promote orders of the Programming Service
(as defined in Exhibit A) during free weekend and other national or
local promotions (ii) to promote orders of the Programming Service in
advertising spots on other cable and broadcast channels on a trial basis
and (iii) to enable impulse purchases and program enhancements during
interstitial advertising and promotion.
7. WARRANTIES AND REPRESENTATIONS
7.1. Wink hereby represents and warrants that:
(i) the Wink Software (and subsequent revisions, upgrades and
enhancements to same provided by Wink to Programmer) will
operate and perform in accordance with all published
specifications with respect thereto as set forth in Wink's then
current ICAP specification and other related documents.
(ii) it has all necessary rights and authority to execute and
deliver this Agreement and perform its obligations hereunder;
(iii) the Wink Software shall be free from defects and shall be
error-free;
(iv) it shall dedicate sufficient resources to fulfill its
obligations hereunder;
(v) the Wink Software (or any equipment, technologies, processes or
components used in the Wink Software) does not and will not
infringe any intellectual property rights of any third party;
(vi) it will comply with all applicable laws, rules, regulations or
court or administrative decrees to which it is subject;
(vii) it is a corporation duly organized and validly existing under
the laws of the State of California;
(viii) Wink is under no contractual or other legal obligation which in
any way interferes with its ability to fully, promptly and
completely perform hereunder.
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7.2 Programmer represents and warrants to Wink that (i) Programmer is a
corporation duly organized and validly existing under the laws of the
State of Delaware; (ii) to the best of Programmer's knowledge Programmer
has the requisite power and authority to enter in this Agreement and to
fully perform its obligations hereunder; and (iii) to the best of
Programmer's knowledge, except as otherwise expressly contemplated
elsewhere in this Agreement, Programmer is under no contractual or other
legal obligation which in any way interferes with its ability to fully,
promptly and completely perform hereunder.
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, court costs 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 (a) in which it is alleged that (i) Wink's equipment,
the Wink Software (or any equipment, technologies, processes or
component used in such equipment or software) 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 (ii) Wink or Wink's equipment or the Wink Software (or any
equipment, technologies, processes or component used in such equipment
or software) is not in compliance with any law, rule, regulation or
court or administrative decree to which it is subject or (b) as a result
of any material breach of Wink's warranties, representations or
undertakings under 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
Wink Communications
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
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If to Programmer:
Showtime Networks Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Law Department
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. TRADEMARKS
10.1 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 of ownership therein are intended to be or shall be transferred
to Programmer.
10.2 All rights, title and interest in and to the Programmer's Marks or other
rights, of whatever nature, related thereto shall remain the property of
Programmer. Further, Wink acknowledges and agrees that all names, logos,
marks, copyright notices or designations utilized by Programmer in
connection with the Programming Service are the sole and exclusive
property of Programmer, and no rights of ownership therein are intended
to be or shall be transferred to Wink. Wink agrees to utilize
Programmer's Marks only as authorized in Exhibit F.
11. CONFIDENTIALITY
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 disclosed, and
(iii) take reasonable steps to prevent the use or disclosure by its
employees of such Confidential Information, except as provided herein.
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,
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technical and non-technical data, devices, methods, techniques,
drawings, processes, computer programs, algorithms, methods of
operation, financial data, financial plans, product plans, lists of
actual or potential customers or suppliers, and Wink usage reports and
viewer responses to Programmer's Interactive Programs (with the
exception that Wink may provide such reports and individual viewer
responses to the parties specifically permitted in, and subject to the
terms of, paragraph 6.6 above). Confidential Information does not
include information which does not constitute a trade secret under
applicable law after the second anniversary date of the expiration of
this Agreement. 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. TERMINATION
12.1 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.
12.2 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 promptly (i) grant to Wink
reasonable access during ordinary business hours 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), or Programmer shall
return the Wink Software to Wink, at Programmer's discretion , (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 Product remains in Programmer's possession or under its
control.
12.3 Programmer has the right to suspend the airing of Interactive Programs
if the transmission interferes with the airing of Programmer's Video
Programming or Wink fails to provide weekly reports regarding usage of
Programmer's Interactive Programs, and may continue such suspension
until Wink has resolved such problems to Programmers satisfaction.
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13. PROMOTIONAL MATERIALS/PRESS RELEASES
Without limiting the requirements of Exhibit F, each Party will submit
to the other Party, for its prior written approval, any marketing,
advertising, press releases, and all other promotional materials which
reference the other Party and/or its trade names, trademarks and service
marks. Each Party shall solicit and reasonably consider the views of the
other Party in designing and implementing such materials. Once written
approval is obtained, unless such approval states otherwise, the
materials may be reused in the same manner and under the same
circumstances until such approval is withdrawn in writing, provided,
however, that if any materials involve or depict any video programming
from the Programming Service, such materials shall not be reused without
first obtaining Programmer's prior written consent to such reuse.
14. SURVIVAL
Sections 8, 10, 11 and 13 shall survive the completion, expiration,
termination or cancellation of this Agreement
15. 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) Nothing contained herein shall be deemed to create, and the
parties do not intend to create, a joint venture, partnership,
principal/agent relationship or other fiduciary relationship
between the parties hereto, and neither party is authorized to
or shall act toward third parties or the public in any manner
that would indicate any such relationship with the other. The
provisions of this Agreement are for the exclusive benefit of
the parties who are signatories hereto and their permitted
successors and assigns, and no third party shall be a
beneficiary of, or have any rights by virtue of, this Agreement.
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 New York.
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d) This Agreement represents the entire agreement between the
parties and supersedes and replaces all prior oral and written
proposals, communications 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. SHOWTIME NETWORKS INC.
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxxxxxx Xxxxxx
Name: Xxxxxx Xxxxxxxxxxx Name: Xxxxxxxxx Xxxxxx
Title: President, CEO Title: SVP, New Media
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EXHIBIT A: PROGRAMMING SERVICES
Description of Programming Service:
NAME START OF WINK VIDEO ICAP VIRTUAL INSERTION
PROGRAM. (A/D) LOC. CH? POINT
Showtime February 15, 1998 Analog TBD No New York
Contact Information:
ISSUE ADDRESS CONTACT(S) PHONE /FAX/E-MAIL
Example:
Content refresh 000 Xxxx Xxxxxx Xxxxxxx Xxxxx 212-123-4567
Xxx Xxxx, XX 00000 Director, Enhanced 000-000-0000
Broadcasting Xxxxx@xxxxxxx.xxx
Actual Contact Info: TBD
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EXHIBIT B: WINK RESPONSE CENTER SERVICES
Purchase Transaction Fees Price/Transaction
(Viewer name, address, credit card) [ * ]
Charter Price Per transaction [ * ]
Request (RFT) 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. [ * ]
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 list 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 extra [ * ] response. 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 [ * ]
SET UP FEES-RESPONSE SERVICE
* 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
The installation and integration fees (if any) are due upon Programmer's
acceptance of the installation of the Broadcast Server, and transmission and
receipt by Wink testers of one nationally inserted test application defined by
Wink License fees commence on the first of the 13th month following the First
Air Date.
ON- ANNUAL TOTAL FIRST ANNUAL TOTAL 3- TOTAL
GOING RETAIL 3-YR YEAR PRICE FOR YR PRICE SAVINGS
OR ONE- PRICE RETAIL PRICE YR 2&3
TIME PRICE
COSTS
Studio site license One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
(5 seats)
Studio/Server One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Module training
(3x2days)
SUBTOTAL [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Broadcast Server On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Server Module On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Tech Support On-going [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
SUBTOTAL ON-GOING [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Server hardware (*) One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Data Insertion Unit One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Other Equipment One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Installation and One-time [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
Integration
SUBTOTAL ONE-TIME [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
TOTAL BOTH [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
(*) To be shared with MTV Networks, with their permission.
The above pricing for installation and integration cover's 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.
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OPTIONAL SOFTWARE AND 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: Showtime Networks Inc.
Programming Service: Showtime
This Agreement sets forth the terms and conditions for the national
distribution of Wink ITV Applications ("Interactive Programs") to any
multi channel video operator in the United States or Canada with whom
Programmer already has a valid and binding agreement for carriage of the
Showtime service ("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, 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 execution
of this Agreement and terminate three (3) years thereafter, unless Programmer
and Wink earlier terminate their Charter Programmer Affiliation Agreement dated
as of __________, 1998 in accordance with the terms of that agreement in which
case this Agreement shall automatically and immediately terminate.
This Agreement will automatically renew for one year periods unless Programmer
and Wink earlier terminate their Charter Programmer Affiliation Agreement dated
as of ______, 1998 in accordance with the terms of that agreement, in which case
this Agreement shall automatically and immediately terminate.
3. INTEGRITY OF INTERACTIVE PROGRAMS
Wink's license to 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, provided that failure of any Interactive Program
shall result in no liability of any kind to Programmer except that . System
Operator shall have the right to suspend the distribution of one or more
Interactive Programs until such time as all Interactive Programs are certified
by Wink to be in compliance.
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 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 of any kind will be due from Programmer to System Operator or
Wink on account of the carriage or retransmission of the Interactive Programs as
provided for hereunder.
Programmer will provide System Operator written notice at least 30 days prior to
discontinuing national transmission of all Interactive Programs.
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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, alteration or addition of any kind 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 Operators subscribers,
and that such copying is done to enable System Operator's subscribers to
properly receive and display the Interactive Programs on their set top box or
television set, provided that nothing herein shall be deemed to grant to System
Operator any right to alter the signal of the Programming Service in any manner
not expressly granted in System Operator's carriage agreement with Programmer.
System Operator can locally insert Interactive Programs only if and 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.
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 all such
materials shall first be submitted to Programmer for Programmer's review and
approval prior to any use or distribution of such materials. Programmer's
approval of such marketing materials shall not be unreasonably withheld or
delayed.
7. SCOPE
This Agreement does not and shall not interfere with, negate or expand any 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: /s/ Xxxxxxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxx
Title: SVP, New Media
Date: 2/25/98
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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 or
MPEG private data stream, 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 Modules*
* Norpak TES-3 VBI data inserter with VBI software modules
* PC w/ Windows 95 and Ethernet connection to run WBS remote GUI
* LAN/serial connections to master control system, ftp site (for data),
other hardware as necessary
Wink Studio, Server Studio and Broadcast Server remote GUI
* Pentium Windows PC with 16MB+ RAM, 1 GB+ 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 or better)
* Coax Modulator
* Assumes Showtime will share Broadcast Server hardware with MTV Networks at
Viacom National Operations Center.
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3. Wink will not use the Xxxx to disparage Programmer, its products or
services, or promotional goods or for products which, in Programmer's
reasonable judgment, may diminish or otherwise damage Programmer's
goodwill in the Xxxx, including but not limited to uses which could be
deemed to be obscene, pornographic, excessively violent, or otherwise in
poor taste or unlawful, or which purpose is to encourage unlawful
activities. Wink will not imitate the Xxxx in any of Wink materials,
including advertising, product packaging, and promotional materials and
press materials.
4. Wink shall obtain written consent for any advertising, promotions and
press releases using Programmer's Xxxx. Programmer shall use all
reasonable efforts to provide approval/comments on any submitted
advertising and promotions within three (3) business days or in less
time as the circumstances reasonably warrant.
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ADDENDUM TO CHARTER PROGRAMMER AFFILIATION AGREEMENT BETWEEN WINK
COMMUNICATIONS, INC. AND SHOWTIME NETWORKS INC. ("THE AGREEMENT")
This Addendum is made as of the 25 day of February, 1998.
The parties hereby agree to replace section 4.3 of the Agreement:
"Programmer may choose to utilize other products and services of Wink
(as set forth in Exhibit B or C) from time to time under this Agreement.
These services will be extended by Wink to Programmer at the rates set
forth therein; however, such prices shall at all times be extended on a
most favored nations basis with regard to all other cable programmers
utilizing such Wink services. In addition, Wink acknowledges and agrees
that premium and pay-per-view service transactions will be processed on
behalf of Programmer at no charge"
with the following paragraph, to be numbered 4.3:
"Programmer may choose to utilize other products and services of Wink
(as set forth in Exhibits B or C) from time to time Under this
Agreement. These services will be extended by Wink to Programmer at the
rates set forth therein; however, such prices shall at all times be
extended an a most favored nations basis with regard to all other cable
programmers utilizing such Wink services. Notwithstanding the foregoing,
Wink acknowledges and agrees that viewer requests for premium and
pay-per-view service generated by Interactive Wink Programs and
fulfilled by System Operators will be processed at no charge to
Programmer. The parties further agree that during the initial term of
this Agreement, Programmer may receive copies of reports provided to
System Operators that reflect viewer requests for premium and
pay-per-view service generated by Interactive Wink Programs, and which
provide each subscriber's name, address and telephone number at no
charge to Programmer. Programmer agrees that all other reports of viewer
responses to Interactive Wink Programs that reflect individual
subscriber names, addresses and phone numbers shall be subject to Wink's
rates for request for Information responses ("RFI Response") and
purchase responses ("Purchase Response"), as defined in Exhibit B, and
subject to the above mentioned most favored nations clause.
WINK COMMUNICATIONS, INC. SHOWTIME NETWORKS INC.
By: /s/ Xxxxx Thygsen. By: /s/ Xxxxxxxxx Xxxxxx
Name: Xxxxx Thygsen Name: Xxxxxxxxx Xxxxxx
Title: Vice President, (illegible) Title: SVP, New Media
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