INTERACTIVE TELEVISION CONTENT SERVICE AGREEMENT
This Agreement is made on March 10, 2003 between:
(1) TWO WAY TV LIMITED, a company incorporated and organized under the laws of
England and Wales (Registered No. 2662112), having its principal place of
business at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter referred to as "TWOWAY TV"), and (2) ZONE4PLAY (CY) LIMITED, a
company duly incorporated and organized under the laws of Cyprus (Registered No.
135752), having its principal place of business at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, together with Zone4Play Israel Limited, a company duly
incorporated and organized under the laws of Israel (Registered No. 513131094),
having its principal place of business at ▇▇ ▇▇'▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ shall hereinafter be referred to jointly and separately as "CONTENT
PARTNER".
RECITALS
1. TwoWay TV operates an interactive television service that is already is
and will be accessible to subscribers of the digital cable television
platforms operated by ntl and Telewest in the United Kingdom Of Great
Britain and Eire.
2. Content Partner provides applications and content for digital interactive
television platforms for various channels, networks and other entities
worldwide.
3. Each Party has the necessary experience, knowledge, technology, competent
personnel and capacity to perform and meet successfully all its
obligations under this Agreement.
4. TwoWay TV wishes to receive from Content Partner and Content Partner
wishes to provide to TwoWay TV interactive applications and content for
distribution by TwoWay TV as part of its interactive television service
for access via the digital cable television platforms operated by ntl and
Telewest in the United Kingdom and Ireland, and pursuant to the terms and
conditions set out in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
2. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, including the Recitals and Schedules, the words and
expressions mentioned in Schedule 1 of this Agreement shall have the
meaning set out in that Schedule unless the context otherwise requires.
1.2. In this Agreement unless otherwise specified:
a. the expression "including" or "include(s)" shall mean "including but not
limited to";
b. a person shall mean any person, individual, company, firm, corporation,
government, state or agency of any state or any undertaking or
organization (whether or not having separate legal personality and
irrespective of the jurisdiction in or under the law of which it is
incorporated or exists;
c. a Party shall mean a Party to this Agreement and includes its permitted
assignees and/or the successors in title to that part of its undertaking
which includes this Agreement;
d. references to recitals, clauses or schedules are to the recitals and
clauses of and schedules to this Agreement;
e. the recitals, the schedules and, where relevant, the appendixes form an
operative part of this Agreement and references to this Agreement shall,
unless the context otherwise requires, include references to the recitals,
schedules and the appendixes;
f. words denoting the singular shall include the plural and vice versa and
words denoting any gender shall include all genders; and
g. headings are for information only and shall not be taken into account when
construing the meaning of this Agreement.
2. CONTENT SERVICE - THE PARTIES' RESPONSIBILITIES
2.1. Under the terms and conditions of this Agreement, Content Partner shall
develop, host, maintain and provide the Content Service and TwoWay TV
shall make the Content Service available to Subscribers as a "Play 4 Fun
Casino Zone" from the interactive games menu of the Channel as distributed
under by TwoWay TV its current carriage arrangements with each of the
Cable Networks.
PAGE 1 OF 24
2.2. Content Partner shall at its cost and in accordance with the Launch
Timetable and the terms and conditions of this Agreement:
(i) develop and build the Content Service in compliance with the Full
Specification;
(ii) comply with its obligations under Clause 3 (Pre-Production, Development,
Testing & Acceptance);
(iii) from the Commercial Launch and thereafter throughout the Term, host,
operate and maintain the Content Server on a twenty four (24) hour seven
(7) days per week basis as a continuous uninterrupted service, so as to
enable a Subscriber to request the Content Service from the Content
Service page (accessed via the Channel's interactive games menu) via the
STB modem out-of-band and cause a software application to download and
open in the STB resulting in the transmission of a broadcast data stream
including application specific data which will enable a Subscriber to
interact with the Content Service (or part thereof) selected;
(iv) use the Billing System for all Subscriber payment transactions within the
Content Service and shall not use any alternative method of charging
Subscribers for any products or services within the Content Service;
(v) refresh and update the Content Service in accordance with the Full
Specification;
(vi) operate, maintain and refresh leader-boards within the Content Service in
accordance with the Full Specification; and
(vii) during the Term provide and maintain the Service Level Agreement.
2.3. TWTV shall at its cost and in accordance with the Launch Timetable and the
terms and conditions of this Agreement:
(i) provide such technical advice and assistance as may be necessary to enable
the Content Partner to fulfil its obligations under paragraph 2.2 to the
limits set out in paragraph 3.6
(ii) provide the Content Creation Kit;
(iii) comply with its obligations under Clause 3 (Pre-Production, Development,
Testing & Acceptance);
(iv) from the Commercial Launch and throughout the Term, provide and maintain a
web link to the Content Service page (accessed via the Channel's
interactive games menu) to enable a Subscriber to request the Content
Service via the STB modem out-of-band and cause a software application to
download and open in the STB resulting in the transmission of a broadcast
data stream including application specific data which will enable a
Subscriber to interact with the Content Service (or part thereof)
selected;
(v) make the Content Service available to Subscribers as a "Play 4 Fun Casino
Zone" page from the interactive games menu of the Channel as distributed
under its current carriage arrangements with each of the Cable Networks
from the Commercial Launch and throughout the Term as a continuous
uninterrupted service, except in the event of the circumstances set out in
Paragraph 11 or in the case of outages on the Cable Networks themselves
over which Two Way TV has no control;
(vi) from the Commercial Launch and throughout the Term, collect the Net
Subscriber Revenue under the terms of its current carriage arrangements
with each of the Cable Networks; and
(vii) be strictly prohibited from making any change to the Full Specification
and/or the Content Service unless agreed with Content Partner in writing
in advance or as required to do so by a Cable Network or by law
2.4. Throughout the Term, the Content Partner shall:
(i) perform its obligations in a professional manner conforming to generally
accepted industry standards and practices;
(ii) be strictly prohibited from making any change to the Full Specification
and/or the Content Service unless agreed with TwoWay TV in writing in
advance or as required to do so by a Cable Network or by law;
(iii) ensure that following Commercial Launch the Content Service does not
contain any links to any other content or services or any promotion,
marketing or advertising unless agreed to between the Parties in writing
in advance; and
(iv) ensure that the quality of the Content Service provided shall be no less
than the quality of any similar content service which the Content Partner
provides to any other digital television network operator or interactive
service provider having the same infrastructure and technical capabilities
as the Cable Networks.
2.5. During the Term, the Content Service shall be provided to TwoWay TV for
use on the Cable Networks in the Territory on a strictly exclusive basis.
During the Term and provided TwoWay TV meets its obligations under this
Agreement, TwoWay TV shall be and remain the Content Partner's exclusive
integrator and distributor on the Cable Networks of the Content Partner's
fixed odds betting and gaming content and services. With respect to any
future features or products including but not limited to fixed odds
betting and gaming content and services, the parties shall prior to the
Content Partner approaching a Cable Network or any third party favorably
discuss the terms of distribution by TwoWay TV. During the Term, TwoWay TV
undertakes that it will not distribute for use on the Cable Networks any
third party content service containing the same games as those described
in the Specification.
PAGE 2 OF 24
2.6. For the avoidance of doubt hacking activities by third parties affecting
the proper working of the Content Service which are beyond Content
Partner's or TwoWay TV's reasonable means of control as a professional
operator shall be considered a Force Majeure.
3. TESTING & ACCEPTANCE
3.1 Pre-Production and Development
(i) The Parties have agreed an initial specification for the Content Service
(attached hereto as Schedule 2) (the "SPECIFICATION").
(ii) The Content Partner shall undertake the pre-production work in accordance
with the Specification, and provide a full navigational structure,
storyboard, designs for all key screens within the Content Service and the
text copy for all help screens, 'terms and conditions' and other areas of
text within the Content Service (the "FULL SPECIFICATION"). These will be
provided to and agreed with TwoWay TV. TwoWay TV shall provide all
reasonable assistance to the Content Partner in connection with such
pre-production work.
(iii) The Content Partner shall undertake the development work of the Content
Service to the Full Specification at its own premises using the Content
Creation Kit provided by Two Way TV. The Content Partner shall undertake
all such development work at its own cost. As part of the development work
the Content Partner shall integrate the Billing Module into the Content
Service in accordance with TwoWay TV's instructions. Two Way TV shall
provide all reasonable assistance to the Content Partner in connection
with the development work.
3.2 QA Testing
(i) Following completion of the development work pursuant to Clause 3.1(iii)
and to Two Way TV's satisfaction, Content Partner's shall in accordance
with the Launch Timetable and at its cost carry out its own internal
quality assurance testing of the Content Service at Content Partner's
premises against development STBs representative of the STBs as then in
use on the Cable Networks to verify compliance with the Full
Specification, that the user interaction is robust and reliable, and to
demonstrate that the Content Service will operate effectively on the Cable
Networks without defect or without causing any adverse effect to the Cable
Networks ("QA TESTING").
(ii) To the extent the QA Testing reveals any program error or bug in the
Content Service arising from the development work performed by Content
Partner ("ERROR"), Content Partner shall promptly remedy any such Error
without additional cost or expense to TwoWay TV.
(iii) TwoWay TV shall provide all reasonable assistance to Content Partner in
connection with the QA Testing.
3.3 User Acceptance Testing
(i) Upon completion of the QA Testing, Content Partner will in accordance with
the Launch Timetable deliver the Content Service to TwoWay TV, together
will a full set of user acceptance tests (test scripts) and TwoWay TV will
in accordance with the Launch Timetable and at its cost carry out user
acceptance testing at TwoWay TV's premises on the relevant Cable Network
consumer STBs to verify that the Content Service has been developed in
accordance with the Full Specification ("USER ACCEPTANCE TESTING").
(ii) The Content Partner shall provide all reasonable assistance to TwoWay TV
in connection with the User Acceptance Testing.
(iii) To the extent that the Content Service (or part thereof) fails to pass the
User Acceptance Testing due to either an Error or a discrepancy in the
Content Service's gameplay and features from the Full Specification
("Discrepancy"), this will be documented by TwoWay TV, together with
evidence of the context in which the Bug or the Discrepancy is discovered
(including in the case of an Error a video recording of this, where
possible), and provided to Content Partner for resolution. Content Partner
shall and at its cost promptly remedy any such Error or Discrepancy
without additional cost or expense to TwoWay TV.
PAGE 3 OF 24
(iv) After resolution of any Error or Discrepancy, Content Partner will
re-deliver the updated version of the Content Services (or part thereof)
to TwoWay TV together with evidence of such resolution. TwoWay TV will
re-submit the Content Services (or part thereof) for further User
Acceptance Testing for verification that any Error or Discrepancy has been
properly resolved. The Content Partner shall provide all reasonable
assistance to TwoWay TV in connection with the resolution of any Error or
Discrepancy.
3.4 Network Review
(i) Upon completion of the User Acceptance Testing and TwoWay TV's sign-off of
this project stage, Content Partner will in accordance with the Launch
Timetable deliver a final release of the Content Services to TwoWay TV and
TwoWay TV will in accordance with the Launch Timetable submit such final
release of the Content Services to the relevant Network for the Network's
final review and acceptance prior to Commercial Launch ("NETWORK REVIEW").
(ii) Each Party shall provide all reasonable assistance to the Network in
connection with the relevant Network Review.
(iii) To the extent that the Content Services (or part thereof) fails to pass
the Network Review due to an Error discovered as part of the Network
Review this will be documented by TwoWay TV, together with evidence of the
context in which the Error is discovered (including a video recording of
this, where possible), and provide to Content Partner for resolution.
Content Partner shall promptly remedy any such Error without additional
cost or expense to TwoWay TV and provide this to TwoWay TV to re-submit
such final release for the Network Review.
(iv) After the Content Services have passed a Network Review, Content Partner
shall deliver to TwoWay TV a final Cable Network approved release of the
Content Service not later than one (1) week before the Commercial Launch.
Failure to do this shall entitle TWTV (without prejudice to its other
rights and remedies) and at its sole discretion terminate this Agreement
by giving written notice of fourteen (14) Working Days to the Content
Partner.
(v) If, after thirty (30) days of notification of any Error to the Content
Partner, any part of the Content Services continues to fail the Network
Review due to such Error, provided that such failure is not due to or
caused by any Outside Factor, TwoWay TV may (without prejudice to its
other rights and remedies) and at its discretion decide to either accept
all or part of the Content Services "as is" or terminate this Agreement
upon giving written notice to the Content Partner.
3.5 Changes
(i) The Parties agree that the costs related to any request from TwoWay TV for
any changes to the Content Service, after TwoWay TV has completed User
Acceptance Testing and has approved the Content Service for submission to
Network Review, which affect the lay-out of the Content Service and
(cumulatively) do not fall within the scope of the Full Specification
shall be borne by TwoWay TV, unless such changes are a result of
unforeseen requests by the Cable Networks or in order to comply with local
regulations or law governing such Content Services. Such costs shall not
be incurred unless agreed in writing before any work takes place to
implement such changes.
(ii) The Parties agree that costs, related to any further changes to the
Content Service after the delivery by Content Partner of the Content
Service for the Network Review, shall be agreed between them.
3.6 Extent of Two Way TV Support
(i) Notwithstanding Clause 12, TwoWay TV may at its sole discretion terminate
this Agreement by written notice if it is obliged to provide in excess of
twenty (20) Working Days to fulfil its obligations to make the Content
Service available within the Channel under Clause 2 or Clause 3 of this
Agreement. TwoWay TV shall provide the Content Partner with a weekly
report broken down by activity showing the number of Working Days (or
working hours as part thereof) incurred to that point in time.
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4. REVENUE GENERATION
Except if (and only to the extent) otherwise provided for in this Agreement, the
only sources of revenue from the Content Service for both Parties arising
from this Agreement will be those specified in Schedule 5 and in
accordance with the provisions set out in that Schedule.
5. FEES, REVENUE SHARING AND PAYMENT
5.1. Each Party shall be remunerated with respect to the Content Service in
accordance with the revenue splits set out in Schedule 6.
5.2. If one Party is liable to pay a share of revenue generated in accordance
with Schedule 5 to the other Party it shall within thirty (30) days of the
end of each calendar month send to the other Party a statement setting out
all the revenue generated during that month due to be shared and the share
due to the other Party in accordance with Schedule 6. The Party receiving
the statement shall send the other Party an invoice for its share, which
shall be payable in accordance with Clause 5.3.
5.3. The amounts due by one Party to the other Party shall be paid to the bank
account specified by such Party, within the later of thirty (30) days
after receipt of an original invoice or within five (5) days of receipt of
the revenue generated in accordance with Schedule 5. Such invoice shall
include all details reasonably required and notified by the Party that is
under the obligation to pay. Invoices will be sent on a monthly basis,
unless expressly stated otherwise in this Agreement. The amounts that are
invoiced are deemed to include all applicable costs, but are exclusive of
taxes. Interest shall be payable on any overdue payments by either Party
at the rate of 2% per annum above the base rate of HSBC or the maximum
rate permitted by law, whichever is less applicable at the end of the
business day on the date when such payments first become overdue until the
date on which such payment is made.
5.4. The Parties shall during the Term and for one year thereafter maintain
full and accurate records to enable either Party to verify the other
Party's compliance with the terms of this Agreement, including all
payments due to either Party.
5.5. Either Party may appoint an independent auditor to examine the other
Party's records for the purpose of verifying the other Party's compliance
with the terms of this Agreement including all payments due to either
Party, at the following times: (1) once a year during the Term and once in
the following year and (2) if and when that Party has, at any stage during
the Term, reasonable grounds to suspect that the other has materially
failed to comply with its payment obligations. Any audit conducted under
this Clause shall be at the cost of the Party appointing the auditor and
such Party shall give the other not less than fifteen (15) working days
prior written notice of its intention to audit. Any such audit shall be
conducted during normal working hours and the fees of the auditor are not
to any extent to be contingent on the results of the audit. Sums which are
shown by the audit to have been underpaid by either Party shall be paid to
the other Party forthwith together with interest (calculated in accordance
with Clause 5.5) and if such underpayment equals or exceeds ten (10)% of
the total amounts paid to the other Party in respect of the period which
is the subject to the audit, the Party that made such underpayment shall
reimburse the other Party for all reasonable expenses and costs incurred
by that Party in connection with such audit.
6. BRANDING AND MARKETING OF THE CONTENT SERVICE / TRAFFIC AND USAGE
REPORTING
6.1. Unless otherwise provided for in Schedule 7, Content Partner is and
remains the exclusive owner of any Content Service Marks that do not
comprise of Two Way TV's Marks. The Content Service Marks on the date of
the Commercial Launch shall be as specified in Schedule 7. The Content
Partner shall not change the Content Service Marks without the prior
written agreement of TwoWay TV, and all necessary re-development work to
the Content Service resulting from such change shall be undertaken by the
Content Partner at its cost.
6.2 Two Way TV is and remains the exclusive owner of the TwoWay TV Marks. The
TwoWay TV Marks on the date of the Commercial Launch shall be as specified
in Schedule 7. In case TwoWay TV decides to change the TwoWay TV Marks it
shall give reasonable notice of that change to the Content Partner, and
all necessary re-development and/or integration work to the Content
Service resulting from such change shall be at TwoWay TV's cost.
PAGE 5 OF 24
6.3. The Parties shall comply with the provisions of Schedule 7 concerning the
Marks and the promotion and marketing of the Content Service.
6.4 In addition to the other obligations specified in this Clause 6, TwoWay TV
and Content Partner shall use their reasonable endeavours (and where
appropriate shall co-operate) to promote the Content Service and the
Channel, as the case may be, in all appropriate marketing media approved
by both Parties in writing with a view to increase the number of
Subscribers using the Content Service.
6.5 The Parties shall keep each other informed on a monthly basis of the
traffic and usage of the Content Service by the Subscribers. Such
reporting shall contain all the information as specified in Schedule 8.
6.6 Parties agree that at the Commercial Launch, and from time to time after
the Commercial Launch during the Term, press releases will be issued
jointly and with the agreement in writing of both the Parties regarding
the Content Service and any update or upgrade.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Content Partner grants to TwoWay TV a non-exclusive, license during the
Term to cache, electronically store, use, display, communicate and make
available to Subscribers, and to transmit, distribute, broadcast, stream
and encode the Content Service (as necessary and in whole or in part) for
the following purposes:
(i) to make the Content Service available within the Channel for distribution
under its current carriage arrangements with each of the Cable Networks in
the Territory; and
(ii) for inclusion in any promotional or other advertising materials for TwoWay
TV's business for the purposes of marketing, advertising and promoting the
Content Service and the Channel, alone or in association with other
content partners of TwoWay TV.
7.2. During the Term TwoWay TV shall be allowed to make and retain copies of
the materials supplied by Content Partner to TwoWay TV under this
Agreement solely for the purposes of TwoWay TV properly fulfilling its
obligations under this Agreement, including any back-up purposes, in order
to ensure the continuity of making the Content Service available to
Subscribers from the Channel for distribution on the Cable Networks until
this Agreement is terminated or expires, whereby upon expiry and/or
termination TwoWay TV shall return such materials to Content Partner.
7.3. During the Term Content Partner hereby grants to TwoWayTV a non-exclusive,
license to use the Content Service Marks for the purposes of including
these within the Channel and marketing and promoting the Content Service
as part of the Channel. TwoWay TV acknowledges that the license of rights
granted under this Clause 7.3 does not confer any rights of ownership in
the same to TwoWay TV and that such rights together with all goodwill
associated with them are and will remain the exclusive property of Content
Partner. TwoWay TV shall promptly cease all use of all of Content
Partner's Marks upon the expiry or earlier termination (howsoever caused)
of this Agreement and, shall immediately return all relevant materials and
information provided to it by Content Partner. TwoWay TV shall not do or
omit to do any act, which may impair or offend the validity of Content
Partner's rights regarding Content Partner's Marks or in any way diminish
such rights.
7.4 For the Term TwoWay TV hereby grants to Content Partner a non-exclusive,
license to use the TwoWay TV Marks for the purposes of including these
within the Content Service and marketing and promoting the Content Service
as part of the Channel. Content Partner acknowledges that the license of
rights granted under this Clause 7.4 does not confer any rights of
ownership in the same to Content Partner and that such rights together
with all goodwill associated with them are and will remain the exclusive
property of TwoWay TV. Content Partner shall promptly cease all use of all
of TwoWay TV Marks upon the expiry or earlier termination (howsoever
caused) of this Agreement and, shall immediately return all relevant
materials and information provided to it by TwoWay TV. Content Partner
shall not do or omit to do any act, which may impair or offend the
validity of TwoWay TV's rights regarding the TwoWay TV Marks or in any way
diminish such rights.
7.5 All rights, title and interest, including Intellectual Property Rights, in
the Content Service (excluding for the avoidance of doubt any TwoWay TV
Materials) comprehensively belong to, are controlled by or licensed to
Content Partner and Content Partner or its licensors (as the case may be)
retain all such rights, title and interest, including the Intellectual
Property Rights. TwoWay TV shall not acquire or claim any right or title
to any of the foregoing by virtue of the rights granted under this
Agreement.
PAGE 6 OF 24
7.6 All rights, title and interest, including Intellectual Property Rights, in
the Channel and in all and any TwoWay TV Materials comprised within of
supporting the Channel (and its functionality, broadcast, operation and
management) or as provided as a component part of the Channel are
expressly reserved by TwoWay TV and its licensors and TwoWay TV and its
licensors (as the case may be) retain all such rights, title and interest,
including the Intellectual Property Rights in all and any Two Way TV
Materials. Content Partner shall not acquire or claim any right or title
to any of the foregoing by virtue of the rights granted under this
Agreement.
8. WARRANTIES AND INDEMNITIES
8.1. Content Partner warrants and undertakes to TwoWay TV that, at all times
during the Term:
(i) it has full power and authority to enter into and to perform its
obligations under this Agreement;
(ii) all corporate or other action required to authorise the execution and
performance by such party of its obligations hereunder has been duly
taken;
(iii) the signing and delivery of this Agreement and the performance of any of
the Subscriber payment transactions contemplated in it will not contravene
or constitute a default under any provision contained in any agreement,
instrument, law, judgement, order, licence, permit or consent by which
that party is bound;
(iv) the Content Service and any services or updates provided to Subscribers as
part of the Content Service and shall comply with all applicable laws,
government rules and regulations, in the Territory;
(v) the Content Service will not be defamatory, offensive, obscene,
pornographic or racist;
(vi) it owns or controls sufficient of the Intellectual Property Rights in the
Territories in the Content Service and the Content Partner Marks to
provide the Content Service and the Content Partner Marks to TwoWay TV in
accordance with the terms of this Agreement;
(vii) the distribution of the Content Service by TwoWay TV within the Channel on
the Cable Networks in accordance with this Agreement will not infringe or
make unlawful use of any Intellectual Property Right of any third party or
infringe the moral rights of any person; and
(viii) it possesses or shall obtain and shall maintain at its own expense all
necessary permits, approvals and consents to advertise, operate and
maintain any services provided to Subscribers as part of the Content
Service including to conduct any Subscriber payment transactions.
8.2. Content Partner shall indemnify and keep TwoWay TV fully and effectively
indemnified on demand from and against any and all costs, losses, expenses
(including all courts costs, reasonable attorney's fees and expenses),
penalties, damages and liabilities incurred by TwoWay TV arising out or in
connection with any claim, allegation or action brought against TwoWay TV
by any third party and/or arising out of or in connection with a breach of
any of Clauses 8.1(i) to 8.1(viii) up to a maximum aggregate sum of
(pound)500,000 (five hundred thousand pounds).
8.3 Two Way TV warrants and undertakes to Content Partner that:
(i) it has full power and authority to enter into and to perform its
obligations under this Agreement;
(ii) all corporate or other action required to authorise the execution and
performance by such party of its obligations hereunder has been duly
taken;
(iii) the signing and delivery of this Agreement and the performance of any of
the Subscriber payment transactions contemplated in it, except those
relating the Content Service itself, will not contravene or constitute a
default under any provision contained in any agreement, instrument, law,
judgement, order, licence, permit or consent by which that party is bound;
(iv) it shall make the Content Service available to Subscribers as a "Play 4
Fun Casino Zone" from the interactive games menu of the Channel as
distributed under its current carriage arrangements with each of the Cable
Networks from the Commercial Launch and throughout the Term, to the extent
it is permitted to do so by those carriage arrangements; and
(v) it possesses or shall obtain and shall maintain at its own expense all
necessary permits, approvals and consents to advertise, operate and
maintain the Channel for distribution on the Cable Networks.
8.4 TwoWay TV shall indemnify and keep Content Partner fully and effectively
indemnified on demand from and against any and all costs, losses, expenses
(including all courts costs, reasonable attorney's fees and expenses),
penalties, damages and liabilities incurred by Content Partner in relation
to any claim, allegation or action brought against Content Partner by any
third party and/or arising out of or in connection with a breach of any of
Clauses 8.3(i) to 8.3(v) up to a maximum aggregate sum of (pound)500,000
(five hundred thousand pounds).
PAGE 7 OF 24
9. LIMITATION OF LIABILITY
9.1. Subject to the other provisions of this Clause 9 and to the extent
permitted by law, the liability of each Party to the other arising out of
or in connection with this Agreement shall be limited to loss or damage
arising directly out of any breach of that Party's obligations or
warranties under this Agreement and neither Party shall be liable to the
other, nor (as the case may be) to the other Party's sub-licensees or
sub-contractors, in contract, tort (including negligence and breach of
statutory duty) or otherwise for any indirect or consequential loss or
damage (including loss of profits, anticipated savings, loss of customers
or business opportunities) arising out of or in connection with this
Agreement, even if such loss or damage was reasonably foreseeable or if
that Party had been advised of the possibility of the other incurring the
same, other than those for which the Parties have expressly assumed
liability under this Agreement.
9.2. Each Party's liability under this Agreement, shall be limited to direct
loss or damage and shall not exceed a maximum aggregate of (pound)100,000
(one hundred thousand pounds) in respect of one incident or series of
incidents arising out of a common cause in each 12 month period during the
Term.
9.3. Nothing in this Clause 9 shall be construed to exclude the liability of
either Party for death or personal injury arising from its negligence.
9.4. Should any provision contained in this Clause 9 be held to be invalid
under any applicable statute or rule of law, it shall to that extent be
deemed omitted.
10. EXTERNAL COMMUNICATIONS - CONFIDENTIALITY
10.1. External Communications:
Subject to Clause 6.6, neither Party may issue any statement or external
communication concerning the subject matter of this Agreement and the
Parties' relationship thereunder without the prior written consent of the
other Party. In case there is such consent, the Parties shall agree,
before any such statement or external communication is issued to any third
party or to the public, on the timing and the content of such statement or
external communication. Each Party shall cause its respective
Representatives to adhere to the obligations set forth in this Clause
10.1.
10.2. Confidential Information:
(i) Content Partner and TwoWay TV each agree that it shall keep confidential
the terms; conditions and provisions of this Agreement and it shall cause
its respective Representatives to adhere to this obligation.
(ii) Neither Party shall disclose in any way, neither directly nor indirectly,
neither orally nor in writing or by any other means, the nature and
contents of the relationship with the other Party, as well as the
Information which it becomes aware of in connection with the activities
contemplated by this Agreement, to any third parties, except with the
explicit consent of the other Party.
(iii) With respect to Confidential Information disclosed under this Agreement,
unless otherwise mutually agreed upon in writing, the receiving Party and
its Representatives shall: (a) hold the Confidential Information in strict
confidence, exercising a degree of care not less than the care used to
protect its own confidential or proprietary information from disclosure,
and in no event less than a reasonable degree of care; (b) restrict
disclosure of the Confidential Information solely to those Representatives
with a need to know and not disclose it to any other person; (c) advise
those Representatives of their confidentiality obligations with respect to
the Confidential Information; (d) reproduce, distribute or use the
Confidential Information solely and strictly in connection with and where
necessary for the performance of the receiving Party's obligations under
this Agreement.
(iv) Each Party shall take all reasonably necessary measures to restrain its
Representatives from the unauthorized disclosure or use of Confidential
Information.
(v) Confidential Information shall be deemed the property of the disclosing
Party and nothing contained in this Clause 10.2 shall be construed as
granting or conferring to the receiving Party any rights or title, by
license or otherwise, in any Confidential Information disclosed, or under
any Intellectual Property Right of the disclosing Party.
(vi) In the event that the receiving Party (a) needs to make disclosures of
Confidential Information for securities law purposes, or (b) is required
by law, regulation, government agency or court order, discovery request,
subpoena, or civil investigative demand to disclose any Confidential
Information, in the case of (a) the receiving Party shall provide the
disclosing Party with prompt written notice so that the disclosing Party
can work with the receiving Party to limit the disclosure to the greatest
extent possible consistent with legal obligations (provided that
disclosure of the name of the disclosing Party shall never be made without
that Party's prior written consent); or in the case of (b) the receiving
Party shall use its reasonable efforts to minimize such disclosure and to
obtain an assurance that the receiving third party shall accord
confidential treatment to the Confidential Information, and shall notify
the disclosing Party contemporaneously of such disclosure.
PAGE 8 OF 24
(vii) The obligations of confidentiality, use and care in Clause 10.2 shall
expire five (5) years from receipt of the particular Confidential
Information, regardless of termination or expiration of this Agreement.
10.3. Each Party shall be responsible for any breach of this Clause 10 by any of
its respective Representatives.
11. SUSPENSION - REMOVAL OF THE CONTENT SERVICE
11.1. Notwithstanding Clauses 2.3(v), 3.4(iv) and (v), and 8.3(iv), TwoWay TV
may, at its sole discretion and without being liable in any way to Content
Partner, immediately suspend the distribution of the Content Service to
the Subscribers and/or remove the Content Service from the Channel, or
where TwoWay TV is obligated to do so to comply with an order, instruction
or request of a Cable Network or any governmental, regulatory or judiciary
authority.
11.2 Based on the specific circumstances (including the degree of urgency)
TwoWay TV shall use its reasonable endeavours to notify to Content Partner
beforehand of its intention to suspend the distribution of the Content
Service to the Subscribers and remove the Content Service from the Channel
either in whole or in part. TwoWayTV may, at its sole discretion, display
any appropriate notice to warn Subscribers or to provide them with the
appropriate explanation with respect to such suspension and removal.
12. TERM AND TERMINATION
12.1. Unless terminated as provided herein, this Agreement shall come into full
force and effect and becomes legally binding from the Effective Date and
shall continue for a period of twelve (12) calendar months from the date
of the Commercial Launch.
12.2. Notwithstanding the provisions under Clause 12.1, either party may
terminate this Agreement on three (3) months notice to the other.
12.3. Notwithstanding the provisions under Clause 12.1, this Agreement may be
terminated by either Party (the "notifying Party") immediately upon
receipt of notice, in the event that the other Party has breached a
material term or condition of this Agreement (to be considered as a
"material breach", as defined in Schedule 1) or has persistently breached
a non-material term or condition and that Party has not cured such
material or persistent non-material breach within thirty (30) days after
receipt of a written notice from the first Party specifying such material
or persistent non-material breach. Such notice shall be given by the
notifying Party as soon as reasonably possible following the date on which
the notifying Party becomes aware of the material breach or the persistent
non-material breach.
12.4. Either Party may terminate this Agreement with immediate effect by giving
notice to the other if that other Party (the "defaulting Party") shall
have a receiver or an administrative receiver appointed over it or over
any part of its undertaking or assets or shall pass a resolution for
winding up (otherwise than for the purpose of a bona fide scheme of
solvent amalgamation or reconstruction) or a court of competent
jurisdiction shall make an order to that effect or it shall make an
application to a court of competent jurisdiction for protection from its
creditors generally, or if it shall become subject to an administrative
order or shall enter into any voluntary agreement with its creditors or
shall cease or threaten to cease to carry on business or a similar event
occurs in respect of the defaulting Party in any other jurisdiction.
12.5. Except if (and to the extent) expressly otherwise provided for in this
Agreement, the termination of this Agreement shall be without prejudice to
the accrued rights and obligations of the Parties and shall not affect any
term of this Agreement which expressly or by implication is intended to
survive such termination, including Clauses 8, 9 and 10.
13. ASSIGNABILITY
Neither Party may assign or sub-license any of its rights or sub-contract
any of its obligations under this Agreement without the prior written
consent of the other Party (which shall not be unreasonably withheld or
delayed). In the event of such assignment, sub-licensing or
sub-contracting to a third party with the other Party's prior written
consent, the Party assigning or sub-licensing any of its rights or
sub-contracting any of its obligations shall remain fully liable for the
performance thereof in the event and to the extent that the assignee fails
to perform any of those obligations. However, each Party may assign,
sub-contract, sub-license or delegate any of its rights, obligations or
liabilities under this Agreement, either in whole or in part, without the
prior written consent of the other Party, to any of its Affiliates.
PAGE 9 OF 24
14. NOTICES AND CONTACT DETAILS
14.1. All notices under this Agreement shall be given in writing and be deemed
received:
- if sent via courier on the date of delivery;
- if personally delivered, on the date of delivery;
- if sent via registered mail, return receipt requested, on the date of
delivery of the letter; or
- if sent by facsimile, on the date of receipt provided that a valid
facsimile success report has been obtained.
The address of the Parties for delivery of notices is set forth above.
Either Party may change such address and numbers by notice to the other
Party. All notices to be served on TwoWay TV shall be sent to the contract
manager mentioned in Schedule 9.
14.2. The contact details of the representatives of both Parties in charge of
the day-to-day management and implementation of this Agreement are
specified in Schedule 9.
15. PROTECTION OF PERSONAL DATA - RELATIONSHIP WITH THE SUBSCRIBERS
15.1. Each Party in performing its obligations hereunder shall comply with the
Data Protection Act 1998 and any directions issued by the Data Protection
Registrar in relation to such obtaining, storage and use of personal data
as may be required or carried out under this Agreement.
15.2. The ownership of all rights in the Data generated by the Content Service
shall vest in the Party who creates and operates any such databases and
shall be used solely for and only to the extent necessary for the
performance of its obligations hereunder. It is hereby acknowledged and
agreed by Content Partner that any Data created or held by Content Partner
shall be held as agent for TwoWay TV or the relevant Cable Network (as the
case may be). The Content Partner shall not, under any circumstance pass
any Data to third parties or to use it for marketing or promotional
activities or for any other purpose without the prior written consent of
both TwoWay TV and the Subscriber concerned or as expressly authorised to
do so by the relevant Cable Network in writing.
15.3. Each Subscriber accessing or using the Content Service or any part thereof
is and remains at all times during the Term, the exclusive customer of
TwoWay TV, even in the event that Content Partner would have one or
several direct contacts with and/or access to any Data of such Subscriber.
16. GOVERNING LAW - JURISDICTION
This Agreement shall be governed by and construed under the laws of
England and Wales and TwoWay TV and Content Partner hereby agree that the
competent court in London, UK shall have sole and exclusive jurisdiction
over any disputes between them in connection with this Agreement.
17. MISCELLANEOUS
17.1. Neither Party shall be liable to the other for any delay or
non-performance of its obligations hereunder arising from an event
constituting Force Majeure. The Party whose performance is prevented or
delayed shall give prompt written notice to the other Party of the event
and shall be excused from performance to the extent delayed or prevented
by Force Majeure, provided that the Party whose performance is prevented
or delayed shall take reasonable steps to avoid or remove such causes of
non-performance and shall resume performance whenever and to the extent
such causes are removed. If it appears that performance shall be
interrupted for more than thirty (30) days due to Force Majeure, either
Party may terminate this Agreement. TwoWayTV shall not be required to pay
any fees over a period during which the Content Service could not be
provided or was interrupted because of Force Majeure.
17.2. A waiver of any term, provision or condition of or consent granted under
this Agreement or a waiver by either Party of any breach or default by the
other Party shall be effective only if given in writing and signed by the
waiving or consenting Party and then only in the instance and for the
purpose for which it is given.
PAGE 10 OF 24
17.3. Nothing in this Agreement shall be deemed to create any joint venture,
partnership or principal agent relation between the Parties hereto, and no
Party shall hold itself out in advertising or otherwise in any manner,
which would indicate or imply any such relationship with the other.
17.4. This Agreement contains the entire agreement between Parties respecting
the subject matter of this Agreement and supersedes all prior
understandings and arrangements respecting the subject matter of this
Agreement.
17.5. The Parties agree to do all such acts and things and/or execute or procure
the execution of all such documents that are from time to time required to
give full meaning and effect to this Agreement.
17.6 In the event that any of the provision of this Agreement shall be found by
any court or administrative or regulatory body of competent jurisdiction
to be invalid or unenforceable, the invalidity or unenforceability of such
provision shall not affect the other provisions of this Agreement and all
provisions not affected by such invalidity or unenforceability shall
remain in full force and effect. The Parties hereby agree to substitute
for any invalid or unenforceable provision a valid or enforceable
provision that achieves the economic, legal and commercial objectives of
the invalid or unenforceable provision.
SCHEDULE 1: DEFINITIONS
"Affiliate" means any corporation, company, or other entity, which exists on the
Effective Date or at any time during the Term and which: (i) is Controlled by a
Party hereto; or (ii) Controls a Party hereto; or (iii) is under common Control
with a Party hereto; an entity is considered an Affiliate only so long as such
ownership or Control exists;
"Billing Module" means code supplied by TwoWay TV for integration with the
Content Service, that enables the Content Service to use the Billing System, as
referred to in Schedule 10;
"Billing System" means TwoWay TV's proprietary transactional management billing
system as described in Schedule 10;
"Cable Network(s)" means the digital television subscription cable networks
operated by ntl and/or Telewest in the Territory;
"Channel" means the TwoWay TV branded interactive television games service
channel, comprising of interactive television content and features, as owned and
operated by Two Way TV and distributed in the Territory via the Cable Networks;
"Commercial Launch" means in accordance with the Launch Timetable the date on
which the Content Service is made commercially available to Subscribers via the
Channel;
"Confidential Information" means all information of a proprietary and/or
confidential nature in relation to the commercial and technical operations,
businesses, organization, projects or any other activities or financial affairs
(including future sales and targets) of the disclosing Party or its Affiliates
provided by or on behalf of the disclosing Party, directly or indirectly, in
whatever form and includes, without limitation, all technical or non-technical
information; financial, accounting, or marketing data; business plans and other
business-related information, studies, analyses, forecasts, predictions or
projections; intellectual property, trade secrets, or know-how; personal or
account information of Subscribers; as well as reports, analyses, studies or any
other materials containing or based upon Confidential Information ; Confidential
Information may take a variety of forms, including documentation, drawings,
specifications, software, samples, technical, or engineering data, or other
physical or electronic writings, as well as oral communications, visual display,
or demonstrations ; Confidential Information also includes any Confidential
Information from Affiliates of the disclosing Party ; Confidential Information
shall not include any information that: (a) was previously known to the
receiving Party free of any confidentiality obligation; (b) is or becomes
publicly available by means other than unauthorized disclosure; (c) is developed
by or on behalf of the receiving Party independent of any Confidential
Information provided by the disclosing Party under this Agreement; or (d) is
received from a third party whose disclosure does not violate any
confidentiality obligation.
"Content Creation Kit" means the technical, branding guidelines and hosting
requirements or specifications of TwoWay TV; a set of production and development
tools including templates and downloads; design guidelines; and occasional
development support to assist Content Partner to build, simulate and publish the
Content Service in accordance with the specifications of the Channel for
distribution on the Cable Networks;
PAGE 11 OF 24
"Content Management System" means the system that TwoWay TV uses to integrate
and publish content on the Cable Networks' TV platform for interactive TV
services;
"Content Server" means Content Partner's web server on which the Content Service
shall be hosted and maintained by Content Partner to enable a Subscriber to
request the Content Service from the Content Service page (accessed via the
Channel's interactive games menu) via the STB modem out-of-band and cause a
software application to download and open in the STB resulting in the
transmission of a broadcast data stream including application specific data
which will enable a Subscriber to interact with the Content Service (or part
thereof);
"Content Service" means the Content Partner's interactive TV casino games
content, known as "Play 4 Fun Casino Zone" and described in Schedule 2, together
with all related software, source codes, audio and video material, texts,
graphics, still and moving pictures, information, data and tools and links
(branded or otherwise) developed and built by Content Partner for carriage
within the Channel, and shall include any updates or upgrades provided during
the Term;
"Content Service Marks" means the Marks owned by the Content Partner and used
directly and specifically in relation to the Content Service and constituting
the brand identity of the Content Service, being:
[GRAPHIC OMITTED](R) logo
ZONE4PLAY - INTERACTIVE GAMING TECHNOLOGY(R) word ▇▇▇▇;
"Control" means that more than fifty percent (50%) of a controlled entity's
shares or ownership interest representing the right to make decisions for such
entity are owned or controlled, directly or indirectly, by the controlling
entity; the expression "Controlled" shall be construed accordingly;
"Data" means any personal data, databases, lists and any other information,
including name, address, subscription and usage data, relating to a Subscriber
generated by the Content Service or any part thereof;
"Effective Date" means the date of Commercial Launch;
"Fault" means any non-compliance of all or part of the Content Service or the
manner in which the Content Service is provided and functions or its quality
(globally or partly) with the description and specifications as set out in SLA,
as well as any other faults, errors and failures of the Content Service and
related supporting hardware and/or software;
"Force Majeure" means any cause beyond a Party's reasonable control affecting
the performance by that Party of its obligations hereunder including any act of
God, fire, national or local emergency, acts or omissions of government or
regulatory authority, including regulations or directives) and any act or
omission of persons or bodies beyond the control of the affected Party;
"Full Specification" has the meaning given to it in Clause 3.1(i);
"Gross Advertising Revenue" means all revenue generated from the sale of
advertising within the Content Service;
"Gross Subscriber Revenue" means Subscriber revenue received by the relevant
Cable Network arising specifically from Subscriber payment transactions in
relation to the Content Service;
"Intellectual Property Rights" means all present and future intellectual
property rights which are registered by, owned by or licensed to or otherwise
controlled by a Party or a third party, as the case may be, including: (i)
patents and patent applications; (ii) trade and service marks, logos, design
rights (whether registrable or not) and applications for any of the foregoing;
(iii) all copyright and neighbouring rights, including registrations and
applications for registration thereof; (iv) database rights; (v) domain names;
(vi) software; (vii) confidential and proprietary information, including trade
secrets and know-how; (viii) trade or business names; and (ix) all other
intellectual property rights or related rights which subsist now or in the
future whether registrable or not in any country;
"Launch Timetable" means the timetable set out in Schedule 3;
"Marks" means any trademarks, names, brands, logos, service marks, theme music
and all other elements;
PAGE 12 OF 24
"material breach" means a breach (including an anticipatory breach) which is
serious in the widest sense of having a serious effect on the benefit which the
non-breaching Party would otherwise derive from a substantial portion of this
Agreement;
"Middleware" means the group of operating systems and software platforms used by
the Cable Networks, being (i) Liberate DTV Navigator version 1.2.7.4 (Telewest
Build) and (ii) Liberate DTV Navigator version 1.2.7.4 (ntl Build);
"Net Advertising Revenue" means the Gross Advertising Revenue after deduction of
(i) all taxes (including VAT and other sales taxes), (ii) any direct costs of
sales incurred by either Party, (iii) advertising sales commission and any other
external sales costs, and (iv) an administration fee of five (5)%;
"Net Subscriber Revenue" means Gross Subscriber Revenue after deduction of Value
Added Tax, third party rights/promotional costs and the relevant Cable Network's
revenue share, calculated as follows based, by way of example, on a (pound)1.00
per play charge:
-------------------------------------------------------------------------
GROSS SUBSCRIBER REVENUE: (POUND)1.00 (POUND)1.00
less
VAT: 17.5% 17.5p 82.5p
Third party rights/promotional costs: 15% 12.375p 70.125
Cable Network's revenue share: 50% 35.062p 35.062p
NET SUBSCRIBER REVENUE: 35.062P
-------------------------------------------------------------------------
and if prizes are to be added later, the parties will mutually agree the
appropriate deductions concerning the cost of prizes and prize fulfilment;
"ntl" means ntl Group Limited of NTL House, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"Outside Factor" means (a) any peculiarity in, malfunction of and/or defect in
(i) any type of STB being tested against, or (ii) the relevant Cable Network
infrastructure and operating systems, and/or (b) an Event of Force Majeure;
"Priority Level" means one of the four levels of priority of a Fault (Low,
Medium, High, Urgent), as specified in Section 6.4.1 of Schedule 4;
"QA Testing" shall have the meaning set out in Clause 3.2;
"Representative" means an Affiliate of either Party and/or the respective
directors, officers, employees, attorneys, consultants, sub-contractors or other
agents or advisors of either Party or an Affiliate of either Party;
"Service Level Agreement" or "SLA" means the Service Level Agreement in Schedule
4;
"Site" means a web site containing the Content Service and which will be
tailored in accordance with the Full Specification and hosted, served and
published by the Content Partner;
"STB" means a Cable Network television set-top box;
"Subscriber" means a person who subscribes to a Cable Network and is authorized
by or on behalf of the relevant Cable Network to receive and view digital
television services, including the Channel, for display on a television set
through a STB; "Subscriber" shall also include any other user other than an
actual Subscriber who has permission from the Subscriber to access and use the
Content Service or any part thereof through a Subscriber's STB;
"Term" means the term of this Agreement as set out in Clause 12.1 of this
Agreement;
"Telewest" means Telewest Communications plc of ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
PAGE 13 OF 24
"Territory" means the United Kingdom of Great Britain and Eire;
"Third Line Technical Support" means the technical support to be provided by the
Content Partner on request by TwoWay TV under the terms of the SLA;
`TwoWay TV Marks' means the Marks owned by TwoWay TV and used by TwoWay TV in
relation to the Channel, being:
TWO WAY TODAY(R) logo
TWO WAY TV(R) word ▇▇▇▇;
`TwoWay TV Materials' means:-
(a) any work product, deliverable or materials including (without limitation)
any idea, concept, design, content, specification, equipment, component,
scripts, tapes, documentation, information and/or data created by or on
behalf of TwoWay TV in connection with the hosting and operation of the
Channel and the distribution of the Content Service as part of the
Channel; and
(b) the proprietary technology and knowhow of TwoWay TV in all electronic
forms including (without limitation) any software program, tool or module
and all source and object code forming part of and supporting the testing,
integration, broadcast, operation and management of the distribution of
the Content Service as part of the Channel together with all information
in eye-readable form supporting the same prior to, during or after the
Term;
"Working Day" means Monday to Friday, but excluding any public holidays in
Israel and in the Territory; and
"Working Hours" means between 09.00 CET and 18.00 CET on a Working Day.
SCHEDULE 2 :
`CONTENT SERVICE' : SPECIFICATION
1. This Schedule describes the initial Specification of the Content
Service which will for the basis of discussions between the parties,
out of which the Content Partner shall develop the Full Specification.
1.1 The Content Service shall consist of welcome and menu screens, with
associated help text and terms and conditions for 3 "casino style"
interactive TV games, being
`VIDEO POKER'
`▇▇▇▇▇ ▇▇▇▇'
`BACCARAT'
all as described below:
PAGE 14 OF 24
VIDEO POKER [GRAPHIC OMITTED] Video Poker gives you fantastic
payouts and non-stop excitement
for hours of fun. Video poker is
a versatile game combining
knowledge of Poker with the
excitement of slot machines and a
few wild cards for extra fun.
Like all forms of Poker, the goal
of the game is to get the best
hand possible. The machine uses a
52-card deck, which is shuffled
after each hand
▇▇▇▇▇ ▇▇▇▇ [GRAPHIC OMITTED] By far the most popular card game
on today's casino circuit and
card clubs around the world. Our
Blackjack game uses four 52-card
decks. In this game the dealer is
the only opponent. The player's
goal is to reach a card value
that is closer to 21 than the
dealer's card value, without
going over 21. If your first two
cards total 21, you have a
Blackjack
BACCARAT [GRAPHIC OMITTED] The object of the Baccarat game
is to bet on the hand that you
believe will be closest to a
total of nine. Baccarat is played
with six decks of cards that are
re-shuffled after each hand. You
can bet on either the Player's
side, the Bank side or on a Tie.
Four cards are dealt, the first and
third to the Player's hand, The
second and fourth to the Banker's
hand. If the value of cards exceeds
9, then the hand value is adjusted by
subtracting 10 from the total.
1.2 The initial navigation for the Content Service is set out in the diagram
at Section 1.6 below. In summary, Subscribers will enter the "Play 4 Fun
Casino Zone" from the Channel's interactive games menu. The first "Play 4
Fun Casino Zone" screen will explain the cost of the Content Service and
what this entitles the Subscriber to. From here, Subscribers can either
choose to enter the Content Service, or can choose to leave to go back to
the Channel. Those choosing to enter the "Play 4 Fun Casino Zone" will be
taken to its "menu screen"("Lobby"). From the "menu screen", Subscribers
may enter the games; choose to buy more `chips' (or points); or may access
the leaderboard, registration area or any necessary help screens.
1.3 On entering each game the Subscriber will have the choice of: paying a fee
(to be agreed between the Parties and charged through the Billing System),
for which they will receive a fixed number of `chips' (or tokens); or,
they can login to retrieve any `saved' chips (or tokens) they had bought
or won previously. During each game, a Subscriber may continue playing
until they have run out of chips (or points) or until they wish to return
to the menu screen. They may save their chips (or tokens) at any time in
the Content Service, by registering a nickname and password (or similar).
The `saved' chips (or tokens) may be used within the Content Service at
any time in the future by a Subscriber providing the correct nickname and
password (or equivalent) to access them.
PAGE 15 OF 24
1.4 On saving their chips (or tokens) the Content Service will update the
leaderboard area. The leaderboard area will provide a list of the
top-ranking players in the "Play 4 Fun Casino Zone", with ranks based on
the number of chips in their accounts. Leader boards will show how every
player's score relates to the scores of the most successful 50 (actual
number to be agreed) players from the participants. Every user can watch
the leader board and every user can see how his current score compares
with the top 50. The Subscriber's will be given a comical `text' rank that
compares his score with the most successful 50 players (for example, a
subscriber with a score of less than 10% of the bottom of the leaderboard
might be greeted by "Don't give up your day job yet" etc.)
1.5 Prizes - if prizes are to be added later, the parties will mutually agree
the appropriate deductions concerning the cost of prizes and prize
fulfilment
1.6 TwoWay TV, or its providers, shall provide the Billing Module to the
Content Partner for integration within the Content Service. The Billing
System is used to process all Subscriber payment transactions within the
Content Service. The Content Partner shall provide all other software for
the Content Service and all data management associated with it.
1.7 Navigation Diagram:
[FLOWCHART OMITTED]
PAGE 16 OF 24
SCHEDULE 3: LAUNCH TIMETABLE
1. The Content Service will be delivered and launched in accordance with the
following timetable:
------------------------------------------------------------------------------------------------------------------------------
DATE DELIVERABLE TERRITORY
------------------------------------------------------------------------------------------------------------------------------
Signature of Agreement Signing of the Agreement. N/A
TwoWayTV delivers STBs to Content Partner. Israel
------------------------------------------------------------------------------------------------------------------------------
Signature Content Partner's confirmation that STB is fully functional. UK
+ 1 week
Content Partner commences pre-production.
Israel
Content Partner provides Full Specification to TwoWay TV
for sign-off.
UK
Content Partner commences development work.
Israel
------------------------------------------------------------------------------------------------------------------------------
Signature Test version of Content Service delivered by Content Partner to TwoWay TV for initial UK
assessment.
+ 2 weeks
Content Partner undertakes QA Testing at its premises
(Clause 3.2 of the Agreement).
Israel
------------------------------------------------------------------------------------------------------------------------------
Signature TwoWay TV undertakes User Acceptance Testing at its premises (Clause 3.3 of the UK
Agreement).
+ 3 weeks
------------------------------------------------------------------------------------------------------------------------------
Signature TwoWay TV submits final release for Network Reviews (Clause 3.4 of the Agreement). Israel
+ 6 weeks
UK
------------------------------------------------------------------------------------------------------------------------------
Signature Commercial Launch. UK
+ 9 weeks
------------------------------------------------------------------------------------------------------------------------------
2. In order to enable Content Partner to develop and build the Content
Service and to deliver it to TwoWay TV in accordance with this Agreement,
TwoWay TV may make certain additional equipment and/or information
available to Content Partner. In the event that TwoWayTV makes any such
equipment and/or information available to Content Partner, Content Partner
shall if so requested by TwoWay TV sign a document comprising the terms of
use of such equipment and/or information.
3. If TwoWay TV fails to make any equipment and/or information available to
the Content Partner, as necessary in order to enable Content Partner to
perform it's obligations pursuant to this Agreement based on the Launch
Timetable, or if TwoWay TV otherwise takes action or omits to take action
which directly and materially affects the Content Partner's ability to
achieve the Launch Timetable, the Launch Timetable shall be adjusted
accordingly.
4. Submission by Two Way TV of the Content Service for Network Review is
dependant the Content Service passing Two Way TV's internal User
Acceptance Testing pursuant to Clause 3.3 of the Agreement.
5. Commercial Launch is dependent upon the relevant Network Review dates
being secured. Owing to scheduling restrictions Launch can only occur on a
Monday. However, if Two Way TV is unable to launch the Content Service
within 9 weeks the Content Service passing Two Way TV's internal User
Acceptance Testing (except where any such delay is caused by the Content
Service (or part thereof) failing to pass the Network Review resulting
from (i) any defect in or any failure of the Content Partner to perform or
procure the performance its obligations under this Agreement, or (ii) as a
result of any defect in and/or any failure of the Cable Networks' or third
party network hardware, middleware, systems or other materials), without
derogating from any its rights of this agreement and applicable law,
Content Partner may terminate this agreement effective upon the receipt of
such written notice.
PAGE 17 OF 24
SCHEDULE 4: SERVICE LEVEL AGREEMENT (SLA)
1. With respect to the availability of the Content Service:
1.1. During the Term and from the Commercial Launch, the Content Partner shall
ensure that the Content Service is available for distribution by TwoWay TV
24 hours each day of the year.
1.2. Content Partner will ensure that the chosen connection to the Site
provides a high level of performance.
1.3. Content Partner wholly responsible for ensuring that disaster recovery /
business continuity plans are in place, regular backups of content data
are carried out and offsite secure storage is utilized at all times during
the Term from the Commercial Launch.
1.4. Content Partner is responsible for capacity planning to ensure that its
server(s) used for the Content Service remain able to store and handle
data as required in accordance with this Agreement.
1.5. Content Partner shall ensure integrity of data traffic via its site,
including making use of virus checking software that the data traffic is
virus free.
2. In the event of a Fault, in TwoWay TV's opinion, TwoWay TV will advise
Content Partner in writing, and in emergencies, by telephone, electronic
mail or fax in accordance with the provisions of Section 5.4.2 of this
Schedule.
3. Content Partner shall be reachable by telephone, electronic mail or fax on
the days and hours and in the way set forth in Section 5.4.2 of this SLA.
4. When a Fault is notified by TwoWay TV to Content Partner, Content Partner
shall respond and fix the Fault in accordance with the provisions of
Section 5.4.2 of this SLA and shall take all measures, which will or may
result, in a solution of the Fault. Such measures will be taken without
interruption, within and outside of usual Working Hours and Working Days.
5. Content Partner shall at all times during the Term provide to TwoWay TV
the following service levels with respect to the Content Service:-
5.1. At all times during the Term, Content Partner shall ensure that it has and
maintains an adequate support organization, equipment and related
procedures for logging, monitoring, investigating and resolving Faults
during Working Hours, or outside Working Hours in case of High Priority
Level, as indicated in Section 5.4.2 of this Schedule.
5.2. Reporting of Faults by TwoWay TV and initial response by Content Partner:
(i) Following initial analysis by TwoWay TV, all actual and potential Faults
identified by TwoWay TV will be reported to Content Partner to the
appropriate contact defined in Section 5.4.2 of this SLA. The preferred
method of communication for the purposes of reporting Faults is by
electronic mail to the address shown in Section 5.4.2 of this SLA.
(ii) All relevant information with respect to the reported Fault known by
TwoWayTV will be made available to Content Partner, including the nature
and symptoms of the Fault, the estimated time of occurrence of the Fault,
the impact of the Fault on TwoWay TV's or TwoWay TV's Affiliates'
activities, and the Priority Level as specified in Section 5.4.1 of this
SLA.
(iii) Upon receiving a Fault report, an initial response will be made by Content
Partner within the response time indicated in Section 5.4.2 of this SLA,
giving a reference for the reported Fault, and requesting any additional
information that may reasonably be required.
(iv) Content Partner shall provide regular progress updates to TwoWay TV, and
shall confirm by electronic mail to TwoWay TV that any actions to restore
the Content Service have been effective.
(v) In the event of a Fault being identified by Content Partner before receipt
of a Fault report from TwoWay TV, Content Partner shall notify TwoWay TV
of such occurrence of a Fault within one (1) hour of the occurrence being
identified by its own support organization, using the contact for
technical assistance as specified in Schedule 9 of this Agreement.
PAGE 18 OF 24
5.3. Solution by Content Partner: Content Partner shall fix the Faults and
restore the Content Service in accordance with Section 5.4.2.
5.4. Priority Levels, Response/solution by Content Partner: For the purposes of
this Section 5.4, the Priority Levels of Faults shall be defined as
follows:
(i) LOW PRIORITY LEVEL (i.e. Faults that affect non-material aspects of the
quality of the Content Service):
o Content Partner delivers outdated/untimely data (e.g. old news
stories, outdated weather/traffic data); or
o the Content Service delivered by Content Partner features minor
faults including broken navigational links, poorly formatted text,
poor image quality, spelling errors, local language errors.
(ii) MEDIUM PRIORITY LEVEL (i.e. Faults that affect more important aspects of
the quality of the Content Service):
o Content Partner delivers images that do not match the related part
of the Content Service; or
o Content Partner delivers applications that load significantly slower
than the other applications within the Interactive TV Service or on
the Cable Networks' TV Platform.
(iii) HIGH PRIORITY LEVEL (i.e. Faults that materially affect the working of the
Content Service):
o the Site is, in total or for a large part, inaccessible by the
Subscribers; or
o whole pages or a large number of pages or applications of the
Content Service are not loading, broken, incoherent or inaccessible.
(iv) URGENT LEVEL (i.e. Faults that affect the working of the Channel, the
Cable Networks' TV Platform or the Content Service):
o the Content Service contains javascripts that cause stack errors
resulting in a crash of the STBs;
o Content Partner engages in unauthorized use of Liberate extended
objects as part of the Content Service build (e.g. conditional
access objects, user objects, TV program/channel objects);
o Content Partner uses a large number of "windows" as part of the
Content Service build (this may result in STBs running out of memory
and crashing);
o Content Partner changes, disables or otherwise interferes with the
Channel (e.g. Content Partner captures TwoWay TV-only key strokes
for other purposes); or
o the Content Service disables, either in part or in full, the Channel
or the navigation/browser services on the Cable Networks' TV
Platform (outside of the Site).
The list of events and examples mentioned in this Section 5.4.1 is not
exhaustive, but only indicative.
PAGE 19 OF 24
5.4.2. At all times during the Term, Content Partner shall comply with the
following requirements as regards reporting of Faults by TwoWay TV:
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REPORTING OF FAULTS
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REPORTING BY TWOWAY TV RESPONSE BY CONTENT PARTNER
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PRIORITY LEVEL: CONTACT DETAILS OF CONTENT PARTNER FOR RESPONSE TIME:
REPORTING:
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
LOW AND MEDIUM LOW AND MEDIUM
E-mail: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
PRIORITY LEVELS: PRIORITY LEVELS:
Telephone: ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇▇▇▇▇▇▇▇
During Working Hours on Working Initial response after Fault report by TWTV: within two
Days. (2) Working Hours.
Time frame between the initial response and the solution
to the reported Fault:
Low Priority Level - 10 Working Days
Medium Priority Level - 2 Working Days
HIGH PRIORITY LEVEL:
HIGH AND URGENT
PRIORITY LEVELS:
Initial response after Fault report by TWTV: within 2
hours.
24 hours a day, each day of the
year, excluding "Yom Kippur"
Holiday in Israel. Time frame between the initial response and the solution
to the reported Fault - two (2) hours
URGENT PRIORITY LEVEL:
After Fault report by TWTV : 2 hours for both initial
response and solution to the reported Fault.
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5.5. The Parties shall agree regular windows for the maintenance of the Content
Service. The total time of such periods shall not exceed 1 hour in any 30
day period.
6. In accordance with the provisions of Clause 11, TwoWay TV may, at any
time, at its sole option and without being liable in any way to the
Content Partner, remove the link to the Site from the Channel (or any
other menu system) in the event that, in TwoWay TV's opinion, such removal
would be the most appropriate way:
(i) to ensure or restore the integrity or proper working of the Content
Service, the Channel or the Cable Networks' TV Platform or any part
thereof or any other service on the Cable Networks' TV Platform; or
(ii) to avoid an overload of the relevant customer service(s) or helpdesk(s);
or
(iii) to protect its commercial reputation towards the Subscribers (such as
avoiding or trying to limit complaints from Subscribers or in the event
that Content Partner fails to comply with the provisions of Sections 1 to
(and including) 5 of this Schedule and that such failure, in TwoWay TV's
reasonable opinion, affects the quality of the Content Service).
7. Content Partner must not bring any material changes to the Content Service
which has not been tested beforehand by TwoWay TV. This testing process
shall not apply to changes provided in the feeds-based templates which are
provided by TwoWay TV as part of the Content Creation Kit (or updates
thereof) and which have already been tested by TwoWayT V. This testing
process will need to be carried out with respect to any of the following
changes:
PAGE 20 OF 24
(i) implementation of any new design elements, including all graphics;
(ii) any change to the Site's functionality or site structure;
(iii) any additional piece of functionality added to the Site; or
(iv) any change to the method of content delivery to the Site (e.g.
implementation of a new Content Management System or upgrades or changes
to the core functionality of the Content Management System).
SCHEDULE 5: REVENUE GENERATION
1. Advertising and Sponsorship:
1.1. The Parties will discuss in good faith reasonable opportunities and
co-operate to generate additional revenues from the Content Service by the
inclusion of advertising (via banner advertising and other appropriate
advertising models) and sponsorship (sponsor logos, banners and other
appropriate sponsorship models) within and around the Content Service as
part of the Channel.
1.2. Either Party shall be entitled to sell advertising and sponsorship within
and around the Content Service subject to the Parties' mutual agreement in
advance of sales activities. But any such sales of sponsorship or
advertising, shall always be subject to Two Way TV's final approval before
the Content Partner enters into any binding agreement with a third party.
The parties will agree in good faith:
(i) the sales pricing and positioning of the advertising and sponsorship to be
sold; and
(ii) a set of selling rules, including sales channels, inventory allocations,
priority client, agency relationships and rights of refusal.
1.3. For the avoidance of doubt, no sponsorship shall be sold with duration of
more than two months without the prior written consent of the other Party.
The Parties will liase on a regular basis, but not less than once a month,
on sales prospects for advertising and sponsorship and agree in writing
before signing advertising or sponsorship agreements with respect to the
Content Service.
1.4. Any sponsorship or advertisements carried on the Content Service within
and around the Content Service as part of the Channel shall:
(i) not contain any obscene, blasphemous or libellous materials;
(ii) not infringe the rights of any third party (including Intellectual
Property Rights, confidentiality and privacy rights); and
(iii) comply with all directions or guidelines of TwoWay TV or the relevant
Cable Network and/or any relevant codes of advertising and other
regulations laid down in the Territories and where the advertisements are
displayed, whether on a statutory or a self-regulatory basis.
1.5. The Parties shall endeavour to agree a reasonable procedure by which they
can ensure that advertising or sponsorship sales or other agreements made
by them or their agents do not conflict in any manner with the commercial
interests of the other Party, prior to the conclusion of such sales or
other agreements.
2. Subscriber Revenue - Content Service:
2.1 TwoWayTV shall define the parameters of all payment systems during the
Term.
2.2 Content Partner shall integrate the Billing System functionality as
defined by TwoWayTV to enable Subscriber payment transactions within the
Content Service.
PAGE 21 OF 24
SCHEDULE 6: FEES, REVENUE SHARING AND PAYMENT
1. Advertising and Sponsorship:
1.1. Net Advertising Revenue shall be shared between TwoWayTV and Content
Partner based on, respectively, a 50 (fifty) % and 50 (fifty) % split.
2. Subscriber Revenue - Content Service:
2.1 Net Subscriber Revenue shall be shared between TwoWayTV and Content
Partner based on, respectively, a 50 (fifty) % and 50 (fifty) % split.
SCHEDULE 7: BRANDING AND MARKETING
1. Branding of the Content Service / Use of the Parties' Marks:
1.1 The Content Service and specifically its "welcome" screen, and the "menu"
screen will be branded with the TwoWay TV Marks in accordance with the
Full Specification, as defined in the Content Creation Kit, or as notified
by TwoWay TV to Content Partner from time to time.
1,2 The Content Service's "welcome" screen, and the "menu" screen and any
interstitial "loading" pages between the "menu" screen and the games,
where these are not used for advertising and sponsorship, will contain the
following credit "Powered by Zone 4Play. (C) Zone4Play 2003".
2. Promotion / Marketing of the Content Service:
2.1 TwoWay TV undertakes to promote the Content Service through its marketing
allocation provided by the Cable Networks.
2.2 Content Partner shall on a regular basis, as well as upon reasonable
request from TwoWay TV where available and free of charge provide
materials in respect of the Content Service for use by TwoWay TV and in
support of TwoWay TV's advertising of the Channel.
SCHEDULE 8: REPORTING PROCEDURE
1. Not later than ten (10) days after the end of each month (the "Relevant
Month"), Content Partner shall provide TwoWay TV with a report on user
numbers and other traffic usage data and information for the Relevant
Month, including:
1.1 general traffic information:
(i) full log files of traffic activity including:
o page impressions;
o unique user numbers;
o click-through rates; and
o (breakdowns by month; and
(ii) (where relevant) with respect to the Transactional Services (as specified
in Schedule 1):
o aggregate number of active accounts ("Active Accounts");
o number of new Active Accounts created;
o total number of Subscriber payment transactions executed within the
Content Service;
o number of Subscriber payment transactions executed per Active Account; and
o average amount spent per Active Account;
as well as any relevant information with respect to the access to and use of the
Content Service.
PAGE 22 OF 24
SCHEDULE 9: CONTACT DETAILS
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TWOWAY TV: CONTENT PARTNER:
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Contract Management: Contract Management:
Attn. ▇▇▇ ▇▇▇▇▇▇▇ Attn. ▇▇▇▇ ▇▇▇▇▇
Two Way TV Limited Zone4Play Limited
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Village Tel Aviv, 67060
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
U.K. T. ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
T. ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Technical assistance: Technical assistance:
Attn. ▇▇▇ ▇▇▇▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇▇▇▇▇▇ Zone4Play Limited
Two Way TV Limited ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ House ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ T. ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
U.K. E-mail: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
T. ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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SCHEDULE 10: TWO WAY TV BILLING SYSTEM
1. TwoWay TV shall provides its own server-side and client-side architecture
that is integrated into the Cable Networks' own Subscriber billing system
(the "BILLING SYSTEM"). The Billing System will enable the Content Partner
to include Subscriber payment transactions to their Content Service and
for each transaction to appear on the Subscriber's monthly cable bills.
Two Way TV will provide a Billing Module (being a set of client-side
Javascript code and instructions for integration) to the Content Provide
to include in the Content Service. The Content Service must use this
Billing System for all Subscriber payment transactions.
2. The Parties will mutually agree the amount of the fee to be charged to
Subscribers for using the Content Service. It is anticipated that this
will not be less than 50p for purchasing a fixed number of chips in the
Content Service.
3. The Billing System, and selected third parties (operators and providers),
enables:
o storing the transaction for audit purposes and forwarding the transaction
to the Cable Networks
o billing the Subscriber and collecting all monies due;
o disbursing the net revenues to TwoWay TV at the end of the month, two
months after the transaction was placed;
o providing (through the Billing Module) standardized access, admission and
failure pages which are placed between the free parts or features of the
Content Service, and communication between the client-application and Two
Way TV's server-side Billing infrastructure.
4. Content Partner is fully and solely responsible for promoting the Content
Service and informing the Subscriber fully and properly and in accordance
with applicable regulations in the UK about the Content Service itself
(its elements and features) and the charge for its access.
5. TwoWay TV will use its reasonable endeavours to provide Content Partner
with a report within a few weeks of the end of each month detailing the
number of Subscriber payment transactions made within the Content Service
and the incoming revenues.
PAGE 23 OF 24
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed.
ZONE4PLAY (CY) LIMITED ZONE4PLAY ISRAEL LIMITED TWO WAY TV LIMITED
/s/ Zoe Kokoni /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ de Fougerolles
Name : Zoe Kokoni Name : ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name : ▇▇▇▇ de Fougerolles
Title : Director Title : Director Title : CEO
Date : March 10th, 2003 Date : March 10th, 2003 Date : March 10th, 2003
PAGE 24 OF 24
