Exhibit 10.9
WORLDGATE AFFILIATION AGREEMENT
THIS AGREEMENT DATED NOVEMBER 7,1997 IS BETWEEN CHARTER COMMUNICATIONS, INC.,
WITH ITS PRINCIPAL PLACE OF BUSINESS AT 00000 XXXXXXXXXXX XXXXX, XX. XXXXX, XX
00000, (HEREINAFTER REFERRED TO AS "AFFILIATE") AND WORLDGATE COMMUNICATIONS,
INC., WITH ITS PRINCIPAL PLACE OF BUSINESS AT: 0000 XXXXXXX XXXXX, XXXXX 000,
XXXXXXXX, XX 00000 (HEREINAFTER REFERRED TO AS "WG").
AFFILIATE AND WG (COLLECTIVELY THE "PARTIES") HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
The following terms, abbreviations and definitions used in this
Agreement shall have the meanings set forth herein below:
(a) "SYSTEM(S)" means Affiliate's television distribution system(s)
for one or more geographical service areas, as from time to time are identified
in Exhibit A.
(b) "PRIVATE RESIDENCE" means a private residential dwelling unit.
(c) "PROVIDER(S)" means one or more third parties providing content
for Subscriber access on or as part of the WorldGate-SM- Service.
(d) "SUBSCRIBER" means an Affiliate customer authorized to gain access
to the WorldGatell Service as part of Affiliate's System.
(e) "SUBSCRIBER ACCESSIBLE CONTENT" MEANS the programs, information,
and other content which, from time to time, has been licensed or is otherwise
provided by WG and others for access by Subscribers on or as part of the
WorldGate-SM- Service .
(f) "SUBSCRIBER TRANSACTION" means any instance whereby a Subscriber
accesses or is authorized to access the WorldGate Service.
(g) "TERM" means the term of this Agreement which shall commence on
the date hereof, and shall.terminate five (5) years from the date set forth
above, except if renewed or terminated earlier as provided herein.
(h) "WORLDGATE PLATFORM" means the hardware and software components to
be supplied by WG to Affiliate and used by Affiliate with Affiliate's System to
provide Subscriber access to the WorldGate Service hereunder.
(i) "WORLDGATE SERVICE" means an interactive Internet access service
which
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utilizes WG's proprietary WorldGate Platform in connection with the Affiliate's
System(s) for addressably transmitting downstream application information
(including Subscriber Accessible Content) to Subscribers in the Affiliate's
System channels (vertical blanking intervals, full-field video text channels or
MPEG data stream) and, either utilizing separate RF carriers in certain segments
of the upstream communication spectrum of the System's current allocated
spectrum and/or a suitable phone-network based return facility for transmitting
upstream communication.
2. AUTHORIZATION OF RIGHTS, WORLDGATE PLATFORMS AND SYSTEM:
(a) WG hereby authorizes Affiliate, during the Term hereof, to provide
Subscribers access to the WorldGate Service, via the WorldGate Platforms in
connection with Affiliate's System, in accordance with the terms and conditions
of this Agreement. Except as agreed by the Parties such WG Service will not
materially interfere with Affiliate's ability to use the published features and
functions of the applicable set top converters with the correctly configured
expansion modules.
(b) From time to time during the term hereof WG shall provide to
Affiliate and Affiliate shall acquire by purchase, lease or such other
acquisition transaction as may be agreed by the Parties, certain systems and the
components of the WorldGate Platform as are further identified in Exhibit B. The
terms and conditions of such acquisition as well as the associated installation,
maintenance and warranty of the WorldGate Platforms are also set forth in
Exhibit B.
(c) WG shall make available to Affiliate such Subscriber Accessible
Content as may, from time to time, be determined by the Parties. Affiliate,
however, acknowledges that creators of Subscriber Accessible Content may, from
time to time, and for any reason make additions to, deletions from and/or
otherwise modify Subscriber Accessible Content, and accordingly, WG also
reserves such right. Affiliate and WG further acknowledge and agree that such
Subscriber Accessible Content including, without limitation, access to the World
Wide Web, may include materials and information of uncertain or even
objectionable origin, nature and/or character, and that WG expressly disclaims
any responsibility for or liability associated with Subscriber's access to or
use of the Subscriber Accessible Content to the extent such materials and
information were either not created by WG or the provision of which is not in
WG's control and discretion.
(d) Affiliate may request modifications of or additions to certain
user interface screens or other aspects of the WorldGate Platform and/or the
Subscriber Accessible Content. WG agrees to work with Affiliate to accommodate
such requests to the extent that WG agrees such modifications are viable and
will enhance the WorldGate Service.
(e) (i) Affiliate shall provide a suitable System and facilities
associated therewith as further identified in Exhibit A. Such Systems as are
listed in the initial Exhibit A hereto are the Systems in which Affiliate has in
excess of 25,000 customers and that are technically capable of providing
interactive pay per view service. Affiliate will have a period not to exceed six
(6) months from the effective date hereof to install the appropriate headend
equipment and to
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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otherwise deploy the WorldGate Service in these systems. (ii) Affiliate may,
from time to time, add additional Systems, in which event Affiliate shall use
commercially reasonable efforts to provide WG with at least ninety (90) days
advance written notice of any such proposed additions to the Systems. Upon the
agreement of the Parties this Agreement shall be promptly amended to cover such
proposed additions, by the execution of supplemental and/or superseding Exhibit
A(s) setting forth the agreed a ' nd then current information relevant to such
Systems. (iii) Further, Affiliate may make changes to the Systems and facilities
comprising the same, and/or WG may make changes to the WG Platform. In the event
such changes materially affect the performance of the WorldGate Service, the
Party making the changes shall use reasonable efforts to provide the other Party
with as much advance notice of the same as is possible. (iv) The installation,
maintenance and support of such Systems and associated facilities shall be the
sole responsibility of Affiliate and its suppliers. Affiliate acknowledges and
agrees that WG and its contractors will require both physical and on-line access
to the System and the WorldGate Platform connected thereto to perform their
obligations hereunder. Affiliate shall provide WG and its contractors reasonable
physical and remote (via modem and other electronic means) access to such
Systems (including the facilities and technical personnel associated therewith)
and to the WorldGate Platforms connected or to be connected thereto, to afford
any required installation, support, service and reporting by WG hereunder.
3. RESERVATION OF RIGHTS:
(a) Affiliate agrees that it is the essence of this Agreement that:
(i) the WorldGate Platform shall not be modified in any manner unless approved
in writing by WG; (ii) the WorldGate Platform shall not be utilized to provide
services other than the WorldGate Service, provided, however, Affiliate may use
the set top converters to provide other services as long as the provision of
such other services does not use the XX xxxxxxx or the WG Programs ( as defined
in Exhibit B); and (iii) Affiliate shall not authorize any other party to do any
of the acts forbidden herein (collectively, the "Prohibited Acts"), without the
specific written consent of WG and/or its content providers as may be required,
or except as otherwise set forth herein.
(b) Affiliate shall immediately notify WG upon the occurrence or
likely occurrence of any Prohibited Acts of which it becomes aware.
(c) All licenses, rights and interest in, to and with respect to the
WorldGate Platform, the Subscriber Accessible Content, the elements, parts and
derivations thereof (including without limitation the writings, images,
displays, electronic reproductions, user interfaces, sounds and other works
embodied therein, derived therefrom or ancillary thereto, and the media of
reproduction, performance or exhibition thereof), as well as the intellectual
property rights related thereto, not specifically granted herein to Affiliate or
to Affiliate's Subscribers, shall be and are expressly and entirely reserved by
WG and the applicable Content Providers. The licenses granted to Affiliate and
Affiliate's Subscribers hereunder do not include any right to sublicense any
third party, in whole or in part.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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4. MARKETING AND PROMOTION OF THE WORLDGATE SERVICE: The Parties agree to
diligently market and promote the WorldGate Service to all Affiliate's customers
which are or become part of Affiliate's System(s). In particular and without
limitation the Parties agree to provide such marketing and promotional services
as are further identified in Exhibit C. The Parties also recognize that the
WorldGate brand is a substantial asset of WG and that use of such brand as well
as any other applicable WG trademarks and service marks is limited to promotion
of the WG service in a manner consistent with that typically used with other
quality and valued trademarks and service marks. The XX xxxxx shall be
prominently displayed in all consumer communications promoting the WG services
such as, but not limited to, marketing materials, advertisements, direct mail
pieces, xxxx stuffers, price lists, etc. Examples of any marketing materials and
TV spots developed by Affiliate promoting the WG services, and all other uses of
the XX xxxxx shall be furnished to WG upon WG's request. The XX xxxxx may be
promoted with Affiliate's xxxx with WG's prior written approval.
5. PAYMENTS, ACCESS FEES AND TAXES:
(a) As consideration for the rights granted and services performed
hereunder, Affiliate shall pay to WG Subscriber Access Fees for the WorldGate
Service, as more fully set forth in Exhibit D1. WG has published a rate card for
its standard Subscriber Access Fees effective as of the execution date of this
Agreement as set forth in Exhibit D2. In the event of a change in WG's published
rate card, in which the standard Subscriber Access Fees set forth therein are
reduced from those set forth in the initial Exhibit D2, or any subsequent
Exhibit D2, then Exhibit D2 shall be amended, or further amended, as the case
may be, to reflect the then current published rate card, and such Subscriber
Access Fees then set forth in Exhibit D1 shall be reduced, and Exhibit D1 shall
be amended, such that the reduced rates in the amended Exhibit D1 have the same
discount with respect to the amended Exhibit D2 and the then current published
rate card thereby reflected as the Subscriber Access Fees in the initial Exhibit
D1 have with respect to the standard Subscriber Access Fees set forth in the
initial Exhibit D2. Furthermore, if at any time, more than sixty five (65%)
percent of WG's other affiliates (i.e., other cable operators) are paying
Subscriber Access Fees which are less than the standard Subscriber Access Fees
set forth in then current Exhibit D2, such Exhibit D2 shall be amended to
reflect Subscriber Access Fees such that no more than sixty five (65%) percent
of WG's other affiliates are paying less than the amended rates, and Exhibit D1
shall be amended accordingly.
(b) Notwithstanding the required payment of a Subscriber Access Fee as
described above, the Parties agree and acknowledge that Affiliate is free to
determine what fees, if any, it charges its Subscribers with respect to access
to the WorldGate Service and/or any Subscriber Transactions.
(c) All payments hereunder, including, without limitation, the
Subscriber Access Fee are payable without deduction for any franchise fees and
taxes (including interest and penalties on any such amounts) now or hereafter
imposed upon Affiliate or based upon the licensing, rental, delivery,
exhibition, possession, or use of the WG Platform or the access to any
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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Subscriber Accessible Content hereunder, but excluding however any taxes
assessed upon any of WG's income or personal property (collectively "Taxes").
Affiliate shall pay and hold WG and Content Providers forever harmless from any
liability associated with such Taxes.
(d) Except as set forth in sub-paragraph (a), above, all payments
hereunder, including without limitation the purchase price of the components of
the WorldGate Platform are due within forty-five (45) days of the receipt of
invoice for the same. Interest shall accrue on all amounts not paid when due at
a rate equal to the lesser of twelve (12%) percent per annum or any maximum rate
imposed under applicable laws and regulations. Payments shall not be deferred or
subjected to setoff by Affiliate. Payments may not be suspended and shall
continue during the pendency of any dispute hereunder, provided, however, that
Affiliate may withhold payment of an amount to the extent Affiliate in good
faith and with a basis it reasonably believes to be legitimate disputes that
such amount is due and payable to WG. All payments to be made to WG shall be in
the currency of the United States unless otherwise agreed in writing by the
parties.
6. STATEMENTS AND REPORTS: WG shall provide to Affiliate an accounting statement
and report within ten (10) days after the end of each calendar month in which
the WorldGate Service is distributed hereunder. Said statement shall include at
least the following information: the number of Subscribers. Such information may
be provided electronically as part of Affiliate's access to computer terminals
included in the WorldGate Platform. Affiliate acknowledges that WG requires
access to records and information relating to Subscribers and Subscriber
Transactions in order to provide such statements and reports and hereby consents
to the same. While Affiliate acknowledge's WG's need for access to its
subscriber records and information, WG acknowledges that Affiliate shall retain
all proprietary rights to Affiliate's subscriber records and information and
that, except as required for the purposes of this Agreement, WG is prohibited
from sharing, selling or otherwise disseminating such Affiliate subscriber
records and information to third parties. WG will adhere to the Privacy Act
provisions Of the Telecommunications Act of 1984, as amended. The Parties also
recognize the importance and desirability of developing an interface between the
WorldGate Platform and the current standard cable operator billing interfaces,
and wg will use all commercially reasonable efforts to develop such interface in
accordance with the typical commercial requirements for the same, and in a
timely manner consistent with the deployment schedule hereunder.
7. AUDIT: Affiliate and WG shall keep accurate and complete books and records of
Subscriber Transactions and accounts hereunder, and any required adjustments
thereto. Subject to the confidentiality provisions contained herein Affiliate
and WG may, not more than once during each calendar year and upon at least
thirty days prior written notice, at their expense and during regular business
hours, have the right to audit all such books and records of the other
pertaining to the Subscriber Transactions occurring over Affiliate's System.
Such audits shall be conducted by a nationally recognized, independent public
accounting firm chosen by the auditing Party on the auditing Party's behalf. The
audited Party agrees to fully cooperate with auditing Party's representatives
and/or designees, and shall provide such
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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representatives and/or designees with an office or adequate space in which to
facilitate any audit of such books and/or recor ' ds. If an audit or checking
reveals a discrepancy in the Access Fee owed for the audit period, WG and
Affiliate agree to make prompt adjustments of such accounts along with any
required credits or payments associated therewith.
8. REPRESENTATIONS AND WARRANTIES OF THE PARTIES:
(a) Each of the Parties represents and warrants that (i) it has the
authority and power to enter into this Agreement and to perform its obligations
hereunder; and (ii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and are deemed to be valid, binding and enforceable obligations.
9. INDEMNIFICATION:
(a) WG shall indemnify, defend and forever hold harmless Affiliate and
its subsidiaries, officers, directors, employees, agents and shareholders
against and from any and all claims, costs, liabilities, judgments, damages and
expenses (including, without limitation, reasonable attorney's fees) arising out
of any breach by WG of any warranty, representation or other provisions of this
Agreement. Affiliate shall indemnify, defend and forever hold harmless WG and
its subsidiaries, officers, directors, employees, shareholders and agents
against and from any and all claims, costs, liabilities, judgments, damages and
expenses (including, without limitation, reasonable attorney's fees) arising out
of any breach by Affiliate of any warranty, representation or other provisions
of this Agreement.
(b) WG shall indemnify Affiliate against (i) any award of damages and
costs made against Affiliate by a final judgment (final judgment as used herein
shall not be construed as requiring Affiliate to pursue an appeal which is not
reasonably likely of materially changing a currently standing judgement) of a
court of competent jurisdiction in any such action, insofar as the same are
based on a claim that the WG Platform infringes any United States copyright,
trademark or patent, and (ii) any settlements and compromises approved by WG as
described below. WG shall control the defense of any such action including
appeals, and all negotiations thereof, including the right to effect any
settlement or compromise. In case the use of the WorldGate Platform is, in any
action, held to constitute such an infringement and the use thereof is enjoined,
WG shall, at its option and expense (i) procure for Affiliate the right to
continue using the WorIdGate Platform, (ii) replace or modify the same so that
it becomes noninfringing and performs the same service with substantially the
same quality, or (iii) authorize Affiliate to return the WorldGate Platform and
provide Affiliate with a refund of the purchase price, less an allowance for
past use, prorated based upon a five year life. WG shall have no liability for
any claim of infringement based on: (1) any use of other than a current
unaltered release of the WorldGate Platform; or (2) any access to or use of the
Subscriber Accessible Content or any combination or use of the WorldGate
Platform with non-WG hardware, software, Subscriber Accessible Content or data.
The foregoing states the entire liability with respect to infringement of any
intellectual property rights with regard to the WorldGate Platform.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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(c) In any case in which indemnification is sought hereunder:
(i) The party seeking indemnification shall promptly notify
the other party in writing upon the initiation of any claim or litigation to
which the indemnification relates;
(ii) The party seeking indemnification shall afford the other
party the opportunity to participate in, and, at the option of such other party,
to control, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
(iii) The party seeking indemnification shall fully cooperate
with the reasonable requests of the other party in its participation in, and
control of, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
10. SECURITY: Each Party shall employ such security systems and procedures as
may be reasonable and commercially feasible to prevent theft, pirating or other
unauthorized access to the WorldGate Service.
11. RENEWAL, TERMINATION AND DEFAULTS:
(a) Upon the expiration of the initial Term hereunder this Agreement
shall be automatically renewed for additional successive two (2) year periods
thereafter unless terminated by either Party upon ninety (90) days written
notice prior to the expiration of such initial Term and any renewal period.
(b) Either party shall be entitled, in addition to all of its other
rights and remedies at law, and at its option forthwith, upon giving notice to
the other party to terminate this Agreement,
(i) if said other party shall fail to perform any of its
obligations or undertakings required of it hereunder, or shall be in breach of
any of its warranties or representations herein contained, and shall not have
cured or remedied such failure or breach within sixty (60) days of written
notification thereof.
(ii) If a party hereunder commences a voluntary case under
Title 11 of the United States Bankruptcy Code as now and hereafter in effect, or
any successor statute, or any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or a party consents to the entry of an order for
relief in an involuntary case, or to the conversion of a voluntary case to an
involuntary case, under any such law, or consents to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; a party makes any assignment for the benefit
of creditors; a party is unable or fails or admits in writing of its inability
or failure to pay its debts as such debts become due; or the Board of Directors
or other governing body of a party adopts any resolution or otherwise approves
authorization to act upon any of the foregoing, such action shall be deemed a
breach
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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hereunder.
(iii) If any order, judgment or decree is entered against
decreeing the dissolution or split-up of such party, and such order remains
undischarged or unstated for a period in excess of thirty (30) calendar days,
such action shall be deemed a breach hereunder.
(c) Sections 1,3,7-10,11(c),14,15,16, and 18-20, as well as any
obligation which has accrued prior to any expiration or termination of this
Agreement (including, without limitation, all payments which are or may become
due and payable under Section 5 hereo~ shall survive such expiration or
termination.
12. ASSIGNMENT: Either party hereunder shall have the right to assign its rights
and obligations to a third party which is acquiring all or substantially all of
its assets, or any company with which it may merge or consolidate. In the event
Affiliate sells one or more Systems to a third party other than as part of a
sale of substantially all of its assets or a merger or consolidation as
aforesaid, Affiliate may assign its rights and obligation hereunder with respect
to such affected Systems or Systems to the third party subject to any increase
in Subscriber Access Fees required by WG. Alternatively if either Affiliate or
the proposed assignee are not willing to accept such increase, such assignment
may occur only if WG agrees in writing to maintain the current applicable
Subscriber Access Fees, and in such event WG may require Affiliate to make such
assignment. In the event Affiliate's obligations and rights are assigned
hereunder as a result of a sale of a System, such System shall be stricken from
Exhibit A. In the event of a sale of a System which does not result in an
assignment hereunder, such Systems shall also be stricken from Exhibit A subject
to the return to WG of the applicable WorldGate Platform compenents (i.e., the
headend equipment and the WorldGate Programs.) Except as expressly set forth in
the prior sentence neither party hereunder shall have the right to assign,
transfer or hypothecate its rights and obligations hereunder, without the
other's prior written approval. Any other purported assignment of this
Agreement, shall be deemed null and void.
13. HEADINGS, RELATIONSHIP OF PARTIES: The titles of the paragraphs of this
Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement. This agreement does not in any way create the
relationship of franchise, joint venture, partnership or agency between WG and
Affiliate, and each shall remain an independent contractor, and as such shall
not act or represent itself, directly or by implication, as agent for the other
or assume or create any obligation of or in the name of the other.
14. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE:
(a) A waiver by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or construed to be a waiver of
such terms or conditions for the future or of any subsequent breach thereof. No
payment or acceptance thereof under this
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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Agreement shall operate as a waiver of any provision hereof.
(b) All remedies, rights, undertakings, obligations and agreements
contained in this Agreement shall be cumulative and none of them shall be in
limitation of any other remedy, right, undertaking, obligation, or agreement of
either party. IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER
FOR SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION ANY LOST
PROFIT OR INVESTMENT AND THE LIKE), INDIRECT OR INCIDENTAL DAMAGES, BY WAY OF
INDEMNITY OR OTHERWISE.
(c) In no event shall WG be liable for damages(excluding any indemnity
hereunder) in excess of the amounts paid to WG hereunder with respect to the
particular subject matter giving rise to such damages.
15. NOTICES: Except as herein otherwise expressly provided, all notices,
statements and other documents desired or required to be GIVEN hereunder shall
be in writing and shall be GIVEN by personal delivery, certified mail, or fax
(with a copy sent by regular US mail). All notices, statements and other
documents shall be sent to:
If to WG:
Accounting statements and remittances All other notices should be sent to:
should be sent to:
WORLDGATE COMMUNICATIONS, INC. WORLDGATE COMMUNICATIONS, INC.
0000 Xxxxxxx Xxxxx, Xxxxx 000 0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Accounting Services Attn: Affiliate Administration
If to Affiliate:
CHARTER COMMUNICATIONS, INC.
00000 Xxxxxxxxxxx Xxxxx - Xxx. 000
Xx. Xxxxx, XX 00000-0000
Attn: Xxxxxxx X. XxXxxxxx, Vice President-Corporate Development
With a copy to:
Xxxxxx X. Xxxx, Senior Vice President and General Counsel, at the above address
(or at such other address as may be designated in writing by either party no
less than thirty (30) days prior to the date of transmission of the notice,
statement, etc.). Notice given by domestic mail shall be deemed given three (3)
days after the date of mailing; Notice given by international mail shall be
deemed given ten (10) days after the date of mailing, notice given by fax shall
be deemed given at the time of dispatch;
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notice given by personal delivery shall be deemed given upon delivery by the
messenger; and notice given by overnight delivery shall be deemed given the
first business day following delivery to the overnight delivery service.
16. GOVERNING LAW:
(a) All matters pertaining to this Agreement (including its
interpretation, validity, performance and breach), in whatever jurisdiction
action may be brought, shall be governed by the laws of Delaware (excluding its
conflict of law provisions) . The parties hereto expressly consent and agree to
submit to the jurisdiction of any court of competent jurisdiction in the State
of Delaware, and to accept service of process outside the State of Delaware in
any matter to be submitted to any such court pursuant hereto.
(b) Wherever there is any conflict between any provision hereof and
any law or requirement with the force of law, this Agreement shall remain valid
and such provision hereof shall be restricted to the extent, and only to the
extent, necessary to bring it within the applicable requirements, unless such
restriction shall have the effect of materially nullifying, or impairing, this
Agreement.
17. FORCE MAJEURE: Neither party shall, in any manner whatsoever, be liable or
otherwise responsible for any delay or default in, or failure of performance
(other than the failure to make payments hereunder) resulting from or arising
out of or in connection with, any "Event of Force Majeure" and no such delay,
default in, or failure of performance shall constitute a breach by either party
hereunder. For purposes of this Agreement, an "Event of Force Majeure" in
respect of a party shall mean any act, cause contingency or circumstances beyond
the control of such party to the extent beyond the control of such other party,
in the nature of (by way of example and not limitation) any governmental action,
nationalization, expropriation, confiscation, seizure, allocation, embargo,
prohibition of import or export of goods or products, regulation, order or
restriction (whether foreign, federal or state), war (whether or not declared),
civil commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, lack of or shortage of, or inability to obtain, any labor,
machinery, materials, fuel, supplies or equipment from economically practical
sources of supply, strike, work stoppage or slowdown, lockout or other labor
dispute, fire, flood, drought, other natural calamity, damage or destruction to
plant and/or equipment, or any other accident, condition, cause, contingency or
circumstance (including, without limitation, acts of God) within or without the
United States beyond the control of such party.
18. CONFIDENTIALITY:
(a) The recipient of any confidential information of the other
hereunder agrees to safeguard the confidentiality of such confidential
information by applying policies and procedures adequate for that purpose,
including without limitation, restricting the disclosure of
WORLDGATE COMMUNICATIONS CONFIDENTIAL
this confidential information to employees and consultants needing to know the
same for the purpose of this Agreement, provided that Recipient shall have the
obligation and associated liability of ensuring that all such employees and
consultants which gain access to the information hereunder abide by these terms
and conditions of confidentiality. During the term of this Agreement and for a
period of thirty six months thereafter the recipient shall not disclose any such
confidential information to any other person, firm or corporation, or use the
same except for the purpose stated hereinabove, and shall exercise at least the
same degree of care to guard against disclosure or unauthorized use of such
confidential information, as the recipient employs with respect to its own
confidential information, but in no event less than reasonable care. Information
to be disclosed confidentially hereunder shall be fixed in a tangible medium of
expression that is marked "Proprietary" or "Confidential", or if disclosed in
other than a tangible medium of expression, indicated by the disclosing Party as
being "Proprietary" or "Confidential" at the time of disclosure and within
thirty (30) days thereafter summarized by the disclosing Party in a writing to
the recipient, in which writing the confidential information is identified as
"Proprietary" or "Confidential". A tangible medium of expression shall be deemed
to include, by way of example, memoranda, written descriptions, drawings,
photographs, models, prototypes, tapes, disks and circuitry.
(b) The recipient shall have no obligation of confidentiality
hereunder with respect to any information which:
(i) is already properly known to the recipient other than as a
result of a prior confidential disclosure by the disclosing Party;
(ii) is or becomes publicly known otherwise than by the
recipient's (or someone receiving the information from recipient) fault or
breach of this Agreement;
(iii) is rightfully received by the recipient without
restriction from a third party who is not under an obligation of
confidentiality, directly or indirectly, to the disclosing Party.;
(iv) is independently developed by the recipient without
benefit of the confidential information received hereunder;
(v) is approved for release in writing by the disclosing
Party; or
(vi) is disclosed by the recipient pursuant to judicial or
regulatory action, provided that the disclosing party is promptly notified at
the time such action is initiated and the recipient fully cooperates with the
disclosing Party in seeking continued confidential treatment of such information
to the extent possible.
(c) The Parties agree that, except as may be reasonably required by
applicable law, rule, regulation, court order or the like, neither of them shall
publicly divulge or announce, or in any manner disclose to any third party,
other than its attorneys, accountants, parents, and partners, any of the
specific terms and conditions of this Agreement, including without limitation
the Subscriber Access Fees payable hereunder, and the parties further warrant
and agree that none of their officers, directors or employees will do so.
19. PROCEDURE PRIOR TO LITIGATION: Prior to initiating any litigation with
respect to any controversy, claim or dispute arising hereunder or related
hereto, but excluding any claim arising under Sections 3, 10 or 18 of this
Agreement (a "Dispute") a Party must first notify the
WORLDGATE COMMUNICATIONS CONFIDENTIAL
Page 12 of 22
other Party and request in writing that such Dispute be submitted to an
executive committee consisting of one senior ranking executive named by each of
the Parties for such purpose. Such named executive shall have the authority and
be capable of making binding decisions on behalf of such Party with respect to
such Dispute. Within five (5) business days following the receipt of such notice
(or such other period as may be agreed by the Parties) each Party shall have
named its executive committee participant, and within ten (10) business days
following the receipt of such notice (or such other period as may be agreed by
the Parties) the executive committee shall meet to discuss the Dispute. If the
executive committee is not able to resolve the Dispute within twenty (20)
business days following the receipt of such notice (or such other period as may
be agreed by the Parties), then either Party may proceed with the initiation of
such litigation as may be appropriate.
20. ENTIRE UNDERSTANDING: This Agreement, including the Exhibits identified
herein, sets forth the entire understanding of the parties with respect to the
subject matter hereof, and all prior concurrent oral agreements or all prior
written agreements with respect to such subject matter have been merged herein.
No representations or warranties have been made other than those expressly
provided for herein. This Agreement may not be modified, except by a written
instrument signed by an authorized representative of the parties, and this
provision may not be waived except by written instrument signed by an officer of
the parties. In the event this agreement is translated into any foreign language
counterpart, the English language counterpart shall remain controlling.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE SIGNED AND
ACCEPTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST
WRITTEN ABOVE.
Affilliate: Charter Communications, Inc. WorldGate Communications, Inc.
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Senior Vice President Title: Vice President
Date: November 7, 1997 Date: November 7, 1997
Tel.: 000-000-0000 x 000 000-000-0000
Fax: 000-000-0000 000-000-0000
WORLDGATE COMMUNICATIONS CONFIDENTIAL
Page 13 of 22
EXHIBIT A
TELEVISION DISTRIBUTION SYSTEMS
SYSTEM NAME MAILING ADDRESS BASIC SUBSCRIBERS
--------------------------------------------------------------------------------
## ## ##
## ## ##
Each System identified above must include the following minimum facilities (to
be supplemented as WG subscriber base grows): (a) T-1/internet Access Link in
accordance with WG's requirements (b) Cisco 2501 Router with IP Software (or
approved equivalent) (c) Kentrox D-Serv CSU/DSU (or approved equivalent)
Effective Date: __________ Affiliate Initials: _________ WG Initials: __________
--------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
PAGE 14 OF 22
EXHIBIT B
WORLDGATE PLATFORM
PLATFORM COMPONENTS AND PRICING
Set forth below are the components of the WorldGate Platform and Affiliate's
price for the same as of the effective date set forth below. Such prices are FOB
WG's factory, and are valid for a period of one-year from this effective date
after which time they are subject to change by WG to reflect current market
conditions and the prices for such products and services then being generally
charged to WG's affiliate customers purchasing the products and services in
similar quantities.
OTHER UNITS - SAME
ITEM FIRST UNIT IN A XXXXXXX XXXXXXX
---- ----------------------- ------------------
## ## ##
## ## ##
## ##
## ## ##
Affiliates will require and shall purchase hereunder one or more Headend
Controllers, as required, for each System identified on Exhibit A of this
Agreement. Except as otherwise agreed by the Parties in writing, the above fees
do not include site surveys or training which will be done on a time and
material basis at WG's customary rates (international locations will also
involve additional travel and per diem charges.) Notwithstanding the use of the
term "purchase" herein, such headend controller(s) and servers as acquired
hereunder includes certain WorldGate and third party software, microcode and
documentation, whether stored in electronic (including firmware), magnetic,
optical or other media (collectively Programs) for which title to and all
proprietary rights in are reserved to WG and its suppliers. All access to and
use of such Programs is subject to the terms and conditions of WG's Software
License attached hereto and incorporated herein as Exhibit B-1.
LIMITED PRODUCT WARRANTY
Upon the installation of the Headend Controller WG will perform the Verification
of Performance procedure as set forth in the attached Exhibit B2 as the same may
be amended from time to time with the mutual agreement of the Parties. Affiliate
will be notified prior to the performance of such procedure and shall
participate in such procedure if it desires. Upon the successful completion of
such procedure the Headend controller will be deemed installed for purposes of
this Agreement. In addition to the warranties set forth in Section 8 of the
Affiliation Agreement, WG warrants that as supplied hereunder and for a period
of twelve months from the installation thereof (but not more than thirteen
months from the delivery thereof) such WorldGate Platform components will
perform under normal use and service substantially in the manner specified in
the applicable published technical specification as published by WG prior to the
execution of this Agreement as set forth in the attached Exhibit B3 (as the same
may be amended from
----------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
PAGE 15 OF 22
time to time with the mutual agreement of the parties), and that for this period
the hardware components of the WorldGate Platform will be free from defects in
materials and workmanship. This warranty shall not apply to any items subjected
to accident, misuse, neglect, mishandling or any installation, testing, repair
or alteration by anyone other than WG or its authorized vendors, or any use of
non-approved components in connection with the WG Platform. WG's warranty
hereunder extends to Affiliate and to no other person or entity. This warranty
shall not be enlarged or otherwise affected by, and no obligation or liability
shall arise hereunder by WG's rendering of technical advice, help line support
or service in connection with the products furnished hereunder. Any claims
arising out of the aforesaid warranty must be submitted to, and the affected
components must be returned or otherwise made available to WG in accordance with
its published procedures, during the specified warranty period or within thirty
(30) days of the expiration of such period. Subject to the preceding conditions,
WG will promptly examine such WorldGate Platform components and repair or
replace any such components which are defective with respect to the above
warranty. In the event WG is not able to repair or replace such components as
hereby required, such non-conforming WorldGate Platform components may be
returned to WG and WG will issue a credit for the purchase price of the returned
components, as depreciated over a 5 year period. Any required service, repair or
replacement (and the costs and expenses associated therewith) which are not
covered by the above warranty will be the responsibility of Affiliate and
subject to Affiliate's execution of any required WG service contract and its
payment of WG's customary fees and charges as may be associated therewith, which
shall be no greater than being charged to WG's affiliate customers purchasing
the products and services in similar quantities.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY
WARRANTY HEREUNDER, EXPRESS OR OTHERWISE, IS LIMITED TO THE WARRANTY TERM AND
CONDITIONS AS SET FORTH ABOVE. THE FOREGOING IS NOT INTENDED TO LIMIT OR EXPAND
THE INDEMNITIES AS SET FORTH IN SECTION 9 OF THIS AGREEMENT.
POST WARRANTY MAINTENANCE SUPPORT
WG will make available to Affiliate, at its sole option, post warranty
maintenance support for the WorldGate Platform pursuant to the terms and
conditions of the attached Exhibit B-4
AFFILIATE SUPPORT
WG will provide, at no additional charge to Affiliate, technical support to
Affiliate's customer service and engineering staff, 7 days per week, 24 hours
per day, with such support to be provided by telephone, facsimile and Internet.
Except as is required pursuant to WG's written warranty herein any travel from
WG's facilities will be subject to Affiliate's payment for time and materials at
WG's customary rates, as well as reimbursement for travel and per them charges,
which shall be no greater than being charged to WG's affiliate customers
purchasing the products and services in similar quantities.
----------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
Page 16 of 22
PLANT SPARES
WG and Affiliate will cooperate to formulate and implement a reasonable program
for spare parts inventory and replacement and emergency response.
ON SITE TRAINING
Prior to the initial launch of the WorldGate Service at a System WG will conduct
one on site customer service training program for a period not to exceed three
consecutive days. Subsequent to the launch and upon the request of Affiliate, WG
will, at no additional charge, conduct one additional on-site training program
for a period not to exceed two days, at a time to be mutually determined.
Additional training will be available on a time and materials basis at WG's
customary rates, as well as reimbursement for travel and per them charges, which
shall be no greater than being charged to WG's affiliate customers purchasing
the products and services in similar quantities.
SUBSCRIBER SUPPORT
Until December 31, 1998, WG shall make available to WorldGate Subscribers at
domestic United States's locations, a toll-free help line, accessible twenty
four hours per day, seven days per week, to assist WorldGate service
Subscribers with questions relating to their WorldGate Service. Following
December 31, 1998 such help line shall become toll-based. However, at
Affiliate's option, WG will continue to offer a toll-free line provided that
Affiliate pays to WG a monthly support line fee of [information redacted] ##
for each Subscriber within a System in which Affiliate desires to maintain
such toll-free support. Subscribers with questions relating to Affiliate or
Affiliate's Systems will be referred to Affiliate. WG will also provide
on-line help screens for all Subscribers and will use reasonable efforts to
implement e-mail support for Subscribers to the extent economically practical.
CHANNEL HYPERLINKINGSM AND OTHER REVENUE SHARING OPPORTUNITIES
The parties anticipate that the Subscriber Accessible Content will include
opportunities to generate revenue from third parties through Channel
Hyperlinking, advertising, commodity buying/selling, lead generation and
similar services which may be enabled by the WorldGate Platform. The Parties
further recognize that such opportunities may require commitments with
advertising agencies and other third parties as well as administrative,
accounting, and other services and associated costs, fees, and expenses in
order to permit such revenue to be generated. The Parties will work together
to maximize such opportunities. Any net revenue which is generated as a
result of such services as the Parties agree to make available to Subscribers
or any other party as part of the WorldGate Service hereunder will be evenly
shared by WG and Affiliate, after payment of such associated costs, fees, and
expenses, and subject to any required commitments as aforesaid.
Effective Date: __________ Affiliate Initials: __________ WG Initials: _________
--------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
PAGE 17 OF 22
EXHIBIT B-1
SOFTWARE LICENSE
The terms and provisions of this Exhibit B-I (Software License) provide for the
licensing by WG to Affiliate of certain Programs (as such term is defined in the
Affiliation Agreement) furnished with and to be used either as part of or in
conjunction with the WG Platform to be provided by WG to Affiliate under an
Affiliation Agreement, of which this Exhibit forms a part.
1. GRANT OF LICENSE: WG (hereinafter Licensor) hereby grants to Affiliate
(hereinafter Licensee) and Licensee hereby accepts a personal, nonexclusive
license to use the Programs on the terms and conditions set forth herein and in
the Affiliation Agreement. Except as specifically provided herein and therein,
no interest, right or license, express or implied, is granted.
2. OWNERSHIP RIGHTS: Any reference to sale or purchase not withstanding, title
to the Programs and all copies thereof shall be and remain in Licensor, and no
title to or ownership of the Programs or any portion thereof is conveyed or
transferred to the Licensee. Licensee acknowledges that the Programs constitute
confidential and proprietary information and trade secrets of Licensor, whether
or not the Programs, or any portion thereof, are or may be copyrighted or
copyrightable and/or patented or patentable, and that disclosure of the Programs
to Licensee is on the basis of the confidential relationship between Licensee
and Licensor under this Agreement.
3. RESTRICTION ON TRANSFER: Licensee shall not sell, assign, sub-license,
transfer, or otherwise make available the Programs, in whole or in part, except
as may be permitted by this Software License Agreement and only with written
prior consent by WG.
4. RESTRICTION ON USE, DISASSEMBLY AND REVERSE ENGINEERING: Licensee may use
the Programs solely and exclusively on the computer(s) furnished by WG as part
of the WG Platform sold to Affiliate under terms of the Affiliation Agreement,
except that the Programs may also be temporarily used on or with a compatible
backup computer if the WG Platform computers are inoperative because of
malfunction or during the performance of preventive maintenance or engineering
changes, but only for such reasonable time as required to restore such WG
Platform to operative status. Licensee shall use the Programs only in connection
with its immediate internal operations with respect to the provision to its
customers of the WG Service, and shall not offer nor supply the use of the
Programs to others under any circumstance. Licensee shall not disassemble or
otherwise reverse engineer the Programs unless approved in writing.
5. RESTRICTION ON COPYING: Licensee shall make no copies of the Programs, or
any part thereof, except that Licensee may make only that number of copies as
reasonably required solely for the purposes of backup and archival storage. All
copies shall be clearly marked by Licensee with the same Licensor proprietary
and copyright restrictions which appear on the Programs originally supplied to
Licensee, and be stored by Licensee in a secure manner.
6. RESTRICTION ON DISCLOSURE: Except as expressly permitted herein, or as is
required to be disclosed pursuant to judicial or regulatory action, provided
that Licensor is promptly notified at the time such action is initiated and
Licensee fully cooperates with Licensor in seeking continued confidential
treatment of such information to the extent possible, Licensee shall not
disclose or otherwise make available the Programs, or any portion thereof, to
any third party or to any employee or agent of Licensee who is not of necessity
authorized by Licensee to use the Programs as part of Licensee's provision of
the WG Service.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
PAGE 18 OF 22
Licensee shall take all reasonable steps necessary to ensure the Programs, or
any portions thereof, are not disclosed or otherwise made available by Licensee
(or employees or agents of Licensee) to any third party except as aforesaid.
7. TERMS AND TERMINATION: The term of this License Agreement and the license
granted hereunder shall commence on the date hereof, and shall terminate on the
earlier of. (a) when Licensee ceases to operate or otherwise de-installs or
replaces the WG Platform; or (b) the termination or expiration of the
Affiliation Agreement.
Upon any termination of this Software License Agreement, pursuant to (a)
or (b) above, Licensee shall immediately return the Programs and all copies
thereof to Licensor, and shall, within one (1) month after any such termination
furnish Licensor a written statement certifying that the original and all copies
and extracts (including partial copies and extracts) of the Programs and any
related material received from Licensor or made in connection with such license
have been returned to Licensor or, upon Licensor's written request, destroyed.
Description ______________________________________ Release No. _________________
Effective Date: _________ Affiliate Initials: _________ WG Initials: ___________
WORLDGATE COMMUNICATIONS CONFIDENTIAL
EXHIBIT B2
Charter High-Level Acceptance Test
1. Install and Monitor WorldGate Headend Equipment
/ / Identify all downstream and upstream channels
/ / Map cable feeds to various allotted Wordgate channels
/ / Install several settop boxes with Television monitors for each
designated Worldgate downstream/upstream channel pair
/ / Setup several initial accounts on system for initial test purposes
/ / Monitor memory and cpu utilization via remote utilities for all
Headend Worldgate components
2. Connection to WorldGate service
/ / For each Worldgate downstream/upstream channel pair connect two
boxes in automatic login/logout mode. Let these boxes run indefinitely
and monitor the appropriate log files for login and logout
information.
/ / Connect several additional boxes to each downstream/upstream channel
pair and perform basic login/logout functions manually
3. Basis Worldgate Functionality per user
/ / Login several users per Worldgate downstream/upstream channel pair
and perform the following basic functions
[INFORMATION REDACTED] ##
EXHIBIT B2 -- Page 2
4. Analysis and Modifications
/ / Modify system configuration parameters to correct any problems
encountered
/ / Review monitoring utilities and log files for any problem areas;
modify system configuration to address these problem areas
/ / Review system utilization characteristics and modify system
configuration to address any non-optimal setup parameters
/ / Re-execute tests to verify corrections have been implemented
-------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
EXHIBIT B3
PERFORMANCE SPECIFICATIONS FOR WORLDGATE SYSTEM
1. Downstream data rate:
Aggregate downstream data rate shall be at least 100 kbits/second per
channel (assuming at least 8 lines of VBI used)
2. Upstream Data rate
Aggregate upstream data rate shall be at least 13.98 kbits/second per
channel
3. Number of simultaneous users per downstream channel
Each downstream channel will support at least 8 simultaneous sessions.
4. Number of simultaneous users per upstream channel
Each upstream channel will support at least 8 simultaneous sessions.
5. Packet error immunity
Service will operate satisfactorily in environments with upstream error
rates as poor as 10(-3).
6. Login time
Login response will be under 3 seconds on unimpaired cable plant.
7. Server capacity
Each WorldGate server will have sufficient resources to operate 50
simultaneous sessions.
Page 19 of 22
EXHIBIT B-4
MAINTENANCE SERVICES PROGRAM
Affiliate may elect, at any time, to enroll in WG's Maintenance Service Program.
Under this program WG will maintain the WorldGate Platform in good working
condition, install any applicable engineering changes and also perform
preventative maintenance with respect to the WorldGate Platform. Such services
will be provided on-site or remotely, and will involve the adjustment, repair
and/or the replacement of WorldGate Platform components, each as is appropriate
in WG's judgement. The current annual fee for such Maintenance Service Program
for domestic U.S. locations is U.S.$5,000 per headend package to be covered
hereunder (Such fee may vary for non-U.S. locations.) WG, however, reserves the
right to increase this fee at any time after the first year of service under
this program, subject to Affiliate's right to terminate service hereunder as set
forth below.
WorldGate's Maintenance Program does not cover items which are normally
construed to be consumables, such as inks, paper and the like, or items not
provided by WG. WorldGate's Maintenance Program also does not cover any failure,
damage or defect related to misuse, mishandling, accident, unsuitable physical
or operating environment, any installation, testing, handling, modification or
repair by other than WG personnel, or any use or connection of the WorldGate
Platform to an item not covered by this program.
In order to provide maintenance service hereunder WG will require, and Affiliate
agrees to provide (1) prompt notification of any problems, (2) cooperation and
assistance in analyzing, confirming and determining the cause of any problem and
in implementing any applicable maintenance procedures, (3) reasonable physical
and electronic access to Affiliate's System and the WorldGate Platforms therein.
Components provided during repair or replacement hereunder may not be new, but
will be in good working order. Any removed components become the property of WG.
WG will endeavor to provide to Affiliate at least two weeks prior notice of its
intent to install any applicable engineering changes. Such engineering changes
shall be installed only at Charter's discretion, provided that WG shall be
relieved from any liabilities associated with Charter's decision to not install
any such engineering change.
Upon Affiliate's election to enroll in WG's Maintenance Service Program, WG will
arrange for an inspection of the applicable WorldGate Platform(s). This
inspection will be waived and the WorldGate Platform will be deemed to be in
good working condition if this Maintenance Service Program becomes effective
immediately upon expiration of the warranty period. If the WorldGate Platform is
not in good working condition, Affiliate may (1) have WG restore the WorldGate
Platform to good working condition at WG's customary rates, as well as
reimbursement for travel and per them charges, or (2) withdraw its request for
enrollment and WG will refund any amounts paid in advance for such WorldGate
Maintenance Program with respect to the applicable WorldGate Platform.
Commencement of such service program for any applicable WorldGate Platform
cannot occur until after WG has determined that such WorldGate Platform is in
good working order. Any election to enroll in the WorldGate Maintenance Program
should be accompanied by the required annual fee as set forth above. If
additional equipment is added to a previously commenced service program, such
equipment will be subject to inspection as aforesaid and once determined by WG
to be in good working condition, shall be covered by such program for the
remainder of the ongoing term of the program, upon payment by Affiliate of the
prorata fee for such enrollment as determined on a 12 calendar month basis.
Affiliate may terminate this Maintenance Service Program for any applicable
WorldGate Platform upon one (1) month's prior written notice to WG, under any of
the following circumstances (1) the applicable WorldGate Platform has been under
the Maintenance Service Program for at least six months; (2) the applicable
WorldGate Platform has been removed from all productive use with Affiliate's
System; or (3) as of the effective date of an increase in the annual fee for the
Maintenance Service Program.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
Page 20 of 22
WG may terminate this Maintenance Service Program for any applicable WorldGate
Platform upon one (1) month's prior written notice if Affiliate elects not to
have installed any applicable engineering changes.
Either Affiliate or WG may terminate service for any WorldGate Platform upon at
least one (1) month's prior written notice if the other does not meet its
obligations under this Agreement and does not cure such failure to meet its
obligations within such period. On any termination of service for a WorldGate
Platform, WG will refund any applicable credit on a prorated basis.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
PAGE 21 OF 22
EXHIBIT C
MARKETING AND PROMOTION OF THE WORLDGATE SERVICE
The Parties will provide, throughout the term of this Agreement, at least the
following identified activities to market and promote the WorldGate Service:
WG WILL PROVIDE:
fourtimes yearly direct mail campaign to non-WorldGate Subscribers (WG will
supply creative and will provide both printing and bulk delivery for
purchase at WG's cost)
xxxx stuffers (for purchase at WG's cost)
four times yearly local cable interconnect advertising media buys
four 30 and four 60 second video promotions for use as commercials distributed
yearly
training for customer service representatives
selected print media placement
camera-ready ad mats
four-color quarterly consumer guide (for purchase at WG's cost)
point of sale displays
leave behind piece and on-line tutorial for consumer education
participation in the sponsorship of up to four WG/Charter Subscriber Expos per
year in each System
co-branding opportunities consistent with Pargraphs 2.(d) and 4 of this
Agreement
development, promotion and hosting of an affiliate user group
AFFILIATE WILL PROVIDE:
four times yearly direct mail campaign to non-WorldGate households (Affiliate
will provide mailing lists, address labeling, out-bound postage and return
fulfillment costs)
a minimum of 500 ad avails of 30 second length per month, inserted on
Affiliate's Systems on ad supported channels as agreed between the parties
to be run at times between 6:00 AM to 12:00 PM (midnight local time) --
promoting the WorldGate Service, with WG approved commercials
affidavits verifying above commercials
xxxx stuffer insertion and mailing in Subscriber billing cycle, three times per
annum.
reasonable use of local origination text-based channels (if available) to
promote WorldGate Services
placement of WG approved 30 and 60 second commercials (or other WG provided
promotional pieces) on Affiliate's PPV promotion channel(s) for regular
rotation for two week intervals, monthly
trained customer service representatives for all WorldGate Services
participation in the sponsorship of up to four WG/Charter Subscriber Expos per
year in each System
Effective Date: __________ Affiliate Initials: __________ WG Initials:__________
WORLDGATE COMMUNICATIONS CONFIDENTIAL
Page 22 of 22
EXHIBIT DI
SUBSCRIBER ACCESS FEES
The following Subscriber Access Fees shall be payable by Affiliate to WG
hereunder (Any adjustment to the specified Fees herein as may result from
changes in the number of Subscribers shall be applied prospectively and only
after notice to WG of the effective date of such change):
As used herein "WorldGate-Subscribers" for any month shall mean the total month
ending aggregate number of WorldGate Subscribers for the particular month based
on the billing systems monthly financial reports, but subject to any audited
correction.
MONTHLY PER SUBSCRIBER ACCESS FEE FOR WORLDGATE SERVICE (NON-METERED)
SUBSCRIBERS MONTHY FEE
----------- ----------
1-250,000 ##
250,001 plus ##
EXHIBIT D2
WORLDGATE RATE CARD FOR MONTHLY PER/SUBSCRIBER ACCESS FEES
SUBSCRIBERS MONTHLY FEE
--------------- -----------
0-100,000 ##
100,001-200,000 ##
200,001-350,000 ##
350,001-500,000 ##
500,001-750,000 ##
750,001-1,000,000 ##
1,000,000 Plus ##
Effective Date: ________________ Affiliate Initials: _____________ WG Initials:
WORLDGATE COMMUNICATIONS CONFIDENTIAL
--------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
