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EXHIBIT 10.19
PROGRAMMING AGREEMENT
THIS PROGRAMMING AGREEMENT ("Agreement") is made this 21st day of NOVEMBER, 1997
between CENTURY COMMUNICATIONS CORP. having an address of ▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Century"), and WINK COMMUNICATIONS having address of ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Wink").
Whereas, Wink is the licensor of certain computer software referred to
as Wink ITV Broadcast Server, versions 1.0 and 1.x updates ("Wink Software");
and
Whereas, the application of Wink Software results in an enhanced image
("Enhanced Broadcasting") that consists of video originated from national
broadcasters and cable programming networks that has been enhanced through the
use of Wink Software (the "Service"); and
Whereas, Wink desires to have Century test, and Century may desire to
test in up to two (2) markets to be determined in Century's discretion, Wink
Software and the Service in contemplation for potential distribution by Century
to certain of its cable subscribers receiving advanced analog and/or digital
service in test market(s) to be determined in Century's sole discretion
(referred to individually and collectively as "Test Market"); and
Whereas, Wink will provide Wink Software and the Service in a Test
Market for six month periods (referred to individually and collectively as "Test
Period"); and
Whereas, Wink will provide Wink Software and the Service at no cost to
Century in any Test Market during any Test Period; and
Whereas, in the event Century launches advanced analog and/or digital
service in Los Angeles, Wink may designate Los Angeles as a Test Market subject
to the equipment restrictions as provided hereunder; and
Whereas, at any time during a Test Period, Century may choose to
terminate the test, subject to the restrictions as provided hereunder, or deploy
Wink Software and the Service under the charter pricing and terms as established
in Attachment A which is made a part hereof, and
Whereas, the offers made herein shall terminate as of January 1, 1999,
unless a Test Period is in effect in which event the offers made herein shall
terminate as of the end of said particular Test Period;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. In any designated Test Market, Wink will install Wink Software and activate
the Service. When the Service is activated the Test Period shall begin. This
date will be mutually agreed to by the parties.
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2. Century agrees to provide a reasonable level of support to ensure the
successful integration of Wink Software and the Service in a Test Market. Should
Century need to incur expenses to implement Wink Software and the Service, Wink
shall pre-approve and be responsible for these expenses including, without
limitation, additional staffing costs. Century shall be responsible for all
reasonable and standard maintenance of Century's head-end equipment during any
Test Period in order to provide for uninterrupted carriage of the Service,
except as may be required by local, state, or federal law, force majeure or
other events or circumstances beyond Century's control. Reasonable and standard
maintenance shall be determined by Century in Century's sole discretion.
3. Wink agrees to waive any and all monthly software license fees during any and
all Test Period. Wink will waive any and all installation fees during any and
all Test Period. Wink represents and warrants to Century that Century will incur
no incremental fees or expenses from national broadcasters or cable programming
networks ("Programmers") due to Century's implementing Enhanced Broadcasting in
any Test Market. Wink shall indemnify Century for any breach of this
representation and warranty. Century agrees not to charge Programmers any
additional incremental fees to carry their enhanced video as part of the Service
during any Test Period.
4. Wink agrees to purchase the necessary server platforms ("Server Platforms")
for any Test Market with the understanding that following a Test Period, should
Century deploy Wink Software and the Service in any Century market, Century may
purchase the Server Platforms from Wink at a price to be negotiated by the
parties at that time. If Century chooses to purchase advanced analog and/or
digital set top boxes enabled with Wink engines Century shall have the right, in
Century's sole discretion, to purchase these boxes from set top manufacturers at
the Century negotiated rate. Notwithstanding the foregoing, if Century chooses,
in Century's sole discretion, to deploy set top boxes in its existing inventory
or purchase set top boxes off the shelf from any manufacturer that are not
enabled with Wink engines, Century shall have no obligation to retrofit these
boxes with Wink engines.
5. Wink Software and the Service shall at all times remain the property of Wink
and Century shall have no right, title, or interest in Wink Software or the
Service except for such use as is authorized by this Agreement. Wink shall
perform all maintenance of Wink Software and the Service. Upon the expiration or
termination of any Test Period or this Agreement, at a time agreeable to Century
but in no event more than ninety (90) days after expiration or termination, Wink
shall be solely responsible for the removal of any and all components of Wink
Software and the Service.
6. Wink represents and warrants that neither Wink Software nor the Service
infringes on any copyright, trademark, patent or any other right of any person
or entity, and Wink shall protect, indemnify and hold Century harmless from any
and all claims regarding this representation and warranty including, without
limitation, attorney's fees.
7. The parties acknowledge that nothing contained herein shall obligate the
parties to enter into any further business relationship or agreement or prohibit
either party from entering into any business relationship or agreement with any
other party and that neither party is relying on the other
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party in developing and operating its respective business. Except as set forth
in this Agreement, there shall be no further obligation whatsoever on the part
of either party, unless agreed to in writing by the parties.
8. Neither Century nor Wink shall be, or hold itself out as, the agent of the
other. Nothing contained herein shall be deemed to create and the parties do not
intend to create any relationship or partnership, joint venture or agency as
between Century and Wink. Neither party is authorized or shall act toward third
parties or the public in any manner that would indicate any such relationship
with the other without the prior written consent of the other. For the purpose
of promoting Enhanced Broadcasting, Century and Wink shall issue one mutually
agreed upon press release after the execution of this Agreement, and Century and
Wink may issue one mutually agreed upon press release for each Test Market
within thirty (30) days of each Test Period.
9. In the event the Wink Software and/or the Service fails to perform as
contemplated herein, Wink shall have thirty (30) days from notice to cure such
failure of performance. In the event Wink fails to cure, Century may terminate
the particular Test Period and/or this Agreement in Century's sole discretion.
Notwithstanding anything to the contrary herein, in the event Wink Software
and/or the Service causes, in Century's sole opinion, any disruption of
Century's service and/or operations including, without limitation, blackouts,
distortion or signal interference, Century may terminate this Agreement
immediately without notice and Wink shall indemnify Century for any costs
incurred by Century that arise from such disruption of service and/ or
operations. Notwithstanding anything to the contrary herein, Wink shall
indemnify and hold Century harmless from and against any and all claims arising
out of the content of the Service whether or not such content originates from
Programmers, Wink or any other party.
10. Nothing in this Agreement shall in any way affect or alter Century's rights
with respect to its agreements with any and all Programmers. Further, nothing in
this Agreement shall obligate Century to carry, or continue to carry, any
Programmers in any market.
11. This Agreement will not be amended, changed or modified other than by
written instrument, signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement.
WINK COMMUNICATIONS CENTURY COMMUNICATION
CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Its: President & CEO Its: VICE PRESIDENT
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WINK RESPONSE SERVICE TRANSACTION FEE
Purchase Transaction Fees Affiliate Revenue Share
(Viewer name, address, credit card)
National Ads
Local Ads
1-5,000 transactions/mo [ * ]* [ * ]
5,001 - 25,000 transactions/mo [ * ] [ * ]
5,001 - 100,000 transactions/mo [ * ] [ * ]
0,001 - 250,000 transactions/mo. [ * ] [ * ]
0,001 - 500,000 transactions/mo [ * ] [ * ]
500,001 - up transactions/mo [ * ] [ * ]
Request Transaction Fees
(Viewer name, address only)
1-5,000 transactions/mo [ * ] [ * ]
5,001 - 25,000 transactions/mo [ * ] [ * ]
5,001 - 100,000 transactions/mo [ * ] [ * ]
0,001 - 250,000 transactions/mo [ * ] [ * ]
0,001 - 500,000 transactions/mo [ * ] [ * ]
500,001 - up transactions/mo [ * ] [ * ]
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* Confidential treatment has been requested with respect to certain
portions of this exhibit pursuant to a request for Confidential treatment filed
with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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CHARTER PRICING
CENTURY COMMUNICATIONS
10/28/97
OFFER CATEGORY CENTURY OFFER DETAILS STANDARD WINK OFFER
AGREEMENT TERM 3 YEARS 3 YEARS
"CHARTER" PRICING PACKAGE [ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
PRE-LAUNCH PERIOD [ * ] [ * ]
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