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EXHIBIT 10.14
MASTER CABLE AFFILIATION AGREEMENT
TIME WARNER CABLE
THIS Master Agreement is made as of the 23rd day of September,
1998 (the "Effective Date"), by and between WINK
COMMUNICATIONS, INC., a California corporation ("Wink"), whose
address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
TIME WARNER CABLE, a division of Time Warner Entertainment
Company, L.P., a Delaware limited partnership ("Affiliate"),
with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. GRANT OF LICENSE
1.1 Subject to the terms of this Master Agreement, Wink
hereby grants to Affiliate a non-exclusive license
(the "License") to use the Wink software products
listed in Exhibit B (hereinafter collectively
referred to as "Wink Software") to deliver
interactive program(s) which utilize the vertical
blanking interval ("VBI") and are compliant with the
Wink interactive communications application protocol
("Interactive Wink Programs") to: (A) the subscribers
of all cable systems: (i) managed by a Time Warner
Company (as defined herein) or (ii) of which a Time
Warner Company (as defined herein) directly or
indirectly owns, or has the right to become owner, of
at least 25% of the equity and which are located in
the continental United States, Alaska, Hawaii, and
the US territories in Caribbean and Canada
("Affiliate System"); and (B) satellite master
antenna television systems, multi-point distribution
services, multi-channel multi-point distribution
services, equipment owned or operated by the owners
or residents of individual dwelling units for private
viewing capable of receiving audio/visual signals
and/or programming directly via satellite (including,
without limitation, C-Band and Ku-Band signals), as
modified, manipulated, compressed or replaced now or
in the future and all other methods of distributing
or receiving audio/visual signals and/or programming,
excluding traditional broadcast television, in an
Operating Area (as defined in Section 1.2), in any
area of a county in which an Operating Area is
located and in any county adjacent to such a county.
As used herein, a "Time Warner Company" shall mean
Affiliate, Time Warner Inc. ("TWI"), Time Warner
Entertainment Company, L.P. ("TWE"), Time Warner
Entertainment-Advance/▇▇▇▇▇▇▇▇, ▇.▇. ("TWE-NN"), TWI
Cable Inc. ("TWIC"), or Paragon Communications or any
other corporation, partnership, joint venture, trust,
joint stock company, association, unincorporated
organization (including a group acting in concert) or
other entity of which Affiliate, TWI, TWE, TWEAN,
TWIC or Paragon Communications, directly or
indirectly own at least 25% of the equity.
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1.2 For purposes of this Master Agreement, the "Operating
Area" of any Affiliate System shall mean that area
where such Affiliate System is authorized by the
appropriate governmental agency, authority or
instrumentality (if required) to operate an audio or
video distribution facility and is operating or is
obligated to operate or become operational.
1.3 Except as permitted in this Master Agreement, this
License is not transferable outside of each Affiliate
System's Operating Area, nor may any rights hereunder
be transferred, assigned or sub-licensed in whole or
in part without Wink's prior written consent.
1.4 For purposes of this Master Agreement, a
"Participating System" shall mean an Affiliate System
that has: (A) executed Exhibit C (the "System
Addendum"), which provides Wink, Affiliate and the
Participating System with specific information
regarding exceptions or modifications, if any, to the
terms defined in this Master Agreement, equipment
inventory and requirements, test and launch dates,
and other information specific to Participating
System, and which, when executed, shall be deemed a
part of this Master Agreement (all references
hereinafter to "this Master Agreement" shall be
deemed to include each executed System Addendum); and
(B) licensed the Wink-developed client software for
Affiliate's advanced analog and digital cable set top
boxes (the "Wink Engine", a cable set top box for
which the Wink Engine is commercially available shall
be referred to as a "Wink-capable STB"), separately
from the manufacturer of such set top boxes in order
to enable reception of Interactive Wink Programs.
Wink has arranged for special preferential terms for
the license of the Wink Engine for Participating
Systems meeting certain criteria, as defined in
Exhibit D. The parties agree that a System Addendum
shall not be effective and binding upon a
Participating System unless and until executed by
Affiliate's Senior Vice President of Programming (or
another person designated in writing by him or her),
Participating System and Wink.
2. TERM
2.1 The "Term" of this Master Agreement shall commence on
the Effective Date and terminate five (5) years
thereafter.
2.2 The term of each System Addendum shall commence on
the date of execution of the System Addendum and
shall terminate on expiration or termination of the
Master Agreement, unless terminated earlier as
provided herein. Participating System and Affiliate
shall have the right, but not the obligation, in
their sole discretion, to terminate an individual
System Addendum at any time after a period of three
(3) years following the first day the Interactive
Wink Programs are distributed to and received by such
Participating System's subscribers (the "Launch
Date") in accordance with
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the terms of this Master Agreement. Notice of
Affiliate's or Participating System's intent to so
terminate must be received by Wink no later than
sixty (60) days prior to the effective date of such
termination.
2.3 Each Participating System that has provided
Interactive Wink Programs to its subscribers on or
before December 31, 1999 shall have the option, in
its and Affiliate's sole discretion, to terminate its
System Addendum at any time after a period of
eighteen (18) months following the Launch Date for
that Participating System by providing Wink with
thirty (30) days prior written notice.
2.4 At any time during the Term, each Participating
System shall have the right to terminate the carriage
or provision of the Interactive Wink Programs of any
Programmer (as defined in Section 3.1), if one or
several of such Interactive Wink Programs do not
meet, in Participating System's sole discretion
(which shall be reasonable) the requirements of
Section 3.2. Affiliate and Wink acknowledge that a
Participating Programmer (as defined herein) may
offer more than one programming service and may
provide Interactive Wink Programs in connection with
more than one of its programming services. Affiliate
and Participating Systems agree that any termination
of carriage or provision of the Interactive Wink
Programs pursuant to this Section 2.4 shall be of
only the non-complying Interactive Wink Programs
offered in connection with a particular programming
service(s), and not of all Interactive Wink Programs
offered in connection with all programming services
provided by the Participating Programmer.
3. INTEGRATION
3.1 Except as otherwise set forth herein, Affiliate and
Participating Systems will not prevent the
distribution of Interactive Wink Programs carried in
the VBI of video signals from a broadcaster or cable
programmer with whom Affiliate or a Participating
System has a valid agreement for carriage or
re-transmission of video programming, or whose signal
Participating System is otherwise obligated by
applicable law to distribute to its subscribers
(each, a "Programmer"), and agree to pass Interactive
Wink Programs to Wink STB Subscribers (as defined
herein) without any charge to Programmers (except as
set forth in Section 3.3) during the Term of this
Master Agreement, provided that (i) each Programmer
has agreed to provide and does provide such
Interactive Wink Programs at no cost to Affiliate,
Affiliate Systems or any Wink STB Subscriber; (ii)
the content of such Interactive Wink Programs
complies with Section 3.2; and (iii) Affiliate or
Participating System is receiving its appropriate
revenue share (if applicable) as set forth in Section
3.3. Upon receipt of written notice from Affiliate or
any Participating System that a Programmer does not
have a valid and current agreement for carriage or
retransmission of video programming with Affiliate or
any Participating
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System, Wink shall assist Participating Systems in
ensuring that such Programmer's Interactive Wink
Programs for the applicable programming service(s)
offered by the Programmer are not passed to Wink STB
Subscribers.
As used herein, "Wink STB Subscriber" shall mean each
Participating System customer that (i) receives or
separately pays for cable television service; (ii)
has a Wink-capable STB; and (iii) has not requested
not to receive the Interactive Wink Programs.
3.2 Wink shall use commercially reasonable efforts to
ensure that each Interactive Wink Program provided by
a Programmer (including the content thereof) is
directly related in content, nature and intended
audience to the video programming and advertising
actually being provided by such Programmer at the
same time that such Interactive Wink Program is
provided and thus has the purpose of enhancing or
providing additional detail or information regarding
such video programming or advertising, as applicable.
Wink shall also ensure that the Interactive Wink
Programs are provided to Affiliate or a Participating
System pursuant to a then current and valid license
agreement between the Programmer and Wink. If these
conditions are not met, Affiliate and Participating
Systems are not obligated to pass such Interactive
Wink Programs, and may immediately terminate carriage
of the Interactive Wink Programs of such Programmer.
The parties further agree that this Master Agreement
in no way creates any obligation on behalf of
Affiliate or Participating Systems to carry or pass
any other form of programming or data of any
Programmer. Affiliate and Participating System agree
to notify Wink in writing as soon as is reasonably
practicable when Affiliate or Participating System
believes that an Interactive Wink Program does not
meet the conditions provided herein or if a
Programmer is not complying with Section 3.3.
Affiliate and Participating System further agree to
resume carriage of Programmer's Interactive Wink
Programs, once the Interactive Wink Programs have
been brought into compliance with this section 3.2 or
a Programmer agrees to comply with Section 3.3 (if
applicable), as determined in Affiliate's or
Participating System's sole discretion, which shall
be reasonable.
3.3 In the event that a Programmer provides, in
connection with video programming (excluding third
party advertising), an Interactive Wink Program that
solicits a Wink STB Subscriber to purchase a product
(i.e., "home shopping"), Affiliate and Participating
System [*] by a Wink STB Subscriber. In the event
that such Programmer [*] then Affiliate and
Participating System shall have no obligation to
carry the Interactive Wink Programs for that
Programmer and may terminate such carriage upon
written notice to Wink.
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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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[*]
3.4 Each Participating System shall use commercially
reasonable efforts to assist Wink in enabling the
reception of nationally or locally inserted
Interactive Wink Programs in cable set top boxes in
which Participating System has agreed to deploy the
Wink Engine, provided that it is understood and
agreed that a Participating System has no obligation
to permit or assist Wink in enabling, or to enable,
the set-top box of any subscriber who elects not to
receive the Interactive Wink Programs. The parties
agree that each Participating System's System
Addendum will provide a mutually agreeable list of
operational obligations for Wink and Participating
System specific to Participating System's enabling of
the Wink Software and the Wink Engine.
3.5 Each Participating System shall provide to Wink up to
a total of 3 VBI lines on one (1) channel provided
that the use by Wink of such VBI lines does not, in
Participating Systems' sole discretion, cause the
degradation of or otherwise interfere with the signal
of such channel and provided that Wink shall use such
VBI lines solely for the purpose of delivering
various full screen Interactive Wink Programs
required for customer-related educational services,
including but not limited to a customer registration
program, a Wink user's guide program, and a Wink
guide to upcoming Interactive Wink Programs related
to scheduled video programming (a "Wink Virtual
Channel"). Wink shall not use the Wink Virtual
Channel for advertising or any purpose other than as
specified herein. A Participating System may elect to
insert Interactive Wink Programs created by such
Participating System and/or third parties using the
Wink Software, subject to the restrictions defined in
Exhibit C, if any. Third party providers of such
additional Interactive Wink Programs accepted for
carriage by individual Participating System shall be
referred to as "Third Party Wink Program Providers".
3.6 Wink shall perform all Wink-related installation work
necessary to ensure proper operation of the Wink
Software and the Wink Engine, and reliable delivery
of Interactive Wink Programs, and shall provide
on-going technical support for the Wink Software and
the Wink Engine during the effective term of each
Participating System's System Addendum.
3.7 Wink and each Participating System will use their
commercially reasonable efforts to complete all
integration work in order to meet the project
deadlines specified in Attachment 1 of the
Participating System's System Addendum. Affiliate and
Participating Systems agree to provide technical
specifications and other reasonable support to enable
Wink to extract the minimum
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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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information necessary from the applicable billing
system to enable transaction routing. This
information, which includes subscriber name, ▇▇▇▇-to
and service address, phone number, set top box
serial number, and any other information to be
mutually agreed upon between the parties, shall be
deemed Confidential Information, as defined in
Section 12.1.
3.8 Wink shall keep the Wink Software in good working
order for uninterrupted reception of Interactive Wink
Programs by Wink STB Subscribers. Participating
Systems shall perform daily polls to collect viewer
responses to Interactive Wink Programs and other
routine maintenance of the Wink Software to ensure
regular and reliable Wink response collection, and
shall permit Wink secure remote access to the Wink
Software and associated equipment solely for the
specific purpose of providing the Interactive Wink
Programs and collecting transaction routing and
response information from same. Wink shall specify in
writing the identity of the individuals employed by
Wink who shall be permitted such access, and these
individuals shall be advised of and bound by the
confidentiality obligations set forth in Section 12
herein. Wink further represents and warrants that
such access by Wink will not adversely impact
Participating System's operations.
3.9 Notwithstanding anything to the contrary set forth
herein, Participating System has the right without
prior notice to interrupt the carriage of Interactive
Wink Programs at any time for the purpose of
Emergency Broadcast and other Federal Communications
Commission (FCC) mandated broadcasts in, the
Operating Area, or if the Interactive Wink Programs
or response collection interferes in any way with
transmission of the signal of the applicable channel,
interferes with the operations of Affiliate or any
Participating Systems or causes other technical
problems. Participating System agrees to give notice
to Wink within twenty-four (24) hours of any such
interruption, and Participating System and Wink will
each use their commercially reasonable efforts to
restore the delivery of Interactive Wink Programs and
collection of viewer responses as soon as possible.
Failure by Participating System to give such notice
shall not constitute a breach under this Master
Agreement.
3.10 Affiliate and Participating Systems shall have no
obligation to distribute Interactive Wink Programs
provided with video programming delivered from the
Participating System's head-end(s) to its subscribers
in a digital format.
4. DEPLOYMENT
4.1 Unless otherwise set forth in the respective System
Addendum, each Participating System shall have the
benefit of the terms and conditions of this Master
Agreement and the pricing in Exhibit D if it:
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(a) collects each day the Wink STB Subscriber responses
generated by Interactive Wink Programs;
(b) has agreed to license from the applicable
manufacturer at least 75,000 Wink Engines, and has
agreed to deploy at least 75,000 two-way enabled Wink
Engines in subscriber premises on the Launch Date;
and
(c) agrees to perform any other actions as may reasonably
be required at no additional cost to enable
Participating System's subscribers with Wink-capable
STBs who have not advised Participating Systems that
they do not wish to receive the Interactive Wink
Programs to become Wink STB Subscribers.
Notwithstanding the above, Wink agrees that Affiliate's New
York City system is eligible for the terms and conditions of
this Master Agreement and the pricing in Exhibit D, regardless
of whether it satisfies (a), (b) and (c) in the preceding
sentence.
4.2 Affiliate agrees to use commercially reasonable efforts to
notify all of its systems in North America of the terms and
conditions of this Master Agreement within thirty (30) days of
the execution of the Master Agreement. The failure of
Affiliate to so notify within such thirty (30) day period
shall not constitute a breach of this Master Agreement.
4.3. Wink shall ensure that at least ten (10) national Programmers
have agreements with Wink to provide Interactive Wink Programs
during the term of the Master Agreement (each, a
"Participating Programmer"). Each such Participating
Programmer shall be limited to using only three (3) specified
VBI lines for delivery of its Interactive Wink Programs. A
complete list of the Participating Programmers together with
the specific three (3) VBI lines that each such Participating
Programmer shall use and the number of hours of programming
per week for which each such Participating Programmer has
committed in its written agreement with Wink to provide
Interactive Wink Programs shall be set forth on Exhibit F.
Exhibit F shall be amended by Wink from time to time by
providing prompt written notice to Affiliate and Participating
Systems of Participating Programmers that are added or dropped
by Wink and the corresponding three (3) VBI lines utilized by
such Participating Programmer that are added or dropped.
Each Participating Programmer shall deliver its Interactive
Wink Programs within the three (3) VBI lines specified on
Exhibit F, as amended, however Affiliate and each
Participating System may provide such Interactive Wink
Programs to Wink STB Subscribers on any VBI lines it chooses,
in its sole discretion and without notice to the Participating
Programmer. In the case of new Participating Programmers, Wink
shall provide Affiliate and Participating
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Systems such notice at least forty five (45) days before
commencement of national transmission of Interactive Wink
Programs by such Participating Programmers. If the number of
Participating Programmers with whom Wink has written
agreements falls below ten (10), Wink shall promptly notify
Affiliate and Participating Systems in writing that the number
has fallen below ten (10), and Wink shall have sixty (60) days
to get the number of Participating Programmers back to ten
(10) or more. If after sixty (60) days Wink does not have
written agreements with at least ten (10) Participating
Programmers pursuant to which the Participating Programmers
are to provide Interactive Wink Programs, Affiliate shall have
the right to declare that Wink has materially breached this
Master Agreement and Affiliate may then terminate in
accordance with the terms of Section 13.3 and/or exercise its
other rights and remedies hereunder.
4.4 During the Term of this Master Agreement, Wink shall pay to
Participating System a share of the fees on each purchase and
request response that is generated by a Wink STB Subscriber,
(including each response in connection with which a Wink STB
Subscriber provides personal information, such as name and
.address, to a third party) and routed by Wink to the
appropriate Participating Programmer or Fulfillment Entity (as
defined in Section 6.3) (each, a "Wink Transaction"). Wink's
gross revenues from Wink Transactions shall be referred to as
"Gross Transaction Routing Fees". Participating System's share
of Gross Transaction Routing Fees shall be as set forth in
Exhibit A. These payments made by Wink to Participating
Systems shall be defined as "System Transaction Revenue Share"
for purposes of this Master Agreement.
4.5 The parties agree that Participating Systems may charge an
additional fee to a subscriber who wishes to receive the
Interactive Wink Programs but who has not already been
provided with a Wink-capable STB and would not otherwise be
eligible for a Wink-capable STB through subscription to a
premium service or other tier of service under which such
Wink-capable STB would normally be provided to the subscriber.
The parties agree that to the extent Affiliate and
Participating Systems charge such fees, Wink will be paid
fifty percent (50%) of the difference between the gross fees
received from the subscriber attributable solely to the
receipt of the Interactive Wink Programs and the normal rental
fee for a Wink-capable STB, if applicable.
4.6. Affiliate and Participating Systems may choose to utilize
other products and services of Wink from time to time under
this Master Agreement. These products and services will be
offered by Wink to Affiliate and Participating Systems at the
most favorable rate and terms and conditions offered or
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made available to any third party distributor of audio/visual
signals and/or programming.
4.7. Each Participating System agrees to allow Wink to use the Wink
Software installed in the head-end(s) of Participating System
to collect, aggregate, and route responses for Interactive
Wink Programs from the head-end(s) through Wink's National
Data Center in accordance with the terms and conditions of
this Agreement at no charge to Wink and at no charge to
Participating System. Wink agrees to provide weekly reporting
to Participating System of all response traffic generated by
Wink STB Subscribers. Wink represents and warrants to
Affiliate and Participating Systems that all such information
collected from the Wink Response Servers shall be aggregated
such that any reports Wink generates shall be aggregate and
anonymous and shall not personally identify subscribers.
5. FEES AND PAYMENT TERMS
5.1 Affiliate and the Participating Systems acknowledge and accept
Wink's licensing fees, rates for Wink services, and payment
terms for Participating Systems as set forth in Exhibit D. On
or before the forty fifth (45th) day following each month
throughout the term of its applicable System Addendum, each
Participating System shall remit to Wink all fees owed for the
License or for services rendered in such month.
5.2 Past due payments shall bear interest at a rate equal to the
lesser of (i) one percent (1%) per month or (ii) the maximum
legal rate permitted under law.
5.3 Wink shall provide reports of and pay the System Transaction
Revenue Share to Participating Systems on or before the forty
fifth (45th) day following each month throughout the Term.
Wink shall also prepare for Affiliate a consolidated
semi-annual report of aggregate System Transaction Revenue
Shares across all Participating Systems.
5.4 Affiliate and each Participating System acknowledge that each
Participating System must provide quarterly reports on all
Incremental Wink Revenues (as defined herein) generated
through the use of the Wink Software. "Incremental Wink
Revenues" shall be defined as System Transaction Revenue Share
for Participating System Wink STB Subscribers (for the report
of which Participating System may attach the System
Transaction Revenue Share reports provided by Wink pursuant to
Section 5.3), ad sales revenue received from selling
Interactive Wink Program enhancements to local spot ads or any
form of advertising or sponsorship on locally inserted full
screen Interactive Wink Programs, and Participating System
revenue shares or fees received from Third Party Wink Program
Providers. A "Wink
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Subscriber Unit" shall be a subscriber provided with an
activated Wink-capable STB on or before the Launch Date or,
for a subscriber whose Wink-capable STB was activated within
eighteen (18) months of the Launch Date, the number x
determined by the formula below:
x = the number of full months elapsed prior to 18
months following the Launch Date that such subscriber had an
activated Wink capable STB, divided by 18.
If, within eighteen (18) months of the applicable Launch Date,
a Participating System's Incremental Wink Revenues have not
reached a cumulative total of [*] per Wink Subscriber Unit,
Wink shall pay the Participating System(s) within forty five
(45) days, the difference between [*] per Wink Subscriber
Unit and the actual cumulative Incremental Wink Revenues per
Wink Subscriber Unit.
6. PROMOTION AND RESEARCH
6.1 The parties agree to issue a joint press release announcing
this Master Agreement within fourteen (14) days of execution
of this Master Agreement. Wink shall provide Affiliate with a
draft of this release for review and approval within three (3)
business days after the execution of this Master Agreement by
both parties.
6.2 Wink may, from time to time, undertake marketing tests and
surveys, rating polls and other research in connection with
Affiliate or Participating Systems. Wink shall give prior
written notice to Affiliate of the nature and scope of each
such test, survey, poll or project which applies to or
involves Affiliate or a Participating System. Affiliate and a
Participating System may, to the extent permissible under
applicable law, provide Wink, upon reasonable request from
Wink, with reasonable assistance in conducting such research
in connection with undertaking such test, survey, poll or
project. Wink shall reimburse Affiliate and Participating
System for all costs and expenses incurred in connection with
rendering such assistance upon demand. Wink shall promptly
provide Affiliate with the results of all such tests, surveys,
polls and projects. The results of all such tests, surveys,
polls and projects shall be Confidential Information, shall be
in an aggregate form only, and shall not identify any
subscriber, cable television system or cable television
operator. Affiliate and Participating Systems agree that Wink
will have access to any and all research in an aggregate and
anonymous form regarding the deployment, launch, and usage of
the Interactive Wink Programs service by Wink STB Subscribers
that is created or paid for by Affiliate or Participating
Systems. Such research shall be Confidential Information as
defined in Section 12 hereof.
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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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6.3 Affiliate acknowledges that Wink will be providing to
Participating Programmers and Third Party Wink Program
Providers aggregate reports on Participating System Wink STB
Subscriber usage, vote and poll responses to the Interactive
Wink Programs that originate from such Participating
Programmer's video programming and advertising or from such
Third Party Wink Program Provider's Interactive Wink Programs,
respectively. Affiliate acknowledges that Wink will be
providing to Participating Programmers, Third Party Wink
Program Providers, advertisers, or parties designated by such
entities to fulfill Wink Transactions ("Fulfillment Entities")
both (a) aggregate reports on Participating System Wink STB
Subscriber responses and (b) reports on individual Wink
Transactions that are generated as a result of a Wink STB
Subscriber's deliberate interaction with the Interactive Wink
Program to which the report relates. Wink represents and
warrants to Affiliate and Participating Systems that: (i),
except as set forth herein, it shall not collect, use or
provide to any third party any information related to a Wink
STB Subscriber including, but not limited to, name, address,
phone number and credit card number, (collectively, "Wink STB
Subscriber Data"); (ii) each Participating Programmer, Third
Party Wink Program Provider, advertiser providing Interactive
Wink Programs and Fulfillment Entity shall be expressly
prohibited pursuant to executed written agreements with Wink
from (x) collecting or using any Wink STB Subscriber Data for
purposes other than fulfilling orders and requests from the
Wink STB Subscriber, and (y) selling or providing any Wink STB
Subscriber Data to third parties, except that, notwithstanding
the foregoing (x) and (y), advertisers may be permitted to use
or provide to third parties the Wink STB Subscriber Data
related to a particular Wink STB Subscriber if such Wink STB
Subscriber has purchased a product through an Interactive Wink
Program and has expressly consented, during the registration
and education process on the Wink Virtual Channel, to the use
of or provision of such data by an advertiser; and (iii) each
Affiliate and Participating System subscriber who wishes to
receive the Interactive Wink Programs and become a Wink STB
Subscriber shall be required, during the registration and
education process on the Wink Virtual Channel, to: (x)
expressly acknowledge and agree that he or she may, in
connection with receipt and use of the Interactive Wink
Programs, provide personally identifiable information
(including name, address, phone number, e-mail address and
credit card number) to Wink, Participating Programmers,
advertisers, Third Party Wink Program Providers and
Fulfillment Entities; (y) expressly consent to the providing
of such personally identifiable information and the use of
such information by advertisers for additional promotion of
products; and (z) choose whether to consent to the sale of
such personally identifiable information to third parties by
advertisers from whom such subscriber purchases products or
whether to "opt-out" of permitting the sale of such personally
identifiable information. Notwithstanding the foregoing,
Participating Programmers, Third Party Wink Program Providers
advertisers and Fulfillment Entities may use any data
regarding a Wink STB Subscriber
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that is collected other than in connection with the
Interactive Wink Programs and without Wink's assistance.
6.4 Participating System agrees to promote and market the
availability of the Interactive Wink Programs to Wink STB
Subscribers within the Operating Area. Advertising,
promotional, marketing and/or sales materials concerning the
Interactive Wink Programs or the Wink Software provided by
Wink may be used at the discretion of Participating System.
Wink agrees to use commercially reasonable efforts to obtain
prior approvals from all Participating Programmers and Third
Party Wink Program Providers featured in marketing materials
provided by Wink such that no further approvals from
Participating Programmers and Third Party Wink Program
Providers for minor customization of the materials, including
the name and logo of Participating System.
6.5 Participating System agrees that any marketing materials
separately developed by Participating System intended to
promote Wink or the Interactive Wink Programs must be approved
in writing by Wink prior to distribution, which approval shall
not be unreasonably withheld. Notwithstanding the foregoing,
use of the names and marks of Wink and separately
Wink-developed marketing and promotional materials regarding
Wink and the Interactive Wink Programs in routine promotional
materials, such as program guides, program listings and ▇▇▇▇
stuffers, shall be deemed approved unless Wink specifically
gives written notice to Affiliate and Participating Systems to
the contrary. Nothing contained herein shall limit or restrict
the right of Affiliate or Participating Systems to use such
names and marks (i) in connection with the exercise of its or
their rights hereunder or (ii) as permitted under any other
contract or agreement, in connection with any local
advertising inserted in any cable television service or
programming if the sponsor of such advertisement had the right
to use such names and marks therein or otherwise than under
this Master Agreement.
6.6 Each Participating System is eligible for matching promotional
funds from Wink of [*]. All promotional and marketing expenses
deemed eligible for matching promotional funds by
Participating System must be submitted to Wink for approval
prior to commitment to such expenses, which approval shall not
be unreasonably withheld, and payment will be made by Wink
within thirty (30) days of presentation of evidence of
expenditure of such amounts Marketing and promotional expenses
eligible for matching promotional funds include events, print
or outdoor advertising, public relations expenditures, direct
mail campaigns and other marketing communications specifically
aimed at improving subscriber awareness or usage of
Interactive Wink Programs. The parties agree that each party
may contribute "in-kind" products and services in place of
cash outlays on the
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with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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approval of the other party. "In-kind" products and services
include, but are not limited to, local cable advertising
avails and templates for various forms of advertising and
promotion that can be tailored to the Participating System.
6.7 [*]
7. REPRESENTATIONS, WARRANTIES AND LIABILITY LIMITATION
7.1 WINK'S WARRANTIES.
7.1.1 General Warranties. Wink hereby represents and warrants
to Affiliate and Participating Systems that: (i) Wink is a
corporation duly organized, validly existing and in good
standing under the laws of the State of California; (ii) Wink
has the requisite power and authority to execute and deliver
this Master Agreement and to fully perform its obligations
hereunder; (iii) Wink has the right to furnish the Wink
Software, the Interactive Wink Programs, the Wink Virtual
Channels and all content contained therein and the services
related thereto as provided in this Master Agreement and any
System Addendum; (iv) the execution, delivery and performance
of this Master Agreement and any System Addendum has been duly
authorized by all corporate actions necessary on the part of
Wink; (v) Wink is not subject to any contractual or other
legal obligation which will in any way interfere with its full
performance of this Master Agreement and any System Addendum;
(vi) the individual executing this Master Agreement on behalf
of Wink has the authority to do so; (vii) the Wink Software
(and subsequent revisions and upgrades to same provided by
Wink to Affiliate and the Participating Systems) will operate
and perform in accordance with all published specifications
with respect thereto as set forth in Exhibit E; (viii) the use
or carriage by Affiliate and the Participating Systems of the
Wink Software, the Wink Engine, the Wink Virtual Channels or
any other rights granted by Wink hereunder will not infringe
upon the patent, copyright, trademark, or other proprietary
right of any third party and (ix) Wink will perform all
obligations and render all services hereunder in a
professional and workmanlike manner to the best of its
abilities.
7.1.2 Year 2000 Warranty. Wink represents and warrants to
Affiliate and Participating Systems that the Wink Software is
designed and developed, to be and will continue to be Year
2000 Compliant. "Year 2000 Compliant" shall mean that (a) the
Wink Software is fully functional and performs in accordance
with Wink's published specifications and the specific
warranties set forth elsewhere in this Master Agreement
(together, the "Standards") prior to, during, and after the
calendar year 2000 A.D., and that the Wink Software shall
perform during each such period of time without any error
relating to date functionality and/or data, which, by way of
illustration
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with the Securities and Exchange Commission. Omitted portions have been filed
with the Commission.
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and not limitation, represents or references different
centuries or more than one century or leap years; (b) without
limiting the generality of the foregoing, that the Wink
Software (i) shall not cease to perform or provide or cause
any software and/or system with which the Wink Software
operates] to provide invalid or incorrect results as a result
of date functionality and/or data, or otherwise experience any
degradation of performance or functionality with respect to
the Standards as a result of such interfacing specifically
arising from, relating to or including date functionality
and/or data which represents or references different centuries
or more than one century or leap years, (ii) shall be tested
by Wink with any software and/or system with which the Wink
Software interfaces to ensure that the Wink Software does not
provide invalid or incorrect results as a result of date
functionality and/or data, or otherwise experience any
degradation of performance or functionality with respect to
the Standards specifically arising from, relating to or
including date functionality and/or data which represents or
references different centuries or more than one century or
leap years, (iii) has been developed and designed to be fully
interoperable with year 2000 compliant software, hardware, and
data and to ensure year 2000 compatibility, including, but not
limited to, date data century recognition and calculations
which accommodate same century and multi-century and leap year
formulas and date values; (iv) shall effectively and
accurately manage and manipulate data derived from, involving
or relating in any way to dates including single century
formulas and multi-century or leap year formulas, and will not
cause an abnormally ending scenario within the Wink Software
or in any software and/or system with which the Wink Software
operates or interfaces, or generate incorrect values or
invalid results involving such dates, and (v) provides that
all date-related user interface functionalities and data
fields include an indication of century.
7.2 AFFILIATE'S WARRANTIES. Affiliate represents and warrants to
Wink that (i) Affiliate is a division of a limited partnership
duly organized and validly existing under the laws of the
State of Delaware; (ii) Affiliate has the requisite power and
authority to enter in this Master Agreement and to fully
perform its obligations hereunder; (iii) as to each
Participating System, a valid franchise will then be held by
the appropriate franchisee or the appropriate franchisee will
have held a valid franchise and will then be continuing to
operate under a claim of right or will otherwise be lawfully
continuing to operate while diligently pursuing, in good
faith, its available judicial remedies or negotiating, in good
faith, for franchise renewal; and (iv) Affiliate is under no
contractual or other legal obligation which in any way
interferes with its ability to fully, promptly and completely
perform hereunder.
7.3 LIMITATION OF LIABILITY. NEITHER WINK, ON THE ONE HAND, NOR
AFFILIATE, ANY TIME WARNER COMPANY, ANY AFFILIATE SYSTEM, OR
ANY PARTICIPATING SYSTEM, ON THE OTHER HAND, SHALL, FOR ANY
REASON OR UNDER ANY LEGAL THEORY, BE LIABLE TO THE OTHER OR
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ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, REVENUES, DATA
OR SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES OR LOSS WAS
FORESEEABLE AND REGARDLESS OF WHETHER IT WAS INFORMED OR HAD
DIRECT OR IMPUTED KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES
OR LOSS IN ADVANCE.
8. INDEMNIFICATION
8.1. Wink shall indemnify, defend and hold harmless any Time Warner
Company, Affiliate, its parents, subsidiaries, Affiliate
Systems, Participating Systems and their respective
affiliates, officers, directors, employees and agents from and
against any and all losses, settlements, claims, actions,
suits, proceedings, investigation, judgments, awards, damages,
liabilities, costs and expenses including, without limitation,
reasonable attorneys' fees (collectively "Losses" and,
individually, a "Loss") which arise out of or as a result of:
(i) any breach of this Master Agreement by Wink;
(ii) any, claim, demand, action, suit or proceeding in
which it is alleged that the Wink Software, the Wink
Engine, the Wink Virtual Channels or any other
content or software provided by Wink or any part
thereof violates or infringes any patent or copyright
or other proprietary right of any third party or
constitutes a misappropriation of any third party's
trade secrets;
(iii) any improper disclosure by Wink, a Programmer, a
Third Party Wink Program Provider or an advertiser of
any Confidential Information as defined herein
("Confidential Information Disclosures"); and
(iv) any claim, demand, action, suit or proceeding in
which it is alleged that an Interactive Wink Program
(provided by any entity other than a Third Party Wink
Program Provider) violates the rights of any third
party including but not limited to any claim of
libel, slander, defamation, indecency, obscenity,
invasion of right of privacy or infringement or
violation of copyrights, music synchronization or
performance rights, dramatic or non-dramatic music
rights, trademark rights, patent rights or any other
proprietary right of any third party (collectively,
"Proprietary Rights Claims")
and shall reimburse them for any and all legal, accounting and
other fees, costs and expenses (collectively, "Expenses")
reasonably incurred by any of them in connection with
investigating, mitigating or defending any such Loss;
provided, however, that Wink will not have any obligation or
liability under this Section 8.1 to the extent that Affiliate
has an obligation or liability with
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respect to the same Loss under Section 8.2. In addition, the
parties agree that Wink's total cumulative liability for
indemnification under this Master Agreement and any System
Addendum for claims arising from Confidential Information
Disclosures and Proprietary Rights Claims shall not exceed
[*].
8.2. Affiliate shall indemnify Wink and its affiliates (including
controlling persons and related companies), officers,
directors, shareholders, employees and agents for, and shall
hold them harmless from and against, any and all Losses which
are sustained or incurred by or asserted against any of them
and which arise out of any breach of this Master Agreement by
Affiliate and shall reimburse them for any and all Expenses
reasonably incurred by any of them in connection with
investigating, mitigating or defending any such Loss.
8.3 Promptly after receipt by a party of notice of the
commencement of any action, suit, proceeding or investigation
in respect of which such party may make a claim for
indemnification hereunder, such party will give written notice
thereof to the other party; but the failure to so notify the
other party will not relieve the other party from any
liability or obligation which the other party may have to any
indemnified person (i) otherwise than under this Master
Agreement or (ii) under this Master Agreement except to the
extent of any material prejudice to the other party resulting
from such failure. If any such action, suit, proceeding or
investigation is brought against an indemnified person, the
indemnifying party will be entitled to participate therein
and, if it wishes to assume the defense thereof and gives
written notice to the indemnified person of its election so to
assume the defense thereof within 15 days after notice shall
have been given to it by the indemnified person pursuant to
the preceding sentence, will be entitled to assume the defense
thereof. Each indemnified person will be obligated to
cooperate reasonably with the indemnifying party, at the
expense of the indemnifying party, in connection with such
defense and the compromise or settlement of any such action,
suit, proceeding or investigation. If Wink is the indemnifying
party, Wink shall make no compromise or settlement of any
claim that involves the imposition of liability on Affiliate
or payment of money by Affiliate without the prior written
consent of Affiliate.
8.4. The parties agree that Programmers are responsible for the
Interactive Wink Programs provided with their respective video
signals. Wink shall consistently support this position in any
claims, demands, actions, suits or proceedings brought against
any Time Warner Company, Affiliate, its parents, subsidiaries,
Participating Systems and affiliates and their respective
officers, directors, employees and agents in which it is
alleged
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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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that the Interactive Wink Programs or any part thereof violate
the proprietary rights of a third party or otherwise create a
liability for Affiliate.
9. NOTICES
All notices, statements, and other communications given
hereunder shall be in writing and shall be delivered by
personal delivery, certified mail, return receipt requested,
or by next day express delivery. Such notices must be
addressed as follows:
If to WINK COMMUNICATIONS:
Attn.: Vice President - Affiliate Sales
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to AFFILIATE:
Attn.: Senior Vice President, Programming
Time Warner Cable
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Time Warner Cable
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President and General Counsel
The date of such telegraphing, personal or express delivery, or the
date of receipt of a certified notice, if applicable, shall be deemed
the date on which such notice is given and effective. Notices,
statements, and other communications regarding individual System
Addenda shall also provided to the applicable Participating System at
the same time such notices are provided to Affiliate and Wink.
10. TRADEMARKS
All right, title and interest in and to the service or other rights, of
whatever nature, related thereto shall remain the property of Wink.
Further, Affiliate acknowledges and agrees that all names, logos,
marks, copyright notices or designations utilized by Wink in connection
with the service are the sole and exclusive property of Wink, and no
rights or ownership are intended to be or shall be transferred to
Affiliate or its Participating Systems. Wink shall not use, and no
right or license is herein granted to Wink to use, any of the trade
names, trademarks, copyrights, styles, slogans, titles, logos or
service marks
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of any Time Warner Company, Affiliate or any Participating System,
Notwithstanding the foregoing, Affiliate permits Wink to include
Affiliate's trade name and logo for Wink's industry marketing
materials, subject to prior written approval by Affiliate.
11. FORCE MAJEURE
Neither party shall have any liability to the other party for any
failure to perform hereunder, if such failure is due to: an act of God;
inevitable accident; fire; lockout; strike or other labor dispute; riot
or civil commotion; act of government or governmental instrumentality
(whether federal, state or local); act of terrorism; failure of
performance by a common carrier; failure in whole or in part of
technical facilities; or other cause (excluding financial inability or
difficulty of any kind) beyond such party's reasonable control.
12. CONFIDENTIALITY
As used herein, "Confidential Information" shall include: (x) the terms
and conditions, other than the existence and duration, of this Master
Agreement; (y) any information marked "confidential;" and (z) all
personally identifiable information related to Wink STB Subscribers or
any other subscriber of Affiliate or an Affiliate System, excluding
such information which Wink STB Subscribers have actively provided to
Wink, a Participating Programmer or a Third Party Wink Program Provider
with the express permission that Wink could provide such information to
advertisers and other third parties. Neither party shall disclose
Confidential Information to any third party (other than as necessary to
its respective employees, in their capacity as such) except: (i) as
expressly provided herein; (ii) as may be required by any court of
competent jurisdiction, governmental agency, law or regulation (in such
event the disclosing party shall notify the other party a reasonable
time prior to disclosure so that the non-disclosing party may take
steps to protect the confidentiality of such information); (iii) as
part of the normal reporting or review procedure to a party's
accountants, auditors, agents, legal counsel and employees of parent
and subsidiary companies, provided such accountants, auditors, agents,
investors and potential investment partners, legal counsel, and
employees of parent and subsidiary companies agree to be bound by this
Section; and (iv) to enforce any of a party's rights pursuant to this
Master Agreement.
13. TERMINATION
13.1 Breach. Notwithstanding any other provision herein, either party shall
have the right to terminate this Master Agreement or any System
Addendum and
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any licenses granted herein or therein by giving written notice to the
other party if the other breaches any of its material obligations under
this Master Agreement and such breach is not cured within thirty (30)
days of receipt of written notification specifically setting forth
those items of nonperformance. The termination of this Master Agreement
by either party shall be without prejudice to any other remedies that
party may have. In the event of such uncured misrepresentation or
breach, the terminating party may chose to terminate the entire Master
Agreement, affecting all Participating Systems, or to terminate the
Licenses granted to one or several individual Participating Systems.
13.2 Bankruptcy. If a party (i) becomes bankrupt or insolvent, however
evidenced, (ii) admits in writing its inability to pay its debts when
due, (iii) makes a general assignment for the benefit of creditors,
(iv) has appointed, voluntarily or involuntarily, any trustee,
receiver, custodian or conservator with respect to it or a substantial
part of its property, (v) files, or has filed against it, a voluntary
or involuntary petition in bankruptcy or (vi) makes any arrangement or
otherwise becomes subject to any proceedings under the bankruptcy,
insolvency, reorganization or similar laws of the United States or any
state, then the other party shall have the right at any time thereafter
to terminate this Master Agreement and any System Addendum by giving
written notice to such party.
13.3 Rights Upon Termination. Upon expiration of the Term (including any
extensions thereof) or upon the termination of this Master Agreement or
any System Addendum or of any License granted hereunder for any reason,
all rights of Affiliate to use the Wink Software will cease and
Affiliate will immediately (i) purge all copies of all Wink Software
from all computer processors or storage media on which Affiliate has
installed or permitted others to install such Wink Software, (ii)
within ninety (90) days of such expiration or termination return all
equipment provided by Wink or allow Wink to retrieve the equipment at
Affiliate's and Participating System's premises on notice during
regular business hours and without interrupting Affiliate or
Participating System's operations and (iii) within ninety (90) days of
such expiration or termination, certify to Wink in writing, signed by
an officer of Affiliate, that all copies of the Wink Software have
been returned to Wink or destroyed and that no copy of any Wink
Software remains in Affiliate's possession or under its control.
14. GENERAL
14.1 Binding Effect; Assignment Neither party shall assign any of its rights
or delegate any of its duties under this Master Agreement (by operation
of law or otherwise) without the prior written consent of the other
party; provided, however, that no such consent shall be required in
connection with any such
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assignment or delegation by Affiliate to any Time Warner Company or any
person which controls, is controlled by or is under common control with
Affiliate or any Time Warner Company or any partner of Paragon
Communications. Any assignment of rights or delegation of duties under
this Master Agreement by a party without the prior written consent of
the other party, if such consent is required hereby, shall be void.
Except as otherwise provided herein, no person shall be a third party
beneficiary of this Master Agreement.
14.2 Amendments, Modifications, Cancellations. Except as otherwise
contemplated herein, no addition to, and no cancellation, renewal,
extension, modification or amendment of, this Master Agreement shall be
binding upon a party unless such addition, cancellation, renewal,
extension, modification or amendment is set forth in a written
instrument which states that it adds to, amends, cancels, renews,
extends or modifies this Master Agreement and which is executed and
delivered on behalf of each party by, in the case of Wink, an officer
of Wink and, in the case of Affiliate, by its Senior Vice President of
Programming or, if no person holds such title, another officer of
Affiliate performing substantially similar functions; provided however,
that Affiliate's Senior Vice President of Programming (or, if
applicable, another officer of Affiliate performing substantially
similar functions) may, by written authorization, designate another
person to execute and deliver such an instrument. Without in any way
limiting Affiliate's right to withhold any such consent or waiver or to
reject any such modification or amendment, Wink agrees that Affiliate
shall have the right to condition its grant of any requested consent
hereunder, its grant of any requested waiver of any provision hereof or
its acceptance of any requested modification hereof or amendment hereto
on receipt of such commissions, compensation or other financial
accommodation or consideration as it may, in its sole discretion,
determine.
14.3 Waivers Limited. No waiver of any provision of this Master Agreement
shall be binding upon a party unless such waiver is set forth in a
written instrument which is executed and delivered on behalf of such
party by an officer of such party. Such waiver shall be effective only
to the extent specifically set forth in such written instrument.
Neither the exercise (from time to time and at any time) by a party of,
nor the delay or failure (at any time or for any period of time) to
exercise, any right, power or remedy shall constitute a waiver of the
right to exercise, or impair, limit or restrict the exercise of, such
right, power or remedy or any other right, power or remedy at any time
and from time to time thereafter. No waiver of any right, power or
remedy of a party shall be deemed to be a waiver of any other right,
power or remedy of such party or shall, except to the extent so waived,
impair, limit or restrict the exercise of such right, power or remedy.
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14.4 Relationship. Neither party shall be or hold itself out as the agent of
the other party under this Master Agreement. Nothing contained herein
shall be deemed to create, and the parties do not intend to create, any
relationship of partners or joint venturers as between Affiliate and
Wink, and neither party is authorized to or shall act toward third
parties or the public in any manner which would indicate any such
relationship. Likewise, no supplier of advertising or programming or
anything else included in connection with the Interactive Wink Programs
shall be deemed to have any privity of contract or direct contractual
or other relationship with Affiliate by virtue of this Master Agreement
or Affiliate's License hereunder. Wink disclaims any present or future
right, interest or estate in or to the transmission facilities of
Affiliate and any affiliate of Affiliate and the parents, subsidiaries,
partnerships or joint venturers controlling the Participating Systems,
such disclaimer being to acknowledge that neither Affiliate nor the
transmission facilities of the Participating Systems (nor the owners
thereof) are common carriers.
14.5 Governing Law. The validity, interpretation, performance and
enforcement of this Master Agreement shall be governed by the law of
the State of New York, without regard to its principles of conflicts of
laws. The respective obligations of the parties under this Master
Agreement are subject to all applicable federal, state and local laws,
rules and regulations (including, without limitation, the
Communications Act of 1934, as amended, the Cable Communications Policy
Act of 1984, as amended, and the rules and regulations of the Federal
Communications Commission thereunder).
14.6 Forum; Jury Trial. Each party agrees that any proceeding arising out of
or relating to this Master Agreement or the breach or threatened breach
of this Master Agreement shall be commenced and prosecuted in the
appropriate federal or state court in the State of New York. Each party
consents and submits to the non-exclusive personal jurisdiction of any
court in the State of New York in respect of any such proceeding. Each
party waives any objection that it may now or hereafter have to the
laying of venue of any such proceeding in any court in the State of New
York and any claim that it may now or hereafter have that any such
proceeding in any court in the State of New York has been brought in an
inconvenient forum.
14.7 Entire Agreement. This Master Agreement together with the Schedules and
Exhibits attached hereto constitutes the entire contract between the
parties with respect to the subject matter hereof and cancels and
supersedes all of the previous or contemporaneous contracts,
representations, warranties and understandings (whether oral or
written) by, between or among the parties with respect to the subject
matter hereof.
14.8 Severability. If any provision of this Master Agreement shall hereafter
be held to be invalid, unenforceable or illegal, in whole or in part,
in any
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jurisdiction under any circumstances for any reason, (i) such provision
shall be reformed to the minimum extent necessary to cause such
provision to be valid, enforceable and legal while preserving the
intent of the parties as expressed in, and the benefits to the parties
provided by, this Master Agreement or (ii) if such provision cannot be
so reformed, such provision shall be severed from this Master Agreement
and an equitable adjustment shall be made to this Master Agreement
(including, without limitation, addition of necessary further
provisions to this Master Agreement) so as to give effect to the intent
so expressed and the benefits so provided. Such holding shall not
affect or impair the validity, enforceability or legality of such
provision in any other jurisdiction or under any other circumstances.
Neither such holding nor such reformation or severance shall affect or
impair the legality, validity or enforceability of any other provision
of this Master Agreement.
14.9 Headings. The headings set forth in this Master Agreement have been
inserted for convenience of reference only, shall not be considered a
part of this Master Agreement and shall not limit, modify or affect in
any way the meaning or interpretation of this Master Agreement.
14.10 Survival of Representations. All representations and warranties set
forth herein shall survive the termination or expiration of this Master
Agreement and the consummation of the transactions contemplated hereby.
In addition, Sections 8, 10, 12 and 14 shall survive any termination or
expiration of this Master Agreement.
14.11 No Inference Against Author. Each party acknowledges that this Master
Agreement was fully negotiated by the parties and agrees, therefore,
that no provision of this Master Agreement shall be interpreted against
any party because such party or its counsel drafted such provision.
14.12 Counterparts. This Master Agreement may be signed in any number of
counterparts, each of which (when executed and delivered) shall
constitute an original instrument, but all of which together shall
constitute one and the same instrument. This Master Agreement shall
become effective and be deemed to have been executed and delivered by
both of the parties at such time as counterparts shall have been
executed and delivered by each of the parties, regardless of whether
each of the parties has executed the same counterpart. It shall not be
necessary when making proof of this Master Agreement to account for any
counterparts other than a sufficient number of counterparts which, when
taken together, contain signatures of both of the parties.
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14.13 Most Favored Nations; Audit Rights
14.13.1 Most Favored Nations. If Wink has agreed to provide,
at any time agrees to provide or at any time provides a license to
deliver Interactive Wink Programs to any third party, directly or
indirectly, pursuant to any agreement, understanding or arrangement
(whether oral or written, whether formal or informal, whether now or
hereafter effective, whether on a long term, short term basis) (a
"Third Party Agreement") to any distributor, on any day during the term
hereof under terms, provisions, conditions, covenants, commitments,
concessions, commissions, rebates, allowances, fees or rates
(collectively, "Provisions") which are more favorable to such other
distributor than those set forth in this Agreement, Wink shall give
written notice thereof to Affiliate and, at Affiliate's election, this
Agreement shall be deemed to have been modified so that, from the date
on which such more favorable Provision is first so provided (or, if
such more favorable Provision is now being provided, from the date
hereof) and thereafter for so long as such more favorable Provision
continues to be so provided, Affiliate (and Participating Systems, as
applicable) shall receive such more favorable Provision, subject only
to the following: If such more favorable Provision is a Financial
Provision (as hereinafter defined), Wink shall offer to Affiliate in
writing such more favorable Financial Provision together with all other
Financial Provision(s) contained in such Third Party Agreement, it
being agreed that in order to receive the more favorable Financial
Provision, Affiliate (or any participating System, as applicable) must
also accept the other Financial Provisions contained in such Third
Party Agreement. For purposes hereof, "Financial Provision" shall mean
the software licensing fees and rates for Wink services as set forth in
Sections A and B of Exhibit D and the System Transaction Revenue Share
described in Section 4.4 of this Agreement. The determination of
whether a Provision in a Third Party Agreement is more favorable shall
focus on such Provision individually for each moment of time during
which such Provision is effective rather than on the Third Party
Agreement as a whole or the effect of such Provision thereon.
14.13.2 Audit Right; Damages. During the term of this
Agreement and for one (1) year thereafter, Wink shall maintain accurate
and complete documents and information, as well as books and records in
accordance with generally accepted accounting principles and practices
which, at a minimum, shall contain sufficient information to enable an
auditor to verify compliance with this Agreement. Upon not less than 30
days' prior written notice, Affiliate shall have the right, during the
term of this Agreement and for one (1) year thereafter to examine
during normal business hours all of the documents, information, books
and records of Wink to the extent necessary to verify compliance with
this Agreement; provided, however, that such examinations shall not be
conducted more frequently than once annually.
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If any such examination reveals a discrepancy in the amount paid by or
to Affiliate (or Participating System) and the amount which should have
been paid by or to Affiliate (or Participating System), Wink shall
immediately pay to Affiliate (or Participating System) an amount equal
to the cost of such examination, plus twice the amount of such
discrepancy, plus interest on the amount of such discrepancy at the
rate of 1.5% per month (or, if lower, the maximum rate permitted by
law) from the date on which such amount was paid by or should have'
been paid to Affiliate (or Participating System) through the date on
which payment is made to Affiliate (or Participating System).
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this Master Agreement as of the Effective
WINK COMMUNICATIONS, INC. TIME WARNER CABLE
By: By:
Name: Name:
Title: Title:
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EXHIBIT A.:WINK/AFFILIATE REVENUE SHARE
WINK RESPONSE SERVICE TRANSACTION FEES
All System Transaction Revenue Shares are calculated as a percentage of
Wink's gross revenues on the applicable Gross Transaction Routing Fees,
based on the schedule below. The volume breaks are based on the number
of transactions originating from Wink Engines deployed in North America
and routed monthly for the applicable entity contracting with Wink's
Data Center for routing of Wink transactions:
Transaction Revenue Shares Participating System
(% of Wink gross revenues) Revenue Share
(Name, address, optional credit card) National Program or Ad Local
Program or Ads(*)
1-5,000 transactions/mo. [*] [*]
5,001 - 25,000 transactions/mo. [*] [*]
25,001 - 100,000 transactions/mo. [*] [*]
100,001 - 250,000 transactions/mo. [*] [*]
250,001 - 500,000 transactions/mo. [*] [*]
500,001 - up transactions/mo. [*] [*]
(*) A local program or ad response is defined as a response generated
from an Interactive Wink Program inserted by Participating System,
Affiliate or an entity which Affiliate or Participating System has
contracted for the insertion of advertisements during Participating
System's "local avails" on cable or broadcast networks, or from a Third
Party Wink Program Provider. All other responses shall be deemed
National Programs or Ads.
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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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EXHIBIT B.:WINK SOFTWARE
STANDARD ITEMS:
WINK BROADCAST SERVER VERSION 2.X WITH ALL VBI INSERTER INTERFACES
WINK SERVER MODULE ENGINE VERSION 1.X WINK RESPONSE SERVER (STORE AND FORWARD
RETURN PATH) VERSION 1.X
WINK BILLING SYSTEM INTERFACE VERSION 1.X
OPTIONAL ITEMS:
WINK STUDIO VERSION 2.X (5-SEAT LICENSE)
WINK SERVER STUDIO 1.X (5-SEAT LICENSE)
WINK AD INSERTION SERVER MODULE, DIFFERENT INTERFACES AVAILABLE
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EXHIBIT C.: ADDENDUM TO BE EXECUTED BY AFFILIATE'S PARTICIPATING SYSTEMS SYSTEM
ADDENDUM
This System Addendum is made as of the day of (the "Effective Date"), by and
between WINK COMMUNICATIONS, INC., a California corporation ("Wink"), whose
address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
, a corporation ("Participating System"),
whose address is
1. RECITALS
Whereas, on , 1998, Wink and Time Warner Cable, a
division of Time Warner Entertainment Co., L.P. (Affiliate) executed a
Master Cable Affiliation Agreement (the "Master Agreement") Whereas,
pursuant to the Master Agreement, Participating System is duly
authorized to execute this System Addendum; Whereas, the parties wish
to incorporate fully herein the terms and conditions of the Master
Agreement; The parties now agree to be bound by the following
additional or amended terms and conditions;
2. GENERAL
2.1 The parties agree that all terms defined in the Master Agreement shall
have the same meaning and definition in this System Addendum as set
forth in the Master Agreement;
2.2 Participating System accepts a License and agrees to assume all the
rights and obligations of a Participating System in connection
therewith as defined in the Master Agreement (except for amendments in
section 3 of this Addendum, if any), and Wink agrees to assume all the
rights and obligations of Wink as defined in the Master Agreement
(excepts for amendments in section 4 of this Addendum, if any).
2.3 The parties agree that all terms and conditions set forth in the Master
Agreement, including, but not limited to, representations and
warranties and indemnification obligations that obligate Wink and
Affiliate shall apply in this
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System Addendum to obligate Wink and Participating System as if set
forth fully herein.
2.4 The parties agree that this System Addendum shall not be effective
unless and until executed by Affiliate's Senior Vice President of
Programming (or another person designated in writing by him or her),
Participating System and Wink.
3. ADDITIONAL TERMS AND CONDITIONS
3.1 Participating System agrees to deploy the Wink Engine in the set top
box equipment described in Attachment 1, and to perform any other
actions necessary to enable such set top equipment to receive
Interactive Wink Programs in the time frame required by Attachment 1.
The parties agree that Participating System may choose to deploy the
Wink Engine in additional Wink-capable STBs at any time.
3.2 Wink shall provide the following services at or before the Launch Date
in addition to those specified in the Master Agreement: (to be
determined between Affiliate, Participating System and Wink)
3.3 Wink shall provide the following services on an on-going basis
following the Launch Date in addition to those specified in the Master
Agreement: (to be determined between Affiliate, Participating System
and Wink) Participating System shall provide operational support for
the deployment of the Wink Engine and the Wink Software as follows in
addition to the support specified in the Master Agreement: (to be
determined between Affiliate, Participating System and Wink)
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4. AMENDED TERMS AND CONDITIONS
[IF ANY]
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
entered into this System Addendum as of the Effective Date.
WINK AFFILIATE
By: By:
Name: Name:
Title: Title:
PARTICIPATING SYSTEM
By:
Name:
Title:
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EXHIBIT C, ATTACHMENT 1: DEPLOYMENT REQUIREMENTS
In order to ensure eligibility for the pricing and other terms defined in the
Master Agreement (as amended in the System Addendum), Participating System
agrees to the following deployments and schedule
STB Quantity Deadline for Wink download
Example:
GI CFT 2200 xx, xxx
To Be Completed by the Parties prior to Execution
GI CFT 2200
▇▇ ▇▇▇▇▇
PIONEER BAV-2000
GI DCT 1000
SA EXPLORER
Pioneer DIGITAL STB
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EXHIBIT D.:PRICING AND PAYMENT TERMS FOR PARTICIPATING SYSTEMS
(A) Wink Software provided free of charge for 18 months following the
Launch Date:
- License for one Wink Broadcast Server 2.x with all VBI Inserter
Interfaces
- License for one Wink Response Server 1.x
- License for one Wink Billing System Interface 1.x
- License for one Wink Server Module Engine 1.x
If a Participating System has multiple headends, Wink shall provide, at no
additional charge, any additional licenses of the Wink Software that may be
necessary to enable all Wink STB Subscribers to receive Interactive Wink
Programs. After 18 months following the Launch Date, the monthly license fee for
all the Wink Software listed in this section A is $3,000 per month.
(B) Wink services provided free of charge:
- Site survey, installation and configuration of all Wink Software and
other products provided by Wink
- A two-day training session for operating and maintaining the Wink
Broadcast Server Technical Support for the Wink Software during the
term of the Master Agreement
(C) Third party products provided free of charge:
- CFT-2200 Wink Engines for Wink STB Subscribers enabled to receive
Interactive Wink Programs on or before the Launch Date (available
through December 31, 1998, through General instrument Corp.)
- Sun Ultra server hardware, configured to support Wink Broadcast Server
and Wink Response Server
- ▇ ▇▇▇▇▇▇ ▇▇▇-▇ data insertion units with software modules for 3 VBI
lines (or equivalent inserter for SA-8600x systems)
- 1 Windows NT or Windows 95 Pentium PC for Wink Studio, Broadcast Server
GUI
- Cables, hubs, etc. necessary to connect all Wink related equipment
All hardware products provided must be returned to Wink upon termination or
expiration of the Master Agreement, or upon termination or expiration of
Participating System's System Addendum.
(D) Required third party products to be licensed by Participating System or
Affiliate
- Wink Engine software for all Wink-capable STBs on which Participating
System wishes to provide Interactive Wink Programs.
(E) Optional Wink Software and services:
- License for Wink Ad Insertion Server Module (delivery dependent on
vendor/interface) Existing interfaces $750/mo + $0.01/Wink STB
Subscriber/mo.
New interfaces Quoted
- 5-seat license for Wink Studio 2.x $3,000
- 5 seat license for Wink Server Studio 2.x $5,000
- Custom interface work $1,000/day
- Phone training and consulting beyond bundled services $125/hr
- Application development $2,500 min., $125/hr
All products and services are billed Net/45.
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EXHIBIT E.:WINK SPECIFICATIONS
ICAP 1.0 specification - is Confidential Information under this Master Agreement
Manuals for Wink Software
Developer Guidelines for Interactive Wink Programs
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EXHIBIT F.:PARTICIPATING PROGRAMMERS
Weekly hours of programming
Programmer with Interactive Wink Programs Designated VBI lines
NBC 6 13, 15
CNN 20
CNN/HN all except local avails
ESPN 1 4 (6 together with ESPN2)
▇▇▇▇ ▇ see ESPN1
TNT 5
TBS 5
TNN 10
TWC all except local avails
VH-1 10 19
Nick/Nick-at-N 5 19
Showtime event and promotion specific
CourtTV all except local avails locally inserted
CNBC all NYSE market hours + 10
EI 10
Wink VBI lines usage will be completed within 14 days of execution of this
Master Agreement.
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