Common use of Customer Agreements Clause in Contracts

Customer Agreements. In addition to other provisions hereof, MBC ------------------- shall not distribute any Cooperative Application or MBC Product to any Person unless MBC shall have first notified and required such Person to execute a customer agreement: (i) provided by InterTrust; or (ii) provided by MBC that (a) has been previously approved in writing by InterTrust and (b) is in accordance with the terms of this Section 6.2 (the "Customer Agreement"). The ------------------ terms of such Customer Agreement relating to InterTrust Technology may be amended from time to time by InterTrust as may be reasonably necessary to protect InterTrust's rights hereunder, but solely for subsequent executions of such Customer Agreement and as herein provided. The Customer Agreement shall contain, at minimum and as relevant hereunder, terms that: (1) notify MBC customers of the restrictions on MBC's rights with respect to performing Clearinghouse Functions, granting sublicenses, and otherwise restricting the rights of such customers with respect to use of the MBC Product or Cooperative Application, as applicable, especially the InterTrust Technology incorporated therein; (2) prohibit customers from disassembling, modifying or reverse engineering any portion of the InterTrust Technology incorporated in the MBC Product or Cooperative Application; (3) stipulate that such customer has no right to use the MBC Product or Cooperative Application to engage in or perform any Clearinghouse Functions whatsoever without InterTrust's express authorization pursuant to a written license agreement directly between such customer and InterTrust; (4) prohibit such customer from using the Cooperative Application or MBC Product to make and/or exploit any commercial product other than a Vertical Application; (5) provide that the Customer Agreement is to and for InterTrust's benefit and may be enforced by InterTrust at its discretion; and (6) contain such other provisions as stipulated herein. MBC agrees that to the extent any form of Customer Agreement might be deemed to be unenforceable or otherwise ineffective in any jurisdiction, MBC shall substitute other forms of Customer Agreements, or take other actions, as reasonably specified by InterTrust, including, for example, specifying other generally accepted, legally effective forms of Customer Agreement, if such exists for a given jurisdiction, in order to provide InterTrust with legally enforceable protection contemplated hereunder, including protection against implied licenses and claims of patent exhaustion relating to InterTrust Technology. MBC agrees and acknowledges that MBC's performance of its obligations hereunder is necessary for InterTrust to adequately protect its Intellectual Property Rights made available hereunder, and such performance shall constitute a condition precedent to the licenses granted under Article 5 hereof.

Customer Agreements. In addition (a) With respect to Master Agreements, Seller, Buyer and their respective Subsidiaries will use commercially reasonable efforts to obtain prior to the Closing or, if not obtained, will use commercially reasonable efforts to obtain within six (6) months following the Closing Date (other provisions hereofthan for Federal Government Contracts for which there will be no six (6) month limit on the parties’ obligations to use commercially reasonable efforts to obtain a Federal Government novation), MBC ------------------- from the counterparty to each Master Agreement, any consent that is required to separate the portion of such Master Agreement that provides for the delivery of ILEC Services or other goods or services provided by the Transferred Business, it being understood that neither Seller nor Buyer or any of their respective Subsidiaries shall not distribute be required to grant any Cooperative Application or MBC Product consideration to any Person unless MBC counterparty to such Master Agreement. Buyer and Seller shall cooperate and work in good faith to separate the applicable portion of any Master Agreement hereunder. The Contract constituting the separated portion of any Master Agreement that provides for the delivery of ILEC Services or other goods or services provided by the Transferred Business as described in the preceding sentence shall constitute a “Customer Contract” and “Assigned Contract” under this Agreement, it being understood that in no event shall those portions of any Master Agreement providing for the delivery of goods and services that do not constitute ILEC Services or other goods or services provided by the Transferred Business be considered a Customer Contract or any Assigned Contract. (b) Buyer agrees that, to the extent Tariffs or agreements implementing Tariffs contain rates and charges or other terms and conditions based on volume of service, amount of purchase or spend, or similar volume commitments by the customers which are party to agreements implementing such Tariffs with customers served by Seller or its Affiliates under Master Agreements and the agreements of customers who do not provide consents under this Agreement (the “Volume Commitments”), Buyer will, for the term of each such Master Agreement, reduce such Volume Commitments pro-rata, without a change in rates and charges or other terms and conditions under such Tariffs or agreements, to reflect the fact that the customers who are party to such an Agreement or such Affiliates may, after the Closing, take service from both Affiliates of Seller and Buyer and not from Affiliates of Seller or Buyer alone. The pro-rata reduction shall be equal to or exceed the amount of the Volume Commitment provided by Affiliates of Seller after the Closing. By way of example, and not by limitation, if after the Closing, such customer or Affiliate purchased 75% of a Volume Commitment from Buyer and 25% of a Volume Commitment from Affiliates of Seller, then Buyer would reduce the Volume Commitment by 25% in affected Tariffs and agreements implementing such Tariffs. Buyer and Seller shall work together to make all filings and take all other actions as may be required by applicable Laws to make the pro-rata reductions of Volume Commitments adopted or made by Buyer under this Section 6.13(b) legally effective no later than the Closing Date and each party shall bear its own costs associated with making its required filings. (c) Buyer and Seller agree to use commercially reasonable efforts after Closing to finalize a United States Federal Government novation (per Federal Acquisition Regulation, Subpart 42.12) to have first notified and required such Person the Federal Government recognize the transfer, as a result of the transactions contemplated by this Agreement, to execute a customer agreementthe Transferred Companies (and/or Buyer) of any: (i) provided by InterTrust; Contracts between Seller and its Subsidiaries and U.S. Federal Government agencies which are exclusively for the provision of ILEC Services or the Transferred Business in the States if there remain continuing obligations or rights under them or the Federal Government has not closed out the Contract(s) or (ii) provided by MBC that (a) has been previously approved in writing by InterTrust portions of Master Agreements between Seller and (b) is in accordance with its Subsidiaries and the terms of this Section 6.2 (the "Customer Agreement"). The ------------------ terms of such Customer Agreement relating to InterTrust Technology may be amended from time to time by InterTrust as may be reasonably necessary to protect InterTrust's rights hereunder, but solely for subsequent executions of such Customer Agreement and as herein provided. The Customer Agreement shall contain, at minimum and as relevant hereunder, terms that: (1) notify MBC customers of the restrictions on MBC's rights with respect to performing Clearinghouse Functions, granting sublicenses, and otherwise restricting the rights of such customers with respect to use of the MBC Product or Cooperative Application, as applicable, especially the InterTrust Technology incorporated therein; (2) prohibit customers from disassembling, modifying or reverse engineering any portion of the InterTrust Technology incorporated in the MBC Product or Cooperative Application; (3) stipulate that such customer has no right to use the MBC Product or Cooperative Application to engage in or perform any Clearinghouse Functions whatsoever without InterTrust's express authorization pursuant to a written license agreement directly between such customer and InterTrust; (4) prohibit such customer from using the Cooperative Application or MBC Product to make and/or exploit any commercial product other than a Vertical Application; (5) provide that the Customer Agreement is to and for InterTrust's benefit and may be enforced by InterTrust at its discretion; and (6) contain such other provisions as stipulated herein. MBC agrees that United States Federal Government agencies to the extent any form of Customer Agreement might be deemed to be unenforceable or otherwise ineffective in any jurisdiction, MBC shall substitute other forms of Customer Agreements, or take other actions, as reasonably specified by InterTrust, including, for example, specifying other generally accepted, legally effective forms of Customer Agreement, if such exists for a given jurisdiction, in order to provide InterTrust with legally enforceable protection contemplated hereunder, including protection against implied licenses and claims of patent exhaustion relating to InterTrust Technology. MBC agrees and acknowledges that MBC's performance of its obligations hereunder is necessary for InterTrust to adequately protect its Intellectual Property Rights made available hereunder, and such performance shall constitute a condition precedent related to the licenses granted provision of ILEC Services or the Transferred Business in the States if there remain continuing obligations or rights under Article 5 hereofthem or the Federal Government has not closed out the Contract(s).

Customer Agreements. In addition to other provisions hereof, MBC ------------------- SSG shall not distribute any Cooperative ------------------- Application or MBC SSG Product to any Person unless MBC SSG shall have first notified and required such Person to execute a form of customer agreementagreement (the "Customer -------- Agreement(s)") provided by SSG, such Customers Agreement forms having: (i) provided by ------------ terms relating to InterTrust Technology and InterTrust's rights and interests consistent with and reflective of the terms of this Agreement; or and (ii) provided by MBC that (a) has been previously approved in writing by InterTrust (such approval not to be withheld unless such Customer Agreement(s) does not reasonably protect InterTrust's rights under this Agreement or sufficiently protect InterTrust's Intellectual Property Rights. Once approved by InterTrust, the Customer Agreement(s) shall be set forth as an Exhibit to this Agreement and may be used, as applicable, by SSG as a form agreement unless and until: (a) SSG modifies such agreement (provided that InterTrust has approved such modification in writing); or (b) is in accordance with InterTrust reasonably requires that SSG alter the terms of this Section 6.2 (the "Customer Agreement"). The ------------------ terms of such Customer Agreement relating to InterTrust Technology may be amended from time to time by InterTrust as may be reasonably necessary to protect InterTrust's rights hereunderunder this Agreement or to protect its Intellectual Property Rights, but solely for subsequent executions example in view of such court decisions and/or applicable regulations under the circumstances. At a minimum, the Customer Agreement and as herein provided. The Customer Agreement shall contain, at minimum and as relevant hereunder, terms thatforms will: (1) notify MBC customers of the restrictions on MBC's rights with respect to performing Clearinghouse Functions, granting sublicenses, and otherwise restricting the rights of such customers with respect to use of the MBC Product or Cooperative Application, as applicable, especially the InterTrust Technology incorporated therein; (2i) prohibit customers from disassembling, modifying or reverse engineering any portion of the InterTrust Technology incorporated in the MBC SSG Product or Cooperative Application; (3ii) stipulate that such customer has no right to use the MBC SSG Product or Cooperative Application to engage in or perform any Clearinghouse Functions whatsoever without InterTrust's express authorization pursuant to a written license agreement directly between unless such customer and InterTrustis an Authorized Clearinghouse Provider or an authorized sublicensee under Section 5.2 hereof; (4iii) prohibit grant such customer from using only a limited license to use the Cooperative Application or MBC Product SSG Product, and, as applicable, to make and/or exploit any commercial (A) incorporate Authorized Application Software into such customer's software product other than to provide a Vertical ApplicationRights User Node that is Compliant with InterTrust Specifications or (B) develop and incorporate software components that provide the interface for and support operation in conjunction with a Rights User Node provided by InterTrust Commerce Technology; (5iv) permit such customer to engage SSG and/or an Authorized Clearinghouse Provider to perform Clearinghouse Functions with respect to such software product; (v) provide that if such customer is permitted to modify any portion of InterTrust Technology, such customer shall grant to InterTrust a license on substantially the same terms as Section 8.4; (vi) provide that the Customer Agreement is to and for InterTrust's benefit and may be enforced by InterTrust at its discretion; and (6vii) contain such other provisions as stipulated herein. MBC SSG agrees that to the extent any form of Customer Agreement might be deemed to be unenforceable or otherwise ineffective in any jurisdiction, MBC shall SSG shall, upon notification by InterTrust, substitute other forms of Customer Agreements, or take other actions, as reasonably specified by InterTrust, including, for example, specifying other generally accepted, legally effective forms of Customer Agreement, if such exists for a given jurisdiction, in order to provide InterTrust with legally enforceable protection contemplated hereunder, including protection against implied licenses and claims of patent exhaustion relating to InterTrust Technology. MBC SSG agrees and acknowledges that MBCSSG's performance of its obligations hereunder is necessary for InterTrust to adequately protect its Intellectual Property Rights made available hereunder, and such performance shall constitute a condition precedent to the licenses granted under Article 5 hereof. SSG shall not be obligated to file any claim in litigation to enforce the terms of Customer Agreement(s); provided that SSG -------- ---- shall, if requested by InterTrust, terminate such Customer Agreement(s) upon a material breach by such customer(s).

Customer Agreements. In addition A new section 2.9.8 shall be added to other provisions hereof, MBC ------------------- the Agreement as follows: 2.9.8.1 Insignia Products shall not distribute any Cooperative Application or MBC Product be distributed only pursuant to any Person unless MBC shall have first notified a written agreement consistent with and required such Person to execute a customer agreement: (i) provided by InterTrust; or (ii) provided by MBC that (a) has been previously approved in writing by InterTrust and (b) is in accordance with no less restrictive than the terms requirements of this Section 6.2 Agreement, as amended, including without limitation the requirements set forth in Sections 2.9.4, and 2.9.7 (the such agreement hereinafter referred to as "Customer Agreement"). The ------------------ terms This obligation shall not apply to distributions by Insignia to: i) an entity acting under a Sun Channel License for the applicable Java Environment or ii) an entity acting as an OEM pursuant to a then current Sun license with commercial distribution rights for the applicable Java Environment, or iii) a licensee of eJava or PJava Based Insignia Products who has a license with Sun for the applicable Java Environment. In the event Insignia is distributing Insignia Product to Non-Sun Licensees, pursuant to Section 2.9.6.1 or to Sun Licensees who do not have Sun Channel Licenses, then Insignia shall ensure that such Insignia Licensees, to the extent they are not acting as OEMs, distribute their Insignia Licensee Product only to entitities acting as OEMs, and only pursuant to a Customer Agreement binding that OEM.) 2.9.8.2 Sun shall be expressly named in Customer Agreements as an intended third party beneficiary of the obligations set forth herein relating to InterTrust Technology may be amended those terms concerning Sun's interest. Insignia shall use commercially reasonable efforts, comparable to efforts made by Insignia for Insignia's own products, to monitor and enforce adherence to Customer Agreements and shall promptly inform and consult with Sun if Insignia becomes aware of any substantial non-compliance or other action inconsistent with protection of Sun's intellectual property rights. Insignia agrees to use its best efforts to perfect and enforce Sun's rights as an intended third party beneficiary under the Customer Agreements including, but not limited to assigning to Sun, those rights necessary to protect Sun's Intellectual Property Rights and to enforce the TCK and compatibility obligations of Insignia Licensees and their OEM customers under the Customer Agreements, and to apply for and obtain recordation of and from time to time by InterTrust as may be reasonably necessary to protect InterTrust's rights hereunderenforce, but solely for subsequent executions of such Customer Agreement and as herein provided. The Customer Agreement shall contain, at minimum and as relevant hereunder, terms that: (1) notify MBC customers of the restrictions on MBC's rights with respect to performing Clearinghouse Functions, granting sublicensesmaintain, and otherwise restricting defend the rights of such customers with respect to use of the MBC Product or Cooperative Application, as applicable, especially the InterTrust Technology incorporated therein; assigned rights. 2.9.8.3 Nothing in this Section 2.9.8 affects any obligations under Section 2.9.3 (2) prohibit customers from disassembling, modifying or reverse engineering any portion of the InterTrust Technology incorporated in the MBC Product or Cooperative Application; (3) stipulate that such customer has no right to use the MBC Product or Cooperative Application to engage in or perform any Clearinghouse Functions whatsoever without InterTrust's express authorization pursuant to a written license agreement directly between such customer and InterTrust; (4) prohibit such customer from using the Cooperative Application or MBC Product to make and/or exploit any commercial product other than a Vertical Application; (5) provide that the Customer Agreement is to and for InterTrust's benefit and may be enforced by InterTrust at its discretion; and (6) contain such other provisions as stipulated herein. MBC agrees that to the extent any form of Customer Agreement might be deemed to be unenforceable or otherwise ineffective in any jurisdiction, MBC shall substitute other forms of Customer Agreements, or take other actions, as reasonably specified by InterTrust, including, for example, specifying other generally accepted, legally effective forms of Customer Agreement, if such exists for a given jurisdiction, in order to provide InterTrust with legally enforceable protection contemplated hereunder, including protection against implied licenses and claims of patent exhaustion relating to InterTrust Technology. MBC agrees and acknowledges that MBC's performance of its obligations hereunder is necessary for InterTrust to adequately protect its Intellectual Property Rights made available hereunder, and such performance shall constitute a condition precedent to the licenses granted under Article 5 hereofEnd User License Terms).