CONFIDENTIAL
EXHIBIT 10.14
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TECHNOLOGY DEVELOPMENT AND LICENSE
AGREEMENT
by and between
INTERTRUST TECHNOLOGIES CORPORATION
and
UPGRADE CORPORATION OF AMERICA
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_________________________
August 7, 1996
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---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND RULES OF CONSTRUCTION................................... 2
1.1 Definitions............................................................. 2
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1.2 Rules of Construction................................................... 8
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ARTICLE 2. AGREEMENT AND PARTY STATUS.............................................. 9
2.1 Nature and Effect of Closing............................................
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2.2 Addition of SOFTBANK Internet Services.................................. 9
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2.3 Joint and Several Obligations........................................... 9
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ARTICLE 3. TECHNOLOGY ACCESS AND SUPPORT........................................... 9
3.1 Pre-Release Technology Review and Assistance............................ 9
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3.2 Technology Access....................................................... 9
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3.3 Training, Assistance and Technical Support.............................. 11
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3.4 Additional Assistance................................................... 12
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ARTICLE 4. COOPERATIVE PROJECTS AND APPLICATIONS................................... 13
4.1 Cooperative Projects.................................................... 13
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4.2 Potential Cooperative Applications...................................... 13
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ARTICLE 5. LICENSES AND RESTRICTIONS............................................... 14
5.1 License Grant to SSG.................................................... 14
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5.2 Sublicense Rights....................................................... 15
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5.3 No Additional Licenses.................................................. 16
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5.4 General Restrictions.................................................... 16
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ARTICLE 6. SSG SUPPORT AND ADDITIONAL COVENANTS.................................... 17
6.1 SSG Support of InterTrust Technology.................................... 17
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6.2 Customer Agreements..................................................... 19
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6.3 Legends and Notices..................................................... 20
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6.4 InterTrust Trademarks................................................... 21
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6.5 SSG's Use of SSG Trademarks on Cooperative Applications and SSG Products 22
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6.6 SSG Trademarks.......................................................... 22
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ARTICLE 7. LICENSE FEES AND PAYMENT TERMS.......................................... 23
7.1 Fees and Royalties...................................................... 23
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7.2 Payment Procedure....................................................... 25
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7.3 Currency................................................................ 25
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7.4 Taxes................................................................... 25
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7.5 Interest................................................................ 25
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7.6 Audit................................................................... 26
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ARTICLE 8. PROPRIETARY INFORMATION AND OWNERSHIP................................... 26
8.1 InterTrust Ownership.................................................... 26
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8.2 SSG Ownership........................................................... 27
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8.3 Joint Ownership......................................................... 27
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8.4 SSG License to InterTrust............................................... 27
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ARTICLE 9. PROMOTION AND MARKETING................................................. 28
9.1 Joint Press Release..................................................... 28
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9.2 Promotion and Marketing................................................. 28
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9.3 Marketing Program....................................................... 28
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9.4 Technology Advisory Committee........................................... 29
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ARTICLE 10. [*]..................................................................... 29
10.1 [*]..................................................................... 29
10.2 [*]..................................................................... 31
10.3 Additional Provisions................................................... 31
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ARTICLE 11. CONFIDENTIALITY......................................................... 32
11.1 Classification of Technology and Documents For Confidentiality Purposes. 32
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11.2 InterTrust Information.................................................. 32
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11.3 SSG Information......................................................... 34
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11.4 Exceptions.............................................................. 34
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11.5 Confidentiality of Agreement and Publicity.............................. 35
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11.6 Confidentiality of Payments, Audit and Certification Testing............ 35
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11.7 NDA..................................................................... 35
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ARTICLE 12. REPRESENTATIONS AND WARRANTIES.......................................... 36
12.1 Representations and Warranties of Both Parties.......................... 36
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12.2 Representations and Warranties of InterTrust............................ 36
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12.3 Limitation.............................................................. 36
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ARTICLE 13. INDEMNIFICATION AND REMEDIES............................................ 37
13.1 Indemnification......................................................... 37
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13.2 Cumulative Remedies..................................................... 38
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13.3 Equitable Remedies...................................................... 38
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ARTICLE 14. EXCLUSION OF DAMAGES.................................................... 39
ARTICLE 15. TERM AND TERMINATION.................................................... 39
15.1 Agreement............................................................... 39
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15.2 Events of Termination................................................... 39
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15.3 Effect of Termination................................................... 41
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15.4 Survival................................................................ 41
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ARTICLE 16. MISCELLANEOUS........................................................... 41
16.1 Governing Law........................................................... 41
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16.2 Venue and Jurisdiction.................................................. 42
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16.3 Compliance with Law and Export Controls................................. 42
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16.4 Amendment or Modification............................................... 42
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16.5 No Assignment........................................................... 43
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16.6 Notices................................................................. 43
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16.7 Waiver.................................................................. 43
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16.7 Waiver.................................................................. 44
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16.8 No Third Party Beneficiaries............................................ 44
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16.9 No Agency............................................................... 44
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16.10 Recovery of Costs and Expenses.......................................... 44
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16.11 Severability............................................................ 44
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16.12 Counterparts; Facsimiles................................................ 44
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---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
16.13 Force Majeure........................................................... 45
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16.14 Entire Agreement........................................................ 45
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EXHIBIT A............................................................................ A-1
EXHIBIT B............................................................................ B-1
EXHIBIT C............................................................................ C-1
EXHIBIT D............................................................................ D-1
EXHIBIT E............................................................................ E-1
EXHIBIT F............................................................................ F-1
EXHIBIT G............................................................................ G-1
EXHIBIT H............................................................................ H-1
CONFIDENTIAL
TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
THIS TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT (this "Agreement") is made and
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entered into as of the _____ day of August, 1996 (the "Effective Date") by and
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between:
(i) INTERTRUST TECHNOLOGIES CORPORATION, formerly Electronic Publishing
Resources, Inc., a Delaware corporation ("InterTrust"), with offices
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at 000 Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000, on the one
hand; and
(ii) on the other hand:
(a) UPGRADE CORPORATION OF AMERICA, d/b/a SOFTBANK Services Group, a
Delaware corporation ("UCA"), with offices at 000 Xxxxxx Xxxxxx,
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Xxxxxxx, Xxx Xxxx 00000-0000, and
(b) to the extent that it becomes a Party to this Agreement pursuant
to Section 2.1 hereof, SOFTBANK INTERNET SERVICES, INC. ("SIS"), a
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corporation to be formed by UCA from certain business units of UCA.
(individually, a "Party", and collectively, the "Parties") with reference to the
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following:
RECITALS
A. InterTrust has developed and is continuing to develop a unique, general
purpose architecture for, among other things, rights protection and event
management related to electronic commerce, such architecture including
technologies for clearinghouse, certification and other commerce
administration technologies. InterTrust's technology is designed to support
an interoperable foundation for the electronic marketplace.
B. SSG (as hereinafter defined) is engaged in the business of transactional
systems development, software distribution and related clearinghouse
services, and is interested in: (i) developing comprehensive application
and service models enabling a broad reaching digital marketplace for
electronic content; and (ii) enabling electronic value chain models
supporting cyberspace distribution of software programs and components.
C. SSG, with the assistance of InterTrust, intends to develop electronic
commerce infrastructure tools and services and such Cooperative
Applications as the Parties may mutually agree, and InterTrust intends to
grant SSG certain licenses to use and incorporate InterTrust Technology in
certain products and services as set forth herein.
D. Pursuant to a closing as set forth in Section 2.1 hereof: (i) InterTrust
will issue to UCA a warrant to purchase shares of InterTrust Class B Common
Stock in the form attached hereto in Exhibit A (the "Warrant"); and (ii)
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InterTrust and SOFTBANK Holdings, Inc.,
SSG/InterTrust Agreement _______/_______
CONFIDENTIAL
an entity that owns directly or through an Affiliate a majority interest in
UCA, will enter into a Series B Preferred Stock Purchase Agreement in the
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form attached hereto in Exhibit A (the "Stock Purchase Agreement"). This
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Agreement, together with the Warrant and Stock Purchase Agreements
(collectively the "Other Transaction Documents"), set forth the terms and
conditions with respect to the Parties' relationship contemplated
hereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree to the following terms and conditions:
ARTICLE 1. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Definitions. In addition to the other capitalized terms defined
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elsewhere in this Agreement, the following terms shall have the meanings set
forth below:
"Affiliate" of a Person means any Person that controls, is controlled
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by, or is under common control with the first Person. For purposes hereof,
"control" means the right to: (i) elect the board of directors or other
similar managing authority; or (ii) generally make or cause the making of
management decisions directly; provided, however, that an Affiliate shall
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remain an Affiliate for only so long as such control remains in effect.
"Application Products" means any software tool, template, application
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system or other software product that: (i) is developed using InterTrust
Technology and/or Modified Technology; (ii) directly contains or
incorporates InterTrust Technology solely in the form of Authorized
Application Software, and/or Modified Technology in either Object Code
and/or Source Code in accordance with the licenses granted by InterTrust to
SSG hereunder; (iii) is not enabled to permit the performance of any
Clearinghouse Functions unless InterTrust has otherwise specified in
writing; and (iv) is in Compliance with InterTrust Specifications, except
as otherwise expressly provided in Section 3.2(b) hereof. Notwithstanding
the foregoing, any software tool, template, application system or other
software product specially designed, adapted or developed in whole or in
part to exploit, implement or facilitate the implementation of the
InterTrust proprietary business concepts set forth in Section 4.2 hereof
shall not constitute Application Products, unless developed as a
Cooperative Application.
"Authorized Application Software" means such software representations
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of InterTrust Technology in Object Code and/or in Source Code (solely as
such Object Code and Source Code are identified and designated by
InterTrust on Exhibit B), that are permitted for distribution in accordance
with the applicable licenses hereunder in such form as specified on Exhibit
B, which Exhibit may be amended from time to time by InterTrust in its sole
discretion and that are incorporated in Application Products according to
the terms and conditions of this Agreement.
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CONFIDENTIAL
"Authorized Clearinghouse Provider" means any Person that is expressly
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licensed by InterTrust to engage in specified Clearinghouse Function
activities and services, but only to the extent: (i) of the scope of such
license; and (ii) that such license is valid and in force.
"Authorized Clearinghouse Software" means such software
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representations of InterTrust Technology solely in Object Code form (and
solely as such Object Code is identified and designated by InterTrust on
Exhibit B, which Exhibit may be amended from time to time by InterTrust in
its sole discretion), that are permitted for distribution as incorporated
in Clearinghouse Products, in accordance with the applicable licenses
hereunder.
"Clearinghouse Function(s)" means any one or more activities, as well
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as services resulting therefrom, that use any InterTrust Technology and/or
Modified Technology, or use information derived at least in part from use
of such technology, to: (i) enable payment fulfillment or provision of
other consideration (including service fees, product fees or any other fees
and/or charges) based at least in part on a Control Use; (ii) perform
audit, billing, payment fulfillment (or provision of other consideration)
and/or other clearing activities involving more than one Person; and/or
(iii) compile, aggregate, use and/or provide information relating to more
than one Person's use of one or more Secure Containers and/or Content,
including Contents of Secure Containers or any other Content Managed at
least in part using any InterTrust Technology and/or Modified Technology.
Clearinghouse Functions shall include, for example: (a) financial clearing;
(b) providing object registry services and rights, permissions, prices,
and/or other Rules and Controls information for registered objects; (c)
electronically certifying information used with or required by Rules and
Controls, such as authenticating identity, class membership or other
attributes of identity context; (d) providing information based upon usage
auditing, user profiling, and/or market surveying related to more than one
Person's use of one or more Secure Containers and/or Content; and (e)
employing information derived from user exposure to Content, such as
advertising.
"Clearinghouse Products" means any software tool, template,
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application system or other software product that: (i) is developed using
InterTrust Technology and/or Modified Technology; (ii) directly contains or
incorporates InterTrust Technology solely in the form of Authorized
Clearinghouse Software, and/or Modified Technology only in Object Code, in
accordance with the licenses granted by InterTrust to SSG hereunder; (ii)
is enabled to permit the performance of any Clearinghouse Function; and
(iii) is in Compliance with InterTrust Specifications, except as otherwise
expressly provided in Section 3.2(b) hereof.
"Compliance" or "Compliant" means fully consistent with and fully
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conforming to all applicable portions of: (i) the most current version of
the InterTrust Specifications (as defined in Section 6.1(b) hereof)
existing on the date of SSG's first commercial use, distribution, sale or
other transfer of any applicable SSG Product, Cooperative Application or
first use thereof in connection with any service associated therewith, as
the case may be; and thereafter (ii) the most current InterTrust
Specifications in accordance with Section 6.1(b) hereof, as applied to any
such SSG Product, Cooperative Application or service associated therewith.
A SSG Product, Cooperative Application or any service
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CONFIDENTIAL
associated therewith that has not passed any required certification tests
as set forth in Section 6.1 hereof shall be deemed non-Compliant with
InterTrust Specifications.
"Content(s)" means any analog or digital information representing, for
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example, text, graphics, animation, video, digital linear motion pictures,
sound and sound recordings, still images, computer programs or executable
or interpretable components, and data. Content shall include, for example,
any electronic representation of: (i) Rules and Controls; and (ii)
electronic information derived from the Management of Content.
"Content Transaction" means any event or combination of events: (i)
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Managed, in whole or in part, through the use of any InterTrust Technology
and/or Modified Technology; and (ii) in connection with which compensation
(or other consideration) is due or payable to SSG and/or any other one or
more Persons, at least in part, for any (a) sale, rental, lease, license,
vending and/or other comparable provision of one or more rights related to
Content, or (b) use of, including any interaction with, Content (such as
access to Content, including production of modified Content).
"Control Use" means any use of InterTrust Technology and/or Modified
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Technology to Manage Content including initiating and/or otherwise
governing any consequence (electronic, physical or otherwise) related to
the use and/or processing of Content and/or provision of goods or services
conveyed by or associated with such Content. Control Use shall include, for
example: (i) metering, auditing, charging, and/or billing, for access to or
any other interaction with any Content; and/or (ii) administering permitted
and/or prohibited uses of Content.
"Cooperative Application(s)" means any Application Product and/or
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Clearinghouse Product that is: (i) developed pursuant to an applicable
Cooperative Application Project Plan in accordance with Section 4.1 hereof;
and (ii) marketed solely under any SSG Trademarks (except where use of
InterTrust Trademarks is also required hereunder, or other trademarks of
Persons are included in a secondary manner to identify technology or
services associated therewith), all in accordance with Section 6.5 and
other provisions hereof. Examples of possible Cooperative Applications
include those applications proprietary to InterTrust and described in
Section 4.2 hereof.
"Core Partner" means any Person (other than a Party) with whom
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InterTrust may directly enter into any agreement or set of agreements as
permitted hereunder, pursuant to which InterTrust directly: (i) provides
early access to InterTrust Technology prior to InterTrust's first
commercial release thereof to the general public; (ii) may undertake one or
more cooperative application projects of a substantially comparable nature
as set forth in Article 3 hereof; and (iii) grants a general purpose
license to use InterTrust Technology and to perform, and sublicense others
to perform, Clearinghouse Functions of a substantially comparable scope as
granted in Sections 5.1(b) and 5.2 hereof.
"Core Technology" means those components of InterTrust Technology
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described by InterTrust on Exhibit B hereto as core technologies of such
InterTrust Technology, as such Exhibit may be amended from time to time by
InterTrust in its sole discretion.
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CONFIDENTIAL
"Customer" means any Person that receives or acquires a SSG Product or
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Cooperative Application from SSG (as provided hereunder) with a present
intention: (i) to use such application or product privately as an end-user,
or further distribute such application or product, without modification, to
an end-user or one or more other Persons for distribution, without
modification, to an end-user; or (ii) to use such product or application
solely to (a) incorporate Authorized Application Software into Customer's
software products to provide a Rights User Node or (b) develop and
incorporate software components that initiate interface and operation with
a Rights User Node provided by InterTrust Commerce Technology, each of
which software components and Rights User Node is Compliant with InterTrust
Specifications. Customer shall not include any Person who has a present
intention to perform any Clearinghouse Function, unless such Person is an
Authorized Clearinghouse Provider.
"Distributable Documentation" means such portions of the Documentation
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that InterTrust has specifically and in writing identified on Exhibit B as
being suitable for general distribution by SSG to Customers, as such
portions of the Documentation may from time to time be cataloged by
InterTrust and provided to SSG in its discretion, wherein such
specification of such authorized documents and the content thereof may be
modified by InterTrust through amendment of the Distributable Documentation
identified and described on Exhibit B, in accordance with this Agreement.
"Documentation" means certain English language versions of
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documentation and/or instructions as specifically designated by InterTrust
that may assist SSG and/or its Customers in the use of InterTrust
Technology and that InterTrust may from time to time provide with the
InterTrust Technology (including any Distributable Documentation) and as
initially identified in Exhibit B hereto, wherein such documents and the
content thereof may be modified by InterTrust in its discretion through
amendment of the Documentation identified and described on Exhibit B, in
accordance with this Agreement.
"Gross Commercial Value" means all sums of money, and/or the fair
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market value of any other consideration, charged or provided in connection
with any Content Transaction, and/or in connection with performing any
other activity within the Clearinghouse Functions. Such consideration shall
include consideration based upon Management of Content or information
derived at least in part therefrom, including, for example, consideration:
(i) paid by a user as a consequence of, for example, user exposure to, or
other interaction with, Content; (ii) paid by a user as a consequence of
the acquisition of one or more rights related to Content; or (iii) paid by
a proxy or subsidizing payer (such as an advertiser) based upon user
exposure to Content, where, for example, after (due to or based on) receipt
of information about user exposure to Content, such advertiser pays
consideration based at least in part on value resulting from such exposure.
Notwithstanding the foregoing, Gross Commercial Value shall not include any
sales, use, value-added or other taxes (except withholding taxes) imposed
by any national, state, local or foreign government and paid by SSG as a
consequence of clearing a Content Transaction and/or as a consequence of
performing any other activities within the Clearinghouse Functions.
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CONFIDENTIAL
"Intellectual Property Rights" means all patent rights, copyrights,
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trademarks, trade secret rights, and other proprietary rights in any
jurisdiction, and all applications and registrations therefor.
"InterTrust (TM) Commerce Technology" means certain InterTrust
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technology directly relating to distributed rights management, electronic
content administration and/or distributed electronic commerce automation
and process control systems and methods, including, without limitation, the
InterTrust products described in Exhibit B hereto.
"InterTrust Specifications" means the InterTrust Technology
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specifications, as established or modified by InterTrust in its sole
discretion and in accordance with Section 6.1(b) hereof, that are provided
to SSG and that are applicable to licensees or Core Partners of InterTrust
Technology, as relevant. Such InterTrust Specifications may include: (i)
required design criteria for products and services employing InterTrust
Technology and/or Modified Technology, including, for example, product and
related criteria for ensuring the architectural and functional integrity,
standardization, security capability, and interoperability of InterTrust-
based technology, components, products and services (such as, for example,
criteria for electronic environments employing InterTrust Commerce
Technology for rights and/or other event related process management); (ii)
procedures and requirements for installation, initialization, backup,
restore and security updates; and (iii) required certification tests and
procedures to verify Compliance of SSG Products, Cooperative Applications
and related services with such InterTrust Specifications.
"InterTrust Technology" means technology developed by and/or for
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InterTrust and directly related to electronic rights and/or event
management, including the commercial administration thereof, and supplied
by InterTrust to SSG as set forth in this Agreement. Such technology shall
include InterTrust Commerce Technology and DigiBox Technology contained in
the SDK, TDK and CDK products and Documentation as referenced in Exhibit B
hereto (as such Exhibit may be modified by InterTrust in its sole
discretion from time to time to accommodate, for example, any updates and
upgrade releases, and product reconfigurations made available pursuant to
Sections 3.1 and 3.2 hereof); provided that any technology not described on
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Exhibit B hereto as of the Effective Date shall become InterTrust
Technology hereunder only if and to the extent such technology is supplied
to SSG in the manner set forth in Section 3.2(b).
"InterTrust Trademarks" means InterTrust's names, logos and other
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marks as listed on Exhibit C hereto, as such Exhibit may be modified by
InterTrust from time to time pursuant to Section 6.4(a) hereof.
"Licensed Rights" means all of InterTrust's worldwide Intellectual
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Property Rights (other than trademark rights) in and to the InterTrust
Technology, the Modified Technology and/or the Cooperative Applications,
that InterTrust (during the term of this Agreement) owns or has the right
to grant licenses of the scope granted herein without the agreement of, or
requirement for payment (or the granting of other consideration) to, any
Person.
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CONFIDENTIAL
"Manage or Management" means any form of governance, regulation,
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management and/or control, in any way and by any means, of, as applicable
in the context in which reference is made herein: (i) rights, processes
and/or obligations related to or associated with use of (including access
to, transport of, and/or storage of) Content, including Content related
disposition and/or consequences thereof; and/or (ii) events or event
processes related or associated in any manner to the use of (including
access to), attempted use of, and/or disposition of, Content and/or events,
including any consequences thereof.
"Material Defects" means defects or bugs in the InterTrust products
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incorporating InterTrust Technology (as defined in Exhibit B hereto) and as
delivered by InterTrust to SSG, wherein such defects or bugs cause one or
more such InterTrust products to fail to perform: (i) materially in
conformance with the capabilities ascribed to such products in the
applicable portions of InterTrust Specifications; and (ii) in a
commercially reasonable manner in accordance with reasonable software
industry practices relating to such capabilities. Material Defects shall
not include any defects or bugs introduced as a result of any modification
of (or to) the InterTrust Technology by SSG or any Person.
"Modified Technology" means all modifications of, and enhancements
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and/or additions to, the InterTrust Technology, created by (or for, as
provided hereunder) SSG, including without limitation all derivative works
of the InterTrust Technology (or other Modified Technology) as such term is
defined in the U.S. Copyright Act (17 U.S.C. ' 101 et seq., as amended),
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but only to the extent that such modifications, enhancements, additions
and/or derivative works are permitted under Article 5 and elsewhere in this
Agreement. Modified Technology shall not include any modifications,
enhancements, additions and/or derivative works of InterTrust Technology
(or of other Modified Technology) whatsoever, made by or for SSG or any
Person that fall outside the scope of this Agreement.
"Object Code" shall mean the computer executable binary code derived
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from compiled Source Code for execution on a computing system.
"Person" means any individual, corporation, limited liability company,
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partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, government body or agency, or other entity.
"Rights User Node" means a client installation that supports
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Management of Content.
"Rules and Controls" means any information that describes, and/or
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provides means for performing, permitted and/or required operations related
to Content, including restricting the performance of operations, such as,
for example, Management of such Content.
"Secure Containers" means electronic containers that: (i) employ
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cryptographic techniques to provide protection for Content; and (ii)
support the use of Rules and Controls to Manage Content.
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CONFIDENTIAL
"Source Code" means a human-readable, non-executable set of
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instructions for a computer program, from which it may be possible,
together with related source materials and documentation, to discern the
logic, algorithms, internal structure, and operating feature design
characteristics of such computer program.
"SDK 1.0" or "Systems Developer's Kit 1.0" or means certain software
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tools and applications described in Exhibit B hereto (as such Exhibit may
be modified from time to time by InterTrust in its discretion) that
incorporate InterTrust Technology, as provided by InterTrust to SSG in
accordance with this Agreement.
"SSG" means individually or collectively, as applicable in the context
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in which such reference is made: (i) Upgrade Corporation of America; and
(ii) SOFTBANK Internet Services, Inc., a corporation to be formed from
certain business units of Upgrade Corporation of America, to the extent
that SOFTBANK Internet Services, Inc. is joined as a Party pursuant to
Section 2.2 hereof.
"SSG Product(s)" means any Application Product(s) and/or Clearinghouse
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Product(s) (other than Cooperative Application(s)) that: (i) is developed
by or for SSG as permitted hereunder; and (ii) is branded and marketed
solely under the SSG Trademarks (except where use of InterTrust Trademarks
is also required herein, or other trademarks of Persons are also included
in a secondary manner to identify technology or services associated
therewith) and as stipulated in Section 6.5 and other provisions hereof.
"SSG Trademarks" means any names, logos and other marks owned or
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licensed for use exclusively by SSG or SOFTBANK Holdings, Inc. (hereinafter
"SOFTBANK"), that may be used as stipulated hereunder in connection with,
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and are limited in use to representing exclusively, the SSG Products,
services permitted hereunder, and/or identities of such companies and over
which SSG or SOFTBANK exercise exclusive control with respect to the
commercial use thereof. Such SSG or SOFTBANK Trademarks are listed on
Exhibit C hereto, as such Exhibit C may be modified by SSG from time to
time pursuant to Section 6.6 hereof.
1.2 Rules of Construction. As used in this Agreement, all terms used in
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the singular shall be deemed to include the plural, and vice versa, as the
context may require. The words hereof, herein and hereunder refer to this
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Agreement as a whole, including any exhibits hereto, as the same may from time
to time be amended or supplemented and not to any subdivision contained in this
Agreement. When used herein, including shall mean including, without
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limitation; discretion shall mean sole discretion; and InterTrust shall mean
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InterTrust and any lawful successor thereto. References herein to section
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and/or exhibit shall be to the applicable section and/or exhibit in this
Agreement, as such exhibit may be modified from time to time pursuant to the
terms of this Agreement. Descriptive headings are inserted for convenience only,
and shall not be utilized in interpreting this Agreement. This Agreement has
been negotiated by the Parties and their respective counsel and shall be fairly
interpreted in accordance with its terms and without any strict construction in
favor of or against either Party. References to specific forms of technology
representations such as electronic, digital, or analog shall include all future
successors and replacement forms of representations whether or not currently
contemplated, invented or conceived.
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CONFIDENTIAL
ARTICLE 2. AGREEMENT AND PARTY STATUS.
2.1 Nature and Effect of Closing
(a) Closing. As partial consideration for InterTrust's execution of
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this Agreement, UCA and SOFTBANK Holdings, Inc. hereby irrevocably commit
to execute the Other Transaction Documents relevant to it and make such
payments contemplated thereby, and consummate a closing, on or before
August 19, 1996 (the "Closing"), at the Washington D.C. offices of Xxxxxxxx
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& Xxxxxxxx, or at such other place as to which both Parties agree. At or
before such Closing, SOFTBANK shall: (i) execute and deliver the Stock
Purchase Agreement to InterTrust; (ii) pay to InterTrust by wire transfer
such sums as set forth in Schedule A of the Stock Purchase Agreement; and
(iii) consummate the transactions contemplated by the Stock Purchase
Agreement. In the event UCA and SOFTBANK fully comply with the terms of
this Section 2.1(a) and other terms of this Agreement, at the Closing
InterTrust shall: (i) execute and deliver the Stock Purchase Agreement to
SOFTBANK; and (ii) execute and issue the Warrant to UCA. UCA acknowledges
and agrees that to the extent the Closing fails to occur as the result of
UCA and/or SOFTBANK's failure to comply with this Section 2.1(a) or other
terms of this Agreement, as applicable, InterTrust shall have the right,
exercisable in its discretion, to terminate this Agreement pursuant to
Section 15.2(a) hereof without refund to SOFTBANK of any kind, in addition
to any and all remedies available to InterTrust at law or in equity. UCA
hereby irrevocably waives any right to contest or challenge, and covenants
not to contest or challenge, InterTrust's exercise of such right of
termination.
(b) Effect of Rights and Obligations. During the period from the date
--------------------------------
of execution hereof until the later of the Closing or termination of this
Agreement, the rights and obligations of the parties under Sections 5.4,
7.1(a)(i)(1), 7.4, 8.1, 8.2 and 8.3, and Articles 1, 10, 11, 12, 13, 14, 15 and
16 hereof shall be effective, and no other provisions of this Agreement shall
take effect. Upon the Closing and thereafter during the term of this Agreement,
all provisions of this Agreement shall be effective.
(c) Representation and Warranty. In addition to the representations
---------------------------
and warranties set forth in Section 12, as applicable, UCA and SOFTBANK jointly
and severally represent and warrant to InterTrust that (and InterTrust has
relied upon such representation and warranty that) the delay experienced in
closing the Stock Purchase Agreement was occasioned by Japanese government
regulatory processes for the export of funds from SOFTBANK Japan to SOFTBANK,
such funds being necessary for SOFTBANK to provide the payments due under this
Agreement and the Stock Purchase Agreement.
2.2 Addition of SOFTBANK Internet Services. UCA currently intends to form
--------------------------------------
SIS from certain business units of UCA. SIS will focus on developing certain
electronic commerce transaction and related technology utilizing the InterTrust
Technology. To the extent that SIS is formed and incorporated on or before
December 31, 1996 and qualifies as an Affiliate of SOFTBANK with substantially
similar equity ownership structure as UCA, within thirty (30) days of such
formation and incorporation, SIS may automatically become a Party to this
Agreement upon: (i) the execution of the Signature Page, attached hereto as
Exhibit D, by SIS; and (ii) the receipt of the original of such Signature Page
by InterTrust.
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2.3 Joint and Several Obligations. By executing the Signature Page, SIS
-----------------------------
shall be bound by all the terms and conditions thereof applicable to UCA, from
the date such terms and conditions took effect with respect to UCA. By executing
this Agreement and approving SIS' addition as a Party, UCA and SIS, further
acknowledge and agree that: (i) each of UCA and SIS is jointly and severally
liable and responsible to InterTrust for the obligations of SSG under this
Agreement; and (ii) InterTrust's performance of its obligations under this
Agreement with respect to, or for the benefit of, either UCA or SIS shall fully
discharge its obligations to the other (and to SSG).
ARTICLE 3. TECHNOLOGY ACCESS AND SUPPORT.
3.1 Pre-Release Technology Review and Assistance. To expose SSG to, and
--------------------------------------------
demonstrate the status and functionality of, the SDK 1.0 and certain other
InterTrust Technology described in Exhibit B hereto, prior to the delivery to
SSG of SDK 1.0 for beta testing, InterTrust personnel will conduct technical
meetings with SSG personnel from time to time as mutually convenient to both
Parties (as is consistent with InterTrust's Assistance and support obligations
described in Section 3.3 hereof and taking into consideration the need to avoid
adversely affecting InterTrust's development efforts). Such technical meetings
will include presentations on technical strategies and reviews of the progress
of InterTrust's development effort, and afford SSG the opportunity to review and
comment upon, as appropriate SDK 1.0 design documents, schematics and
architectural models, working samples, prototypes and code (such meetings
between the Parties shall constitute Assistance, as defined in Section 3.3(a)
hereof, after thirty (30) man-hours have been expended by InterTrust personnel
therefor). The Parties expect, in addition, to meet periodically during such
same time period, as may be mutually agreed, to discuss and plan product
deployment and marketing strategies and activities; provided, however, that any
-------- ------- ----
time expended in these activities shall not constitute Assistance.
3.2 Technology Access.
-----------------
(a) Delivery of InterTrust Technology. Subject to the terms of this
---------------------------------
Agreement, InterTrust shall make available to SSG such InterTrust Technology as
set forth on Exhibit B hereto (as such Exhibit may be amended by InterTrust from
time to time pursuant to this Agreement). Such InterTrust Technology may employ
or may operate with one or more technologies that may not be proprietary to
InterTrust but are included within the Licensed Rights as specified by
InterTrust, in its sole discretion, on Exhibit B (the "InterTrust Technology
---------------------
Products"). InterTrust Technology as made available hereunder will contain the
--------
SDK 1.0, with the functionality ascribed thereto, as set forth on Exhibit B.
InterTrust's initial estimated schedule for the InterTrust Technology Products
is set forth on Exhibit B and SSG recognizes that such schedule may change in
the future. SSG acknowledges and agrees that Clearinghouse Prototype Components
and Sample Applications (as each are defined in Exhibit B) that may be provided
to SSG as part of InterTrust Technology are not designed, intended or warranted
by InterTrust in any manner for commercial use. For a period of [*] ([*]) years
after the Effective Date and pursuant to the terms and conditions of this
Agreement, InterTrust will make available to SSG all update and upgrade releases
as well as product reconfigurations and modifications to the InterTrust
Technology that InterTrust develops from time to time and makes generally
available to its Core Partners and shall, with respect to such update and
upgrade releases, product
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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reconfigurations and modifications, [*].
(b) Provision of Additional Technology and Documentation. Before
----------------------------------------------------
providing SSG with any technology or documentation other than the InterTrust
Technology and Documentation set forth on Exhibit B hereto as of the Effective
Date ("Additional InterTrust Technology/Documentation"), InterTrust shall
----------------------------------------------
provide SSG with notice of its intent to deliver such technology and/or
documentation, along with a summary description of the Additional InterTrust
Technology/Documentation. Provided that such Additional InterTrust
Technology/Documentation is not related to security and/or interoperability
aspects of InterTrust Technology, within ten (10) days thereafter, SSG may, at
its discretion, notify InterTrust that it does not wish to receive such
Additional InterTrust Technology/Documentation. Any decision by SSG to receive
or decline to receive Additional InterTrust Technology/Documentation shall have
no effect on any of SSG's obligations hereunder (including, but not limited to,
Sections 5.3 and 6.1) and no licenses of any kind under any of InterTrust's
Intellectual Property Rights shall be granted or deemed to have been granted
(expressly or by implication) with respect to any use of declined Additional
Technology/Documentation. To the extent that SSG declines to receive any
Additional InterTrust Technology/Documentation, every portion of any SSG product
(and any directly related services permitted hereunder) not at the time
immediately preceeding the effective date of InterTrust Specifications
applicable to such declined Additional Technology/Documentation, but containing
any technology relating to declined Additional Technology/Documentation, shall
be, thereafter, in accordance with the procedures of Section 6.1(b): (i) be
Compliant with all applicable InterTrust Security Related Specifications (as
defined immediately below) and InterTrust Specifications for the Special
Advanced Capabilities; and (ii) be Interoperable (as defined immediately below)
with all products Compliant with InterTrust Specifications. "Security Related
----------------
Specifications" means the InterTrust Specifications and all subsequent versions
--------------
thereof related to: (a) trusted systems techniques and technologies, interfaces,
and/or processes (such as, for example, security kernel structures, reference
monitor functions and structures, internal software protection structures and/or
any aspect having the potential to compromise the protection, secrecy, and/or
integrity of different InterTrust installations or DigiBox Secure Containers
created, processed, and/or used by different InterTrust installations); (b)
other security aspects of the InterTrust Technology, including cryptographic
algorithms, secure communications protocols, secure objects and/or data
structures, and/or interfaces related to any of the foregoing; and (c) ensuring
that trusted and/or other secure functions of the InterTrust Technology are
Interoperable in different installations and/or operating contexts.
"Interoperable" means producing materially identical output or results based on
--------------
identical events or input.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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3.3 Training, Assistance and Technical Support. Subject to the terms of
------------------------------------------
this Agreement, InterTrust agrees to provide the following training, assistance
and technical support to SSG for a period of [*] ([*]) months from the Effective
Date (the "Support Period"):
--------------
(a) Training and Assistance. In order to assist SSG in its evaluation
-----------------------
and/or use of InterTrust Technology products, the InterTrust Dedicated
Personnel (as defined in Section 3.3(d)) shall provide to SSG account
management, [*] to SSG and subject to applicable terms and conditions of
this Agreement, training, consulting, relationship assistance, project
management, and other assistance directly related thereto ("Assistance")
----------
[*]. Such Dedicated Personnel shall provide up to [*] ([*]) hours per annum
of such Assistance, as described in Section 3.3(d) hereof, so long as SSG
is entitled to favorable treatment under this Article 3. InterTrust shall
further provide, as may be requested by SSG, up to [*] ([*]) hours of
Assistance by persons other than the Dedicated Personnel for general
training and support purposes. All such Assistance will be measured based
upon InterTrust's man-hours expended (excluding time expended to travel or
perform administrative tasks related to the relationship), and shall be
subject to reasonable agreement between the Parties on scheduling,
availability of resources and related matters. As appropriate, such
Assistance may include certain training sessions to which certain other
InterTrust licensees (in addition to SSG) may be invited to attend. In such
an event, InterTrust will notify SSG in advance of such other participants.
SSG shall be responsible for all expenses incurred by SSG's personnel in
traveling to and attending any training and support meetings. In the event
InterTrust's personnel travel from InterTrust's facilities (upon
InterTrust's and SSG's mutual agreement), SSG shall reimburse InterTrust
for all actual and reasonable travel, living and out-of-pocket expenses
incurred by InterTrust's personnel based on SSG's standard policies and
procedures for reimbursement of its independent contractors and its own
employees.
(b) Correction of Material Defects. In addition to InterTrust's own
------------------------------
ongoing quality assurance efforts, InterTrust shall use reasonable prompt
efforts in accordance with reasonable U.S. software industry practices, at
InterTrust's expense and subject to InterTrust's standard support policies
as relevant, to correct Material Defects, or otherwise reasonably adjust
InterTrust Technology to mitigate Material Defects, identified by SSG to
InterTrust in a writing describing the alleged Material Defects in detail.
InterTrust shall have no obligation to: (i) investigate or correct any
Material Defects at any site other than an InterTrust facility, except that
InterTrust will visit SSG's facilities as may be required in the reasonable
judgment of both InterTrust and SSG to investigate Material Defects that
severely and critically degrade operation of InterTrust Technology and
cannot otherwise be diagnosed by SSG; (ii) communicate on the subject of
Material Defects with any Person other than SSG; or (iii) correct any
Material Defects that have been properly identified by SSG but that cannot
be reliably reproduced. Notwithstanding the foregoing, SSG shall reimburse
InterTrust for all actual and reasonable travel, living and out-of-pocket
expenses incurred by InterTrust's personnel (based on SSG's standard
policies and procedures for reimbursement of its independent contractors
and its own employees) for any site visit referenced in this Section 3.3(b)
after the second such site visit per calendar year.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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(c) Status Meetings. To assist the Parties in sharing information,
---------------
and coordinating and evaluating their efforts relating to InterTrust
Technology and their mutual technical and business objectives, following
the Effective Date the Parties shall meet from time to time to discuss,
among other things: (i) InterTrust's progress in development of the
InterTrust Technology; (ii) implementation of such technology by SSG; (iii)
feedback concerning Assistance provided to SSG and product development and
marketing progress by SSG; and (iv) other issues concerning the Parties'
mutual technical and business objectives (the "Status Meetings"). Such
---------------
Status Meetings shall: (1) be attended at a minimum by each Party's
Relationship Manager and Technical Project Manager (as defined in Section
3.3(d)); and (2) take place not less frequently than once every two (2)
months until January 1, 1998, and, thereafter, as may be agreed by the
Parties.
(d) Dedicated Personnel. InterTrust and SSG will each appoint a
-------------------
relationship manager, to coordinate its activities pursuant to this Section
3.3 and Article 4 ("Relationship Manager"), and a technical project
--------------------
manager, to coordinate and provide the Assistance set forth in Section
3.3(a) and 3.3(b), 3.3(b) ("Technical Project Manager") (collectively, the
-------------------------
"Dedicated Personnel"). Not less than [*] ([*]) of such InterTrust
-------------------
Relationship Manager's and such InterTrust Technical Project Manager's
working time shall be devoted exclusively to providing services and
Assistance for SSG as set forth herein, if reasonably required by the
circumstances or reasonably requested by SSG, so long as SSG is entitled to
[*] under Section 3.2(b) hereof.
3.4 Additional Assistance. During the Support Period, additional
---------------------
Assistance may be made available by InterTrust to SSG beyond the [*] ([*]) hours
allocated under Section 3.3(a) hereunder. To the extent SSG requests, and
InterTrust decides (in the exercise of its sole discretion) to provide, such
additional Assistance, [*]. After the Support Period, any further support or
Assistance desired by SSG shall be subject to InterTrust's standard support
policies and support packages, and any fees charged to SSG in this regard shall
be [*]. To the extent InterTrust requires all of its Core Partners or customers
who have license rights and obligations comparable to SSG, as may be applicable,
to maintain a basic level of support, SSG shall maintain such basic support
policy in the same manner as is generally provided by InterTrust Core Partners
or customers.
ARTICLE 4. COOPERATIVE PROJECTS AND APPLICATIONS.
4.1 Cooperative Projects. From time to time during the term of this
--------------------
Agreement, the Parties may discuss the terms and conditions under which they may
cooperate with respect to Cooperative Applications, including discussing the
types of projects and formulating the terms of a project plan (a "Cooperative
-----------
Application Project Plan"), which, upon agreement of the Parties, shall be
------------------------
attached as an Exhibit hereto. The Parties shall negotiate reasonably in an
attempt to agree on the terms and conditions upon which they may cooperate with
respect to one or more Cooperative Applications (which may include the
applications set forth in Section 4.2 below), but agreement to such terms and
conditions shall be in the reasonable discretion of each Party, and any failure
to agree shall not constitute a breach of this Agreement. The Parties' intent
with
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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respect to information to be contained within a Cooperative Application Project
Plan is described in Exhibit E hereto, as may be amended from time to time upon
the mutual agreement of the Parties (each in the exercise of its sole
discretion). Exhibit E further includes other information appropriate to
represent any agreement between the Parties related to any such project plan.
The provisions of this Agreement shall govern the Parties' actions in
implementing any Cooperative Application Project Plan to which the Parties
agree, except to the extent that such provisions herein are inconsistent with
explicit provisions of that specific Cooperative Application Project Plan, in
which event the provision of such Cooperative Application Project Plan shall
govern. A breach of a Cooperative Application Project Plan, other than those
terms relating to Intellectual Property Rights, ownership or licenses thereof
granted by InterTrust, shall not constitute a material breach of this Agreement,
unless expressly stipulated to the contrary in such Cooperative Application
Project Plan.
4.2 Potential Cooperative Applications. The Parties have, to date, had
----------------------------------
preliminary discussions concerning two potential Cooperative Applications:
(i) an information delivery model, tentatively denominated
[*], supporting security for, and the auditing, validation, and/or
authentication of electronically delivered information (e.g., contracts or
other documents, multimedia, video transmissions, etc.), and further including
(a) a [*] provider that [*] and/or can [*] information that may be used to [*]
at least a portion of the delivered information for the purpose of [*] (in
whole or in part) facts relating to delivery of the information (e.g., the
transmitting party, transmitted content, and/or the receipt, identity and/or
use by the intended recipient of transmitted content) and/or (b) the
distribution of content in [*] to recipients employing secure, interoperable,
auditing and control means that make accessible to sending and/or receiving
parties [*] and/or one or more [*] for potential [*] purposes, wherein: (1)
such containers have specified Rules and Controls that manage use of the
content and (2) one or more potential uses of the content are controlled, at
least in part, by one or more Rules and Controls specified by a sending party;
and
(ii) an application, tentatively denominated [*],
that enables individual users and organizations to become cyberspace publishers
through the packaging of digital content in Secure Containers utilizing one or
more material portions of any Special Advanced Technologies.
ARTICLE 5. LICENSES AND RESTRICTIONS.
5.1 License Grant to SSG.
--------------------
(a) Licenses to InterTrust Technology and Modified Technology.
---------------------------------------------------------
Subject to the terms and conditions of this Agreement, InterTrust grants to
SSG during the term of this Agreement a limited, nonexclusive,
nontransferable (except as expressly provided in Section 5.2) worldwide
right and license under the Licensed Rights to:
(i) use and reproduce the InterTrust Technology solely for the
purpose of (a) designing, making, developing, producing and using SSG
Products and/or
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Cooperative Applications that are in Compliance with the InterTrust
Specifications; and (b) exercising the rights granted under Sections
5.1(a)(ii), 5.1(a)(iii), 5.1(a)(iv), and 5.1(b) hereof;
(ii) modify, enhance and create derivative works of the
InterTrust Technology, except the Core Technology, to create the
Modified Technology and use such Modified Technology solely for the
purpose of enabling incorporation of InterTrust Technology into SSG
Products and/or Cooperative Applications that are in Compliance with
InterTrust Specifications;
(iii) distribute, offer for sale, sell, license, import and/or
otherwise transfer SSG Products and Cooperative Applications that are
Application Products, and Distributable Documentation, to SSG's
Customers pursuant to a Customer Agreement in accordance with, and as
defined in, Section 6.2 hereof; and
(iv) distribute, offer for sale, sell, license, import and/or
otherwise transfer SSG Products and Cooperative Applications that are
Clearinghouse Products, solely to Authorized Clearinghouse Providers
under Section 5.2(b) pursuant to a Customer Agreement specific to such
Authorized Clearinghouse Providers, supplied in accordance with, and
as defined in, Section 6.2 hereof.
(b) License to Perform Clearinghouse Functions. Subject to the terms
------------------------------------------
and conditions of this Agreement, InterTrust grants to SSG during the term
of this Agreement a limited, nonexclusive (except as expressly provided in
Section 10.1), nontransferable (except as expressly provided in Section
5.2), worldwide right and license under the Licensed Rights to perform
Clearinghouse Functions solely under the SSG Trademarks, and solely in
cases in which SSG performs and controls such Clearinghouse Functions in
Compliance with InterTrust Specifications. Such Clearinghouse Functions may
be performed solely: (i) to service Rights User Nodes, each such node
having been provided by (1) an SSG Product and/or Cooperative Application,
and solely in connection with such SSG Product and/or Cooperative
Application, or (2) such Compliant products for which InterTrust has
expressly granted a license to have Authorized Clearinghouse Providers
service Rights User Nodes thereof, and/or (ii) pursuant to a sublicense
from an Authorized Clearinghouse Provider having an express, written
license from InterTrust allowing such Authorized Clearinghouse Provider to
enter into such sublicense.
(c) License to InterTrust Trademarks. Subject to the terms and
--------------------------------
conditions of this Agreement, InterTrust grants to SSG during the term of
this Agreement a limited, nonexclusive, nontransferable, worldwide license
to use and display the InterTrust Trademarks solely: (i) on SSG Products,
Cooperative Applications, and with respect to associated services to
indicate that such products, applications and services are in Compliance
with InterTrust Specifications; (ii) on related Distributable Documentation
and marketing materials to identify that InterTrust Technology is being
utilized by SSG; and (iii) as set forth herein or otherwise reasonably
stipulated in writing by InterTrust. InterTrust shall have the right to
approve all uses of InterTrust Trademarks, including use thereof on SSG
Products and Cooperative Applications, in connection with services
(including performance of Clearinghouse Functions) provided by SSG relating
to
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products and applications employing InterTrust Technology and/or Modified
Technology, and in related documentation and marketing materials.
5.2 Sublicense Rights. In accordance with the terms of this Section 5.2,
-----------------
SSG may enter into sublicense agreements pursuant to which SSG may authorize
certain other entities to perform portions of the actions licensed to SSG under
Sections 5.1(a) and 5.1(b) hereof. Sublicense agreements relating to SSG's
rights under: (i) Sections 5.1(a)(i), 5.1(a)(ii), 5.1(a)(iii) and 5.1(a)(iv)
shall be governed by Section 5.2(a), below; and (ii) Section 5.1(b) shall be
governed by Section 5.2(b), below. All sublicensees must enter into a written
sublicense agreement with SSG, the form and content of which agreement (or
agreements, as appropriate) are fully consistent with the provisions of this
Section 5.2 and have been previously approved by InterTrust in writing (such
approval not to be withheld unless such form agreements do not reasonably
protect InterTrust's rights as set forth in this Agreement or its Intellectual
Property Rights). Upon approval, each sublicense form shall be attached as an
Exhibit hereto and may be used by SSG as appropriate under the circumstances,
unless and until InterTrust reasonably requires that one or more approved
sublicense forms be modified, to accommodate, for example, modified provisions
or additional provisions reasonable under the circumstances. Such sublicense
form agreement shall, at minimum, require each sublicensee to agree in writing:
(a) to be subject to SSG's obligations under this Agreement; (b) to perform
obligations identical to the obligations of SSG under Sections 5.1, 5.3, 5.4,
6.1, 6.2, 6.3, 6.4, 6.5 (to the extent any sublicensee marks may be used in
connection with products), 6.6 and 10.2, and Articles 7, 8, 11, 12, 13, 15 and
16 of this Agreement to the extent of their activities under the sublicense, and
(c) to agree to provisions substantially as set forth in Sections 8.4 and 10.2.
In addition, each sublicensee shall enter into a written agreement with
InterTrust, in the form of a certification form to be attached as an Exhibit to
the sublicense agreement, pursuant to which such sublicensee agrees that
InterTrust shall have the right to enforce the terms of the sublicense agreement
between SSG and such sublicensee. Prior to granting any such sublicense, SSG
shall provide InterTrust with the name of the proposed sublicensee and a
certification that the proposed sublicense agreement includes all of the
provisions contained in the approved sublicense form. Where the proposed
sublicensee is not a SSG and/or SOFTBANK Affiliate, InterTrust shall have thirty
(30) days to authorize such proposed sublicensee. InterTrust's decision to
authorize or refuse to authorize a proposed sublicensee that is not a SSG and/or
SOFTBANK Affiliate shall be in InterTrust's sole discretion, and can be
exercised on any basis. If InterTrust fails to authorize the sublicensee, the
sublicense agreement shall not take effect. Any sublicense granted to an
Affiliate of SSG or SOFTBANK shall remain effective only so long as such
sublicensee remains an Affiliate of SSG or SOFTBANK. SSG shall guarantee and
remain liable to InterTrust for all sublicensees' performance of such
obligations. Sublicensees shall have no further right to sublicense any right
received. SSG agrees and acknowledges that SSG'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 granting of other licenses under Article 5 hereof.
(a) Non-Clearinghouse Sublicenses. SSG may enter into sublicense
-----------------------------
agreements pursuant to which SSG may grant sublicensees some or all of the
rights licensed to SSG under Sections 5.1(a)(i), 5.1(a)(ii), 5.1(a)(iii),
5.1(a)(iv) and 5.1(c). In addition to other terms set forth in this Section
5.2 above, such sublicenses shall be subject to the following terms and
conditions:
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(i) SSG shall grant sublicenses only to SOFTBANK or its
Affiliates (and only while SSG is a SOFTBANK Affiliate);
(ii) Products distributed to, and/or services performed by,
Persons other than SSG must be performed and branded solely under SSG
Trademarks or, as applicable, other SSG Affiliate or SOFTBANK
Affiliate trademarks as set forth herein (except where use of
InterTrust Trademarks is required herein), but in the case of a SSG or
SOFTBANK Affiliate, only for so long as such SSG or SOFTBANK Affiliate
remains such an Affiliate;
(iii) Activities authorized under the sublicense shall be
limited to the development of SSG Products or Cooperative
Applications.
(b) Clearinghouse Function Sublicenses. SSG may enter into sublicense
----------------------------------
agreements pursuant to which SSG may authorize performance of some or all
of the activities licensed to SSG under Section 5.1(b) by any Person, but
solely to perform Clearinghouse Functions on behalf of SSG, and solely
under SSG Trademarks or, as applicable hereunder, any other SSG or SOFTBANK
Affiliate trademarks as set forth herein and in accordance with Section
5.1(b) hereof.
5.3 No Additional Licenses. SSG understands and acknowledges that
----------------------
InterTrust is licensing to SSG only certain limited rights to use InterTrust
Technology (including performing Clearinghouse Functions and sublicensing
certain rights granted SSG) as described herein. Thus, notwithstanding the
generality of any other provision herein, SSG acknowledges and agrees that the
licenses granted under Sections 5.1 and 5.2 are the only licenses granted to
SSG, and that no other licenses are granted, expressly, or by implication or
estoppel, now or in the future. All rights not expressly granted to SSG under
this Agreement are reserved and retained by InterTrust.
5.4 General Restrictions. SSG covenants that it shall not: (i) during
--------------------
the term of this Agreement, reverse engineer any technology that has been
supplied to SSG in Object Code form only, or emulate the functionality of,
and/or modify any portion of the Core Technology; or (ii) after the term of this
Agreement, use or exploit the InterTrust Technology for any purpose whatsoever.
Any use by SSG of any portion of the InterTrust Technology and/or Modified
Technology outside the scope of the licenses granted by InterTrust hereunder
shall constitute a material breach of this Agreement.
ARTICLE 6. SSG SUPPORT AND ADDITIONAL COVENANTS.
6.1 SSG Support of InterTrust Technology.
------------------------------------
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(a) SSG Use of InterTrust Technology. In accordance with the
--------------------------------
licenses granted to SSG and the other terms hereunder, SSG agrees to
develop, produce, and generally distribute, or use for commercial purposes,
a SSG Product and/or a Cooperative Application as soon as commercially
reasonable and practicable, and in any case within [*] ([*]) months
following the date InterTrust makes available to SSG the System Developer
Kit 1.0 in beta format. Such time period shall be extended by any period in
which: (i) there exists a Material Defect in the InterTrust Technology that
materially impedes SSG's development efforts as relevant, but only from the
date that SSG documents such defect as provided in Section 3.3(b) hereof to
the date InterTrust has reasonably corrected or removed such Material
Defect as provided hereunder; or (ii) InterTrust materially fails to
provide any of the support services required in Section 3.3 (other than
Section 3.3(b)) and such material failure actually impedes SSG's
development efforts, as relevant, but only to the extent of any delay
reasonably and solely attributable to such material failure.
(b) Compliance with InterTrust Specifications. SSG shall not commence
-----------------------------------------
the distribution, sale or other transfer of any specific SSG Product or
Cooperative Application, or perform any service directly relating to such
products or applications, unless such SSG Product, Cooperative Application
and/or service is in Compliance with InterTrust Specifications. InterTrust
may, from time to time in its sole discretion, modify InterTrust
Specifications to accommodate changes in InterTrust Technology, and any
related InterTrust product development, for purposes of, for example,
improving architectural integrity, functional capability, standardization,
security capability, efficiency, and/or interoperability of InterTrust
Commerce-based technology, components, products and services (a "New
---
Specification"). InterTrust shall use commercially reasonable efforts to
-------------
maintain compatibility between a New Specification and the then-preceding
Specification, unless considerations of security, interoperability,
performance, or functionality enhancement indicate that such compatibility
is not commercially appropriate. To the extent InterTrust releases a New
Specification that applies to any portion of a Cooperative Application, SSG
Product and/or service then being performed or distributed by SSG (as
applicable), SSG shall bring any further such products delivered to
customers, and/or any services for any such products (as applicable), into
Compliance with such New Specification as of the earliest to occur of: (i)
the next version, release, or production cycle of such Cooperative
Application, SSG Product and/or service (the "Next Version"), as earlier
------------
applicable, but only to the extent that SSG receives notice of such New
Specification within a reasonably sufficient time of such Next Version to
accommodate new aspects of such New Specification; and (ii) [*] ([*])
months after SSG receives a released copy of such New Specification.
InterTrust and SSG further agree that SSG shall, within [*] ([*]) months
after receiving a released copy of such New Specification, implement such
new aspects of such New Specification for all applicable services
supporting and/or employing SSG Products and Cooperative Applications
and/or any other products employing InterTrust Technology provided to
customers and not meeting such New Specification. Notwithstanding the
foregoing, should serious technical interoperability and/or security
requirements commercially necessitate more prompt action, SSG and
InterTrust will confer and agree upon the most aggressive, practical
schedule feasible to ensure Compliance with the New Specification for all
SSG Products, Cooperative Applications, and any services relating to such
products or applications. Under such conditions, SSG shall take whatever
commercially
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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appropriate steps are reasonable and required under the circumstances to
minimize or eliminate a continuation of such interoperability and/or
security problems.
(c) Compliance Testing. SSG acknowledges that: (i) in support of
------------------
InterTrust Technology, InterTrust may implement one or more certification
programs designed to ensure that licensed products and/or associated
services (including SSG Products and any Cooperative Applications) use
InterTrust Technology and/or Modified Technology in Compliance with
InterTrust Specifications in accordance with this Agreement (the
"Certification Program(s)"); and (ii) such a Certification Program(s) is
------------------------
important to maintaining the reliability of products and services employing
InterTrust Technology and/or Modified Technology, and in maintaining public
confidence in the integrity of InterTrust brands as the resource for
interoperable electronic commerce. Such Certification Programs may, in
InterTrust's sole discretion, require, for example, SSG: (a) to use a suite
of test software provided by InterTrust for use by SSG to test and verify
that Cooperative Applications and SSG Products (and/or associated services)
are in Compliance with InterTrust Specifications; (b) to submit samples of
Cooperative Applications and SSG Products and associated programs,
parameter data, and other information (in object code form unless source
code is necessary or reasonably appropriate) that may be technically
material to Compliance with InterTrust Specifications, prior to first
commercial distribution, sale, other transfer to, or use by, a customer or
SSG service, as applicable, so as to allow InterTrust (or an InterTrust
delegate) to perform confidential testing ("Certification Testing"); and
---------------------
(c) to the extent that options (a) or (b) immediately above do not, or can
not reasonably be anticipated to, provide sufficient information to verify
Compliance, to provide InterTrust with full and detailed specifications and
documentation related to SSG's use of InterTrust Technology and Modified
Technology for SSG Products, Cooperative Applications, and any associated
services, but only to the extent that any such specifications and
documentation may be material to Certification Testing. SSG shall comply
with any Certification Program established by InterTrust in accordance
herewith, and all specifications and documentation provided shall be
certified by an authorized representative of SSG. In connection with any
such Certification Testing, particularly the testing of products and/or
services, as applicable, InterTrust (or an InterTrust delegate) will
respond in a reasonably prompt manner following receipt of submitted
products and access to, or receipt of technology supporting, such service,
unless commercially reasonable factors prolong such testing. Such response
shall be in the form of: (1) a written approval that the product or service
is certified (such SSG Products and Cooperative Applications not being
Compliant until such certification has been granted); or (2) if not
approved, a detailed summary of problems and, where feasible, suggested
solutions. InterTrust (or an InterTrust delegate) will apply the
Certification Program, as applicable, in a non-discriminatory and
consistent manner with respect to similar products and/or services.
InterTrust's rights under this Section 6.1 shall not be affected in any
manner by an InterTrust decision not to perform such Certification Testing.
(d) Costs. To defray costs associated with the performance and
-----
administration of the Certification Program, in connection with the
certification of any product or service SSG shall be charged a reasonable
fee not to exceed industry norms for similar testing activities (and, if
conducted by InterTrust, the full cost incurred by InterTrust in performing
and administering such tests). An estimate of such fee shall be provided to
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SSG, as applicable, as soon as reasonably practical upon SSG's submission
of samples, or documentation for and access to services, for testing, and
such fee shall be paid by SSG in accordance with standard industry
practices, as available.
(e) Translation of Material in Foreign Languages. InterTrust shall
--------------------------------------------
have the right to receive and approve (to the extent referencing InterTrust
Technology or capabilities and/or functions enabled by InterTrust
Technology) any non-English translations made by or for SSG of
documentation provided by SSG concerning SSG Products, and Cooperative
Applications, and any related services (including Distributable
Documentation), legends and Notices required pursuant to Section 6.3 hereof
and other required notices, and all versions of InterTrust Technology.
6.2 Customer Agreements. SSG shall not distribute any Cooperative
-------------------
Application or SSG Product to any Person unless SSG shall have first notified
and required such Person to execute a form of customer agreement (the "Customer
--------
Agreement(s)") provided by SSG, such Customers Agreement forms having: (i)
------------
terms relating to InterTrust Technology and InterTrust's rights and interests
consistent with and reflective of the terms of this Agreement; and (ii) 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) InterTrust
reasonably requires that SSG alter the Customer Agreement to protect
InterTrust's rights under this Agreement or to protect its Intellectual Property
Rights, for example in view of court decisions and/or applicable regulations
under the circumstances. At a minimum, the Customer Agreement forms will: (i)
prohibit customers from disassembling, modifying or reverse engineering any
portion of the InterTrust Technology incorporated in the SSG Product or
Cooperative Application; (ii) stipulate that such customer has no right to use
the SSG Product or Cooperative Application to engage in or perform any
Clearinghouse Functions whatsoever unless such customer is an Authorized
Clearinghouse Provider or an authorized sublicensee under Section 5.2 hereof;
(iii) grant such customer only a limited license to use the Cooperative
Application or SSG Product, and, as applicable, to (A) incorporate Authorized
Application Software into such customer's software product to provide a Rights
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; (iv) 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 (vii) contain such other provisions as
stipulated herein. SSG agrees that to the extent any form of Customer Agreement
might be deemed to be unenforceable or otherwise ineffective in any
jurisdiction, 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. SSG agrees and acknowledges that SSG's
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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).
6.3 Legends and Notices.
-------------------
(a) Product Legends and Notices. SSG shall, in accordance with
---------------------------
InterTrust's instructions and/or approved exemplars and samples provided
from time to time by InterTrust to SSG, place Notices (as hereinafter
defined) on all Cooperative Applications, SSG Products, documentation,
marketing and advertising materials therefor, and for associated services,
on all packaging for any physical media containing any such products, and
on all initialization and/or start-up screens of any stand-alone software
developed by or for SSG using or incorporating InterTrust Technology and/or
Modified Technology. For purposes of this Agreement, the term Notices shall
include: (i) Intellectual Property Rights, warranty, and disclaimer
notices; (ii) any symbols or marks stipulating Compliance with InterTrust
Specifications; (iii) a notice stating that SSG Products and Cooperative
Applications are "InterTrustworthy" and are being delivered using
InterTrust Technology (as such notices may be amended by InterTrust from
time to time); and (iv) other field of use and product notices stipulated
by InterTrust, so long as such notices (a) in the opinion of InterTrust's
counsel, assist in protecting InterTrust intellectual property and other
InterTrust rights under the laws of any relevant jurisdiction, (b) are
commercially reasonable means to protect InterTrust rights without being
overly intrusive or unreasonably costly to SSG's sales and marketing
efforts, and (c) in InterTrust's reasonable opinion or upon written opinion
of InterTrust's outside legal counsel, cannot be adequately addressed in
the Customer Agreement. Before any Notices are omitted pursuant to
subsections (b) and (c) immediately above, SSG shall advise InterTrust in
writing of the circumstances and the Parties' Project Managers shall
directly discuss the issue. SSG shall not, and shall not permit any Person
to, remove, alter, cover, obfuscate or otherwise deface any InterTrust
Trademarks or Notices on any InterTrust Technology or associated
documentation, marketing and advertising materials therefor. Compliance
with subsections (i) and (iv) above shall constitute conditions precedent
to the licenses granted under Article 5 hereof.
(b) Network Notices. SSG shall, in accordance with InterTrust's
---------------
instructions or approved exemplars and samples provided from time to time
by InterTrust to SSG: (i) place Notices specified by InterTrust, which
Notices shall not unreasonably detract from, or interfere with, SSG content
or branding, on all of SSG's start-up screens or initial user interface
menus of any server host environment generated by or referencing the
Cooperative Applications and/or the SSG Products or any associated
services; and (ii) include a link from any home pages or any Web page of
SSG, any other SOFTBANK Affiliate, and any SSG customer or licensee (who
does not object to such link), that uses InterTrust Commerce Technology in
its products or in connection with its services, which materially promotes
or otherwise supports SSG Products, Cooperative Applications and associated
services, to a home page that InterTrust may provide for such purpose on
the World Wide Web or the equivalent thereof on any other electronic
network.
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Notwithstanding the foregoing, neither SSG nor any SOFTBANK Affiliate shall
have any obligation to provide any such link to the extent that
InterTrust's home page: (a) references any software distributor other than
SSG, SOFTBANK, or a SOFTBANK Affiliate as an InterTrust provider of
software distribution clearinghouse transaction services; or (b) contains
materials, or points to another website that contains materials, directly
and substantially in conflict with SSG's material commercial interests.
Before any such link is removed or not established for the reasons set
forth in subsection (a) and (b) immediately above, SSG shall provide
InterTrust with four (4) days prior written notice describing any such
material conflict and afford InterTrust the opportunity to comment upon
and, if appropriate, correct such conflict. InterTrust shall be afforded
the opportunity to have a link re-established promptly upon any
rectification of a material conflict.
(c) Prospective Notice. The Notices shall be effective beginning on
------------------
the date InterTrust gives SSG written notice thereof and SSG shall as soon
as reasonably commercially practicable implement and/or comply with
applicable portions thereof.
6.4 InterTrust Trademarks.
---------------------
(a) Standards. SSG expressly recognizes the importance of
---------
InterTrust's reputation and goodwill, and of maintaining high, uniformly
applied standards of quality in connection with SSG's use and distribution
of products, applications, and services pursuant hereto bearing InterTrust
Trademarks. Consequently, to maintain InterTrust's interest in and rights
to the InterTrust Trademarks, products, and associated services, and to
maintain in the mind of the public and customers that InterTrust Technology
and its components represent sufficient levels of quality, trust and
reliability, SSG shall utilize the InterTrust Trademarks in accordance with
trademark guidelines (including approved samples and exemplars) as provided
herein and as may be provided to SSG by InterTrust. Such trademark
guidelines shall: (i) include a list of InterTrust trademarks that have
been registered, or applied for, and shall specify restrictions on use, if
any, including permitted and prohibited countries and jurisdictions; and
(ii) may be revised from time to time by InterTrust. InterTrust Trademarks,
as listed on Exhibit C attached hereto, may be reasonably modified by
InterTrust from time to time upon InterTrust's provision to SSG of
reasonable prior written notice. Any such modification shall not include
any names, logos or marks that substantially conflict with any then-
existing trademark rights of SSG.
(b) Trademark Ownership; Contestability. SSG acknowledges and agrees
-----------------------------------
that all uses of InterTrust Trademarks as permitted hereunder, and the
goodwill associated therewith, shall inure solely to the benefit of
InterTrust. SSG agrees that it shall not contest the validity of any
InterTrust Trademarks or registrations thereof or applications with respect
thereto, or InterTrust's exclusive ownership of the InterTrust Trademarks
or their associated goodwill. SSG agrees to make available to InterTrust,
upon request, copies of SSG's records and such other documentary evidence
as is/are retained in the ordinary course of business regarding its use of
the InterTrust Trademarks, and information regarding first use of the
InterTrust Trademarks by SSG in each country.
(c) Confusing Similarity. SSG shall not use any marks identical with
--------------------
or confusingly similar to any of the InterTrust Trademarks, shall not
register or attempt to
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register any marks identical with or confusingly similar to InterTrust's
Trademarks, and shall not permit any SOFTBANK Affiliate to use or affix any
trademark of such Affiliate on any SSG Product supplied to such Affiliate,
to the extent such Affiliate distributes, provides services for, or
transfers to others any product other than a product incorporating
InterTrust Technology, using Secure Containers that bears a trademark of
such Affiliate.
(d) Prospective Notice. Changes in the InterTrust Trademarks and such
------------------
standards of quality shall be effective beginning on the date InterTrust
gives SSG written notice thereof and SSG shall, as soon as reasonably
commercially practicable thereafter, implement and/or comply with such
respective portions thereof.
6.5 SSG's Use of SSG Trademarks on Cooperative Applications and SSG
---------------------------------------------------------------
Products. To promote the branded and distinct identity of any InterTrust
--------
Compliant Cooperative Application, SSG Products, associated services or any
other such products used in commerce by SSG and/or distributed, sold or
otherwise transferred by SSG to Customers as provided hereunder, SSG
acknowledges and agrees that any trademark or logo used by SSG in commerce to
specifically identify, label or market a Cooperative Application, SSG Product,
or services associated therewith (other than trademark or logos that serve to
generally identify SSG or SOFTBANK, or any Affiliate or sublicensee thereof)
shall not, concurrently or thereafter, be used to identify any product or
services other than such SSG Products, Cooperative Applications and associated
services, whether by SSG or pursuant to license or sublicense from SSG.
6.6 SSG Trademarks. Subject to the terms and conditions of this
--------------
Agreement, SSG grants to InterTrust during the term of this Agreement a limited,
nonexclusive, royalty-free, worldwide license, without the right of sublicense
except to InterTrust's Affiliates, to use the SSG Trademarks solely in
connection with any publicity pursuant to Article 8 hereof, unless otherwise
agreed by SSG. InterTrust shall obtain permission from SSG for any further use
of SSG's Trademarks and shall comply with SSG instructions provided in writing
by SSG concerning such further use of any SSG Trademarks. InterTrust shall
comply with any reasonable guidelines provided in writing by SSG concerning such
use of any SSG Trademarks and shall comply with the provisions of Section 6.4 as
reasonably applied to the use of SSG Trademarks. Such SSG Trademark guidelines
shall include a list of SSG Trademarks that have been registered, applied for,
or used in interstate commerce and shall specify restrictions on use, including
permitted countries and jurisdictions. SSG Trademarks, as listed on Exhibit C
attached hereto, may be reasonably modified by SSG from time to time upon SSG's
provision to InterTrust of reasonable prior written notice thereof. Any such
modification will not include any names, logos or marks that substantially
conflict with then-existing trademark rights of InterTrust.
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ARTICLE 7. LICENSE FEES AND PAYMENT TERMS.
7.1 Fees and Royalties.
------------------
(a InterTrust Technology Fees and Royalties. In consideration of
----------------------------------------
the licenses granted to SSG herein and the other terms and conditions
hereof, SSG shall pay to InterTrust the following amounts, net of any
withholding tax; provided that no fees or royalties shall be due hereunder
-------- ----
for any set-up, interfacing, or development fees paid to SSG and associated
with the initial establishment of commercial services by SSG, but not in
lieu of any fees or royalties for commercial services:
(i) Nonrefundable license fees totaling in the aggregate [*]
dollars (US$[*]), which shall be [*] InterTrust as set forth in
Sections [*] and [*] below, in accordance with Section 7.1(b) hereof
(the [*]), and payable in the following amounts:
(1 [*] dollars (US$[*]), payable concurrently with the
execution hereof;
(2 [*] dollars (US$[*]), payable within seven (7) days
after InterTrust has made available the beta version of
the SDK 1.0 to SSG; and
(3 [*] dollars (US$[*]), payable upon the earlier of such
time that SSG first transfers, distributes or uses for
commercial purposes a SSG Product or Cooperative
Application, or first performs for commercial purposes
any Clearinghouse Function;
(ii) based at least in part on the performance of Clearinghouse
Functions:
(1) a royalty of [*] percent ([*]%) of the Gross Commercial
Value of each Content Transaction;
(2) a royalty of [*] percent ([*]%) of all revenue and/or
other consideration received pursuant to this Agreement for
performance of such Clearinghouse Functions, but not
including Content Transactions as set forth in Section
7.1(a)(ii)(1) above (an "Alternative Transaction"); or
(3) where a single instance of the performance of
Clearinghouse Functions includes at least one aspect
involving a Content Transaction and at least one other
aspect involving an Alternative Transaction, a royalty
consisting of the sum of a royalty calculated pursuant to
section 7.1(a)(ii)(1) for such Content Transaction aspect
and a royalty calculated pursuant to section
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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7.1(a)(ii)(2) for such Alternative Transaction aspect.
The Alternative Transaction aspect will be calculated
only on any value received above and beyond the Gross
Commercial Value of the Content Transaction.
(iii) for all revenue or other consideration, if any, derived
by SSG in connection with the sale, distribution or other use of
Cooperative Applications and/or SSG Products:
a royalty of [*] percent ([*]%) of all such revenue and
consideration.
(b [*] and [*]. Commencing on January 1, 1998
-----------
and continuing until December 31, 2002, SSG shall be entitled to [*] of
all [*] under Sections [*] and [*] in a calendar quarter [*]; provided
--------
that the total amount of all such [*] shall not [*] ($[*]) in the [*].
----
(c Support Fee. In partial consideration of InterTrust's provision
-----------
of the Assistance and other technical support set forth in Section 3.3
hereof, SSG shall pay to InterTrust the amount of [*] dollars (US$[*]) per
year during the Support Period (the "Support Fee"). Such fee shall be
-----------
adjusted from year to year, in proportion with changes in the consumer
price index published by the Bank of America, or its equivalent in the
absence of the availability thereof. SSG shall pay the Support Fee in four
quarterly installments within thirty (30) days after each calendar quarter
in accordance with Section 7.2 hereof. Such Support Fee will no longer be
payable if InterTrust discontinues the support and Assistance set forth in
Section 3.3 for any reason.
(d) [*]
7.2 Payment Procedure. Except as otherwise expressly provided in this
-----------------
Agreement, within [*] ([*]) days after the end of each calendar quarter, SSG
shall pay InterTrust all amounts due and/or payable pursuant to the licenses
granted hereunder, and received during such calendar quarter. SSG shall make all
payments hereunder by corporate check (except corporate checks shall not be used
for payments due under Section 7.1(a)(i)(1) and (2)) or by wire transfer to such
account as designated by InterTrust in writing. Concurrently with each royalty
payment, SSG shall provide to InterTrust a written royalty report, certified to
be accurate by an officer of
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Upgrade Corporation of America and/or SOFTBANK Internet Services, Inc., as
applicable, specifying: (i) the revenues derived by SSG that are subject to
royalties during each calendar month of such quarter; (ii) the basis for
calculation of the amounts due and payable; and (iii) summaries of business
records employed by SSG to arrive at the information set forth in (i) and (ii)
immediately above. The manner of calculation of the amounts due and payable to
InterTrust hereunder shall be determined in accordance with recognized and
generally accepted U.S. accounting procedures and principles that shall be
consistently applied to all such payments.
7.3 Currency. Gross Commercial Value and all consideration received by
--------
SSG pursuant to Sections 7.1(a)(ii) or 7.1(a)(iii) in a currency other than U.S.
dollars shall be converted by SSG to U.S. dollars on a monthly basis for
purposes of payment to InterTrust on a quarterly basis (unless otherwise
specified by InterTrust in its sole discretion to be paid in another single
alternative currency upon providing ninety (90) days prior written notice
thereof) according to the official rate of exchange for such currency, as
published by the Marine Midland Bank on the last business day during each
calendar month of a calendar quarter for which such royalties are due. If the
Marine Midland Bank ceases or fails to publish such official rate of exchange at
any time during the term of this Agreement, the official rate of exchange during
any such period of cessation shall be such rate as published by the Bank of
America (San Francisco, California) or its legal successor on the last working
day of such calendar quarter for which such royalties are due.
7.4 Taxes. SSG shall pay taxes, including but not limited to withholding
-----
taxes, imposed by any foreign government or any other jurisdictions outside of
the United States, as applicable, on all fees and royalties payable to
InterTrust under this Agreement. SSG shall be responsible for payment of all
sales, use, value-added and other taxes, duties and other charges that may fall
due with respect to the transfer to or licensing, reproduction, distribution,
and/or use by SSG of the Cooperative Applications and the SSG Products, and with
respect to SSG's activities with respect to the Clearinghouse Functions.
InterTrust shall be responsible for payment of all sales, use, value-added and
other taxes that may be imposed by the United States government on InterTrust
with respect to the transfer to or licensing to SSG of the InterTrust Technology
hereunder or with respect to the payments received hereunder.
7.5 Interest. SSG agrees that all sums owed or payable to InterTrust
--------
hereunder shall bear interest (compounded daily) at the rate of [*] percent
([*]%) per month or [*] ([*]) points above the U.S. Prime Rate on an annualized
basis as published at the end of a calendar quarter for which such royalties are
due, whichever is higher, or such lower rate as may be the maximum rate
permitted under applicable law, from the date upon which payment of the same
shall first become due up to and including the date of payment thereof whether
before or after judgment, and that SSG shall be additionally liable for all
costs and expenses of collection, including, without limitation, reasonable fees
for attorneys and court costs. Notwithstanding the foregoing, such specified
rate of interest shall not excuse or in any way whatsoever be construed as a
waiver of SSG's express obligation to timely provide any and all payments due to
InterTrust hereunder.
7.6 Audit. SSG shall maintain at its principal place of business during
-----
the term of this Agreement and for a period of [*] ([*]) years thereafter all
books, records, accounts, and technical materials regarding SSG's activities in
connection herewith sufficient to determine and confirm SSG's royalty
obligations and other material obligations hereunder. Upon InterTrust's request,
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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SSG will permit an auditor or agent of InterTrust's choice (subject to SSG's
consent, which shall not be unreasonably withheld or delayed) to examine and
audit, during a reasonable time (but no more than [*] every [*] ([*]) months),
such books, records, accounts, documentation and materials, and take extracts
therefrom or make copies thereof for the purpose of verifying the correctness of
SSG's reported royalty statements and payments provided by SSG or compliance
with the license terms and other material obligations hereunder. SSG shall pay
any unpaid delinquent amounts within ten (10) days of InterTrust's request. To
the extent such examination: (a) discloses an underpayment of more than [*]
dollars ($[*]) and such underpayment represents a sum greater than [*] percent
([*]%) of the sums paid to InterTrust by SSG during the applicable period
subject to such audit; or (b) discloses an underpayment of more than [*] dollars
($[*]), SSG shall fully reimburse InterTrust, promptly upon demand, for the fees
and disbursements due the auditor for such audit; provided that such prompt
payment shall not be in lieu of any other remedies or rights available to
InterTrust hereunder. If an audit reveals an overpayment, InterTrust shall
notify SSG of such overpayment and SSG will apply the amount of such overpayment
against future royalties due and payable to InterTrust. Notwithstanding the
foregoing, within [*] ([*]) days of a request by SSG, InterTrust shall reimburse
SSG up to [*] dollars ($[*]) of any such overpayment amount; provided that
InterTrust posted a profit in accordance with GAAP in the calendar year
preceding such request. Any balance will be paid from future royalties as
provided for above.
ARTICLE 8. PROPRIETARY INFORMATION AND OWNERSHIP.
8.1 InterTrust Ownership. SSG acknowledges and agrees that, as between
--------------------
InterTrust and SSG, InterTrust is the sole and exclusive owner of, and shall
retain and hereby reserves (and nothing herein shall alter InterTrust's
reservation of) all right title and interest in: (i) the InterTrust Technology,
enhancements and modifications thereto, and derivative works thereof created by
or for InterTrust, and all Intellectual Property Rights embodied therein; (ii)
all Intellectual Property Rights created, or embodied in any works (whether
tangible or intangible) created, independently by InterTrust in connection with
its performance of this Agreement, including participation in any Cooperative
Application Project Plan; and (iii) Modified Technology not owned by SSG
pursuant to Section 8.2 hereof, and all Intellectual Property Rights embodied
therein (collectively, the "InterTrust Property"). No provision contained in
-------------------
this Agreement shall be construed to transfer to SSG or any other Person any
title or ownership interest in any InterTrust Property.
8.2 SSG Ownership. Subject to InterTrust's ownership rights under Section
-------------
8.1, as between SSG and InterTrust, SSG shall be the sole and exclusive owner of
the portions of the following created solely by SSG hereunder: (i) any SSG
Products; (ii) Modified Technology (except such Modified Technology that merely
reimplements the existing functionality of InterTrust Technology provided to
SSG, including, for example, porting or translation thereof); (iii) all
Intellectual Property Rights created, or embodied in any works (whether tangible
or intangible) created, independently by SSG in connection with its performance
of this Agreement, including participation in any Cooperative Application
Project Plan to the extent permitted under its licenses hereunder; and (iv)
modifications or derivative works that are created by SSG and/or incorporated by
SSG into products unless prior to creation and/or incorporation SSG knows that
such modifications or derivative works fall outside the scope of its licenses
hereunder. SSG further agrees that with respect to any technology subject to
Section (iv) immediately above or
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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any Intellectual Property Rights in such technology, SSG shall have no right to
use, transfer, assign, license or otherwise exploit in any manner any portion
thereof for any purpose whatsoever unless SSG shall have first negotiated and
obtained on terms acceptable to InterTrust and SSG in their discretion a
cooperative use agreement with InterTrust therefor.
8.3 Joint Ownership. The Parties may from time to time discuss and
---------------
mutually agree in writing upon the division of ownership rights appropriate for
a Cooperative Application as to be set forth in the applicable Cooperative
Application Project Plan in accordance with Section 4.1 hereof. Except as
otherwise set forth in a Cooperative Application Project Plan or otherwise
expressly provided herein, to the extent any Intellectual Property or tangible
embodiment thereof (the "Joint Intellectual Property") is deemed by applicable
---------------------------
law to be jointly created by the Parties under this Agreement, InterTrust and
SSG shall jointly own such Joint Intellectual Property and neither Party shall
be required to account to the other Party for profits from any exploitation
thereof.
8.4 SSG License to InterTrust. In consideration of the licenses granted,
-------------------------
and other consideration provided, by InterTrust to SSG under this Agreement,
during the term of this Agreement, SSG hereby grants to InterTrust, its
Affiliates, and their successors, assigns, and direct and indirect customers a
nonexclusive, royalty-free and worldwide license under the Intellectual Property
Rights of SSG (i) to make, have made, use, sell, offer for sale, import,
distribute and/or otherwise exploit any products or perform any services
directly relating to the InterTrust and/or DigiBox Technology, but solely to the
extent that such activities would, but for such license, infringe any patent
rights of SSG, or its sublicensees; (ii) to use Cooperative Applications and SSG
Products solely in connection with InterTrust's internal development of any
product or performance of any services; and (iii) to make, have made, use, sell,
offer for sale, import, distribute and/or otherwise exploit any products or
perform any services directly relating to electronic rights management,
distributed electronic event management, or distributed operating system
technology, but solely to the extent that, but for such license, such products
or services would infringe any claims of a patent disclosing and/or claiming any
Modified Technology.
ARTICLE 9. PROMOTION AND MARKETING
9.1 Joint Press Release. Promptly after the Effective Date, the Parties
-------------------
shall work together to publicly issue one or more mutually agreeable press
releases disclosing the existence of this Agreement (but excluding any reference
to either Party's [*] set forth in Article 10 hereof), describing the Parties'
intentions to develop important electronic commerce industry standards,
services, and technology and generally promoting the InterTrust Technology and
the InterTrust secure, general purpose interoperable commerce environment, SSG
Products, and InterTrust related services of SSG (the "Joint Press Releases").
--------------------
Unless otherwise agreed in writing, all further public disclosures by either
Party concerning the subject matter of the Joint Press Releases shall be
consistent with the content of the Joint Press Releases. All other public
disclosures with respect to the terms hereof shall be made in accordance with
Section 11.5.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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9.2 Promotion and Marketing. The Parties shall jointly participate in
-----------------------
and, in addition to the Marketing Program commitments set forth in Section 9.3,
from time to time (as they may agree) fund, promotional, marketing, and sales
activities designed to: (i) increase industry awareness of both InterTrust and
InterTrust Technology, including in particular InterTrust, and SSG, SSG Products
and any associated services, any other InterTrust Compliant products or services
marketed and labeled under a SOFTBANK or SOFTBANK Affiliate trademark as
provided herein, and Cooperative Applications and any services associated
therewith; (ii) attract content developers and users; (iii) encourage the
development of tools and applications that employ InterTrust Technology, SSG
Products and Cooperative Applications; (iv) identify potential InterTrust
related development and/or licensing partners for InterTrust and/or SSG and/or
other SOFTBANK Affiliates, as appropriate; and (v) encourage broad adoption of
InterTrust Technology in the industry. At no time shall SSG make any
representation or warranty to any Person materially inconsistent with: (a)
InterTrust Specifications or Documentation; or (b) the efforts of the Parties
with respect to promotion, marketing or other matters under this Agreement.
9.3 Marketing Program. SSG shall conduct a marketing program, commencing
-----------------
promptly following the Effective Date and continuing through the period six (6)
months after SSG's first commercial distribution or use of any SSG Product or
related service (the "Marketing Project Period") to promote InterTrust Commerce
------------------------
Technology-based products and services as follows:
(a) Prior to October 1, 1996, SSG, with InterTrust's assistance,
shall develop a detailed outline for the marketing program (the "Marketing
---------
Outline"), which shall be subject to each Party's reasonable approval. The
-------
Marketing Outline will set forth, at a minimum, detailed proposed Marketing
Activities (as defined below) on a quarterly basis, and a proposed
schedule, budget, and expense allocation (the "Allocated Expenses") for
--------- --------
SSG's cooperative marketing efforts in connection with the Marketing
Activities (such allocation to include, as mutually and reasonably agreed
by the Parties, pro rata portions of overhead and expenses as appropriate).
(b) The Marketing Outline shall include, at minimum, the following
activities, and other activities as the Parties may agree (collectively,
the "Marketing Activities"): (i) advertisement of InterTrust prominently
--------------------
in conjunction with SSG-advertised electronic commerce activities of SSG
products and/or services; (ii) prominent placement on SSG's, and, as
relevant, SOFTBANK Affiliates' primary world wide web page(s) of the
InterTrust logo and such other reasonable, limited marketing statements
that InterTrust may provide to SSG and that are mutually agreeable to both
Parties; and (iii) such other activities as the Parties may mutually agree
in order to feature InterTrust, such as utilization of the marketing and
promotional means of certain SSG and/or SOFTBANK Affiliates (such as, for
example, Phoenix Publishing Systems, Inc., SOFTBANK COMDEX Inc., and Ziff
Xxxxx Publishing Company)
(c) During the Marketing Project Period, SSG shall directly expend at
least [*] dollars (US$[*]) in Allocated Expenses to carry out the
activities set forth in the Marketing Outline. Such expenditure shall be
deemed to be a material obligation of SSG hereunder. If at the end of the
Marketing Project Period SSG has spent less than [*] dollars (US$[*])
pursuant to the marketing program (the
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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amount so spent subtracted from $[*] constituting the "Deficit Amount"),
--------------
SSG shall pay the entirety of such Deficit Amount directly to InterTrust
within thirty (30) days of the end of the Marketing Project Period.
9.4 Technology Advisory Committee. To further strategic opportunities
-----------------------------
among the Parties and to encourage feedback concerning InterTrust Technology,
InterTrust currently intends to establish a committee limited to representatives
of: (i) leading companies chosen from certain technology, financial and/or
content industry companies that have close technology strategic relationships
with InterTrust; and (ii) certain leading experts in technology or business
applicable to information and electronic commerce (the "Technology Advisory
-------------------
Committee"). The Technology Advisory Committee will meet regularly at a forum
---------
to be selected by InterTrust for the purpose of discussing and exchanging ideas
for improving the functionality, interoperability, and market acceptability of
InterTrust Technology and related issues pertaining to the electronic commerce
industry. Upon the establishment of the Technology Advisory Committee: (a)
InterTrust shall grant SSG the right to have one seat as a member thereof for a
period of three (3) years; and (b) SSG shall promptly elect and notify
InterTrust of its designation of an executive (who may be an employee of SSG,
SOFTBANK, or an Affiliate) to serve on such committee. SSG shall: (1) be
responsible for all acts and omissions of the representative in connection with
the Technology Advisory Committee; and (2) pay for all expenses incurred by SSG
in connection with participation on such Committee. SSG and its representative
shall abide by all commercially reasonable rules and policies established by
InterTrust for the Technology Advisory Committee. Notwithstanding the foregoing
portion of this Section 9.4, SSG membership on the Technology Advisory Committee
shall be subject to termination (in InterTrust's sole discretion) in the event
that: (A) SSG's representative materially fails to comply with any of the rules
established by InterTrust for the Technology Advisory Committee; (B) SSG
materially breaches any of its representations, warranties or obligations under
this Agreement; (C) SOFTBANK and/or UCA sells or transfers all or any portion of
InterTrust securities obtained pursuant to the Stock Purchase Warrant Agreements
to an initial public offering of InterTrust's securities); (D) SSG engages in
any activities that materially conflict with InterTrust's interests; or (E)
InterTrust, in its discretion, dissolves or discontinues the Technology Advisory
Committee.
ARTICLE 10. [*].
10.1 [*]. In consideration for [*] obligations hereunder, [*] pursuant
to Section 10.2, and the funds to be [*] to [*] and [*], [*] agrees to the
following [*] (the [*]). Without obtaining the express prior written consent of
[*], which consent [*] may grant or deny in its sole discretion, commencing on
the Effective Date and continuing until [*] months after the date on which [*]
provides its [*] ([*]) product to [*] (the [*]), [*] shall refrain from [*] to
any of the entities listed on Exhibit [*] hereto a [*] under the [*] to perform
[*] and [*] services in connection with the administration of the distribution
and use of [*] (i.e., personal and business [*] and [*]) ([*]). The [*] shall
not in any way be construed to extend beyond the narrow scope
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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herein provided, including, but not limited to, any of the excluded areas
("Excluded Areas") set forth on Exhibit [*] hereto. Such First Period may be
----------------
extended for a period of time ending [*] ([*]) months from the Effective
Date (the "Additional Period"), to the extent that [*] executes an agreement
-----------------
with [*], or three (3) of [*]s five (5) largest [*] customers (as determined on
a [*]-received revenue basis), whereby [*] or such [*] customers adopt, as a
primary means of electronic distribution of its [*] products or as its [*]
system, [*] in the form of [*], [*] and/or [*] or wherein each such applicable
company commits to incorporate [*] packaging and/or viewing capabilities in such
companies' software application products (including update and update releases,
as well as product reconfigurations and modifications thereof) that in the
aggregate exceed [*] ([*]) [*] units (including application products and client
software) shipped annually (based on annualized volumes measured in the highest
volume quarter for such units within the previous five (5) calendar quarters
preceding such agreement, or reasonably projected for such units in the next
four (4) calendar quarters if such application product has not been shipped in
each of the previous five (5) quarters). The Additional Period shall cease
immediately (i) upon a failure by [*] to [*] ($[*]) in the aggregate in the
technical development and/or promotion and sale of [*] or [*] directly related
to supporting [*] services on or before the first anniversary of [*]s receipt
of [*] (such amount to be calculated in accordance with generally accepted US
accounting principles consistently applied (GAAP) and excluding any fees or [*]
to [*] pursuant to this Agreement) or (ii) should [*] fail to commercially
release a [*] on or before [*] ([*]) months after [*] has provided [*] with its
[*] ([*]). [*] may, at any time, relieve itself of all of the obligations set
forth in this Section 10.1 by, at its discretion, either: (a) [*] to [*] an
amount equal to twice [*] (the Direct Expenses) incurred, limited to the amount
---------------
of money that [*] can demonstrate through financial records (kept in accordance
with GAAP) that it has directly expended in connection with the technical
development or promotion and sale of [*] or [*] as contemplated hereunder,
provided that such payment amount shall not exceed [*] dollars ($[*]) in the
aggregate; or (ii) transferring to [*] (at no cost) [*] shares of [*], such type
of [*] being [*]or a more [*], and otherwise the type of [*] being within [*]s
sole reasonable commercial discretion, and the method of transfer being such
method as upon which the Parties may agree in the exercise of their discretion.
Notwithstanding the foregoing, in the event that [*] chooses to [*] such [*]
shares to [*] and the [*] of such [*], as determined by [*]s board of directors
in the exercise of good faith, is less than the Direct Expenses, [*] shall [*]
to [*] an amount equivalent in [*] and/or the [*] equal to the difference
between the amount of the Direct Expenses and such [*] of such [*]. To the
extent [*] complies with this Section 10.1, [*] shall not be restricted from [*]
or [*] any technology or Intellectual Property to [*].
10.2 [*]. In partial consideration for: (i) [*]s performance of its
obligations hereunder, including providing to [*] material access to
confidential [*] and [*]; (ii) the rights granted to [*] hereunder; and (iii)
[*] to [*] as set forth in Section 10.1 hereof, [*] agrees to the following
partnering commitment (the "SSG [*]"). Without obtaining the express prior
---
written consent of a [*]
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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[*] (as defined in Section [*] hereof), which consent [*] may grant or deny in
its sole discretion, during the First Period, [*] shall: (a) [*] use the [*] as
its [*] and [*] solution and refrain from performing any transactions or
engaging in the creation of any business relationships relating to [*] other
than those employing the [*]; and (b) [*] in, [*], or [*] the development, use
or exploitation of any technology or products (other than the [*]) that contain
or include any [*] of the [*] set forth in the [*] as described in Exhibit [*]
attached hereto. With respect to the subject matter of subparagraph (b)
immediately above, the First Period shall automatically (and without any further
action) be extended for a period ending [*] ([*]) months from the Effective
Date. Notwithstanding the foregoing: (1) any obligation pursuant to this Section
10.2 shall immediately cease, at [*]s option (upon the agreement of both [*] and
[*]), if [*] has not provided the [*] to [*] by the end of the second quarter
(Q2) 1997; and (2) after such First Period, [*] in, [*], or [*] the development,
use or exploitation of (A) any technology or products, so long as such
technology or products do not include, and are not specially adapted to enable,
any material portion of the [*] and (B) any technology or products that include,
or are specially adapted to enable, any material portion of the [*] to the
extent that such [*] may be incorporated by [*] in [*] or rightfully provided to
[*] by another [*], and whereby such right to use said [*] is derived
exclusively from and used solely pursuant to this Agreement, or from such other
[*] as expressly allowed in its [*] with [*]. To the extent [*] complies with
this Section 10.2, [*] shall not be restricted from developing or pursuing any
business models or activities consistent with its licenses hereunder with any
Person.
10.3 Additional Provisions. Any material breach of the foregoing
---------------------
provisions by a Party shall be subject to the specific remedies set forth in
Section 13.3, in addition to other remedies available to the other party under
this Agreement, at law, or in equity. If one Party has been relieved of its [*]
as set forth in this Article 10, the other Party shall be relieved of its [*] as
well. In all events (except pursuant to Section 15.4 hereof), neither Party's
[*] to the other shall extend beyond [*] ([*]) months after the Effective Date.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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ARTICLE 11. CONFIDENTIALITY.
11.1 Classification of Technology and Documents For Confidentiality
--------------------------------------------------------------
Purposes. For ease in complying with the terms of this Article 11, information
--------
and documents to be exchanged by the Parties shall be marked, as appropriate, to
identify the confidential or nonconfidential nature of the information. As
regards InterTrust Technology (including Documentation) and other documents or
information provided by InterTrust to SSG hereunder, such information shall be
marked or indicated as: (i) "Unclassified"; (ii) "Confidential"; or (iii) "Top
Secret." SSG information shall be marked as: (a) "Unclassified" or (b)
"Confidential." A Party and its authorized personnel shall exercise careful
judgment when they are in possession of information of the other Party that has
not been marked or indicated with one of the above-described classifications.
If any information provided by one Party has not been marked or indicated as
above and is not known with certainty by the receiving Party to have been either
publicly released or otherwise classified as "Unclassified," then such other
Party, its employees and any other person authorized to possess such information
shall treat such information as "Confidential" except information provided by
InterTrust relating to security capabilities, trustedness, and architecture (or
design) integrity of the InterTrust Technology, which shall be considered to be
"Top Secret" and shall be handled as provided by Section 11.2(b) hereof.
11.2 InterTrust Information.
----------------------
(a) Confidential Information. To the extent that SSG receives from
------------------------
InterTrust under this Agreement any InterTrust Technology or any other
information or technology that is marked "Confidential" when disclosed in
written form, or indicated as "Confidential" when disclosed orally
("InterTrust Confidential Information"), SSG shall hold such InterTrust
-------------------------------------
Confidential Information in strict confidence and in a manner that: (i) is
sufficiently secure for the character and content of the InterTrust
Confidential Information; and (ii) is not less secure than procedures used
by SSG to protect its comparably important information and technology. SSG
shall not, without InterTrust's prior written consent, use, disclose,
provide or otherwise make available any InterTrust Confidential Information
to any person, except to any employee, director, consultant, agent or
professional consultant ("Agents") of SSG or one or more of SSG's permitted
------
sublicensees as authorized under the terms and conditions of this
Agreement, and their Agents of which each shall operate under the same
restrictions as SSG. Furthermore, in each case of disclosure to an Agent
of SSG or an authorized sublicensee, access to such InterTrust Confidential
Information shall be allowed only to Agents who have a reasonable need to
know such InterTrust Confidential Information, and then only to the extent
necessary to enable SSG or any such authorized sublicensee to use
InterTrust Confidential Information solely to exercise its license (or
sublicense) hereunder and/or as expressly allowed hereunder. SSG and any
such sublicensees, as the case may be, shall: (a) require their Agents
having access to any portion of InterTrust Confidential Information to
strictly maintain its confidentiality; and (b) ensure that each such Agent
shall have executed with SSG and/or an authorized sublicensee (as
applicable) a written non-disclosure/non-use agreement in the form set
forth on Exhibit G at all hereto or as subsequently provided by InterTrust,
or SSG's or such sublicensee's applicable form agreement which shall
effectively and comparably bind such Agent to the same scope as
InterTrust's form agreement, and which SSG's or sublicensee's form
agreement shall be subject to InterTrust's reasonable prior written
approval. SSG shall notify InterTrust
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promptly in writing of any unauthorized disclosure or other misuse or
misappropriation of any portions of the InterTrust Confidential
Information. SSG and any sublicensee (as appropriate) shall be fully
responsible for any breach of SSG's or sublicensees' obligations under this
Agreement by any Agent to whom such InterTrust Confidential Information has
been disclosed. Any obligation of SSG to keep InterTrust Confidential
Information in confidence shall expire thirty-six (36) months after
disclosure of such information by InterTrust to SSG.
(b) Top Secret Information. In order to protect InterTrust's rights,
----------------------
the rights of InterTrust licensees, and the secure interoperability and
reputation of InterTrust implementations, SSG shall treat any InterTrust
Technology or other confidential information that is either marked "Top
Secret" when disclosed in written form, or indicated as "Top Secret" when
disclosed orally ("Top Secret Information") in a manner not less secure
----------------------
than SSG's most secret information and, in all events in a manner
sufficient to reasonably ensure the security of such Top Secret
Information, given such great sensitivity of such Top Secret Information.
SSG shall allow disclosure of such Top Secret Information to no more than
[*] designated individual employees of SSG at any time (and to no
sublicensee Agents), each of whom has a direct need to know such
information or be exposed to such Top Secret Information (as agreed in each
case by InterTrust) and then only to the extent necessary for SSG to use
Top Secret Information solely to exercise its rights and perform its
obligations under this Agreement. SSG shall not substitute any employee
designated to receive Top Secret Information with another employee, unless
such designated employee's employment with SSG has been terminated and such
person is no longer able to serve the intended role. None of such
employees shall receive a disclosure of any such Top Secret Information
until: (i) such employee becomes bound by personally executing an
InterTrust Top Secrecy Agreement (in the form set forth in Exhibit G hereto
or as subsequently provided by InterTrust) covering such information and
exposure; and (ii) an original executed copy of such agreement is received
by InterTrust, with return receipt provided to SSG, which such receipt may
be provided by fax communication if so requested in writing.
Notwithstanding the foregoing, SSG and SSG employees described above shall
make no physical embodiments (for example, any reproduction or copy,
including descriptive notes) whatsoever of Top Secret Information, without
the prior express written authorization from InterTrust's Chairman of
Board, President or any other InterTrust Officer designated in a written
communication to SSG signed by InterTrust's Chairman of the Board (the
"Designated Officers"), nor shall SSG or such SSG employees disclose any
--------------------
Top Secret Information to any Person, except as described in this Section
11.2(b). If SSG becomes aware that any Top Secret Information has been
disclosed or treated other than as set forth in this Section 11.2(b),
and/or as specified in a Top Secrecy Agreement, SSG shall immediately
inform InterTrust of such occurrence and take immediate steps to correct
such compromise. SSG shall maintain a log of the employees accessing and
location of all originals and other tangible embodiments of all Top Secret
Information. SSG shall be fully responsible for any breach by any SSG
employee of this Agreement related to the unauthorized use or disclosure of
Top Secret Information.
11.3 SSG Information. To the extent that InterTrust receives SSG
---------------
confidential information that is either marked "confidential" when disclosed in
written form or indicated as "confidential" when disclosed orally ("SSG
---
Confidential Information"), under this Agreement,
------------------------
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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InterTrust shall hold said SSG Confidential Information in confidence in a
manner that is sufficiently secure for the character and content of the
information and under no circumstances shall such SSG Confidential Information
be held in a manner that is less secure than procedures used by InterTrust in
connection with its comparably important information. Except as to the
disclosure by SSG of the Modified Technology or such disclosures inherent in the
Certification Testing of SSG Products, Cooperative Applications and/or any
associated services pursuant hereto and only to the extent expressly specified
by InterTrust Specifications, SSG shall not disclose or otherwise provide or
make available any SSG Confidential Information which is directly related to
InterTrust Technology and InterTrust's business activities, without first
acquiring written approval from a Designated Officer of InterTrust. InterTrust
shall not use, disclose, provide or otherwise make available any SSG
Confidential Information it has received in any form to any person except an
Agent of InterTrust. In a disclosure to Agents of InterTrust, access to SSG
Confidential Information shall be allowed only to Agents who have a reasonable
need to know such confidential information and only to the extent necessary to
enable InterTrust to use confidential information to exercise its rights and
perform its obligations hereunder. InterTrust shall: (a) require its Agents
having access to any portion of confidential information to strictly maintain
its confidentiality; and (b) ensure that each such Agent shall have executed
with InterTrust a written non-disclosure/non-use agreement provided by SSG, or
InterTrust's applicable form agreement which shall effectively and comparably
bind such Agent to the same scope as SSG's form agreement, and which InterTrust
form agreement shall be subject to SSG's reasonable prior written approval. Upon
such approval the SSG form agreement will be attached as an Exhibit hereto.
InterTrust agrees to notify SSG promptly in writing of any unauthorized
disclosure or other misuse or misappropriation of SSG Confidential Information
provided to InterTrust which may come to the attention of an InterTrust officer.
InterTrust shall be fully responsible for any breach of InterTrust's obligations
under this Agreement by any Agent to whom such SSG Confidential Information has
been disclosed. Any obligation of InterTrust to keep SSG information in
confidence shall expire thirty-six (36) months after disclosure of such
information by SSG to InterTrust.
11.4 Exceptions. Notwithstanding the provisions of Sections 11.2 and 11.3
----------
above, and except as to "Top Secret" information as provided in Section 11.2(b),
the confidentiality restrictions herein shall not apply to information that the
recipient thereof can demonstrate: (i) is or becomes generally known to the
public through no breach of any of these obligations, as of the date such
information becomes so known; (ii) is or shall have been independently developed
by such recipient by employees who had no access to such information; or (iii)
is or shall have been rightfully received, with no obligation of confidentiality
or non-use, by such recipient from any Person (other than as a result of another
Person's breach of an obligation of confidentiality to the discloser of such
information), as of the date such information is so received. In the event any
Party is required by law, regulation or order of a court or other authority of
competent jurisdiction to disclose the other Party's Confidential Information,
such Party shall notify such other Party as promptly as possible, and shall,
upon such other Party's request, reasonably assist in challenging or restricting
the scope of such required disclosure. Top Secret information may be disclosed
only upon InterTrust's prior written approval. In all events, a Party subject
to such required disclosure shall disclose only such information that is
strictly required pursuant thereto and no further information.
11.5 Confidentiality of Agreement and Publicity. Except as otherwise
------------------------------------------
provided in Sections 9.1 and 11.4 hereof, neither Party hereto shall at any
time, without the prior written
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CONFIDENTIAL
consent of the other Party, disclose the specific details of the terms and
conditions of this Agreement to any Person, other than: (i) Agents having a
substantial need to know; (ii) as required by law in connection with any initial
public offering of securities pursuant to a registration under the Securities
Act of 1933, as amended (an "IPO") (iii) investors holding approximately one
percent (1%) or more of the outstanding equity shares of such Party prior to an
IPO and having no reasonably anticipated conflict of interest with the
disclosing party; (iv) potential investors who may purchase approximately one
percent (1%) or more of the outstanding equity shares of such Party prior to an
IPO and having no reasonably anticipated conflict of interest with the
disclosing party; and/or (v) financial institutions, professional advisors
and/or other consultants having a reasonable need to know and having no
reasonably anticipated conflict of interest with the disclosing party. In each
and every case set forth above, the receiving Person shall be bound by a
confidentiality agreement sufficient in scope to protect the Parties' rights and
interests hereunder. Notwithstanding the foregoing provisions of this Section
11.5: (a) either Party may publicly discuss or otherwise disclose that an
agreement exists between the Parties to develop InterTrust Compliant electronic
commerce industry standards, products and services, but may provide no further
material details as to the specific activities or commitments of the other Party
without the prior written consent of the other Party; and (b) either Party may
make such disclosures to the extent permitted under this Section 11.5 in order
to comply with its obligations or enforce its rights under this Agreement.
11.6 Confidentiality of Payments, Audit and Certification Testing. All
------------------------------------------------------------
information received during an audit or pursuant to a Certification Program as
provided herein, all information concerning Certification Testing (including any
results thereof and any information received pursuant to any Certification
Testing), and all payment information received pursuant to this Agreement, shall
be treated as confidential information pursuant to Sections 11.2(a), 11.3 and
11.4 hereof. Notwithstanding the foregoing, information concerning whether a
SSG Product, Cooperative Application or an associated services being
disseminated or used in commerce is Compliant with InterTrust Specifications
shall not be treated as confidential information under any provision of this
Agreement.
11.7 NDA. Subject to the provisions of this Article 11, upon the Effective
---
Date of this Agreement, information relating to the subject matter of this
Agreement, when disclosed after the Effective Date shall be covered by the
confidentiality provisions of this Article 11. Any information disclosed
relating to the subject matter of this Agreement when disclosed prior to the
Effective Date or relating to subject matter outside of this Agreement shall be
covered under the Non-Disclosure/Non-Use Agreement between InterTrust and
SOFTBANK dated March 6, 1996.
ARTICLE 12. REPRESENTATIONS AND WARRANTIES.
12.1 Representations and Warranties of Both Parties. Each Party hereto
----------------------------------------------
represents and warrants to the other Party that as of the Effective Date:
(a) such Party is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction in which it is
organized, with full corporate power and authority to carry on its business
as it is now being conducted;
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CONFIDENTIAL
(b) the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by such Party. No other corporate or shareholder action or other
proceeding on the part of such Party or its shareholders is necessary to
authorize this Agreement and the consummation of the transactions
contemplated hereby;
(c) this Agreement constitutes a valid and binding obligation of
such Party, enforceable against such Party in accordance with its terms,
except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or similar laws now or hereafter in effect
relating to creditors' rights; and
(d) neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the charter or organizational documents of such
Party.
12.2 Representations and Warranties of InterTrust. In addition to Section
--------------------------------------------
12.1 above, InterTrust represents and warrants to SSG that as of the Effective
Date:
(a) InterTrust owns or has the right to grant the licenses hereunder
with respect to the InterTrust Technology and the Licensed Rights; and
(b) to InterTrust's knowledge, neither the InterTrust Technology nor
the Licensed Rights infringe any Person's valid U.S. patent, copyright, or
trade secret right, and no claims or allegations of any such infringement
have been made (except as disclosed by InterTrust to SSG), PROVIDED THAT
-------- ----
INTERTRUST MAKES NO WARRANTY WITH RESPECT TO THE INFRINGEMENT OF ANY
TRADEMARK RIGHTS, OR ANY PATENT RIGHTS OTHER THAN THE FOREGOING
REPRESENTATION THAT IT IS UNAWARE OF ANY SUCH INFRINGEMENT.
12.3 Limitation. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE
----------
CONTRARY: (i) THE INTERTRUST TECHNOLOGY PRODUCTS ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT; AND (ii) THE ENTIRE RISK AS TO THE QUALITY, ACCURACY,
INFRINGEMENT AND PERFORMANCE OF THE INTERTRUST TECHNOLOGY PRODUCTS IS WITH SSG.
INTERTRUST DOES NOT WARRANT THAT INTERTRUST TECHNOLOGY OR THE INTERTRUST
TECHNOLOGY PRODUCTS WILL MEET SSG'S PRODUCTS OR THOSE OF ANY THIRD PARTY AND, IN
PARTICULAR, INTERTRUST DOES NOT WARRANT THAT THE INTERTRUST TECHNOLOGY PRODUCTS
WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
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ARTICLE 13. INDEMNIFICATION AND REMEDIES.
13.1 Indemnification.
---------------
(a) InterTrust Indemnification. InterTrust shall indemnify and hold
--------------------------
SSG and its employees, officers and directors (the "SSG Parties") harmless
-----------
from any and all liability, judgments, costs, damages, claims, suits,
actions, proceedings, expenses and/or other losses, including reasonable
attorneys' fees (collectively, "Claims") or portions thereof, to the extent
------
awarded by a court of competent jurisdiction or pursuant to a settlement as
provided hereunder, resulting from controversies or litigation asserted by
any Person against the SSG Parties arising directly or indirectly from:
(i) InterTrust's breach of any of its obligations under this Agreement, or
its representations and warranties set forth in Article 12; and (ii) SSG's
proper use of InterTrust Trademarks as set forth herein; provided, however,
-------- -------
that, with respect to InterTrust's representations under Section 12.2(b),
----
12.2(b) hereof, this indemnity does not extend to any Claim relating to:
(1) any Modified Technology or other modifications thereto made by SSG or
any Person or combinations of the InterTrust Technology with any product,
technology or service of SSG or of any Person where such Claim would have
been avoided in the absence of such modification or combination; or (2) the
use of any InterTrust Technology in any manner inconsistent with InterTrust
Specifications or Documentation (collectively, the "Indemnification
---------------
Exclusions").
----------
(b) SSG Indemnification. Each of UCA and SIS shall jointly and
-------------------
severally indemnify and hold InterTrust, its employees, officers and
directors (the "InterTrust Parties") harmless from any and all Claims or
------------------
portions thereof to the extent awarded by a court of competent jurisdiction
or pursuant to a settlement as provided hereunder, resulting from
controversies or litigation asserted by any Person against the InterTrust
Parties arising directly or indirectly from: (i) SSG's or any of its
sublicensees' breach of any of its obligations, representations or
warranties hereunder; (ii) InterTrust's proper use of SSG Trademarks as set
forth herein; (iii) the design, manufacture, use, distribution and/or
disposition by or for SSG of Modified Technology, Cooperative Applications
or SSG Products, or performance of any service associated therewith, that
would not have otherwise arisen out of SSG's use of the InterTrust
Technology alone, except to the extent SSG is indemnified by InterTrust
under Section 13.1(a) hereof; (iv) any Claim relating to the
Indemnification Exclusions; and (v) any exercise by SSG or any of its
sublicensees of the licenses hereunder that would not have otherwise arisen
out of SSG's use of the InterTrust Technology alone, except to the extent
SSG is indemnified by InterTrust under Section 13.1(a) hereof.
(c) Third Party Claims. In case any Claim is brought by a third
party for which Claim indemnification is or may be provided hereunder the
indemnified Party shall provide prompt written notice thereof to the other
Party. Where obligated to indemnify such Claim, the indemnifying Party
shall, upon the demand and at the option of the indemnified Party, assume
the defense thereof (at the expense of the indemnifying Party) within
thirty (30) days or at least ten (10) days prior to the time a response is
due in such case, whichever occurs first, or, alternatively upon the demand
and at the option of the indemnified Party, pay to such Party all
reasonable costs and expenses, including reasonable attorneys' fees,
incurred by such Party in defending itself. The Parties shall
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cooperate reasonably with each other in the defense of any Claim,
including making available (under seal if desired, and if allowed) all
records reasonably necessary to the defense of such Claim, and the
indemnified Party shall have the right to join and participate actively
in the indemnifying Party's defense of the Claim. Notwithstanding the
foregoing (and any other section of this Agreement), it is understood and
acknowledged that InterTrust need not under any circumstance provide Top
Secret Information related to the security capabilities of InterTrust
Technology to any Person. Each Party shall be entitled to prior notice of
any settlement of any Claim to be entered into by the other Party and to
reasonable approval of a settlement to the extent such Party's rights
would be directly and materially impaired. Without limiting the
foregoing, in the event of any Claim or threatened Claim of [*] involving
a portion of the [*]: (a) upon SSG's request and at SSG's expense,
InterTrust will attempt to [*] the [*] or [*] SSG to continue to [*] and
[*] in accordance with the terms hereof such portion of [*] on [*] to
InterTrust (except that SSG may reasonably approve any terms relating to
payment of any fees or royalties); or (b) at InterTrust's sole
discretion, InterTrust may [*], [*] or [*] any [*] of the [*], as the
case may be, so as to make [*] of the [*] while maintaining [*] of [*] or
[*] of the [*] that are material to SSG's then-current or demonstrably
anticipated use of such technology. If options (a) and (b) are not [*] as
to such portion: (1) SSG may terminate the licenses granted hereunder in
its sole discretion; and (2) to the extent InterTrust used reasonable
commercial efforts to obtain a license or modify the technology as set
forth in subsections (a) or (b), and InterTrust is reasonably exposed to
liability from SSG's or its sublicensee's continued use of such portion
of InterTrust Technology, InterTrust may in its discretion terminate the
licenses granted hereunder with respect to such portion.
13.2 Cumulative Remedies. Except as expressly provided herein to the
-------------------
contrary, no remedy made available to a Party by any of the provisions of this
Agreement is intended to be exclusive of any other remedy, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
13.3 Equitable Remedies. Each Party agrees that it may be impossible or
------------------
inadequate to measure and calculate a Party's damages from any breach of the
covenants set forth in Sections 5.3, 5.4, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 7.6,
10.1, 10.2, 15.3, 16.5 and 16.8 and Articles 8 and 11 hereof. Accordingly, each
Party agrees that if it or any of such Party's Agents thereof breach or threaten
a breach or anticipatory repudiation of any of such provisions, in addition to
any other right or remedy available, the other Party shall be entitled: (i) to
obtain an injunction against the breaching Party and such Party's Agents
thereof, from a court of competent jurisdiction restraining such breach or
threatened breach; and (ii) to specific performance of any such provision of
this Agreement. In addition, each Party agrees that, in the event a Party
breaches any of its [*] under Article 10 to the other Party, the non-breaching
Party shall be entitled, in addition to any other remedies available at law or
in equity, to extend the [*] by the amount of time left on such period
(measured from the later of the date such breach is admitted by breaching
Party or established by a final judgment
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL
pursuant to which all appeal rights have been exhausted), and each Party hereby
irrevocably agrees to an award of specific performance of such provision in the
other Party's favor.
ARTICLE 14. EXCLUSION OF DAMAGES.
EXCEPT AS SET FORTH IN THE IMMEDIATELY FOLLOWING SENTENCE, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY, ITS AGENTS, AFFILIATES, CUSTOMERS, OR ANY
OTHER PERSONS, FOR ANY LOST PROFITS, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES, ARISING OUT OF THE BREACH OF THIS AGREEMENT OTHER THAN UNDER ARTICLES
5, 8 AND 10. NOTWITHSTANDING THE IMMEDIATELY PRECEDING SENTENCE, A PARTY SHALL
BE LIABLE TO THE OTHER PARTY FOR ALL DAMAGES, INCLUDING LOST PROFITS,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES SUFFERED OR INCURRED BY THE OTHER
PARTY IN THE FOLLOWING CIRCUMSTANCES: (i) THE MISAPPROPRIATION OF TRADE SECRETS
OF THE DAMAGED PARTY BY THE LIABLE PARTY, OR ITS AGENTS; (ii) THE GROSS
NEGLIGENCE OF THE LIABLE PARTY, OR ITS AGENTS; (iii) THE WILLFUL MISCONDUCT OR
MATERIAL BREACH OF THIS AGREEMENT IN BAD FAITH BY THE LIABLE PARTY, OR ITS
AGENTS; OR (iv) THE BREACH OF ARTICLES 5, 8 OR 10 HEREOF. IN ANY DISPUTE AS TO
DAMAGES, THE LIABLE PARTY SHALL BE REQUIRED TO PROVE THE ABSENCE OF MATERIAL
NEGLIGENCE, WILLFUL MISCONDUCT AND/OR INTENTIONAL MATERIAL BREACH OF THIS
AGREEMENT IN BAD FAITH, AS THE CASE MAY BE, REFERRED TO IN THE IMMEDIATELY
PRECEDING SENTENCE.
ARTICLE 15. TERM AND TERMINATION.
15.1 Agreement. This Agreement shall commence on the Effective Date and
---------
shall continue for a period of [*] ([*]) years therefrom unless and until
terminated earlier pursuant to Section 15.2. At the end of such [*] ([*]) year
term, this Agreement shall [*] renew for subsequent [*] year [*] unless [*] a
Party notifies the other in writing of its intent not to renew this Agreement
prior to sixty (60) days before the beginning of [*] such [*] year period.
15.2 Events of Termination. This Agreement, the licenses granted
---------------------
hereunder, and/or all Cooperative Application Project Plans shall be subject to
termination upon the occurrence of any of the following events and such other
provisions hereof expressly so stating (each, an "Event of Termination"):
--------------------
(a) If either Party, or, as relevant, any of its permitted
sublicensees, materially defaults on any of its material obligations under
this Agreement, the non-defaulting Party shall have the right, exercisable
in its sole discretion, to initiate a termination procedure under this
Agreement by written notice (sent in accordance with the provisions of
Section 16.6 hereof) describing with reasonable specificity the nature of
the default and requiring that such default be cured, wherein such
termination notice shall automatically result in termination unless: (i)
within [*] ([*]) calendar days of receiving such written notice of such
default (the "Cure Period"), the defaulting Party (or such sublicensee)
-----------
remedies the default; or (ii) in the case of a default that cannot with
xxxxxxx due diligence
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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be cured within the Cure Period, the defaulting Party or such sublicensee
institutes, by the date upon which one half of the Cure Period shall have
expired, steps necessary to remedy the default and thereafter employs best
efforts to diligently prosecute the same to completion. Notwithstanding the
foregoing, the Cure Period associated with SSG's breach of its payment
obligations in accordance with Section 7.1 shall be five (5) business days.
Notwithstanding any of the foregoing, a Party shall have the right both to
immediately terminate this Agreement and to obtain injunctive relief in the
event the other Party or any of its Agents or authorized sublicensees
engages in any: (a) intentional, material unauthorized use of technology
outside of the rights granted hereunder (or, in the case of SSG, any
unauthorized disclosure of InterTrust Top Secret Information) and/or (b)
willful, material unauthorized disclosure of Confidential Information.
Further notwithstanding the foregoing, in the event the Closing fails to
occur on or before August 19, 1996 pursuant to Section 2.1 hereof, SSG
shall be in material breach of this Agreement and InterTrust may
immediately, upon providing written notice to SSG and without opportunity
to cure, terminate this Agreement.
(b) By a Party at its option, effective immediately upon written
notice to the other Party, in the event of: (i) the filing by the other
Party of a petition in bankruptcy or insolvency; (ii) the appointment of a
receiver for the other Party for all or substantially all of its property
relevant to the business activities under this Agreement; (iii) the making
by the other Party of any assignment or attempted assignment for the
benefit of creditors for all or substantially all of its properties
relevant to its business activities under this Agreement; or (iv) the
institution of any proceedings for the liquidation or winding up of the
other Party's business or for the termination of its corporate charter, if
any such proceeding is not dismissed within one hundred and twenty (120)
days of institution;
(c) Upon written notice to SSG, InterTrust may immediately terminate
this Agreement in its sole discretion in the event SSG fails: (i) to
distribute SSG Products and/or Cooperative Applications within [*]
([*]) months from the date InterTrust first delivers the SDK 1.0 to SSG,
subject to any extension permitted under Section 6.1(a); (ii) to comply
with the terms of Section 10.2 hereof; (iii) to terminate any sublicense
pursuant to which the sublicensee thereunder materially defaults its
obligations under this Agreement for a period of [*] ([*]) days after the
date of written notice thereof from InterTrust or SSG, whichever is
earlier; or (iv) fails to timely make payments due under this Agreement on
two or more occasions over a [*] ([*]) month period. Upon written notice
to InterTrust, SSG may immediately terminate this Agreement in its sole
discretion in the event InterTrust fails to comply with the terms of
Section 10.1 hereof.
(d) A party to a Cooperative Application Project Plan shall have the
right to terminate such plan if the other party thereto materially breaches
any of its material obligations thereunder.
15.3 Effect of Termination. Upon the expiration or termination hereof: (i)
---------------------
all licenses granted hereunder, all sublicenses granted by SSG pursuant to
Section 5.2, and all cooperative development efforts then being conducted
pursuant to all Cooperative Application Project Plans shall automatically
terminate; (ii) InterTrust shall have the right to retain all sums already paid
by SSG (and all SSG sublicensees) hereunder, and SSG (and all SSG sublicensees)
shall pay to
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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InterTrust all sums accrued but unpaid within thirty (30) days thereafter; and
(iii) SSG (and all SSG sublicensees) shall immediately discontinue use of
InterTrust Technology and/or the use of any portion of such InterTrust
Technology in any Modified Technology, and discontinue making, using, selling or
otherwise transferring or exploiting any product or service that in the absence
of a license hereunder would infringe any InterTrust Intellectual Property
Rights (including termination of distribution of Cooperative Applications and
SSG Products and any associated services); provided, however, that all licenses
-------- ------- ----
granted to end-users pursuant to the then-existing Customer Agreements solely
for Applications Products shall continue in full force and effect in accordance
with the terms thereof (provided that such licenses do not provide any rights to
such end-users with respect to Clearinghouse Functions, other than as expressly
provided hereunder). Each Party shall deliver to the other Party within ten (10)
days from the date of termination of this Agreement all copies of all materials
protected as confidential information or Top Secret Information under this
Agreement, including all copies under its control of its sublicensees or their
Agents. Return of confidential information shall be by commercially secure means
as reasonably specified by the receiving Party. Return of Top Secret Information
shall be made, at InterTrust's option as designated by a Designated Officer by
written instruction to SSG: (a) by physical and secure pickup at SSG's offices
by an InterTrust officer designated in writing by such Designated Officer; or
(b) as otherwise may be determined by InterTrust in its discretion, as
commercially reasonable. Such delivery shall be during normal business hours and
in each instance to the hands of an InterTrust officer who receives a listing of
the contents of such delivery certified by an officer of SSG and audited and
countersigned by such InterTrust officer. Within one (1) month after the
termination of this Agreement, each Party will certify in writing to the other
Party that, to the best of its knowledge, all such materials and tangible
embodiments have been delivered to the other Party.
15.4 Survival. The respective rights and obligations of InterTrust and SSG
--------
under the provisions of Sections 5.4, 6.5, 7.6 (but only for a period of five
years), 8.1, 8.2, 8.3, 8.4 (but only provision (i) thereof), 15.3, this Section
15.4, and Articles 11, 13 and 16 hereof shall survive expiration or termination
of this Agreement. Section 10.1 shall survive termination to the extent the
Agreement is properly terminated by SSG due to a material breach of the
Agreement by InterTrust pursuant to Section 15.2(a) hereof. Sections 9.3(c) and
10.2 shall survive termination to the extent the Agreement is properly
terminated by InterTrust due to a material breach of the Agreement by SSG
pursuant to Section 15.2(a) hereof. In the event that such a termination
pursuant to Section 15.2(a) occurs prior to delivery of SDK 1.0, such [*] as
set forth in Sections 10.1 and 10.2, as applicable, shall run from the
Estimated date for delivery of such SDK as set forth on Exhibit B hereto as of
the Effective Date.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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ARTICLE 16. MISCELLANEOUS.
16.1 Governing Law. This Agreement, any and all actions arising out of or
-------------
in any manner affecting the interpretation of this Agreement, and any actions
between the Parties involving the InterTrust Technology, any InterTrust Property
and/or any Confidential or Top Secret Information ("Party Disputes") shall be
--------------
governed solely by, and construed solely in accordance with, the laws of the
United States of America and the Commonwealth of Virginia, excluding that body
of law relating to conflict of laws. The Parties hereby acknowledge and agree
that the Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement. To the extent permitted by law, the provisions of this
Agreement shall supersede any provisions of the Uniform Commercial Code as
adopted or made applicable to this Agreement in any competent jurisdiction.
16.2 Venue and Jurisdiction. In connection with any litigation between the
----------------------
Parties involving a Party Dispute, each Party hereby unconditionally and
irrevocably consents to the exclusive jurisdiction and venue, as relevant, in
the Courts of the Commonwealth of Virginia and in the U.S. Federal District
Court, located in the City of Alexandria, Virginia (or any direct successor
thereto), and irrevocably: (i) waives any objection whatsoever (including any
objection with respect to venue) that any Party may now or hereafter have to the
jurisdiction or venue of said courts; and (ii) irrevocably consents to the
service of process of said courts in any matter relating to this Agreement by
the mailing of process by registered or certified mail, postage prepaid, at the
addresses specified in this Agreement. If necessary, SSG shall appoint a
registered agent in the State of Virginia for acceptance of service of process
and/or other notices provided for under this Agreement and shall notify
InterTrust of the identity of such registered agent within thirty (30) days
after the Effective Date.
16.3 Compliance with Law and Export Controls. The Parties shall at all
---------------------------------------
times comply with all applicable U.S. and foreign federal, state, and local
laws, rules and regulations relating to the execution, delivery and performance
of this Agreement and to the InterTrust Technology Products and Modified
Technology. Additionally, SSG acknowledges that because one or more aspects of
the InterTrust Technology Products is likely to be subject to the export control
laws, regulations and requirements of the United States and other jurisdictions,
SSG Products and Cooperative Applications likely will require export and other
approvals as well. InterTrust shall use reasonable efforts at InterTrust's
expense, and SSG shall at InterTrust's request reasonably assist InterTrust at
SSG's expense, to obtain any license or other approval, if any, that may be
required for InterTrust to make the InterTrust Technology Products and/or
Documentation or information relating thereto available to and SSG or SOFTBANK
Affiliates. SSG shall, at SSG's expense, comply with all applicable laws
(including applicable U.S. export control laws and regulations) and obtain all
necessary governmental consents and approvals in connection with any sublicense
or with respect to the distribution of or export or re-export of the SSG
Products and Cooperative Applications (as well as other technology as expressly
permitted hereunder) that contain any part of the InterTrust Technology Products
or Modified Technology in accordance herewith. The Parties expressly agree that
any failure to obtain or any delay in obtaining such approval as to InterTrust
Technology or in connection with any SSG Product or Cooperative Application
shall not relieve SSG from its obligations under this Agreement. As relevant and
applicable, SSG and InterTrust shall: (a) promptly deliver to the other, as
available, documentation reasonably confirming that it has complied with its
responsibilities under this Section 16.3; and (b) obtain such consents and
approvals from appropriate governmental entities
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as reasonably determined to be necessary for such further distribution,
exportation or re-exportation.
16.4 Amendment or Modification. This Agreement may not be amended,
-------------------------
modified or supplemented by the Parties in any manner, except by an instrument
in writing signed by the President or Chairman of InterTrust and a duly
authorized officer of SSG.
16.5 No Assignment. Except as expressly provided in Section 5.2, SSG shall
-------------
not assign or transfer its rights or obligations hereunder, without InterTrust's
prior written consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, SSG shall be entitled to assign or transfer such
rights or obligations hereunder to a SOFTBANK Affiliate in connection with any
merger or sale of substantially all of SSG's assets or business related to this
Agreement to such SOFTBANK Affiliate without such InterTrust consent; provided
--------
that such SOFTBANK Affiliate does not own, control, or is not developing,
----
promoting, licensing or acquiring any Competitive Technology. InterTrust shall
not assign or transfer this Agreement or its rights or obligations hereunder to
any Person without SSG's prior written consent, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, InterTrust shall be
entitled to assign or transfer such rights or obligations hereunder in
connection with any merger or sale of substantially all of assets or business
related to this Agreement without such SSG consent. Subject to the foregoing,
this Agreement will benefit and bind the successors and permitted assigns of the
Parties. Any attempted transfer or assignment without such approval shall be
null and void ab initio and of no force or effect.
-- ------
16.6 Notices. Any notice or other communication to be given hereunder
-------
shall be in writing and shall be (as elected by the Party giving such notice):
(i) personally delivered; (ii) transmitted by postage prepaid registered or
certified airmail, return receipt requested; or (iii) by facsimile with a
confirmation copy deposited prepaid with an internationally recognized express
courier service. Unless otherwise provided herein, all notices shall be deemed
to have been duly given on: (a) the date of receipt (or if delivery is refused,
the date of such refusal) if delivered personally or by express courier; or (b)
ten (10) days after the date of posting if transmitted by mail. Notwithstanding
the foregoing, communication of Confidential Information or Top Secret
Information shall be governed by practices adequate to appropriately protect
such information regarding Top Secret Information or as may be specified herein
or in the future by InterTrust. Either Party may change its address for purposes
hereof on not less than three (3) days prior notice to the other Party. Notice
hereunder shall be directed:
If to SSG, to:
00 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn.: Xxx Xxxxxxxxx
Fax: (000) 000-0000
If to InterTrust, to:
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
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VP, Corporate Development and General Counsel
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
16.7 Waiver. Any provision of this Agreement may be waived by the Party
------
entitled to the benefit thereof. Neither Party shall be deemed, by any act or
omission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by, in the case of InterTrust, InterTrust's
President or Chairman, and in the case of SSG, a SSG authorized officer, and
then only to the extent specifically set forth in such writing. A waiver with
reference to one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to a subsequent event.
16.8 No Third Party Beneficiaries. Nothing express or implied in this
----------------------------
Agreement is intended to confer, nor shall anything herein confer, upon any
Customer or any Person other than the Parties and any respective successors or
permitted assigns of the Parties, any rights, remedies, obligations or
liabilities whatsoever. Notwithstanding the foregoing, to the extent permitted
by law, SSG grants InterTrust the right to enforce against any of SSG's
sublicenses the terms of the applicable sublicenses or agreements between SSG
and its sublicensees for the purpose of asserting SSG's rights in order to
protect and enforce InterTrust's rights to InterTrust Property and any other
InterTrust rights under this Agreement.
16.9 No Agency. Nothing herein contained shall be construed to constitute
---------
the Parties hereto as partners or joint venturers or the agent of the other
Party in any sense of those terms whatsoever. Neither Party assumes any
liability of the other Party nor shall have any authority to enter into any
binding obligation on behalf of the other Party.
16.10 Recovery of Costs and Expenses. If any Party to this Agreement
------------------------------
brings an action against the other Party to enforce its rights under this
Agreement, the prevailing Party shall be entitled to recover its costs and
expenses, including without limitation, reasonable attorneys' fees and costs
incurred in connection with such action, including any appeal of such action.
16.11 Severability. If the application of any provision or provisions of
------------
this Agreement to any particular facts or circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i) the
validity and enforceability of such provision or provisions as applied to any
other particular facts or circumstances and the validity of other provisions of
this Agreement shall not in any way be affected or impaired thereby; and (ii)
such provision or provisions shall be reformed without further action by the
Parties hereto and only to the extent necessary to make such provision or
provisions valid and enforceable when applied to such particular facts and
circumstances.
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16.12 Counterparts; Facsimiles. This Agreement may be executed in any
------------------------
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one and the
same instrument. Each Party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile copy
of this Agreement, including the signature pages hereto, shall be deemed to be
an original. Notwithstanding the foregoing, the Parties shall deliver original
execution copies of this Agreement to one another as soon as practicable
following execution thereof.
16.13 Force Majeure. Except as provided herein to the contrary, if, by
-------------
reason of labor dispute, strike, inability to obtain labor or materials, fire or
other action of the elements, accident, administrative or governmental
restriction or appropriation or other causes, whether like or unlike the
foregoing, beyond the reasonable control of a Party hereto, such Party is unable
to perform in whole or in part its obligations set forth in this Agreement, then
such Party shall be relieved of those obligations to the extent it is so unable
to perform, and such inability to perform, so caused, shall not make such Party
liable to the other Party. Notwithstanding the foregoing, in the event any such
cause delays either Party's performance of any of its material obligations under
this Agreement, the other Party may suspend its performance under this Agreement
for the period such delay continues. This Agreement may be terminated by notice
by the Party not seeking excuse from performance, if such event shall prevent
performance for longer than one hundred and twenty (120) days. The Party subject
to an event of force majeure shall use good faith efforts to comply as closely
as possible with the provisions of this Agreement and to avoid the effects of
such event to the extent possible.
16.14 Entire Agreement. This Agreement represents the entire agreement of
----------------
the Parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous agreements and understandings, written or oral between
the Parties with respect to the subject matter hereof (except as set forth in
Section 11.7 hereof).
[The following space is intentionally omitted]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first written above by the undersigned duly authorized.
INTERTRUST TECHNOLOGIES UPGRADE CORPORATION OF
CORPORATION AMERICA
By:_________________________ By:_________________________
Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxxxxxx
Title: Chairman and Chief Executive Title: Co-Chief Executive Officer
Officer
SOFTBANK HOLDINGS, INC., solely for the purposes
Of Section 2.1 hereof:
By:_________________________
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
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EXHIBIT C
TO THE TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
TRADEMARKS
----------
InterTrust Trademarks
---------------------
InterTrust
The InterTrust Logo
InterTrust Commerce Architecture
InterTrust Commerce Node
InterTrustworthy
DigiBox
NetTrust
Virtual Process Control
Electronic Value Chain Management
SSG Trademarks
--------------
C-1
CONFIDENTIAL
EXHIBIT E
TO THE TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
COOPERATIVE APPLICATION PROJECT PLAN
------------------------------------
As a general matter, a Cooperative Application Project Plan will: (i) set forth
terms and conditions (such as development milestones, cost estimates,
development fees, special licensing arrangements (if any), etc.) for the
development of a Cooperative Application; and (ii) outline and embody a staged
approach for the entire development process, from project planning through
quality and acceptance testing of generated code.
It is contemplated that Cooperative Application Project Plan will incorporate,
as agreed to by the Parties, the following terms:
. a schedule for completion of various targets and stages (as further set
forth below) for development of a Cooperative Application;
. a definition of the tasks for which each participating Party shall be
responsible with respect to the Cooperative Application project;
. acceptance testing procedures and criteria for determining that the
Cooperative Application conforms to the specifications therefor and to
InterTrust Specifications;
. a business plan, including one or more businesses and associated
marketing analyses and marketing plans for the exploitation of the
Cooperative Application;
. an estimate of the costs for the project, a development plan containing
budgets and milestones and specification of a formula for calculating
any cost and expense sharing related to the project SSG may pay to
InterTrust, including any development fees consistent with Section 3.3
hereof;
. provisions concerning ownership of Intellectual Property Rights and
other rights relating to the Cooperative Application, if terms and
conditions related to such rights differ in any way from this Agreement;
and
. provisions concerning revenue sharing relationships, if any, and
additional licensing or other fees, as applicable and as agreed,
concerning the licensing, use or other exploitation, a Cooperative
Application and/or directly related services.
E-1
CONFIDENTIAL
EXHIBIT F
TO THE TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
SPECIAL ADVANCED TECHNOLOGIES
-----------------------------
"Special Advanced Technologies" means technology, systems and/or
-----------------------------
applications that enable at least one of the following rights management and/or
distributed event management advanced capabilities: (i) Dynamic Rules and
Controls; (ii) Independent Rules and Controls; (iii) Chain of Handling and
Control; (iv) Rights Operating System; (v) Traveling Objects; and (vi) Event
Nodes.
The foregoing capitalized terms are defined below. All capitalized terms
not defined on this Exhibit E, shall have the meaning set forth in the
Agreement.
"Chain of Handling and Control" means technology that at least in part
-----------------------------
allows or enables the persistence of all or any portion of Dynamic Rules and
Controls as such Dynamic Rules and Controls are provided for use to one or more
sequences of Persons.
"Dynamic Rules and Controls" means technology that, at least in part,
--------------------------
supports the use of control structures to: (i) Manage (for example, govern
access to or other use of) Content in accordance with Rules and Controls
associated with such Content; and (ii) accept the (a) modification and/or
replacement of at least a portion of any such Rules and Controls, and/or (b)
addition of Rules and Controls, all in a manner consistent with pre-existing
Rules and Controls.
"Event Nodes" means distributed and fully or partially interoperable
-----------
electronic nodes, each of which employs Rules and Controls to Manage events
based at least in part upon plural nodal activity relating to Content; Event
Nodes may be used in systems that support inter-nodal electronic process
management.
"Independent Rules and Controls" means technology enabling the independent
------------------------------
and separate provision of Rules and Controls, whether or not said Rules and
Controls are, for example, delivered in the same cryptographic container, or at
the same time, as related Content.
"Rights Operating System" means one or more general purpose computer
-----------------------
control programs that, independently or in combination with a host operating
system, contributes to rights-related interoperability among plural nodes and
enables application of Dynamic Rules and Controls and/or Independent Rules and
Controls.
"Traveling Objects" means technology supporting the use and/or re-use of
-----------------
Content subject to persistent Rules and Controls which Manage Content, so that,
when such Content is passed from one user to another such Content does not
require a specific authorization by a remote authority in each instance to
enable a first use by a new user when such Content is passed to such new user.
F-1
CONFIDENTIAL
EXHIBIT G
TO THE TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
FORM OF INTERTRUST CONFIDENTIALITY AGREEMENTS
---------------------------------------------
InterTrust Top Secrecy Agreement
--------------------------------
InterTrust Non-Disclosure/Non-Use Agreement
-------------------------------------------
G-1
CONFIDENTIAL
EXHIBIT H
TO THE TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
List of Restricted Companies and
--------------------------------
Exclusions From [*]
-------------------
Restricted Companies
--------------------
. U.S.-based: (i) Independent Software Vendors ("ISVs"), whose primary business
----
is the development or distribution of [*]; or (ii) computer
hardware Original Equipment Manufacturers ("OEMs"), other than OEMs solely to
----
the extent of developing, manufacturing, distributing and/or licensing
semiconductor-based solutions supporting any form of [*], [*] and/or [*].
Such semiconductor-based solutions shall not include performance of [*] by
such OEM.
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
Excluded Areas
--------------
The [*] shall not be construed as extending to (or otherwise limiting
InterTrust's intended rights with regard to granting licenses to perform [*]
with respect to:
(i) [*] or [*] for any form of digital information other than the [*]. For
example, digital information resources, or games or other
entertainment, education, training, or interactive software products,
or any other digital products containing software executables whose
principal purpose is not to function as business or personal
productivity software applications or applets);
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
H-1
CONFIDENTIAL
(ii) uses of [*] for EDI systems, trading system applications, financial
infrastructure tools other than desktop financial productivity tools,
electronic advertising applications, or any large scale or custom
special purpose software systems or applications, for example, large
scale or custom special purpose systems, that are not normally
distributed as retail or shareware software products.
Under no circumstances shall the [*] be construed to include any obligation to
[*] from: (a) licensing entities other than those listed on this Exhibit H
immediately above to perform any [*] whatsoever; and/or (b) licensing any
entity that is listed on this Exhibit H immediately above to perform any [*]
other than in connection with [*] and [*] for such [*].
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
H-2
