Technology Development, Marketing, and License Agreement - InterTrust Technologies Corp. and National Westminster Bank plc
CONFIDENTIAL
_______________________________________________________
TECHNOLOGY DEVELOPMENT, MARKETING, AND LICENSE
AGREEMENT
by and between
INTERTRUST TECHNOLOGIES CORPORATION
and
NATIONAL WESTMINSTER BANK PLC
_______________________________________________________
______________________________
August 18, 1998
______________________________
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF CONSTRUCTION................................... 1
1.1 Definitions......................................................... 1
1.2 Rules of Construction............................................... 6
2. TECHNOLOGY ACCESS AND SUPPORT........................................... 6
2.1 Technology Access................................................... 6
2.2 Training, Assistance and Technical Support.......................... 7
2.3 Additional Assistance; Further Standard Support Packages............ 10
3. LIMITED LICENSE GRANT AND RESTRICTIONS.................................. 10
3.1 Limited License to InterTrust Technology and Modified Technology.... 10
3.2 Limited License to Perform Clearinghouse Functions.................. 11
3.3 License to InterTrust Trademarks.................................... 11
3.4 No Additional Licenses.............................................. 11
3.5 General Restrictions................................................ 11
4. NATWEST SUPPORT AND ADDITIONAL COVENANTS................................ 12
4.1 NatWest Support of InterTrust Technology............................ 12
4.2 Customer and Clearing Agreements.................................... 14
4.3 Notices and Branding................................................ 15
4.4 InterTrust Trademarks............................................... 17
4.5 NatWest's Use of NatWest Trademarks on NatWest Products............. 18
4.6 NatWest Trademarks.................................................. 18
5. LICENSE FEES AND PAYMENT TERMS.......................................... 19
5.1 Fees and Royalties.................................................. 19
5.2 Payment Procedure................................................... 21
5.3 Currency............................................................ 21
5.4 Taxes............................................................... 21
5.5 Interest............................................................ 21
5.6 Audit............................................................... 22
6. PROPRIETARY INFORMATION AND OWNERSHIP................................... 22
6.1 InterTrust Ownership................................................ 22
6.2 NatWest Ownership................................................... 22
6.3 NatWest Limited License to InterTrust............................... 23
6.4 Independent Technology.............................................. 23
7. JOINT ACTIVITIES AND FURTHER COVENANTS.................................. 23
7.1 Joint Press Releases................................................ 23
7.2 Promotion and Marketing............................................. 24
7.3 Technology Advisory Committee....................................... 24
7.4 Security Validation................................................. 25
8. PARTNERING COMMITMENTS
8.1 Intertrust Partnering Commitment.................................... 26
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8.2 NatWest Partnering Commitment........................................ 26
9. CONFIDENTIALITY......................................................... 29
9.1 Classification of Technology and Documents.......................... 29
9.2 Confidentiality Obligations......................................... 29
9.3 Confidentiality of Agreement and Publicity.......................... 29
9.4 Confidentiality of Payments, Audit and Certification Testing........ 30
10. REPRESENTATIONS AND WARRANTIES......................................... 30
10.1 Representations and Warranties of Both Parties..................... 30
10.2 Representations and Warranties of InterTrust....................... 30
10.3 Limitation......................................................... 31
10.4 Reporting and Other Covenants...................................... 31
11. INDEMNIFICATION AND REMEDIES........................................... 31
11.1 Indemnification.................................................... 31
11.2 Cumulative Remedies................................................ 32
11.3 Equitable Remedies................................................. 32
12. EXCLUSION OF DAMAGES................................................... 32
13. TERM AND TERMINATION................................................... 33
13.1 Agreement.......................................................... 33
13.2 Events of Termination.............................................. 33
13.3 Effect of Termination.............................................. 33
13.4 NatWest Continuing Rights.......................................... 34
13.5 Survival........................................................... 34
14. MISCELLANEOUS.......................................................... 34
14.1 Governing Law...................................................... 34
14.2 Venue and Jurisdiction............................................. 34
14.3 Compliance with Law and Export Controls............................ 35
14.4 Amendment or Modification; Assignment.............................. 35
14.5 Notices............................................................ 35
14.6 Waiver............................................................. 35
14.7 No Third Party Beneficiaries....................................... 36
14.8 No Agency.......................................................... 36
14.9 Recovery of Costs and Expenses..................................... 36
14.10 Severability...................................................... 36
14.11 No Solicitation of Employees...................................... 36
14.12 Counterparts; Facsimiles.......................................... 36
14.13 Entire Agreement.................................................. 37
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Exhibits A through H
(ii)
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CONFIDENTIAL
TECHNOLOGY DEVELOPMENT, MARKETING, AND LICENSE AGREEMENT
THIS TECHNOLOGY DEVELOPMENT, MARKETING, AND LICENSE AGREEMENT (this "Agreement")
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is made and entered into as of the 18/th/ day of August, 1998 (the "Effective
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Date") by and between INTERTRUST TECHNOLOGIES CORPORATION, a Delaware
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corporation ("InterTrust"), with offices at 460 Oakmead Parkway, Sunnyvale,
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California 94086-4708 and NATIONAL WESTMINSTER BANK PLC, an English corporation
("NatWest") with offices at 41 Lothbury, London, England EC2P 2BP (each a
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"Party" and collectively, the "Parties"), with reference to the following:
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RECITALS
The following provisions form the basis for, and are hereby made a part of, this
Agreement.
A. InterTrust has developed and is continuing to develop a general purpose
architecture and technologies for, among other things, rights protection and
event management related to electronic commerce, including securely managing
electronic information delivery, use, and use consequences.
B. NatWest is a diversified, global financial services corporation. It desires
to provide financial and information clearing services, and related services,
based upon InterTrust technology.
C. The Parties mutually desire that NatWest become an InterTrust Core Partner
and establish product and service offerings using InterTrust Technology.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
for other good and valuable consideration, the Parties agree to the following:
1. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Definitions. In addition to capitalized terms defined elsewhere in this
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Agreement, the following terms shall have the meanings set forth below.
"Application Product(s)" means any software application that: (i) is
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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 Object Code and/or Source
Code in accordance with the licenses hereunder; (iii) is not enabled to permit
the performance of any Clearinghouse Functions; and (iv) is in Compliance with
InterTrust Specifications.
"Authorized Application Software" means software incorporating InterTrust
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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 A hereto),
that is permitted for distribution in accordance with the applicable licenses
hereunder in such form solely as specified on Exhibit A, which Exhibit may be
amended from time to time by InterTrust to add Object Code and/or Source Code,
or to delete Object Code and/or Source Code to address issues with respect to
security, interoperability, standardization, market growth and/or architectural
and functional integrity (such as to correct Material Defects), and in a manner
consistent for all Core Partners.
"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.
NatWest/InterTrust Agreement August 18, 1998 ________/________
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"Authorized Clearinghouse Software" means software incorporating InterTrust
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Technology, solely in Object Code form and solely as such Object Code is
identified and designated by InterTrust on Exhibit A, that is permitted for
distribution as incorporated in Clearinghouse Products in accordance with the
applicable licenses hereunder in such form solely as specified in such Exhibit
A, which Exhibit may be amended from time to time by InterTrust to add Object
Code, or to delete Object Code to address issues with respect to security,
interoperability, standardization, market growth and/or architectural and
functional integrity (such as to correct Material Defects), and in a manner
consistent for all Core Partners.
"Clearinghouse Function(s)" means any one or more activities, as well as
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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 activities, as well
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, for example: (a) provide financial clearing; (b) provide
object registry services and rights, permissions, prices, and/or other Rules and
Controls information; (c) electronically certify information used with or
required by Rules and Controls, such as authenticating identity, class
membership or other attributes of identity context; (d) provide 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/or (e) employ information derived from user exposure to Content, such as
advertising.
"Clearinghouse Product(s)" means any software application that: (i) is
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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 hereunder; (iii) is enabled to permit the
performance of any Clearinghouse Functions; and (iv) is in Compliance with
InterTrust Specifications.
"Commerce 1.0 (FCS Version)" means certain software having the
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functionality described in Exhibit A hereto that incorporates InterTrust
Technology, as provided by InterTrust to NatWest consistent herewith.
"Commerce 1.0 (GA Version)" means certain software having the functionality
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described in Exhibit A hereto (as such Exhibit may be modified from time to time
by InterTrust consistent with this Agreement) that incorporates InterTrust
Technology, as provided by InterTrust to NatWest consistent herewith, and is
intended for general commercial availability, dissemination in accordance
herewith, and use in accordance herewith in a widely distributed manner.
Commerce 1.0 (GA Version) shall have at least substantially the same
functionality as Commerce 1.0 (FCS Version).
"Commerce 2.0" means certain software constituting a New Release of
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InterTrust's Commerce 1.0 (FCS Version) software and Commerce 1.0 (GA Version)
software incorporating enhanced digital rights management functionality,
including at a minimum such functionality described in Exhibit A hereto that
incorporates InterTrust Technology, as provided by InterTrust to NatWest
consistent herewith.
"Compliance," "Complied" or "Compliant" means fully consistent with and
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fully conforming to all applicable portions of: (i) the most current version of
the InterTrust Specifications (as defined in Section 4.1((b)) hereof) existing
on the date of NatWest's first commercial use, distribution, sale or other
transfer of any applicable NatWest Product or first use of any such product in
connection with any service associated therewith, as the case may be; and
thereafter (ii) the most current version of InterTrust Specifications in
accordance with Section 4.1((b)) hereof, as applied to any such NatWest Product,
and/or associated service. A NatWest Product
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and/or any associated service that has not passed any required certification
tests as set forth in Section 4.1 hereof shall be deemed non-Compliant with
InterTrust Specifications.
"Content(s)" means any analog or digital information representing text,
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graphics, video, digital linear motion pictures, sound and sound recordings,
still images, computer programs or executable or interpretable components
thereof, other data, or other such analog or digital information. Content shall
include any electronic representation of: (i) Rules and Controls; and (ii)
information derived from the Management of Content.
"Content Transaction" means any discrete electronic compensation event
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related to a specific overall Content compensation arrangement amongst Persons
(which may be comprised of component events and arrangements): (i) Managed, in
whole or in part, through the use of any InterTrust Technology and/or Modified
Technology; and (ii) in connection with which consideration of any kind
(including consideration directly related to such event) is due or payable at
any time to NatWest and/or any other one or more Persons, at least in part, for
any (a) initiated, consummated and/or performed sale, rental, lease, license,
vending and/or any 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 in compliance with InterTrust Specifications 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.
"Core Partner" means any Person with whom InterTrust enters into an
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agreement or set of agreements, pursuant to which InterTrust: (i) directly
provides early access to InterTrust Technology prior to InterTrust's first
commercial release or provision of such technology to the general public; (ii)
grants a general purpose license to use InterTrust Technology in software
products, applications, and services (excepting limitations with respect to
performing Clearinghouse Functions); and (iii) grants a license to perform
Clearinghouse Functions of a substantially comparable or broader scope than the
licenses granted in Section 3.2 hereof (a "Core Partner Agreement")
"Core Technology" means those components of InterTrust Technology described
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by InterTrust on Exhibit A hereto as core technologies of such InterTrust
Technology, as such Exhibit may be amended from time to time by InterTrust.
"Customer" means any Person that receives or acquires a NatWest Product
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(directly or indirectly) from NatWest, and/or participates in an associated
service, pursuant to a Customer Agreement (as set forth in Section 4.2) to: (i)
use such product and/or associated service as an end-user, or further distribute
such product, without modification, to an end-user or to one or more other
Persons for distribution, without modification, to an end-user; or (ii) use such
product solely to (a) incorporate Authorized Application Software into their
products to provide an InterRights Point, or (b) develop and incorporate
software components that initiate interface and operation with an InterRights
Point provided by InterTrust Technology, each of which software components and
InterRights Point is Compliant with InterTrust Specifications; provided that
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Customer shall not include any Person who NatWest knows, or has reason to know,
has a present intention to use a NatWest Product and/or associated service for
any use not permitted in a Customer Agreement including, without limitation, the
performance of any Clearinghouse Function, unless such Person is an Authorized
Clearinghouse Provider.
"Documentation" means certain English language versions of documentation
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and/or instructions relating to use of InterTrust Technology that InterTrust may
from time to time provide with the InterTrust Technology, including such
documentation that InterTrust has specifically and in writing identified as
being suitable for general distribution by NatWest to Customers ("Distributable
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Documentation").
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"Enterprise 1.0" means that software described in Exhibit A hereto (as such
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Exhibit may be amended from time to time by InterTrust) that incorporates
InterTrust Technology, as provided by InterTrust to NatWest consistent herewith,
intended solely for use within enterprises and/or for use by enterprises solely
in connection with such enterprise's Content and within the context solely of
products and/or associated services for direct customers of an enterprise or
other Persons having a value chain relationship with such enterprise (such as
suppliers, distributors, consultants, etc.). The initial delivery of such
software shall be in a GA version.
"Gross Commercial Value" means all sums of money as consideration, and/or
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the fair market value of any other provided consideration, relating directly to
or deriving directly from: (i) any Content Transaction; and/or (ii) performing
any other activity within the Clearinghouse Functions. Without limiting the
foregoing, such consideration shall include consideration based upon Management
of Content and/or information derived at least in part therefrom, including, for
example, consideration: (a) paid by a user as a consequence of, for example,
user exposure to, or other interaction with, Content; (b) paid by a user as a
consequence of the acquisition of one or more rights related to Content; and/or
(c) paid by a proxy or subsidizing payer (such as an advertiser) based upon user
exposure to Content, where, for example but without limitation, 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 be reduced by any
included sales, use, value-added or other taxes (except withholding taxes)
imposed by any national, state, local or foreign government and paid by NatWest
as a consequence of clearing a Content Transaction and/or as a consequence of
performing any other directly related activities within the Clearinghouse
Functions.
"Intellectual Property Rights" mean all patent rights, copyrights,
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trademarks, trade secret rights, and other similar proprietary rights in any
jurisdiction, and all applications and registrations therefor.
"InterRights Point(s)" means certain InterTrust Technology (as set forth on
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Exhibit A hereto, as such Exhibit may be amended by InterTrust consistent with
this Agreement) that is a distributed rights and event management, and
distributed administration, virtual machine (i.e. node) that performs, at least
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in part, as an extension to basic electronic resource management, or is
integrated within such basic resource management.
"InterTrust Specifications" mean the InterTrust technology specifications
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provided to NatWest, as established and/or modified by InterTrust in accordance
with Section 4.1((b)) hereof. Such InterTrust Specifications may include: (i)
required design criteria for licensed products and/or associated services,
including, for example, criteria for ensuring the architectural and functional
integrity, standardization, security capability, and/or interoperability of
InterTrust-based technology, components, products and/or associated services
(such as, criteria for electronic environments employing InterTrust Technology
for rights and/or other event-related process management, for example the
operation of general purpose InterRights Points that interoperate with
InterRights Points distributed or normally used by other Persons); (ii)
procedures and requirements for installation, initialization, backup, restore
and/or security updates; and (iii) required certification tests and procedures
to verify Compliance.
"InterTrust Technology" means any and all technology developed by
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InterTrust and/or by a third Person for InterTrust and provided by InterTrust to
NatWest as set forth in this Agreement directly relating to distributed rights
management systems and methods, electronic content administration, peer-to-peer
trusted event management, and/or distributed electronic commerce automation and
process control systems and methods. For example, such technology includes the
Commerce 1.0 product, the Enterprise 1.0 product, pre-releases thereof, Update
Releases, New Releases and such other products as referenced in Exhibit A hereto
(as such Exhibit may be modified by InterTrust from time to time to provide, for
example, any product modification and/or reconfigurations made available
hereunder).
"InterTrust Trademarks" mean those InterTrust names, logos and other marks
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listed on Exhibit B hereto, as such Exhibit may be modified by InterTrust in
accordance with Section 4.4 hereof.
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"Licensed Rights" mean all of InterTrust's worldwide Intellectual Property
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Rights (other than trademark rights) in and to the InterTrust Technology and/or
the Modified Technology, that InterTrust (at any time during the term of this
Agreement) owns or otherwise 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.
"Manage(d)" or "Management" means any form of governance, regulation,
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management and/or control, at least in part, through any use of any software,
firmware, hardware (being able to carry out functions) or comparable electronic
means, or combinations thereof, of: (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 to, or
associated in any manner with, the use of (including access to), attempted use
of, and/or disposition of, Content and/or events, including any consequences
thereof.
"Material Defect(s)" means defect(s) or bug(s) in the InterTrust products
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incorporating InterTrust Technology as delivered by InterTrust to NatWest,
wherein such defect(s) or bug(s) in such delivered products causes one or more
of such delivered InterTrust products to fail to perform: (i) materially in
conformance with (a) the capabilities ascribed to such products in the
applicable portions of InterTrust Specifications, or (b) features and functions
ascribed to such products as specified in Exhibit A; and (ii) in a commercially
reasonable manner in accordance with reasonable U.S. software industry
practices. Material Defects shall not include or mean any defects or bugs in
Modified Technology absent from InterTrust Technology.
"Modified Technology" means all modifications of, and enhancements and/or
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additions to, the InterTrust Technology created by (or for) NatWest as provided
hereunder, 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. (S) 101 et seq., as amended), but only if such
-- ---
modifications, enhancements, additions and/or derivative works are permitted
under Section 3.1((b)) and elsewhere in this Agreement.
"NatWest Product(s)" means any Application Product and/or Clearinghouse
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Product that is developed by (or, consistent with this Agreement, for) NatWest
and is branded and marketed in accordance with the provisions of Sections
4.3((c)), 4.5 and other provisions hereof.
"NatWest Trademarks" mean the names, logos and other marks listed in
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Exhibit B (as such Exhibit may be modified by NatWest from time to time
consistent with Section 4.6 hereof): (i) that are owned or licensed for use
exclusively by NatWest, that may be used as stipulated hereunder in connection
with, and are limited in use to representing exclusively, NatWest, NatWest
Products, and/or associated services permitted hereunder; and (ii) over which
NatWest exercises exclusive control with respect to the commercial use thereof.
"New Release" means any future release by InterTrust of a successor product
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of the Commerce 1.0 product line, the Enterprise 1.0 (GA version) and/or
additional Enterprise 1.0 product line products provided to NatWest hereunder
and (i) that (a) is designated by InterTrust as a numerical change to the
digit(s) to the left of the decimal point for the version number thereof (e.g.,
---
Commerce X.0; Enterprise X.0); or (b) is designed to provide significantly
improved or enhanced functionality for Commerce 1.0's and/or Enterprise 1.0's
general purpose software platform for Distributed Peer-to-Peer Digital Rights
Management (as defined in Exhibit F attached hereto) for the desktop, portable,
minicomputer, mainframe, and/or server computing market(s), as compared to the
immediately preceding version; and (ii) that InterTrust may develop, or have
developed for it, from time to time and make generally available to its Core
Partners. New Releases will reflect additional functionality as determined by
InterTrust after reviewing and analyzing input of Core Partners through
activities of the Technology Advisory Committee (described in Section 7.3
hereof) with respect to current and anticipated market requirements and
reasonable commercial priorities).
"Object Code" shall mean the computer executable binary code derived from
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compiled Source Code for execution by a computing device or system.
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"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.
"Rules and Controls" mean any information that directs, enables, specifies,
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describes, and/or provides means for performing or not performing operations
related to Content, controlling, for example, usage consequences, and including,
for example, restricting the performance of operations, such as, for example, in
the performance of Management of such Content.
"Secure Container(s)" means electronic container(s) or other electronic
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data arrangement(s) that: (i) uses one or more cryptographic or other
obfuscation techniques to provide protection for Content; and (ii) supports the
use of Rules and Controls to Manage Content. Secure Container(s) shall not mean
Certificate Authority and/or Session Encryption as such terms are defined in
Exhibit F attached hereto.
"Source Code" means a human-readable, non-executable set of instructions
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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.
"Standard Support Package(s)" means one or more technical support packages
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that InterTrust may establish and make available to certain or all customer
categories to provide, for example, training, consultation and other technical
assistance, as well as technical support in the form of correction of defects
(including Material Defects) and priority response times in connection
therewith.
"Update Release" means any future release of InterTrust software products
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that is a supplement to the Commerce 1.0 software, or a New Release (including
the Enterprise 1.0 software) provided to NatWest hereunder that: (i)(a) is
designed primarily to correct and/or mitigate known Material Defects in, and/or
to provide minor improvements to, such Commerce 1.0, Enterprise 1.0 or New
Release software, or (b) is designated by InterTrust as a numerical change to
the digit(s) right of the decimal point for the version number thereof (e.g.
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Commerce 1.XX; Enterprise 1.XX); and (ii) InterTrust may develop, or have
developed for it, from time to time and make generally available to its Core
Partners in accordance herewith.
1.2 Rules of Construction. As used in this Agreement, all terms used in the
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singular shall be deemed to include the plural, and vice versa, as context
requires. Hereof, herein and hereunder refer to this Agreement as a whole,
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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. Including
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shall mean including, without limitation; compliance, complied, or comply shall
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mean full compliance, fully complied or fully comply; for example shall mean for
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example without limitation; and InterTrust shall mean InterTrust and any lawful
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successor. Descriptive headings are inserted for convenience only, and shall not
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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. Any and all rights exercisable, actions permitted to be
taken, or decisions to be made, by a Party under this Agreement may be made by
such Party in its sole discretion, except to the extent (and solely to the
extent) expressly provided herein to the contrary, meaning, for example, any use
of the word discretion related to a Party's decision means the sole discretion
of that Party.
2. TECHNOLOGY ACCESS AND SUPPORT.
2.1 Technology Access.
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(a) Initial Availability. Subject to the terms of this Agreement,
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InterTrust shall make available to NatWest: (i) the Commerce 1.0 (FCS version);
and (ii) the Documentation set forth in Exhibit A hereto. Such software and
Documentation shall be made available to NatWest promptly following the
execution of this Agreement, receipt of the amount specified in Section 5.1
((a))((i)) hereof, and NatWest's Compliance with the
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applicable InterTrust Specification concerning Site Certification in effect as
of the Effective Date. Further, InterTrust's Commerce 1.0 (GA Version) and
Enterprise 1.0 (GA Version), respectively, shall be supplied to NatWest at
reasonably the same time as (but in no event later than five (5) business days
after) such software is first made available to any Core Partner, and before
such software is made generally available publicly.
(b) Additional Technology. In addition to the foregoing, and subject to
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the terms and conditions of this Agreement, InterTrust shall make available to
NatWest: (i) Update Releases at no additional charge (beyond the Support Fee set
forth in Section 5.1((c)) hereof) for a period of [*] years following the
Effective Date; and (ii) New Releases (1) at no additional charge (beyond the
Support Fee) for a period of [*] years after the Effective Date and, (2) for the
subsequent [*] years on terms (including price) [*] and at a cost no greater
than reasonably consistent with applicable U.S. Software Industry practices.
Notwithstanding the foregoing, NatWest shall be entitled to obtain in accordance
with the provisions of this Section 2.1((b)): (A) at no additional charge
(beyond the Support Fee and/or such fees as set forth in Sections 5.1((a))((iv))
and 5.1((a))((v)) InterTrust's Commerce 2.0 software release and, whether in the
form of one or more New Releases and/or Update Releases, software that provides
those functions specified in Section I.B. of Exhibit A hereto (the "Requested
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Functionality"), as available from InterTrust at any time during the term of
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this Agreement; and (B) such portions of New Releases and/or Update Releases, as
applicable, made available by InterTrust after the end of the [*] year following
the Effective Date, if any, that are strictly necessary for NatWest Products and
associated services to remain in Compliance with then existing InterTrust
Specifications and/or subsequent New Specification pursuant to Section 4.1((b))
hereof, provided that such New Release and/or Update Release portions shall be
--------
made available to NatWest on terms (including price) [*] and at a cost no
greater than reasonably consistent with applicable U.S. Software Industry
practices. Further notwithstanding the foregoing, the revenue sharing royalties
set forth in Section 5.1((b)) shall be payable to InterTrust as set forth
therein. Any Update Releases and/or New Releases that NatWest is entitled to
receive pursuant to this Section 2.1((b)) shall be supplied to NatWest at
reasonably the same time (but in no event later than five (5) business days
after) when such software is first made available to any Core Partner and before
such product is made generally available publicly, except that the foregoing
shall not restrict InterTrust from providing Update Releases and/or New Releases
to customers and/or making such Update Releases generally available publicly
where such Update Releases and/or New Releases provide, in material part,
updated software responsive to security, interoperability and/or integrity
concerns. The Parties acknowledge and agree that nothing in this Section 2.1
shall be construed to require InterTrust to make any InterTrust technology
available to NatWest that has been developed by InterTrust as a custom or
specialized effort for, or jointly with, one or more current or prospective
development partners and/or other licensees of InterTrust. To the extent that
InterTrust and NatWest mutually agree in a separate written agreement to have
InterTrust develop any custom or specialized software for, or jointly with,
NatWest (other than the Requested Functionality), the terms and conditions of
such separate agreement shall specifiy whether such custom or specialized
software may be made available to any third Person.
(c) Acknowledgments. In accordance with the above, and subject to
---------------
InterTrust representations set forth in Section 10.2 hereof, it is acknowledged
and agreed that the 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 on Exhibit A (the "Third Party
-----------
Technology") and as may be modified from time to time by InterTrust. NatWest's
----------
use of the Third Party Technology is limited by the terms of any licenses or
rights that InterTrust may have therein and may sublicense to NatWest.
2.2 Training, Assistance and Technical Support. Subject to the terms and
------------------------------------------
conditions of this Agreement, InterTrust agrees to provide NatWest with the
training, support and assistance set forth in this Section 2.2 for a period of
twenty-four (24) months from the Effective Date (the "Support Period") at no
--------------
additional cost beyond the Support Fee specified in Section5.1((c)). Section
2.2((a)) hereof relates to the provision of Assistance (defined below) and
Section 2.2((b)) relates to technical support of software provided by InterTrust
hereunder. After the Support Period, Assistance and such technical support shall
be provided to NatWest through Standard Support Packages that NatWest may select
and pay for, all as set forth in Section 2.3; provided that at least one
-------- ----
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
7
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such Standard Support Package shall provide Assistance and technical support for
provided software (including the correction of Material Defects) reasonably
commensurate with provisions of Section 2.2((a)) and 2.2((b)) hereof.
(a) Training and Assistance. In order to assist NatWest in use of
-----------------------
InterTrust Technology, InterTrust shall provide to NatWest, subject to
applicable terms and conditions of this Agreement, reasonable training, support,
and consulting assistance rendered by appropriately qualified, trained and
experienced personnel ("Assistance"). Up to a limit of two hundred (200) hours
----------
per annum of such Assistance shall be made available to NatWest during the
Support Period. Such Assistance shall be measured based upon InterTrust's
person-hours expended, shall exclude de minimus ad hoc communications and time
-----------------
spent on administrative tasks, and shall be subject to reasonable agreement
between the Parties on scheduling and availability of resources. Assistance
shall include: (i) lecture and hands-on training at InterTrust's facility
(unless otherwise agreed by the Parties) for up to six (6) NatWest personnel;
and (ii) access via e-mail, telephone, and/or video teleconferencing to
InterTrust's support personnel, consistent with applicable U.S. software
industry practices and the foregoing. NatWest shall have access to InterTrust's
automated technical support website in a manner no less favorable than
InterTrust provides to any other Core Partner. In addition, and as set forth in
Section 2.2((d)), InterTrust shall designate a support engineer as NatWest's
primary contact for technical support related matters. NatWest shall be
responsible for all expenses incurred by NatWest's personnel in traveling to and
attending any training and support meetings. In the event InterTrust's personnel
travel from InterTrust's facilities in connection with the provisions of such
Assistance (upon InterTrust's and NatWest's mutual agreement approving such
travel), NatWest shall promptly reimburse InterTrust for all reasonable out-of-
pocket travel expenses incurred by InterTrust's personnel. During the Support
Period, InterTrust shall make Assistance available to NatWest in support of at
least the then-current version of Commerce 1.X and Enterprise 1.X as provided to
NatWest by InterTrust, and those versions distributable in accordance with
InterTrust Specifications, all in accordance with Sections 2.2((a)) and 2.2((b))
hereof, and consistent with Section 4.1((b)) hereof.
(b) Correction of Material Defects.
------------------------------
(i) General. In addition to InterTrust's own on-going quality
-------
assurance efforts, if NatWest brings any Material Defect to InterTrust's
attention in accordance with commercially reasonable and appropriate InterTrust
standard support policy notification procedures (and made available in writing
to NatWest), InterTrust shall use reasonable efforts in accordance with
applicable U.S. software industry practices, at InterTrust's expense, to correct
such Material Defect. If a Material Defect can not through the exercise of such
reasonable efforts be so corrected, or is not otherwise in good faith reasonably
foreseen to be so correctable with commercially reasonable application of
InterTrust resources, InterTrust will use such reasonably prompt efforts to
adjust InterTrust Technology to mitigate such Material Defect in a manner
reasonably commercially designed and/or intended to minimize material adverse
disruption to functionality of InterTrust Technology in current use. Consistent
with the foregoing, InterTrust's efforts to correct or mitigate Material Defects
shall be provided reasonably in a manner set forth in this Section 2.2((b)),
including, as applicable, for the level of NatWest commercial use of InterTrust
Technology. If NatWest requests and InterTrust agrees to commit resources beyond
the level required hereunder, such efforts will be subject to reasonable
reimbursement by NatWest to InterTrust as agreed by the Parties and as
consistent with reasonable industry practice. InterTrust's sole obligation with
respect to any Material Defect shall be InterTrust's correction or mitigation of
such Material Defect pursuant to the terms of this Section 2.2((b)),NatWest's
sole and exclusive remedies with respect to any Material Defect shall be: (i)
InterTrust's correction or mitigation of such Material Defect pursuant to the
terms of this Section 2.2((b)); (ii) NatWest's suspension of certain payments
during the pendency of Critical Material Defects pursuant to Section 5.1((f));
and/or (iii) NatWest's termination of this Agreement as provided in Section
2.2((b))((iii)) or as provided in Section 13.2((a)) in the event of a breach of
this Section 2.2((b)).
(ii) Classification of Priority. When InterTrust is made aware by
--------------------------
NatWest of a Material Defect in accordance with the notification procedures of
Section 2.2((b))((i)) and in the manner set forth below, InterTrust and NatWest
will work together to reasonably classify such Material Defect into the
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
8
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appropriate priority level consistent with the following: (1) a Material Defect
that renders the NatWest Products commercially unusable, resulting in total
business disruption of NatWest's Clearinghouse Function services ("Critical
--------
Material Defects"); (2) a Material Defect that substantially impairs the
----------------
commercial use of NatWest Products ("Priority Material Defects"); and (3) a
-------------------------
Material Defect that has lesser impact on the commercial use of NatWest
Products, and/or a Material Defect not described in the immediately preceding
subparagraphs (1) and/or (2) ("Other Material Defects"). In order for InterTrust
----------------------
and NatWest to make such classification and/or correct or mitigate a Material
Defect, NatWest shall describe the alleged defect in reasonable detail, in
writing to the extent possible (and orally to the extent this may expedite the
correction of any Critical Material Defect); provided that all descriptions must
-------- ----
be in sufficient detail to allow InterTrust to reliably reproduce such defect.
(iii) Critical Material Defects. In the event NatWest brings a
-------------------------
Critical Material Defect to InterTrust's attention in accordance with Section
2.2((b))((i)) and ((ii)) hereof, and subsequent to written notification by
NatWest to InterTrust that NatWest is performing live commercial transactions
involving the performance of Clearinghouse Functions on a meaningful commercial
scale, InterTrust will make good faith efforts to communicate an initial
response concerning such Critical Material Defect within six (6) hours.
InterTrust shall devote its support resources in a priority manner to work on
providing an urgent bug fix or workaround patch, process and/or procedure to
temporarily correct or mitigate such defect as soon as practicable, and in a
commercially reasonable manner, and, thereafter, use good faith efforts to work
toward a longer term solution within a commercially reasonable and practical
time frame as may be reasonably projected at such time by InterTrust after
consultation with NatWest, all of the foregoing taking into account the nature,
severity and complexity of such defect, the type and availability of engineering
resources required, and the magnitude of NatWest's commercial, revenue
generating use of InterTrust Technology. In the event a Critical Material Defect
causes a total disruption in one or more of NatWest's substantial live services
involving the performance of Clearinghouse Functions on a material scale as
compared to NatWest's overall services supported by InterTrust Technology, and
InterTrust has failed within sixty (60) days of receipt of notice from NatWest
in accordance with the provisions of Sections 2.2((b))((i)) and 2.2((b))((ii))
to provide an urgent bug fix or workaround patch, process and/or procedure to
temporarily correct or mitigate such defect to restore operation of such
services, NatWest may terminate this Agreement upon providing InterTrust with
ten (10) days prior written notice thereof.
(iv) Priority Material Defects. In the event NatWest brings a
-------------------------
Priority Material Defect to InterTrust's attention in accordance with Sections
2.2((b)))((i)) and 2.2((b))((ii)), and subsequent to written notification by
NatWest to InterTrust that NatWest is performing live commercial transactions
involving the performance of Clearinghouse Functions on meaningful commercial
scale, InterTrust will make good faith efforts to communicate an initial
response concerning such Priority Material Defect within forty-eight (48) hours.
InterTrust shall reasonably devote its support resources to work on providing a
bug fix or workaround patch, process and/or procedure to correct or mitigate
such defect within a practical and commercially reasonable time frame as may be
reasonably projected at such time by InterTrust after consultation with NatWest,
taking into account the nature, severity and complexity of such defect, the type
and availability of engineering resources required, and the magnitude of
NatWest's commercial, revenue generating use of InterTrust Technology.
(v) Other Material Defects. In the event NatWest brings an Other
----------------------
Material Defect to InterTrust's attention in accordance with Sections 2.2((b))
((i)) and 2.2((b))((ii)), InterTrust will make good faith efforts to: (1)
communicate a response promptly; and (2) thereafter correct or mitigate such
defect in manner consistent with Section ((b))((i)) hereof.
(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 development progress; (ii) implementation of such technology by
NatWest; and (iii) feedback concerning Assistance provided to NatWest and
product development and marketing progress by NatWest (the "Status
------
9
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Meetings"). Such Status Meetings shall take place not less frequently than once
--------
a quarter during the first twelve months following the Effective Date.
(d) Dedicated Personnel. InterTrust and NatWest will each appoint a
-------------------
relationship manager, to coordinate its activities pursuant to this Section 0,
and a technical project manager, to coordinate and facilitate the Assistance set
forth in Sections 2.2((a)) and 2.2((b)). InterTrust will reasonably and
consistently maintain such dedicated personnel. InterTrust will also promptly
respond to any NatWest concerns regarding such personnel. InterTrust may utilize
InterTrust resources located in the United Kingdom and/or Europe in part in
providing the Assistance and other services set forth in this Section 2.2.
2.3 Additional Assistance; Further Standard Support Packages. During the
--------------------------------------------------------
Support Period, additional Assistance may be made available by InterTrust to
NatWest beyond the two hundred (200) hours per annum allocated under Section
2.2((a)) ("Additional Assistance"). To the extent NatWest requests, and
InterTrust decides to provide such Additional Assistance, NatWest shall pay to
---------------------
InterTrust fees that are no higher than the lowest fees charged by InterTrust to
any other customers for such Additional Assistance under like circumstances and
at a cost no greater than reasonably consistent with applicable U.S. software
industry practices. Following the Support Period (or earlier if agreed by
NatWest and InterTrust), NatWest may select one or more Standard Support
Packages that InterTrust may offer, except that to the extent NatWest is using
InterTrust Technology and InterTrust requires its customers (who have license
rights and obligations comparable to NatWest) to maintain at least a certain
minimum level of support with respect to its licensed activities, NatWest shall
select and maintain at least such minimum level of support provided by a
Standard Support Package, which minimum level will have associated support fees
not materially in excess of the Support Fee (as adjusted upward for inflation or
to maintain support fees reasonably commensurate with industry standard support
fees in comparable circumstances) and shall provide support commensurate with
the level of support provided in Section 2.2((a)) and 2.2((b)) hereof. Such
support (including correction of Material Defects) shall be provided to NatWest
at a cost no higher than the lowest fees charged by InterTrust to any other Core
Partner for substantially the same level of support under like circumstances and
no greater than reasonably consistent with U.S. software industry practices.
3. LIMITED LICENSE GRANT AND RESTRICTIONS.
3.1 Limited License to InterTrust Technology and Modified Technology. Subject
----------------------------------------------------------------
to the terms and conditions of this Agreement, InterTrust grants to NatWest
during the term of this Agreement a limited, nonexclusive, nontransferable
(except as provided in Section 14.4), nonsublicensable (except as expressly
provided in subparagraph (d) and (e) below), worldwide right and license under
the Licensed Rights to:
(a) use and reproduce the InterTrust Technology and Modified Technology
solely for the purpose of: (1) designing, making, developing, and producing
NatWest Products; and (2) exercising the rights granted under Sections 3.1((b)),
3.1((c)), 3.1((d)), 3.1((e)) and 3.2 hereof;
(b) modify the InterTrust Technology, except any Core Technology, to: (1)
create Modified Technology solely for the purpose of enabling incorporation of
InterTrust Technology into NatWest Products; and (2) incorporate such Modified
Technology into NatWest Products;
(c) use NatWest Products and/or provide associated services in connection
therewith in Compliance with InterTrust Specifications, and otherwise solely in
accordance with this Agreement;
(d) market, distribute, offer for sale, sell, license for use, import,
export and/or otherwise transfer NatWest Products that are Application Products,
and Distributable Documentation, to NatWest Customers pursuant to a Customer
Agreement in accordance with, and as defined in, Section 4.2 hereof, and
otherwise solely in accordance with this Agreement; and
10
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(e) market, distribute, offer for sale, sell, license for use, import,
export and/or otherwise transfer NatWest Products that are Clearinghouse
Products, solely to Authorized Clearinghouse Providers pursuant to a Customer
Agreement specific to such Authorized Clearinghouse Providers supplied in
accordance with, and as defined in, Section 4.2 hereof, and otherwise solely in
accordance with this Agreement.
3.2 Limited License to Perform Clearinghouse Functions. Subject to the terms
--- --------------------------------------------------
and conditions of this Agreement, InterTrust grants to NatWest during the term
of this Agreement a limited, nonexclusive, nontransferable (except as set forth
in Section 14.4), nonsublicensable (except as expressly provided in subparagraph
(ii) below), worldwide right and license under the Licensed Rights to: (i)
perform Clearinghouse Functions solely under NatWest Trademarks as specified
herein and in Compliance with InterTrust Specifications; and (ii) have
Authorized Clearinghouse Providers perform any and all tasks and functions
permitted by this Agreement to service InterRights Points provided to a Customer
by NatWest in accordance with Section 3.1((d)), to the extent such Authorized
Clearinghouse Provider has been granted by InterTrust rights of the scope
necessary to perform the immediately foregoing activities. Such Clearinghouse
Functions as set forth in subparagraph (i) of this Section 3.2 may be performed
to service solely InterRights Points that have been provided by (a) a NatWest
Product, and solely in connection with such NatWest Product, or (b) a Person
having a valid written license from InterTrust allowing such Person to permit
Authorized Clearinghouses Providers to service InterRights Points provided by
such Person.
3.3 License to InterTrust Trademarks. Subject to the terms and conditions of
--------------------------------
this Agreement, InterTrust grants to NatWest during the term of this Agreement a
limited, royalty-free, nonexclusive, nontransferable (except as set forth in
Section 14.4), nonsublicensable (except as expressly provided in Section
3.1((d)) and ((e)) and Section 3.2(ii)), worldwide license to use and display
the InterTrust Trademarks solely: (i) on NatWest Products and in connection with
associated services to indicate that such products and services are in
Compliance with InterTrust Specifications; (ii) on related Distributable
Documentation and marketing and sales materials to identify that InterTrust
Technology is being utilized by NatWest; and (iii) as otherwise set forth herein
or reasonably stipulated in writing by InterTrust's Chairman of the Board, or
any other InterTrust officer designated in a written communication to NatWest
signed by InterTrust's Chairman of the Board (an "InterTrust Designated
---------------------
Officer").
-------
3.4 No Additional Licenses. NatWest understands and acknowledges that
----------------------
InterTrust is licensing to NatWest only certain limited rights to use InterTrust
Technology as described herein; and InterTrust understands that NatWest is
licensing to InterTrust only certain limited rights as expressly set forth
herein. Thus, notwithstanding the generality of any other provision herein: (i)
NatWest acknowledges and agrees that the licenses granted under Sections 3.1,
3.2, and 3.3 are the only licenses granted to NatWest; (ii) InterTrust
acknowledges that the licenses granted under Sections 4.6 and 6.3 are the only
licenses granted to InterTrust; and (iii) both Parties acknowledge that no other
licenses have been expressly, or by implication or estoppel, now or in the
future, granted except pursuant to a separate written agreement executed by an
authorized officer of NatWest and an InterTrust Designated Officer. Any and all
rights of InterTrust not expressly granted to NatWest under this Agreement are
reserved and retained by InterTrust. Any and all rights of NatWest not expressly
granted to InterTrust under this Agreement (including pursuant to Sections 4.6
and 6.3 hereof) are reserved and retained by NatWest.
3.5 General Restrictions. NatWest covenants that it shall not: (i) during the
--------------------
term of this Agreement (a) reverse engineer any portion of the Core Technology
or any technology that has been supplied to NatWest in Object Code form only,
(b) modify any portion of the Core Technology, and/or (c) engage in any "clean
room" activities designed to replicate the functionality of the Core Technology
for any use inconsistent with this Agreement; or (ii) after the term of this
Agreement, use or exploit the InterTrust Technology for any purpose whatsoever
(except as expressly provided in Section 13.3). Any material use by NatWest 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. If the provisions of subsections (i)(a),
(i)(b) and/or (i)(c) of this Section 3.5 are prohibited by any jurisdiction
having competent jurisdiction over this Agreement and such prohibition cannot be
waived by a Party by nature of the foregoing language, or otherwise be
reasonably avoided by a Party (such as, for example, by developing, accessing
and/or using any relevant
11
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portions of the InterTrust Technology outside of such jurisdiction), then (1)
before engaging in any of the activities set forth in such subsections (i)(a),
(i)(b) and/or (i)(c), NatWest shall provide InterTrust with ninety (90) days
prior written notice; and (2) all information and/or technology derived from
such activities (the "Derived Information") shall be treated as InterTrust
-------------------
Confidential Information (defined below) or Top Secret Information (defined
below) as the case may be, and shall be used solely within the scope of
NatWest's licenses granted under this Agreement and the other terms and
conditions hereof. Furthermore, any disassembly, decompilation or reverse
engineering undertaken in reliance upon such applicable jurisdiction' s
prohibiting law shall take place only where such disassembly, decompilation or
reverse engineering of any InterTrust software (or any part thereof) and
reproduction of the software and translation of its form are indispensable to
obtain the information necessary to achieve the interoperability of the software
with other programs, provided that: (A) these acts are performed by such Person
-------- ----
or by another Person having a right to use a copy of the software, or on their
behalf by a Person authorized under this Agreement to do so and where such acts
are not in violation of any applicable governing law; (B) the information
necessary to achieve reasonable interoperability has not previously been readily
available to the Persons referred to in subparagraph (A); and (C) these acts are
confined to the parts of the software which are necessary to achieve
interoperability (as interoperability may legally be most narrowly interpreted
under applicable law and precedent, for example to exclude from
"interoperability" any acts that compromise system security and/or undermine
basic viability or functionality of InterTrust Technology and/or NatWest
Products) and occur solely as is consistent with the licenses under this
Agreement, and where any rights to use any information derived from such acts
terminate immediately and fully upon any cessation or termination of applicable
licensed rights hereunder.
4. NATWEST SUPPORT AND ADDITIONAL COVENANTS
4.1 NatWest Support of InterTrust Technology.
----------------------------------------
(a) NatWest Use of InterTrust Technology. In accordance with the
------------------------------------
licenses granted to NatWest and the other terms hereunder, in addition to those
provisions of Section 8.1, NatWest agrees to make commercially reasonable, good
faith efforts to develop, produce, and distribute or use for commercial
purposes, in a commercially meaningful manner, a NatWest Product (as applicable)
as soon as commercially reasonable and practicable, and in any case within
twelve (12) months following the Effective Date. Such time period shall be
extended by any period in which there is a delay in InterTrust's delivery of the
Commerce 1.0 (GA Version) software beyond that set forth as of the Effective
Date in Exhibit A hereto, or there exists a Material Defect in the Commerce 1.0
software that materially impedes NatWest's development efforts as relevant, but
only for the period from the date that NatWest shows such efforts to have been
first materially impeded to the date such defect has been reasonably corrected
or mitigated as provided in Section 2.2((b)).
(b) Compliance with InterTrust Specifications.
-----------------------------------------
(i) Products and Services. NatWest shall not commence the
---------------------
distribution, sale or other transfer of any specific NatWest Product, or perform
any service directly relating to InterTrust Technology, unless such products
and/or services are in Compliance with InterTrust Specifications. Such
InterTrust Specifications shall be established and applied in a
nondiscriminatory and consistent manner with respect to all Persons regarding
similar products, services, and/or circumstances directly related to use.
InterTrust Specifications promulgated as of the Effective Date are set forth in
Exhibit C hereto.
(ii) Compliance with New Specifications. InterTrust may, from time to
---- ----------------------------------
time, modify InterTrust Specifications to accommodate changes in InterTrust
Technology, and/or any related InterTrust product development, for such purposes
as, for example, improving architectural integrity, functional capability,
standardization, security capability, efficiency, and/or interoperability of
technology, components, products and/or services that use InterTrust Technology
(a "New Specification"). InterTrust shall use commercially reasonable efforts to
-----------------
maintain compatibility between a New Specification and the then-preceding
Specification taking into account benefits of performance, functionality,
security enhancements, growth of installed base and
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CONFIDENTIAL
range of supported platforms, and potential burden resulting from version
incompatibility. Priority shall be given to considerations of security,
interoperability and platform support in evaluating when such compatibility is
not commercially appropriate. To the extent InterTrust releases a New
Specification that applies to any portion of a NatWest Product and/or service
associated with InterTrust Technology then being performed or distributed by
NatWest (as applicable), NatWest shall bring any further such products delivered
to Customers, and/or any such services (as applicable), into Compliance with
such New Specification as of the earliest to occur of: (A) the next version,
release, or production cycle of such NatWest Product and/or such associated
service (the "Next Version"), as earlier applicable, but only to the extent that
------------
NatWest receives notice of such New Specification within a reasonably sufficient
time of such Next Version to accommodate new aspects of such New Specification;
and (B) [*] months after NatWest receives a released copy of such New
Specification. InterTrust and NatWest further agree that NatWest 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 NatWest Products 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, NatWest and InterTrust will confer and agree upon more
aggressive, practical schedules (taking into account the severity of security
and interoperability concerns) feasible to ensure Compliance with the New
Specification for all NatWest Products and any services relating to InterTrust
Technology. Under such conditions, NatWest shall take whatever commercially
appropriate steps are reasonable and required under the circumstances to
minimize or eliminate (as may be necessary) a continuation of such
interoperability and/or security problems. InterTrust represents to NatWest that
all Core Partner Agreements existing as of the Effective Date contain
substantially similar commitments regarding compliance by such Core Partner with
InterTrust Specifications and New Specifications as provided for in this Section
4.1(b)(c). If during the term of this Agreement InterTrust enters into a
technology development and/or license agreement with any Core Partner having
terms [*] to such Core Partner than those contained in this Section 4.1((b)),
and pursuant to such agreement the requirements of Compliance with
Specifications [*] to such Core Partner than the set forth in this Section
4.1((b)), NatWest shall thereafter going forward be accorded [*] regarding the
requirements of Compliance with Specifications under this Section 4.1((b)), but
solely to the specific extent and nature of such [*].
(c) Compliance Testing.
------------------
(i) Purpose. NatWest acknowledges that:(1) in support of InterTrust
-------
Technology, InterTrust will implement one or more certification programs
designed to ensure that licensed products and/or associated services (including
NatWest Products) use InterTrust Technology and/or Modified Technology in
Compliance with InterTrust Specifications in accordance with this Agreement (the
"Certification Program(s)"); and (2) such Certification Program(s) is (are)
------------------------
critical to maintaining the reliability, interoperability, and tamper resistance
of products and services employing InterTrust Technology and/or Modified
Technology, and in maintaining public confidence in the integrity of InterTrust
Technology and/or brands as the resource for interoperable electronic commerce.
In establishing its Certification Programs, as may be modified from time to
time, InterTrust shall use reasonable efforts to establish policies supporting
efficient certification of products and services based upon InterTrust
Technology, subject, in InterTrust's discretion, to achieving the aforementioned
goals of certification. As appropriate under the circumstances as determined by
InterTrust, such alternatives may, under certain circumstances, include: (A) the
pre-certification of certain components of InterTrust Technology for use in
NatWest Products; (B) providing test programs or suites amenable for self
certification or preliminary assessment of certifiability; and/or (C) otherwise
supporting certification policies and/or technology that enables reasonable
certification efficiency and Compliance with InterTrust Specifications. Any
Certification Program(s) established by or for InterTrust for Development
Partners shall be applied in a nondiscriminatory and consistent manner with
respect to NatWest and all other Persons providing similar products and/or
services.
(ii) Certification Requirements. Consistent with the foregoing,
--------------------------
prior to NatWest's first commercial use, or distribution, sale, or other
transfer, of a NatWest Product or associated service (as applicable) InterTrust
may require NatWest's: (1) use of a suite of test software provided by
InterTrust (or an InterTrust
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
13
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delegate ("Delegate") in accordance herewith) to test and verify that
--------
NatWest Products (and/or associated services) are, at least in part, in
Compliance with InterTrust Specifications; and/or (2) submission of samples to
InterTrust (and/or an InterTrust Delegate) of such NatWest Products (in Object
Code form unless Source Code is necessary or reasonably appropriate) and
associated programs, parameter data, and other information that may be
technically material to ascertain Compliance with InterTrust Specifications
and/or to allow InterTrust (or a Delegate) to perform confidential testing
("Certification Testing"). To the extent that options (1) or (2) immediately
---------------------
above do not, or can not reasonably be anticipated to, provide sufficient
information to verify Compliance, such Certification Program(s) may also require
the provision to InterTrust and/or an InterTrust Delegate of detailed
specifications and documentation related to NatWest's use of InterTrust
Technology and Modified Technology for NatWest Products, and/or any associated
services, but only to the extent that any such specifications and documentation
are reasonably requested for certification assessment purposes and may be
material to Certification Testing. All specifications and documentation provided
by NatWest in connection with any such Certification Program(s) shall be
authenticated in writing by an authorized representative of NatWest, and no
NatWest Product and/or associated service shall be made commercially available
hereunder unless it has become a Compliant Product (defined below). Any such
Delegate performing certification in connection with NatWest Products and
associated services hereunder shall: (A) not have commercial interests
materially adverse to NatWest; and (B) have agreed to enter into a
confidentiality agreement to maintain the confidentiality of NatWest
Confidential Information.
(iii) InterTrust Certification Response. In connection with any
---------------------------------
submissions made to InterTrust or an InterTrust Delegate in connection with a
Certification Program, InterTrust (or such Delegate) will respond in a
reasonably prompt manner recognizing product delivery time frames as appropriate
following receipt of submitted products and access to, or receipt of technology
supporting, such service, unless commercially reasonable factors result in
prolonging such response. Such response shall be in the form of: (1) a written
approval that the product or service is certified (a "Compliant Product")
-----------------
(NatWest Products and services relating to InterTrust Technology not being
Compliant until such certification has been granted); or (2) if not approved, a
summary, with reasonable details as feasible, of problems and, where feasible,
suggested solutions.
(iv) Costs. To defray costs associated with the performance and
-----
administration of the Certification Program, in connection with the
certification of any product or service NatWest shall be charged a reasonable
fee not to exceed U.S. software industry norms for similar testing activities as
may be available (and, if in part or in full conducted or managed by InterTrust,
not more than the full cost incurred by InterTrust in performing, administering,
and/or managing such tests, and, to the extent conducted by a Delegate, not more
than fees charged by such Delegate to NatWest and InterTrust). An estimate of
such fee shall be provided to NatWest, as applicable, as soon as reasonably
practical upon NatWest's submission of samples or documentation for and access
to services, for testing, and such fee shall be paid by NatWest in accordance
with standard U.S. software industry practices.
(d) Documentation Format. NatWest may modify the format of Distributable
--------------------
Documentation and supplement the content thereof, but only in a manner
consistent with such Distributable Documentation, to the extent reasonably
necessary to enable NatWest's Customers to utilize NatWest Products and/or
associated services. Subject to the provisions of this Agreement, NatWest may,
at its expense, translate, or have translated for it, the Distributable
Documentation into any appropriate language for purposes of delivery to its
Customers or its own internal use. InterTrust shall have the right to receive
and approve (to the extent referencing InterTrust Technology and/or capabilities
and/or functions enabled by InterTrust Technology) any non-English translations
made by or for NatWest of documentation provided by NatWest concerning NatWest
Products and any related services (including Distributable Documentation),
legends and notices required pursuant to Section 0 hereof and other required
notices, and all versions of InterTrust Technology.
4.2 Customer and Clearing Agreements.
--------------------------------
(a) Basic Requirements. NatWest shall distribute NatWest Products only to
------------------
Customers (and perform associated services only for Customers), and only after
NatWest shall have first notified and required
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such Person to become bound by a form of customer agreement ("Customer
--------
Agreement") for such NatWest Product (and/or associated service) appropriate for
---------
such Customer (such as whether such Customer is an end-user or intends to
further distribute NatWest Product) as provided by NatWest. Such Customer
Agreement forms shall have terms relating to InterTrust Technology and
InterTrust's rights and interests consistent with and reflective of the terms of
this Agreement. Such Customer Agreement shall also have terms consistent with,
reflective of, and based upon the items set forth in Exhibit D hereto
(collectively, the "InterTrust Terms"). Such InterTrust Terms shall be signed by
----------------
an InterTrust Designated Officer and appended to Exhibit D, and NatWest and
InterTrust may from time to time supplement or amend Exhibit D as provided in
Section 0(0).
(b) Additional Provisions. The approved InterTrust Terms shall be used
---------------------
by NatWest in all Customer Agreements unless and until: (i) NatWest requests a
modification of the InterTrust Terms and InterTrust consents in its discretion
in writing to such modification; or (ii) InterTrust reasonably requires that
NatWest alter the InterTrust Terms where such alteration is needed to prevent or
mitigate any impairment of any part of its Intellectual Property Rights, or any
impairment of the security and/or interoperability of InterTrust Technology and
applications and/or services based thereon, for example in view of court
decisions and/or applicable regulations and/or newly available information.
Such alteration to the InterTrust Terms shall be signed by an InterTrust
Designated Officer and attached to Exhibit D in accordance herewith. NatWest
agrees and acknowledges that NatWest's compliance with this Section 4.2((b))
with respect to any specific Customer shall constitute a condition precedent to
the licenses granted under Section 3 hereof with respect to any such Customer's
use of NatWest Products and/or associated services. To the extent any InterTrust
Terms are deemed, or are reasonably believed by InterTrust to have a substantial
likelihood of being deemed, unenforceable or otherwise ineffective in any
relevant jurisdiction, NatWest shall, upon becoming aware of such InterTrust
Terms being deemed unenforceable or otherwise ineffective, or upon receiving
written notice from InterTrust as to such reasonable belief, substitute new
terms provided by InterTrust concerning such unenforceable or ineffective
provision in such Customer Agreement forms or existing Customer Agreements, and
take other actions as reasonably specified by InterTrust related to such
unenforceability concerns, including reforming, modifying and/or canceling any
such Customer Agreement if necessary to provide InterTrust with the legally
enforceable protection contemplated hereunder.
(c) InterTrust Terms Review. Under no circumstances: (i) shall any such
-----------------------
review by InterTrust of InterTrust Terms and/or any terms of any Customer
Agreement subsequently be interpreted and/or used as comments of InterTrust to
be relied upon by NatWest in any manner whatsoever regarding compliance of such
InterTrust Terms and/or such Customer Agreement terms with the provisions of
this Agreement; and/or (ii) shall any such review or lack of review by
InterTrust be deemed (1) binding on InterTrust or constitute any waiver of any
rights whatsoever hereunder by InterTrust and/or (2) an admission or waiver of
any kind whatsoever under any circumstances whatsoever, except that NatWest may
rely on InterTrust Terms attached to Exhibit D hereto as amended from time to
time in accordance herewith.
(d) Clearing Agreement. Where NatWest is performing any Clearinghouse
------------------
Function services for a Person selling, acting as lessor or licensor of,
vending, or in any comparable manner providing rights related to Content, or
performing any other activities constituting a Content Transaction for
consideration for such Content (a "Vendor"), NatWest shall have a written
------
agreement with such Vendor concerning such performance of Clearinghouse
Functions, and such agreement shall contain (in addition to the InterTrust
Terms, as applicable), at minimum, provisions: (i) requiring such Vendor to
report and certify Customer's Portion Information (as defined in Section
5.1((b)) hereof) to NatWest in writing, and regularly update such reported
information (consistent with the timing of NatWest's obligation to remit
royalties pursuant to Section 5.2 hereof) in the event of any change thereof;
(ii) terminating such agreement in the instance that such reported information
is found to have been materially or intentionally misrepresented or repeatedly
negligently reported; and (iii) permitting InterTrust to act as a third party
beneficiary (with the right to enforce) those provisions set forth in the
preceding subparagraphs (i) and (ii) under the law of such jurisdiction and
venue as set forth in the InterTrust Terms, unless any such terms are prohibited
by applicable law, and then as reasonably agreed by the Parties.
4.3 Notices and Branding.
--------------------
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(a) Product Notices. NatWest shall place Notices (as hereinafter defined)
---------------
on all NatWest Products, and Distributable Documentation: (i) in the "about
box," or (ii) at such other equivalent location(s) as may be required to provide
legally sufficient notice and/or as reasonably agreed in writing by InterTrust
and NatWest, such as on certain screens generated by or including the NatWest
Products and/or any associated services, and at such other locations as
appropriate to protect InterTrust's Intellectual Property or as may be
reasonable practice in the U.S. software industry. For purposes of this
Agreement, the term "Notices" shall consist of: (i) Intellectual Property
Rights, warranty, and disclaimer notices; and (ii) field of use notices
consistent with the terms of this Agreement (including protection of InterTrust
rights recognized hereby) as all such notices may be reasonably amended by
InterTrust from time to time consistent with the provisions of Section
4.2((b)), and this Agreement. A representative version of such Notices as of
the Effective Date are attached hereto as Exhibit E. NatWest shall not remove,
alter, cover, obfuscate and/or otherwise deface any InterTrust Trademarks or
Notices on any InterTrust Technology or associated documentation, marketing and
advertising materials therefor, and shall contractually prohibit any and all
Customers from -- and take commercially reasonable efforts to enforce such
prohibitions against any Person known by NatWest to be in breach of such
provisions concerning -- removing, altering, covering, obfuscating or otherwise
defacing of any InterTrust Trademarks or Notices on any InterTrust Technology
or associated documentation, marketing and advertising materials therefor.
Compliance with subsections (i) and (ii) immediately above (following notice
and opportunity to cure in accordance with the provisions of Section 13.2
hereof) shall constitute a condition precedent to the licenses granted under
Section 3 hereof with respect to those specific NatWest Products and/or
associated services not in compliance herewith.
(b) InterTrust Branding. NatWest shall, in accordance with the provisions
-------------------
of this Section 4.3((b)) and InterTrust's reasonable instructions provided from
time to time by InterTrust to NatWest, place the InterTrust brands as specified
below on all NatWest Products and associated services, Distributable
Documentation, marketing, sales, and advertising materials therefor, packaging
for any physical media containing any such products or services, on
initialization and/or start-up screens of any NatWest Products and/or
associated services, or such screens generated by or including the NatWest
Products and/or any associated services.
The InterTrust brands shall be the symbol or mark denoting Compliance of such
NatWest Products and/or associated services with InterTrust Specifications,
including the statement that such NatWest Products or associated services are
"InterTrustworthy" or "InterTrustable" (as such symbol or mark may be amended by
InterTrust from time to time consistent with the provisions of Section 4.4((e))
hereof). Such branding shall be located and appear in the manner specified by
InterTrust, which shall be prominent, although secondary to the brands of
NatWest and/or a NatWest Customer on a NatWest Product and/or service. Such
InterTrust branding shall be prominent, but not unreasonably detract from, or
interfere with, such other brands. NatWest shall not remove, alter, cover,
obfuscate and/or otherwise deface any InterTrust brands and shall contractually
prohibit its Customers from, and take commercially reasonable efforts to enforce
such prohibitions against any Customer known to NatWest to be in breach of such
provision concerning, the removal, alteration, covering, obfuscation or
otherwise defacing of such InterTrust brands.
(c) NatWest Product Branding. NatWest Products that are: (i)
------------------------
Clearinghouse Products (and/or services associated therewith) shall be branded
and marketed solely under NatWest Trademarks; and (ii) Application Products
(and/or services associated therewith) shall be branded and marketed solely
under NatWest Trademarks or "Co-Branded" (as defined below) under a NatWest
----------
Trademark and the trademark of a Customer in accordance with the provisions
hereof (except where use of InterTrust Trademarks is also required herein, or
other trademarks of Persons are also included in a limited manner to identify
other technology or services associated with such NatWest Product and/or
associated service), and in all events in accordance with the provisions of
Section 4.5 and other provisions hereof. As used herein, "Co-Branded" means that
----------
both a NatWest Trademark brand and the brand of a NatWest Customer appear on a
NatWest Product and/or associated service; provided that the NatWest brand shall
-------- ----
at least be clearly evident and prominent in all instances of branding usage
without unreasonably detracting from or interfering with such NatWest Customer
brand. References to Clearinghouse Function services with, in, or otherwise
related to NatWest Products that are Application Products, and/or services
through which NatWest provides Clearinghouse Function services shall be
prominently branded solely under NatWest Trademarks (except as provided under
Section 4.3((b)) including prominent branding on screens and/or user interfaces
directly relating to initiating and/or reporting on transactions, and
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materially prominent, though potentially secondary, mention on other splash
screens and/or other relevant screens visible to end users. If NatWest is not
performing the Clearinghouse Function services for any NatWest Product and/or
associated service then, in addition to the foregoing with respect to a Co-
Branded Product, the NatWest Trademark Brand shall occupy not less than [*]
percent ([*]%) of the aggregate presentation area in any NatWest Product and/or
associated service dedicated to the presentation of any brands. In no event
shall branding be employed that may be in any manner unclear that the branding
and provision of Clearinghouse Products (and/or services associated therewith)
is provided solely by NatWest.
(d) Network Notices. At InterTrust's option and upon NatWest's approval,
---------------
which shall not be unreasonably withheld given the balance of commercial
reasons, NatWest Web pages that materially promote or otherwise support NatWest
Products, and/or associated services and InterTrust Technology (and/or at least
one NatWest Web page that materially promotes NatWest Products and/or associated
services if no Web pages materially promote or otherwise support InterTrust
Technology) shall contain a graphical banner provided by InterTrust and a link
to a Web page provided by InterTrust on the Internet or the equivalent thereof
on any other public electronic network that materially promotes InterTrust
Technology. At NatWest's option and upon InterTrust's approval, which shall not
be unreasonably withheld given the balance of commercial reasons, InterTrust Web
pages that materially promote or otherwise support InterTrust Technology and
NatWest Products and/or associated services (and/or at least one InterTrust Web
page that materially promotes InterTrust Technology if no Web pages materially
promote or otherwise support NatWest Products and/or associated services) shall
contain a graphical banner provided by NatWest and a link to a Web page provided
by NatWest on the Internet or the equivalent thereof on any other public
electronic network that materially promotes NatWest Products and/or associated
services so long as NatWest treats InterTrust as its preferred partner for
Secure Container and/or Digital Rights Management technologies.
(e) Prospective Notice. The Notices shall be effective beginning on the
------------------
date InterTrust gives NatWest written notice thereof and NatWest shall implement
and/or comply with applicable portions thereof as soon as reasonably
commercially practicable thereafter.
4.4 InterTrust Trademarks.
---------------------
(a) Standards. NatWest recognizes the importance of InterTrust's
---------
reputation and goodwill as the provider of a commercial trust environment and in
connection with NatWest's use and distribution of licensed products and services
bearing InterTrust Trademarks. Consequently, to maintain InterTrust's interest
in and rights to the InterTrust Trademarks NatWest shall utilize the InterTrust
Trademarks in accordance with reasonable trademark guidelines (which may include
approved samples and exemplars) as may be provided to NatWest by InterTrust.
Such trademark guidelines shall include a list of InterTrust Trademarks and
shall specify restrictions on use, if any, including permitted and prohibited
countries and jurisdictions. InterTrust Trademarks and trademark guidelines as
of the Effective Date are initially listed on Exhibit B attached hereto, and may
be modified by InterTrust from time to time upon InterTrust's provision to
NatWest of reasonable prior written notice. Any such modification shall not
include any names, logos or marks that substantially conflict, create a
likelihood of confusion with, or cause substantial or material dilution of any
then-existing trademark rights of NatWest.
(b) Trademark Ownership; Contestability. NatWest acknowledges and agrees
-----------------------------------
that all uses of InterTrust Trademarks as permitted hereunder, and goodwill
associated therewith, shall inure solely to the benefit of InterTrust. NatWest
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: (i) with
respect to any InterTrust Trademarks included on Exhibit B as of the Effective
Date ("Initial Trademarks"); and/or (ii) with respect to any InterTrust
------------------
Trademarks later added to such Exhibit B in accordance with Section 4.4((a))
("Added Trademarks") (provided that NatWest uses such Added Trademarks in
----------------
commerce during the term hereof). NatWest agrees to make available to
InterTrust, upon request with reasonable notice, samples of records and other
documentary evidence as is (are) retained in the ordinary course of
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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NatWest's business regarding its use of the InterTrust Trademarks, and
information regarding first use of the InterTrust Trademarks by NatWest in each
country.
(c) Confusing Similarity. NatWest shall not use any marks identical with
--------------------
or confusingly similar to any of the Initial Trademarks, or Added Trademarks
used in commerce by NatWest at any time, and shall not register or attempt to
register any marks identical with or confusingly similar to any Initial
Trademarks or any Added Trademarks used in commerce by NatWest at any time
during the term hereof. NatWest also shall not knowingly permit to be used or
affixed (and shall take commercially reasonable steps to prohibit Customer from
using or affixing) any trademark on any NatWest Product supplied to such
Customer to the extent such trademark could reasonably be thought to be
confusingly similar to or create any market confusion with any trademarks used
by such Customer in connection with any products or services using Secure
Container technology (other than InterTrust Technology Secure Containers).
(d) Approvals. InterTrust shall have the right to review (reasonably
---------
prior to first commercial use) and to approve (which approval shall not be
unreasonably withheld or delayed) all uses of InterTrust Trademarks, including
any use thereof on NatWest Products, and in connection with associated services
(including performance of Clearinghouse Functions) provided by NatWest relating
to products and applications employing InterTrust Technology and/or Modified
Technology, and in related documentation and marketing materials. Uses or
ranges of uses of InterTrust Trademarks approved in writing by InterTrust may be
used by NatWest in connection with NatWest Products and/or associated services,
and all applicable related documentation and marketing materials until
InterTrust informs NatWest in writing that such use or range of uses is no
longer approved, and such notification shall take effect in the manner set forth
in Section 4.3((e)) hereof.
(e) Prospective Notice. Changes in the InterTrust Trademarks and
------------------
associated standards of quality shall be effective beginning on the date
InterTrust gives NatWest written notice thereof and NatWest shall, as soon as
reasonably commercially practicable thereafter, implement and/or comply with
such respective portions thereof.
4.5 NatWest's Use of NatWest Trademarks on NatWest Products. To promote the
-------------------------------------------------------
branded and distinct identity of any NatWest Products, or associated services,
NatWest acknowledges and agrees that any trademark or logo used by NatWest
and/or a NatWest Customer (with respect to Co-Branded NatWest Products) in
commerce to specifically identify, label or market any such products or services
(other than trademarks or logos that serve to generally identify NatWest or such
NatWest Customer) shall not, concurrently or thereafter, be used to identify any
product or service other than such NatWest Products, and associated services,
whether by NatWest, such NatWest Customer, or pursuant to license from NatWest.
4.6 NatWest Trademarks. InterTrust shall obtain permission from NatWest for any
------------------
use of NatWest's Trademarks in connection with marketing activities (which
permission shall not be unreasonably withheld or delayed) and shall comply with
NatWest's instructions provided in writing by NatWest concerning such further
use of any NatWest Trademarks, except that InterTrust shall have the royalty
free, nontransferable (except as provided in Section 14.4) worldwide right to
use the NatWest Trademarks and other NatWest trademarks as selected by NatWest,
solely in connection with any publicity in accordance with Sections 4.3((d)),
7.1, 7.2 and 9.3 hereof. InterTrust shall comply with all reasonable trademark
guidelines provided in writing by NatWest concerning such use of any NatWest
Trademarks which guidelines shall specify restrictions on use, including
permitted countries and jurisdictions. The provisions of Section 4.4 shall apply
reciprocally to InterTrust with respect to NatWest Trademarks as it applies to
NatWest with respect to InterTrust Trademarks, and InterTrust shall comply with
such provisions. NatWest Trademarks and trademark guidelines as of the Effective
Date are listed on Exhibit B attached hereto, and may be reasonably modified by
NatWest from time to time upon NatWest'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, create a likelihood of
confusion with, or cause a substantial or material dilution of then-existing
trademark rights of InterTrust.
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5. LICENSE FEES AND PAYMENT TERMS.
5.1 Fees and Royalties.
------------------
(a) InterTrust Technology Fees. In consideration of the licenses granted
--------------------------
to NatWest herein and the other terms and conditions hereof, NatWest shall pay
to InterTrust the following nonrefundable license fees, net of any withholding
tax:
(i) concurrently with the execution hereof, [*] dollars ($US[*]);
(ii) within thirty (30) days after the delivery to NatWest of the
Commerce 1.0 (GA Version), [*] dollars ($US[*]);
(iii) upon the earlier of (1) NatWest's first commercial transfer
and/or use of a NatWest Product and/or associated services pursuant to Section
3.1((c)) and/or ((d)) hereof, or (2) one (1) year from the Effective Date, [*]
dollars ($US[*]), which payment shall be [*] due InterTrust in the manner set
forth in Section 5.2 below ("[*]");
(iv) within thirty (30) days after the delivery to NatWest of any
Update Release and/or New Release, which alone or in combination with previous
releases, contains all of Requested Functionality, [*] dollars ($US[*]), which
payment shall also be [*] due InterTrust in the manner set forth in Section 3.2
below as [*]; and
(v) within thirty (30) days after the delivery of Commerce 2.0 or
June 1, 2000 whichever is earlier, [*] dollars ($US[*]), and on the first day
of each calendar quarter for three calendar quarters, commencing with the first
calendar quarter after the payment set forth in Section 5.1((a))((iv)), [*]
dollars ($US[*]), all four of such payments shall also be [*] due InterTrust in
the manner set forth in Section 5.2 below as [*].
(b) InterTrust Technology Royalties. In consideration of the licenses
-------------------------------
granted to NatWest herein and the other terms and conditions hereof, for
NatWest's exercise of the license pursuant to Section 3.2 hereof NatWest shall
pay to InterTrust the following royalties, net of any withholding tax:
(i) six-tenths of one percent (0.6%) of the Gross Commercial Value
of each Content Transaction where such Content Transaction involves the
performance of a Clearinghouse Function;
(ii) two percent (2%) of the Gross Commercial Value received as
consideration for the complete or partial performance by or on behalf of NatWest
of any Clearinghouse Function, but not including those Clearinghouse Functions
that are set forth in Section 5.1((b))((i)) above;
provided that (x) in calculating the Gross Commercial Value of a Content
-------- ----
Transaction in accordance herewith in the instance where a royalty due under
subparagraph (i) above is based on any consideration provided to one or more
Vendors other than through NatWest (such consideration the "Customer's
----------
Portion"), NatWest may, in exercise of its good faith, rely upon information
-------
reported to it by such Vendors in accordance with the provisions of Section 0(0)
hereof quantifying sums of money as consideration, and/or the fair market value
of any other consideration, provided to such Person ("Customer's Portion
------------------
Information"); so long as NatWest has used reasonable efforts in accordance with
-----------
applicable industry practices of the Payment Card Services industry to assess
and validate the accuracy of such Customer's Portion Information, where
reasonable grounds for suspicion exist. NatWest shall promptly discuss with an
InterTrust Designated Officer any such suspicions (including any apparent
inconsistencies or anomalies with Customer's Portion Information); (y) where
royalties both under subparagraphs (i) and (ii) immediately above would result
from such performance of Clearinghouse Functions for the same, identical,
discrete Content Transaction or other electronic event, then in such instance
only the greater of the two royalties described in (i) and (ii) above (measured
by the amount to be received by InterTrust
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
19
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hereunder) shall be due and payable to InterTrust for such identical discrete,
Content Transaction or other electronic event; and/or (z) the Gross Commercial
Value received as consideration for the complete or partial performance by or on
behalf of NatWest of any Clearinghouse Function for purposes of subparagraph (i)
and (ii) above shall not include consideration received by NatWest or any Person
controlled by NatWest ("NatWest Affiliate") for the offering by NatWest or a
NatWest Affiliate of a NatWest or NatWest Affiliate product and/or service to an
end user wherein such NatWest or NatWest Affiliate product and/or service: (1)
has been positioned or offered based in whole or in part upon NatWest's and/or
NatWest Affiliate's use of information derived by NatWest at least in part from
the use of any InterTrust Technology and/or Modified Technology; (2) is
reasonably considered to be a financial industry product and/or service; and (3)
is not, for compensation, being provided in whole or in part to provide the end
user with any such derived information; and
(iii) for all revenue and the monetary value of any other
consideration, if any, received by NatWest directly in connection with the sale,
lease, license, distribution, transfer, or other use of NatWest Products and/or
services that utilize NatWest Products and/or InterTrust Technology (such as
service fees for packaging third party Content and/or fees for hosting Content
in connection with a NatWest service), and not based on performance of
Clearinghouse Functions, a royalty of two percent (2%) of all such revenue and
any such monetary value for other consideration received by NatWest, minus any
sales, use, value added or other taxes (except withholding taxes) imposed by any
national, state, local or foreign government and paid by and/or for NatWest on
such received revenue and/or any other consideration (as calculated according to
generally accepted accounting principles consistently applied with past
practices).
(c) Support and Maintenance Fee. Subject to the provisions hereof, in
---------------------------
partial consideration of InterTrust's provision of Support and Assistance set
forth in Section 2.2 hereof, and Upgrades and New Releases, during the Support
Period, NatWest shall pay to InterTrust the amount of [*] dollars (US$[*]) on an
annual basis (the "Support Fee"). NatWest shall pay the Support Fee in four
-----------
quarterly installments within thirty (30) days after each calendar quarter in
accordance with Section 0 hereof.
(d) [*]. If InterTrust [*] to such licensee than those granted to NatWest
hereunder (the Parties' acknowledging that license scope and partnering
commitments are important terms in the overall consideration), and pursuant to
such agreement: (i) [*] the type in [*], and/or [*] set forth in such sections
hereof; and/or (ii) the [*] or any [*] is [*] to the licensee thereof than that
set forth in Section [*] hereof, the [*] set forth in Section [*], and/or [*]
hereof shall [*], as applicable, to such [*] charged to such other licensee or
NatWest shall thereafter going forward be [*], as applicable. Upon NatWest's
written request which shall not be made more than [*] in any calendar year,
InterTrust will deliver a written confirmation certified by the General Counsel
of InterTrust as to whether the [*] under Section [*] remain applicable or
whether Natwest is entitled to [*] by virtue of this Section 5.1(d).
(e) Review of Royalty Rates; No Minimum Royalty. Upon the seventh (7th)
-------------------------------------------
anniversary of the Effective Date, or earlier if requested by NatWest in writing
as a result of significant market exigency, the Parties agree to discuss and
review the royalty rates set forth in Section 5.1((b))((i)), 5.1((b))((ii)),
and/or 5.1((b))((iii)) hereof. Any change in such rates shall be subject to
agreement in writing by NatWest and InterTrust in the exercise of each party's
discretion. Neither Party shall have any obligation whatsoever to agree to any
modification of such royalties. NatWest is under no obligation to meet any
royalty minimum usage requirements, and, provided that it complies with its
obligation of Section 5.1((a)) and 5.1((b)), NatWest shall have freedom to price
its Content Transactions and Clearinghouse Functions, including the option not
to charge its Customers.
(f) Suspension of Certain License Payments. In the event a [*] causes a
--------------------------------------
[*] in one or more of NatWest's services involving the commercial performance of
[*]
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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[*] and such service(s) with which the [*] is associated is a substantial
service in the context of the overall such services being delivered by
NatWest and supported by and employing InterTrust Technology, NatWest shall be
entitled to [*] that become due and payable under Section 5.1(a) during the
[*]-- i.e., from the time that [*] is reported to InterTrust as set forth in
----
Section 2.2 (b) (ii) until such time InterTrust has provided an [*] or [*]
and/or [*] to temporarily correct or mitigate such [*] in the manner set forth
an in Section 2.2(b)(ii) hereof.
5.2 Payment Procedure. Commencing upon the first payment by NatWest to
-----------------
InterTrust of royalties specified in Section 5.1((a))((iii) or 5.1((a))((v))
hereof NatWest shall be [*] percent ([*] %) of all [*] under Sections
5.1((b))((i)) and 5.1((b))((ii)) in a calendar quarter [*]; provided that the
-------- ----
total amount of all such [*] during the term shall not exceed [*] dollars
($US[*]) in the aggregate. Except as otherwise expressly provided in this
Agreement, within [*] days after the end of each calendar quarter, NatWest shall
pay InterTrust all amounts due and/or payable pursuant to the licenses and
support provided hereunder, and received during such calendar quarter. NatWest
shall make all payments hereunder by wire transfer to such account as designated
by InterTrust in writing. Concurrently with each royalty payment, NatWest shall
provide to InterTrust a written royalty report, certified to be accurate by an
officer of NatWest specifying: (i) the revenues derived by NatWest 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 NatWest 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.
5.3 Currency. Gross Commercial Value and all consideration received by NatWest
--------
pursuant to Section 5.1((b)) in a currency other than U.S. dollars shall be
converted by NatWest to U.S. dollars on a monthly basis for purposes of payment
to InterTrust on a quarterly basis according to the rate of exchange for such
currency, as published by The Wall Street Journal (Western Edition) on the last
business day during each calendar month of a calendar quarter for which such
royalties are due. If The Wall Street Journal (Western Edition, or main edition
in absence of a Western Edition) ceases or fails to publish such rate of
exchange at any time during the term of this Agreement, the 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. In the
event all of the above cease to operate, the Parties shall reasonably agree upon
another internationally reputable source for such rate of exchange.
5.4 Taxes. NatWest 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. NatWest 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 NatWest of the NatWest Products, and with respect to
NatWest'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 or licensing to NatWest of the InterTrust Technology hereunder
or with respect to the payments received hereunder.
5.5 Interest. NatWest agrees that all sums owed or payable to InterTrust
--------
hereunder shall bear interest (compounded daily) at the rate of [*] percent
([*]%) per month or [*] percentage ([*]%) 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 NatWest 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 NatWest's express obligation to timely provide any and
all payments due to InterTrust hereunder.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
21
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5.6 Audit. NatWest shall maintain during the term of this Agreement and for a
-----
period of five (5) years thereafter all books, records, accounts, and technical
materials regarding NatWest's activities in connection herewith sufficient to
determine and confirm NatWest's royalty obligations hereunder. Upon InterTrust's
request, NatWest will permit an independent auditor from one of the five largest
international accounting firms of InterTrust's choice (subject to NatWest's
consent, which shall not be unreasonably withheld or delayed) to examine and
audit, at InterTrust's expense, during a reasonable time (but no more than once
during a six (6) month period), such books, records, accounts, documentation and
materials, and take extracts therefrom or make copies thereof for the purpose of
verifying the correctness of reported royalty statements and payments provided
by NatWest. Prior to such audit, InterTrust shall cause such independent auditor
to execute a written confidentiality agreement supplied by NatWest, which shall
contain terms that are commercially reasonable under the circumstances and are
designed to reasonably protect the confidentiality of NatWest's information.
NatWest shall pay any unpaid delinquent amounts disclosed by such audit within
ten (10) days of InterTrust's request; provided that any such payment shall not
constitute an admission or waiver of any kind. To the extent such examination:
(i) discloses an underpayment of more than [*] dollars ($US[*]) and such
underpayment represents a sum greater than [*] of the sums paid to InterTrust by
NatWest during the applicable period subject to such audit; or (ii) discloses an
underpayment of more than [*] dollars ($US[*]), NatWest shall fully reimburse
InterTrust, promptly upon demand, for the reasonable 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 NatWest of such
overpayment and NatWest will apply the amount of such overpayment against future
royalties due and payable to InterTrust (and such application against future
royalties shall not be subject to the provisions of Section 5.2 hereof
concerning the [*]).
6. PROPRIETARY INFORMATION AND OWNERSHIP.
6.1 InterTrust Ownership. NatWest acknowledges and agrees that, as between
--------------------
InterTrust and NatWest, 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,
created by (or for) or owned by 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 and solely by
(and/or by any third party for) InterTrust in connection with its performance of
this Agreement; and (iii) Modified Technology not owned by NatWest pursuant to
Section 0 hereof, and all Intellectual Property Rights embodied therein
(collectively, the "InterTrust Property"). No provision contained in this
-------------------
Agreement shall be construed to transfer to NatWest or any other Person any
title or ownership interest in any InterTrust Property.
6.2 NatWest Ownership. As between NatWest and InterTrust, NatWest shall be the
-----------------
sole and exclusive owner of the portions of the following created independently
and solely by (and/or by any third party for) NatWest hereunder, and shall
retain and hereby reserves (and nothing herein shall alter NatWest's reservation
of) all right, title and interest in: (i) any NatWest Products, except with
respect to any InterTrust Property incorporated therein; (ii) Modified
Technology created in accordance with the terms hereof (except such Modified
Technology that merely re-implements the existing functionality of InterTrust
Technology provided to NatWest, including, for example, porting or translation
thereof, which shall be deemed InterTrust Property); and (iii) all Intellectual
Property Rights embodied in such part of NatWest Products or such Modified
Technology (collectively "NatWest Property") independently developed by NatWest
----------------
consistent with subparagraph ("i") and ("ii") above. No provision contained in
this Agreement shall be construed to transfer to InterTrust or any other Person
any title or ownership interest in any NatWest Property. As between NatWest and
InterTrust, NatWest shall be the sole and exclusive owner of any customer data
and usage information that is derived directly or indirectly by NatWest from a
NatWest Customer through any use of InterTrust Technology without any breach of
this Agreement or any obligations owed by any third Person to InterTrust;
provided that such data or information: (a) is not also communicated by such
-------- ----
Customer or any third Person to InterTrust; and/or (b) does not relate to
InterTrust or include any InterTrust Technology. Nothing in the foregoing
portion of this paragraph
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
22
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CONFIDENTIAL
shall be construed in any manner whatsoever to transfer, license or grant any
license or right to any Intellectual Property Rights of InterTrust.
6.3 NatWest Limited License to InterTrust. In consideration of the licenses
-------------------------------------
granted, and other consideration provided, by InterTrust to NatWest under this
Agreement during the term of this Agreement, NatWest hereby grants:
(a) to InterTrust, its affiliates, and their successors, assigns, and
direct and indirect customers a nonexclusive, royalty-free and worldwide license
under all patent rights of NatWest to manufacture, have manufactured, use, sale,
offer for sale, license for use, import, distribution and/or otherwise
exploitation of: (i) InterTrust Technology; (ii) any technology that directly
interfaces with, or is necessary for applications built on top of InterTrust
Technology to be interoperable with, the API (Application Programming Interface)
of InterTrust Technology; and/or (iii) technology permitting the Management of
Content by the application and technical enforcement, at least in part of, Rules
and Controls, and/or distributed, peer-to-peer operating system technology; but
solely to the extent that such activities would, but for such license, infringe
any such patent rights of NatWest (including any patents disclosing and/or
claiming any Modified Technology); and
(b) to InterTrust, its affiliates and their successors a nonexclusive,
royalty-free and worldwide license under the Intellectual Property Rights (other
than trademarks, trade names, and service marks) of NatWest to use NatWest
Products solely in connection with InterTrust's internal development of any
product, or internal performance of any services, and/or evaluation of such
NatWest Products, provided that the foregoing provisions of this Section
6.3((b)) are for internal use only of NatWest Products and shall not be
construed to include external distribution of any NatWest Product or portion
thereof.
InterTrust represents to NatWest that all Core Partner Agreements existing as of
the Effective Date contain substantially similar commitments regarding the grant
by a Core Partner of certain patent licenses as provided for in this Section
6.3. If during the term of this Agreement InterTrust enters into any Core
Partner Agreement having terms [*].
6.4 Independent Technology. Except as provided in the provisions of Section
----------------------
8.2 hereof, nothing in this Agreement shall be construed to prohibit NatWest
from using, selling, licensing, transferring or otherwise exploiting any
technology that NatWest: (i) can demonstrate was developed by NatWest employees
or consultants without the use of, reliance on, or reference or access to, any
portion of InterTrust Technology and/or Modified Technology, and without any
breach of this Agreement or any other obligation owed to InterTrust, and in
which InterTrust does not have any patent rights; or (ii)(a) rightfully obtains
directly or indirectly from a third Person who has not (1) breached any legal
obligation owed to InterTrust and/or (2) obtained such InterTrust technology in
violation of any law, and (b) which does not infringe or misuse any InterTrust
Intellectual Property Rights or other legally cognizable rights of InterTrust of
any kind whatsoever; (collectively, "Independent Technology"). Nothing in this
----------------------
Section 6.4 shall be construed to grant any licenses or rights of any kind
whatsoever to NatWest with respect to such Independent Technology.
7. JOINT ACTIVITIES AND FURTHER COVENANTS.
7.1 Joint Press Releases. Promptly following the Effective Date, the Parties
--------------------
shall work together to publicly issue one or more mutually agreeable press
releases disclosing the existence of this Agreement, describing the Parties'
intentions to develop important electronic commerce products, services, and
technology, and generally promoting NatWest Products, the InterTrust Technology,
and the planned InterTrust-related services of NatWest (the "Joint Press
-----------
Releases"). Unless otherwise agreed in writing, all further public disclosures
--------
by either Party
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
23
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concerning the subject matter of the Joint Press Releases shall be consistent
with the content of the Joint Press Releases. All other disclosures with respect
to the terms hereof shall be made in accordance with Section 0.
7.2 Promotion and Marketing. Following the Effective Date, relevant personnel
-----------------------
of NatWest and InterTrust shall meet from time to time to discuss, frame and
prepare a joint activity marketing plan to promote their commercial relationship
hereunder. In connection with such marketing plan, the Parties shall jointly
and reasonably cooperate with each other, and participate in, from time to time,
promotional, marketing, and sales activities designed to: (i) increase industry
awareness of both InterTrust and InterTrust Technology, and NatWest Products;
(ii) promote the dissemination and use of InterTrust's technology as the general
purpose electronic rights standard solution for electronic commerce; and (iii)
promote NatWest as a primary electronic commerce service provider. InterTrust
shall reasonably: (a) assist and support NatWest in the establishment of
relevant NatWest brands on NatWest Products and associated services; and (b)
appropriately support NatWest's Clearinghouse Functions and related services by
communicating the availability of such services, as reasonable and appropriate
to potentially interested persons; provided that NatWest promotes and uses
-------- ----
InterTrust Technology in the Preferred Positioning manner set forth in Section
4.2. NatWest shall reasonably assist InterTrust with marketing activities
relating to the InterTrust Technology by, for example, displaying and endorsing
the display of certain InterTrust Trademarks on products and services (and
materials relating thereto) and jointly participating, as mutually agreed, in
trade shows and customer events. At no time shall NatWest or InterTrust make any
representation or warranty to any Person materially inconsistent with: (1)
InterTrust Specifications or Documentation; or (2) the efforts of the Parties
with respect to promotion, marketing or other matters under this Agreement. As
relevant and appropriate from time to time, and to encourage efficient
partnering efforts concerning approaching customers and staging their own
promotional and marketing activities, each Party agrees, in its reasonable
discretion, to share with the other, as appropriate (and subject, for example,
to the absence of a specific, material conflict in interest regarding the
disclosure of any specific marketing information), its marketing plans relevant
to the commercialization of InterTrust Technology, NatWest Products and
associated services, and/or other material InterTrust and/or NatWest electronic
commerce services and/or products, and related public relations activities.
7.3 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 shall meet regularly at a forum
---------
to be selected by InterTrust for the purpose of: (a) discussing and exchanging
ideas for improving the functionality, interoperability, and market
acceptability of InterTrust Technology and related issues pertaining to the
electronic commerce industry; (b) providing input to InterTrust regarding
InterTrust product marketing, and development of Upgrade Releases and New
Releases; and (c) keeping Core Partners confidentially appraised as to planned
upcoming changes in InterTrust Technology or Specifications, as commercially
reasonable for InterTrust in its discretion. Upon the establishment of the
Technology Advisory Committee: (1) InterTrust shall grant NatWest the right to
have one seat as a member of the Technology Advisory Committee; and (2) NatWest,
at its option, may elect and notify InterTrust of its designation of an
executive (who may be an employee of NatWest and who shall not be involved in
Supporting Other Technology, and shall be an Agent of NatWest for
confidentiality purposes in accordance with Section 1 of Exhibit G attached
hereto) to serve on such committee. To the extent it participates, NatWest
shall: (A) be responsible for all acts and omissions of the representative in
connection with the Technology Advisory Committee; and (B) pay for all expenses
incurred by NatWest in connection with participation on such Committee.
NatWest's membership on the Technology Advisory Committee shall be contingent
upon (and subject to): (X) material adherence to generally applicable committee
rules, and the terms and conditions hereof; (Y) NatWest avoiding activities that
materially conflict with InterTrust's interests as determined by InterTrust; and
(Z) continuation of the Technology Advisory Committee.
7.4 Security Validation. Throughout the term hereof, InterTrust and NatWest
-------------------
will reasonably cooperate and work together to maintain, enhance and promote the
robustness of the security aspects of InterTrust Technology
24
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CONFIDENTIAL
and NatWest Products and associated services, as reasonably determined by
InterTrust and/or NatWest with respect to its technology, products or services,
as applicable, and taking into account and balancing relevant interests such as
commercial feasibility and desirability, the varying nature of applications and
implementations of NatWest Products, regulatory and governmental restrictions,
and overall commercial use of InterTrust Technology by NatWest. InterTrust
agrees to use commercially reasonable, practical and affordable efforts with
respect to InterTrust Technology, and NatWest agrees to use commercially
reasonable, practical and affordable efforts with respect to NatWest Products,
to establish and perform or have performed, security testing procedures and
practices, including use of appropriate, circumscribed, third party "tiger
testing." The Parties will further discuss and work together to consider, where
(and as) practical, affordable and appropriate, obtaining validation and/or
certification for appropriate portions of the respective Party's security
related technologies and/or services from one or more relevant and appropriate
third parties or organizations. Each Party agrees to share with the other
relevant aspects of test results for, and/or identified security breaches of,
InterTrust Technology and NatWest Products where practical, subject to
confidentiality obligations, requirements of law, and appropriate security
practices.
8. PARTNERING COMMITMENTS.
8.1 InterTrust Partnering Commitment.
--------------------------------
(a) Initial Commitment Period. Subject to the terms hereof (including
-------------------------
NatWest's performance of its partnering commitment set forth in Section 8.2),
and in the absence of NatWest's prior written consent, InterTrust shall not [*]
with (or [*]) any Banking Institution (as defined in Exhibit F attached
hereto) other than NatWest ("InterTrust Partnering Commitment") for a period of
[*] year from the Effective Date (the "Initial Commitment Period"); provided
------------------------- --------
that if InterTrust provides NatWest with the Commerce 1.0 (GA Version) release
----
after December 31, 1998, then the Initial Commitment Period shall be extended
beyond such period of [*] year by that number of days between December 31, 1998
and the date upon which such Commerce 1.0 (GA Version) is so provided.
Notwithstanding the foregoing, InterTrust shall be entitled to [*] (or [*])
with: (A) a Person that is not a US Bank or a Foreign Bank (each as defined in
Exhibit F) as of the effective date of the Core Partner agreement, provided that
if such Person is a Foreign Bank Affiliate as of the effective date thereof
InterTrust shall prohibit such Person in such Core Partner license agreement
from assigning any rights to perform any Payment Card Services that are (or are
broadly equivalent to) Clearinghouse Functions under such license agreement to
any Foreign Bank or other Foreign Bank Affiliate during the Commitment Period;
and/or (B) any non-sovereign state or government, and/or any foreign bank
controlled by a sovereign state or government outside of the European Union.
Further notwithstanding anything herein, InterTrust may from time to time inform
NatWest in writing of prospective Core Partners, but not more frequently than
[*] Core Partner requests per calendar quarter. Within ten (10) business days
thereafter NatWest shall notify InterTrust in writing whether such prospective
Core Partner is a Banking Institution (as defined in Exhibit F) or has a Foreign
Bank Affiliate. Where NatWest has notified InterTrust that such prospective Core
Partner is not deemed to be a Banking Institution, or has failed to so provide
notice within such time period, InterTrust shall have the right to [*] without
any obligation or liability hereunder. Such InterTrust Partnering Commitment
shall continue during the Initial Commitment Period only if NatWest devotes (and
NatWest hereby agrees that it shall devote) serious and substantial efforts and
resources to: (i) offer, provide, publicly promote, support and make available
in a commercially meaningful, expeditious, and general purpose manner one or
more competitive, global financial clearing services supporting licensed
InterTrust Technology users (assuming, where applicable, reasonable prior
agreement between NatWest and such users) (a "Global Clearing Service"); and
-----------------------
(ii) establishing definitive commercial relationships with two or more premier
financial or clearinghouse institutions or other relevant important parties to
provide infrastructure services using InterTrust technology to support Content
Transactions (for example, top-ranked, world-class Banking Institutions, or
other financial institutions or non-bank clearinghouses with major strategic
presence) as decided and agreed upon by each of the Parties ("Important
---------
Parties"), where such Important Parties agrees to support InterTrust
-------
Technology in a manner comparable to NatWest as described herein and at least
through preferentially performing financial Clearinghouse Function services for
the Commitment Period (defined below) and a commercially meaningful period
thereafter (collectively, the "Performance Criteria"). At least one of such
--------------------
Important Parties shall be based in the United States and be a top-ranked
Banking Institution or financial/clearinghouse Important Party (including, for
example, [*]). The Parties anticipate NatWest having the primary direct
commercial relationship with such Important Parties; provided that such
-------- ----
Important Parties will need to obtain a license from InterTrust with respect to
InterTrust Technology. The InterTrust Partnering Commitment shall not limit in
any way whatsoever the rights of: (1) InterTrust to work with or license any
technology or Intellectual Property Rights to any Person so long as InterTrust
complies with this Section 8.1; and/or (2) any InterTrust Core Partner to
exercise its rights with respect to InterTrust technology (so long as any such
Core Partner is not a Banking Institution which first became a Core Partner
during the Commitment Period).
(b) InterTrust Partnering Commitment Extension. If, as of the close of
------------------------------------------
the Initial Commitment Period NatWest has complied with the provisions of
Section 8.2((a)), is publicly offering and providing a Global Clearing Services,
and has executed heads of agreement (containing substantially detailed
fundamental terms) ("Heads of Agreement(s)") with at least two (2) Important
---------------------
Parties as provided in Section 8.1((a)) and redacted copies of which are
provided to InterTrust (provided that the non-redacted provisions in such
-------------
Heads of Agreement must be sufficient to allow InterTrust to determine whether
NatWest's obligations in Section 8.1((a)) have been satisfied), then (except
where the Scaleback Option (defined below) has been exercised because NatWest
has decided to engage in those activities set forth in Section 8.2((c)) the
InterTrust Partnering Commitment shall be extended for an additional [*] year
period, except that such period shall earlier terminate three (3) months after
the expiration of the Initial Commitment Period if NatWest has failed to execute
binding definitive agreement to effectuate the Heads of Agreements with such
Important Parties prior to the end of such three (3) month period (the "Second
------
Commitment Period"; the Initial Commitment Period and any such extension or
-----------------
further extension collectively, the "Commitment Period"). During the Second
-----------------
Commitment Period, if any, NatWest shall use serious and substantial efforts to
establish a global consortium of Important Parties committed to supporting
InterTrust Technology as the technology standard for Digital Rights Management
in the area of financial clearing services, and the Parties contemplate that
NatWest will have formed such consortium of Important Parties committed to
establishing InterTrust Technology as the de facto standard for Digital Rights
-- -----
Management (as defined in Exhibit F) and related financial clearing. If
InterTrust Technology has become the global de facto standard for Digital Rights
-- -----
Management, the InterTrust Partnering Commitment may be subject to a further
extension at InterTrust's discretion, and for such period as InterTrust may
notify NatWest in writing.
25
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
8.2 NatWest Partnering Commitment. Subject to InterTrust's performance of its
-----------------------------
partnering commitment set forth in Section 8.1 and in partial consideration for
providing NatWest with early, substantial access to Confidential and Top Secret
Information, initial development rights and privileges concerning InterTrust
Technology, Intellectual Property Rights, and the rights granted to NatWest
hereunder (including certain "most favored" provisions and the InterTrust
Partnering Commitment), NatWest agrees to the following partnering commitment
(the "NatWest Partnering Commitment"):
-----------------------------
(a) Preferred Solution. During the Commitment Period, NatWest and its
------------------
respective units and controlled affiliates shall: (i) refrain from acting as a
clearinghouse for any Secure Container technology other than Secure Containers
of the InterTrust Technology, and/or performing any activities and/or services
that would constitute Clearinghouse Function activities and/or services if
InterTrust Technology, Modified Technology, or information derived at least in
part from use of such technology were used, where the foregoing activities and/
or services result from the use of any Secure Container technology other than
Secure Containers of the InterTrust Technology; and (ii) treat InterTrust
Technology as NatWest's preferred and primary Digital Rights Management
technology and/or Secure Container technology solution ("Preferred
---------
Positioning"). In providing such Preferred Positioning, NatWest shall: (1)
-----------
recommend, endorse, and actively and publicly promote InterTrust Technology as
its preferred and primary Digital Rights Management and Secure Container
technology and business solution, and InterTrust as its preferred and primary
Digital Rights Management partner, provided that the foregoing in regard to any
-------- ----
press release shall also be consistent with the provisions of Section 7.1; and
(2) refrain from deploying, using, licensing, developing, marketing, negotiating
agreements related to, and/or otherwise supporting (including recommending,
promoting, or otherwise endorsing in a substantive manner (e.g., in any
----
promotional materials), and/or assisting another Person in the deployment, use,
license, development and/or marketing of) (hereafter, "Support[s][ing]") Digital
---------------
Rights Management and/or Secure Container technology other than Digital Rights
Management and Secure Container Technology of the InterTrust Technology ("Other
-----
Technology"). Notwithstanding the foregoing, "Support[s][ing]" for purposes of
----------
this Section 8.2 ((a)) shall not include the mere provision of and/or
arrangement of loans or other financings for Persons by affiliates or operating
units of NatWest other than Card Services, where such provision or arranging of
loans or financing is made in the ordinary course of its business. Further
notwithstanding the foregoing, if at any time any affiliate or operating unit of
NatWest other than Card Services decides to make, or otherwise approves, any
investment by NatWest in equity or similar securities in any Persons whose
business involves, or has announced either publicly or to NatWest that it plan
to engage in, the development, distribution, licensing or marketing of
Distributed Peer to Peer Rights Management technology (as defined in Exhibit F)
(but not including any investment made by NatWest pursuant to its employees
retirement investment fund or of another Person's funds acting on such other
Person's behalf (and where no equity participation is taken by NatWest for its
own account)) ("Non-Partnering Investment Decision"), NatWest shall immediately
----------------------------------
notify InterTrust in writing. Upon any such Non-Partnering Investment Decision,
InterTrust, as its sole and exclusive remedy, shall be entitled to terminate all
or any portion of its obligations under Section 8.1, which termination shall be
effective (notwithstanding any cure procedures set forth in Section 13.2) six
(6) months after the date of such Non-Partnering Decision. Exhibit F hereto sets
forth, as of the Effective Date, a sample list of products that, to InterTrust's
knowledge, claim to use Secure Containers and/or provide Digital Rights
Management solutions. Such list may be supplemented or amended from time to time
by InterTrust during the Commitment Period.
(b) Use of Other Technology Providers. If at any time during the
---------------------------------
Commitment Period NatWest decides to initiate activities Supporting any Other
Technology, NatWest shall promptly (and in all events as soon as reasonably
practical and before initiating such activity) notify InterTrust in writing of
such intent (a "Non-Partnering Event"). Such notice shall provide InterTrust
--------------------
with reasonable summary information regarding such Other Technology, including
generally the scope and nature of contemplated Supporting activity, and such
other information as may be reasonably useful in order to assist InterTrust in
deciding whether to exercise the Scaleback Option, except that such notice need
not disclose any detailed proprietary information (other than the fact that
NatWest is initiating Support of Other Technology) that may be subject to
confidentiality obligations
26
<PAGE>
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owed by NatWest to any third Person (the "NatWest Notice"). Similarly, if
--------------
InterTrust becomes aware of any information that causes InterTrust to believe
that a Non-Partnering Event may have occurred, InterTrust shall so notify
NatWest in writing and provide NatWest with reasonable information concerning
the nature of InterTrust's information ("InterTrust Notice"). In the event of
-----------------
such an InterTrust notice to NatWest, NatWest shall promptly thereafter provide
a written communication to InterTrust responding to InterTrust's notice and
providing information regarding such InterTrust-provided information as is
reasonably calculated to enable InterTrust to decide whether to exercise the
Scaleback Option, except that such communication need not disclose any detailed
proprietary information (other than the fact that NatWest is initiating Support
of Other Technology) that may be subject to confidentiality obligations owed by
NatWest to any third Person. After a NatWest Notice or InterTrust Notice has
been sent in accordance with this Section 8.2((b)), the Parties shall promptly
and reasonably cooperate with each other to gather and report such relevant
facts and circumstances as may be reasonably required by InterTrust to: (1) help
InterTrust determine whether a Non-Partnering Event has occurred; and (2) help
InterTrust decide whether to exercise its Scaleback Option.
(c) Scaleback Option; Remedies. If NatWest has delivered the NatWest
--------------------------
Notice, or if information available to InterTrust after the completion of the
process initiated pursuant to Section 8.2((b)) following the delivery by
InterTrust of the InterTrust Notice indicates to InterTrust that NatWest has
engaged (or is engaging) in a Non-Partnering Event that was the subject of such
notice, then InterTrust shall have the right, notwithstanding the provisions of
Section 8.l and/or other provisions of Section 8.2 hereof: (i) to scaleback the
InterTrust Partnering Commitment of Section 8.1((a)) such that InterTrust may
negotiate and enter into a Core Partner relationship with any Banking
Institution that grants such Banking Institution a license to use InterTrust
technology and perform Clearinghouse Functions in any field and in any manner
other than the provision of Payment Card Services (as defined below) under such
Banking Institution's brand; and (ii) if the Second Commitment Period or any
subsequent extension of such period is then in effect, InterTrust's Partnering
Commitment shall immediately terminate, or if such period has not yet commenced,
InterTrust Partnering Commitment shall not extend to the Second Commitment
Period nor any further extension period. Any failure by InterTrust to fully
exercise all of its rights under the Scaleback Option with respect to a
specific Non-Partnering Event shall not be deemed or construed to limit or
otherwise adversely affect in any manner whatsoever: (1) InterTrust's ability to
exercise the Scaleback Option with respect to other Non-Partnering Events, or
the specific Non-Partnering Events if circumstances about the nature of the
Non-Partnering Event, including available relevant information, change in the
future; and/or (2) seek or receive remedies at law or in equity with respect to
such specific or any other Non-Partnering Event except (and solely except) in
the circumstance expressly set forth in the following sentence. In the event a
material division, material business unit or controlled affiliate ("Unit") of
----
NatWest -- other, but solely other, than any such Unit having principal
responsibility for payment card services (including issuing credit, charge,
prepayment, or other payment cards (alone or in combination with other
services), and/or issuance of credit and/or performance of services for and/or
on behalf of merchants and/or cardholders concerning transactions involving such
cards) (collectively, the "Payment Card Services") -- Supports Other Technology
---------------------
in a manner in breach of Section 8.2((a)), InterTrust's sole remedy shall be
exercise of the Scaleback Option pursuant to this Section 8.2((c)) hereof. That
unit of NatWest having principal responsibility for Payment Card Services as of
the Effective Date is known as "Card Services" and shall not include any senior
business unit or function to which, or through which, Card Services reports (so
long as several Units report to or through such senior business unit or
function) and may, hereafter, if not held in a single unit, include other units
in combination to provide such Payment Card Services. Notwithstanding the
foregoing, if: (x) any Non-Partnering Event in accordance herewith involves
Other Technology that is a Distributed, Peer-to-Peer Digital Rights Management
Technology (defined in Exhibit F); (y) any Unit of NatWest participates in a
consortium not in existence as of the Effective Date Supporting Payment Card
Services for Other Technology (but not if that Unit of NatWest having principal
responsibility for Payment Card Services is directly Supporting Payment Card
Services for such Other Technology); and/or (z) any other terms and conditions
hereof (including Section 8.2((a)) are not complied with, then, in addition to
exercise of
27
<PAGE>
the Scaleback Option pursuant to this Section 8.2, InterTrust shall be entitled
to obtain such remedies as available at law or in equity.
(d) Limitations. Nothing in Section 8.2 of this Agreement shall be
-----------
construed to require NatWest to use InterTrust Technology in connection with any
particular NatWest payment services activity and/or product, if NatWest first
responds to any specific customer interest in any other product by using
commercially reasonable efforts to satisfy such customer request by recommending
the use of InterTrust Technology instead of an alternative requested technology
but such customer persists in requiring the use of such an alternative
technology. In addition, NatWest may: (i) act as an acquirer bank to provide
payment services to customers provided that no NatWest Trademark is apparent to
any end-user and NatWest is not acting directly under a license or sublicense to
provide clearing services supporting any Secure Container technology not
provided by InterTrust; and (ii) as an minor part of NatWest services, collate
and deliver Content of third Persons on a limited basis using Other Technology
solely for delivery of such Content, provided that (a) the owner or licensor of
-------- ----
such third party Content requires NatWest to use such Other Technology for the
delivery of such third Person's Content (and after NatWest has used commercially
reasonable efforts to persuade such third Person to allow the use of InterTrust
Technology in connection with such content delivery), (b) NatWest receives no
license to (and does not) modify, or otherwise customize such other Technology
in any manner, (c) NatWest refrains from associating any NatWest brand with such
third party Content (other than as generally indicated on such NatWest product
or service), and (d) NatWest does not promote the brand of the provider of such
Other Technology on any part of its general clearing services, marketing
materials or products, other than strictly to indicate that such Content is
being delivered using such Other Technology where necessary in the performance
of its service of delivering such Content.
(e) Clarification; Cooperation. During the Commitment Period, the Parties
--------------------------
shall reasonably cooperate with each other to appropriately and reasonably
address any questions and requests for clarification that are reasonably
provided and are consistent with this Agreement and that concern the nature and
applicability of the definitions of Digital Rights Management, Secure Containers
and other provisions of this Section 8 to specific situations; provided that in
-------- ----
all events the provisions of this Agreement, including, for example, Section
4.2((c)), shall apply to (and exclusive govern) all such discussions, and
nothing in responses to such questions and requests shall be deemed to modify
this Agreement or its terms and conditions in any manner whatsoever, unless
satisfying the requirements of Section 14.4 hereof.
28
<PAGE>
CONFIDENTIAL
9. CONFIDENTIALITY.
9.1 Classification of Technology and Documents. Technology, documents and
------------------------------------------
other information to be exchanged by the Parties shall be marked, as
appropriate, to identify the confidential or nonconfidential nature of the
information, and information exchanged orally or visually shall be described as
appropriate, to alert the recipient of the confidential or nonconfidential
nature of the information. As regards InterTrust Technology (including
Documentation) and other documents or information provided by InterTrust to
NatWest in tangible form, or provided orally or visually hereunder, such
information shall be marked, or indicated as: (i) "Unclassified"; (ii)
"Confidential"; or (iii) "Top Secret." NatWest information shall be marked or
indicated, as appropriate, 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 at the
time of such disclosure indicated to be within 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 0 of Exhibit G hereto.
9.2 Confidentiality Obligations. Subject to the provisions hereof, the Parties
---------------------------
(and their relevant personnel and agents) shall hold, maintain and treat
Confidential Information of NatWest or InterTrust, and/or Top Secret Information
of InterTrust, as applicable, in the manner set forth in Exhibit G hereto.
Subject to the provisions of this Section 9, 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 Section 9 and Exhibit G. Any information disclosed by one
Party to the other Party relating to the subject matter of this Agreement when
disclosed by one Party to the other Party prior to the Effective Date or
relating to subject matter outside of this Agreement shall be covered under the
Non-Disclosure/Non-Use Agreements between InterTrust and NatWest, as applicable,
dated 10 September 1997, 9 September 1997 and 14 April 1998.
9.3 Confidentiality of Agreement and Publicity. Except as otherwise provided
------------------------------------------
in Sections 7.1 and/or in Section 3 of Exhibit G, neither Party hereto shall at
any time, without the prior written consent of the other, disclose the specific
details of the terms and conditions of this Agreement to any Person, other than:
(i) as required by law, regulation or rules of a securities exchange or other
regulatory authority, for example, in connection with any initial public
offering of securities pursuant to a registration under the Securities Act of
1933, as amended (an "IPO"); (ii) to investors holding (or 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 other Party; and/or (iii) to Agents of a Party (as
defined in Exhibit G) having a substantial need to know, or financial
institutions or professional advisors having a reasonable need to know such
information and having no reasonably anticipated conflict of interest with the
other 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 9.3: (a) either Party may publicly discuss or
otherwise disclose in general terms that an agreement exists between the Parties
to develop products and services using InterTrust Technology, but may provide no
further material details as to the specific activities and commitments of the
other Party, without the prior written consent of such other Party; and (b)
either Party may make such disclosures to the extent permitted under this
Section 9.3 in order to perform its obligations or exercise its rights under
this Agreement.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
29
<PAGE>
CONFIDENTIAL
9.4 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." Notwithstanding the foregoing,
information concerning whether a NatWest Product or any 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.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Representations and Warranties of Both Parties. Each Party represents and
----------------------------------------------
warrants to the other Party that as of the Effective Date:
(a) it 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;
(b) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by such Party, and neither the 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; and
(c) this Agreement constitutes a valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms.
10.2 Representations and Warranties of InterTrust. In addition to Section 10.1
--------------------------------------------
above, InterTrust represents and warrants to NatWest that as of the Effective
Date:
(a) InterTrust has not, to the knowledge of the officers of InterTrust,
entered into a Core Partner arrangement with any organization that is a Banking
Institute.
(b) InterTrust owns or has the right to grant the licenses hereunder with
respect to the InterTrust Technology, including under applicable law;
(c) to the knowledge of the executive officers of InterTrust, the
InterTrust Technology does not infringe any Person's U.S. patent, trademark,
copyright, or trade secret right, and no active claims or allegations of any
such infringement are pending; PROVIDED THAT INTERTRUST MAKES NO WARRANTY WITH
-------- ----
RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OTHER THAN THE
FOREGOING REPRESENTATION;
(d) InterTrust is unaware of, and has in good faith employed
commercially reasonable steps in accordance with the U.S. software industry
practices to prevent and/or minimize [*], [*], [*], or other similar
devices or mechanisms that are intended to [*], [*] or [*] the operation of the
InterTrust Technology or NatWest Products or cause such technologies to [*],
inconsistent with reasonable business practices. A summary of such reasonable
steps that have been taken is included in Exhibit H hereto.
(e) the InterTrust Technology as delivered to NatWest pursuant to this
Agreement will, when delivered, operate without [*] caused directly by the [*]
in the [*] to the [*], and will be able to accurately process (including [*]
and [*]) [*] and [*] associated with the [*], and recognize the [*] as a [*];
provided that NatWest agrees that InterTrust's sole obligation and NatWest's
-------- ----
sole and exclusive remedy for any breach of this representation will
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
30
<PAGE>
CONFIDENTIAL
be to [*] set forth in Section 2.2(b) treating any such [*] to [*] or [*].
10.3 Limitation. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE
----------
CONTRARY: (i) THE INTERTRUST TECHNOLOGY AND PRODUCTS ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR
REQUIREMENTS AND NONINFRINGEMENT; (ii) INTERTRUST SHALL ASSUME NO RISK AS TO THE
QUALITY, ACCURACY, INFRINGEMENT AND PERFORMANCE OF THE INTERTRUST TECHNOLOGY
PRODUCTS; AND (iii) INTERTRUST DOES NOT WARRANT THAT INTERTRUST TECHNOLOGY OR
THE INTERTRUST TECHNOLOGY PRODUCTS WILL MEET NATWEST'S REQUIREMENTS OR THOSE OF
ANY THIRD PARTY, OR THAT INTERTRUST TECHNOLOGY PRODUCTS WILL BE ERROR FREE OR
WILL OPERATE WITHOUT INTERRUPTION. NatWest specifically, and without
limitation, acknowledges that the Sample Applications, deployable applications
and deployable components (as each are described in Exhibit A) that may be
provided to NatWest as part of InterTrust Technology are intended, solely to aid
NatWest in its development efforts, should NatWest decide to use them.
10.4 Reporting and Other Covenants. InterTrust shall promptly inform NatWest,
--------------
in writing, of any breach by InterTrust of any provision hereunder that comes to
the attention of an InterTrust executive officer. NatWest shall promptly inform
InterTrust, in writing, of any breach by NatWest, of any provision hereof and/or
by a Customer of a Customer Agreement, that comes to the attention of a NatWest
officer or manager. InterTrust agrees that the representations set forth in
Sections 10.2(b)-(e) shall apply to each new delivery of InterTrust Technology
as if such representations were made as of the date of such delivery of
InterTrust Technology; provided that any InterTrust [*] of any and all
-------------
breach(es) of the foregoing shall be [*] to an [*] not to [*] in any and all
circumstances.
11. INDEMNIFICATION AND REMEDIES.
11.1 Indemnification.
---------------
(a) InterTrust Indemnification. InterTrust shall indemnify and hold
--------------------------
NatWest and its employees, officers and directors (the "NatWest 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
third Person against the NatWest 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 Sections 10.1, 10.2, or 10.4
(subject to the provisions thereof); and (ii) NatWest's proper use of InterTrust
Trademarks as set forth herein; provided, however, that, this indemnity does not
-------- ------- ----
extend to any Claim (collectively, the "Indemnification Exclusions") relating
--------------------------
to: (1) any Modified Technology or other modifications thereto made by NatWest
or any third Person or combinations of the InterTrust Technology with any
product, technology or service of NatWest or of any Person, where such Claim
resulted from such modification or combination and not from the InterTrust
Technology by itself as contained in such modification or combination; or (2)
the use of any InterTrust Technology in any manner inconsistent with InterTrust
Specifications or Documentation to the extent that such Claim would have been
avoided in the absence of such inconsistent use.
(b) NatWest Indemnification. NatWest shall 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)
NatWest's breach of any of its obligations, representations or warranties
hereunder; (ii) InterTrust's proper use of NatWest Trademarks as set forth
herein; (iii) the design, manufacture, use, distribution and/or disposition by
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
31
<PAGE>
CONFIDENTIAL
or for NatWest of Modified Technology, NatWest Products, performance of any
service associated with the foregoing, and/or other exercise by NatWest of the
licenses hereunder, except where such Claims would have arisen solely out of
InterTrust Technology as directly provided to NatWest by InterTrust in the
absence of NatWest activities hereunder, and further, except to the extent
NatWest is indemnified by InterTrust under Section 11.1 ((a)) hereof; and (iv)
any Claim relating to the Indemnification Exclusions.
(c) Third Party Claims. In case any Claim is brought by a third Person
------------------
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
cooperate reasonably with each other in the defense of any Claim, including
making available (except as expressly set forth herein to the contrary, and in
all events under the strongest protective order reasonably available) all
records 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 except as expressly
provided to the contrary in Section 3 of Exhibit G. 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 that [*] any [*]: (a)
upon NatWest's written request, InterTrust will use all reasonable efforts
(taking into account the gravity of the situation) to [*] or [*] NatWest (at
NatWest's expense) to [*] and otherwise [*] in accordance with the terms and
conditions hereof such portion of InterTrust Technology on [*] to [*], each in
the exercise of its own discretion; or (b) at InterTrust's sole discretion,
InterTrust may use [*] or [*] of the [*], as the case may be, so as to make such
portion of the [*] while [*] substantially [*] and [*] of such [*] or [*] of the
[*] that are material to NatWest's then-current use of such technology. If
options (a) and (b) are not [*]: (1) NatWest shall have the right, as its sole
and exclusive remedy in connection with such Claim, threatened Claim or action
of InterTrust in accordance with this Section 0(0), to terminate the licenses
granted hereunder upon thirty (30) days prior written notice; and (2) InterTrust
may, and without any liability whatsoever, terminate the licenses granted
hereunder as to such portion upon thirty (30) days prior written notice if in
the good faith opinion of InterTrust or its professional advisors, InterTrust
has a material risk of liability from NatWest's continued use of such portion of
InterTrust Technology.
11.2 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.
11.3 Equitable Remedies. Each Party agrees that it may be impossible or
------------------
inadequate to measure and calculate a Party's damages from any material breach
of the covenants set forth in Sections 3.5, 5.6, 8,9, 13.2, 13.3, or 14.4
hereof. Accordingly, each Party agrees that if it or any of such Party's Agents
thereof materially breach or threaten a material 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.
12. EXCLUSION OF DAMAGES.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
32
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CONFIDENTIAL
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. NOTWITHSTANDING THE IMMEDIATELY
PRECEDING SENTENCE, A PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ALL DAMAGES,
INCLUDING INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES TO THE EXTENT 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 WILLFUL MISCONDUCT OR MATERIAL BREACH OF THIS AGREEMENT IN
BAD FAITH BY THE LIABLE PARTY, OR ITS AGENTS; OR (iii) THE BREACH OF SECTIONS
6 AND/OR 9 HEREOF.
13. TERM AND TERMINATION.
13.1 Agreement. This Agreement shall commence on the Effective Date and,
---------
unless and until terminated earlier pursuant to Section 13.2, shall continue for
a period of twenty (20) years.
13.2 Events of Termination. This Agreement and the licenses granted hereunder
---------------------
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) Except as expressly provided elsewhere in this Agreement, if either
Party materially defaults on any of its material obligations under this
Agreement, the non-defaulting Party shall have the right to initiate a
termination procedure under this Agreement by written notice describing with
reasonable specificity the nature of the default and requiring that such default
be cured in accordance herewith. Unless: (i) within sixty (60) calendar days of
receiving such written notice of such default, the defaulting Party remedies the
default; or (ii) in the case of a default that cannot with earnest due diligence
be cured within such sixty day period, the defaulting Party institutes, within
thirty (30) days of the commencement of the Cure Period, steps necessary to
remedy the default and thereafter employs best efforts to diligently prosecute
the same to completion (collectively, as applicable, the Cure Period"), at the
---------------
end of such Cure Period the non-defaulting Party may terminate this Agreement.
Notwithstanding the foregoing, the Cure Period associated with a NatWest breach
of its payment obligations under Section 5 shall be ten (10) 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 engages in any: (1) intentional, material unauthorized use
of technology known by such Party to be outside of the rights granted hereunder
(or, in the case of NatWest, any unauthorized disclosure of InterTrust Top
Secret Information) and/or (2) intentional, material unauthorized disclosure of
Confidential Information known by such Party to be a violation of 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 thirty (30) days prior written notice to InterTrust, NatWest may
terminate this Agreement this Agreement in the event InterTrust is in breach of
the representations set forth in Section 10.2((b)); or
(d) Upon thirty (30) days prior written notice to NatWest, InterTrust may
terminate this Agreement in the event NatWest: (i) fails to release any NatWest
Products and/or associated service in a material, commercial fashion within [*]
months from the date InterTrust first delivers Commerce 1.0 (GA
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
33
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CONFIDENTIAL
Version) to NatWest in accordance with the provisions of Section 2.1 hereof,
and/or makes no release of any NatWest Product commercially available for any
consecutive [*] month period during the term of this Agreement,
provided that such time period shall be extended by any period in which there
exists a Material Defect in the Commerce 1.0 software that materially impedes
NatWest's development efforts as relevant, but only for the period from the date
that NatWest shows such effort to have been first materially impeded to the date
such defect has been reasonably corrected or mitigated as provided in Section
2.2(b); (ii) fails to timely make payments due under this Agreement on two or
more occasions over a twelve (12) month period; or (iii) engages in conduct
directly contrary to a partnering relationship by engaging in the licensing or
transferring to multiple third Persons of any technology (other than InterTrust
Technology) that contains or includes Secure Containers to Manage Content for
incorporation or use by such third Persons in products and/or applications for
other customers, including end users (and provided that the foregoing provisions
of this subparagraph (iii) shall not be construed to include licensed activities
as set forth herein).
13.3 Effect of Termination. Upon the expiration or termination of this
---------------------
Agreement: (i) all licenses granted hereunder shall automatically terminate;
(ii) InterTrust shall have the right to retain all sums already paid by NatWest
hereunder, and NatWest's only payment obligation under Sections 5.1((a)), ((b))
and ((c)) will be to pay to InterTrust all sums accrued but unpaid within thirty
(30) days thereafter; and (iii) NatWest shall discontinue use of InterTrust
Technology and the use of any portion of such InterTrust Technology in any
Modified Technology, as expeditiously as commercially practicable (and in all
events within thirty (30) days of such expiration or termination), 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 NatWest Products and any associated services); provided, however, that all
-------- ------- ----
licenses properly 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 (but only where such licenses do not
provide any rights to such end-users with respect to Clearinghouse Functions,
other than as may be expressly provided hereunder and where one or more
Authorized Clearinghouse Providers (other than NatWest and/or its successors)
provide Clearinghouse Functions). Confidential and Top Secret Information shall
be returned to the Party and/or securely destroyed in the manner set forth in
Exhibit G hereto.
13.4 NatWest Continuing Rights. The Parties acknowledge that Section 365(n) of
-------------------------
Title 11 of the United States Code (collectively, the "Bankruptcy Code")
---------------
provides, in part that, in the event InterTrust undertakes a bankruptcy
proceeding under the Bankruptcy Code, NatWest as a licensee of InterTrust
Technology is entitled to retain and continue to exercise its licenses hereunder
in accordance with the terms of the Bankruptcy Code. All rights and licenses
granted under this Agreement shall be deemed to be for the purpose of such
Section 365(n), licenses of right to "intellectual property" as defined under
Section 101 of the Bankruptcy Code.
13.5 Survival. The respective rights and obligations of InterTrust and NatWest
--------
under the provisions of Sections 3,5, 4.5, 5.6 (but only for a period of five
years), 6.1, 6.2, 9, 11, 12, 14 and this Section 13.5 shall survive expiration
or termination of this Agreement.
14. MISCELLANEOUS.
14.1 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, Licensed Rights, InterTrust Intellectual 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
United Nations 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.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
34
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CONFIDENTIAL
14.2 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, 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 and covenants that it shall refrain from
making any motion concerning personal jurisdiction, venue, transfer, or
convenience of the Parties with respect to a Party Dispute filed in said courts;
and (ii) 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, NatWest shall appoint a registered agent in the Commonwealth 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.
14.3 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. NatWest acknowledges that because one or more aspects of the
InterTrust Technology is likely to be subject to the export control laws,
regulations and requirements of the United States and other jurisdictions,
NatWest Products likely will require export and other approvals as well.
InterTrust shall use all commercially reasonable efforts at InterTrust's expense
to obtain any license or other approval, if any, that may be required by the
United States government for InterTrust to make the InterTrust Technology
Products and/or Documentation or information relating thereto generally
available internationally.
14.4 Amendment or Modification; Assignment. This Agreement may not be amended,
-------------------------------------
modified or supplemented by the Parties in any manner, except by an instrument
in writing signed by the InterTrust Designated Officer and a duly authorized
officer of NatWest. NatWest shall not assign or transfer (whether expressly, by
operation of law or otherwise) its rights or obligations hereunderto any Person
(including any affiliate): (i) who has commercial interests materially in
conflict with InterTrust's interests; or (ii) without InterTrust's prior written
consent, which consent shall not be unreasonably withheld; provided that NatWest
-------- ----
may, without the prior written consent of InterTrust, assign its rights and
obligations hereunder to (x) any wholly-owned NatWest affiliate or (y) any
Person in connection with any merger or sale of substantially all of NatWest's
assets and business; provided further that such affiliate or such Person, as
-------- ------- ----
applicable, does not have commercial interests materially in conflict with
InterTrust's interests and such successor in interest or transferee assumes in
writing NatWest's rights and obligations under this Agreement. InterTrust shall
not assign or transfer (whether expressly, by operation of law or otherwise)
this Agreement or its rights or obligations hereunder to any Person without
NatWest'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 the assets or business related to this Agreement
without such NatWest consent; provided that the successor-in-interest or
-------- ----
transferee assumes in writing InterTrust's rights and obligations under this
Agreement and consents to the licenses hereunder. 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 consent shall be
null and void ab initio and of no force or effect.
-- ------
14.5 Notices. Any notice hereunder shall be in writing and shall be either:
-------
(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, by facsimile, 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 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:
35
<PAGE>
CONFIDENTIAL
If to InterTrust, to: If to NatWest, to:
460 Oakmead Parkway National Westminster Bank Plc
Sunnyvale, California 94086 41 Lothbury
Attn: General Counsel London, England EC2P 2BP3933
Fax: (408) 222-6144 Attn.: Company Secretary
Fax: (44) 171-726-1035
14.6 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
Designated Officer, and in the case of NatWest, a NatWest 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.
14.7 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.
14.8 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.
14.9 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.
14.10 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.
14.11 No Solicitation of Employees. Each Party agrees that neither it nor any
----------------------------
of its affiliates will, without the prior written consent of the other Party,
directly or indirectly solicit or encourage any person employed by the other
Party to leave the employ of such other Party and become an employee such former
Party until two (2) years after such employee shall have ceased being employed
by such other Party.
14.12 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.
36
<PAGE>
CONFIDENTIAL
14.13 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 0 hereof).
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first written above by the undersigned duly authorized.
<TABLE>
<S> <C>
INTERTRUST TECHNOLOGIES NATIONAL WESTMINSTER BANK PLC
CORPORATION
By:___________________________________ By:_____________________________________
Name: Victor Shear Name: Patrick J. Boylan
Title: Chairman and Chief Executive Officer Title: Managing Director, Card Services
</TABLE>
37
<PAGE>
EXHIBIT A
TO THE TECHNOLOGY DEVELOPMENT, MARKETING AND LICENSE AGREEMENT
INTERTRUST TECHNOLOGY PRODUCT DELIVERABLES AND RELATED ITEMS
------------------------------------------------------------
I. INTERTRUST TECHNOLOGY: PRODUCTS AND DOCUMENTATION
II. INTERTRUST AUTHORIZED APPLICATION SOFTWARE
III. INTERTRUST AUTHORIZED CLEARINGHOUSE SOFTWARE
IV. INTERTRUST CORE TECHNOLOGY
<PAGE>
I. INTERTRUST TECHNOLOGY ESTIMATED PRODUCT DELIVERABLE
A. InterTrust Systems Developer's Kit Release 1.0
-----------------------------------------------
The InterTrust Systems Developer's Kit Release 1.0 provides a broad range of
software, components and sample applications that allow developers to
incorporate highly flexible and distributed digital rights management and the
persistent protection of digital information into computer software, and to
support e-commerce businesses, infrastructures and clearinghouses. In general,
this software:
. facilitates the rapid integration of InterTrust(TM) secure electronic
commerce and digital rights management technologies into customer-specific
applications;
. enables development of rights management tools for viewing, packaging and
editing;
. allows the creation of Secure Containers for music-, video-, text-, image-
based, and other forms of digital content. DigiBox containers provide
persistent protection of digital information across information networks and
through digital distribution channels;
. permits specification of conditions and consequences governing the use of
digital data and executables. These conditions may include distributed usage
management, auditing, and payment control related to client interaction with
(and usage of) digital information;
. has client and server support for Windows 95 and NT 4.0 and server support
for Windows NT 4.0 and Solaris 2.5.1;
. enables and integrates with customer-specific services, such as: payment,
financial and usage clearinghouses, multiple network protocols, database
systems, updates, etc; and
. supports deployment services for installation and registration.
The Systems Developer's Kit Release 1.0 comprises two announced product sets:
Commerce 1.0 and Enterprise 1.0. These products are, initially, comprised of
the same software, but are intended for different uses. The Commerce 1.0
product is intended as an interoperable secure foundation for global commerce
where InterRights Points serve as a general purpose resource for a variety of
application products, together Managing Content from, potentially, a wide
variety of unrelated Persons. Enterprise 1.0 is intended solely for use within
enterprises and/or for use by enterprises solely in connection with such
enterprise's Content and within the context solely of products and/or services
for direct customers of such enterprise or other persons having a value chain
relationship with such enterprise (such as suppliers, distributors, consultants,
etc.). Enterprise 1.0 comprises that software described above for Commerce 1.0,
used for such purposes described immediately above.
1. Systems Developer's Kit 1.0 Deliverables:
-----------------------------------------
Systems Developer's Kit 1.0 delivers software, development tools, and
documentation for creating InterTrust-aware applications and run-time
environments, and provides the framework for clearinghouse activities and
deployment activities, including deployment administration. Production-
<PAGE>
level core InterTrust software, application programming interfaces and tools,
and sample software applications are provided.
The deliverables represent product sets, each targeted to support a different
InterTrust rights functional area. They are:
. Application Developer's Kit ("ADK");
---
. Transaction Authority Framework(TM); and
. InterRights(TM) Point (Golden Master).
In Systems Developer's Kit 1.0, these product sets will be released together.
For future releases, and at InterTrust's discretion, these product sets may be
independently delivered and may be available as independent deliverables.
a. Applications Developer's Kit 1.0:
---------------------------------
The Application Developer's Kit provides programming libraries, sample
applications that demonstrate packaging and viewing, certain deployable
application and components, source code for the sample applications, pre-
activated (non-deployable) InterRights Points for test purposes, and
documentation.
. Core Technology Software - Object Code
- InterTrust Programming Libraries (including ITAPI, the Layout Interpreter
Library, Rights Management Library, and utility libraries);
. ITAPI: The programming interface to the InterRights Point software
includes functions that are used to package and read DigiBox
containers, specify business rules, and perform administrative
functions associated with use of DigiBox containers.
. InterTrust Interoperability Library ([*]): This interface uses
ITAPI to construct various governed elements, such as budget objects,
CHInfo objects, and CHAccount objects. It manages the construction of
the controls required for these objects and provides consistent use of
those controls to help enable interoperability of objects.
. InterTrust Layout Interpreter Library ([*]): The internal
organization of a DigiBox container usually is specified in a layout
template produced by the Layout Editor and interpreted by both
packaging and viewing applications using the Layout Interpreter
programming interface.
. Rights Management Library ([*]): Applications can use this class
library to create and manipulate controls (business rules) rather than
writing directly to the ITAPI to do so.
- Pre-activated InterRights Points (software to support the development
environment); and
- InterTrust Rights Wallet(TM) and core Rights Wallet(TM) applets: supports
administration of the
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
InterRights Point in the packaging and viewing environment. These provide
an administrative interface to the InterRights Point software to enable
users of the system to set budgets, set passwords, commence payment
activities, and perform other administrative functions associated with use
of DigiBox containers and the InterRights Point software.
. Applications and Components - Source Code and Object Code (include)
- InterTrust Layout Tool (executable and source code): a graphical editing
tool for creating DigiBox container layout templates that are later used
in packaging operations. This tool creates a content layout template that
specifies how the elements representing digital content in a DigiBox
container will be organized. NatWest can use the basic template supplied
with the InterTrust Packager, or can use this tool to create different
templates for its own content. Templates facilitate interoperability among
packaging and viewing applications that use the InterTrust software.
- InterTrust Rights Selector (executable and source code): an [*]
component, intended to be embedded in viewer applications, for displaying
rights controls in readily human-readable and manipulable format. The
Rights Selector component reads a set of business rules (controls) from a
DigiBox container and displays them in human-readable from.
- InterTrust Survey/License Control (executable and source code): an [*]
component, intended to be embedded in viewer applications, for presenting
HTML based survey and license agreements to consumers;
. Consumer Sample Applications and Components - Object Code and Source Code
for portions that may be altered
- InterTrust Packager: sample software that creates a DigiBox container,
places specified content into a DigiBox container, associates business
rules and specified controls with the content, and places such rules
inside the container as well;
- InterTrust Viewer: sample software that reads the contents of a DigiBox
container created with an InterTrustworthy Packager; displays the rules
that govern use of the content; and, after the user agrees to those rules,
displays, prints, or saves the content as specified by the business rules.
This application implements InterTrust defined [*] component
interfaces to invoke survey and license agreement mechanisms and supports
a plug-in interface for handling specific media types;
- InterTrust Media [*] Control: a sample [*] component that demonstrates how
to build plug-in media handlers; and
- InterTrust Installer.
b. Transaction Authority Software:
------------------------------
The Transaction Authority software provides the framework for Clearinghouse
activities and Deployment activities, including deployment administration.
. Core Technology: Object Code Format (except as noted):
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
- Transaction Authority Framework Software - secure communication
infrastructure and protocols, general processing of incoming data, and
database storage. The Transaction Authority Framework (TAF) software is a
software framework made up of several components that handle the secure
reception and processing of DigiBox containers. It is designed to enable
validation and processing of requests that require interaction between an
InterRights Point and some financial or management authority, called a
transaction authority. The TAF is the basis of any transaction authority
system, whether it is specialized as a financial clearinghouse, a usage
clearinghouse, or a Deployment Manager (DM):
The TAF accepts communications from the dispersed InterRights Points,
opens DigiBox containers within its own InterRights Point, manages work
flow, and hands off audit records and other messages to the clearinghouse
provided by InterTrust business partners. The TAF also packages
acknowledgment responses in DigiBox containers and sends them back to the
originating InterRights Points. Well-defined software interfaces are
provided so that partner software can interact with the TAF;
- Deployment Manager Software - a set of programs for secure node deployment
and initialization, provision of naming services to nodes, and provision
of secure date and time services to nodes. It initializes each InterRights
Point and authorizes addition of new users. It authorizes backup and
restores activities of provider and consumer systems. It is also
responsible for key distribution and name services within a deployment.
(Source Code provided for those portions of the software that may be
altered); and
- Installer Software: Software for tamper-resistant installation of the
InterRights Point (Source Code provided for those portions of the software
that may be altered).
. Clearinghouse Sample Applications and Components - Source Code and Object
Code:
- Usage Clearinghouse Application--sample software for gathering and
aggregating usage information, such as usage audits and user profiles;
- Financial Clearinghouse Application--sample software for performing
prototypical clearinghouse functions in the area of financial clearing;
- Deployment Service Prototype Component--sample software for customizing an
initialized InterRights Point (e.g., associating that InterRights Point
with a particular InterTrust deployment and obtaining installation
demographics)
c. InterRights Point (Golden Master):
---------------------------------
The Golden Master provides a deployable version of the InterRights Point
software that may be replicated for distribution. The InterRights Point is the
component that provides secure processing of DigiBox containers and enforces
business rules. In Commerce 1.0, the InterRights Point software is a
cooperating or server process that can run on Microsoft Windows95 and Windows NT
4.0. The InterRights Point software presents the InterTrust Application
Programming Interface (ITAPI) to applications. This interface has a proxy or
"client" portion that communicates via RPC with a "server" portion. This server
side of the ITAPI then makes requests of the Protected Processing
Environment(TM) (PPE) software in the InterRights Point. The PPE software does
the actual secure manipulation of containers.
<PAGE>
The client-server implementation used for ITAPI allows an application and the
InterRights Point to be located on the same machine or on different ones. The
interface supports multiple local and remote clients and also multiple
simultaneous users.
2. Commerce 1.0 Documentation:
---------------------------
- Commerce 1.0 Overview
- Commerce 1.0 Installation and Configuration Guide
- Commerce 1.0 Glossary
- Applications User's Guide
- Application Developer's Guide
- Application Developer's Kit: Supplemental Libraries
- Application Developer's Kit: ITAPI Vol 1 Concepts
- Application Developer's Kit: ITAPI Vol 2 Reference
- Application Developer's Kit: Interoperability Library
- Application Developer's Kit: Rights Metafile Format
- Clearinghouse Developer's Guide
- Deployment Manager Developer's Guide
3. Commerce 1.0 Schedule:
----------------------
. Beta Release: Shipped March 1998
. First Commercial Shipment (FCS): Shipped July 1998
. General Availability (target): October 1998
Note: Source (where applicable and made available). Object Code for Windows 95
and Windows NT 4.0 for client software and Windows NT 4.0 and Solaris 2.5.1 for
server software. Additional platforms under development, and to be supplied by
InterTrust as available and determined by InterTrust in its discretion.
InterTrust Rights Editor/Commerce Modeler product application to be made
available for internal use through provision of licensed developer copies (n/c).
4. Enterprise 1.0 (GA Version):
----------------------------
Functionality supportive of use of InterTrust technology within the Enterprise
context (described above).
B. Requested Functionality
-----------------------
The following functionalities, which will be incorporated into one or more New
Release(s) or Upgrade Release(s), constitutes the "Requested
Functionalities"):
. Prepayment: control mechanism which supports prepayment, including the
budget [top-up] procedure and local transaction maintenance applet.
. Aggregate Limits for Corporate Accounts: permits groups of users (for
example, all users within one company) to share an enforced limit on their
individual spending.
Support for User Multi-Currencies: permits users to convert monies in one
budget to equivalent monies in a budget of a different currency.
Note: Based at least in part upon further clarifications from NatWest with
respect to its product
<PAGE>
plan and timing, anticipated commercial use of InterTrust Technology and
desired attributes of the Requested Functionality, and subject to
commercial and technical feasibility and other commercially reasonable
factors, InterTrust will use reasonable efforts to develop and incorporate
the Requested Functionality in future Upgrade Releases and New Releases.
C. InterTrust Systems Developer's Kit Release 2.0 - Initial Description of
-----------------------------------------------------------------------
Features and Functionality
---------------------------
Systems Developer's Kit 2.0 will add greater value chain management capability
and independent delivery of control functionality to InterTrust Systems
Developer's Kit 1.0, and it is anticipated that the release will support the
following functionality:
. InterRights Point-based value-chain management, enabling support of chain
of control models directly within InterRights Point;
. Deliver controls independently of controlled digital information, enabling
complex updatable, control models for usage/advertising and trading
systems; and
. Additional major functionality under evaluation but not yet specified -
priority of additional functionality dependent, in part, on experience with
earlier releases, market priorities and timing of completion.
II. INTERTRUST AUTHORIZED APPLICATION SOFTWARE AND CORE TECHNOLOGY
Your Agreement contains provisions that: (1) prohibit modification of InterTrust
Technology (that is designated Core Technology) (files noted as "Core
Technology" may not be modified; files expressly noted herein to be
"Customizable" Technology may be modified), and (2) restrict redistribution of
any software except "Authorized Application Software" (files noted as
"Authorized Application Software" may be distributed, as applicable solely in
accordance with the terms and conditions hereof and in the Agreement; files not
expressly noted as "Authorized Application Software" may not be distributed).
(Any information concerning Customizable Technology or "Core Technology" found
in source files themselves may not be relied upon and shall be superseded by the
designations noted herein). Any and all further restrictions noted in the file
(or Agreement) concerning distribution (such as with the IRP Golden Master
process) must be adhered to or such file shall not be Authorized Application
Software. As of the Effective Date there is no Authorized Clearinghouse
Software.
LISTING OF CUSTOMIZABLE TECHNOLOGY AND AUTHORIZED APPLICATION SOFTWARE
REDISTRIBUTION OF NON-SOURCE FILES
All references to file and directory locations refer to the default installation
directories, which are set by the user at installation.
The binary and online help files listed below are "Authorized Application
Software" and may be redistributed, solely subject to terms and conditions of
the Agreement. All other files may not be redistributed (except as specifically
noted separately in the Source File section below):
[*]
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
[*]
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
[*]
SOURCE FILE CUSTOMIZATION AND REDISTRIBUTION
Source files contained in the directories listed in this section are
"Customizable" and may be modified solely as expressly provided therein. In
some cases, redistribution of the customized output is authorized and such files
are Authorized Application Software for redistribution solely subject to terms
and conditions of the Agreement. The paragraph preceding each section describes
the customization and redistribution restrictions. Source files in any
directory not listed in this section may not be modified or changed in any
manner.
* CUSTOMIZABLE, BUT REDISTRIBUTABLE ONLY VIA THE IRP GOLDEN MASTER PROCESS
The source files contained in the directories listed immediately below are
customizable but are redistributable only via the IRP Golden Master
redistribution process and solely subject to terms and conditions of your
Agreement:
[*]
* CUSTOMIZABLE BUT NOT REDISTRIBUTABLE (I.E., "CUSTOMIZABLE SOFTWARE" ONLY)
The source files contained in the directories listed immediately below are
customizable but not redistributable in any manner:
[*]
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
[*]
* REDISTRIBUTABLE ONLY
The source files contained in the directory listed immediately below are
redistributable (subject to terms and conditions of your Agreement) but may not
be modified or changed in any manner
[*]
* CUSTOMIZABLE AND REDISTRIBUTABLE (I.E., "CUSTOMIZABLE SOFTWARE" ONLY)
The source files contained in the directories listed immediately below are
customizable and redistributable (solely subject to terms and conditions of your
Agreement):
[*]
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
[*]
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
[*]
The source files contained in this directory are third-party files which are
customizable
if the instructions contained in those files are correctly followed:
[*]
III. SPECIAL ACKNOWLEDGMENTS AND THIRD PARTY LICENSE REQUIREMENTS
* It is acknowledged and agreed that the InterTrust Technology may employ or may
operate with one or more technologies that may not be proprietary to InterTrust
but are included within the licenses granted in Section 3.1 (the "Third Party
Technology") and as may be modified from time to time by InterTrust. Licensee's
use of the Third Party Technology is limited by the terms of any licenses or
rights that InterTrust may have therein and may sublicense to Licensee.
* This Software contains the following licensed Microsoft DLLs: msvcrt.dll,
msvcirt.dll, mfc42.dll, amovie.exe, atl.dll. These files: (i) may be used only
in conjunction with licensed Microsoft products; and (ii) may not be
redistributed to anyone and/or modified.
* Certain portions of the Software contain software provided under license to
InterTrust from Inso Corporation. The Inso software is contained in files in the
following directory, [*] (where [*] is the default installation directory which
is set by the user at the time of installation). As stipulated in InterTrust's
agreement with Inso, use of these files is for internal development and use, and
demonstration purposes only (except where the
----
terms and conditions of a separate agreement are satisfied).
* Certain portions of the Software contains software provided under license to
InterTrust from Basis Technology Corporation ("Basis"). The Basis Software is
contained in the [*] file in binary form. (c) Basis Technology. All Rights
Reserved. As stipulated in InterTrust's agreement with Basis, these files may
not be modified. You agree that use of the Basis Software shall occur solely (1)
in connection with internal development purposes, and archival copies; (2) as a
integral component of InterTrust technology or licensee's software directly
associated therewith; and (3) where such Basis Software is related as InterTrust
Confidential Information under the terms and conditions of this Agreement.
* Certain portions of the Software have used [*] and [*] to which this notice
applies: [*] Copyright (C) 1990-2, [*] Copyright (C) 1991-2, [*] Inc. All rights
reserved. License to copy and use this software is granted provided that it is
identified as the [*], Inc. [*], and/or [*], Inc.[*] in all material
mentioning or referencing this software or this function. License is also
granted to make and use derivative works provided that such works are identified
as "derived from the [*], Inc. [*], and/or derived from the [*], Inc.[*] in all
material mentioning or referencing the derived work. [*] Inc. makes no
representations concerning either the merchantability of this software or the
suitability of this software for any particular purpose. It is provided "as is"
without express or implied warranty of any kind. These notices must be retained
in any copies of any part of this documentation and/or software.
* Certain portions of the Software have used DES software, to which this notice
applies: des - fast & portable DES encryption & decryption Copyright (C) 1992
Dana L. How. THIS PROGRAM IS DISTRIBUTED WITHOUT ANY WARRANTY, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
* Certain portions of the Software (as indicated in such portions' source files)
have used [*] software, to which this notice applies: Copyright (c) 1995 by
[*]. Permission to use, copy, and modify this software without fee is hereby
granted, provided that this entire notice is included in all copies of any
software which is or includes a copy or modification of this software and in all
copies of the supporting documentation for such software. This software may be
subject to export controls. SOME PARTS OF [*] MAY BE RESTRICTED UNDER
UNITED STATES EXPORT REGULATIONS (HOWEVER, SUCH PARTS ARE NOT INCLUDED IN THE
SOFTWARE). THIS SOFTWARE IS BEING PROVIDED "AS IS", WITHOUT ANY EXPRESS OR
IMPLIED WARRANTY. IN PARTICULAR, NEITHER THE AUTHORS NOR [*] (NOR INTERTRUST
TECHNOLOGIES CORPORATION) MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND
CONCERNING THE MERCHANTABILITY OF THIS SOFTWARE OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE.
* Certain portions of the Software (as indicated in such portions' source files)
have used [*] software, to which this notice applies: Copyright (C) 1994 [*]
Company. Permission to use, copy, modify, distribute and sell this software and
its documentation for any purpose is hereby granted without fee, provided that
both that copyright permission notice and this permission notice appear in
supporting documentation. [*] Company (and InterTrust Technologies Corporation)
make no representations about the suitability of this software for any purpose.
It is provided "as is" without express or implied warranty.
* Certain portions of the Customizable Technology (as indicated in such
portions' source files) have used Independent JPEG Group software and certain
portions of the Software supplied in executable format (as indicated in
Software's "About Box") are based in part upon the work of the Independent JPEG
Group. (C) 1991, 1992, 1993, 1994, 1995, Thomas G. Lane. The Graphics
Interchange Format (C) is the copyright property of CompuServe Incorporated. GIF
(sm) is a Service Mark property of CompuServe Incorporated. Certain portions of
the Independent JPEG Software were loosely based on giftoppm from the PBMPLUS
distribution as of February 1991 to which this notice applies: Copyright (C)
1990, David Koblas. Permission to use, copy, modify, and distribute this
software and its documentation for any purpose and without fee is hereby
granted, provided that the above copyright notice appears in all copies and that
both that copyright notice and this permission notice appear in supporting
documentation. This software is provided "as is" without express or implied
warranty.
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
EXHIBIT B
TO THE TECHNOLOGY DEVELOPMENT, MARKETING AND LICENSE AGREEMENT
TRADEMARKS
----------
InterTrust Trademarks
---------------------
InterTrust
The InterTrust Logo
InterTrust Commerce Architecture
InterRights Point
InterTrustworthy
DigiBox
Virtual Process Control
Electronic Value Chain Management
Commerce 1.0
Commerce Modeler
Rights Editor
Enterprise Modeler
Commerce Appliance
InterTrustable
Rights Expression Tools
Trust Virtual Machine
Transaction Authority Framework
TrustMail
MailTrust
TrustPublish
ComplyTrust
PromoteTrust
PageForward
AssertTrust
NetTrust
TrustNet
Publish America
Commerce America
TrustStation
CommerceStation
RightsStation
RightsWallet
Electronic Express
<PAGE>
CONFIDENTIAL
NatWest Trademarks (registered)
-------------------------------
321 Zero
ActionLine
AD 1692
Airlease
AT THE THREE CROWNS IN THE STRAND NEXT DOOR TO THE CLOBE
TAVERN AD 1692
BankLine
BIS
Caller
CAMPBELL'S OFFICE
CF
Compass Computer Aided Share Service
Compsure
Counter Intelligence
Coutts
Coutts Card
COUTTS & CO.
COUTTS & CO. ACCOUNTACARD
COUTTS & CO. CAMPBELL'S OFFICE
COUTTS & CO. SELECT PORTFOLIO
COUTTS & CO. SHARE SELECTION SERVICE
Coutts CrownLine
Coutts CrownPay
COUTTS FINANCE CO.
COUTTS MORTGAGE RESERVE ACCOUNT
COUTTS RESERVE ACCOUNT
Coutts Portfolio Service
Credit Zone
D.A.L.A.S.
Decipher
Elevator Finance
HBS Heythrop Business School
Heythrop
HLN Heythrop Learning Network
IMMAS
INCS Institutional Nominee Custodial System
IntWest
Junior World Savers
Magex
National Westminster Bank
National Westminster bank SERVICETILL
National Westminster Relay
National Westminster the Action Bank
NatWest
NatWest - the Action Bank
NatWest 321Zero
NatWest Actionline
NatWest Advantage
<PAGE>
CONFIDENTIAL
NatWest Autopay
NatWest BankLine
NatWest BankLine Services
NatWest BrokerLine
NatWest Business Insurance Services
NatWest Business Line
NatWest C.A.R.E.S.
NatWest Cardline
NatWest Cash Bond
NatWest Corporate Quarterly
NatWest CQ
NatWest Crown Reserve
NatWest Currency Business Account
NatWest Currency Reserve Plus
NatWest Current Plus
NatWest Current Plus Account
NatWest Customer Service Line
NatWest Customerbridge
NatWest Datalink Service
NatWest Diamond Reserve
NatWest Dimensions
NatWest EuroCash
NatWest Export Ease
NatWest face 2 face with Finance
NatWest First Reserve
NatWest Global Financial Markets
NatWest Gold Plus Current Account
NatWest Gold Plus Service
NatWest HealthSense
NatWest Markets
NatWest Microcall Service
NatWest more than just a bank
NatWest NetWork
NatWest Network
NatWest On Line
NatWest One Two Three
NatWest Portfolio Reserve Scheme
NatWest Premium Investment Management Service
NatWest Premium Reserve
NatWest Primary
NatWest Privilege Banking
NatWest Relay
NatWest Reward Reserve
NatWest RoomrateR
NatWest Security Plus
NatWest Special Reserve
NatWest Streamline
NatWest Student Plus
NatWest StudentLine
NatWest the Piggy Bank
NatWest Touchscreen
<PAGE>
CONFIDENTIAL
NatWest TradeBridge
NatWest Treasury Reserve
NatWest Unit Trust Selection Service
NatWest Vehicle Concepts
NatWest Vehicle Services
NatWest VehicleFocus
NatWest VehicleSelect
NatWest World Money Centre
NWM
NWVS
Pace
PHAROS Single Market Advisor
Pioneer Fund
Primeline
PRIVATE PERSPECTIVE
PROTECTOR
Raid Cash Till
Rapid Deposit
SatWest
Streamline
Streamline EFT
The Action Bank
The Golden Key Package
The International Financial Centre London
The NatWest Exporter Forums and Awards
Three Crowns
World Savers
NatWest Trademarks (pending)
----------------------------
AIRLEASE
Bondline
CROWN ACCOUNTING SERVICE
FACEFLOW
FACTORNET
FIRST FOR FINANCE
Gartmore
Greenwich NatWest
GUIDE
Home Life
I.M.S Nova
KEYCASH
Lombard
L
L/L/L
L Lombard FIRST FOR FINANCE
L Lombard Direct
Lombard
Lombard L
<PAGE>
CONFIDENTIAL
LOMBARD DIRECT
Lombard FIRST FOR FINANCE
Lombard L Asset Finance
Lombard L Asset Management
Lombard L Bank
Lombard L Banking Services
Lombard L Business
Lombard L Corporate Finance
Lombard L Factoring Services
Lombard L Home Finance
Lombard L Invoice Discounting
Lombard L Motor
Lombard L Network systems
Lombard L Personal
Lombard L Sales Aid Finance
Lombard L Vendor programmers
Lombard Motorloan
LOMBARD NORTH CENTRAL
LOMBARD WHOLESALE FINANCE
L TRIPLE CHOICE
MAX CAT KID CLUB
MOTORVIEW
MV MOTORVIEW
NatWest Business Deposits Direct
NatWest Direct Business Banking
NatWest Directlink
NatWest ShareBuild
NatWest Vehicle Solutions
Protector
SIMCO
The Golden Arrow Package
The Golden Star Package
THE PERSONAL LOAN SERVICE FROM LOMBARD DIRECT
TRADING WINDOWS
ULSTER BANK
Ulster Bank Anytime
UPFRONT
Wheelease
Zenda
<PAGE>
EXHIBIT 4.7
FORM OF REGISTRATION RIGHTS
FOUND IN A CLASS B NON-VOTING COMMON STOCK WARRANT
Registration Rights. The Company agrees that the Shares issued or
-------------------
issuable upon exercise of this Warrant shall be deemed "Registrable Securities"
as such term is defined in the Company's Series B Preferred Stock Purchase
Agreement of even date herewith (the "Series B Agreement") solely for purposes
of granting "piggyback" registration rights under subSection 4.1(c) of the
Series B Agreement and the right to participate, but not demand registration,
under Section 4.1(b) of the Series B Agreement; provided, however, that in the
event of any cutback of securities requested by the underwriters, the Shares
shall be subject to cutback prior to any cutbacks on any holders of Common stock
issued or issuable upon conversion of the Company's Preferred Stock and then
only on a pro rata basis with other holders of Common Stock.
<PAGE>
CONFIDENTIAL
EXHIBIT D
TO THE TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT
SPECIFIC INTERTRUST TERMS
-------------------------
At a minimum, the InterTrust Terms will contain terms that:
(i) prohibit Customers from disassembling, modifying or reverse
engineering any portion of the InterTrust Technology incorporated in the NatWest
Product (as relevant), and except as strictly prohibited by law (in which case
the provisions of Section 3.5 shall apply);
(ii) stipulate that such Customer has no right to use such product in any
manner whatsoever not licensed to NatWest hereunder, or notwithstanding any
other provision hereof, to engage in or perform any Clearinghouse Functions
whatsoever unless such customer is an Authorized Clearinghouse Provider;
(iii) grant such Customer only a limited license solely to use the
NatWest Product (as relevant), and, as applicable, to (A) incorporate Authorized
Application Software into such customer's software product to provide a
InterRights Point that is Compliant with InterTrust Specifications or (B)
develop and incorporate software components that provide the interface for, and
support operations in conjunction with, an InterRights Point provided by NatWest
under this Agreement;
(iv) permit such Customer to engage NatWest and/or another Authorized
Clearinghouse Provider (as determined by NatWest for its Customers) to perform
Clearinghouse Functions with respect to such customer's software product, but
solely in accordance with the provisions hereof;
(v) provide that if such Customer is permitted to modify any portion of
InterTrust Technology Source Code (as set forth above), such Customer shall
grant to InterTrust and InterTrust customers a license under such Customer's
patent rights, but solely to the extent necessary to permit InterTrust and
InterTrust customers to make, have made, use, offer for sale, sell and/or import
the InterTrust Technology;
(vi) brand NatWest Products that are Application Products solely in the
manner set forth in Section 4.3(c), and on Co-Branded Products communicate in a
prominent manner through the use of one or more NatWest brands for NatWest
InterTrustworthy clearing services (and as set forth in Section 4.3) that
Clearinghouse Function services are being performed by NatWest;
(vii) prohibit such Customer from removing, altering, covering,
obfuscating and/or otherwise defacing any InterTrust Trademarks or Notices on
any InterTrust Technology or associated documentation, marketing and advertising
materials therefor;
(viii) require such Customers to place Notices on products and associated
documentation, marketing and advertising materials therefor in the same manner
as in this Agreement;
(ix) provide that such agreement may be subject to modification as may be
reasonably required to protect InterTrust's rights, for example in InterTrust's
Intellectual Property Rights, to the fullest extent permitted by applicable law;
<PAGE>
CONFIDENTIAL
(x) provide that InterTrust shall be a third party beneficiary with the
right to enforce (according to the law and venue as provided in the Agreement)
those InterTrust Terms or provisions in the Customer Agreement that directly
concern (a) InterTrust's Intellectual Property Rights, and/or (b) disclosure or
use of InterTrust Technology or Confidential Information where such disclosure
or use (1) could adversely affect the security and/or interoperability of
InterTrust Technology and/or (2) supports or enables the performance of
Clearinghouse Functions by a Person other than an Authorized Clearinghouse
Provider; and
(xi) contain such other provisions as stipulated in Exhibit E of this
Agreement.
<PAGE>
CONFIDENTIAL
EXHIBIT E
TO THE TECHNOLOGY DEVELOPMENT, MARKETING AND LICENSE AGREEMENT
DRAFT PRODUCT LEGENDS AND NOTICES
---------------------------------
A) Placement. In addition to placement as specified in the Agreement, the
---------
Notices stipulated herein shall be placed in a human readable form and in a
conspicuous place:
. In a prominent position on all manuals for (or other documentation
provided with) NatWest Products and/or associated services
(collectively, the "Distributed Products"); and
--------------------
. On the outside of all packaging, floppy discs and other media
containing Distributed Products.
B) Content Of Required Notices For Distributed Products That Are Application
-------------------------------------------------------------------------
Products.
---------
1. Copyright Notices. A copyright notice shall be placed on Distributed Products
(and associated materials) as set forth in Section A hereof that shall reflect
the copyright ownership of InterTrust, as applicable, and the proper year as
follows:
Copyright (C) 1997-XXXX InterTrust Technologies Corporation
All rights reserved.
2. Patent Notices. Patent notices shall be placed on Distributed Products (and
---------------
associated materials) as set forth in Section A hereof that shall reflect
InterTrust patent rights as follows:
This product and its use may be covered by one or more of the following patents:
US 4,827,508, US 4,977,594, US 5,050,213, US 5,410,598, EP 329681, AT133305 and
DE3751678. Additional US and foreign patents are pending.
Such patent notice shall be modified to reflect any additional patents under the
Licensed Rights issued to InterTrust where NatWest is provided licenses under
such additional patent rights under this Agreement and/or such patents relate to
InterTrust Technology.
3. Trademark Notices. Trademark notices shall be placed on Distributed Products
------------------
(and associated materials) as set forth in Section A hereof and Trademark
Guidelines as attached below and from time to time to be provided to NatWest,
and shall have such content as set forth in the Trademark Guidelines.
4. Third Party Notices. The Documentation contains some references to trademarks
-------------------
owned by entities other than InterTrust. Other trademarks that are referenced
herein or in the Documentation are the property of their respective owners. For
example, Microsoft and Windows are registered trademarks of Microsoft
Corporation.
Certain portions of the InterTrust Technology may incorporate one or more of the
following software modules, and if such modules are used in NatWest Products,
NatWest shall include the following notices, as applicable:
* (C) 1997 Basis Technology. All rights reserved.
* Certain portions of the Software have used [*] and [*], to which this notice
applies: [*] Copyright (C) 1990-2, [*] Copyright (C) 1991-2, [*], Inc. All
rights reserved. License to copy and use this software is granted provided that
it is identified as the "[*], Inc. [*] [*]", and/or "[*], Inc. [*]" in all
material mentioning or referencing this software or this function. License is
also granted to make and use derivative works provided that such works are
identified as "derived from the [*], Inc. [*]", and/or "derived from the [*],
Inc. [*]" in all material mentioning or referencing the derived work. [*], Inc.
makes no representations concerning either the merchantability of this software
or the suitability of this software for any particular purpose. It is provided
"as is" without express or implied warranty of any kind. These notices must be
retained in any copies of any part of this documentation and/or software.
* Certain portions of the Software have used DES software, to which this notice
applies: des-fast & portable DES encryption & decryption Copyright (C) 1992
Dana L.How. THIS PROGRAM IS DISTRIBUTED WITHOUT ANY WARRANTY, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
* Certain portions of the Software (as indicated in such portions' source files)
have used [*] software, to which this notice applies: Copyright (c) 1995 by
[*]. Permission to use, copy, and modify this software without fee is hereby
granted, provided that this entire notice is included in all copies of any
software which is or includes a copy or modification of this software and in all
copies of the supporting documentation for such software. This software may be
subject to export controls. SOME PARTS OF [*] MAY BE RESTRICTED UNDER UNITED
STATES EXPORT REGULATIONS (HOWEVER, SUCH PARTS ARE NOT INCLUDED IN THE
SOFTWARE). THIS SOFTWARE IS BEING PROVIDED "AS IS", WITHOUT ANY EXPRESS OR
IMPLIED WARRANTY. IN PARTICULAR, NEITHER THE AUTHORS NOR [*] (NOR INTERTRUST
TECHNOLOGIES CORPORATION) MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND
CONCERNING THE MERCHANTABILITY OF THIS SOFTWARE OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE.
* Certain portions of the Software (as indicated in such portions' source files)
have used [*] software, to which this notice applies: Copyright (C) 1994 [*]
Company. Permission to use, copy, modify, distribute and sell this
software and its documentation for any purpose is hereby granted without fee,
provided that both that copyright permission notice and this permission notice
appear in supporting documentation. [*] Company (and InterTrust Technologies
Corporation) make no representations about the suitability of this software for
any purpose. It is provided "as is" without express or implied warranty.
* Certain portions of the Customizable Technology (as indicated in such
portions' source files) have used Independent JPEG Group software and certain
portions of the Software supplied in executable format (as indicated in
Software's "About Box") are based in part upon the work of the Independent JPEG
Group. (C) 1991, 1992, 1993, 1994, 1995, Thomas G. Lane. The Graphics
Interchange Format (C) is the copyright property of CompuServe Incorporated. GIF
(sm) is a Service Mark property of CompuServe Incorporated. Certain portions of
the Independent JPEG Software were loosely based on giftoppm from the PBMPLUS
distribution as of February 1991 to which this notice applies: Copyright (C)
1990, David Koblas. Permission to use, copy, modify, and distribute this
software and its documentation for any purpose and without fee is hereby
granted, provided that the above copyright notice appears in all copies and that
both that copyright notice and this permission notice appear in supporting
documentation. This software is provided "as is" without express or implied
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
[*]
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
warranty.
5. Field of Use Notices. Field of Use notices shall be placed on Distributed
--------------------
Products (and associated materials) as set forth in Section A hereof as follows:
"This product is licensed and adapted only for certain limited, expressly
approved uses, and solely as provided in the Customer Agreement (or, as
applicable, the sublicense agreement) executed in connection with your receipt
of this Product. No other licenses are granted. Specifically and without
limitation no licenses: (i) to modify and/or reverse engineer this product;
and/or (ii) any performance of clearinghouse functions have been granted. As
more fully set forth in the Customer Agreement, clearinghouse functions are
those activities using this product or derived from use of this Product that:
(a) enable payment fulfillment or provision of consideration
(including service fees, product fees or any other fees and/or
charges) based at least in part on gathering and/or processing of
electronic information conveyed by or associated with contents of
DigiBox containers;
(b) perform any audit, billing, payment fulfillment (or provision of
other consideration) and/or other clearing activities involving
more than one person; or
(c) compile, aggregate, use and/or provide information relating to
more than one person's use of one or more DigiBox containers
and/or contents thereof for any consideration.
Clearinghouse Functions shall include, for example, any of the
following activities or services: (a) financial clearing; (b)
providing object registry services and rights, permission, prices,
and/or rules information for registered objects; (c) electronically
certifying information 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 DigiBox
container and/or contents thereof; and (e) employing information
derived from user exposure to content such as advertising."
6. Warranty Notices and Disclaimers.
--------------------------------
The following warranty notices shall be placed on all Distributed Products (and
associated materials), as set forth in Section A hereof in the form here
specified, and in bold letters, the following warranty disclaimer:
"THE INTERTRUST SOFTWARE HAS BEEN PROVIDED BY INTERTRUST TECHNOLOGIES
CORPORATION ("INTERTRUST") SOLELY IN THE FORM OF MIDDLEWARE, "AS IS" AND WITHOUT
----------
WARRANTY BY INTERTRUST OF ANY KIND, AND, TO THE MAXIMUM EXTENT ALLOWED BY
APPLICABLE LAW, INTERTRUST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THIS PRODUCT.
THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE INTERTRUST SOFTWARE
WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPED
OR ERROR-FREE. INTERTRUST DOES NOT WARRANT, GUARANTEE OR MAKE ANY
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THIS PRODUCT WITH
RESPECT TO ITS ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR
OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL
CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO INTERTRUST. THE ENTIRE RISK
AS TO THE USE, PERFORMANCE AND RESULTS OF THIS PRODUCT IS ASSUMED BY YOU. THE
EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTION THUS, THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU."
NatWest shall also include, in the same place, disclaimer of liability language
as follows:
"YOU ACKNOWLEDGE TO AND FOR INTERTRUST'S BENEFIT AND THE BENEFIT OF THEIR
DIRECTORS, EMPLOYEES OR AGENTS ("AGENTS") THAT THE INTERTRUST SOFTWARE, AS WITH
MOST SOFTWARE, MAY CONTAIN BUGS AND IS NOT DESIGNED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF
THE APPLICATION SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR
ENVIRONMENTAL DAMAGE. INTERTRUST AND ITS AGENTS SHALL HAVE NO LIABILITY
WHATSOEVER FOR ANY LOSS SUFFERED AS THE RESULT OF A BREACH OF SECURITY INVOLVING
INTERTRUST SOFTWARE, WHETHER OR NOT SUCH BREACH RESULTS FROM THE DELIBERATE,
RECKLESS OR NEGLIGENT ACTS OF ANY PERSON.
UNDER NO CIRCUMSTANCES SHALL INTERTRUST OR ITS AGENTS BE LIABLE FOR ANY
UNAUTHORIZED USE OF ANY CONTENT OF ANY PERSON, OR ANY USE OF THE SOFTWARE TO
DEVELOP, DISTRIBUTE OR USE OF ANY MATERIAL THAT IS DEFAMATORY, SLANDEROUS,
LIBELOUS OR OBSCENE, THAT PORTRAYS ANY PERSON IN A FALSE LIGHT, THAT CONSTITUTES
AN INVASION OF ANY RIGHT TO PRIVACY OR AN INFRINGEMENT OF ANY RIGHT TO
PUBLICITY, THAT GIVES RISE TO ANY BREACH OF CONTRACT INVOLVING ANY THIRD PARTY
OR TO ANY BUSINESS TORT OR SIMILAR CLAIM OF A THIRD PARTY OR ANY VIOLATION OF
ANY FOREIGN, FEDERAL, STATE OR LOCAL STATUTE OR REGULATION, OR THAT OTHERWISE
CAN BE REASONABLY LIKELY TO EXPOSE DEVELOPER OR INTERTRUST TO CRIMINAL OR CIVIL
ACTIONS.
IN NO EVENT WILL INTERTRUST AND/OR ITS AGENTS BE LIABLE TO YOU FOR ANY
CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE
LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF
INTERTRUST AND/OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT
APPLY TO YOU. TO THE EXTENT AS APPLIED IN A PARTICULAR CIRCUMSTANCE ANY
DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS WHOLLY
PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH
PARTICULAR CIRCUMSTANCE, INTERTRUST AND ITS AGENTS SHALL BE ENTITLED TO THE
MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW
OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, IN NO EVENT
TO EXCEED US$10."
7. Confidentiality and Trade Secret Notices. Except as described below for
----------------------------------------
InterTrust Top Secret Information, NatWest shall place trade secret notices in
such places as specified in Section A hereof
<PAGE>
CONFIDENTIAL
(as applicable) and as applicable, conspicuously and prominently: (a) on the
cover, first page, and in noticeable form in the header or footer of all
subsequent pages, of all printed copies of any InterTrust Confidential
Information authorized under this Agreement, (b) on packaging of media
containing such information, such as floppy disks, and (c) on the initial screen
of all electronic copies of any InterTrust Confidential Information. For
Confidential Information, the content of such trade secret notice provided to
Licensee pursuant to the agreement between the parties.
CONFIDENTIAL INFORMATION OF INTERTRUST TECHNOLOGIES CORPORATION
Where InterTrust Technologies Corporation has provided NatWest with Top
Secret Information, NatWest shall provide notices as set forth immediately
above, having the following content:
TOP SECRET INTERTRUST INFORMATION, SUBJECT TO SPECIAL HANDLING PROCEDURES AS SET
FORTH IN THE AGREEMENT BETWEEN THE PARTIES. DO NOT COPY, DISCLOSE, OR
DISTRIBUTE.
<PAGE>
CONFIDENTIAL
Trademark Guidelines for Use of Trademarks of InterTrust Technologies
---------------------------------------------------------------------
Corporation
-----------
1. These Trademark Guidelines ("Guidelines") are provided pursuant to the
Technology Development, Marketing and License Agreement (the "Agreement")
between National Westminster Bank Plc ("Licensee") and InterTrust
Technologies Corporation ("InterTrust"). The trademarks of InterTrust
Technologies Corporation as listed on Exhibit B (as may be amended or
supplemented from time to time by InterTrust) ("InterTrust Trademarks") are
valuable intellectual property of InterTrust that identify genuine technology
and/or products licensed by InterTrust. Since the InterTrust Trademarks
signify a high standard of quality and reliability, InterTrust must maintain
control over how each of the InterTrust Trademarks is used. Therefore, these
Guidelines and the provisions of applicable sections of the Agreement must be
followed in their entirety in order to preserve and protect the InterTrust
Trademarks.
2. The InterTrust Trademarks must be used on products and/or services that
include InterTrust licensed technology or other material ("Licensed
Material") and/or that have been certified as InterTrustworthy by InterTrust
Certification Program; as provided for in the Agreement. The InterTrust
Trademarks must also be used on associated initial computer screens,
packaging, collateral documentation, manuals advertising, and promotional
materials. The InterTrust Trademarks may never be used on or in connection
with any other products or services, except as expressly provided for under
the Agreement.
3. At the first or a prominent occurrence of a InterTrust Trademark on a
computer screen and/or splash screen or in advertising, copy, promotional
materials, documentation, manuals, or packaging, it must be symbolically
indicated that the InterTrust Trademark used therein is a legal trademark
belonging to InterTrust. This can be done by (1) indicating the "TM" symbol
at the upper right corner of the trademark for an unregistered InterTrust
Trademark and indicating the circled "R" (R) symbol at the upper right corner
of the trademark for a registered trademark, and (2) appending an "*" after
the InterTrust Trademark and placing the appropriate statement selected from
the following on a suitably noticeable area (which shall generally occur near
the copyright notice in text or on screen) of each such copy:
(For an unregistered InterTrust Trademark)
*____________________ (insert InterTrust Trademark) is a trademark in the
USA and other countries of InterTrust Technologies Corporation and is used
by _____________________ (insert licensee name) under license.
(For a registered InterTrust Trademark)
*____________________ (insert InterTrust Trademark) is a trademark in the
USA and other countries of InterTrust Technologies Corporation (Reg. U.S.
Pat. and Tm. Off.) and is used by __________________(insert licensee name)
under license.
Some countries may require that a translated version of these above
statements be used. Licensee must comply with any such local laws.
4. InterTrust Trademarks may not be used in any manner that may cause confusion
as to the source of origin of products and/or services. InterTrust trademarks
are to be used in an evident, but potentially secondary manner to the main
brand on products and services. As a general matter, the only InterTrust
trademark that need directly and evidently appear on the product or service
is a mark indicating compliance with InterTrust's Specifications, as
designated by InterTrust - such as the mark "InterTrustWorthy". Under no
circumstances may InterTrust Trademarks be used or identified on a product or
in a business name or identifier of a business, InterTrust, product, or
service not connected with licensee's products incorporating the Licensed
Material. No variations, compounds, or imitations of the InterTrust
Trademarks may be used at any time, except as expressly authorized in writing
by the InterTrust Designated Officers.
5. All of the InterTrust Trademarks that are word marks must always be used
either as a symbol standing alone or as an adjective describing a noun, with
the noun being the generic name of the product to which the trademark
<PAGE>
CONFIDENTIAL
is applied. (For example, "an InterTrust rights protection system" not "an
InterTrust," or "a DigiBox secure container" not "a DigiBox.") Possessive
or plural forms of the InterTrust Trademark word marks are prohibited.
Additional guidelines regarding specific uses of InterTrust Trademarks and
logos may be provided by InterTrust from time to time.
6. The InterTrust Trademarks may not be used as part of or in any emblem or
insignia or on novelty items except as expressly authorized in writing by
the InterTrust Designated Officers. The InterTrust Trademarks may not be
used in combination with any other trademark, service mark or trade name
except as expressly authorized in writing by an InterTrust Designated
Officer.
7. InterTrust will provide its licensees with camera-ready artwork of the
InterTrust Trademarks. This is the form of the InterTrust Trademarks that
must be used, and this artwork shall not be altered in any way with the
exception of resizing, which may be done using conventional photographic
proportional processes. The InterTrust Trademarks may be used in black and
white, the exact color scheme specified by InterTrust in the artwork, or in
such other color treatments as may have been previously authorized in
writing by InterTrust. Such authorization may be rescinded at any time.
In addition, the area surrounding any use of a logotype form of a
InterTrust Trademark must be free of any other pattern or graphic element
for at least the width of a band that is itself at least 20% of the
logotype form of the InterTrust Trademark, unless the licensee has received
the prior written authorization of InterTrust, which may be rescinded in
writing at any time.
8. Exhibit B of the Agreement includes a listing of all current registered
InterTrust Trademarks, and InterTrust will provide prompt amendment of
Exhibit B as registrations are obtained.
9. Schedule 1 hereto lists those countries in which licensees' use of
InterTrust Trademarks is prohibited or otherwise restricted. InterTrust
will provide prompt amendment of Schedule 1 as changes occur.
10. Licensee will use InterTrust Trademarks solely in a manner consistent with
proper trademark usage and with the high standards of quality and
reliability that InterTrust Trademarks represent.
11. In addition to these Guidelines, InterTrust may amend these Guidelines at
any time and/or provide additional instructions from time to time which
must be followed in use of InterTrust Trademarks. Such amendment and/or
additional instructions shall not be inconsistent with the terms of the
Agreement.
<PAGE>
CONFIDENTIAL
SCHEDULE 1
Countries in Which Use of InterTrust Trademarks is Prohibited or Otherwise
Restricted
None
<PAGE>
CONFIDENTIAL
EXHIBIT F
TO THE TECHNOLOGY DEVELOPMENT, MARKETING AND LICENSE AGREEMENT
PARTNERING COMMITMENT ITEMS
---------------------------
I. DEFINITIONS
-----------
"Banking Institution" means a Person that: (i)() is either a Savings Association
or a Bank Holding Company as defined and registered under the Bank Holding
Company Act 12 U.S. 1841 et. seq. which is in effect as of the Effective Date
(or a direct or indirect subsidiary of either) that (a) itself or through an
affiliate (as defined in 12 U.S. 1841) either issues credit cards to customers
or processes credit card transactions on behalf of merchants who accept such
credit cards, and (b) is recognized, on its own or through an affiliate, as a
Visa or Master Card independent service organization (any such Person, a [*]);
or (ii) as to other Persons not provided in (i) immediately above, to
InterTrust's reasonable belief after reasonable examination, is, or is a direct
or indirect affiliate of, a "foreign bank" (as defined in 12 CFR Section
211.2(j) effective as of the Effective Date and whether or not actually subject
to the International Banking Act of 1978), that (a) has (together with its
direct or indirect affiliates on a consolidated basis) at least (1) thirty
percent (30%) of its assets devoted to the business of banking, or (2) at least
(A) $US 50 Billion of its assets devoted to the business of banking in the case
of a foreign bank organized under the laws of and headquartered in a country
that is a member of the European Union, or (B) $US 100 Billion of its assets
devoted to the business of banking in the case of a foreign bank organized under
the laws of or headquartered in a country other than a country that is a member
of the European Union; (b) by itself or through an affiliate either issues
credit cards to customers or processes credit card transactions on behalf of
merchants who accept such credit cards; and (c) is recognized, on its own or
through an affiliate, as a Visa or Proxy Card independent service organization
(collectively, with respect to such a "foreign bank," hereinafter a Foreign
Bank, and with respect to such an affiliate thereof, hereinafter a Foreign Bank
Affiliate). For purposes of subparagraph (ii)(a) immediately above, assets
devoted to activities listed in Section 211.5(d)(1)(7) (which regulation is in
effect as of the Effective Date) shall be considered banking assets; except that
with respect to a Person who is a "foreign bank," assets devoted to activities
listed in Section 211.5(d)(1)(14) (which regulation is in effect as of the
Effective Date) shall be considered banking assets.
"Digital Rights Management" means technology that can: (i) stipulate Rules and
-------------------------
Controls governing, Managing, regulating and/or controlling (a) interests (such
as rights, processes and/or obligations) in, related to, and/or associated with
use of any Content, and/or (b) securely manage events and/or event processes
related to or associated with use of, attempted use of, and/or disposition of,
Content or digital events; and (ii) enforce such Rules and Controls through
technical means. Neither Digital Rights Management nor Secure Container shall
mean (1) use of a certificate authority and/or digital certificate solely to
authenticate the identity of a Person provided that no Rules and Controls are
associated with either the certificate authority services and/or with said
digital certificates ("Certificate Authority"), or (2) use of session and/or
---------------------
link encryption to protect Content solely during transport provided that no
Rules and Controls are associated with such Content, and that such encryption is
used during transport only and does not permit persistent protection ("Session
-------
Encryption").
----------
"Distributed Peer to Peer Digital Rights Management" means an architecture in
--------------------------------------------------
which, generally speaking, plural distributed computers or other devices (i.e.,
----
nodes) have the potential to act as
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
directly interacting peers in providing Digital Rights Management so that
trusted processes are not required to be performed at one or more centrally
located servers.
II. LIST OF OTHER TECHNOLOGY PROVIDERS--To aid in defining Digital Rights
----------------------------------
Management, Secure Container technologies and Distributed Peer to Peer Digital
Rights Management, the Parties agree that the following lists are exemplary and
not intended as exhaustive. Companies listed in Section A may be considered as
having, or representing they have, some form of Digital Rights Management
technology including simpler lock/unlock solutions:
A. Companies Providing Some Form of Secure Container (including simple
Lock/Unlock Control Technology) and/or other Digital Rights Management Software
or Hardware Component Capabilities. (We have not included water marketing
technology companies on this list, though they border and in some instance
cross over into rights management)
[*]
B. Companies Providing Distributed Peer-to-Peer Digital Rights Management
systems or Hardware Component Capabilities
None presently known as of the Effective Date.
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
EXHIBIT G
TO THE TECHNOLOGY DEVELOPMENT, MARKETING AND LICENSE AGREEMENT
CONFIDENTIALITY PROVISIONS AND FORMS OF INTERTRUST CONFIDENTIALITY AGREEMENTS
-----------------------------------------------------------------------------
CONFIDENTIALITY PROVISIONS
--------------------------
1. InterTrust Information.
----------------------
(a) Confidential Information. To the extent that NatWest 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"), NatWest shall hold such InterTrust Confidential
------------------------
Information in strict confidence and in a manner that is: (i) sufficiently
secure for the character and content of the InterTrust Confidential Information;
and (ii) not less secure than procedures used by NatWest to protect its
comparably important information and technology. NatWest shall not, without the
prior written consent of an InterTrust Designated Officer, use, disclose,
provide or otherwise make available any InterTrust Confidential Information to
any Person, except to any employee, director, agent or professional consultant
(collectively "Agents") of NatWest who does not have a potential conflict of
------
interest with InterTrust Technology. Furthermore, in each case of disclosure to
an Agent of NatWest 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
NatWest to use InterTrust Confidential Information solely to exercise its
license hereunder and/or as expressly allowed hereunder. NatWest shall, as the
case may be: (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 NatWest a written non-
disclosure/non-use agreement in the form set forth in this Exhibit G or as
subsequently provided by InterTrust, or NatWest's applicable form agreement
which shall effectively and comparably bind such Agent to an agreement of the
same scope as InterTrust's form agreement, and which such form agreement shall
be subject to InterTrust's reasonable prior written approval. Upon such
approval, the form agreement shall replace the pre-existing such form agreement.
NatWest shall notify InterTrust promptly in writing of any unauthorized
disclosure or other misuse or misappropriation of any portions of the InterTrust
Confidential Information which may come to the attention of a NatWest officer.
NatWest shall maintain a log of the Agents accessing and the location of all
originals and copies of material excerpts of technical Confidential Information.
NatWest shall be fully responsible for any breach of its obligations under this
Agreement by any Agent to whom such Confidential Information is disclosed. Any
obligation of NatWest to keep InterTrust Confidential Information in confidence
shall expire thirty-six (36) months after disclosure of such information by
InterTrust to NatWest; provided that InterTrust Technology shall be kept
-------- ----
confidential in perpetuity.
(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, NatWest 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 NatWest's most secret information
-----------
and, in all events in a manner sufficient to ensure the security of such Top
Secret Information, given such great sensitivity of such Top Secret Information.
NatWest shall allow disclosure of such Top Secret Information to no more than
[*] designated individual employees of NatWest at any time (and to no Agents
who are not employees), 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 NatWest to
---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
CONFIDENTIAL
use Top Secret Information solely to exercise its rights and perform its
obligations under this Agreement. NatWest shall not substitute any employee
designated to receive Top Secret Information with another employee, unless such
designated employee's employment with NatWest 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 executes an InterTrust Top Secrecy Agreement (in the form set forth in
this Exhibit G or as subsequently provided by InterTrust in writing) covering
such information and exposure; and (ii) an original executed copy of such
agreement is received by InterTrust, with return receipt provided to NatWest,
which such receipt may be provided by fax communication if so requested in
writing. Notwithstanding the foregoing, NatWest and NatWest 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 of an InterTrust Designated Officer, nor
shall NatWest or such NatWest employees disclose any Top Secret Information to
any Person, except as described in this Section 1 of this Exhibit G. If NatWest
becomes aware that any Top Secret Information has been disclosed or treated
other than as set forth in this Section 1 of this Exhibit G, and/or as specified
in a Top Secrecy Agreement, NatWest shall immediately inform InterTrust of such
occurrence and take immediate steps to correct such compromise. NatWest shall
maintain a log of the employees accessing and location of all originals and
other tangible embodiments of all Top Secret Information. NatWest shall be fully
responsible for any breach by any NatWest employee of this Agreement related to
the unauthorized use or disclosure of Top Secret Information.
2. NatWest Information. To the extent that InterTrust receives NatWest
-------------------
confidential information that is either marked "Confidential" when disclosed in
written form or indicated as "Confidential" when disclosed orally ("NatWest
-------
Confidential Information"), under this Agreement, InterTrust shall hold such
------------------------
NatWest 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 NatWest 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 NatWest of the
Modified Technology or such disclosures inherent in the Certification Testing of
NatWest Products and/or any associated services pursuant hereto, and only to the
extent expressly specified by InterTrust Specifications, NatWest shall not
disclose or otherwise provide or make available any NatWest Confidential
Information which is directly related to InterTrust Technology and InterTrust's
business activities, without first acquiring written approval from an InterTrust
Designated Officer. InterTrust shall not use, disclose, provide or otherwise
make available any NatWest 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 NatWest 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
to be provided by NatWest, and attached as part of this Exhibit G, or
InterTrust's applicable form agreement which shall effectively and comparably
bind such Agent to an agreement of the same scope as NatWest's form agreement,
and which InterTrust form agreement shall be subject to NatWest's reasonable
prior written approval. Upon such approval, the InterTrust form agreement shall
replace the relevant portion of this Exhibit G. InterTrust agrees to notify
NatWest promptly in writing of any unauthorized disclosure or other misuse or
misappropriation of NatWest 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 NatWest Confidential Information has been
disclosed. Any obligation of InterTrust to keep NatWest information in
confidence shall expire thirty-six (36) months after
<PAGE>
CONFIDENTIAL
disclosure of such information by NatWest to InterTrust.
3. Exceptions. Notwithstanding the provisions of Sections 1 and 2 above, 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 (as demonstrated by recipient's written records) 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 case of Top Secret Information,
however, the availability to NatWest of information that is, or is substantially
equivalent to Top Secret Information based upon Section (i), (ii) and/or (iii)
above shall not, in any manner, diminish NatWest's obligations with respect to
the Top Secret Information provided by InterTrust to NatWest (and all copies or
derivatives thereof), and NatWest shall be prohibited from further disclosing to
third parties any such information in NatWest's possession based upon the
foregoing subsection (i), (ii) and/or (iii). 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 for
in camera inspection, or otherwise upon the prior written approval of an
-- ------
InterTrust Designated Officer. 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.
4. Return/Destruction. Each Party shall deliver to the other Party within ten
------------------
(10) days from the date of termination of this Agreement or as soon as is
reasonably practicable thereafter (except as relates to Top Secret Information)
(and provided that in no event shall such period exceed thirty (30) days) all
copies of all materials protected as Confidential Information or Top Secret
Information under this Agreement (the "Return Period"). Such returned
-------------
information shall include all copies in the possession or under the control of
such Party or their Agents; provided that with respect to non-tangible copies of
-------- ----
such information, rather than returning such non-tangible copies the receiving
Party may elect to fully and securely destroy such copies (e.g., in the case of
----
a computer file, permanently deleting such files) and provide the disclosing
Party during the Return Period with an affidavit or declaration signed by an
officer with knowledge of the facts certifying that all such non-tangible copies
have been so destroyed. Return of Confidential Information shall be by
commercially secure means as reasonably specified by the disclosing Party.
Return of Top Secret Information shall be made, at InterTrust's option as
specified by an InterTrust Designated Officer by written instruction to NatWest:
(a) by physical and secure pickup at NatWest's offices by an InterTrust officer
designated in writing by such InterTrust Designated Officer; or (b) as otherwise
may be determined by InterTrust 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 NatWest and audited and countersigned by such
InterTrust officer. Within one (1) month after the termination of this
Agreement in the case of Top Secret Information and two (2) months after the
termination of this Agreement in the case of Confidential Information, each
Party will certify in writing to the other Party (as applicable hereunder) that,
to the best of its knowledge, all such materials and tangible embodiments have
been delivered to the other Party.
<PAGE>
CONFIDENTIAL
TOP SECRECY AGREEMENT
---------------------
FOR CERTAIN INTERTRUST INFORMATION
----------------------------------
THIS AGREEMENT (this "Agreement") is made effective as of
---------
____________________ between INTERTRUST TECHNOLOGIES CORPORATION
("InterTrust"), a Delaware corporation, having a place of business at 460
----------
Oakmead Parkway, Sunnyvale, California 90486, and
___________________________________("Recipient"), an individual citizen of
---------
_______________, residing at __________, and an employee of National Westminster
Bank Plc ("NatWest"), a United Kingdom corporation with offices at 41 Lothbury,
-------
London, England.
The parties agree as follows:
1 Purpose.
-------
(a) Pursuant to a Technology Development, Marketing and License Agreement
dated August 18, 1998 between InterTrust and NatWest (the "License Agreement"),
-----------------
InterTrust may disclose to NatWest certain information including load module
related, encryption related, document manager related and/or other information
considered Top Secret and proprietary by InterTrust (hereinafter referred to as
the "InterTrust Top Secret Information") and which shall conspicuously be marked
---------------------------------
with a notice or legend with the phrase "Top Secret", as provided in the License
Agreement. In consideration for said information being provided to Recipient,
Recipient agrees to be bound by the terms of this Agreement.
(b) InterTrust wishes to protect the InterTrust Top Secret Information
from unauthorized use and disclosure. Disclosure of InterTrust Top Secret
Information to Recipient, and use and disclosure of Top Secret Information
received by Recipient shall occur only in accordance with the terms and
conditions of this Agreement.
2 Non-Disclosure and Restrictions on Use of InterTrust Extremely
--------------------------------------------------------------
Confidential.
------------
(a) Except as otherwise provided in an express written agreement signed
by InterTrust's Chairman, or other such person designated in writing by the
Chairman (a "Designated InterTrust Officer"), Recipient agrees that he or she
-----------------------------
shall: (i) hold in strictest confidence and not disclose any InterTrust Top
Secret Information to any person or entity either within or outside NatWest,
except to another NatWest employee who has also signed a Top Secrecy Agreement
and is authorized to receive Top Secret Information pursuant to the Licensed
Agreement, or as expressly permitted in writing by a Designated InterTrust
Officer; (ii) use InterTrust Top Secret Information solely for purposes
authorized by the License Agreement: (iii) use said Top Secret Information in no
other way whatsoever; (iv) apply the strictest feasible measures to protect the
secrecy of, and prevent unauthorized disclosure or use of, InterTrust Top Secret
information (which such measures shall not be less stringent than NatWest uses
to protect its own most highly sensitive and secret information); and (v)
produce no physical embodiments of any portion of the Top Secret Information
without the express written authorization of a Designated InterTrust Officer.
Recipient agrees to notify InterTrust promptly in writing of any unauthorized
disclosure or other misuse or misappropriation of the InterTrust Top Secret
Information which may come to Recipient's attention.
(b) Notwithstanding the foregoing, Recipient shall be entitled to
disclose Top Secret Information pursuant to a court order issued by a court of
competent jurisdiction or as otherwise required by law; provided that Recipient
-------- ----
shall provide prompt advance notice thereof to InterTrust to
<PAGE>
CONFIDENTIAL
enable InterTrust to seek a protective order or otherwise prevent such
disclosure, shall disclose no more than the minimum information required by such
court order or by law, and in all events any such disclosure shall be in camera
-- ------
only.
3 Return of Materials. Upon request of a Designated InterTrust Officer,
-------------------
Recipient shall immediately return to InterTrust by secure delivery means all
tangible embodiments of InterTrust Top Secret Information in Recipient's
possession or otherwise under Recipient's control.
4 Equitable Remedies. Recipient agrees that unauthorized disclosure or use of
------------------
InterTrust Top Secret Information will cause InterTrust substantial and
irreparable damage. Recipient further agrees that it may be impossible or
inadequate to measure and calculate InterTrust's damages from any breach of the
covenants set forth in Sections 2 and/or 3 hereof. Accordingly, Recipient
agrees that if he or she breaches or threatens breach of any of such sections,
InterTrust will have available, in addition to any other right or remedy
available, the right to obtain an injunction against him or her, from a court of
competent jurisdiction restraining such breach or threatened breach and to
specific performance of any such provision of this Agreement, and Recipient
hereby consents to the issuance of such injunction and to the ordering of
specific performance under such circumstances.
5 Governing Law: Jurisdiction and Venue. This Agreement shall be governed by
-------------------------------------
and construed under the laws of the United States of America and the
Commonwealth of Virginia, without reference to conflict of law principles. All
disputes arising out of or relating to the subject matter of this Agreement
shall be subject to the exclusive jurisdiction and venue of the United States
District Court for the Eastern District of Virginia, Alexandria Division
Virginia, or if jurisdiction does not properly lie in such court, the
Commonwealth courts in Alexandria, Virginia. The parties consent to the
personal and exclusive jurisdiction and venue of such court and waive any
argument that jurisdiction or venue in such court is improper or inconvenient.
6 Severability; Export Compliance. If any provision or portion thereof in
-------------------------------
this Agreement shall be found or be held to be illegal, invalid or unenforceable
in any jurisdiction in which this Agreement is being performed, then this
Agreement shall nevertheless be given full force and effect without said
provision or portion. Recipient certifies that no Top Secret Information, or
any portion thereof, will be exported to any country in violation of U.S. export
regulations or other regulations applicable to Recipient and such information.
7 Entire Agreement. This Agreement constitutes the entire agreement between
----------------
Recipient and InterTrust regarding the InterTrust Top Secret Information
disclosed hereunder and supersedes all oral or written agreements, either
entered prior to or contemporaneously with this Agreement, concerning the
InterTrust Top Secret Information, except the provisions of the License
Agreement, the provisions of which shall be deemed to be supplemented hereby as
of the date first written above. This Agreement may not be modified except by
written agreement dated subsequent to the date of this Agreement and signed by
both parties.
8 Successors. Subject to the limitations set forth in this Agreement, this
----------
Agreement will inure to the benefit of and be binding upon the parties, their
successors and assigns.
9 Notices. For all purposes hereof, any notice pursuant hereto shall be
-------
deemed given upon receipt by the Party at the address indicated above.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above
<PAGE>
CONFIDENTIAL
written.
INTERTRUST TECHNOLOGIES CORPORATION EMPLOYEE
--------
By:________________________ By:______________________
Name: ____________________ Name:
National Westminster Bank Plc
Title: ___________________ Title:_______________________
<PAGE>
CONFIDENTIAL
NON-DISCLOSURE AGREEMENT
------------------------
FOR INTERTRUST CONFIDENTIAL INFORMATION
---------------------------------------
THIS AGREEMENT (this "Agreement") is made effective as of ______________
---------
between INTERTRUST TECHNOLOGIES CORPORATION ("InterTrust"), a Delaware
----------
corporation, having a place of business at 460 Oakmead Parkway, Sunnyvale,
California 90486, and ___________("Recipient"), an individual citizen of
---------
__________________________, residing at
___________________________________________________________, and an employee of
National Westminster Bank Plc ("NatWest"), a United Kingdom corporation with
-------
offices at 41 Lothbury, London, England.
The parties agree as follows:
1. Pursuant to a Technology Development, Marketing and License Agreement dated
August 18, 1998 between InterTrust and NatWest (the "License Agreement"),
-----------------
InterTrust may disclose to NatWest certain confidential information including
technical information embodied in and/or associated with InterTrust's InterTrust
Technology including, without limitation, software products and/or other
developments related to distributed, secure rights and/or event management,
associated designs, inventions, plans, and other information (the "Confidential
------------
Information"), all of which such information shall conspicuously be marked with
-----------
a notice or legend with the phrase "Confidential", as provided in the License
Agreement. In consideration for such Confidential Information being provided to
Recipient, Recipient agrees to be bound by the terms of this Agreement.
Disclosure of InterTrust Confidential Information to Recipient, and use and
disclosure of Confidential Information received by Recipient, shall occur only
in accordance with the terms and conditions of this Agreement.
2. For a period of three (3) years following the disclosure of any Confidential
Information (such period to extend in perpetuity with respect to InterTrust
Technology), Recipient will retain such Confidential Information in confidence,
and will discuss such Confidential Information only with other NatWest
employees, other individuals who are under the direct control of NatWest and
work full time on NatWest premises (an "Individual Consultant"), -- all of whom
---------------------
shall have a need to know said Confidential Information and who have executed a
copy of this Agreement. Recipient shall not, without the prior written
permission of InterTrust's Chairman or such other InterTrust Officer as who has
been designated in writing by InterTrust's Chairman (a "Designated InterTrust
---------------------
Officer"), disclose Confidential Information to any person other than as set
-------
forth immediately above. Furthermore, without express written authorization of a
NatWest officer who is empowered by NatWest to provide such an authorization,
the Recipient will not make copies, in whole or in part, of the Confidential
Information, including translating, in whole or in part, the Confidential
Information into another language and/or shipping the Confidential Information,
in whole or in part, or any direct product thereof, to any other country. The
undersigned will not use the Confidential Information in any manner that is not
authorized by NatWest and in accordance with the License Agreement and the
undersigned will use the Confidential Information solely in the exercise of
NatWest's rights as provided by the License Agreement. Under no circumstances
will any information subject to the export or import laws of any jurisdiction be
transferred pursuant to their agreement without proper prior certification and
notification of appropriate regulatory offices in applicable jurisdictions and
InterTrust.
3. The undersigned will not use Confidential Information except in fulfillment
of the undersigned employee's and/or other individual's obligations with
NatWest, and for no other purposes whatsoever. The undersigned understands and
acknowledges that the unauthorized use of Confidential Information may cause
InterTrust very substantial damage, for which damages may be impossible to
measure or inadequate to compensate. Accordingly, Recipient agrees that if he or
she breaches or threatens breach of any of such sections, InterTrust will have
available, in addition to any other right or remedy available, the right to
obtain an injunction against him or her, from a court of competent jurisdiction
restraining such breach or threatened
<PAGE>
CONFIDENTIAL
breach and to specific performance of any such provision of this Agreement, and
Recipient hereby consents to the issuance of such injunction and to the ordering
of specific performance under such circumstances.
4. The undersigned will return all physical embodiments of Confidential
Information in the undersigned's possession to InterTrust promptly upon request
by InterTrust, and in no event later than fifteen (15) days thereafter.
5. Notwithstanding any thing else in this Agreement, the confidentiality
restrictions of this Agreement shall not apply to information that: (i) is or
becomes known to the public through no breach of any of the undersigned's
obligations under this Agreement, or NatWest's or any other NatWest employee's,
obligations of confidentiality to NatWest and/or to InterTrust; (ii) was known
to Recipient prior to its disclosure by InterTrust, as evidenced through written
documentation; (iii) shall have been independently developed by the Recipient
without any reliance on or use of any InterTrust Confidential Information, as
demonstrated through written documentation; or (iv) shall have been rightfully
supplied to Recipient, with no obligation of confidentiality or non-use from a
third party without any breach of any obligation of confidentiality to
InterTrust or NatWest (as applicable) as of the date such information is so
supplied. In addition, the Recipient shall be entitled to disclose Confidential
Information pursuant to a court order issued by a court of competent
jurisdiction or as otherwise required by law; provided that the undersigned
-------- ----
shall provide prompt advance notice thereof to InterTrust to enable InterTrust
to seek a protective order or otherwise prevent such disclosure and shall
disclose no more than the minimum information required by such court order or by
law.
6. If any provision or portion thereof in this Agreement shall be found
or be held by a court of competent jurisdiction to be illegal, invalid or
unenforceable in any jurisdiction in which this Agreement is being performed,
then this Agreement shall nevertheless be given full force and effect without
said provision or portion. This Agreement may not be modified except by written
agreement dated subsequent to the date of this Agreement and signed by both
parties. This agreement shall be governed by and construed under the laws of
the United States of America and the Commonwealth of Virginia, USA, without
reference to conflicts of laws principles. All disputes arising out of or
relating to the subject matter of this Agreement shall be subject to the
exclusive jurisdiction and venue of the United States District Court for the
Eastern District of Virginia, Alexandria Division Virginia, or if jurisdiction
does not properly lie in such court, the Commonwealth courts in Alexandria,
Virginia. The parties consent to the personal and exclusive jurisdiction and
venue of such court and waive any argument that jurisdiction or venue in such
court is improper or inconvenient.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
InterTrust Technologies Corporation Employee
By: _____________________ By:_________________________
Title:___________________ Title:______________________
<PAGE>
CONFIDENTIAL
EXHIBIT H
TO THE TECHNOLOGY DEVELOPMENT, MARKETING AND LICENSE AGREEMENT
The following are procedures and policies that InterTrust employees are
instructed to routinely follow to avoid or minimize potential infection of any
software virus: In addition, such checking is incorporated in QA testing before
any software release.
. Software code is routinely checked with commercially available third party
virus software for existence of any viruses.
. InterTrust currently has a site license to virus checking software by Network
Associates.
. InterTrust regularly receives from Network Associates updates designed to
detect the latest known software viruses.
. InterTrust's policy and practice is to keep source code under strict source
control, using Clear Case software.
. Employees are prohibited, under InterTrust's policies, from downloading or
incorporating any software from any third party (including through the
Internet) without first obtaining prior approval from an authorized technical
manager whose responsibility is to test such software for viruses before any
use by InterTrust employees.
. InterTrust regularly educates new and existing employees regarding these
procedures and policies.