Technology Development And License Agreement

EXHIBIT 10.13







_______________________________________________________



TECHNOLOGY DEVELOPMENT AND LICENSE





by and between



INTERTRUST TECHNOLOGIES CORPORATION





UNIVERSAL MUSIC GROUP, INC.



_______________________________________________________







______________________________



APRIL 13, 1999



______________________________





- ---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.







1. Definitions and Rules of Construction......................................... 1

1.1 Definitions.............................................................. 1

1.2 Rules and Construction................................................... 11

2. ADDITION OF AUTHORIZED VENTURES............................................... 12

2.1 Addition of Authorized Ventures.......................................... 12

2.2 Interpretation of Definitions............................................ 15

3. TECHNOLOGY ACCESS AND SUPPORT................................................. 15

3.1 Technology Access........................................................ 16

3.2 Training, Assistance and Technical Support............................... 16

3.3 Additional Assistance; Further Support................................... 18

4. UNIVERSAL LICENSES and RESTRICTIONS........................................... 18

4.1 License Grant and Option................................................. 18

4.2 License to InterTrust Trademarks......................................... 19

4.3 Limited License to Clearinghouse Functions............................... 19

4.4 No Additional Licenses................................................... 20

4.5 General Restrictions..................................................... 20

5. USE OF CONTRACTORS; UNIVERSAL SUPPORT AND ADDITIONAL COVENANTS............... 20

5.1 Use of Contractors....................................................... 20

5.2 Universal Support of InterTrust Technology............................... 21

5.3 Notices and Branding..................................................... 24

5.4 InterTrust Trademarks.................................................... 26

5.5 Universal's Use of Universal Trademarks on Universal Products............ 27

5.6 Universal Trademarks..................................................... 27

5.7 Translation of Material in Foreign Languages............................. 28

6. LICENSE FEES AND PAYMENT TERMS................................................ 28

6.1 Fees and Royalties....................................................... 28

6.2 [*]...................................................................... 29

6.3 Payment Procedure........................................................ 30

6.4 Currency................................................................. 30

6.5 Taxes.................................................................... 30

6.6 Interest................................................................. 30

6.7 Audit.................................................................... 31

7. PROPRIETARY INFORMATION AND OWNERSHIP......................................... 31

7.1 InterTrust Ownership..................................................... 31

7.2 Universal Ownership...................................................... 31

7.3 Universal License to InterTrust.......................................... 32

8. JOINT ACTIVITIES AND PARTNERING COMMITMENT.................................... 32

8.1 Joint Press Release...................................................... 32

8.2 Promotion and Marketing.................................................. 33

8.3 Technology Advisory Committee............................................ 33

8.4 Partnering Commitment.................................................... 33

9. CONFIDENTIALITY............................................................... 34

9.1 Classification of Technology and Documents For Confidentiality Purposes.. 34

9.2 InterTrust Information................................................... 34

9.3 Universal Information.................................................... 36

9.4 Exceptions............................................................... 37

9.5 Confidentiality of Agreement and Publicity............................... 37

9.6 Confidentiality of Payments, Audit and Certification Testing............. 38

9.7 NDA...................................................................... 38

10. REPRESENTATIONS AND WARRANTIES................................................ 38

10.1 Representations and Warranties of Both Parties........................... 38

10.2 Representations and Warranties of InterTrust............................. 39

10.3 Limitation............................................................... 39

10.4 Reporting Covenants...................................................... 39

11. INDEMNIFICATION AND REMEDIES.................................................. 39

11.1 Indemnification.......................................................... 39



- ---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.







11.2 Cumulative Remedies...................................................... 41

11.3 Equitable Remedies....................................................... 41

12. EXCLUSION OF DAMAGES.......................................................... 41

13. TERM AND TERMINATION.......................................................... 42

13.1 Agreement................................................................ 42

13.2 Events of Termination.................................................... 42

13.3 Effect of Termination.................................................... 44

13.4 Survival................................................................. 45

14. MISCELLANEOUS................................................................. 45

14.1 Governing Law............................................................ 45

14.2 Venue and Jurisdiction................................................... 45

14.3 Compliance with Law and Export Controls.................................. 45

14.4 Amendment or Modification................................................ 46

14.5 No Assignment............................................................ 46

14.6 Notices.................................................................. 46

14.7 Waiver................................................................... 47

14.8 No Third Party Beneficiaries............................................. 47

14.9 No Agency................................................................ 47

14.10 Severability............................................................. 47

14.11 Counterparts; Facsimiles................................................. 47

14.12 Force Majeure............................................................ 47

14.13 Entire Agreement......................................................... 47









A InterTrust Technology Estimated Product Deliverables



B InterTrust Specifications



C Trademarks



D Authorized Development Venture Signature Page

Authorized Clearinghouse Venture Signature Page



E Screening Procedures



F InterTrust Terms



G Product Legends and Notices



H InterTrust Mark Denoting Compliance



I Form of InterTrust Confidentiality Agreements



J Internal Procedures for Testing Viruses and Y2K Compliance



K Joint Press Release







TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT





THIS TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT (this "Agreement") is made and

--------- entered into as of the ___ day of April, 1999 (the "Effective Date") by and

-------------- between: INTERTRUST TECHNOLOGIES CORPORATION ("InterTrust"), with offices at 460

---------- Oakmead Parkway, Sunnyvale, California; and UNIVERSAL MUSIC GROUP, INC.



("Universal,"), with offices at 70 Universal City Plaza, Universal City,

--------- California (each of InterTrust and Universal a "Party" and collectively the

----- "Parties"), with reference to the following:

-------





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 usage consequences.

Universal is involved in, among other things, the creation, publishing and

distribution of music content (and technology related thereto).



B. Universal desires to obtain a license from InterTrust to use, among other

things, certain InterTrust Technology so that Universal can: (i) with

respect to music content, develop and deploy computer software player

applications for managing music content distribution; (ii) upon exercise of

an option to expand the music content to include certain other

entertainment content, develop and deploy Content Management applications

to support a variety of Universal entertainment businesses; and (iii)

perform Clearinghouse Function services in the manner set forth herein.



C. As set forth herein, the Parties mutually desire that Universal become an

InterTrust Business Partner and offer products and services within the

music field, and optionally, other content fields using InterTrust





NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following terms and conditions:



1. DEFINITIONS AND RULES OF CONSTRUCTION.



1.1 Definitions. In addition to the other capitalized terms defined

----------- elsewhere in this Agreement, the following terms shall have the meanings set forth below:



"Added InterTrust Marks" shall have the meaning set forth in Section

---------------------- 5.4(a).



"[*]" shall have the meaning set forth in Section 6.1(a).

-----------------



"Agent(s)" shall have the meaning set forth in Section 9.2(a).

--------



"Application Product(s)" means any application software for use in the

---------------------- Entertainment Field, including but not limited to a music player, that: (i) is developed by (or for) Universal hereunder using InterTrust Technology and/or Modified Technology solely to directly Manage end-user interaction with, and end-user administration of, Content; (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 granted by InterTrust to Universal hereunder; (iii) is in Compliance with InterTrust Specifications; and (iv) is not enabled to perform any Clearinghouse Functions or to permit the performance of Clearinghouse Functions by any Person other than an Authorized Clearinghouse Provider except (and solely except) as directly relates to permitting a specific end-user and/or an



Universal/InterTrust Agreement _______/_______





- ---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.







Authorized Clearinghouse Provider, as appropriate, to pay bills on their behalf and/or otherwise direct, review, and/or receive such end-user's usage history information, or review and/or directly (at least in part) manage such end-user's specific end-user rights and permissions, but solely as directly authorized and set-up by, and subject to the direct control of an Authorized Clearinghouse Provider for, and solely for both such end-user's specific use on a single InterRights Point and for integrated cooperative operation with Clearinghouse Functions operated at a remote data center under the direct control of an Authorized Clearinghouse Provider for the purpose of efficiently providing: (a) data to such data center for such Authorized Clearinghouse Provider's Clearinghouse Function operations, and (b) certain Authorized Clearinghouse Provider's Clearinghouse Functions to operate on such end-user's InterRights Point on behalf of such Authorized Clearinghouse Provider and/or such specific single end-user, all in Compliance with InterTrust Specifications.



"Assistance" shall have the meaning set forth in Section 3.2(a).

----------



"Authorized Application Software" means software representations of

------------------------------- InterTrust Technology in Object Code and/or in Source Code (solely as such Object Code and Source Code are identified and designated by InterTrust on Exhibit A as defined herein), that is permitted for distribution as incorporated in Application Products in accordance with the applicable licenses hereunder, solely in such form as specified on Exhibit A and in Compliance with InterTrust Specifications, as defined herein (or as otherwise designated in writing by InterTrust to Universal or as marked by InterTrust on any tangible medium representing InterTrust Technology provided to Universal hereunder); provided

-------- that any such designations or markings shall be made and applied by InterTrust - ---- in a non-discriminatory and consistent manner with respect to all Business Partners regarding similar products and/or services.



"Authorized Clearinghouse Provider(s)" means any Person(s) that is (are)

------------------------------------ expressly licensed by InterTrust to engage in specified Clearinghouse Function activities and services in Compliance with InterTrust Specifications, but only to the extent: (i) of the scope of such license; and (ii) that such license is valid and in force.



"Authorized Clearinghouse Venture" shall have the meaning set forth in

-------------------------------- Section 2.1(b).



"Authorized Development Venture" shall have the meaning set forth in

------------------------------ Section 2.1(a).



"Authorized Venture" means the Development Venture and/or the

------------------ Clearinghouse Venture, as applicable in the context in which reference is made.



"Business Partner(s)" means any Person (other than a Core Partner) with

------------------- whom InterTrust enters into an agreement or set of agreements, pursuant to which InterTrust: (i)(a) directly provides early access to InterTrust Technology prior to InterTrust's first commercial release of such technology to the general public, (b) grants a general purpose license to use InterTrust Technology in software products, applications and services within one or more specific, but not most, fields, and (c) grants a license to perform Clearinghouse Functions with no materially greater scope than the license fields granted in Section 4.3 hereof in one or more specific, but not most, fields; or (ii) directly provides and grants those items of (i)(a) and (i)(b) above, or item (i)(c) above, to a Person in the Entertainment Field (as defined as of the Effective Date without exercise of the Option).



"California Venue" shall have the meaning set forth in Section 14.2.

----------------



"Certification Program(s)" shall have the meaning set forth in Section

------------------------ 5.2(c)(i).



"Claims" shall have the meaning set forth in Section 11.1(a).

------



"Clearinghouse Function(s)" means any one or more activities including

------------------------- providing products and/or services resulting therefrom, that use any InterTrust Technology and/or Modified Technology, and/or use information derived at least in part from use of such technology, in all instances in Compliance with InterTrust Specifications to: (i) enable payment fulfillment and/or provision of any 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 (and/or provision of any 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 InterTrust Technology Secure Containers and/or Content, including Contents of such Secure Containers or any other Content Managed at least in part using any InterTrust Technology and/or Modified Technology. Clearinghouse Functions shall include, for example, the use of InterTrust Technology and/or Modified Technology, and/or use of information derived at least in part from any use of such technology, for: (a) financial clearing; (b) providing object registry services and rights, permissions, prices, and/or other Rules and Controls information for objects managed at least in part through the use of InterTrust Technology; (c) electronically certifying information used with or required by Rules and Controls, such as authenticating identity, class membership and/or other attributes of identity context; (d) providing information based upon auditing usage, user profiling, and/or market surveying related to more than one Person's use of one or more InterTrust Technology Secure Containers and/or Content; and/or (e) employing information derived from user exposure to Content, such as advertising exposure information.



"Clearinghouse Product(s)" means (and is strictly limited to) any

------------------------ software application for use in the Entertainment Field that: (i) is developed by (or for) Universal hereunder using InterTrust Technology and/or Modified Technology; (ii) directly contains or incorporates InterTrust Technology and/or Modified Technology solely in Object Code and as specified in Exhibit A, all 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.



"Clearinghouse Venture" means a joint venture corporation or limited

--------------------- liability company Controlled by Universal alone or jointly with [*] and/or its Controlled affiliates, and whose: (i) principal business purpose and activity is to perform Clearinghouse Functions in the Entertainment Field and in accordance with the terms and conditions of Section 2.1(b) and other applicable terms of this Agreement; and (ii) constituent members and/or equity holders who are Competitive Entities shall neither (a) have access to any InterTrust Confidential Information or Top Secret Information by virtue of such Person's involvement in the Clearinghouse Venture, nor (b) Govern, nor participate in any manner in the Governance of, such corporation or company. Notwithstanding the foregoing, Clearinghouse Venture shall not have [*] and/or any of its Controlled affiliates (collectively, [*]) as a constituent member, equity holder, or otherwise as a participant in the Clearinghouse Venture.



"Co-Branded" shall have the meaning set forth in Section 5.3(c).

----------



"Compliance," "Compl[y][ied]" or "Compliant" means fully (and without

----------- ------------- --------- exception) consistent with and fully conforming to all applicable portions of the InterTrust Specifications (as set forth in Section 5.2(b) hereof). A Universal Product and/or any associated service that has not been certified to have passed any required certification tests in the manner set forth in Section 5.2(c) hereof and/or that does not satisfy the preceding sentence hereof shall be deemed non-Compliant with InterTrust Specifications.



"Compliant Product" shall have the meaning set forth in Section

----------------- 5.2(c)(iii).



"Commerce 1.1" means the software described in Exhibit A that

------------ incorporates InterTrust Technology, as provided by InterTrust to Universal consistent herewith.



"Competitive Entity" means any Person who deploys and/or provides, or

------------------ positions itself as deploying and/or providing, Other Technology products and/or associated services to other Persons. For purposes of this definition, the development, marketing and distribution of Pre-Authorized Other Technology by [*] and its Controlled affiliates (collectively, [*]) or [*] shall not be construed to make [*] or [*], respectively, a Competitive Entity solely by virtue of such development, marketing and distribution of Pre-Authorized Other Technology.



"Compliance Update" shall have the meaning set forth in Section 3.1(b).

-----------------





- ---------- * CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.







"Compromising Event" shall have the meaning set forth in Section

------------------ 2.1(d)(ii).



"Confidential Information" shall have the meaning set forth in Section

------------------------ 9.1.



"Confidentially Handled Information" shall have the meaning set forth in

---------------------------------- Section 2.1(d)(ii).



"Content(s)" means any digital information representing, for example,

---------- text, graphics, animation, video, digital linear or non-linear motion pictures, sound and sound recordings, still images, computer programs or executable or interpretable components, and data. Content shall include, for example, any electronic representation of: (i) Rules and Controls; and/or (ii) information derived from the Management of Content.



"Content Transaction" means any event or combination of events: (i)

------------------- Managed, in whole or in part, through the use of any InterTrust Technology and/or Modified Technology in Compliance with InterTrust Specifications; and (ii) in connection with which consideration of any kind (including consideration directly related to any such event or combination of events) is due and/or payable at any time to Universal 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, and/or (b) any other use of, including any interaction with, Content (such as access to Content, including production of modified Content) where one or more rights are provided related to Content interaction; provided that, the foregoing specifically does not include secure

-------- ---- transaction services that merely provide delivery and/or access to Content and do not Manage one or more specific rights to purchase, vend, pass along, view, read, listen, edit (including modify, cut, and/or paste), copy, play, print, execute, re-distribute, and/or similarly directly otherwise interact with such Content for a fee and/or the provision of any other consideration by one or more users, user representatives, and/or proxy payers (such as advertisers paying fee for user interaction with embedded promotional material).



"Contractor" means any Person, including consultants, who, in

---------- accordance with the provisions of Section 5.1 and other provisions hereof, enters into an agreement with Universal to develop or assist in the development of Universal Products for Universal (and/or provide other services directly relating to this Agreement) and who, in that regard, has access to InterTrust Technology and/or InterTrust Confidential Information; provided that such

-------- ---- agreement as relates to work being performed by such Contractor for Universal, and further to any and all InterTrust Confidential Information and/or Top Secret Information (as may be permitted under Section 9.2(b)): (i) binds such Person to the applicable terms and conditions of this Agreement; (ii) requires such Person to perform such work for Universal's exclusive benefit and under Universal's direct and actual management, control, and supervision; and (iii) stipulates that as between Contractor and Universal, Universal shall be the exclusive owner of any work product produced by such Person for Universal (subject to InterTrust's rights as set forth herein).



"Contractor Agreement" shall have the meaning set forth in Section 5.1.

--------------------



"Control(s)" means having, directly or indirectly, the power or right

---------- to elect the board of directors or similar managing authority and/or generally direct Persons to, or make, or cause the making of, policies or management decisions, whether through the ownership of voting securities, by contract or otherwise. A "Controlled Person" means a Person under the Control of another

----------------- Person.



"Control Use" means any use of InterTrust Technology and/or Modified

----------- Technology, but solely 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 and/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

------------ agreement or set of agreements, pursuant to which InterTrust: (i) directly provides materially early access to InterTrust Technology prior to InterTrust's first commercial release or provision of such technology to the general public; (ii) grants ...