EXHIBIT 10.84
Confidential treatment has been requested for portions of this document. The
copy of the document filed as an Exhibit omits the confidential information
subject to the confidentiality request. Omissions are designated by three
asterisks (***). A complete version of this exhibit has been filed separately
with the Securities and Exchange Commission.
AMENDMENT NO. 17
TO THE
POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE
AND SUBLICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
PEERLESS SYSTEMS CORPORATION
Effective as of 15 October, 2004
This Amendment No. 17 (the "Amendment") to the PostScript Software
Development License and Sublicense Agreement dated July 23, 1999, as previously
amended (the "Agreement"), is between Adobe Systems Incorporated, a Delaware
corporation having a place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
("Adobe") and Peerless Systems Corporation, a Delaware corporation having a
place of business at 0000 Xxxxxxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000
("Peerless").
WHEREAS, the purpose of this Amendment No. 17 is to amend the Agreement to
permit Peerless to develop and distribute Licensed Systems (hereinafter
"Peerless-Branded Licensed Systems") under the terms of the Agreement; and
WHEREAS, Adobe agrees to a modification of the testing and certification
process authorizing Peerless to conduct the testing of the Revised Object and
applicable Peerless-Branded Licensed System developed by Peerless hereunder.
1. Paragraph 1.1 ("Adobe Certification Test Suite") of Section 1 ("Definitions")
of the Agreement is revised to read in its entirety as follows:
"1.1 ADOBE CERTIFICATION TEST SUITE means the testing materials and
procedures developed by Adobe to be used to test Revised Object for
conformity with the PostScript Language Specification and Adobe quality
standards by (a) Peerless, in connection with a Peerless SDK,
Peerless-Branded Licensed Systems or OEM Customer Licensed Systems and (b)
OEM Customers, in connection with an OEM Customer Licensed Systems."
2. Paragraph 1.6.1 ("Adobe Support Source") of Section 1 ("Definitions") of the
Agreement is revised to read in its entirety as follows:
"1.6.1 ADOBE SUPPORT SOURCE means those portions of the Adobe Software
supplied to Peerless in human readable source code form, including the
corresponding source documentation and interface materials, as identified
by Adobe in an appendix or materials release form, which may be modified
by Peerless or by a Third Party Developer
Amend. 17 to PS Agmt. - Adobe/Peerles 1
(under a Development Agreement with Peerless) to adapt the Adobe Software
for compatibility with OEM Customer Licensed Systems or Peerless-Branded
Licensed Systems."
3. Paragraph 1.20 ("Licensed System") of Section 1 ("Definitions") of the
Agreement is revised to read in its entirety as follows:
"1.20 Licensed System means an OEM Customer product (hereinafter known as
an "OEM Customer Licensed System") or a Peerless product (hereinafter
known as a "Peerless-Branded Licensed System") that includes Revised
Object and Font Programs, and may include (unless such components are
identified as mandatory, in which case it shall include) Other Adobe
Software, Host Software, one or more Designated Output Devices and other
hardware and software identified in a Peerless/OEM Customer Licensed
System Appendix or Adobe/Peerless Licensed System Appendix (as
applicable). The Peerless/OEM Customer Licensed System Appendix or
Adobe/Peerless Licensed System Appendix (as applicable) shall be executed
prior to Peerless' delivery to Adobe of the certification test results for
such Licensed System pursuant to Paragraph 2 ("Testing") of EXHIBIT F
("Licensed System Test Procedures") of the Agreement. Any reference in the
Agreement to "Licensed System", unless expressly stated otherwise or where
limited by the context in which the term is used, shall mean the OEM
Customer Licensed System and/or the Peerless-Branded Licensed System."
4. Paragraph 1.21 ("Licensed System Appendix) (LSA") of Section 1
("Definitions") of the Agreement is revised to read in its entirety as follows:
"1.21 LICENSED SYSTEM APPENDIX. (LSA) means an appendix (hereinafter known
as a "Peerless/OEM Customer Licensed System Appendix") to be added to the
applicable Peerless OEM Agreement between Peerless and its OEM Customer
covering each OEM Customer Licensed System or an appendix (hereinafter
known as an "Adobe/Peerless Licensed System Appendix") between Adobe and
Peerless covering each Peerless-Branded Licensed System, containing a
description of the OEM Customer Licensed System or Peerless-Branded
Licensed System (as applicable) and setting forth any licensing terms
specific to each such Licensed System and including at a minimum the terms
set forth in EXHIBIT G ("Minimum Terms for Licensed System Appendix").
While Adobe will be a signatory to an Adobe/Peerless Licensed System
Appendix, Adobe will not be a signatory to a Peerless/OEM Customer
Licensed System Appendix, but will receive a transmittal form summarizing
any terms contained in the Peerless/OEM Customer Licensed System Appendix
which would require special consideration by Adobe along with an attached
copy thereof within five (5) days of final execution. Any Peerless/OEM
Customer Licensed System Appendix containing terms which impact Adobe's
rights or obligations otherwise than as explicitly stated in this
Agreement or appendices thereto, shall require Adobe's written approval on
the applicable transmittal form to be enforceable. Any reference in the
Agreement to "Licensed System Appendix", unless expressly stated otherwise
or where limited by the context in which the term is used, shall mean a
Peerless/OEM Customer Licensed System Appendix and/or Adobe/Peerless
Licensed System Appendix."
Amend. 17 to PS Agmt. - Adobe/Peerles 2
5. Paragraph 1.29 ("Revised Object") of Section 1 ("Definitions") of the
Agreement is revised to read in its entirety as follows:
"1.29 REVISED OBJECT means the compiled, object code version of the Adobe
Software and Other Adobe Software (if any), as revised by Peerless for use
in a Peerless SDK or a Peerless-Branded Licensed System or in an OEM
Customer Licensed System pursuant to the licenses granted hereunder."
6. Paragraph 1.40 ("CPSI Software") of Section 1 ("Definitions") of the
Agreement is revised to read in its entirety as follows:
"1.40 CPSI SOFTWARE means the "Adobe Software", as that term is defined in
Paragraph 1.6 ("Adobe Software"), running on a specified architecture
(hereinafter a "CPSI Platform") that Adobe supplies to Peerless in object
code form only and from which Peerless develops (i) host-based OEM
Customer Licensed Systems for distribution by an OEM Customer in
accordance with the terms and conditions of a Peerless OEM Agreement, or
by OEM Remarketer Customers in accordance with the terms and conditions of
an OEM Remarketer Customer Agreement, or (ii) Peerless SDK(s) for use by
an OEM Customer in developing host-based OEM Customer Licensed Systems for
distribution by OEM Customer in accordance with the terms and conditions
of a Peerless OEM Agreement, or by OEM Remarketer Customers in accordance
with the terms and conditions of an OEM Remarketer Customer Agreement, and
(iii) host-based Peerless-Branded Licensed Systems for distribution by
Peerless under this Agreement or by Peerless Remarketer Customers in
accordance with the terms and conditions of a Peerless Remarketer Customer
Agreement."
7. The number "1.43" has inadvertently been duplicated in Paragraph 1.43 ("Host
PDF Printing Library") and Paragraph 1.43 ("PDF to PS Conversion Code"), and in
order to correct any confusion caused by such duplication, Paragraph 1.43 ("PDF
to PS Conversion Code") is renumbered as Paragraph 1.44 ("PDF to PS Conversion
Code") of the Agreement.
8. A new Paragraph 1.45 ("Peerless Remarketer Customer") is hereby added to
Section 1 ("Definitions") of the Agreement to read as follows:
"1.45 PEERLESS REMARKETER CUSTOMER means a third party with whom Peerless
has entered into a written agreement authorizing such third party to
distribute a Peerless-Branded Licensed System under such third party's own
trademark and/or incorporated as part of such third party's own product
and under its own End User Agreement that includes terms substantially
equivalent to those set forth in Paragraph 2.16 ("End User License -
Peerless-Branded Licensed Systems") and in ATTACHMENT 1 ("Minimum Terms of
End User Agreements") in EXHIBIT B ("Minimum Terms of Peerless OEM
Agreements") to the Agreement."
9. A new Paragraph 1.46 ("Golden Master") is hereby added to Section 1
("Definitions") of the Agreement to read as follows:
"1.46 GOLDEN MASTER means a master tape or a compact disc copy of the
applicable Adobe Information; i.e., Revised Object, Font Programs, Host
Software, supplied by
Amend. 17 to PS Agmt. - Adobe/Peerles 3
Peerless from which multiple copies of the applicable Adobe Information
may be made by a Peerless Remarketer Customer."
10. Paragraph 2.1 ("Development License") is revised to read in its entirety as
follows:
"2.1 DEVELOPMENT LICENSE. Subject to Peerless' compliance with the terms
of this Agreement, Adobe hereby grants to Peerless a non-exclusive,
non-transferable license to (a) use the Adobe Support Information supplied
to Peerless hereunder solely at the appropriate Development Site (i.e.,
Primary or Secondary Development Site), as specified in EXHIBIT C
("Development and Reproduction Sites"), only for the purpose of designing,
developing, adapting, localizing, modifying, testing and maintaining and
to allow Third Party Developers solely at a Secondary Development Site, as
specified in EXHIBIT C-2 ("Development Sites - Third Party Developers"),
to use the Adobe Support Information supplied to Peerless hereunder (but
excluding any Adobe Core Source) solely on behalf of Peerless or for an
OEM Customer and in accordance with Paragraph 2.11 ("Third Party
Developers") to design, develop, adapt, localize, modify, test and
maintain (i) Revised Object implemented as part of an OEM Customer
Licensed System or a Peerless-Branded Licensed System, in conformance with
the PostScript Language Specification, and/or (ii) a Peerless SDK to be
used by OEM Customers for development, (but not modification except as
expressly set forth in this Agreement) of OEM Customer Licensed Systems
conforming with the PostScript Language Specification; (b) use and
reproduce and allow Third Party Developers to use and reproduce the Host
Software, if any, solely at an applicable Development Site and only in
connection with developing a Peerless SDK or Revised Object for use with
OEM Customer Licensed Systems or Peerless-Branded Licensed Systems; (c)
localize and modify and allow Third Party Developers to localize and
modify the Adobe Driver Software in accordance with Paragraph 2 ("Adobe
Driver Software") of EXHIBIT E ("Host Software"), provided Adobe delivers
Peerless a software development tool expressly intended for such
localization or modification, solely at an applicable Development Site(s)
and only connection with developing a Peerless SDK or Revised Object for
use with OEM Customer Licensed Systems or Peerless-Branded Licensed
Systems; (d) if Host Software is provided, localize, reproduce and
reformat the End User Documentation, and modify the content of the
Licensed System-specific portion of the End User Documentation and the
title page and copyright page on behalf of itself and/or its OEM
Customers, provided that Peerless agrees to distribute the End User
Documentation in its entirety to the End User, directly and indirectly
through Peerless' usual distribution channels, including through Peerless
Remarketer Customers or to such OEM Customers as provided to Peerless by
Adobe with the applicable Host Software, and further agrees that it will
not modify or delete any copyright notices or other proprietary notices
included in such End User Documentation as provided by Adobe; (e) use
internally the PPD template provided by Adobe to create its own PPD Files.
Peerless' right to modify the Adobe Support Information under the license
hereunder is limited to Adobe Support Information provided to Peerless in
source code form, except for the Adobe Core Source which Peerless is
prohibited from modifying unless with the prior written approval of
Adobe's Vice President of Engineering for printing technologies and
containing any additional terms which Adobe may impose. Adobe agrees to
respond to such request for approval within a reasonable period after
receipt thereof, and with
Amend. 17 to PS Agmt. - Adobe/Peerles 4
respect to a request made by Peerless to correct a defect in the Adobe
Core Source, Adobe will grant such request provided that Adobe, in its
judgment, determines that Peerless has the expertise to make the necessary
corrections. The above limitations imposed on Peerless' right to make
modifications to Adobe Software shall not preclude Peerless from making
modifications to documentation and other such materials supplied by Adobe,
as permitted hereunder."
11. Subsection 2.2.1.1 ("Distribution Rights to the PDF to PS Conversion Code")
to Paragraph 2.2.1 ("Revised Object License") of the Agreement is revised to
read in its entirety as follows:
"2.2.1.1 DISTRIBUTION RIGHTS TO THE PDF TO PS CONVERSION CODE. With
respect to the PDF to PS Conversion Code, the rights and sublicensing
rights granted to Peerless and to OEM Customer, respectively, shall
include and be limited to the right to (a) use and reproduce (or have
reproduced for Peerless or its OEM Customer's sole behalf) at the
Reproduction Site(s) only, and (b) sublicense and distribute, directly and
indirectly through Peerless' usual distribution channels, including
distribution through Peerless Remarketer Customers, and (c) sublicense and
distribute, directly and indirectly through OEM Customer's usual
distribution channels, including distribution through OEM Remarketer
Customers, the object code only version of the PDF to PS Conversion Code,
and any derivative thereof, for use as part of an OEM Customer Licensed
System or Peerless-Branded Licensed System.
12. Subsection 2.13.1 ("Development Rights") of Paragraph 2.13 ("License to Use
PDF to PS Conversion Code") is revised to read in its entirety as follows:
"2.13.1 DEVELOPMENT RIGHTS. Subject to Peerless' compliance with the terms
of the Agreement, Adobe grants to Peerless a non-exclusive,
non-transferable license during the term of the Agreement to use (but not
the right to sublicense the right to use) the PDF to PS Source Code solely
at a Primary Development Site listed in EXHIBIT C ("Development and
Reproduction Sites") of the Agreement for the sole purpose of designing,
developing, adapting, modifying, testing, documenting and maintaining the
PDF to PS Conversion Code for use with OEM Customer Licensed Systems and
Peerless-Branded Licensed Systems. Peerless may make only such
modifications to the PDF to PS Source Code as are required to successfully
compile and link the PDF to PS Conversion Code for use with OEM Customer
Licensed Systems and Peerless-Branded Licensed Systems. Peerless is not
permitted to modify the PDF to PS Conversion Code for use with an OEM
Customer product or a Peerless-Branded product not covered by the terms of
the Agreement or to change the PDF to PS Conversion Code to create
PostScript files that are not fully compatible with the Adobe Software.
Peerless is not obligated to disclose to Adobe any modifications that
Peerless makes to the PDF to PS Source Code."
13. A new Paragraph 2.16 ("End User License - Peerless-Branded Licensed
Systems") is hereby added to the Agreement to read in its entirety as follows:
"2.16 END USER LICENSE - PEERLESS-BRANDED LICENSED SYSTEMS.
Amend. 17 to PS Agmt. - Adobe/Peerles 5
2.16.1 COMMERCIAL END USER LICENSE. Peerless will take all steps
necessary to protect Adobe's proprietary rights in the Adobe
Information. Peerless will ensure that each copy of the Revised
Object, Font Programs and Host Software distributed by Peerless to
an End User, directly or indirectly through Peerless' usual
distribution channels, including distribution through Peerless
Remarketer Customers, will be accompanied by a localized copy of
Peerless' or Peerless Remarketer Customer's standard software
license agreement applicable to such software (the "End User
Agreement"). Such End User Agreement will include terms and
conditions substantially equivalent to those set forth in ATTACHMENT
1 ("Minimum Terms of End User Agreements") in EXHIBIT B ("Minimum
Terms of Peerless OEM Agreements") to the Agreement. The End User
Agreement may be (a) a written agreement signed by the End User, or
(b) a written agreement in the package containing the Revised
Object, Font Programs and Host Software, or the user documentation
for the Revised Object, Font Programs and Host Software, that is
fully visible to the End User and that the End User accepts by
opening the package. If Adobe in writing permits Peerless, either
directly or through a Peerless Remarketer Customer, to distribute
Host Software in electronic form, Peerless shall ensure and shall
require a Peerless Remarketer Customer to ensure that upon the
initial use of the Host Software, the End User is presented with a
copy of the End User Agreement and is required to electronically
accept the terms of the End User Agreement prior to accessing use of
the functions of the Host Software. If Peerless is supplied Adobe
Information by Adobe for distribution to End Users which is
accompanied by an Adobesupplied End User license, Peerless agrees to
retain and to require its Peerless Remarketer Customer to retain the
End User license with the applicable Adobe Information distributed
hereunder. If any such Adobe Information does not already include an
End User license, Peerless or Peerless Remarketer Customer (as
applicable) shall include its own End User Agreement that complies
with the requirements set forth in this Paragraph with any such
distribution. Peerless shall ensure that each component of Adobe
Information that it or its Peerless Remarketer Customer licenses to
an End User as part of a compilation (for example, a CD-ROM software
compilation) contains either an Adobe-supplied End User license, if
applicable, or is protected under a Peerless- or Peerless Remarketer
Customer-supplied End User Agreement accompanying the compilation in
accordance with the terms of this Paragraph. Peerless shall ensure
that such End User Agreement contains a provision stating that in
case of conflict the terms of any individual End User license shall
prevail over the terms of the End User Agreement.
2.16.2 U.S. GOVERNMENT END USER LICENSE. When distributing a
Peerless-Branded Licensed System product to a U.S. Government End
User, directly or indirectly through Peerless' usual distribution
channels, including distribution through Peerless Remarketer
Customers, Peerless or the Peerless Remarketer Customer (as
applicable) shall identify the Revised Object, Font Programs and
Host Software and related documentation as a "commercial item," as
that term is defined at 48 C.F.R. 2.101, and more specifically shall
be identified as "commercial computer software" and "commercial
computer software documentation," as such terms are used in 48
C.F.R. 12.212. Consistent with 48
Amend. 17 to PS Agmt. - Adobe/Peerles 6
C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Peerless
and the Peerless Remarketer Customer (as applicable) will provide
the Revised Object, Font Programs and Host and related documentation
to U.S. Government End Users (a) only as a commercial end item and
(b) with only those rights as are granted to all End Users pursuant
to the terms and conditions herein."
14. The following new Paragraph 2.17 ("Peerless Distribution Rights to
Peerless-Branded Licensed System") is hereby added to this Agreement to read in
its entirety as follows:
"2.17 PEERLESS DISTRIBUTION RIGHTS TO PEERLESS-BRANDED LICENSED SYSTEMS.
2.17.1 REVISED OBJECT AND OTHER ADOBE SOFTWARE LICENSE. Subject to
Peerless' compliance with the terms of this Agreement, Adobe hereby
grants to Peerless a non-exclusive, non-transferable license to (a)
reproduce (or have reproduced for Peerless' sole benefit) at the
Reproduction Site(s) only, and (b) sublicense and distribute,
directly and indirectly through Peerless' usual distribution
channels, including distribution through Peerless Remarketer
Customers, the Revised Object or Other Adobe Software for use as
part of a Peerless-Branded Licensed System. Peerless' right to
distribute commercially the Revised Object or Other Adobe Software
for use with a Peerless-Branded Licensed System is contingent upon
execution of an Adobe/Peerless Licensed System Appendix and shall be
in accordance with the terms set forth in such Adobe/Peerless
Licensed System Appendix. In order to prevent the unauthorized
copying and use of the Revised Object and Other Adobe Software,
Peerless shall employ, and shall require a Peerless Remarketer
Customer to employ, copy protection satisfactory to Adobe in all
copies of the Revised Object and Other Adobe Software made for
commercial distribution or use hereunder.
2.17.2 FONT PROGRAM LICENSE. Subject to Peerless' compliance with
the terms of this Agreement, Adobe hereby grants to Peerless a
non-exclusive, nontransferable license, to (a) reproduce (or have
reproduced for Peerless' sole benefit) the Font Programs at the
Reproduction Site(s), (b) distribute the Font Programs, directly and
indirectly through Peerless' usual distribution channels, including
distribution through Peerless Remarketer Customers, only as bundled
with Revised Object in the configuration described in Paragraph 2
("Font Program Bundling Requirements") of EXHIBIT O-1 ("Royalty
Payments and Other Fees for Royalty-Bearing Components of
Peerless-Branded Licensed Systems") solely for use with a
Peerless-Branded Licensed System or, in the case of Roman Font
Programs only, bundled with Host Software (e.g., on a CD-ROM
containing a compilation of Adobe Information) solely for use with a
Peerless-Branded Licensed System, (c) sublicense the Font Programs
to End Users for the reproduction and display of Typefaces on the
number of central processing units ("CPUs") and computers specified
in ATTACHMENT 1 ("Minimum Terms of End User Agreements") to EXHIBIT
B ("Minimum Terms of Peerless OEM Agreements") or in a
Adobe/Peerless Licensed System Appendix, for use with a single
Licensed System, (d) use the Font Programs to reproduce and display
the Typefaces on the Licensed Systems for purposes of test,
evaluation, or demonstration, and (e) use
Amend. 17 to PS Agmt. - Adobe/Peerles 7
and sublicense each End User to use the Typeface Trademarks to
identify the Font Programs. Peerless' license under this Paragraph
will terminate upon termination of Adobe's rights to use, reproduce,
and/or distribute such Font Programs under the agreement between
Adobe and the Trademark owner, if any, pertaining to such Font
Program, at which time Adobe shall have the right to substitute a
Font Program for an equivalent Typeface.
2.17.3 HOST SOFTWARE LICENSE. Subject to Peerless' compliance with
the terms of this Agreement, Adobe hereby grants to Peerless a
non-exclusive, nontransferable license to (a) to reproduce (or have
reproduced for Peerless' sole benefit) at the Reproduction Site(s)
only, and (b) sublicense and distribute, directly and indirectly
through Peerless' usual distribution channels, including
distribution through Peerless Remarketer Customers, Host Software
provided by Adobe to Peerless solely in object code form either
bundled with a Licensed System or separately for use with a Licensed
System in accordance with the terms applicable to "Host Software" in
ATTACHMENT 1 ("Minimum Terms of End User Agreements") to EXHIBIT B
("Minimum Terms of Peerless OEM Agreements"). Peerless' license to
distribute commercially the Host Software for use with a
Peerless-Branded Licensed System is contingent upon execution of an
Adobe/Peerless Licensed System Appendix and shall be in accordance
with the terms set forth in such Adobe/Peerless Licensed System
Appendix. Unless otherwise specified in a Adobe/Peerless Licensed
System Appendix, Peerless will incur no payment obligations to Adobe
for the right to distribute the Host Software provided that such
distribution is made free of charge or at a price which does not
exceed the cost of the media and handling. If Peerless wishes to
distribute the Host Software at additional costs to an End User, the
parties will negotiate a mutually acceptable royalty payable to
Adobe hereunder.
2.17.4 POSTSCRIPT LANGUAGE SPECIFICATION LICENSE. Peerless will have
the same rights and sublicensing rights with respect to Peerless
Remarketer Customers as Peerless may grant to OEM Customers for a
PostScript Language Specification License under Paragraph 2.2.6
("PostScript Language Specification License"); provided however,
that Peerless Remarketer Customers shall not have the right to
modify the PostScript Language Specification."
15. The following new Paragraph 2.18 ("Distribution of Peerless-Branded Licensed
Systems By Peerless Remarketer Customers") is hereby added to this Agreement to
read in its entirety as follows:
"2.18 DISTRIBUTION OF PEERLESS-BRANDED LICENSED SYSTEMS BY PEERLESS
REMARKETER CUSTOMERS.
2.18.1 SCOPE OF SUBLICENSE GRANTED TO PEERLESS REMARKETER CUSTOMER.
Subject to the terms and conditions of this Agreement (including
without limitation, the terms and conditions of the Peerless
Remarketer Customer Agreement (defined in Paragraph 2.18.2 below),
Peerless may sublicense to Peerless Remarketer Customer the right to
distribute, through its normal
Amend. 17 to PS Agmt. - Adobe/Peerles 8
distribution channel, the Revised Object, Font Programs, Other Adobe
Software and Host Software in object code form only and solely for
use with a Peerless-Branded Licensed System. Peerless Remarketer
Customer shall have no right to (a) sublicense any rights
sublicensed to it by Peerless hereunder or (b) alter or replace any
portion of, or alter the functionality of any portion of, the
Revised Object, Font Programs, Other Adobe Software and Host
Software supplied by Peerless to Peerless Remarketer Customer
hereunder. Peerless shall do all of the development and product
testing through certification of a Peerless-Branded Licensed System.
Once the Peerless-Branded Licensed System has been certified in
accordance with the requirements set forth in Paragraph 5.2
("Testing and Certification of Revised Object"), Peerless may supply
the Peerless Remarketer Customer with Golden Master versions in
object code form of the Revised Object, Font Programs, Other Adobe
Software and Host Software for reproduction and distribution as part
of a Peerless-Branded Licensed System in accordance with the terms
of this Agreement. Peerless shall require the Peerless Remarketer
Customer to faithfully reproduce all copies from the applicable
Golden Master solely at a Reproduction Site and not to alter or
replace any portion of, or alter the functionality of any portion of
the Revised Object, Font Programs, Other Adobe Software and Host
Software developed by Peerless and supplied by Peerless to the
Peerless Remarketer Customer. Peerless shall prohibit a Peerless
Remarketer Customer from granting a third party access to Golden
Masters for any purpose. Except for the sublicensing rights to the
Revised Object, Font Programs, Other Adobe Software and Host
Software set forth in this Paragraph 2.18.1, Peerless shall not
permit a Peerless Remarketer Customer to have access to any portion
of the Adobe Support Information or to a Peerless SDK.
2.18.2 MINIMUM TERMS OF PEERLESS REMARKETER CUSTOMER AGREEMENT.
Peerless will ensure that the written agreement with each Peerless
Remarketer Customer ("Peerless Remarketer Customer Agreement")
contains the minimum provisions as set forth below:
a. at a minimum, the terms and conditions included in EXHIBIT
L ("Use of Adobe Trademarks") of the Agreement.
b. a requirement that the Peerless Remarketer Customer's
license to distribute the Font Programs will terminate upon
termination of the agreement between Adobe and Typeface Trademark
owner, if any, pertaining to such Font Programs.
c. a requirement that the Peerless Remarketer Customer will
include with any distribution of the Revised Object, Font Programs
and Host Software a Peerless Remarketer Customer's End User license
agreement that complies with the requirements set forth in Paragraph
2.16.1 ("Commercial End User License") of the Agreement. If a
Peerless-Branded Licensed System is to be distributed to a U.S.
Government customer, Peerless Remarketer Customer shall be required
to license the Revised Object , Font Programs and Host Software in
accordance with Paragraph 2.16.2 ("U.S. Government End User
License") of the Agreement. If
Amend. 17 to PS Agmt. - Adobe/Peerles 9
distribution is to another government, Peerless Remarketer Customer
shall be required to ensure that the Revised Object, Font Programs
and Host Software receive the maximum protection available from such
government for commercial computer software and related
documentation developed at private expense.
d. a requirement that the Peerless Remarketer Customer will
employ protection mechanisms, in accordance with Paragraph 2.8
("Protection Mechanisms") of the Agreement, in conjunction with any
copies of the Revised Object, Font Programs and Host Software it
creates pursuant to its reproduction licenses hereunder.
e. an agreement by the Peerless Remarketer Customer to include
the applicable Adobe Trademarks and Typeface Trademarks on all
copies of the Revised Object, Font Programs and Host Software as
part of a Peerless-Branded Licensed System and in any advertising
concerning a Peerless-Branded Licensed System and that it will use
the applicable Adobe Trademarks and Typeface Trademarks on all
copies, advertisements, brochures, manuals and other appropriate
uses made in the promotion, sale or use of the Peerless-Branded
Licensed System.
f. a requirement that the Peerless Remarketer Customer will
faithfully reproduce the Revised Object, Font Programs and Host
Software from the Golden Master versions supplied by Peerless and
only at a Reproduction Site(s).
g. a requirement that the Peerless Remarketer Customer will
include the same proprietary notices, including copyright, on the
media and within the code that appear on the Golden Master versions
of the Revised Object, Font Programs and Host Software delivered to
the Peerless Remarketer Customer hereunder and as otherwise required
by Peerless or Adobe.
h. a requirement that upon a request in writing by Adobe or
Peerless the Peerless Remarketer Customer will provide within thirty
(30) days of such request specimens of the Revised Object, Font
Programs and Host Software for inspection and testing purposes to
determine that the Revised Object, Font Programs and Host Software
are faithful reproductions of the Golden Master and otherwise
conform to the Adobe quality standards.
i. a requirement that grants Peerless rights to audit the
records of the Peerless Remarketer Customer equivalent to those
granted to Adobe in Paragraph 8.11 ("Right of Audit") of the
Agreement.
j. a requirement that designates Adobe as a third party
beneficiary to the Peerless Remarketer Customer Agreement by
including the following provision in the Peerless Remarketer
Customer Agreement:
"Peerless Remarketer Customer is hereby notified and
agrees that Adobe Systems Incorporated, a Delaware corporation
located at 000 Xxxx Xxxxxx,
Amend. 17 to PS Agmt. - Adobe/Peerles 10
Xxx Xxxx, XX 00000-0000 is a third party beneficiary to the
Peerless Remarketer Customer Agreement to the extend that the
Peerless Remarketer Customer Agreement contains provisions
which relate to Peerless Remarketer Customer's use of the
Typeface Trademarks, Adobe Trademarks or Adobe Information in
conjunction with its distribution of Revised Object, Font
Programs and Host Software. Such provisions are made expressly
for the benefit of Adobe and its suppliers and are enforceable
by Adobe in addition to Peerless."
16. Paragraph 2.2.7 ("Trademark License") of the Agreement is revised to read in
its entirety as follows:
"2.2.7 TRADEMARK LICENSE. Subject to the terms and conditions of this
Agreement, including without limitation, EXHIBIT L ("Use of Adobe
Trademarks") hereto, Adobe hereby grants to Peerless a non-exclusive,
non-transferable, limited license to (a) use the Trademarks on
Peerless-Branded Licensed Systems and in Peerless' advertising and printed
materials for the Peerless-Branded Licensed Systems, including the right
to sublicense those same rights to Peerless Remarketer Customers, and (b)
sublicense to OEM Customers the right to use the Trademarks on OEM
Customer Licensed Systems and in OEM Customer's advertising and printed
materials for the OEM Customer Licensed Systems, including the right to
sublicense those same rights to OEM Remarketer Customers, for distribution
in all countries (except in Andorra, Bermuda, Israel, India, Pakistan,
Singapore and the Peoples Republic of China or in any other jurisdiction
where trademark sublicensing is legally prohibited or not recognized)
under a written agreement between Peerless and the Peerless Remarketer
Customer or between Peerless and OEM Customer or between OEM Customer and
OEM Remarketer Customer, as applicable, containing terms substantially
equivalent to those set forth in EXHIBIT L. If necessary, Adobe will grant
directly to OEM Customer, OEM Remarketer Customer or Peerless Remarketer
Customer, a non-exclusive, royalty-free license to use the Trademarks on
Licensed Systems, and in advertising and printed materials for Licensed
Systems, in Andorra, Bermuda, Israel, India, Pakistan, Singapore and the
Peoples Republic of China, or in any other jurisdiction where trademark
sublicensing is legally prohibited or not recognized, under a written
agreement between Adobe and such OEM Customer, OEM Remarketer Customer or
Peerless Remarketer Customer."
17. Paragraph 5.1 ("Peerless Development Responsibilities") of the Agreement is
revised to read in its entirety as follows:
"5.1 PEERLESS DEVELOPMENT RESPONSIBILITIES. Peerless shall be responsible
for modifying the Adobe Support Information or shall authorize a Third
Party Developer to modify the Adobe Support Information in accordance with
Paragraph 2.11 ("Third Party Developers") and to the extent permitted by
Paragraph 2.1 ("Development License") above to (a) create Peerless SDKs
suitable for use by its OEM Customers, and (b) create and assist its OEM
Customers to create Licensed Systems suitable for distribution to End
Users. Peerless shall promptly include in Peerless SDKs, and shall include
and shall require its OEM Customers to include any Updates Peerless
receives pursuant to EXHIBIT K ("Maintenance for Standard Reference
Port(s)") or EXHIBIT K-1 ("CPSI
Amend. 17 to PS Agmt. - Adobe/Peerles 11
Continuing Support") in Licensed Systems. Peerless shall take all
reasonable measures to ensure that it implements and requires its OEM
Customers to implement all Updates in the relevant Licensed System;
provided however, that implementation of an Update may be delayed when the
Licensed System (i) is already certified and shipping at the time of the
Update in which case the Update shall be implemented when commercially
feasible, or (ii) is undergoing development at the time of delivery of an
Update and, with the consent of Adobe Peerless or its OEM Customer, elects
not to incorporate such Update. In addition, Peerless, or its OEM Customer
shall be responsible for creating the PPD File for each Licensed System
prior to testing and certification of the Revised Object pursuant to
EXHIBIT F ("Licensed System Test Procedures"), and providing to Adobe any
updated version of a PPD File in a timely manner following the
availability of any updated version. Peerless shall be responsible for
delivering each such PPD File to Adobe. Adobe's sole responsibility in
connection with the above shall be to provide to Peerless the maintenance
described in EXHIBIT K for Standard Reference Port(s) and EXHIBIT K-1 for
CPSI Platforms hereto, subject to payment *** of maintenance fees under
Paragraph 8.1 ("License and Maintenance Fees"). If Peerless requests
custom development from Adobe (i.e., a version of the Adobe Software that
is not then a current offering of Adobe), Adobe and Peerless will discuss
proposed business terms of this custom development, including, without
limitation, the scope of work, technical specifications, milestone
schedule and pricing. Peerless and Adobe agree to designate a technically
qualified person to serve as primary contact for information requests by
either party in each Adobe Deliverables Appendix."
18. Paragraph 5.2 ("Testing and Certification of Revised Object and Proposed
Designated Output Device") of the Agreement is revised to read in its entirety
as follows:
"5.2 TESTING AND CERTIFICATION OF REVISED OBJECT. Peerless shall test each
Peerless SDK and each Peerless-Branded Licensed System containing Revised
Object, or in the case of an OEM Customer Licensed System, shall test,
assist in the testing of or require its OEM Customer or Third Party
Developer to test each Revised Object (including any previously-certified
Revised Object subsequently modified by Peerless, its OEM Customer or
Third Party Developer) in accordance with EXHIBIT F ("Licensed System Test
Procedures") and Peerless shall not distribute any Peerless SDK or begin
First Commercial Shipment of a Peerless-Branded Licensed System or allow
an OEM Customer to begin First Commercial Shipment of an OEM Customer
Licensed System containing the Revised Object and any modified version
thereof until the testing has been completed and such Peerless SDK or
Licensed System has been certified by Adobe pursuant to EXHIBIT F.
However, if a revision to the Revised Object constitutes a "Maintenance
Release", as that term is defined in the Adobe Certification Test Suite
materials, Peerless may begin First Commercial Shipment of a
Peerless-Branded Licensed System or allow an OEM Customer to begin First
Commercial Shipment of an OEM Customer Licensed System containing such
Maintenance Release only after Peerless, its OEM Customer or Third Party
Developer, as applicable, has run those portions of the Adobe
Certification Test Suite required for basic validity testing of the
Maintenance Release and for any specific testing required to evaluate
changes made in the Maintenance Release, and Peerless has provided Adobe
with a product certification request signed by Peerless' Quality Assurance
Manager acknowledging that the
Amend. 17 to PS Agmt. - Adobe/Peerles 12
necessary acceptance testing has been performed and the Licensed System
containing the Maintenance Release meets the Adobe Quality Standards (as
defined in EXHIBIT F). Adobe shall have the right to evaluate and shall
require Peerless to evaluate the quality assurance process and testing
results to determine if Peerless, its OEM Customer or Third Party
Developer, as applicable, is carrying out the requirements set forth
herein, and if Adobe determines that such quality is inadequate, Adobe
shall require Peerless to take corrective action and in the case of an OEM
Customer or Third Party Developer Peerless shall require the applicable
OEM Customer or Third Party Developer to take corrective action to remedy
quality issues and/or modify its quality assurance processes to satisfy
the requirements in EXHIBIT F."
19. Paragraph 8.3 ("Royalties for Royalty-Bearing Components of Licensed
Systems") of the Agreement is revised to read in its entirety as follows:
"8.3 ROYALTIES FOR ROYALTY-BEARING COMPONENTS OF LICENSED SYSTEMS.
8.3.1 ROYALTIES FOR ROYALTY-BEARING COMPONENTS OF OEM CUSTOMER
LICENSED SYSTEMS. Peerless shall pay to Adobe in U.S. Dollars the
royalties set forth in Paragraph 3 ("Licensed System Royalties") of
EXHIBIT O ("Royalty Payments and Other Fees") attached hereto, ***,
the royalties set forth in the transmittal form for the applicable
Peerless/OEM Customer Licensed System Appendix, which Adobe has
formally executed, for each royalty-bearing component of an OEM
Customer Licensed System which is used internally or distributed by
an OEM Customer directly or through its OEM Remarketer Customers.
The terms "Suggested Retail Price" (or "SRP") and "Gross Receipts"
used to calculate the royalties due to Adobe hereunder are defined
as follows: (a) "SRP" shall mean the OEM Customer's suggested retail
price for one (1) fully functioning OEM Customer Licensed System (or
other component(s)) as designated in a Peerless/OEM Customer
Licensed System Appendix). The SRP for a Roman Version of an OEM
Customer Licensed System (that is, an OEM Customer Licensed System
containing only Roman Font Programs) distributed in the United
States shall be used for calculating the OEM Customer Licensed
System royalties for Roman Versions of OEM Customer Licensed Systems
and the per Typeface royalties for Font Programs under the
applicable royalty provisions in EXHIBIT O ("Royalty Payments and
Other Fees"). In the event there is no available SRP for the OEM
Customer Licensed System in the United States, Peerless and Adobe
shall agree on election of a SRP in another country to be used as a
reasonable alternative. For distribution of OEM Customer Licensed
Systems in countries other than the United States that require the
bundling of non-Roman Font Programs (for example, distribution of a
Japanese Version in Japan), the SRP for a Licensed System in such
relevant country shall be used for calculating the OEM Customer
Licensed System royalties and the per Typeface royalties under the
applicable royalty provisions in EXHIBIT O. Peerless shall provide
Adobe with the applicable SRP for an OEM Customer Licensed System
documented in the corresponding Peerless/OEM Customer Licensed
System Appendix and/or accompanying letter of transmittal. The
relevant SRP shall be converted into U.S. Dollars at a rate that
Peerless ensures will reasonably reflect
Amend. 17 to PS Agmt. - Adobe/Peerles 13
the currency exchange rate for the applicable currency being
converted for the applicable accounting period. (b) "Gross Receipts"
shall mean the amounts earned by Peerless in the form of fees and
royalties denominated in U.S. dollars and payable by an OEM Customer
(without reduction for withholding of taxes) for an OEM Customer
Licensed System or other royalty-bearing components of an OEM
Customer Licensed System distributed or used by such OEM Customer.
Excluded from this definition are monies earned by Peerless for
engineering services rendered to an OEM Customer as well as those
amounts reasonably attributable to the use by an OEM Customer of
components contained in an OEM Customer Licensed System that are
supplied by Peerless, but are not PostScript technology-related; for
example PeerlessPage, PeerlessPrint. When such amount reflects an
indivisible amount for the PostScript-enabled components and other
product components, only the pro-rata portion attributable to the
PostScript-enabled components, as reasonably determined by Peerless
and Adobe, shall constitute "Gross Receipts" for purposes of
calculating the royalties due to Adobe hereunder."
8.3.2 ROYALTIES FOR ROYALTY-BEARING COMPONENTS OF PEERLESS-BRANDED
LICENSED SYSTEMS. Peerless shall pay to Adobe in U.S. Dollars the
royalties set forth in EXHIBIT O-1 ("Royalty Payments and Other Fees
for Royalty-Bearing Components of Peerless-Branded Licensed
Systems") attached hereto, for each royalty-bearing component of a
Peerless-Branded Licensed System which is used internally or
distributed by Peerless directly or through Peerless Remarketer
Customers."
20. Paragraph 8.4 ("Software Upgrade Royalties") of the Agreement is revised to
read in its entirety as follows:
"8.4 SOFTWARE UPGRADE ROYALTIES. Peerless shall pay Adobe the royalties
set forth in Paragraph 7 ("Software Upgrade Royalties") of EXHIBIT O
("Royalty Payments and Other Fees") of the Agreement for Software Upgrades
to OEM Customer Licensed Systems, or in Paragraph 5 of EXHIBIT O-1
("Royalty Payments and Other Fees for Royalty-Bearing Components of
Peerless-Branded Licensed Systems") of the Agreement for Software Upgrades
to Peerless-Branded Licensed Systems, or if special pricing applies, the
royalty as set forth in the transmittal form for the Peerless/OEM Customer
Licensed System Appendix which Adobe has formally executed, or
Adobe/Peerless Licensed System Appendix, as applicable, for each Software
Upgrade used internally or distributed by OEM Customer or by Peerless, as
applicable, except as provided herein. Peerless shall not be obligated to
pay Adobe a royalty for any Software Upgrade if the fee charged to the End
User covers only the costs of the media and handling, provided that
Peerless ensures that it or its OEM Customer, as applicable, uses
commercially reasonable efforts to destroy the replaced version of the
Revised Object and Font Programs. Notwithstanding the foregoing, (a) Adobe
may, in its sole discretion, determine that a particular Software Upgrade
shall be royalty bearing (e.g., if the Software Upgrade adds significant
functionality), in which case such royalty shall be as specified in the
transmittal form for a Peerless/OEM Customer Licensed System Appendix,
which Adobe has formally executed, or a fully executed Adobe/Peerless
Amend. 17 to PS Agmt. - Adobe/Peerles 14
Licensed System Appendix, and (b) Peerless shall pay an additional
Licensed System and Font Program royalty for any Software Upgrade where
Peerless and its OEM Customer do not use commercially reasonable efforts
to destroy the existing Revised Object and Font Programs."
21. Paragraph 8.5 ("Hardware Upgrade Royalties") of the Agreement is revised to
read in its entirety as follows:
"8.5 HARDWARE UPGRADE ROYALTIES. Peerless shall pay Adobe the royalties
set forth in Paragraph 8 ("Hardware Upgrade Royalties") of EXHIBIT O
("Royalty Payments and Other Fees") of the Agreement for Hardware Upgrades
to OEM Customer Licensed Systems, or in Paragraph 6 of EXHIBIT O-1
("Royalty Payments and Other Fees for Royalty-Bearing Components of
Peerless-Branded Licensed Systems") of the Agreement for Hardware Upgrades
to Peerless-Branded Licensed Systems, or if special pricing applies, the
Hardware Upgrade royalty as set forth in the transmittal form for the
applicable Peerless/OEM Customer Licensed System Appendix, which Adobe has
formally executed, or a fully executed Adobe/Peerless Licensed System
Appendix. Adobe intends that an optional feature shall be royalty bearing
if it improves the functional performance or improves the throughput
performance of the Revised Object and/or Font Programs, and non-royalty
bearing if it is unrelated to the functional performance or throughput
performance of the Revised Object and/or Font Programs."
22. Paragraph 8.8 ("Testing Fees") of the Agreement is revised to read in its
entirety as follows:
"8.8 TESTING FEES. For the Peerless testing required pursuant to Paragraph
5.2 ("Testing and Certification of Revised Object") herein, Peerless shall
*** for Adobe's first review of Peerless-supplied test results if Adobe
certifies the Revised Object solely on the basis of this initial review.
However, if the Revised Object (including any previously-certified Revised
Object subsequently modified by Peerless, its OEM Customer or Third Party
Developer) requires retesting and resubmission of test results to Adobe,
Peerless shall pay Adobe a fee of *** for each such instance of retesting
and resubmission. Peerless shall *** for any instance of retesting made
necessary by Adobe's change to the Adobe Software, Other Adobe Software or
Adobe Certification Test Suite. In addition, there will be *** for
retesting if Peerless can show that the Revised Object satisfied the
specified tests in the Adobe Certification Test Suite."
23. Paragraph 8.9 ("Taxes") of the Agreement is revised to read in its entirety
as follows:
"8.9 TAXES. In addition to any other payments due under this Agreement,
Peerless agrees to pay, and to indemnify and hold Adobe harmless from, any
sales, use, excise, import or export, value added or similar tax or duty
not based on Adobe's net income, including any penalties and interest, as
well as any costs associated with the collection or withholding thereof,
and all governmental permit fees, license fees and customs and similar
fees levied upon the delivery by Adobe of the Adobe Information or the
delivery by Peerless of Adobe Information hereunder, which Adobe may incur
in respect of this
Amend. 17 to PS Agmt. - Adobe/Peerles 15
Agreement. If a resale certificate or other certificate or document of
exemption is required in order to exempt all or any of the Adobe
Information from any such tax liability, Peerless will promptly furnish it
to Adobe. All withholding tax certificates, documents, application forms,
etc., should be forwarded to the following address, or such other address
as provide by Adobe: Adobe Systems Incorporated, Attention: Tax
Department, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx, 00000-0000."
24. Paragraph 8.10 ("Payment Terms") of the Agreement is revised to read in its
entirety as follows:
"8.10 PAYMENT TERMS. All royalties due in accordance with the terms of the
Agreement shall be paid in U.S. Dollars within *** after the ***. Peerless
will provide Adobe with the relevant product sales information, as
supplied by its OEM Customer, at least on a quarterly basis and with at
least as much product and country detail as made available to Peerless. In
addition, Peerless shall provide Adobe on a quarterly basis with the
relevant product sales information for all royalty-bearing components of
Peerless-Branded Licensed Systems distributed during the applicable
calendar quarter. Such sales information shall include the following: (a)
with each Peerless SDK royalty payment Peerless shall include a legible
written summary broken out by OEM Customer and applicable Development
Site(s), as well as the number, SDK identification, and royalty due Adobe
for each Peerless SDK distributed or being used by its OEM Customers
during the quarter, and any other information which may be required to
allow Adobe to determine whether Peerless is paying the correct Peerless
SDK royalty amounts hereunder; and (b) with each Licensed System royalty
payment Peerless shall include a legible written summary of sales
information for each OEM Customer and a separate legible written summary
of sales information for Peerless containing (i) the number, model name,
SRP, Gross Receipts or Transfer Price, as applicable, and royalty due
Adobe for each Licensed System for which Revised Object is distributed or
used internally by Peerless' OEM Customers or by Peerless, as applicable,
during the quarter, (ii) the number of copies of Host Software distributed
or used internally by such OEM Customers or by Peerless, as applicable,
during the quarter, (iii) the number of Font Programs by Typeface, bundled
with the Revised Object for use as a part of a Licensed System and
licensed to End Users or used internally by OEM Customers or by Peerless,
as applicable, during the quarter, and (iv) any other information,
including but not limited to SRP, Gross Receipts or Transfer Price, which
may be required to allow Adobe to determine whether Peerless is paying the
correct royalty amount hereunder. In addition, Peerless shall provide
Adobe with a rolling quarterly forecast of royalties anticipated to be
earned by Peerless from sales of Licensed Systems and other
royalty-bearing components during such period. Peerless shall provide
Adobe with a written update to the forecast on a monthly basis to reflect
Peerless' then best estimate of the number of royalty-bearing products and
anticipated royalties to be earned by Peerless during this period. Such
written communication shall be subject to final adjustment by Peerless at
the end of each accounting period."
Amend. 17 to PS Agmt. - Adobe/Peerles 16
25. Paragraph 8.11 ("Right of Audit") of the Agreement is revised to read in its
entirety as follows:
"8.11 RIGHT OF AUDIT. Peerless shall maintain, and other than information
regarding Adobe royalties, require each of its OEM Customers to maintain,
a complete, clear, accurate record of: (a) the number, model name, SRP,
Gross Receipts or Transfer Price, as applicable, and royalty due Adobe for
each Licensed System and/or Peerless SDK for which Revised Object is
distributed to or is being used by each OEM Customer or by Peerless, as
applicable, during the quarter, (b) the number of copies of Host Software
distributed by each such OEM Customer or by Peerless, as applicable, for
use with Licensed Systems during the quarter, (c) the number of Font
Programs by Typeface, bundled with the Revised Object for use as a part of
a Licensed System and licensed to End Users or used internally by each
such OEM Customer or by Peerless, as applicable, during the quarter, and
(d) any other information which may be required to allow Adobe to
determine whether Peerless is paying the correct royalty amount hereunder.
To ensure compliance with the terms of this Agreement, Adobe shall have
the right to audit all the relevant accounting and sales books and records
of Peerless. Such audit shall be conducted by an independent auditor paid
for by Adobe and acceptable to both parties (with auditors included in the
"Big Four" being hereby deemed acceptable). Such audit shall be conducted
during regular business hours at Peerless' offices and in such a manner as
not to interfere with Peerless' normal business activities. In no event
shall audits be made hereunder more frequently than once per year. If such
inspections should disclose any underreporting, Peerless shall promptly
pay Adobe such amount. In addition, if such inspections should disclose
any underreporting of payments owed Adobe (as determined by such
inspections) in an amount greater than five percent (5%), then Peerless
shall promptly pay Adobe any and all costs associated with the audit."
26. Paragraph 8.12 ("When Royalties Earned") of the Agreement is revised to read
in its entirety as follows:
"8.12 WHEN ROYALTIES EARNED. Each royalty due hereunder for any Peerless
SDK shall be earned on each occurrence of (a) Peerless' distribution of
such Peerless SDK to an OEM Customer for use at the initial Development
Site, and (b) such OEM Customer's use of such Peerless SDK at any
additional OEM Customer Development Site. Each royalty due hereunder for
any royalty-bearing component of a Peerless-Branded Licensed System shall
be earned upon Peerless' distribution of such royalty-bearing component to
a third party, including distribution through Peerless Remarketer
Customers. Each royalty due hereunder for any royalty-bearing component of
a OEM Customer Licensed System shall be earned on the earlier of (a) OEM
Customer's distribution of such royalty-bearing component to a third
party, including distribution through OEM Remarketer Customers or (b)
otherwise as may be agreed upon between Peerless and its OEM Customer as
specified in a Licensed System Appendix and documented in the transmittal
form for the Licensed System Appendix, with Adobe has formally executed.
With respect to guaranties, as described in Paragraph 8.6 ("No Peerless
Minimum Annual Royalty Commitment"), such amounts shall be earned when
payment is made to Peerless by its OEM Customer or Peerless Remarketer, as
applicable."
Amend. 17 to PS Agmt. - Adobe/Peerles 17
27. Paragraph 10 ("Peerless Support") of the Agreement is revised to read in its
entirety as follows:
"10 PEERLESS SUPPORT. Adobe shall have no responsibility for supporting
Peerless End Users or OEM Customers or OEM Customers' End Users. Peerless
will provide OEM Customers with reasonable documentation, warranty
service, and telephone support for the use of Peerless SDKs consistent
with good industry practice for the support of OEMs. Peerless or OEM
Customers, either directly or indirectly, will provide End Users with
reasonable End User documentation, warranty service, and telephone support
for the use of Licensed Systems consistent with good industry practice."
28. EXHIBIT F ("Licensed System Test Procedures") is deleted and replaced with a
new EXHIBIT F ("Licensed System Test Procedures") to read as attached hereto.
29. Section 1 ("Definitions") of EXHIBIT L ("Use of Adobe Trademarks") is
revised to read in its entirety as follows:
"1. DEFINITIONS. For the purposes of this Exhibit, the following
definitions shall apply:
1.1 "LICENSED PRODUCT" means (i) Peerless SDK or Peerless Revised
Object deliverable as applied to Peerless, (ii) Peerless-Branded
Licensed System as applied to Peerless or Peerless Remarketer
Customer, and (iii) OEM Customer Licensed System as applied to OEM
Customer or OEM Remarketer Customer.
1.2 "PRODUCT APPENDIX" means (i) an SDK Appendix as applied to a
Peerless SDK, (ii) Adobe/Peerless Licensed System Appendix as
applied to a Peerless-Branded Licensed System and (iii) Peerless/OEM
Customer Licensed System Appendix as applied to OEM Customer
Licensed System.
1.3 "TRADEMARK LICENSEE" means (i) Peerless in those instances of
Peerless' use and license of the Trademarks, (ii) Peerless
Remarketer Customer in those instances of Peerless Remarketer
Customer's use and license of Trademarks, (iii) OEM Customer in
those instances of OEM Customer's use and license of the Trademarks,
and (iv) OEM Remarketer Customer in those instances of OEM
Remarketer Customer's use and license of the Trademark."
30. A new EXHIBIT O-1 ("Royalty Payments and Other Fees for Royalty-Bearing
Components of Peerless-Branded Licensed Systems") is added to read as attached
hereto.
31. 31.All other terms and conditions of the Agreement shall remain in full
force and effect.
Amend. 17 to PS Agmt. - Adobe/Peerles 18
IN WITNESS WHEREOF, each of Adobe and Peerless has executed this Amendment
No. 17 to the PostScript Software Development License and Sublicense Agreement
by its duly authorized officers.
Adobe: Peerless:
ADOBE SYSTEMS INCORPORATED PEERLESS SYSTEMS CORPORATION
By /s/ Xxx Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
---------------------------------- -------------------------------------
Print Print
Name Xxx Xxxxxxxx Name Xxxxxx X. Xxxxxx
-------------------------------- -----------------------------------
Title SVP Worldwide Sales and Field Title President & CEO
------------------------------- ----------------------------------
Operations
------------------------------------
Date 11/3/04 Date October 15, 2004
-------------------------------- -----------------------------------
Amend. 17 to PS Agmt. - Adobe/Peerles 19
EXHIBIT F
LICENSED SYSTEM TEST PROCEDURES
Peerless shall test, or in the case of an OEM Customer Licensed System,
shall require its OEM Customer or Third Party Developer to test (and Peerless
shall monitor and verify such OEM Customer or Third Party Developer testing),
any Revised Object (including any previously-certified Revised Object
subsequently modified by Peerless, its OEM Customer or Third Party Developer),
outputting in hardcopy print or raster data form, for conformity with the Adobe
Certification Test Suite in accordance with the following procedures. For
purposes of this EXHIBIT F, the term Revised Object shall also mean the CPSI
Software, as applicable. If required by an Appendix or test plan, the test
results obtained from conducting the testing described herein shall include
hardcopy output generated by the raster data files created by the Revised Object
outputting to the proposed Designated Output Device or to a mutually agreed upon
output device that serves as a representative example of a family of output
devices with similar characteristics.
1. ADOPTING TEST PLAN. Adobe will provide Peerless with the Adobe Certification
Test Suite, including the test plan template and related documentation, from
which Peerless or its OEM Customer or Third Party Developer derives a test plan.
The test plan is defined as a set of rules enabling Peerless or its OEM Customer
or Third Party Developer to determine what portions of the Adobe Certification
Test Suite will be run and what output is to be produced to enable Peerless or
its OEM Customer or Third Party Developer to conduct quality testing of the
version of the Revised Object undergoing testing. Peerless or its OEM Customer
or Third Party Developer shall create a test plan that specifies the test files
to be selected from the Adobe Certification Test Suite and to be run by Peerless
or its OEM Customer or Third Party Developer to produce output in hardcopy print
or raster data form that provides the basis for determining whether the Revised
Object and Licensed System being tested meets the Minimum Quality Standards (as
defined below) required for certification.
2. TESTING. Prior to submitting a product certification request to Adobe,
Peerless shall test, or require its OEM Customer or Third Party Developer to
test, the Revised Object by running the test files in accordance with the test
plan and then fairly evaluating the output from the test files to identify any
nonconformity and the severity of such nonconformity in accordance with the
severity level criteria set forth below. After successful completion of such
testing, Peerless shall supply Adobe with the completed PostScript Product
Certification Checklist, a copy of the applicable test plan and test results,
including log files, and, if required by Adobe, a pre-production release of the
Revised Object that generated the results. Peerless shall supply Adobe with a
declaration signed by an authorized representative of Peerless certifying to the
effect that it has run or has verified that its OEM Customer or third Party
Developer has run the Adobe Certification Test Suite in accordance with the test
plan created by Peerless or its OEM Customer or Third Party Developer for the
Revised Object and Licensed System being tested, that the test results are
accurately and completely reported to Adobe and that Peerless has carefully and
correctly analyzed or has verified that its OEM Customer or Third Party
Developer has carefully and correctly analyzed the results of such testing and
has determined that the Licensed System meets the Minimum Quality Standards.
Amend. 17 to PS Agmt. - Adobe/Peerles 20
3. ADOBE CERTIFICATION. Adobe shall have *** following Peerless' delivery of the
test plan and test results to Adobe, or such other period as specified in the
letter of transmittal accompanying the Peerless/OEM Customer Licensed System
Appendix or in the Adobe/Peerless Licensed System Appendix, to determine whether
(i) the test plan exercises the applicable functionality in the Revised Object
or other components comprising a Licensed System and (ii) the Revised Object and
Licensed System being tested produces output meeting the below specified Minimum
Quality Standards. After conducting such review, Adobe shall notify Peerless in
writing either that it certifies the Licensed System containing the Revised
Object or in the event of failure to certify, the basis for such failure.
Peerless may correct, or have its OEM Customer or Third Party Developer correct,
any nonconformity and resubmit the Revised Object and Licensed System for
retesting. This process shall continue until Adobe certifies the Licensed System
containing the Revised Object. Peerless may be subject to a retesting charge, as
specified in Paragraph 8.8 ("Testing Fees") of the Agreement.
4. MINIMUM QUALITY STANDARDS. Any Licensed System containing the Revised Object
that has undergone testing in accordance with the requirements set forth herein
is certifiable provided that the following certification criteria are satisfied.
All nonconformities disclosed by the test are evaluated for their "Severity"
level (as that term is defined below). A nonconformity is a defect or failure in
the Revised Object or other component comprising a Licensed System that prevents
the Licensed System from operating in accordance with the PostScript Language
Specification. Such nonconformities shall include but are not limited to a
defect that prevents the printing of documents, produces inferior output or
prevents the output device driven by the Revised Object from performing valid
PostScript functions. In order to be certifiable, the Revised Object undergoing
testing must have a cumulative "bug" score of not in excess of 32 points for all
nonconformities disclosed by the test and there must be no unresolved Severity 3
or Severity 4 bugs. The "bug" score is equal to the sum of the squares of the
numerical values assigned to the nonconformities based on the Severity of each
such nonconformity. The following "Severity" level definitions shall be used as
the basis for assigning the appropriate numerical value to any nonconformity
disclosed by the test.
SEVERITY LEVEL:
SEVERITY 4: Most severe; no work-around. The product crashes, hangs, or
reboots. Very severe imaging problems. Missing specified
functionality or inability to image certain PostScript
features. Out of compliance with the PostScript Language
Specification for reasonable uses of PostScript operators
SEVERITY 3: Fairly severe; difficult to work-around. Unexpected results
with unusual, although valid, use of PostScript operators.
Severe imaging problems
SEVERITY 2: Minor problem; easy work-around. Invalid error status
SEVERITY 1: Very minor or cosmetic problem
SEVERITY 0: Feature enhancement or request for design change
Amend. 17 to PS Agmt. - Adobe/Peerles 21
EXHIBIT O-1
ROYALTY PAYMENTS AND OTHER FEES FOR ROYALTY-BEARING COMPONENTS OF
PEERLESS-BRANDED LICENSED SYSTEMS
1. CALCULATING LICENSED SYSTEM ROYALTIES FOR PEERLESS-BRANDED LICENSED SYSTEMS
WITH HOST-BASED CPSI SOFTWARE Royalty payments for each copy of the host-based
Revised Object (i.e., the CPSI Software) shall be calculated ***, as determined
by reference in the table below to the applicable *** category for such
Peerless-Branded Licensed System. As used in this EXHIBIT O-1, ***.
***
Amend. 17 to PS Agmt. - Adobe/Peerles 22
***
Amend. 17 to PS Agmt. - Adobe/Peerles 23
***
2. FONT PROGRAM BUNDLING REQUIREMENTS.
A. FONT BUNDLING - ROMAN TYPEFACES. Peerless shall include and shall
require its Peerless Remarketer Customers to include the Roman Font Programs
listed in EXHIBIT D ("Extended Roman Font Program Set") with every Roman Version
of a Peerless-Branded Licensed System distributed hereunder.
B. FONT BUNDLING - JAPANESE TYPEFACES. The table below shall be used to
determine the bundling requirements for the Font Programs for Japanese Typefaces
distributed for use with a low resolution (i.e., < 1200dpi) Japanese Version of
a Peerless-Branded Licensed System (any Peerless-Branded Licensed System
containing Font Programs for Japanese Typefaces is considered to be a Japanese
Version). Peerless shall bundle and shall ensure that its Peerless Remarketer
Customers bundle the Roman Font Programs identified in EXHIBIT D ("Extended
Roman Font Program Set") and the minimum required Font Programs for Japanese
Typefaces, as set forth in the table below, with each Japanese Version of a
Peerless-Branded Licensed System distributed by Peerless or Peerless Remarketer
Customers hereunder.
Amend. 17 to PS Agmt. - Adobe/Peerles 24
***
(i) Protection Mechanisms. Font Programs for Japanese Typefaces will
be distributed with a protection mechanism that includes Copy Protection and
encryption to protect against unauthorized duplication.
(ii) Distribution of Japanese Versions. ***
3. FONT PROGRAM ROYALTIES.
X. XXXXX FONT PROGRAM ROYALTIES. There are *** royalties due Adobe for the
Roman Font Programs listed in EXHIBIT D ("Extended Roman Font Program Set") if
bundled with Revised Object for use with a Peerless-Branded Licensed System.
B. JAPANESE FONT PROGRAM ROYALTIES. The royalty pricing for Japanese Font
Programs distributed for use with a Peerless-Branded Licensed System shall be
set forth in the applicable Adobe/Peerless Licensed System Appendix.
Amend. 17 to PS Agmt. - Adobe/Peerles 25
C. CHINESE FONT PROGRAM ROYALTIES. The bundling requirements and the
royalty pricing for Chinese Font Programs distributed for use with a
Peerless-Branded Licensed System shall be set forth in the applicable
Adobe/Peerless Licensed System Appendix.
D. KOREAN FONT PROGRAM ROYALTIES. The bundling requirements and the
royalty pricing for Korean Font Programs distributed for use with a
Peerless-Branded Licensed System shall be set forth in the applicable
Adobe/Peerless Licensed System Appendix.
4. OTHER ADOBE SOFTWARE ROYALTIES. Royalty pricing is to be mutually agreed upon
by the parties in the event Other Adobe Software is distributed as a
royalty-bearing component of a Licensed System.
5. SOFTWARE UPGRADE ROYALTIES. Software Upgrade royalty pricing is to be
mutually agreed upon by the parties in the event a fee-bearing (other than on a
nominal basis) Software Upgrade is distributed to End Users of Peerless-Branded
Licensed Systems.
6. HARDWARE UPGRADE ROYALTIES. Hardware Upgrade royalty pricing is to be
mutually agreed upon by the parties in the event a hardware optional feature is
added to a previously installed Peerless-Branded Licensed System to improve the
performance of the Revised Object.
Amend. 17 to PS Agmt. - Adobe/Peerles 26
