EXHIBIT 10.75
AMENDMENT NO. 14
TO THE
POSTSCRIPT SOFTWARE DEVELOPMENT
LICENSE AND SUBLICENSE AGREEMENT
BETWEEN
ADOBE SYSTEM INCORPORATED
AND
PEERLESS SYSTEMS CORPORATION
EFFECTIVE AS OF: DEC. 16, 2003
This Amendment No. 14 ("Amendment") to the PostScript Software
Development License and Sublicense Agreement dated July 23, 1999, as previously
amended (the "PS Agreement"), is between Adobe Systems Incorporated, a Delaware
corporation having a place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx
00000-0000 ("Adobe") and Peerless Systems Corporation, a Delaware corporation,
having a place of business at 0000 Xxxxxxxxx Xxxxxx, Xx Xxxxxxx, XX 00000
("Peerless").
WHEREAS, the parties desire to amend the PS Agreement to describe Adobe
deliverables (known herein as "PDF to PS Conversion Code") to be supplied by
Adobe to Peerless hereunder; and
WHEREAS, Peerless has requested that Adobe license the PDF to PS
Conversion Code in source code form so that Peerless will be able to adapt and
develop such source code for use with Licensed Systems and distribute object
code versions thereof to Peerless OEM Customers in accordance with the terms and
conditions set forth in the PS Agreement and this Amendment No. 14 to the PS
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, Adobe and Peerless agree to amend the PS Agreement as follows:
I. A new Paragraph 1.43 ("PDF to PS Conversions Code") is added to
Paragraph 1 ("Definitions") of the Agreement to read as follows:
"1.43 "PDF to PS Conversion Code" means the Adobe-supplied software
that performs the function of converting PDF files to PostScript
language file form for processing by a printing system using Adobe
Software, in source and/or object code form, identified either as "PDF
to PS Conversion Code" or "Adobe Software" in an appendix or by other
means when delivery is made to Peerless via the internet, and any
revisions or versions thereof that may be supplied by Adobe from time
time hereunder."
II. A new subsection 2.2.1.1 ("Distribution Rights to the PDF to PS
Conversion Code") is added to Paragraph 2.2.1 ("Revised Object License") of the
PS Agreement to read 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 sublicense rights to each
OEM Customer shall include and be limited to the right to (a) use and
reproduce (or have reproduced for OEM Customer's sole benefit) at the
Reproduction Sites) only, and (b) sublicense and distribute, directly
and indirectly throught 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 OEM Customer's Licensed System(s)."
III. The term "Golden Master", as defined in Paragraph 2.2.10 ("Sublicensing
of Reproduction and Distribution Rights Only") of the PS Agreement shall also
apply to the object code version of the PDF to PS Conversion Code and any
derivative thereof.
IV. A new Paragraph 2.13 ("License to Use PDF to PS Conversion Code") is
added to the PS Agreement to read as follows:
"2.13 License to Use PDF to PS Conversion Code. Adobe will supply to
Peerless the PDF to PS Conversion Code in source code form, including
corresponding source documentation and interface materials (hereinafter
known as "PDF to PS Source Code") and/or in object code form. Unless
otherwise noted herein, the PDF to PS Conversion Code shall be treated
for purposes of this Agreement as "Adobe Software" and the rights and
restrictions applicable to the Adobe Software shall apply to the PDF to
PS Conversion Code. The PDF to PS Source Code is identified as "Adobe
Core Source" and therefore, Peerless is obligated to protect the PDF to
PS Source Code in accordance with EXHIBIT N-1 ("Secure Procedures for
Handling Adobe Support Information") and EXHIBIT N-2 ("Additional
Secure Procedures for Handling Adobe Restricted Information"). The PDF
to PS Conversion Code is being supplied by Adobe for use by Peerless in
accordance with the PS Agreement, as amended herein.
2.13.1 Development Rights. Subject to Peerless's compliance
with the terms of the PS Agreement. Adobe grants to Peerless a
non-exclusive, non-transferable license during the term of the
PS 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 PS Agreement for the sole purpose
of designing, developing, adapting, modifying, testing,
documenting and maintaining the PDF to PS Conversion Code for
use with 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 Peerless OEM Customers' Licensed Systems.
Peerless is not permitted to modify the PDF to PS Conversion
Code for use with a Peerless or Peerless OEM Customer's
product not covered by the terms of the PS Agreement or to
change the PDF to PS Conversion Code to create PostScript
files that are not fully compatible
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with the Adobe Software. Peerless is not obligated to disclose
to Adobe any modifications that Peerless makes to the PDF to
PS Source Code.
2.13.2 Assignment of Rights in Modifications to PDF to PS
Source Code. Adobe shall own all rights and interest in all
modifications that Peerless makes to the PDF to PS Source Code
and Peerless agrees to assign to Adobe all copyright, patent
and other rights contained in such modifications.
2.13.3 Support. Subject to waiver of or payment by Peerless of
the then annual maintenance fee for maintenance supplied by
Adobe in accordance with Paragraph 2 ("Maintenance Fees for
Standard Reference Port(s)") of EXHIBIT O ("Royalty Payments
and Other Fees") of the PS Agreement, Adobe shall be obligated
to provide Peerless the "Support" (as that tern is defined in
EXHIBIT R) for the PDF to PS Conversion Code in accordance
with the terms and conditions set forth in EXHIBIT R ("Support
for PDF to PS Conversion Code") of the PS Agreement. Adobe
shall have no other responsibilities with respect to providing
maintenance and support for the PDF to PS Conversion Code."
2.13.4 No Warranty. Notwithstanding anything in the PS
Agreement to the contrary, THE PDF TO PS CONVERSION CODE IS
BEING SUPPLIED TO PEERLESS "AS IS" WITHOUT WARRANTY
OBLIGATIONS OF ANY KIND, EXPRESS OR IMPLIED. OR
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.
2.13.5 Proprietary Rights Indemnity. Paragraph 11.1.1
("Proprietary Rights Indemnity - By Adobe - Adobe Software")
of the PS Agreement shall apply to the PDF to PS Conversion
Code."
V. A new EXHIBIT R ("Support For PDF to PS Conversion Code") is hereby
added to the PS Agreement.
VI. All other terms and conditions of the PS Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, each of Adobe and Peerless has executed this
Amendment No. 14 to the PostScript Software Development License and Sublicense
Agreement by its duly authorized officers.
Adobe: Peerless:
ADOBE SYSTEM INCORPORATED PEERLESS SYSTEMS CORPORATION
By: /s/ XXX XXXXXXXX By: /s/ X. XXXXXXXX
----------------- ----------------
Print Print
Name: Xxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: SVP Worldwide Sales and Field Operations Title: VP Marketing & Sales
Date: 1/19/04 Date: December 16, 2003
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EXHIBIT R
SUPPORT FOR PDF TO PS CONVERSION CODE
1. Definitions.
1.1 "Error" means a reproducible defect in the applicable PDF to
PS Conversion Code that causes such PDF to PS Conversion Code not to operate
substantially in accordance with the documentation for such PDF to PS Conversion
Code supplied by Adobe.
1.2 "Level I Severity" means an error is minor or cosmetic in
nature.
1.3 "Level 2 Severity" means an error that produces an
inconvenient situation in which the applicable PDF to PS Conversion Code is
usable but does not provide a function in the most convenient or expeditious
manner; and the use or value of the applicable PDF to PS Conversion Code suffers
no significant impact.
1.4 "Level 3 Severity" means an Error that causes the applicable
PDF to PS Conversion Code to fail to operate in a material manner or to produce
substantially incorrect results, and there is a difficult workaround or no
workaround solution to the Error.
1.5 "Level 4 Severity" means an Error that causes the applicable
PDF to PS Conversion Code to fail to operate in a material manner or to produce
substantially incorrect results, and there is no workaround solution to the
Error.
1.6 "Resolution" means a work-around or modification(s) to the
applicable PDF to PS Conversion Code and its related documentation and other
information provided by Adobe to Peerless intended to resolve an Error.
1.7 "Support" means ongoing support provided by Adobe pursuant to
the terms of this EXHIBIT R.
2. Support Process.
2.1 All Support communication will be conducted via email on the
Adobe Xchange website unless otherwise directed by Adobe.
2.2 Prior to contacting Adobe. Peerless must reproduce all Errors.
Peerless will report the results of such testing in detail to Adobe.
2.3 Peerless will in good faith classify all Errors reported to
Adobe as Level I Severity, Xxxxx 0 Xxxxxxxx, Xxxxx 0 Severity, or Level 4
Severity prior to contacting Adobe for support. If, in Adobe's judgment, an
Error report correctly identifies a Level 3 Severity or Xxxxx 0 Xxxxxxxx Xxxxx,
Adobe will use commercially reasonable efforts to (i) confirm to Peerless that
the reported Error can or cannot be reproduced by Adobe, and (ii) may, in
Adobe's reasonable discretion, provide a Resolution to such Error in a
subsequent version or revision of the PDF to PS Conversion Code that is made
generally available to licensees of PDF to PS Conversion Code, or take such
other corrective action as Adobe deems appropriate (which may include
non-
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commercially available Error corrections as deemed appropriate in Adobe's sole
discretion). Adobe will not be obligated to respond to any Level I Severity and
Level 2 Severity Errors.
3. Services Provided. Adobe shall provide the following services to
Peerless.
3.1 Technical Assistance. Written or verbal consultation
pertaining to integration and operation of the PDF to PS Conversion Code, during
Adobe's normal business hours of 9 A.M. to 4 P.M. Pacific Time, Monday through
Friday, excluding Adobe holidays.
3.2 Subsequent Versions. Adobe may deliver subsequent versions or
revisions of the applicable PDF to PS Conversion Code to Peerless as Adobe makes
them generally available to other licensees of PDF to PS Conversion Code.
Peerless is solely responsible for any and all integration permitted and
necessary to use such subsequent versions or revisions of the PDF to PS
Conversion Code with the applicable Licensed System.
3.3 The following services are outside the scope of Support: (a)
Service for PDF to PS Conversion Code which has been modified by Peerless; (b)
any Error that resulted from a modification by anyone other than Adobe; (c)
Service for other than the current version of the PDF to PS Conversion Code; (d)
Errors which have not been reproduced by Peerless prior to reporting of the
Error to Adobe; (e) Errors that Adobe is not able to reproduce using
commercially reasonable efforts; (f) Service which becomes necessary due to: 1)
failure of, or changes to, hardware or software not supplied by Adobe; or 2)
catastrophe, negligence of Peerless, operator error, improper use of hardware or
software or attempted maintenance by unauthorized persons; and (g) on-site
service, unless mutually agreed to and subject to Adobe's then-current on-site
service fees. Adobe will have no obligation to attempt to reproduce an Error
more than two times.
4. Peerless's Responsibilities.
4.1 Peerless shall be responsible for distributing, at Peerless's
expense, any subsequent versions or revisions of the PDF to PS Conversion Code
to Peerless customers in accordance with the terms and conditions of the PS
Agreement.
4.2 Peerless and Adobe agree that all versions and revisions of
the PDF to PS Conversion Code (including Resolutions) provided by Adobe to
Peerless are subject to all the terms and conditions of the PS Agreement.
4.3 Peerless shall fully cooperate with Adobe in Adobe's efforts
to provide Support hereunder.
5. Expenses. If Peerless requires on-site service and Adobe, in its sole
discretion, agrees to provide such on-site service. Peerless agrees to pay
actual costs for travel, lodging, and meals reasonably incurred by Adobe in
addition to the then-current support fees, if any. Under such circumstances,
Peerless shall also pay actual costs for supplies and other expenses reasonably
incurred by Adobe. which are not of the sort which would normally be provided or
covered by Adobe; provided that Peerless has approved in advance the purchase of
such supplies and other expenses.
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