Confidential treatment has been requested for portions of this document. This
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 document has been filed separately
with the Securities and Exchange Commission.
EXHIBIT 10.71
AMENDMENT NO. 5
TO THE
POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE
AND SUBLICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
PEERLESS SYSTEMS CORPORATION
EFFECTIVE DATE: DEC. 16, 2003
This Amendment No. 5 ("Amendment") to the PostScript Software Development
License and Sublicense Agreement dated July 23, 1999, as previously amended (the
"Agreement"), between Adobe Systems Incorporated ("Adobe") and Peerless Systems
Corporation ("Peerless"), is made by and between Adobe and Peerless.
WHEREAS, Peerless desires to license Adobe's Host PDF Printing Library, and
Adobe is willing to license to Peerless the Host PDF Printing Library under the
terms of the Agreement and this Amendment.
THEREFORE, Peerless and Adobe agree to amend the Agreement as follows:
Unless otherwise defined herein, all terms used in this Amendment shall retain
the same meanings as defined in the Agreement and such definitions are
incorporated herein by reference.
1. The following new paragraph is hereby added to the agreement:
"1.43 HOST PDF PRINTING LIBRARY. "Host PDF Printing Library" means
Adobe(R) PDF (Portable Document Format) Library technology and any Font
Programs that Adobe specifies may be used with the Host PDF Printing
Library, in object code form only, as well as any enhancements or
modifications to the foregoing as provided by Adobe to Peerless
hereunder, which has as its purpose the converting of PDF files to
PostScript language file form for processing by a printing system using
Adobe PostScript software. Unless otherwise noted herein, the Host PDF
Printing Library (but excluding Font Programs) shall be treated for
purposes of this Agreement as "Adobe Software".
2. The following new Paragraph 2.1.1 is hereby added to the Agreement:
"2.1.1 HOST PDF PRINTING LIBRARY LICENSE. Subject to Peerless'
compliance with the terms of this Agreement, Adobe grants to Peerless a
non-exclusive, nontransferable license during the term of this
Agreement to (a) incorporate or integrate and to allow Third Party
Developers to incorporate and integrate (but with no right to modify or
permit the modification of the Host PDF Printing Library) solely on
behalf of Peerless or for an OEM Customer and in accordance
Confidential treatment has been requested for portions of this document. This
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 document has been filed separately
with the Securities and Exchange Commission.
with Paragraph 2.11 ("Third Party Developers"), the Host PDF Printing
Library with application software supplied by Peerless at a Development
Site, (b) use and reproduce and allow Third Party Developers to use and
reproduce the Host PDF Printing Library solely at a Development Site
and only in connection with developing a Peerless SDK or Revised Object
for use with a Licensed System, and (c) sublicense to its OEM Customers
under a Peerless OEM Agreement and in accordance with Paragraph 2.2
("Adobe Information Sublicenses"), the right to reproduce and
distribute the Host PDF Printing Library solely in object code form and
only as bundled for use with a Licensed System or unbundled as an
upgrade for use with a previously installed Licensed System. Peerless
shall require its OEM Customers to agree that the Host PDF Printing
Library will not be distributed for use with a Clone Product. Peerless
shall require its OEM Customers to ensure that each copy of the Host
PDF Printing Library distributed by an OEM Customer (either directly or
through an OEM Remarketer Customer) is accompanied by the appropriate
End User Agreement, as specifically described in Paragraph 4.5, ("End
User License") of EXHIBIT B ("Minimum Terms of Peerless OEM
Agreements") of the Agreement, and with respect to U.S. Government End
Users an End User agreement in accordance with Paragraph 4.7 ("U.S.
Government End Users") of EXHIBIT B of the Agreement. Peerless shall
*** for any distribution of the Host PDF Printing Library and
accompanying Roman Font Programs by OEM Customers***. ***."
3. The following new PARAGRAPH 2.1.2 is hereby added to the Agreement:
"2.1.2 SEPARATE USE OF NON-ROMAN FONT PROGRAMS. If the Host PDF
Printing Library uses its own copy of non-Roman (i.e., Japanese,
Chinese, Korean) Font Programs (that is, the non-Roman Font Programs
used by the I-lost PDF Printing Library are not the same copy of the
non-Roman Font Programs used by the Revised Object), Peerless shall
require its OEM Customers to account for and pay, and in turn shall
account for and pay to Adobe, the additional royalties for the
applicable non-Roman Font Programs used with the Host PDF Printing
Library on a per copy and per Typeface basis as set forth in Paragraph
9 ("Royalty Pricing for Double-Byte Fonts") of EXHIBIT O ("Royalty
Payments and Other Fees") of the Agreement."
4. The following new Paragraph 2.1.3 is hereby added to the Agreement:
"2.1.3 HOST PDF PRINTING LIBRARY QUALITY STANDARDS. Peerless shall
perform and require its OEM Customers to perform testing and employ
sufficient quality assurance standards to assure that the Host PDF
Printing Library successfully performs the function of converting PDF
files to PostScript language files for processing by a printing system
using Adobe PostScript software. Prior to First Commercial Shipment of
the Host PDF Printing Library, Adobe shall have the right to review and
approve in writing the quality of the copies of, and use of Adobe's
Trademarks with, the Host PDF Printing Library and accompanying
packaging, advertising, press releases and the like. Within ten (10)
business days
2
Confidential treatment has been requested for portions of this document. This
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 document has been filed separately
with the Securities and Exchange Commission.
after receipt of such materials for review, Adobe will notify Peerless
of its acceptance or rejection in writing. If such materials do not
conform to the requirements of this Agreement, Peerless will revise and
will cause its OEM Customers to revise such materials prior to shipment
and Adobe shall have the right to review and approve such materials in
accordance with the terms herein. Paragraph 2.2.7 ("Trademark License")
of the Agreement shall apply in connection with Peerless' use of and
its rights to sublicense the use of the Trademarks on the Host PDF
Printing Library. Notwithstanding the foregoing, Adobe has certified
and approved the quality of Licensed Systems developed by Peerless
under this Agreement and therefore is familiar with and approves of the
general quality standards implemented by Peerless in its
PostScript-based printer products. Peerless acknowledges that the
quality of the Host PDF Printing Library distributed by Peerless in
connection with the Trademarks shall be substantially the same as the
quality of Licensed Systems developed and marketed under this
Agreement."
5. The following new Paragraph 2.1.4 is hereby added to the Agreement:
"2.1.4 HOST PDF PRINTING LIBRARY MAINTENANCE. Peerless shall not permit
any distribution of the Host PDF Printing Library until Peerless has
successfully integrated the Host PDF Printing Library with other
Peerless-supplied software to enable its use by the End User as part of
a Licensed System. The Host PDF Printing Library will be considered
irrevocably accepted by Peerless upon delivery. Peerless further
acknowledges that Adobe is free of maintenance and warranty obligations
with respect to the Host PDF Printing Library, including without
limitation those set forth in Paragraphs 4.1 - 4.3 ("Adobe
Deliverables") and 9.1 ("Performance Warranty - Adobe Software
Warranties"). Notwithstanding the disclaimer of warranties, Adobe will
use commercially reasonable efforts to provide Peerless with
corrections or workarounds for any reproducible Errors (as that term is
defined below) under the Error resolution services provisions in
EXHIBIT K ("Maintenance") but only for the then-current and immediately
prior version of the Host PDF Printing Library, and provided that
Peerless has (i) purchased Maintenance as set forth in Paragraph 8.1
("License and Maintenance Fees") for the applicable Reference Port
(3015 or later version); and (ii) paid or received the benefit of the
waiver of the then-current maintenance fees under Paragraph 8.1. For
purposes of this Paragraph only, an "Error" is defined as a defect in
the Host PDF Printing Library that causes the PDF-to-PostScript
language file conversion to materially fail or produce files that do
not materially conform to the Documentation. In order to verify the
existence of such an Error for which Adobe is responsible, Peerless
must be able to replicate the failure in the Host PDF Printing Library
and shall demonstrate to Adobe's reasonable satisfaction that the Error
is not caused by the software application supplied by Peerless that
calls the Host PDF Printing Library. "Documentation", as used herein,
means the English version of the PostScript Language Reference Manual,
Third Edition, current as of February 1999, as supplemented for the
Adobe PostScript 3 software (3015 or later version)
3
Confidential treatment has been requested for portions of this document. This
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 document has been filed separately
with the Securities and Exchange Commission.
by Adobe. Adobe may discontinue supporting any version of the Host PDF
Printing Library that Peerless has developed for use with a Licensed
System that includes a version of the Adobe PostScript software that is
no longer being supported by Adobe."
6. The following new Paragraph 2.1.5 is hereby added to the Agreement:
"2.1.5 LZW Patent Notice. Peerless shall include and shall require that
its OEM Customers include a notice that the Licensed System and the
Host PDF Printing Library includes an implementation of LZW licensed
under U.S. Patent 4,558,302. This notice must be displayed on OEM
Customer' or OEM Remarketer Customer's (as applicable) product
packaging, End User Agreement, or Licensed System documentation and the
Peerless software application which includes the Host PDF Printing
Library, as applicable, in a location reasonably visible to the End
User."
7. The following new Paragraph 2.1.6 is hereby added to the Agreement:
"2.1.6 Disclaimer. Any Font Programs that Adobe provides for use with
the Host PDF Printing Library are being provided "AS IS" without
warranty, indemnity or maintenance obligations of any kind."
8. All other terms and conditions set forth in the Agreement shall remain
in full force and effect. The term "Agreement" as used in the Agreement and all
other instruments and agreements executed thereunder shall for all purposes
refer to the Agreement as amended by this Amendment No. 5.
4
Confidential treatment has been requested for portions of this document. This
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 document has been filed separately
with the Securities and Exchange Commission.
IN WITNESS WHEREOF, each of Adobe and Peerless has executed
this Amendment No. 5 to the PostScript Software Development License and
Sublicense Agreement by its duly authorized officer.
Adobe: Peerless:
ADOBE SYSTEM INCORPORATED PEERLESS SYSTEMS CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇▇▇▇
Print Print
Name: ▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: SVP Worldwide Sales and Field Title: VP Marketing and Sales
Operations
Date: 1-19-04 Date: Dec. 16, 2003
5
