EXHIBIT 10.95
AMENDMENT NO. 22
TO THE
POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE
AND SUBLICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
PEERLESS SYSTEMS CORPORATION
EFFECTIVE AS OF OCTOBER 14, 2005
This Amendment No. 22 (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. 22 is to amend the process of
certifying that the Revised Object meets the Minimum Quality Standards.
1. 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' certification of 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."
2. 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 Peerless pursuant to EXHIBIT F and Peerless has provided
Adobe with a declaration signed by Peerless' Quality Assurance Manager
certifying that the required testing has been performed and the Licensed
System containing the Revised Object meets the Minimum Quality Standards
(as defined in EXHIBIT F). Adobe shall have the right to evaluate, and
to require Peerless to evaluate the quality assurance processes, testing
results, Revised Object, and Licensed Systems 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, Peerless shall promptly take corrective action as
directed by Adobe, 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 prompt corrective action, to remedy all quality
issues and/or modify its quality assurance processes to satisfy the
requirements in EXHIBIT F."
3. Paragraph 8.8 ("Testing Fees") of the Agreement is deleted and replaced
only with the following placeholder:
"8.8 [INTENTIONALLY DELETED]"
4. EXHIBIT F ("Licensed System Test Procedures") is deleted and replaced
with a new EXHIBIT F ("Licensed System Test Procedures") to read as attached
hereto.
5. All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, each of Adobe and Peerless has executed this
Amendment No. 22 to the PostScript Software Development License and Sublicense
Agreement by its duly authorized officers.
Adobe: Peerless:
ADOBE SYSTEMS INCORPORATED PEERLESS SYSTEMS CORPORATION
By: /s/ XXXX XXXXXXXX By: /s/ XXXXXXX X XXXX
------------------- --------------------
Print Name: Xxxx Xxxxxxxx Print Name: Xxxxxxx X. Xxxx
Title: Vice President, WW Sales
Operations & Customer Support Title: Vice President - CFO
Date: 10-18-05 Date: October 14, 2005
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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 forth 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 signed by
Peerless's Quality Assurance Manager 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 retain the
completed PostScript Product Certification Checklist, a copy of the applicable
test plan, and an electronic copy of the version of the Revised Object that
generated the results for a period of no less than three (3) years from the date
of Peerless's certification of such product, and retain the hardcopies of the
test results and log files for a period of no less than three (3) months front
the date of Peerless's certification of such product, and upon request by Adobe,
shall provide Adobe with a copy of all of the foregoing materials. Peerless
shall *** supply Adobe with a declaration signed by an authorized representative
of Peerless certifying 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 accurate and complete, and that Peerless has carefully and correctly
analyzed, or has verified that its OEM Customer or
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.
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.
3. MINIMUM QUALITY STANDARDS. Any Licensed System containing the Revised Object
that has undergone testing in accordance with the requirements set forth in this
Exhibit F 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). ***.
SEVERITY LEVEL:
***
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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.
