Exhibit 10.68
AMENDMENT NO. 12
TO THE
POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE
AND SUBLICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
PEERLESS SYSTEMS CORPORATION
Effective Date: September 12, 2003
This Amendment No. 12 (the "Amendment") to the PostScript Software
Development License and Sublicense Agreement dated July 23, 1999 (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 to the Agreement is to further
clarify what conditions would apply under the Agreement to enable Peerless to
enter into a reproduction and distribution only sublicensing relationship with
an OEM Customer and to amend Exhibit N-3 ("Minimum Terms For Protecting Adobe
Information Supplied to OEM Customers Under Paragraph 2.2.10") of the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Paragraph 2.2.10 ("Sublicensing of Reproduction and Distribution Rights
Only") shall be amended to read in its entirety as follows:
"2.2.10 SUBLICENSING OF REPRODUCTION AND DISTRIBUTION RIGHTS
ONLY. For purposes of this Paragraph 2.2.10 only, "Adobe Information"
shall mean (i) Font Programs, (ii) released and unreleased Adobe
Software, Other Adobe Software and Host Software in object code form
only, including Golden Masters thereof, (iii) End User Documentation
and (iv) and any other Adobe proprietary information provided by
Peerless to an OEM Customer hereunder, but shall exclude Adobe Support
Information. Subject to Peerless' compliance with the terms of this
Agreement, Peerless may choose to sublicense only those rights
enumerated in Paragraphs 2.2.1 - 2.2.8 that apply to the granting of
reproduction and distribution rights to the Adobe Information (but
shall exclude the granting of any development rights), to an OEM
Customer under a Peerless OEM Agreement containing terms that are
substantially equivalent to the minimum terms listed in Exhibit B
("Minimum Terms of Peerless OEM Agreements") and are conforming to the
requirements set forth in this Paragraph 2.2.10. Paragraphs
Amend. 12 to Peerless/Adobe PS Agmt. 1
3.1, 4.9 and 5.3 of Exhibit B shall not apply and therefore are not
required as minimum terms in such Peerless OEM Agreement. In addition,
notwithstanding Paragraph 3.2 of the Agreement, neither Peerless nor
its OEM Customers are required to supply Adobe with PPD files and,
therefore, Paragraph 3.2 of Exhibit B shall not apply unless Peerless
or its OEM Customer voluntarily supplies PPD files to Adobe. Peerless
shall do all of the development and product testing through
certification of the OEM Customer's Licensed System. Once the OEM
Customer's Licensed System has been certified in accordance with the
requirements set forth in Paragraph 5.2 ("Testing and Certification of
Revised Object and Proposed Designated Output Devices"), Peerless may
supply the OEM Customer with Golden Master versions (as defined below)
in object code form of the Adobe Information for reproduction and
distribution as part of a Licensed System in accordance with the terms
of this Agreement. The term "Golden Master" shall mean a master tape or
a compact disc copy of the applicable Adobe Information; i.e., Revised
Object, Font Programs, Host Software, supplied by Peerless from which
multiple copies of the applicable Adobe Information may be made by the
OEM Customer. Peerless shall require the OEM 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 Adobe Information developed by
Peerless and supplied by Peerless to the OEM Customer. Peerless shall
prohibit an OEM Customer from granting a third party, including but not
limited to an OEM Remarketer Customer, access to Golden Masters for any
purpose. If an OEM Customer is granted reproduction and distribution
rights only in accordance with this Paragraph 2.2.10, Peerless shall
not permit such OEM Customer to have access to any portion of the Adobe
Support Information or to a Peerless SDK."
2. Any reference in Paragraphs 6 ("Proprietary Rights and Legends") and
12.9.2 ("Safeguarding of Proprietary Rights") of the Agreement to
Exhibit N-3 ("Minimum Terms for Protecting Adobe Information")
hereinafter shall refer to Exhibit N-3 ("Minimum Terms for Protecting
Adobe Information Supplied to OEM Customers Under Paragraph 2.2.10") of
the Agreement, as amended herein.
3. Any reference in Subparagraphs 1.3.5(ii) and 2.2.2 of Exhibit B
("Minimum Terms of Peerless OEM Agreement") of the Agreement and
Paragraph 4.1 of Exhibit B of the Agreement hereinafter shall refer to
Exhibit N-3 ("Minimum Terms for Protecting Adobe Information Supplied
to OEM Customers Under Paragraph 2.2.10") of the Agreement, as amended
herein.
4. Any reference in the footnote at the end of Exhibit D ("Extended Roman
Font Program Set") to Exhibit N-3 ("Minimum Terms for Protecting Adobe
Information") hereinafter shall refer to Exhibit N-3 ("Minimum Terms
for Protecting Adobe Information Supplied to OEM Customers Under
Paragraph 2.2.10") of the Agreement, as amended herein.
Amend. 12 to Peerless/Adobe PS Agmt. 2
5. Exhibit N-3 ("Minimum Terms for Protecting Adobe Information") is
renamed as Exhibit N-3 ("Minimum Terms for Protecting Adobe Information
Supplied to OEM Customers Under Paragraph 2.2.10") and is revised to
read in its entirety as attached hereto.
6. All other terms and conditions of the Agreement shall remain in full
force and effect.
Amend. 12 to Peerless/Adobe PS Agmt. 3
IN WITNESS WHEREOF, each of Adobe and Peerless has executed this
Amendment No. 12 to the PostScript Software Development License and Sublicense
Agreement by its duly authorized officer.
Adobe: Peerless:
ADOBE SYSTEMS INCORPORATED PEERLESS SYSTEMS CORPORATION
By: /s/ XXX XXXXXXXX By: /s/ XXXXXXX XXXX
Print Print
Name: Xxx Xxxxxxxx Name:Xxxxxxx X. Xxxx
Title: SVP Worldwide Sales Title: Vice President of Finance
and Field Operations and CFO
Date: 10/1/03 Date: September 8, 2003
Amend. 12 to Peerless/Adobe PS Agmt. 4
EXHIBIT N-3
MINIMUM TERMS FOR PROTECTING ADOBE INFORMATION SUPPLIED TO OEM
CUSTOMERS UNDER PARAGRAPH 2.2.10
1. AUTHORIZED PERSONNEL. OEM agrees that it will disclose the Adobe
Information only to authorized employees and authorized contractors who
(i) require access thereto for a purpose authorized by this Agreement
and (ii) have signed an employee or contractor agreement in which such
employee or contractor agrees to protect third party confidential
information. OEM Customer agrees that any breach by any authorized
employees and authorized contractors of their obligations under such
confidentiality agreements shall also constitute a breach by OEM
Customer hereunder.
2. ADOBE INFORMATION.
2.1 OEM Customer shall ensure that all Adobe Information received from
Peerless and copies made thereof, will be properly marked or otherwise
appropriately identified as Adobe Information before being made
available to authorized employees and authorized contractors.
2.2 OEM Customer shall ensure that the same degree of care is used to
prevent the unauthorized use, dissemination, or publication of the
Adobe Information as OEM Customer uses to protect its own confidential
information of a like nature, but in no event shall the safeguards for
protecting such Adobe Information be less than a reasonably prudent
business would exercise under similar circumstances. OEM Customer shall
take prompt and appropriate action to prevent unauthorized use or
disclosure of Adobe Information.
2.3. OEM Customer shall instruct authorized employees and authorized
contractors not to copy Adobe Information on their own, and not to
disclose Adobe Information to anyone not authorized to receive it.
2.4 Golden Master versions of the Adobe Information shall be handled,
used, and stored solely at OEM Customer-controlled facilities. OEM
Customer may use the Golden Master versions solely for the purpose of
faithfully reproducing copies of the Revised Object, Font Programs and
Host Software, as applicable, for distribution as part of a Licensed
System under the Peerless OEM Agreement. OEM Customer shall ensure that
the Golden Master versions supplied by Peerless to OEM Customer shall
not be provided to any third party.
2.5 OEM Customer agrees that it has no development rights in and to the
Adobe Information and it shall not modify or replace any portion of or
alter the functionality of any portion of the Adobe Information
supplied by Peerless hereunder.
Amend. 12 to Peerless/Adobe PS Agmt. 5
3. TRADE SECRETS. OEM Customer acknowledges Adobe's representation that those
techniques, algorithms, and processes contained in the Adobe Information which
have been developed, acquired, or licensed by Adobe, or any modification or
extraction thereof, constitute trade secrets of Adobe and/or its suppliers, and
OEM Customer agrees that they will be used by OEM Customer only in accordance
with the terms of this Agreement. OEM Customer agrees to protect the proprietary
rights of Adobe and its suppliers in the Adobe Information in accordance with
the terms of this Agreement.
Amend. 12 to Peerless/Adobe PS Agmt. 6
