Postscript Software Development License

Exhibit 10.24


ADOBE CONFIDENTIAL


POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE


AND SUBLICENSE AGREEMENT


BETWEEN


ADOBE SYSTEMS INCORPORATED


AND


PEERLESS SYSTEMS CORPORATION


Dated: July 23, 1999


Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.


POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE
AND SUBLICENSE AGREEMENT


This Agreement is between Adobe Systems Incorporated, a Delaware corporation having its principal place of business at 345 Park Avenue, San Jose, CA 95110-2704 ("Adobe"), and Peerless Systems Corporation, a Delaware corporation, having its principal place of business at 2381 Rosecrans Avenue, El Segundo, CA 90245 ("Peerless"). This Agreement is effective as of July 23, 1999 (the "Effective Date").


The purpose of this Agreement is to license Adobe PostScript interpreter software, which Adobe owns, and related software and technologies, which Adobe has the right to license, to Peerless so that Peerless may (i) provide certain porting and support services to its OEM Customers, (ii) develop software development kits, as described in Adobe-Peerless SDK Appendices attached to this Agreement, for delivery to Peerless' OEM Customers, (iii) sublicense certain rights to such OEM Customers for use in, or development of, OEM Customers' Licensed Systems, as described in Licensed System Appendices, and (iv) have access to the source code versions of core code components of the Adobe Software ("Adobe Core Source") for the purpose of carrying out development activities in accordance with the terms of this Agreement. This Agreement does not authorize Peerless to develop a Licensed System product to be distributed as a Peerless product.


Adobe will provide the Adobe PostScript software for a specific development environment and related materials licensed hereunder under an Adobe Deliverables Appendix (or materials release form) attached to this Agreement, which shall describe the category of deliverables and applicable licensing categories for such deliverables (i.e., Adobe Information, Adobe Support Information, Adobe Support Source, Adobe Core Source, Other Adobe Software, or Host Software, as such categories are described below).


The parties agree that this Agreement is intended to replace in its entirety (i) PostScript Software Development License and Sublicense Agreement between Adobe and HDE, Inc. ("HDE") dated Nov. 22, 1999, and subsequently assigned to Peerless with Adobe's approval, upon the acquisition by Peerless of HDE ("Assigned HDE PostScript Agreement"), and fully incorporates and replaces (ii) that certain Amendment No. 1 to said Assigned HDE PostScript Agreement dated June 14, 2002 and (iii) that certain Amendment No. 2 to said Assigned HDE PostScript Agreement dated August 24, 2002. Any Adobe Information, including but not limited to any Adobe Support Information, supplied to HDE under the terms of the Assigned HDE PostScript Agreement and any derivatives thereof containing any such Adobe Information in HDE's possession shall be deemed to have been surrendered and then returned to Peerless subject to the provisions of this Agreement. The parties agree that the Assigned HDE PostScript Agreement shall terminate concurrently with the final execution of this Agreement, provided, however, that any monies which have been earned by Adobe (but unpaid) under the Assigned HDE PostScript Agreement prior to its termination shall be paid by Peerless under the terms of said agreement.


AGREEMENT


1. DEFINITIONS.


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 or OEM Customer Licensed System and (b) OEM Customers, in connection with a Licensed System.


1.2 Adobe Development Tools means any Adobe-supplied development tool and utility software identified as Adobe Software Development Tools in an Adobe Deliverables Appendix or materials release form (or by other means when delivery is made to Peerless via the World Wide Web), including any enhancements, modifications and localizations thereof provided by Adobe to Peerless.


1.3 Adobe Header Files means the Adobe source code computer programs and files that provide definitions of the services available in Adobe PostScript libraries, as identified in an Adobe Deliverables Appendix or materials release form (or by other means when delivery is made to Peerless via the World Wide Web).


1.4 *


1.5 Adobe Information means the (a) Adobe Support Information, (b) Font Programs, (c) Adobe Software, Other Adobe Software and Host Software, provided to Peerless in object code form, (d) End User Documentation, and (e) any other information provided to Peerless by Adobe hereunder.


1.6 Adobe Software. "Adobe Software" means (a) the unmodified computer programs, in source and/or object code form, known collectively as Adobe's PostScript interpreter software (i.e., version 3011 and above but excluding any future Adobe interpreter software, whether or not based on the PostScript imaging model, marketed by Adobe as a new product rather than as an enhanced version of PostScript 3 interpreter software), as identified in an appendix or materials release form (or by other means when delivery is made to Peerless via the World Wide Web), (b) other software programs, identified as "Adobe Software" in an appendix or materials release form (or by other means when delivery is made to Peerless via the World Wide Web), and (c) any enhancements or modifications to any of the foregoing as provided by Adobe to Peerless. The source components of the Adobe Software are identified either as "Adobe Support Source" or "Adobe Core Source" as described below.


* Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.


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1.6.1 Adobe Support Source. "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 (under a Development Agreement with Peerless) to adapt the Adobe Software for compatibility with OEM Customer Licensed Systems.


1.6.2 Adobe Core Source. "Adobe Core Source" means those portions of the Adobe Software supplied to, and solely for use by, 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 implements Adobe's standard imaging model and the syntax and semantics of the PostScript language and which is also known as "Adobe Restricted Information."


1.7 Adobe Support Information. "Adobe Support Information" means any of the following information provided by Adobe to Peerless during the term of this Agreement: (a) Adobe Software, Other Adobe Software, and Host Software in source code form, (b) unreleased Adobe Software, Other Adobe Software or Host Software in object code form, (c) Demonstration Programs, (d) Adobe Header Files, (e) the Adobe Certification Test Suite, (f) Adobe Development Tools, (g) documentation intended for use by Peerless or its OEM Customers for development purposes, (h) information identified as Adobe Support Information in an appendix, materials release form or exhibit to this Agreement (or by other means when delivery is made to Peerless via the World Wide Web), and (i) enhancements or modifications related to any of the foregoing as provided by Adobe to Peerless.


1.8 Clone Product means a product having page description capabilities that are substantially compatible with the PostScript language.


1.9 Designated Output Device(s) means an output device (i.e., print engine or other raster imaging device) meeting the requirements described in an SDK Appendix or Licensed System Appendix and used to display the raster output created by the Revised Object. References to a "Class" of Designated Output Devices shall mean all Designated Output Devices that each have similar specifications with regard to the unique combination of the following characteristics: controller/microprocessor, marking engine speed, RAM memory, ROM capacity, resolution, bits/pixel, etc.


1.10 Peerless OEM Agreement means a development and license Agreement entered into between Peerless and its OEM Customer regarding the development of Revised Object by Peerless for the benefit of the OEM Customer and whereby Peerless sublicenses to such OEM Customer the right to use and distribute, but not modify (except as expressly set forth herein) the Revised Object as part of a Licensed System. Each Peerless OEM Agreement must contain the minimum terms and conditions set forth in Exhibit B ("Minimum Terms of Peerless OEM Agreements").


1.11 Peerless SDK means a development kit created by Peerless that includes (a) Peerless-supplied software and/or hardware, (b) only those components of Adobe Software and Adobe Header Files that are specifically identified in the relevant Adobe-Peerless SDK


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Appendix, (c) Font Programs provided by Adobe, and (d) may also include Demonstration Program(s) and derivative works thereof in source and/or object code form and/or components of Other Adobe Software and/or Host Software that are specifically identified in the relevant Adobe-Peerless SDK Appendix. The Adobe-Peerless SDK Appendix shall be executed prior to Peerless' first distribution of such Peerless SDK. A Peerless development kit, whether or not known as an "SDK," is not a "Peerless SDK" as defined herein if it does not include Adobe-supplied technology.


1.12 Development Site. "Development Site" means (a) with regard to Peerless, a site that is under Peerless' control and supervision and at a physical location identified in Exhibit C ("Development and Reproduction Sites"), at which Peerless may use the Adobe Support Information, depending upon the characterization of the site as a Primary or Secondary Site (as defined below), (b) with regard to a Third Party Developer, a site that is under Third Party Developer's control and supervision and at a physical located identified in Exhibit C-2 ("Development Sites - Third Party Developers"), at which such Third Party Developer may use the Adobe Support Information (except for Adobe Core Source) to perform technical development services identified in a Development Agreement with Peerless, and (c) with regard to each OEM Customer, a site specified in each Peerless-OEM SDK Appendix at which such OEM Customer may use the Peerless SDK in the development of Licensed Systems. A "Primary Development Site" is a site that is at all time under Peerless' supervision and management control and where the Adobe Core Source and other Adobe Support Information is to be handled, used and stored. A "Secondary Development Site" is a site under Peerless, Third Party Developer or OEM Customer's supervision and management control where Adobe Support Information (except for Adobe Core Source) is to be handled, used and stored. Adobe Core Source shall be handled, used and stored exclusively at a Primary Development Site. Development Site(s) may be located anywhere in any country listed in Exhibit C-1 ("List of Countries Where Development Sites May Be Located") or otherwise as approved in writing by Adobe.


1.13 End User means a third party using the Licensed System for its ordinary business or personal purposes, but not for redistribution or resale.


1.14 End User Documentation means the documentation for the Host Software that is intended for use by an End User.


1.15 Error. "Error" means a defect in a Reference Port or CPSI Platform which causes the Reference Port or CPSI Platform, as applicable, when compiled and running in the development environment as specified in an Adobe Deliverables Appendix or as otherwise specified by Adobe, not to operate substantially in accordance with the PostScript Language Specification.


1.16 First Commercial Shipment means the earlier of (a) OEM Customer's first internal use of Revised Object other than for development or testing, and (b) distribution of such Revised Object to a third party as part of a Licensed System.


1.17 Font Programs means the digitally encoded, machine readable outline programs for the Typefaces identified in Exhibit D ("Extended Roman Font Program Set"), Exhibit D-1


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("Non-Roman Font Programs"), or in an appendix hereto or materials release form (or by any other means when delivery is made to Peerless via the World Wide Web), for which Adobe has sublicensing rights to allow Peerless to further sublicense such Typefaces to its OEM Customers.


1.18 Hardware Upgrade means the installation of any hardware enhancement, with required software, to standard hardware features on a previously installed Licensed System, or the installation of any optional hardware features, with required software, on a previously installed Licensed System.


1.19 Host Software means any Adobe-supplied software identified as Host Software in an appendix hereto, materials release form or Exhibit E ("Host Software") attached hereto (or by other means when delivery is made to Peerless via the World Wide Web), including any enhancements, modifications and localizations (i.e., a version of the Host Software for which the dialog text strings and help files contained therein have been translated into a language other than English) thereof, provided by Adobe to Peerless, that typically runs on a host computer system independently of the Adobe Software, but is used as part of or in conjunction with a Licensed System.


1.20 Licensed System means an OEM Customer product that includes Revised Object and Font Programs licensed from Peerless, and one or more Designated Output Device(s), and may include (unless such components are identified as mandatory, in which case it shall include) Other Adobe Software, Host Software and other hardware and software identified in an applicable Licensed System Appendix. The Licensed System Appendix shall be executed prior to Peerless' delivery to Adobe of the certification test results for such Licensed System pursuant to Paragraph 2 ("Peerless Testing") of Exhibit F ("Licensed System Test Procedures") herein.


1.21 Licensed System Appendix ("LSA") means an appendix to be added to the applicable Peerless OEM Agreement between Peerless and its OEM Customer covering each Licensed System and containing a description of the Licensed System 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"). Adobe will not be a signatory to an Licensed System Appendix, but will receive a transmittal form summarizing any terms contained in the Licensed System Appendix which would require special consideration by Adobe along with an attached copy thereof within five (5) days of final execution. Any 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.


1.22 OEM Customer means a party, other than an *, to whom Peerless has sublicensed the right to use the Peerless SDK, and/or distribute Revised Object in accordance with the terms and conditions of a Peerless OEM Agreement.


1.23 OEM Remarketer Customer means a third party with whom OEM Customer has entered into a written agreement authorizing such third party to distribute a Licensed System under such third party's own trademark and/or incorporate as part of such third party's own product and under its own End User Agreement that includes terms substantially equivalent to


* Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.


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those set forth in Attachment 1 ("Minimum Terms of End User Agreements") to Exhibit B ("Minimum Terms of Peerless OEM Agreements").


1.24 Other Adobe Software means any Adobe-supplied software identified as Other Adobe Software in an appendix, materials release form or Exhibit H ("Other Adobe Software") hereto (or by other means when delivery is made to Peerless via the World Wide Web), including any enhancements or modifications supplied by Adobe to Peerless, that is typically included and distributed as part of the Revised Object for use with the Adobe Software.


1.25 PostScript Language Specification means the PostScript Language Reference Manual, Second Edition, as printed in English by Addison-Wesley, current as of April 1991, or subsequent edition identified in the applicable appendix, and the Supplement: PostScript Language Reference Manual, For Version 3010 (or later supplement to the PostScript Language Reference Manual).


1.26 PostScript Printer Description ("PPD") File means a human readable, machine parseable file containing device-specific information as to how to invoke the features of a particular Licensed System, as described in the PostScript Printer Description File Specification available from Adobe and subject to change in Adobe's sole discretion.


1.27 Reference Port means a version of the Adobe Software and Other Adobe Software, if any, described in an Adobe Deliverables Appendix, consisting of portions in object code form as compiled by Adobe, and unmodified portions in source form to be compiled by Peerless using the development environment specified in an Adobe Deliverables Appendix, which when linked together will execute on the specified development platform. An Adobe Deliverables Appendix may be added to this Agreement in a form similar to Exhibit I ("Sample Format for Adobe Deliverables Appendix") hereto.


1.28 Reproduction Site means (a) with regard to Peerless, the location(s) specified in Exhibit C ("Development and Reproduction Sites") at which Peerless may reproduce (or have reproduced) Adobe Information or (b) with regard to each OEM Customer, a listing of locations which will be made available by the OEM Customer upon request by Peerless, at which the relevant OEM Customer may reproduce (or have reproduced) the Adobe Information licensed from Peerless. Reproduction Site(s) may be located anywhere in any country listed in Exhibit C-1 ("List of Countries Where Development Sites May Be Located"), or at any other location designated as a Reproduction Site as approved in writing by Adobe.


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 an OEM Customer's Licensed System pursuant to the licenses granted hereunder.


1.30 SDK Appendix. "SDK Appendix" means (i) an appendix(ces) to the applicable Peerless OEM Agreement between Peerless and its OEM Customer (known as a "Peerless-OEM SDK Appendix") describing the deliverables for a specific controller platform for embedded PostScript products or host computer for CPSI Software-based products, including development tools and documentation that Peerless is making available to its OEM Customer solely for use by the OEM Customer in designing and developing printer products that include Peerless-provided


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technology; or (ii) an appendix(ces) to this Agreement (known as an "Adobe-Peerless SDK Appendix") describing the deliverables, including the Adobe Information, that Peerless intends to make available to the OEM Customers under license for use in designing and developing Licensed Systems. An Adobe-Peerless SDK Appendix shall include the information included in the form of a SDK Appendix shown in Exhibit J ("Sample Format for Adobe-Peerless SDK Appendix"). Adobe will not be a signatory to a Peerless-OEM SDK Appendix, but will receive a transmittal form summarizing the key terms contained in the SDK Appendix along with an attached copy thereof within five (5) days of final execution. Any Peerless-OEM SDK Appendix containing terms that impact Adobe's rights or obligations otherwise than as explicitly stated in this Agreement or appendices thereto, or that differs in any material way with the terms of the corresponding Adobe-Peerless SDK Appendix, shall require Adobe's written approval on the applicable transmittal form to be enforceable.


1.31 Software Upgrade means the installation of Revised Object and, if required, Font Programs in a Licensed System which contains an earlier version of such Revised Object and/or Font Programs for the purpose of updating, enhancing, or extending such Licensed System.


1.32 Trademarks means collectively the Adobe Trademarks and Typeface Trademarks. "Adobe Trademarks" means (a) the trademarks "Adobe(R)," "PostScript(R)," and "PostScript(R) 3(TM)," (b) the respective stylistic marks and distinctive logotypes for such trademarks, and (c) other marks and logotypes as Adobe may from time to time designate during the course of this Agreement. "Typeface Trademarks" means the trademarks, if any, used by Adobe to identify the Typefaces. "Trademarks," as defined herein, do not include Peerless trademarks.


1.33 Typeface means a human readable set of glyphs as may be specified by Adobe. Each weight or version of a single typeface design (such as Roman or Italic or in an expanded or condensed form) marketed by Adobe as a separate typeface will be considered a separate Typeface.


1.34 Update. "Update" means a revised release of the Adobe Information that Adobe in its sole discretion makes generally available to Adobe's OEM licensees receiving maintenance, as described in Exhibit K ("Maintenance for Standard Reference Port(s)") or Exhibit K-1 ("CPSI Continuing Support"), as applicable, for such Adobe Information.


1.35 Adobe Deliverables Appendix. "Adobe Deliverables Appendix" means an appendix to the Agreement that both Peerless and Adobe have signed prior to the time Adobe delivers Adobe Core Source to Peerless hereunder, and which identifies the Adobe deliverables, including the Adobe Support Source and Adobe Core Source components comprising the Adobe Software for a Reference Port, to be supplied by Adobe to Peerless for use by Peerless in accordance with the terms of the Agreement. Adobe Deliverables Appendix No. 1, which covers the initial delivery to Peerless of the Adobe Core Source as well as Adobe Support Source components comprising the Adobe Software for the specified Reference Port, will be executed concurrently with Amendment No. 1 to the Agreement.


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1.36 Third Party Component. "Third Party Component" means any third party software components, supplied to Peerless hereunder as part of the Adobe Software deliverables for a Reference Port, which Adobe is permitted to sublicense only in the object code form.


1.37 Authorized Contractor. "Authorized Contractor" means a party (subject to Adobe Support Information Recipient's having obtained authorized use of such contractor in accordance with Paragraph 3 ("Prior Approval of Contractors") of Exhibit N-1 ("Secure Procedures for Handling Adobe Support Information") of this Agreement) who (i) requires access to Adobe Support Information for a purpose authorized by this Agreement, (ii) has signed a contractor or consultant agreement with Peerless, Third Party Developer or OEM Customer, as applicable, in which such contractor or consultant agrees to protect third party confidential information and (iii) has received a notice of confidentiality prior to access to Adobe Support Information, and again upon any termination of such access, that contains at a minimum provisions substantially in accordance with those set forth in Paragraph 2 of Exhibit N-1 ("Secure Procedures for Handling Adobe Support Information") of this Agreement. Authorized Contractors shall not be granted access to Adobe Restricted Information.


1.38 Authorized Employee. "Authorized Employee" means a person who (i) requires access to Adobe Support Information for a purpose authorized by this Agreement, (ii) has signed an employee agreement with Peerless, Third Party Developer or OEM Customer, as applicable, in which such employee agrees to protect third party confidential information and (iii) has received a notice of confidentiality prior to access to Adobe Support Information, and again upon any termination of such access, that contains at a minimum provisions substantially in accordance with those set forth in Paragraph 2 of Exhibit N-1 ("Secure Procedures for Handling Adobe Support Information") of this Agreement. Only Authorized Employees of Peerless shall have access to Adobe Restricted Information.


1.39 Subsidiary. "Subsidiary" means any entity or corporation in which Peerless owns or controls one hundred percent (100%) of the outstanding stock, assets or equity securities.


1.40 CPSI Software. "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 host-based Licensed Systems for distribution by an OEM Customer or Peerless SDK(s) for use by an OEM Customer in developing host-based Licensed Systems, in accordance with the terms and conditions of a Peerless OEM Agreement.


1.41 Demonstration Program. "Demonstration Program" means the program(s), both in source and object code form, that are intended to provide Peerless and Third Party Developers with an example of how to integrate the Adobe Software into an application program.


1.42 Third Party Developer. "Third Party Developer" means any third party (subject to Peerless having obtained authorized use of such third party in accordance with Paragraph 2.11 ("Third Party Developers") of the Agreement) with whom Peerless has entered into a written agreement with minimum terms as set forth in Paragraph 2.11, authorizing such third party to use the Adobe Support Information (except for Adobe Core Source) at a Development


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Site under such third party's control solely for the purpose of performing technical development services on behalf of Peerless or for an OEM Customer.


2. SCOPE OF PEERLESS' LICENSE.


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 ...