Exhibit 10.34
LICENSE SOFTWARE ADDENDUM #9
to
MASTER TECHNOLOGY LICENSE AGREEMENT
between
KONICA CORPORATION
and
PEERLESS SYSTEMS(R) CORPORATION
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.
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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LICENSED SOFTWARE ADDENDUM #9 TO
MASTER TECHNOLOGY LICENSE AGREEMENT
DATED JANUARY 16, 2000
This Licensed Software Addendum #9 ("this LSA #9") is entered into as of January
1, 2002 (the "Effective Date") by and between KONICA Corporation, a Japanese
corporation ("KONICA") and PEERLESS Systems(R) Corporation, a Delaware
corporation ("PEERLESS"), pursuant to the provisions of the Master Technology
License Agreement between those Parties dated January 16, 2000 (the "MTLA").
That MTLA provides that KONICA may license certain Licensed Products from
PEERLESS pursuant to one or more Addenda to the MTLA executed by KONICA and
PEERLESS. This LSA #9 is hereby made part thereof, and the terms and conditions
of the MTLA are incorporated by reference herein. This LSA #9 includes the
following Exhibits:
Exhibit A - Description of License Granted
Exhibit B - Specifications
Exhibit C - Payments and Payment Terms
IN WITNESS WHEREOF, the Parties hereto have executed this LSA #9 as of the
Effective Date:
KONICA CORPORATION PEERLESS SYSTEMS CORPORATION
By: By:
/s/ Yoshiaki Ando /s/ Ron Davis
- ----------------------------------------- ----------------------------------
(Authorized Signature) (Authorized Signature)
Name: Yoshiaki Ando Name: Ron Davis
Title: General Manager of Planning Title: Vice President of Sales
Department: Business Machine Sales and
Marketing Division
Date: January 29, 2002 Date: January 29, 2002
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Final (January 25, 2002) Page 1 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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LICENSED SOFTWARE ADDENDUM #9
1.0 DEFINITIONS. All capitalized terms used herein shall have the meaning
specified in this LSA #9 or, if not defined herein, then the meaning specified
in the MTLA. For terms that are defined in this Section 1 and in the MTLA, the
definitions provided herein shall govern for all purposes hereof.
1.1 "Derivative Product", with respect to any hardware product, means the main
body of an Authorized KONICA Device incorporating PEERLESS Material and any
other components which shall be bundled with and be contained in a package with
the main body of product at the time of KONICA's shipment of that Authorized
KONICA Device to KONICA's customer.
1.2 "Derivative Work (s)" "Derivative Work" means (i) for copyrightable or
copyrighted material that is based on one or more pre-existing works, such as a
revision, modification, translation, abridgment, condensation, expansion, or any
other form in which pre-existing works may be recast, transformed, or adapted;
and (ii) for patentable or patented material, any improvement thereon; and (iii)
for material which is protected by trade secret, any new material derived from
such existing trade secret material; including new material which may be
protected or protectable by copyright, patent and/or trade secret, and that, if
prepared without authorization of the owner of the copyright, patent and trade
secret in such preexisting work, would constitute an infringement. "Derivative
Work" expressly does not include, without limitation, the following: (a)
pre-existing KONICA Technology or Confidential Information; (b) KONICA
Technology or Confidential Information developed independently and without
reference to any PEERLESS Confidential Information; (c) any third party
Technology or Confidential Information; and (d) any modification, enhancement,
addition, implementation, or any derivative work whatsoever of the foregoing (a)
through (c).
1.3 "Machine Executable Copy" includes anything designated as such under the
MTLA and, without limiting the foregoing, any object code, machine executable
version of any Derivative Work of any Current Release or Update Release licensed
to KONICA under this LSA #9.
1.4 "PEERLESS Materials" includes anything designated as such under the MTLA
and, without limiting the foregoing, any of the foregoing incorporated in or
underlying any Derivative Work created pursuant to Section 2 of this LSA #9.
1.5 "Source Materials" means any Source Code and any related documentation or
materials for the Current Release(s) or for any Update Release, including
without limitation any such code or materials incorporated in underlying any
Derivative Work created pursuant to Section 3 of this LSA #9.
1.6 "Source Code" means Code in programming languages such as "C" and Fortran
which when processed by a compiler, assembler or interpreter become executable
by a computer, including all comments and procedural code (e.g., job control
language (JCL) statements), plus all related development documents (e.g., flow
charts, schematics, statements of principles of operations, end-user manuals,
architectural standards, and any other specifications that are used to create or
that comprise the Code).
1.7 "Source License" means the rights granted pursuant to Sections 2 and 3 of
this LSA #9.
2.0 ADDITIONAL LICENSE GRANTED. The licenses granted pursuant to this LSA #9 are
set out in Exhibit A attached hereto.
Each Derivative Work, if (1) it is to be incorporated in and distributed in a
new product other than Roman and Japanese version of the IP-601, PS-361, IP-304,
PS-332, IP-511, PS-351, IP-43 1, PS-342, IP-42 I , PS-341, IP-601 M, PS-361 M,
IP-422, PS-343, IP-602, PS-362, IP-432, PS-344, or (2) if it is to be
incorporated in and distributed in previously Authorized KONICA Devices, or (3)
if it is to be incorporated in and distributed in an option thereto to the
aforementioned enumerated Authorized KONICA Devices, requires the development of
a separate License Software Addendum. The Derivative Work(s) of the
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Final (January 25, 2002) Page 2 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
- --------------------------------------------------------------------------------
Licensed Products licensed herein this License Software Addendum #9 are limited
to use in Object Code format only in the Authorized KONICA Devices set out in
Exhibit A.
3.0 DELIVERABLES. KONICA agrees that PEERLESS has transmitted to an Authorized
KONICA Facility all applicable Source Code and related standard documentation
for each Current Release. PEERLESS has no further responsibilities associated
with deliverables. PEERLESS shall have no obligation hereunder to port any
Update Release provided hereunder.
4.0 TERM AND TERMINATION. The term of this LSA #9 shall be contemporaneous with
the term of the License under the MTLA.
5.0 INDEMNIFICATION. KONICA shall have the right, subject to the MTLA and this
LSA #9, to control its development, manufacturing and marketing efforts.
Accordingly, KONICA shall, except to the extent that PEERLESS has indemnified
KONICA pursuant to the MTLA, indemnify and hold PEERLESS harmless from any and
all losses or damages (including without limitation attorneys' fees and costs
and all third party claims or demands of any type whatsoever) arising out of,
incurred in connection with or relating to the KONICA's development,
manufacturing and marketing of Authorized KONICA Devices.
6.0 PROPRIETARY RIGHTS AND CONFIDENTIALITY
6.1 PEERLESS shall own all title and proprietary rights, including without
limitation copyrights, patents and trade secret rights, in any PEERLESS
Materials, including without limitation any portion thereof incorporated in or
underlying any Derivative Work created by KONICA, and any part or copy of any of
the foregoing in any form or media.
6.2 In the case of all Derivative Works, PEERLESS shall continue to own the
underlying Code and all proprietary rights thereto, and shall own the Derivative
Work as a whole and all proprietary rights thereto. PEERLESS shall own such
modifications per se and all proprietary rights thereto. KONICA shall have the
right and license to use such modifications per se, in Source Code or Object
Code format to the same extent it is licensed to use the Code in such respective
formats as set forth elsewhere in the MTLA and this LSA #9. The foregoing
ownership rights are subject to the Licenses set forth herein. Rights not
expressly granted to the KONICA hereunder are reserved by the PEERLESS.
Accordingly, KONICA has the right to develop its own modifications to the
PEERLESS Source Code, either by itself or through PEERLESS. The right to
manufacture and distribute such modified code (i.e., a Derivative Work) in
Object Code format requires notification in writing of any new Authorized KONICA
Devices by KONICA to PEERLESS.
Without limiting the foregoing, KONICA shall own all title and proprietary
rights in any pre-existing KONICA intellectual property that KONICA contributes
to any such Derivative Work.
6.3 Without limiting any of KONICA's obligations of confidentiality imposed
pursuant to the MTLA, KONICA shall (i) specifically require any employee and
contractor of KONICA to execute KONICA's standard confidentiality and
non-disclosure agreement(s) content of such agreement to be subject to PEERLESS'
approval, which. shall not be unreasonably withheld; (ii) notify PEERLESS
promptly and in writing of any circumstances of which KONICA has knowledge
regarding any possible use of or access to any Confidential Information or any
part thereof by any unauthorized person or entity; and (iii) take and allow
PEERLESS to take, at KONICA's expense but under PEERLESS' control, any legal or
other action necessary to prevent or stop the access to or use of the
Confidential Information by an person or entity that has gained access to the
Confidential Information due to the fault or negligence of KONICA or any breach
by KONICA of the MTLA or this LSA #9.
6.4 Any breach by KONICA of any of its obligations under this Section 6 shall be
considered to be a Default of the provisions of the MTLA.
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Final (January 25, 2002) Page 3 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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7.0 AUDIT RIGHTS. PEERLESS shall have the right, upon one (1) business day's
prior notice, to have one (I) of its employees walk through and inspect any
Authorized KONICA Facility to determine whether KONICA employs adequate security
procedures as required in Paragraph 6.3 of this LSA #9.
///End
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Final (January 25, 2002) Page 4 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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EXHIBIT A - DESCRIPTION OF LICENSE GRANTED
1.0 Source License Granted: Without limiting any of KONICA's rights under the
MTLA and upon payment of the fees set out herein, PEERLESS grants to KONICA a
non-exclusive, non-assignable and non-transferable license to use and make no
more than five (5) copies of any Source Materials which KONICA has already been
delivered to KONICA pursuant to this LSA #9 solely for the purposes of (i)
creating source code versions of Derivative Works of any Current Release or any
Update Release, (ii) creating Machine Executable Copies using any development
environment or compiler of which PEERLESS may approve in writing, which approval
shall not be unreasonably withheld, and (iii) providing maintenance, support or
similar services in connection with any Machine Executable Copies distributed
under the MTLA. KONICA may store and use the Source Materials at the KONICA
Facilities located at Konica Systems Technology Center, 5701 Skylab Drive,
Huntington Beach, CA 92647.
1.1 Licensed Products:
1.1.1 PEERLESSPRINT(R)5E. Current Release.
1.1.2 PEERLESSPRINT(R)6. Current Release.
1.1.3 PEERLESSPage(TM) Image Operating System, inclusive of
PEERLESSPOET(TM). PEERLESSPOET(TM) is an integration layer that
links Adobe Systems PostScript(R)3(TM) to PEERLESSPage(TM) and
contains elements of Adobe Source Code. Current Release. Version
3.0 or later.
1.1.4 PEERLESSPrint(R)5E and 6 drivers for Windows 95, 98/ME, Windows
NT4, and Windows 2000/XP Current Release.
2.0 Object License Granted; Upon payment of the fees set out herein, PEERLESS
grants to KONICA a non-exclusive, non-assignable and non-transferable license to
use and distribute the PEERLESS Proprietary Software Products in object code
format in the Authorized KONICA devices set out in paragraph 2.1 below.
2.1 Authorized KONICA Devices:
2.1.1 IP-431 Series (including Japanese version, Roman and Kanji
PostScript Option Kit PS-342).
2.1.2 IP-304 Series (including Japanese version, Roman and Kanji
PostScript Option Kits PS-332).
2.1.3 IP-601 Series (including IP-601 Japanese version and EP-601M
Roman and Japanese version, Roman and Kanji PostScript Option Kits
PS-361 and PS361M).
2.1.4 IP-511 Series (including Japanese version, Roman and Kanji
PostScript Option Kits PS-351).
2.1.5 IP-421 Series (including IP-421 Japanese version and IP-422 Roman
and Japanese version, Roman and Kanji PostScript Option Kits PS-341 and
PS-343).
2.1.6 IP-602 Series (including IP-602 Japanese version and IP-602 Roman
and Japanese version, Roman and Kanji PostScript Option Kit PS-362).
2.1.7 IP-432 Series (including IP-432 Japanese version and IP-432 Roman
and Japanese version, Roman and Kanji PostScript Option Kit PS-344).
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Final (January 25, 2002) Page 5 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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2.1.8 IP-423 Series (including IP-423 Japanese version and IP-423 Roman
and Japanese version, Roman and Kanji PostScript Option Kit PS-345).
3.0 Other Licenses: Licenses and fees for PCL fonts and font scaling technology
must be negotiated with, and paid directly to, Bitstream, Inc. or Agfa
Corporation.
///End
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Final (January 25, 2002) Page 6 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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EXHIBIT B - PRODUCT SPECIFICATIONS
1.0 Authorized KONICA Device Specifications: A KONICA specification document is
being prepared by KONICA, and when issued and accepted by PEERLESS, said
document shall be attached to this LSA #9 in its entirety and hereby
incorporated herein by this reference.
2.0 Deliverables: KONICA agrees that this LSA #9 requires no additional
deliverables or obligations from or on the part of PEERLESS. It is further
agreed that this LSA #9 does not obligate PEERLESS to provide any further
services.
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Final (January 25, 2002) Page 7 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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EXHIBIT C - PAYMENTS AND PAYMENT TERMS
1.0 PER UNIT LICENSE FEES:
For each Authorized KONICA Device shipped pursuant to this LSA #9, KONICA shall
pay to PEERLESS a non-refundable, non-transferable and non-creditable Per Unit
License Fee. The amount of the Per Unit License Fee for each Derivative Product
developed hereunder shall be set forth in a separate Licensed Software Addendum
prior to the time that the Derivative Product begins shipment.
License Fees for the PCL fonts and font scaling technology are not included in
the Per Unit License Fees outlined above. These fees must be negotiated with;
and paid directly to, the Agfa Corporation. All pricing for Adobe
PostScript(R)3TM and Postscript(R) fonts are not included under this LSA #9 and
shall be paid directly to PEERLESS by KONICA under a separate Licensed Software
Addendum.
2.1 LICENCE FEES: The recurring Per Unit License Fee is the fee that PEERLESS
charges KONICA for the right to use PEERLESS' Licensed Products and its hardware
design in each Authorized KONICA Device shipped by KONICA, and is detailed in
Table 1 below. The Adobe PostScript(R) fees are inclusive of Adobe Roman fonts
and drivers. Per Unit License Fees for Adobe compatible Kanji fonts are listed
in Paragraph 2.2 herein.
The following Per Unit License Fees, for the listed Authorized KONICA Devices,
are inclusive of fees associated tandem connections.
TABLE 1- PER UNIT. LICENSE FEES (U.S. DOLLARS)
------------------------------------------------------------------------------------------
AUTHORIZED PEERLESSPage(TM) PEERLESSPRINT(R)5E PEERLESSPRINT(R)
KONICA DEVICE Imaging System & 6 Drivers (Roman
Version for Windows
3.1/95/98/ME &
NT4.0/2000)
------------------------------------------------------------------------------------------
IP-601/IP-601 M $* $* $*
------------------------------------------------------------------------------------------
IP-601J/IP-601MJ $* N/A N/A
------------------------------------------------------------------------------------------
PS-361/PS-361M N/A N/A N/A
------------------------------------------------------------------------------------------
PS-361J/PS-361MJ $* N/A N/A
------------------------------------------------------------------------------------------
IP-304 $* $* $*
------------------------------------------------------------------------------------------
PS-332 N/A N/A N/A
------------------------------------------------------------------------------------------
PS-332J $* N/A N/A
------------------------------------------------------------------------------------------
IP-511 $* $* $*
------------------------------------------------------------------------------------------
PS-351 N/A N/A N/A
------------------------------------------------------------------------------------------
PS-351J $* N/A N/A
------------------------------------------------------------------------------------------
IP-431 $* $* $*
------------------------------------------------------------------------------------------
PS-342 N/A N/A N/A
------------------------------------------------------------------------------------------
PS-342J $* N/A N/A
------------------------------------------------------------------------------------------
IP-421/IP-422 $* $* $*
------------------------------------------------------------------------------------------
PS-341/PS-343 N/A N/A N/A
------------------------------------------------------------------------------------------
PS-341J/PS-343J $* N/A N/A
------------------------------------------------------------------------------------------
IP-602 $* $* $*
------------------------------------------------------------------------------------------
IP-602J $* N/A N/A
------------------------------------------------------------------------------------------
PS-362 N/A N/A N/A
------------------------------------------------------------------------------------------
PS-3621 $* N/A N/A
------------------------------------------------------------------------------------------
IP-432 $* $* $*
------------------------------------------------------------------------------------------
PS-344 N/A N/A N/A
------------------------------------------------------------------------------------------
PS-344J $* N/A N/A
------------------------------------------------------------------------------------------
* 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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Final (January 25, 2002) Page 8 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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2.3 OTHER LICENSE FEES: PEERLESS agrees that there is no additional Per Unit
License Fee for the PSIO Interface so long as it is used with network interface
cards (NICs) that are licensed from PEERLESS, Emulex or net/Silicon. KONICA
agrees to notify PEERLESS in writing of its agreement with a NIC provider and
identify it to PEERLESS. However, If KONICA uses NICs from a source other than
PEERLESS, Emulex or net/Silicon, a Per Unit License of *% of the NICs
Manufacturer's Suggested Retail Price will be charged to KONICA for the use of
the PSIO interface. If KONICA would like third parties to develop NICs for the
KONICA printers, the third parties should contact PEERLESS to make arrangements
to license the PSIO interface.
The Parties agree that there are additional Per Unit License Fees for Adobe
PostScript(R)3TM and Adobe Kanji fonts and these fees are to be paid by KONICA
under a separate Licensed Software Addendum with PEERLESS.
2.4 OTHER PROVISIONS: KONICA shall pay royalties due on the Authorized KONICA
Devices shipped to KONICA OEMs hereunder in United States dollars. The Per Unit
License Fee obligation shall accrue at the time each Authorized KONICA Device
containing the Licensed Product(s) or any portion thereof is shipped to a KONICA
OEM, and shall be reported and paid on a calendar quarter basis.
KONICA agrees to make such report within twenty (20) days following the end of
each calendar quarter, and make payment within twenty (20) days following the
end of each calendar quarter, commencing with the date of first shipment and
continuing until KONICA discontinues shipping the Authorized KONICA Device
containing Licensed Product(s). KONICA will notify in writing PEERLESS at the
time of the discontinuance of the Authorized KONICA Device. KONICA will also
provide PEERLESS each quarter a rolling monthly forecast for the subsequent six
months of the Authorized KONICA Devices containing the Licensed Product(s).
License fees for the PCL fonts and font scaling technology are not included in
the KONICA Per Unit License Fees outlined above. These fees must be negotiated
with, and paid directly to, Bitstream, Inc. and/or Agfa Corporation.
2.5 * ANNUAL LICENSE: Without limiting any of KONICA's rights under the MTLA,
and subject to the provisions of this LSA #9 as well as the payment of all
applicable Per Unit License Fees as stated in Exhibit C herein for the term of
such license, PEERLESS grants to KONICA a non-exclusive and non-transferable *
Annual License for the distribution of certain Licensed Products in Object Code
format only as contained in the Authorized KONICA Devices that are identified in
this Section 2.5.2 below:
2.5.1 * Annual License Payment. PEERLESS has granted KONICA an * Annual
License for PEERLESS Licensed Products contained in the Authorized
KONICA Devices. This * Annual License shall be granted upon the
non-refundable, non-transferable and non-creditable payment of U.S.$ *
(* dollars), due and payable as of * of this LSA #9. This * Annual
License Payment shall be paid on the following dates:
a) Payment of U.S.$ * (* dollars) upon *.
b) Payment of U.S.$ * (* dollars) on *.
c) Payment of U.S.$ * (* dollars) on *.
2.5.2 * Annual License Terms and Conditions. The terms and conditions of the *
Annual License granted to KONICA are as follows:
a) The application of the * Annual License shall apply to the use
of the following named PEERLESS Licensed Products:
PEERLESSPage(TM); PEERLESSPRINT(R)5E;
* 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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Final (January 25, 2002) Page 9 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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PEERLESSPRINT06; PEERLESSPrint(R)5E and 6 drivers for Windows 95,
98/ME, Windows NT4, and Windows 2000/XP.
b) PCL fonts and font scaling technology, Adobe re-testing charges,
Adobe PostScript(R)3(TM) and Adobe Kanji fonts are specifically
excluded from the * Annual License.
c) The following named KONICA Authorized Devices, including those which
have been renamed by KONICA Authorized OEM Remarketers, may be
distributed with * for each Object Code copy of the named PEERLESS
Licensed Products distributed as set out in Table 2 during the term of
the * Annual License:
TABLE 2
----------------------------
AUTHORIZED
KONICA DEVICE
----------------------------
IP-601/IP-601 M
----------------------------
IP-601J/IP-601MJ
----------------------------
PS-361/PS-36l M
----------------------------
PS-361 J/PS-361 MJ
----------------------------
IP-304
----------------------------
PS-332
----------------------------
PS-3321
----------------------------
IP-511
----------------------------
PS-351
----------------------------
PS-3511
----------------------------
IP-431
----------------------------
PS-342
----------------------------
PS-3421
----------------------------
IP-421/IP-422
----------------------------
PS-341/PS-343
----------------------------
PS-341J/PS-343J
----------------------------
IP-602
----------------------------
IP-602J
----------------------------
PS-362
----------------------------
PS-362J
----------------------------
IP-432
----------------------------
PS-344
----------------------------
PS-344J
----------------------------
d) The * Annual-License shall be valid from January 1, 2002
through and including December 31, 2002.
e) Upon expiration of the * Annual License granted herein,
the following actions may take place:
i) The Parties agree that they will negotiate, in good faith, a
future * Annual License structure reflecting similar discount
structures as contained herein; or
ii) KONICA, at its sole discretion, may decide not to purchase an
additional * Annual License and the recurring Per Unit
License Fees remunerated in Paragraph 2.1 herein shall apply.
f) The * Annual License is payable to PEERLESS notwithstanding that
Adobe does not certify the Authorized KONICA Device. Additionally,
none or any portion of the * Annual License Fee is refundable or
transferable.
* 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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Final (January 25, 2002) Page 10 of 12 Initials: PEERLESS____; KONICA ____
KONICA/PEERLESS Licensed Software Addendum #9 CONFIDENTIAL
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g) The * Annual License and the * Annual License Fee are
nonrefundable, non-creditable and non-transferable to any
other Authorized KONICA Device other than those identified in
Table 2 above.
* 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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Final (January 25, 2002) Page 11 of 12 Initials: PEERLESS____; KONICA ____