Exhibit 10.26
MASTER TECHNOLOGY
LICENSE AGREEMENT
between
KONICA CORPORATION
and
PEERLESS SYSTEMS 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.
MASTER TECHNOLOGY LICENSE AGREEMENT
DATED January 16, 2000
This Master Technology License Agreement including Attachment # 1
hereto ("this Agreement" or "MTLA") is entered into as of January 16, 2000 (the
"Effective Date"), by and between KONICA Corporation, a Japanese corporation,
having its principal office at No.26-2 Nishishinjuku 1-chome, Sinjuku-ku Tokyo,
Japan ("KONICA" as defined Paragraph 1.5 below) and PEERLESS Systems
Corporation, a Delaware corporation, with offices at 2381 Rosecrans Avenue, El
Segundo, California, 90245, USA ("PEERLESS").
The Terms and Conditions of the MTLA consists of the following:
Attachment 1 Additional Terms And Conditions
Regarding The Licensing Of PEERLESS
Software Developer Kits ("SDK") Which
Contain Adobe Systems Inc. Source Code.
Annex 1 to Attachment # 1 MINIMUM TERMS OF END USER AGREEMENTS
Exhibit A To Attachment # 1 SECURE PROCEDURES FOR HANDLING ADOBE
SUPPORT INFORMATION
Exhibit B To Attachment # 1 EXTENDED ROMAN FONT PROGRAM SET
Exhibit B-1 To Attachment # I NON-ROMAN FONT PROGRAMS Exhibit C To
Attachment # 1 Use Of Adobe Trademarks
The terms and conditions of this Agreement, the Attachment #1 including
Exhibits A, B, B-1 and C hereto and those contained in one or more License
Software Addenda hereto ("Addenda"), which are incorporated herein by reference,
shall constitute the licensing agreement for the Licensed Product(s) (as
hereinafter defined) specified in the Addenda hereto.
This MTLA including the Attachment # 1 including Exhibits and the
Addenda hereto, as well as the Confidentiality Agreement between the Parties
which is presently in effect, constitute the exclusive statement of the
agreement between PEERLESS and KONICA concerning the subject matter hereof. All
other prior agreements, arrangements or understandings, oral or written,
relating to Licensed Products specified in the Attachment A and the Addenda
hereto are merged into and are superseded by the terms of this Agreement.
Without limiting the foregoing, the pre-printed portions of a purchase order or
any other document submitted by KONICA in connection with an order for the
Licensed Product(s) shall not add to or vary the terms of this Agreement.
THE TERMS AND CONDITIONS ON THE FOLLOWING PAGES ARE PART OF THIS AGREEMENT. BOTH
PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT,
AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.
PEERLESS SYSTEMS CORPORATION KONICA CORPORATION
By: By:
/s/ Cary A. Kimmel /s/ Masatoshi Matsuzaki
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Name: Cary A. Kimmel Name: Masatoshi Matsuzaki
Title: Director of Business Development Title: General Manager
Date: January 16, 2000 Date: January 16, 2000
TERMS AND CONDITIONS
1. Definitions
1.0 Attachment #1. "Attachment # 1" includes the Exhibits attached thereto and
sets out collateral minimum terms and conditions that KONICA is obligated to
accept pursuant to the Licenses granted hereunder.
1.1 Authorized KONICA Device. "Authorized KONICA Device" means any device
meeting the requirements described in each Licensed Software Addendum hereto,
provided that such device is both (i) designed and manufactured by KONICA or
designed by KONICA and manufactured by a third party for KONICA's account
pursuant to such design and (ii) sold, distributed or otherwise marketed to End
Users under KONICA's name and trademark or the name and trademark of any
customer of KONICA including OEM Remarketer customer of KONICA other than the
name or trademark of a Manufacturing Licensee or affiliate or related party of a
Manufacturing Licensee.
1.2 Confidential Information. "Confidential Information" means any (i) written
material that the disclosing party labels, stamps or otherwise designates as
confidential, (ii) oral communication that the disclosing party designates as
confidential at the time that it is made and for which the disclosing party
provides written notice to the receiving party within thirty (30) days
thereafter stating that such information is confidential, (iii) the terms of
this Agreement, and (iv) copies of any of the foregoing. Notwithstanding
anything to the contrary contained in this Agreement, "Confidential Information"
shall not include information that the receiving party can document was (i) in
the public domain at the time of disclosure, or which enters the public domain
other than as a result of the fault or negligence of the receiving party, (ii)
already known to the receiving party at the time of first disclosure hereunder
without obligation of confidentiality, (iii) rightfully obtained by the
receiving party from a third party without obligations of confidentiality, or
(iv) lawfully developed by the receiving party independently and without direct
or indirect reference to or use of any Confidential Information disclosed to it
hereunder.
1.3 Current Release. "Current Release" means, with respect to any Licensed
Product, the version thereof specified in each Licensed Software Addendum
hereto.
1.4 Derivative Work. "Derivative Work" means (i) for copyrightable or
copyrighted material and new material that is based upon one or more preexisting
works, such as a revision, modification, translation, abridgment, condensation,
expansion, or any other form in which such preexisting 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. For purposes hereof; a Derivative Work refers to Licensed Products
as defined herein and shall also include any compilation that incorporates such
a preexisting work.
1.5 KONICA. "KONICA" means KONICA Corporation, a Japanese corporation, and any
of its affiliates or subsidiaries.
1.6 KONICA Facility(ies). "KONICA Facility (ies)" means the facility set forth
in a Licensed Software Addendum to this Agreement which is deemed to be the
authorized KONICA Facility as of the date thereof. A KONICA Facility can be
either a "KONICA Development Facility" or a "KONICA Manufacturing Facility".
1.7 End User. "End User" means a person or entity that acquires a Machine
Executable Copy in any form or media for its ordinary business or personal
purposes, but not for redistribution, resale, license or other transfer.
1.8 General Availability. "General Availability" ("GA") means the time when a
product is available for shipment from KONICA to all customers. GA shall not
include sample shipments in non-production quantities for evaluation purposes
only.
1.9 License. "License" means the rights granted to KONICA pursuant to Sections 2
and 3 hereof.
1.10 Licensed Product. "Licensed Product" means the PEERLESS-owned PEERLESS
Technology as identified herein or in a Licensed Software Addendum to this MTLA
between PEERLESS and KONICA, including, without limitation, any of the computer
programs utilizing the PEERLESS Technology, the PEERLESS documentation thereto
and other PEERLESS provided technology identified in each Licensed Software
Addendum hereto.
1.11 Licensed Software Addendum ("LSA") - Licensed Software Addendum means an
appendix(ces) to the MTLA between PEERLESS and KONICA describing the
deliverables for a specific controller platform including development tools and
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documentation which PEERLESS is making available to KONICA solely for use by the
KONICA in designing and developing printer products that include
PEERLESS-provided technology, and the Adobe Information, which PEERLESS intends
to make available to KONICA under license for use in designing and developing
Licensed Systems.
1.12 Machine Executable Copy. "Machine Executable Copy" means an object code
(machine executable) copy of any Current Release or Update Release licensed to
KONICA hereunder.
1.13 Manufacturing Licensee. "Manufacturing Licensee" means a third party that
manufactures Machine Executable Copies or Authorized KONICA Devices under
license from KONICA.
1.14 PEERLESS Material. "PEERLESS Material" means any Machine Executable Copies,
any material provided by PEERLESS to KONICA, and any part or copy of any of the
foregoing in any form or media.
1.15 PEERLESS Technology. "PEERLESS Technology" means any and all proprietary
Code, technology, inventions, works of authorship, know-how, algorithms,
methods, processes, procedures, techniques, solutions, and any other type of
technical information provided by PEERLESS and used to design, develop, test,
manufacture or distribute the PEERLESS Deliverables, including without
limitation, any and all Technology embodied in the PEERLESS Material and Source
Materials, excluding any KONICA Technology.
1.16 Project Addendum ("PA") - Project Addendum means an appendix(ces) to the
MDA between PEERLESS and KONICA describing the deliverables for a specific
controller platform including specific deliverables, schedule and payment of
Engineering Services Fees associated with a development project.
1.17 Source Materials. "Source Materials" means any source code and any related
documentation or materials for the Licensed Products.
1.18 Third Party Manufacturing Facility. "Third Party Manufacturing Facility"
means the facility set forth in a Licensed Software Addendum to this Agreement
which is deemed to be the authorized Third Party Manufacturing Facility as of
the date thereof.
1.19 Update Release. From time to time PEERLESS may (but shall not be obligated
to) release new versions of Licensed Product(s) containing error corrections.
Such new versions, if any, will be identified by changes to the version number
of the Current Release. An "Update Release" means a version of any Licensed
Product that is commercially released by PEERLESS for general distribution after
the date hereof and that is designated by PEERLESS in its sole discretion by a
version number (x.x.x) that differs from the version number of the Current
Release only in the digit(s) to the right of the right-most decimal point
(x.x.x). Update Releases shall include only error corrections and shall not
include substantial or material enhancements or new features. All decisions
regarding the creation and the timing of Update Releases shall be in PEERLESS'
sole discretion.
DEFINITIONS FOR POSTSCRIPT DEVELOPMENT LICENSE AGREEMENT.
1.20 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 KONICA Licensed System and (b) KONICA in
connection with a Licensed System.
1.21 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.
1.22 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).
1.23 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.
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1.24 Adobe Software means (a) the unmodified computer programs, in source and/or
object code form, known collectively as Adobe's Level 3 PostScript interpreter
software, as identified in an appendix or materials release form, (b) other
software programs identified in an appendix or materials release form (or by
other means when delivery is made to PEERLESS via the World Wide Web) as Adobe
Software, and (c) any enhancements or modifications to any of the foregoing as
provided by Adobe to PEERLESS.
1.25 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)
Adobe Header Files (d) the Adobe Certification Test Suite, (e) Adobe Development
Tools, (f) documentation intended for use by PEERLESS or KONICA for development
purposes, (g) 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 (h) enhancements
or modifications related to any of the foregoing as provided by Adobe to
PEERLESS.
1.26 Adobe 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.
1.27 Clone Product means a product having page description capabilities that are
substantially compatible with the PostScript language.
1.28 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 Addendum 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.
1.29 PEERLESS OEM Agreement means this MTLA and Licensed Software Addenda
regarding the development of Revised Object by PEERLESS for the benefit of the
KONICA and whereby PEERLESS sublicenses to such KONICA the right to use and
distribute, but not modify (except as expressly set forth herein) the Revised
Object as part of a Licensed System.
1.30 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, (c) Font Programs provided by Adobe, and (d)
may also include components of Other Adobe Software and/or Host Software. 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.
1.31 End User Documentation means the documentation for the Host Software that
is intended for use by an End User.
1.32 Font Programs means the digitally encoded, machine readable outline
programs for the Typefaces identified in EXHIBIT B ("Extended Roman Font Program
Set"), EXHIBIT B-1 ("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 KONICA.
1.33 Host Software means any Adobe-supplied software identified as Host Software
in an appendix hereto, 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.
1.34 Licensed System means a KONICA 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 Addendum.
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1.35 Licensed System Addendum ("LSA") means an Addendum to be added to the MTLA
between PEERLESS and KONICA 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
required by PEERLESS.
1.36 OEM Remarketer Customer means a third party with whom KONICA 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 those set forth in ANNEX 1 ("Minimum Terms of
End User Agreements") to ATTACHMENT #1.
1.37 Other Adobe Software means any Adobe-supplied software identified as Other
Adobe Software, 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.
1.38 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 Addendum, and the
Supplement: PostScript Language Reference Manual, For Version 3010 (or later
supplement to the PostScript Language Reference Manual).
1.39 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.
1.40 Reference Port means a version of the Adobe Software and Other Adobe
Software, if any, 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.
1.41 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 in KONICA's Licensed System pursuant to the licenses granted
hereunder.
1.42 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.
2. License
2.1 Source Materials. Except to the extent provided in any Licensed Software
Addendum incorporated into and made a part hereof, KONICA shall not be provided
with, and shall have no rights hereunder, to have access, to use or to copy, any
Source Materials. All Source Code licenses granted by PEERLESS, if any, are
non-exclusive and subject to the provisions of this MTLA and Attachment # 1.
Upon purchase of a Source Code License, additional copies of the Source Code may
be reproduced by KONICA, at no additional charge, only for back-up or archival
purposes.
2.2 Object Code.
2.2.1 Subject to the provisions of this Agreement as well as the payment of all
applicable license fees for the term of such license, PEERLESS hereby grants
KONICA the worldwide, non-exclusive right to reproduce Machine Executable Copies
and distribute such copies only as provided in Paragraph 2.2.2 or as stored: (i)
on a silicon chip(s) incorporated into an Authorized KONICA Device, (ii) on
magnetic or optical media licensed to End Users as part of a package including
an Authorized KONICA Device on or with which such copy operates, or (iii) on
magnetic or optical media licensed to End Users in a form not suitable for use
on or with any product other than an Authorized KONICA Device, or (iv) to End
Users via Internet or telecommunication channels, in a form not suitable for use
on or any product other than an Authorized KONICA Device, if such distribution
is identified in the specific Licensed Software Addendum.
2.2.2 KONICA may provide Machine Executable Copies to any Manufacturing
Licensee, provided that each Manufacturing Licensee executes a written agreement
(a "Manufacturing License") providing that the Manufacturing Facility may
reproduce Machine Executable Copies at an authorized Third Party Manufacturing
Facility only for delivery to KONICA or for license to customers or distributors
of KONICA on KONICA's behalf, subject to all of the restrictions set forth in
Paragraphs 2.2.1(i), (ii), (iii), or (iv) above.
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2.2.3 Any license to an End User of a Machine Executable Copy on magnetic or
optical media shall be made under either a written license agreement executed by
such End User or a document without signature spaces that conspicuously is
designated as a "License Agreement" and that states that the End User will be
bound thereby if he opens the package, uses the software or downloads or copies
the Internet file (collectively, an "End User License"). KONICA shall submit to
PEERLESS for approval KONICA's standard form of End User License before any
Machine Executable Copies are licensed thereunder, which approval shall not be
unreasonably withheld. KONICA shall not do or permit any decompilation,
disassembly, or other reverse engineering of the Licensed Product, and in
addition, each End User License and each Manufacturing License shall stipulate
that the End-User shall not do or permit any copying or decompilation,
disassembly or other reverse engineering of any Machine Executable Copy subject
to any rights granted to a Manufacturing Licensee's rights to reproduce Machine
Executable Copies pursuant to Paragraph 2.2.2.
2.3 Limitations
2.3.1 KONICA shall not copy, distribute or modify, or authorize or allow any
third party to copy, distribute or modify, any PEERLESS Material in any manner
other than as expressly provided in this Agreement. If PEERLESS provides Source
Material to KONICA pursuant to a Licensed Software Addendum, KONICA shall store
and use the Source Materials solely at the KONICA Facility(ies) specified in
each Licensed Software Addendum hereto. All Object Code licenses granted herein
by, if any, are non-exclusive unless specifically denominated otherwise.
2.3.2 Object code licenses granted herein or in a Licensed Software Addendum are
subject to the provisions of Attachment # 1 as applicable.
3. Deliverables
3.1 Source Code. For any Licensed Product for which KONICA shall receive Source
Materials pursuant to a Licensed Software Addendum hereto, PEERLESS shall
transmit the deliverables specified in that Licensed Software Addendum pursuant
to a schedule agreed upon therein.
3.2 Object Code. For any Licensed Product for which PEERLESS and KONICA have
executed a Licensed Software Addendum to this Agreement, PEERLESS shall provide
the deliverables specified in that Licensed Software Addendum pursuant to a
schedule agreed upon therein. Upon execution of an Licensed Software Addendum to
this Agreement, PEERLESS shall transmit to the KONICA Facility (ies) address
indicated on a specific Licensed Software Addendum hereto (i) one (1) Machine
Executable Copy and related standard documentation for each Current Release, and
(ii), subject to the limitations of Paragraph 9.3, one (1) Machine Executable
Copy of any Update Release as of the date that PEERLESS determines in its sole
discretion to commence general distribution of such Update Release.
4. Title to Technology, Ownership and Confidentiality
4.1 Title. As between PEERLESS and KONICA, PEERLESS shall own all title and
proprietary rights, including without limitation copyrights, patents and trade
secret rights, in any PEERLESS Materials and any part or copy thereof in any
form or media.
4.2 Ownership. Ownership of the intellectual property that is the subject of
this Agreement and Licensed Software Addenda thereto shall be as follows:
A. All processes, Licensed Products (including documentation and
source code), technology, trade secrets, know-how, and other technical
information relating to the Licensed Products and any patents,
trademarks, or other intellectual property, technology, trade secrets,
know-how, and other technical information relating to the Licensed
Products and any patents, trademarks, or other intellectual property
pertaining to any of the foregoing or other works provided by PEERLESS
are and shall remain the property of PEERLESS.
B. PEERLESS shall own all title and proprietary rights, including
without limitation copyrights, patents and trade secret rights, in the
source code and/or object code of the Licensed Products that is
provided to KONICA hereunder. KONICA receives no title or proprietary
rights to the Licensed Products that are provided to it under this
Agreement. Modifications to Licensed Products agreed upon by the
Parties in an Licensed Software Addendum to this Agreement, and thereon
made by KONICA shall be owned by PEERLESS and PEERLESS agrees to grant
and herein grants to KONICA the right and license to copy, modify,
make, distribute and sell such Modifications to the same extent it is
licensed to use the Licensed Products as set forth in this Agreement or
as evidenced in a Licensed Software Addendum. Ownership rights in this
Section 4 are subject to the licenses herein and rights not expressly
granted to KONICA hereunder are reserved to PEERLESS.
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C. In the case of all Derivative Works contemplated under this
Agreement and agreed upon by the Parties in an Licensed Software
Addendum to this Agreement, PEERLESS shall continue to own the
underlying source and object code of the Licensed Products and all
proprietary rights thereto, and PEERLESS shall solely shall own the
Derivative Works and the modified software as a whole and all
proprietary rights to the Derivative Works and the modified software as
a whole, including without limitation copyrights, patents and trade
secret rights. All copyright rights shall inure to PEERLESS and KONICA
shall assign or cause to be assigned to PEERLESS any and all of its
copyrights in the Derivative Works. KONICA shall have the right and
license to use the Derivative Product as a whole to the same extent it
is licensed to use the Licensed Products as set forth in this Agreement
or as evidenced in an Licensed Software Addendum. KONICA understands
that PEERLESS shall have an irrevocable, worldwide and royalty-free
right of ownership to use such Modifications made by KONICA and to use,
sell, or otherwise dispose of such Derivative Works in which the
modification was created by KONICA.
D. PEERLESS now owns and shall continue to own the underlying code
of the Licensed Products, including but not limited to the schematics
and database software used to implement the Licensed Products, the then
previously existing underlying code of the Licensed Products which is
used in Derivative Works and all proprietary rights and title including
without limitation copyrights, patents and trade secret rights thereto.
E. The rights of either Party to use or capitalize on the Licensed
Products or Derivative works thereof are restricted by the scope of
license granted under Section 2 of this MTLA, the Attachment # 1 hereto
or as set out in an Licensed Software Addendum thereto.
F. KONICA receives no title or proprietary rights to the Adobe
Materials contained in the Licensed Products that are provided to it
under this Agreement, Attachment # 1 or a Licensed Software Addendum
hereto.
4.3 Obligations to Observe Confidentiality. Notwithstanding any other provision
hereof and in compliance with the provisions of the Confidentiality Agreement
between the Parties, the receiving party shall (i) observe complete
confidentiality with regard to the Confidential Information and shall protect it
using at least the same degree of care it uses to protect its own proprietary
and confidential information and materials of like importance, but in no event
less care than a reasonably prudent business person would take in a like or
similar situation; (ii) not disclose or permit any third person or entity access
to the Confidential Information without disclosing party's prior written
permission (except that such disclosure or access shall be permitted solely to
employees of receiving party to the extent required to allow receiving party to
utilize the Confidential Information as permitted hereunder); and (iii) ensure
that receiving party's employees who receive access to any Confidential
Information are advised of the confidential and proprietary nature thereof and
of their obligation to maintain its Secrecy. The Parties' obligations and rights
under this Paragraph 4.3 shall survive any expiration or termination of the
License or of this Agreement for any reason whatsoever including without
limitation PEERLESS' or KONICA's material breach hereof.
5. Training. To the extent indicated in each Licensed Software Addendum
hereto, PEERLESS shall, upon KONICA's request, make training relating to the
Licensed Products available at a mutually agreed time at a PEERLESS facility.
Except as may be otherwise agreed by the Parties in writing, KONICA shall pay
for any training in addition to that provided for in each Licensed Software
Addendum, at PEERLESS' then standard rates for time, materials and related
charges.
6. Payment
6.1 Generally. KONICA shall pay PEERLESS in accordance with the rates, terms and
conditions set forth in each Licensed Software Addendum hereto. KONICA shall
hold in confidence and not disclose such rates, terms and conditions. KONICA
will make all payments within * (*) calendar days of receipt of PEERLESS'
invoice. Unless otherwise stated in an Addendum hereto, all payments are
non-refundable, non-transferable and not creditable.
6.2 Late Payment. Without limiting any of PEERLESS' other rights or remedies
hereunder if KONICA shall at any time fail to pay within thirty (30) days of the
date when due any amount owing hereunder (a "Payment Default"), PEERLESS shall
be entitled to cease performing any and all of its obligations hereunder until
such time as KONICA cures such Payment Default by paying such past due amount
and any late fees or other charges associated therewith. If PEERLESS is
obligated hereunder to perform any services as of any date after any Payment
Default (a "Deadline"), such Deadline shall be extended by one (1) day for each
day that the Payment Default remains uncured, including and up to the day that
PEERLESS receives all amounts due hereunder.
6.3 Taxes. In the event that KONICA is required to withhold taxes imposed upon
PEERLESS for any payment under this Agreement by virtue of the statutes, laws,
codes, or government regulations of a country in which the Licensed Products are
sold, then such payments will be made by KONICA and deducted from KONICA's
payment obligations under this Agreement; provided, however, that KONICA will
obtain and furnish PEERLESS with official tax receipts for a credit against
PEERLESS' U.S. tax liability.
* 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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7. Term and Termination
7.1 Generally. The term of the License shall commence upon the date hereof and
shall continue for six (6) years thereafter. Subject to KONICA's compliance with
the terms of this MTLA, this Agreement shall automatically be renewed for
another six-(6) year term unless KONICA notifies PEERLESS in writing of its
intent to terminate this Agreement at least three (3) months prior to the
scheduled expiration of this Agreement. Notwithstanding the foregoing, this
Agreement may be terminated prior to the scheduled expiration date under the
provisions of Section 11 (Default). Nothing contained herein shall be deemed to
extend the term of any warranty provided hereunder.
7.2 Duties Upon Termination. Except as otherwise set forth herein, upon
termination of the MTLA or expiration of the term of the License
("Termination"), all of KONICA's rights under the License shall be cancelled
immediately. Within thirty (30) business days after Termination, KONICA shall,
except to the extent provided in Paragraph 7.3, (i) return to PEERLESS or
destroy all PEERLESS Material and Adobe material in the possession of KONICA or
any KONICA Manufacturing Facility or at any KONICA directed Third Party
Manufacturing Facility, other than Machine Executable Copies previously shipped
to KONICA's customers in accordance with Paragraph 2.2 for which KONICA has or
shall timely pay all amounts due hereunder, and (ii) provide to PEERLESS a
statement executed by an officer of KONICA certifying that KONICA has complied
in all respects with the provisions of clause (i) of this sentence including its
return or destruction of all of Adobe's proprietary information within thirty
(30) days of termination, cancellation or expiration. KONICA shall continue to
be responsible for safeguarding the proprietary rights of Adobe and Adobe's
suppliers in accordance with this Agreement, after such termination,
cancellation or expiration. Additionally, KONICA shall immediately discontinue
use and distribution of, and return or destroy all copies of, Adobe Information
and other Adobe deliverables in its possession (including copies placed in any
storage device under KONICA's control).
7.3 Rights After Termination. After Termination, KONICA may retain and
distribute, solely in accordance with the provisions of Paragraph 2.2 and this
Section 7 hereto, Machine Executable Copies incorporated in or packaged for use
with or on Authorized KONICA Devices already manufactured and in KONICA's
finished goods inventory as of Termination, but only if KONICA timely performs
its obligations under Paragraph 7.
8. Indemnification
8.1 Indemnification of KONICA. Subject to the limitations contained in this
Agreement, PEERLESS shall indemnify and hold harmless KONICA from any
liabilities to any third parties, as finally awarded by a court of competent
jurisdiction, arising out of, and any costs and expenses of defending or
settling, any claim that any Licensed Products or any part thereof infringes any
copyright, patent or trade secret in the U.S. and the countries and territories
listed in Exhibit A to this MTLA. KONICA shall notify PEERLESS in writing of any
such claim promptly after KONICA first learns thereof, shall tender sole control
of the defense and settlement of such claim to, and shall provide PEERLESS with
such reasonable assistance and cooperation as PEERLESS may reasonably request
from time to time in connection with such defense. In the event of any such
claim, PEERLESS may replace at its option and expense either procure for KONICA
the right to continue using or distributing PEERLESS Material or replace any
allegedly infringing PEERLESS Material with non-infringing software or other
material of equivalent functionality. KONICA shall thereupon cease all use or
distribution of such PEERLESS Material and return all copies thereof to
PEERLESS. None of PEERLESS' obligations under this Section 8 shall apply in
connection with any claim of infringement if KONICA has modified any PEERLESS
Material or combined any such material with or into any other programs, data,
device, component or applications or breached this Agreement and such
infringement would not have occurred without such modification, combination or
breach. Under no circumstances will PEERLESS have an obligation to indemnify
KONICA from any claims relating to any technology provided by third parties for
which KONICA enters into a separate agreement with such third party for such
technology; KONICA's sole indemnity rights, if any, relating to such third party
technology will be governed under its separate agreement with the third party.
8.2 Indemnification of PEERLESS. KONICA shall indemnify PEERLESS and hold it
harmless from any liabilities to any third parties, as finally awarded by a
court of competent jurisdiction, arising out of and any costs and expenses of
defending or settling, any claims that any Licensed Product infringes any
copyright, patent or trade secret existing or issued as of the date of this
Agreement, in the U.S. and the countries and territories listed in Exhibit A to
this MTLA, in the event that infringement action or claim is based on the use of
the Licensed Products in a manner other than as specified under this Agreement,
the use of any Licensed Products in combination with other products, equipment,
devices or software if the infringement action or claim would have been avoided
in the absence of such combination, or the alteration or modification of the
Licensed Products if the infringement action or claim would have been avoided in
the absence of such alteration or modification. PEERLESS shall notify KONICA in
writing of any such claim promptly after PEERLESS first learns thereof, shall
tender sole control of the defense and settlement of such claim to KONICA, and
shall provide KONICA with such reasonable assistance and cooperation as KONICA
may reasonably request from time to time in connection with such defense.
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8.3 Limitation of Liability. Except as for payments pursuant to Paragraph 6.1
above and Paragraph 11.3 below, in no event or circumstances shall each Party's
total liability under this Agreement including Sections 8.1 and 8.2 herein, to
the other Party for damages however denominated, attorneys fees and costs from a
judgment arising out of any and all actions and proceedings brought by either
Party against the other Party for any cause of action sounding in tort, contract
or otherwise, exceed the lessor of 1) the aggregate amounts of Source Code
License Fees and Recurring License Fees actually paid by KONICA to PEERLE or 2)
one million dollars (US$1,000,000.00).
8.4 Exclusion of Damages
IN NO EVENT SHALL PEERLESS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOST
PROFITS OR LOSS OF DATA OR INFORMATION OF ANY KIND, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT PEERLESS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE. NO ACTION, REGARDLESS OF FORM, ARISING OUT
OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY HERETO
MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED, EXCEPT THAT AN
ACTION FOR NONPAYMENT, BREACH OF THE PROVISIONS OF SECTION 10 HEREOF OR
MISAPPROPRIATION OR INFRINGEMENT OF ANY OF PEERLESS' PROPRIETARY RIGHTS MAY BE
BROUGHT AT ANY TIME WITHIN ANY APPLICABLE STATUTE OF LIMITATIONS.
8.5 Separate Counsel. PEERLESS and KONICA each retain the right to employ
independent counsel of its choice to participate in any legal proceedings as set
out in Paragraphs 8.1 and 8.2 above.
8.6 Intentional Risk Allocation. PEERLESS and KONICA each acknowledges that the
provisions of the Agreement were negotiated to reflect an informed voluntary
allocation between them of all the risks, both known and unknown associated with
the transactions associated with this Agreement and any Addendum hereto. The
warranty disclaimers and limitations in this Agreement and any Addendum hereto
are intended to limit the circumstances of liability. The remedy limitations and
the limitations of liability are separately intended to limit the forms of
relief available to the Parties.
9. Warranties
9.1 Scope. The scope and duration of the warranties for each Licensed Product
are specified in each Licensed Software Addendum hereto.
9.2 Remedies. If KONICA reports in writing any condition that it believes to
constitute a breach of any warranty provided pursuant to Paragraph 9.1 and
PEERLESS is able to replicate such condition and determines that such condition
constitutes such a breach, PEERLESS shall use commercially reasonable efforts to
correct, or at its option to provide a Work Around (as hereinafter defined) for,
such condition (i) promptly upon notice thereof, to the extent that such
condition causes system crashes, and (ii) in or with a subsequent Update
Release, to the extent that such condition does not cause system crashes. With
respect to any condition constituting a breach of the warranties provided in
Paragraph 9.1, "Work Around" means any system, method or procedure that allows
use of any Current Release or applicable Update Release without loss of
documented functionality. KONICA shall cooperate with and promptly provide all
assistance or KONICA materials or equipment reasonably requested by PEERLESS in
connection with PEERLESS' efforts in detecting, analyzing and/or correcting any
such condition. The foregoing states the entire liability of PEERLESS and the
sole and exclusive remedies of KONICA for any breach of any warranty provided by
PEERLESS pursuant to Paragraph 9.1 hereof or a specific Licensed Software
Addendum hereto.
9.3 Limitations. In no event shall the existence of any condition be deemed to
give rise to any breach of the warranties provided in Paragraph 9.1 hereof if
such condition was caused in whole or part by (i) any hardware, equipment or
non-Licensed Products except non-Licensed Products modified by PEERLESS for
inclusion in any Current Release or Update Release, including without limitation
any defect therein or failure to operate in accordance with manufacturer's,
distributor's or publisher's specifications therefor, (ii) any modification or
enhancement to any PEERLESS Material made by any person or entity other than
PEERLESS, (iii) any negligent or inapplicable use of any PEERLESS Material, (iv)
any use of any PEERLESS Material for a purpose other than as licensed herein or
in a Licensed Software Addendum, or as recommended in the most current PEERLESS
instructions or documentation provided to KONICA, or (v) any other negligence by
KONICA or any third party.
9.4 Disclaimers.
9.4.1 EXCEPT AS SPECIFICALLY PROVIDED IN PARAGRAPH 9.2, PEERLESS DISCLAIMS ALL
EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE AND AGAINST
INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PEERLESS DOES NOT WARRANT THAT ANY
OF THE CURRENT RELEASES OR UPDATE RELEASES THAT IT
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PROVIDES WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION. PEERLESS DOES NOT
MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY TO ANY END
USER OR OTHER THIRD PARTY. KONICA SHALL NOT HAVE THE RIGHT TO MAKE OR PASS
THROUGH, AND SHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT NEITHER IT NOR ANY
OF ITS AGENTS OR EMPLOYEES ATTEMPT TO MAKE OR PASS THROUGH, ANY SUCH
REPRESENTATION OR WARRANTY ON BEHALF OF PEERLESS.
9.4.2 ADOBE AND ITS THIRD PARTY SUPPLIERS MAKE NO WARRANTIES OF ANY KIND,
EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR
STATUTORY, AS TO THE ADOBE INFORMATION OR ANY MATTER WHATSOEVER. IN PARTICULAR,
ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. KONICA SHALL NOT HAVE THE RIGHT TO MAKE
OR PASS ON, AND SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER IT NOR
ANY OF ITS AGENTS, EMPLOYEES, OR CUSTOMERS SHALL MAKE OR PASS ON, ANY EXPRESS OR
IMPLIED WARRANTY OR REPRESENTATION ON BEHALF OF ADOBE OR ITS THIRD PARTY
SUPPLIERS TO ANY CUSTOMER, END USER, OR THIRD PARTY. ADOBE SHALL HAVE NO
RESPONSIBILITY FOR SUPPORTING KONICA OR KONICA'S END USERS. PEERLESS OR KONICA,
EITHER DIRECTLY OR INDIRECTLY, WILL PROVIDE END USERS WITH REASONABLE END USER
DOCUMENTATION, WARRANTY SERVICE, AND TELEPHONE SUPPORT FOR THE USE OF LICENSED
SYSTEMS CONSISTENT WITH GOOD INDUSTRY PRACTICE.
9.4.3 PEERLESS DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR THE
LICENSED PRODUCTS WILL BE UNINTERRIPTED OR ERROR FREE.
10. Proprietary Rights Notices.
10.1 KONICA agrees to reproduce and affix to all copies of any firmware ROM
labels, printer driver labels and property dialog boxes such proprietary and
copyright notices as set forth herein, set forth in Paragraph 4.3 of Attachment
#1, and as PEERLESS shall specify from time to time in writing. Unless otherwise
specified by PEERLESS, the following notice shall be affixed by KONICA or an
appropriate Third Party Manufacturing Facility to any media incorporating
(including EPROM's, ROMs, etc.) of any PEERLESS Material:
TRADEMARK OF PEERLESS SYSTEMS CORPORATION, or REGISTERED
TRADEMARK OF PEERLESS SYSTEMS CORPORATION, or COPYRIGHT (C)
1999 PEERLESS SYSTEMS CORP.
10.2 KONICA shall not remove or obscure any PEERLESS copyright, trademark or
confidentiality notices or marks.
10.3 KONICA agrees that as a condition of its rights hereunder, each copy of the
Adobe Information shall contain the same proprietary notices of Adobe and its
suppliers which appear on or in such Adobe Information provided by PEERLESS to
KONICA and as otherwise reasonably required by PEERLESS. More specifically,
KONICA agrees that a valid Adobe copyright notice for the Revised Object, Font
Programs and Host Software will appear on the media, or, in the case of Revised
Object executing on a workstation or other host-based system, displayed on the
single user screen of the workstation or other host-based system when the
Revised Object is first invoked during an End User session, in the following
format or such other format as PEERLESS specifies by written notice to KONICA:
(a) the name of the program, (b) the word "Copyright" and the circled-c symbol
(C), (c) the date of first publication of the Adobe Software, and (d)the name of
the copyright owner and the words "All Rights Reserved."
11. Default
11.1 Defined. For purposes hereof, a Default shall be deemed to occur upon the
occurrence of any of the following events: (a) KONICA's failure to pay any
amounts due hereunder within thirty (30) days from the date that such amounts
are due or overdue; (b) either Party's breach of any of its obligations under
Section 9; (c) either Party's breach of any other of its obligations hereunder,
or (d) KONICA's breach of the terms and conditions of Attachment # 1, which
breach continues uncured for a period of thirty (30) days after receipt of
written notice thereof from the non-breaching Party.
11.2 Remedies. Upon any Default, the non-breaching Party shall have the right,
without limiting any of its other rights or remedies hereunder or at law or in
equity, to declare by written notice to the breaching Party that all unpaid
amounts owing hereunder immediately due and payable, to recover the same, to
terminate the term of the License pursuant to Paragraph 7.1, and to suspend
performance of any of its obligations hereunder.
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11.3 Liquidated Damages. Notwithstanding any other liability limitation herein,
KONICA acknowledges and agrees that PEERLESS would suffer damages if KONICA
defaults prior to Final Acceptance under a specific Project Addendum, and that
in such a situation PEERLESS' actual damages would be difficult to determine. As
a result, in the event that KONICA defaults prior to Final Acceptance under a
specific Project Addendum, KONICA and PEERLESS agree that the damages would be
1) the remaining portion of the Engineering Services Fees due in addition to the
Guaranteed Minimum Recurring License Fees due under the specific Project
Addendum, Licensed Software Addendum or other applicable contractual
arrangement, or 2) US$1,000,000.00 (one million dollars), which ever sum is
greater.
12. Audit Rights
12.1 Reporting. Within thirty (30) days after the end of each calendar quarter,
KONICA shall deliver to PEERLESS a written accounting certified by an authorized
representative of KONICA and setting forth the total quantity of each Licensed
Product sold (in whatever form or media) and the total amount invoiced therefore
during such quarter. In the event an Authorized KONICA Device includes Adobe
PostScript provided by PEERLESS, such accounting shall separately identify the
quantity and invoiced amount of such shipments. KONICA shall also provide
PEERLESS KONICA future product sales forecasts. Such reports shall be provided
to PEERLESS upon request by PEERLESS.
12.2 KONICA Books of Account. KONICA shall keep in its principal place of
business complete and accurate books of account relating to the creation and
shipment of any Machine Executable Copies. Said books and records shall be
limited to those data that are necessary for calculating the recurring license
fees. In order to assist in verification of the accounting information delivered
to PEERLESS, such books of account with reasonable information to determine the
number of units owing to PEERLESS shall be provided upon request by PEERLESS to
KONICA.
12.3 Financial Audit. Upon reasonable advance written notice to KONICA, PEERLESS
shall have the right, at its own expense, once annually to audit the books and
records of KONICA through mutually agreed upon accredited independent
representatives (who shall be certified public accountants) to determine the
sufficiency of KONICA's payments hereunder and to verify the statements to be
furnished to PEERLESS pursuant to this Section 12. Said books and records shall
be limited to data necessary for the calculation of the recurring license fees.
Any such audit shall take place during normal business hours at KONICA's
location and shall be conducted in a manner that does not unreasonably disrupt
the business operations of KONICA. PEERLESS shall bear the expense of any such
audit unless such audit reveals that the amount paid by KONICA hereunder with
respect to any calendar quarter shall be more than five percent (5%) less than
the amount that should have been paid by KONICA, in which event (i) the costs of
such audit shall be borne by KONICA and (ii) PEERLESS may thereafter elect to
conduct audits twice annually. Except in connection with any efforts to obtain
payment due hereunder or with any litigation between the Parties, and except as
may reasonably be required to comply with applicable law or disclosure
requirements, PEERLESS shall hold in confidence and not disclose any of KONICA's
confidential information acquired by PEERLESS in any audit conducted pursuant to
this Paragraph 12.3.
13. Assignment, Sale or Transfer. Except as set out in Paragraph 6.3 above,
neither PEERLESS nor KONICA may assign, sell or transfer this Agreement or any
obligations or rights herein, including without limitation rights or duties of
performance, or subcontract any obligations or duties of performance hereunder
without the other Party's prior written consent, which consent may be subject to
certain contractual limitations, but which consent shall not be unreasonable
withheld. Any attempt to assign, sell or transfer this Agreement shall be null
and void. Such prohibition on assignment, sale and transfer shall also apply to
any merger of KONICA or PEERLESS with or into another entity, or any
transactions) pursuant to which any entity or person (including any of their
respective subsidiaries and affiliates) first acquires after the date of this
Agreement, directly or indirectly, an aggregate amount of fifty percent (50%) or
more voting control or fifty percent (50%) or more of the equity Securities
("Control") of KONICA or PEERLESS (or of any entity directly or indirectly
having Control of KONICA or PEERLESS) or by contract or otherwise obtains the
right to appoint at least fifty percent (50%) of the Board of Directors of
KONICA or PEERLESS (or any entity directly or indirectly having Control of
KONICA or PEERLESS), except that neither Party may withhold its consent to an
assignment, sale or transfer arising from any transaction(s) described in this
sentence unless (i) the assignee or entity acquiring Control of KONICA or
PEERLESS is a competitor or (ii) it determines that the assignment or change of
Control might jeopardize its ability to protect its proprietary rights. For
purposes of this Section 13, the term "affiliates" shall be defined as provided
in the Securities Act of 1933 and the rules and regulations promulgated
thereunder.
14. Announcements
14.1 Marketing Materials KONICA's obligations to disclose in its advertisements,
press releases, and sales or technical documentation ("Marketing Literature"),
its use of Licensed Products are set forth in Attachment # 1 and each Licensed
Software Addendum.
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14.2 Press Releases and Promotions. Upon execution of this Agreement, PEERLESS
may, after receiving KONICA's written approval, which shall not be unreasonably
withheld, disclose in any PEERLESS advertisement or other promotional material
that KONICA is a PEERLESS customer. Further, once KONICA has issued a public
statement announcing an Authorized KONICA Device incorporating any of the
Licensed Products hereunder, PEERLESS may also disclose in any PEERLESS
advertisement or other promotional material naming KONICA and the technology
licensed to KONICA for that Authorized KONICA Device, provided that PEERLESS
shall not disclose in such press release any other details about KONICA's
products without KONICA's prior written approval. The Parties may disclose
information in order to comply with United States securities laws. KONICA agrees
to consult with PEERLESS prior to any announcement or press release pertaining
to the Licensed System to insure correct Trademark usage and accuracy associated
with the description of PEERLESS Materials.
14.3 Limited Right of Use. PEERLESS grants KONICA a non-exclusive, limited right
to use its trademarks, trade names, and other marketing names solely for the
purpose of accomplishing the purposes of this Section 14. KONICA grants PEERLESS
a non-exclusive, limited right to use its trademarks, trade names, and other
marketing names solely for the purpose of accomplishing the purposes of this
Section 14.
14.4 Marketing Effort. KONICA agrees to use commercially reasonable efforts to
(a) promote the Licensed Systems, and (b) undertake the following marketing
programs or such marketing programs described in the applicable Licensed System
Addendum:
14.4.1 Press Releases. KONICA agrees to allow PEERLESS to review
all announcements and press releases pertaining to Licensed Systems prior to
their release to the public or the press, and to incorporate all changes that
PEERLESS may reasonably request to ensure correct Trademark usage and accuracy
of content.
14.4.2 Trade Shows. KONICA agrees to make best effort to
prominently display the Licensed System, using the Adobe PostScript logo or
other trademarks designated by Adobe, at all trade shows provided by KONICA
Corporation where KONICA displays printer products, and to clearly identify the
Licensed System as an Adobe PostScript product at such shows.
14.4.3 Adobe PostScript Logo. KONICA agrees to use the
Trademarks (including the Adobe PostScript logo) in accordance with EXHIBIT C
("Use of Adobe Trademarks") attached herein.
14.4.4 Adobe Marketing Materials. If Adobe either directly or
through PEERLESS provides KONICA with any printed marketing materials that
describe to End Users the use and benefits of Adobe Software, including any End
User registration materials, KONICA agrees to make best effort to distribute
such materials with each Licensed System or applicable Licensed System component
distributed by KONICA after confirmation of contents by KONICA hereunder. KONICA
makes best effort to reproduce (e.g., on CD-ROM media) and distribute as set
forth herein, and at KONICA's expense, any such materials provided by Adobe to
KONICA electronically.
14.4.5 Direct Mail. Upon Adobe's request, KONICA will allow
Adobe to do "blind mailings" regarding Adobe's products to KONICA's
registered End Users. Conversely, Adobe will allow KONICA to do "blind
mailings" concerning Licensed Systems to Adobe's registered end-users.
14.4.6 Point-of-Purchase. Upon Adobe's request, KONICA agrees to
consult with Adobe in the development of applicable product brochures and other
marketing materials related to Licensed Systems. If Adobe supplies the POP
materials to KONICA for distribution, KONICA will make best efforts to use the
POP materials in its reseller promotions based on acceptance of reseller.
14.4.7 Web Site. The Parties agree to implement mutually
acceptable co-marketing activities utilizing each company's World Wide Web (the
"Web") site. Such activities will include, but will not necessarily be limited
to, the following:
14.4.7.1 KONICA Site. PEERLESS will provide to KONICA
content describing the Adobe PostScript technology and its features and
benefits. KONICA agrees to include such PEERLESS-provided content on its
external Web site upon KONICA's acceptance of such contents. The Parties agree
to promptly resolve any content and/or style disputes in good faith. KONICA
shall make best effort to prominent use of the Adobe PostScript logo (or other
such logo as Adobe may designate from time to time) on screen/page of each
product which uses Licensed Adobe PostScript technologies. KONICA shall also
provide a link on its Web site where Licensed Systems are promoted, to the
target page at PEERLESS's Web site that contains generic information and
education about the PostScript technology upon request from PEERLESS. Agreement
by
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KONICA to link to such PEERLESS Web site is contingent on the target Web page
(URL) containing only generic PostScript information (i.e., no KONICA-specific
PostScript information).
14.4.7.2 Adobe Web Site. Adobe will provide a link on its
Web site for the PostScript technology to the page on KONICA's site where the
Licensed Systems are promoted. Agreement by Adobe to link to KONICA's Web site
is contingent on the URL not containing any information about technology that
competes with the PostScript technology, the names of any vendors of such
competing technology, or links to other Web sites containing any such
information.
14.3 Adobe Marketing Limitations. With respect to any Clone Products which
KONICA develops or markets, KONICA agrees that it will not exploit its access to
the Adobe Information, its relationship with PEERLESS, or the existence in its
product line of Licensed Systems containing PostScript software to promote or
legitimize Clone Products. Furthermore, KONICA agrees to use best efforts to
distinguish Licensed Systems from Clone Products when displaying or referring to
Licensed Systems in advertisements, catalogs, brochures and at trade shows by
(a) identifying the Licensed Systems prominently and exclusively with the Adobe
PostScript logo in such proximity that the viewer is unlikely to associate the
PostScript logo or any Adobe Trademark with the Clone Products, and (b) not
associating the Adobe Trademarks with any Clone Product in advertising, press
releases, and other promotional and marketing materials.
14.4 Conformance to Marketing Guidelines. At least thirty (30) days prior to
First Commercial Shipment of Revised Object for a particular Licensed System,
and from time to time thereafter at PEERLESS's request, KONICA agrees to provide
to PEERLESS with copies of all marketing materials related to such Licensed
System as proof of implementation of the above marketing guidelines. PEERLESS
shall have fifteen (15) days from receipt of such materials to review and
approve such materials. In the event that PEERLESS does not provide KONICA with
comments to such materials within such fifteen-(15) day period, PEERLESS shall
be deemed to have approved such materials.
15. Export Controls. KONICA shall comply with any and all United States export
regulations, rules or orders now in effect or that may be promulgated from time
to time that govern or relate to any export of any PEERLESS Materials, including
without limitation any Authorized KONICA Device incorporating any PEERLESS
Material. KONICA shall comply with any and all United States export regulations,
rules or orders now in effect or that may be promulgated from time to time that
govern or relate to any export of any PEERLESS Deliverables. KONICA shall comply
with the U.S. Foreign Corrupt Practices Act and all applicable export laws,
restrictions and regulations of the U.S. Department of Commerce, the U.S.
Department of Treasury and any other U.S. or non-U.S. agency or authority.
KONICA shall not export or re-export or allow the export or re-export of any
product, technology or information it obtains or learns pursuant to this
Agreement in violation of such law, restriction or regulation, including,
without limitation, export or re-export to any country subject to U.S. trade
embargoes, or any party on the U.S. Export Administration Table of Denial Orders
or the U.S. Department of Treasury List of Specially Designated Nationals or to
any prohibited destination in any of the County Groups specified in the then
current Supplement Number 1 to part 740 of the Commerce Control List specified
in the then current Supplement Number 1 to part 738 of the U.S. Export
Administration Regulations or any successor supplement or regulations. KONICA
shall obtain and bear all expenses relating to any necessary licenses and/or
exemptions with respect to the export or re-export of any Authorized KONICA
Device incorporating any PEERLESS Material to any location in compliance with
all applicable laws and regulations. If KONICA is involved in a transaction that
gives KONICA reason to suspect that any product, technology or information it
obtains or learns pursuant to this Agreement will be exported, re-exported or
diverted in violation of any such laws, restrictions or regulations (including,
without limitation. knowledge of suspect end users, abnormal transaction
circumstances, or any other Bureau of Export Administration "red flag"
indicators), then KONICA will take appropriate steps to terminate such
transaction, notify the correct U.S. agency and give notice to PEERLESS.
16. Government Data Rights
16.1 U.S. Government End Users. The Licensed Products are provided to KONICA
with RESTRICTED RIGHTS with respect to distribution or licensing to the United
States of America, its agencies and/or instrumentalities (the "Government").
Use, duplication or disclosure by the Government is subject to restriction as
set forth in subsections (a) through (d) of the Commercial Computer Software
Restricted Rights clause at FAR 52.22719, and subsection (c)(1)(ii) of the
Technical Data and Computer Software clause at DFAR 252.227-7013, or as set
forth in the particular department or agency regulations or rules which provide
PEERLESS protection equivalent to or greater than the above-cited clause. Under
no circumstances shall PEERLESS be obligated to comply with any Governmental
requirements regarding the submission of or the request for exemption from
submission of cost or pricing data or cost accounting requirements.
16.2 Distribution of Licensed System. When distributing a Licensed System
product to a U.S. Government End User, KONICA shall identify the Revised Object,
Font Programs, Host Software and related documentation as a "commercial item,"
as that term
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is defined at 48 C.F.R. 2.101, and more specifically shall be identified as
"commercial computer software" and "commercial computer software documentation,"
as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and
48 C.F.R. 227.7202-1 through 227.7202-4, KONICA will provide the Revised Object,
Font Programs, Host Software and related documentation to U.S. Government End
Users (a) only as a commercial end item and (b) with only those rights as are
granted to all other End Users pursuant to the terms and conditions herein.
17. Dispute Resolution
17.1 Disputes. Any dispute between KONICA and PEERLESS either involving this
Agreement or a Licensed Software Addendum shall initially be treated as provided
in this Section 17.
17.2 Attempts to Resolve. Upon either Party's written request, each Party will
appoint a designated representative. The representatives shall discuss and
negotiate in good faith to attempt to resolve the dispute without formal
proceedings. The format for the discussion is left to the discretion of the
representatives. The representatives' decisions are not binding on either Party
and the failure of the representatives to reach any decisions shall not be held
against any Party.
17.3 Equitable Relief. It is understood and agreed that one Party's remedies at
law for a breach by the other Party of its obligations under may be inadequate.
Notwithstanding any other provisions of this MTLA, breach of the provisions of
this Agreement by KONICA of the terms and conditions set forth herein will cause
PEERLESS and/or Adobe irreparable damage for which recovery of money damages
would be inadequate, and that PEERLESS and/or Adobe shall therefore be entitled
to obtain equitable relief by a court of law (including without limitation
injunctive relief and specific performance) without a requirement to post a
bond, in addition to all other remedies provided under this Agreement or
available to the Parties at law or otherwise to protect PEERLESS and/or Adobe's
rights under this Agreement in addition to any and all remedies available at
law. In the event KONICA continues to distribute the Licensed Products, the
Licensed Systems, Revised Object, Font Programs, Host Software, or any portion
thereof after its right to do so has terminated or expired, PEERLESS and/or
Adobe shall also be entitled to injunctive relief, including, without
limitation, an order directing that any copies of the Licensed Products,
Licensed Systems, Revised Object, Font Programs, Host Software, or any portion
thereof KONICA attempts to import into any country or territory be seized,
impounded and destroyed by Customs officials in order to prevent such
importation.
18. Miscellaneous
18.1 Notices. All notices or other communications required hereunder shall be in
writing and delivered personally or sent by certified mail, return receipt
requested, by facsimile machine, or by a reputable courier service to the
Parties at the addresses set forth below, or at such other addresses as shall be
designated in writing from time to time by either Party to the other in
accordance with this Paragraph 18.1.
All notices to KONICA shall be sent to:
KONICA Corporation Tel: (81)
No.26-2 Nishishinjuku 1-chome FAX: (81)
Sinjuku-ku Tokyo Japan
Attention:
All notices to PEERLESS shall be sent to:
PEERLESS Systems Corporation Tel:(310) 536-0058
2381 Rosecrans Avenue FAX: (310) 536-0908
El Segundo, CA 90245 FAX: (310) 297-3142
Attention: Director of Business Development
Such notice shall be effective on the sixth business day following deposit
thereof in the mail (via first class air mail), provided that it shall be
effective on the third business day following any such deposit for express
delivery, and shall be effective upon receipt if delivered personally or via
facsimile.
- --------------------------------------------------------------------------------
18.2 Agreement. This Agreement, Attachment # 1 and any Amendments and/or
Licensed Systems Addenda thereto constitute the entire understanding and
agreement between PEERLESS and KONICA with respect to the transactions
contemplated herein and supersede any and all prior or contemporaneous oral or
written communications with respect to the subject matter hereof (other than any
contemporaneous maintenance agreement executed by the Parties), all of which are
merged herein. This Agreement shall not be modified, amended or in any way
altered except by an instrument in writing signed by authorized representatives
of both PEERLESS and KONICA. Except as specifically provided herein, no remedy
available to either Party hereunder or relating hereto shall be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No waiver of any provision of this
Agreement or any rights or obligations of either Party hereunder shall be
effective, except pursuant to a written instrument signed by the Party or
Parties waiving compliance, and any such waiver shall be effective only in the
specific instance and for the specific purpose stated in such writing. This
Agreement shall be binding on the Parties, their subsidiaries, Board of
Directors, officers, employees, subsidiary companies, affiliates, contractors,
successors and assigns.
18.3 Force Majeure. Neither Party shall be responsible for delays nor failures
in performance hereunder to the extent that such Party was hindered in its
performance by any act of God, civil commotion, labor dispute, or any other
occurrence beyond its reasonable control.
18.4 No Joint Venture. Nothing contained herein shall be deemed to create a
joint venture or partnership or agency relationship between PEERLESS and KONICA.
Neither Party shall have the right or authority to, and each Party shall not,
assume or create any obligation or responsibility, express or implied, on behalf
of or in the name of the other Party or bind the other Party in any manner.
Nothing set forth herein shall be deemed to confer upon any person or entity
other than the Parties hereto a right of action either under this Agreement or
in any manner whatsoever.
18.5 Independent Development. Nothing in this Agreement shall preclude KONICA
from independently developing, acquiring or marketing materials which are not
derivative of the Licensed Products, but which contain ideas and concepts
similar to those in the Licensed Products.
18.6 Severability. If any provision hereof is found invalid or unenforceable
pursuant to judicial decree or decision, the remainder of this Agreement shall
remain valid and enforceable according to its terms. Without limiting the
foregoing, it is expressly understood and agreed that each and every provision
of this Agreement which provides for a limitation of liability, disclaimer of
warranties, indemnification of a Party or exclusion of damages or other remedies
is intended by the Parties to be severable and independent of any other
provision and to be enforced as such. Further, it is expressly understood and
agreed that if any remedy hereunder is determined to have failed of its
essential purpose, all limitations of liability and exclusions of damages or
other remedies set forth herein shall remain in effect.
18.7 Controlling Law and Jurisdiction. This Agreement shall be construed and
enforced in accordance with the laws of the United States of America and the
State of California applicable to contracts wholly executed and wholly to be
performed therein. Any action or proceeding brought by KONICA or PEERLESS
against the other arising out of or related to this Agreement shall have as the
court of competent jurisdiction the United States District Court located in the
Central District of California, Southern Division or a state court located in
the County of Orange, State of California, and KONICA hereby submits to the
non-exclusive in personam jurisdiction of such courts for purposes of any such
action or proceeding. Where this Agreement and any Licensed Software Addendum
hereto is silent as to an issue raised by either Party, the controlling law in
resolving that issue is United States law. The Parties agree that the
International Regimes, including but not limited to the United Nations
Convention On Contracts For The International Sale of Goods, and Supernational
Regimes, including but not limited to NAFTA, shall not apply to this Agreement
or the Addenda thereto.
Part18.8 Attorneys' Fees. The prevailing Party in any action or proceeding
between PEERLESS and KONICA arising out of or related to this Agreement shall be
entitled to recover from the other Party all of its costs and expenses
including, without limitation, its reasonable attorneys' fees incurred in
connection with such action, including any appeal of such action.
18.9 Survival. The terms, provisions, representations, and warranties contained
in this Agreement that by their sense or context were meant to survive
termination of this Agreement shall so survive.
//End
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EXHIBIT A
INTELLECTUAL INDEMNIFICATION TERRITORIES OUTSIDE OF THE U.S.A.
Albania Estonia Luxembourg Singapore
Andorra Finland Macedonia Slovak Republic
Argentina France Malaysia Slovenia
Australia Germany Malta South Africa
Austria Greece Mexico South Korea
Belgium Guatemala Monaco Spain
Bolivia Guyana Montenegro Sweden
Bosnia Honduras Netherlands Switzerland
Brazil Hong Kong New Zealand Taiwan
Bulgaria Hungary Norway Thailand
Canada Iceland Panama Turkey
Chile India Paraguay United Kingdom
China Indonesia Peru Uruguay
Columbia Ireland Philippines The Vatican
Costa Rica Israel Poland Venezuela
Croatia Italy Portugal Vietnam
Czech Republic Japan Romania The Countries of the CIS
Denmark Latvia Saudi Arabia
Ecuador Liechtenstein San Marino
El Salvador Lithuania Serbia
ATTACHMENT #1 TO MASTER TECHNOLOGY LICENSE AGREEMENT BETWEEN PEERLESS
SYSTEMS CORPORATION AND KONICA CORPORATION
This Attachment #1 to the Master Technology License Agreement (hereinafter
"Attachment #1") entered into herein by and between KONICA Corporation, a
Japanese corporation, having its principal office at No.26-2 Nishishinjuku
1-chome, Sinjuku-ku Tokyo, Japan ("KONICA") and PEERLESS Systems Corporation, a
Delaware corporation, with offices at 2381 Rosecrans Avenue, El Segundo,
California, 90245, USA ("PEERLESS"). In the context of this Agreement, KONICA
may also refer to a KONICA affiliate or subsidiary that has executed an
Amendment to the MTLA indicating its acceptance of the terms and conditions set
out herein. This Attachment #1 establishes additional terms and conditions which
the Parties have established between themselves regarding the licensing by
PEERLESS to KONICA of PEERLESS Software Developer Kits ("SDK") that contain
Adobe Systems Inc. Source Code.
This Attachment #1 contains terms which impact Adobe's rights or obligations and
any term or condition otherwise than as explicitly stated in this Attachment # 1
or Exhibits thereto, or which differs in any material way with the terms of the
corresponding herein, shall require Adobe's prior written approval to be
enforceable.
1. CONTRACT OBLIGATIONS.
1.1 Third Party Beneficiary. KONICA is hereby put on notice and agrees that
ADOBE SYSTEMS INCORPORATED, a Delaware corporation located at 345 Park Avenue,
San Jose, California 95110-2704 ("Adobe") is a third-party beneficiary to the
Master Technology License Agreement ("MTLA") to the extent that the MTLA and
Attachment # 1 contains provisions which relate to KONICA's use of the Adobe
Information as incorporated in the PEERLESS deliverables licensed and delivered
to KONICA herein. Such provisions are made expressly for the benefit of and are
enforceable by Adobe in addition to by PEERLESS. KONICA shall also ensure that
Adobe is a named third party beneficiary as to any use of the Adobe Information
in any agreement authorizing an OEM Remarketer Customer to distribute Licensed
Systems as set forth in this Agreement.
1.2 Assignment. KONICA's rights and obligations with regard to Adobe
Information and Adobe Trademarks granted hereunder may not be assigned by KONICA
in whole or in part without the prior written approval of PEERLESS. For the
purposes of this Section, a change in the persons or entities who control fifty
percent (50%) or more of the equity securities or voting interest of KONICA
shall be considered an assignment of KONICA's rights and obligations.
1.3 Termination of Rights in Adobe Information. KONICA's rights and licenses to
use the Adobe Information under this MTLA shall terminate effective immediately
in the event of any material breach by KONICA of its obligations under this MTLA
and failure to remedy such breach within thirty (30) days after receiving notice
of said breach from either PEERLESS or Adobe. An uncured material breach by
PEERLESS of its obligations to Adobe would have a material effect on KONICA's
right and licenses in regards to products not previously designated or
authorized under a License System Addendum to this MTLA.
2. LICENSE RESTRICTIONS.
2.1 Revised Object License Restrictions. Commercial distribution or use (other
than for development) of Revised Object shall be limited to versions in ROM
form, or encrypted versions executable from RAM, protected in a manner approved
by Adobe in writing or in accordance with Section 4.4 ("Protection Mechanisms")
below.
2.2 Font Program License Restrictions. KONICA's license under the PEERLESS OEM
Agreement will terminate upon termination of the agreement between Adobe and the
Trademark owner, if any, pertaining to such Font Program, at which time Adobe
shall have the right to substitute a Font Program for an equivalent Typeface.
2.2.1 PostScript 3 Minimum Font Program Requirements. KONICA agree
that all Licensed Systems containing PostScript 3 Software distributed hereunder
shall include at a minimum the Font Programs described below.
2.2.1.1 For a "Roman Version(s)" of a Licensed System, the
Extended Roman Font Program Set identified EXHIBIT B ("Extended Roman Font
Program Set") attached hereto.
2.2.1.2 For a "Japanese Version(s)" of a Licensed System, the
Extended Roman Font Program Set identified in Section 2.2.1.1 above, and the
Font Programs for Japanese Typefaces identified in Exhibit B-1 Section 1 ("Font
Programs for Japanese Typefaces") attached hereto, in the minimum configuration
specified in a Licensed System Addendum.
2.2.1.3 For a "Chinese Version(s)" of a Licensed System,
distributed for use in the People's Republic of China, Taiwan or Hong Kong, the
Extended Roman Font Program Set identified in Section 2.2.1.1 above, and the
Font Programs for
- --------------------------------------------------------------------------------
Chinese Typefaces identified in EXHIBIT B-1 Section 2 ("Font Programs for
Chinese Typefaces") attached hereto, in the minimum configuration specified in a
Licensed System Addendum.
2.2.1.4 For a "Korean Version(s)" of a Licensed System,
distributed for use in Korea, the Extended Roman Font Program Set identified in
Section 2.2.1.1 above, and the Font Programs for Korean Typefaces identified in
EXHIBIT D-1 Section 3 ("Font Programs for Korean Typefaces") attached hereto, in
the minimum configuration specified in a Licensed System Addendum.
2.2.2 Adobe-supplied Wingdings(R) Typeface Requirements. KONICA shall
reproduce, have reproduced and distribute a Font Program for the Wingdings(R)
Typeface supplied by Adobe hereunder (the "Wingdings Font Program") only in the
Adobe Compact Font Format ("CFF") or TrueType Format and either (i) embedded in
ROM or on a hard disk that is bundled with a Licensed System or (ii) as part of
any other Adobe provided host-based component of a Licensed System. In the event
that the Wingdings Font Program is provided to KONICA in CFF, KONICA shall treat
the fact as Adobe Support Information pursuant to Section 4.2 of EXHIBIT A
("Secure Procedures for Handling Adobe Support Information")), and KONICA shall,
not disclose such fact to its distributors, resellers or End Users, provided
however that KONICA may disclose or advertise that the Wingdings Font Program is
in a compressed format, where applicable.
2.2.3 Adobe-supplied Heisei Japanese Typeface Requirements. KONICA
shall include the following notice in documentation and materials accompanying
any product that refers to the Font Programs for Japanese Typefaces in Section
1(b) ("Heisei Japanese Typefaces") of EXHIBIT B-1 ("Non-Roman Font Programs"):
"The Heisei Fonts (list the applicable fonts by name) have
been licensed for use from the Japan Standards Association
Font Design Center. Unauthorized reproduction as a font is
prohibited."
KONICA is not a member of the Japan Standards Association Font Design Center so
Adobe is required to notify the Font Design Center of this license to KONICA
prior to First Commercial Shipment of the Heisei Japanese Typefaces with a
Licensed System. KONICA consents to such notification.
2.3 Adobe Driver Software Restrictions. In connection with the delivery of any
Adobe Driver Software, PEERLESS may supply KONICA with development tools such as
plug-in and localization kits to allow KONICA to make limited modifications
and/or localize the Adobe Driver Software. KONICA agrees that it (a) shall use
such tools solely to localize or customize the Adobe Driver Software for use by
End Users in conjunction with Licensed Systems, (b) shall not change the name of
any Adobe Driver Software file or Adobe Driver Software icon without Adobe's
prior written consent, (c) shall make only such modifications as are permitted
by use of such tools in the normal and intended manner, and (d) shall ensure
that the Adobe Driver Software, and any Derivative Works thereof, are licensed
under a KONICA End User Agreement containing the minimum terms described in
ANNEX 1 to this Exhibit hereto. "Adobe Driver Software" means driver software
and accompanying utility files and installation tools, all in object code form,
which enable application programs to communicate with printers containing
PostScript software from Adobe, including any enhancements, modifications or
localizations provided by Adobe and any localizations or modifications made by
KONICA, through its use of the applicable Adobe Development Tools (subject to
KONICA's ownership of such modifications as set forth in Section 3.1 ("License
to PEERLESS Modifications") of the Agreement).
2.4 End User Documentation Restrictions. Subject to the modifications expressly
allowed herein, KONICA agrees to distribute the End User Documentation in its
entirety as provided to KONICA by PEERLESS with the applicable Host Software.
KONICA agrees that it will not modify or delete any copyright notices or other
proprietary notices included in the End User Documentation as provided to KONICA
by PEERLESS. Except for the specific licenses granted in this PEERLESS OEM
Agreement, KONICA shall have the same rights and obligations hereunder with
respect to End User Documentation as those for Host Software in object code
form.
2.5 PPD File Restrictions. KONICA agrees to bundle the corresponding PPD File
with each copy of the Revised Object it distributes hereunder.
2.6 PostScript Language Specification Restrictions. KONICA shall not make any
PostScript Language Specification available for general distribution or resale
through the retail trade, either through KONICA or KONICA's publisher. KONICA
agrees that no right is granted herein to reproduce Addison-Wesley's foreign
language versions of the PostScript Language Specification. KONICA's right to
sublicense its customers (excluding End Users) shall be solely to reproduce, in
whole or in part, and distribute
- --------------------------------------------------------------------------------
the PostScript Language Specification in accordance with the same terms and
conditions imposed on KONICA in this Section. Such customers shall not have the
right to modify the PostScript Language Specification received from KONICA.
2.7 Limited Functional Scope of License. KONICA is not permitted to grant an
End User the right to use the Revised Object (a) on more than one CPU, (b) to
control the output from output devices other than Designated Output Devices, or
(c) to generate output for more than one Designated Output Device at a time,
without PEERLESS's prior written approval.
2.8 Changes to Adobe Software. In view of the desire of PEERLESS, KONICA and
Adobe to establish and maintain an industry standard PostScript interpreter,
KONICA shall not make, without the express written permission of PEERLESS, any
changes or additions to, enhancements in, or deletions from, the Adobe Software,
if such changes or enhancements would in any way change the PostScript language
imaging model, syntax, semantics, or functionality of the PostScript language.
3. LICENSES GRANTED BY KONICA.
3.1 KONICA Modifications. For any modifications made by KONICA to the Adobe
Information which PEERLESS then supplies to Adobe in source code form and for
any localizations created by KONICA pursuant to the licenses hereunder, KONICA
shall be deemed to have granted to Adobe a perpetual, worldwide, royalty-free,
fully paid-up license to use, modify, reproduce and distribute such source code,
and any object code version thereof, and any localizations, and the right to
sublicense all such licensed rights through multiple tiers of distribution.
Subject to any limitations or prohibitions in Adobe's contracts with its third
party vendors, PEERLESS shall own all modifications (including localizations)
made by KONICA pursuant to the licenses hereunder to the Adobe Software, Other
Adobe Software and Host Software, provided that any such modifications or
localizations shall be deemed to be Derivative Works based upon the underlying
Adobe Information and shall be subject to all provisions of this MTLA,
Attachment # 1 or Licensed Software Addendum applicable to such underlying Adobe
Information. Except as explicitly stated herein, Adobe shall own any other
modifications to the Adobe Information.
3.2 PPD File. KONICA shall be responsible for creating and delivering to
PEERLESS, which in turn shall be delivered to Adobe, the PPD File for each
Licensed System prior to PEERLESS's and/or Adobe's certification or testing of
the applicable Revised Object pursuant to this Agreement, and providing any
updated version of a PPD File in a timely manner following the availability of
any updated version except those updates solely involving modifications for
localization. KONICA shall be deemed to have granted to Adobe a perpetual,
worldwide, royalty-free, fully paid-up license, and the right to sublicense all
such licensed rights through multiple tiers of distribution to use, reproduce,
modify and distribute any PPD Files, and any updates thereto, which KONICA
creates for each Licensed System.
4. PROTECTION OF PROPRIETARY INFORMATION.
4.1 Adobe Information and Adobe Support Information. Adobe and its suppliers
are the sole and exclusive owners of all rights, title and interest, including
all trademarks, copyrights, patents, trade names, trade secrets, and other
intellectual property rights to the Adobe Information. Except for the rights
expressly enumerated herein, KONICA is not granted any rights to patents,
copyrights, trade secrets, trade names, trademarks (whether or not registered),
or any other rights, franchises or licenses with respect to the Adobe
Information, and KONICA agrees that it will not exceed the scope of the licenses
granted herein. KONICA agrees to protect the Adobe Support Information in
accordance with EXHIBIT A ("Secure Procedures for Handling Adobe Support
Information") the terms of which are hereby incorporated by reference herein. In
addition, KONICA specifically acknowledges and agrees that other than as
expressly set forth herein, KONICA shall not modify the Adobe Information, and
shall in no instance attempt to modify Adobe Information provided solely in
object code form. KONICA agrees that it will not attempt to alter, disassemble,
decrypt, reverse engineer or decompile the Adobe Information that is provided
solely in object code form. A failure by KONICA to protect Adobe Support
Information in accordance with the provisions of Section 4 ("Protection of
Proprietary Information") herein shall constitute a material breach by KONICA
and KONICA shall be liable to Adobe and PEERLESS for any damages or losses
arising out of such non-compliance.
4.2 Adobe Trademarks. Any use of the Trademarks by KONICA or KONICA's
Remarketer Customer must be pursuant to terms substantially equivalent to those
set forth in EXHIBIT C ("Use of Adobe Trademarks") and Section 2.2.7 ("Trademark
License") and this Paragraph 4.2. The sublicense rights to KONICA shall include
the right to use the Trademarks on Licensed Systems and in KONICA's advertising
and printed materials for the Licensed Systems, including the right to
sublicense those same rights to OEM's Remarketer Customers, for distribution in
all countries (except India, Pakistan, Singapore and the People's Republic of
China or in any other jurisdiction where trademark sublicensing is legally
prohibited or not recognized) pursuant to terms substantially equivalent to
those set forth in EXHIBIT C ("Use of Adobe Trademarks"). If necessary, Adobe
will grant directly to KONICA or KONICA's Remarketer Customers a nonexclusive,
royalty-free license to use the Trademarks on Licensed Systems, and in
advertising and printed materials for Licensed Systems, for distribution in
India, Pakistan, Singapore and the
- --------------------------------------------------------------------------------
People's Republic of China, or in any other jurisdiction where trademark
sublicensing is legally prohibited or not recognized, under a written agreement
between Adobe and KONICA or KONICA's Remarketer Customer.
4.3 LZW Patent Notice. KONICA shall include and shall require its OEM
Remarketer Customer to include the following notice that the Licensed System
includes an implementation of LZW licensed under U.S. Patent 4,558,302: "This
product contains an implementation of LZW licensed under U.S. Patent 4,558,302."
This notice must be displayed on KONICA's or OEM Remarketer Customer's product
packaging, End User Agreement, or Licensed System documentation in a location
reasonably visible to the KONICA and End Users.
4.4 Protection Mechanisms. KONICA shall employ copy protection, serialization,
encryption or any other protection mechanism as may be specified in the
applicable Licensed System Addendum to restrict or monitor unauthorized use of
Adobe Software, Other Adobe Software and Font Programs licensed hereunder
("Protected Software"). The protection mechanism for Font Programs for Japanese,
Korean and Chinese Typefaces will normally be provided by PEERLESS from Adobe
and may include encryption as well as Copy Protection. "Copy Protection" shall
mean a mechanism that ensures that the applicable Licensed System will implement
a unique read-only PostScript Language License ID parameter to which each font
configuration will be keyed. If the protection mechanism is supplied by PEERLESS
as delivered from Adobe or its supplier, KONICA will use all reasonable means to
ensure that such protection mechanism is not removed, subverted or disabled. In
the event that it comes to Adobe's attention that any protection mechanism
distributed by KONICA hereunder has been violated and Adobe reasonably believes
that there is unlicensed use of the Protected Software caused by such violation,
KONICA will supply a new protection mechanism within thirty (30) days of
notification by Adobe. If Adobe can demonstrate that such corrective action is
unsuccessful in resolving the problem, KONICA will take other action as required
by Adobe, including stopping shipment of the Protected Software, until
corrective measures are successfully implemented. If the KONICA's Licensed
System is located in a network environment with Protected Software located on a
server, KONICA shall employ a protection mechanism which permits End Users
access to Protected Software only if such use is permitted in the license
purchased by the End User from KONICA.
4.5 End User License. KONICA will take all steps necessary to protect Adobe's
proprietary rights in the Adobe information and to ensure that each copy of the
Revised Object, Font Programs and Host Software distributed by KONICA to an End
User, whether directly or through KONICA's usual distribution channels, will be
accompanied by a localized copy of KONICA's or OEM Remarketer Customer's
standard software license agreement applicable to such software (the "End User
Agreement"). Such End User Agreement will include terms and conditions
substantially equivalent to those set forth in ANNEX 1 ("Minimum Terms of End
User Agreements") to this Attachment # 1 to this MTLA. The End User Agreement
may be (a) a written agreement signed by the End User, or (b) a written
agreement in the package containing the Revised Object, Font Programs and Host
Software, or the user documentation for the Revised Object, Font Programs and
Host Software, that is fully visible to the End User and that the End User
accepts by opening the package. If PEERLESS in writing permits (based on Adobe's
written permission to PEERLESS) KONICA, either directly or through its
Remarketer Customer, to distribute Host Software in electronic form, KONICA
shall ensure that upon the initial use of the Host Software, the End User is
presented with a copy of the End User Agreement and is required to
electronically accept the terms of the End User Agreement prior to accessing use
of the functions of the Host Software. If KONICA is supplied Adobe Information
by PEERLESS for distribution to End Users which is accompanied by an
Adobe-supplied End User license, KONICA agrees to retain and to require its OEM
Remarketer Customer to retain the End User license with the applicable Adobe
Information distributed hereunder. If any such Adobe Information does not
already include an End User license, KONICA or OEM Remarketer Customer shall
include its own End User Agreement that complies with the requirements set forth
in this Section with any such distribution. KONICA shall ensure that each
component of Adobe Information that it or its OEM Remarketer Customer licenses
to an End User as part of a compilation (for example, a CD-ROM software
compilation) contains either an Adobe-Supplied End User License if applicable,
or is protected under a KONICA or OEM Remarketer Customer-Supplied End User
Agreement accompanying the compilation in accordance with the terms of this
Section. KONICA shall ensure that such End User Agreement contains a provision
stating that in case of conflict the terms of any individual End User license
shall prevail over the terms of the End User Agreement.
4.6 Foreign Government Agreements. KONICA will take all reasonable steps in
making proposals and agreements with foreign governments other than the United
States which involve the Revised Object, Font Programs, Host Software and
related documentation to ensure that Adobe's proprietary rights in such Revised
Object, Font Programs, Host Software and related documentation receive the
maximum protection available from such foreign government for commercial
computer software and related documentation developed at private expense.
4.7 Patent Protection.
4.7.1 Adobe Patents. As used herein, "Adobe Patent Right" means any
right arising under any United States or foreign patent now owned by, or later
issued or assigned to Adobe, applicable to the Adobe Information. Adobe
covenants that, to the extent that KONICA, KONICA's End Users, and KONICA's
other direct and indirect customers of Revised Object (collectively
- --------------------------------------------------------------------------------
"Customers") exercise the rights expressly granted to KONICA under this PEERLESS
OEM Agreement, or which KONICA is authorized to grant to Customers herein, Adobe
will not (a) assert any Adobe Patent Right against KONICA, (b) assert any Adobe
Patent Right against Customers, or (c) require any additional fee or royalty
from KONICA or Customers based upon any Adobe Patent Right. Except to the extent
of such covenant not to assert any Adobe Patent Right, nothing contained herein
shall be construed as conferring, by implication, estoppel, or otherwise, any
license or right with respect to any Adobe Patent Right.
4.7.2 KONICA Patents. As used herein, "KONICA Patent Right" means any
patent right arising under any United States or foreign patent issued or
assigned to KONICA and having a filing date after the inventor had access to the
Adobe Support Information in which (a) an inventor is (i) an employee of KONICA
who has had access to the Adobe Support Information or (ii) an independent
contractor who has had access to the Adobe Support Information and has assigned
patent rights in the claimed invention to KONICA and (b) the techniques,
algorithms or processes contained in the Adobe Support Information, or
adaptations of such techniques, algorithms or processes are an essential element
of the patented invention. Should any disputes arise as to whether any patent
falls within the above definition of KONICA Patent Right, then KONICA and Adobe
agree to submit to mutually acceptable alternative dispute resolution. KONICA
Patent Right shall not include any patent applications filed three (3) years
after termination or expiration of this Agreement. KONICA covenants that it will
not (a) assert any KONICA Patent Right against Adobe or against its sublicensees
or customers for products containing Adobe Support Information of a similar
nature to that distributed by KONICA, or (b) require any fee or royalty from
Adobe or such sublicensees or customers for the sale of such products based upon
KONICA Patent Rights. Except to the extent expressed above, nothing contained
herein shall be construed as conferring, by implication, estoppel, or otherwise
any license or right with respect to any KONICA Patent Right.
4.8 Survival. KONICA's obligation to protect Adobe's proprietary rights as set
forth in this Section 4 ("Protection of Proprietary Information") shall survive
any termination of this MTLA.
BOTH PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, ATTACHMENT A
AND EXHIBITS THERETO, UNDERSTAND IT, AND AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS CONTAINED HEREIN.
KONICA CORPORATION PEERLESS SYSTEMS CORPORATION
By: By:
/s/ Masatoshi Matsuzaki /s/ Cary A. Kimmel
- ----------------------------------- -----------------------------------
(Authorized Signature) Authorized Signature)
Name: Masatoshi Matsuzaki Name: Cary A. Kimmel
Title: General Manager Title: Director of Business Development
Date: January 16, 2000 Date: January 16, 2000
- --------------------------------------------------------------------------------
ANNEX 1
MINIMUM TERMS OF END USER AGREEMENTS
This package may contain the following materials provided by Adobe Systems
Incorporated ("Adobe") and its suppliers to Licensor: software included as part
of the printing system, including PostScript(R) software and other Adobe
software ("Printing Software"), the digitally-encoded machine-readable outline
data encoded in the special format and in the encrypted form ("Font Programs"),
other software which runs on a computer system for use in conjunction with the
Printing Software ("Host Software"), and related explanatory written materials
("Documentation"). The term "Software" shall be used to describe Printing
Software, Font Programs and/or Host Software and also include any upgrades,
modified versions, additions, and copies of the Software.
The Software is being licensed to Licensee under the terms of this
Agreement. If Licensee declines to accept such terms, it is free to return the
Software for a full refund of the license fee paid by Licensee for the Software,
if any, provided Licensee does so before accepting the Software (in the manner
provided by Licensor).
Licensor grants to Licensee a non-exclusive sublicense to use the Software
and Documentation, provided that Licensee agrees to the following:
1. PRINTING SOFTWARE. Licensee may use the Printing Software (in object
code form only) and accompanying Font Programs (i) on a single output device
where the device contains an embedded controller; OR (ii) for Printing Software
which resides on a host computer, on up to the number of central processing
units ("CPUs") authorized in a Licensed System Addendum for imaging to the
licensed output device(s), solely for Licensee's own internal business purposes.
2. ROMAN FONT PROGRAMS. In addition to the license for Font Programs set
forth in Section 1 ("Printing Software") above, Licensee may use Roman Font
Programs and Adobe Type Manager(R) to reproduce weights, styles, and versions of
letters, numerals, characters and symbols ("Typefaces") on up to five (5)
computers for use with the Printing Software. Licensee may take a copy of a
Roman Font Program Licensee has used for a particular file to a commercial
printer or other service bureau, and such service bureau may use the Roman Font
Program to process the file, provided such service bureau has informed Licensee
that it has purchased or been granted a license to use that particular Roman
Font Program.
3. HOST SOFTWARE. Licensee may install the Host Software in a single
location on a hard disk or other storage device on one computer or such greater
number of computers authorized in a Licensed System Addendum ("Permitted Number
of Computers"), and, provided that the Host Software is configured for network
use, install and use the Host Software on a single file server for use on a
single local area network for either (but not both) of the following purposes:
(i) permanent installation onto a hard disk or other storage device on up to the
Permitted Number of Computers; or (ii) use of the Host Software over such
network, provided the number of different computers on which the Host Software
is used does not exceed the Permitted Number of Computers. Licensee may make one
backup copy of the Host Software, provided Licensee's backup copy is not
installed or used on any computer. The primary user of each computer on which
the Host Software is installed or used may also install the Host Software on one
home or portable computer. However, the Host Software may not be used on the
secondary computer by another person at the same time the Host Software on the
primary computer is being used. Notwithstanding the above restrictions, Licensee
may install the Adobe Driver Software on any number of computers solely for use
with one or more printing systems running the Printing Software.
4. Licensee may assign its rights under this Agreement to an assignee of
all of Licensee's right and interest to such Software and Documentation
("Assignee") provided Licensee transfers to Assignee all copies of such Software
and Documentation Assignee agrees to be bound by all of the terms and conditions
of this Agreement.
5. The Software and Documentation are owned by Licensor and its
suppliers, and its structure, organization and code are the valuable trade
secrets of Licensor and its suppliers. The Software and Documentation are also
protected by United States Copyright Law and International Treaty provisions.
Licensee must treat the Software and Documentation just as Licensee would any
other copyrighted material, such as a book. Licensee may not copy the Software
or Documentation, except as set forth herein. Any copies of the Software that
Licensee is permitted to make pursuant to this Agreement must contain the same
copyright and other proprietary notices that appear on or in the Software.
Licensee agrees not to modify, adapt or translate the Software and
Documentation.
6. Licensee agrees that it will not attempt to alter, disassemble,
decrypt, reverse engineer or decompile the Software, provided however, that to
the extent local law grants Licensee the right to decompile the Software in
order to obtain
- --------------------------------------------------------------------------------
information necessary to render the Software interoperable with other software,
Licensee shall first request prior written approval from Licensor who with the
concurrence of the supplier of the Software may impose such reasonable
conditions, including, but not limited to, a reasonable fee, on such use to
ensure that owners' proprietary rights in the Software are protected.
7. Title to and ownership of the Software and Documentation and any
reproductions thereof shall remain with Licensor and its suppliers.
8. Trademarks shall be used in accordance with accepted trademark
practice, including identification of the trademark owner's name. Trademarks can
only be used to identify printed output produced by the Software. Such use of
any trademark does not give Licensee any rights of ownership in that trademark.
The Trademarks are the property of the trademark owners identified by Licensor.
9. Except as stated above, this Agreement does not grant Licensee any
intellectual property rights in the Software.
10. If this package contains, or, in connection with the acquisition of
Host Software contained in this package Licensee receives, two or more operating
environment versions of the Host Software (e.g., Macintosh(R) and Windows(R)),
two or more language translation versions of the Host Software, the same Host
Software on two or more media (e.g., diskettes and a CD-ROM), and/or Licensee
otherwise receives two or more copies of the Host Software, Licensee's use of
such versions shall not exceed the aggregate uses permitted herein for a single
version of the Host Software.
11. Licensee may not rent, lease, sublicense, lend or transfer versions or
copies of the Software Licensee does not use, or Software contained on any
unused media, except as part of the permanent transfer of all Software and
Documentation as described above. If Licensee acquires a Software upgrade,
Licensee no longer has a license to use the previous version and all copies
thereof, including copies installed on computers, must be destroyed.
12. NEITHER LICENSOR NOR ANY OF ITS REPRESENTATIVES MAKES OR PASSES ON TO
LICENSEE OR ANY THIRD PARTY ANY WARRANTY OR REPRESENTATION ON BEHALF OF
LICENSOR'S THIRD PARTY SUPPLIERS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
13. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR
ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR
LOST SAVINGS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Some states or jurisdictions do
not allow the exclusion or limitation of incidental, consequential or special
damages, so the above limitations may not apply to Licensee.
14. This Agreement will be governed by the laws in force in the State of
California excluding the application of its conflicts of law rules. This
Agreement will not be governed by the United Nations Convention on Contracts for
the International Sale of Goods, the application of which is expressly excluded.
If any part of this Agreement is found void and unenforceable, it will not
affect the validity of the balance of the Agreement, which shall remain valid
and enforceable according to its terms. Licensee agrees that the Software will
not be shipped, transferred or exported into any country or used in any manner
prohibited by the United States Export Administration Act or any other export
laws, restrictions or regulations and Licensee agrees that it will not export or
re-export the Software or products produced therefrom in any form without the
appropriate United States and foreign governmental licenses. This Agreement
shall automatically terminate upon failure by Licensee to comply with its terms.
15. NOTICE TO GOVERNMENT END USERS: The Software is a "commercial item," as
that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer
software" and "commercial computer software documentation," as such terms are
used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the
Software with only those rights set forth herein.
16. Licensee is hereby notified that Adobe Systems Incorporated, a Delaware
corporation located at 345 Park Avenue, San Jose, CA 95110-2704 ("Adobe") is a
third-party beneficiary to this Agreement to the extent that this Agreement
contains provisions which relate to Licensee's use of the Software, Font
Programs, Typefaces and the trademarks licensed hereby. Such provisions are made
expressly for the benefit of Adobe and are enforceable by Adobe in addition to
Licensor.
- --------------------------------------------------------------------------------
Adobe and PostScript are registered trademarks of Adobe Systems
Incorporated. Macintosh is a registered trademark of Apple Computer,
Inc. Windows is a registered trademark of Microsoft Corporation.
- --------------------------------------------------------------------------------
EXHIBIT A TO ATTACHMENT #1
SECURE PROCEDURES FOR HANDLING ADOBE SUPPORT INFORMATION
1. DEFINITIONS. For the purposes of this Exhibit, the following definitions
shall apply.
1.1 "Adobe Support Information Recipient" means KONICA in those instances of
KONICA's receipt, use and license of the Adobe Support Information.
1.2 "Licensed Product" means (i) PEERLESS SDK or PEERLESS Revised Object
deliverable as applied to PEERLESS, and (ii) Licensed System as applied to
KONICA.
2. AUTHORIZED EMPLOYEES AND CONTRACTORS. KONICA agrees that it will not disclose
all or any portion of the Adobe Support Information to third parties, with the
exception of authorized employees ("Authorized Employees") and authorized
contractors ("Authorized Contractors") (subject to KONICA having obtained
authorization for use of such contractors in accordance with Section 3 ("Prior
Approval of Contractors") below) who (i) require access thereto for a purpose
authorized by this Agreement, (ii) have signed an employee or contractor
agreement in which such employee or contractor agrees to protect third party
confidential information and (iii) have 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 the following:
"Recipient has previously signed an agreement with Adobe Support
Information Recipient pursuant to which Recipient has agreed to
maintain the confidentiality of confidential information of Adobe
Support Information Recipient and its suppliers (the `Confidential
Information') and to use the Confidential Information solely for Adobe
Support Information Recipient's benefit. The purpose of this notice is
to apprise Recipient that Recipient will be receiving certain
proprietary information of Adobe, including internal source code,
interface specifications and related documentation for the PostScript
software and related Adobe information, all of which is of a
confidential nature and which contains valuable trade secrets,
know-how, and proprietary information of Adobe (the `Adobe Support
Information') and which constitutes Confidential Information under
Recipient's agreement with Adobe Support Information Recipient.
This is to inform Recipient that the Adobe Support Information cannot
be used for any purpose except for the specific purposes which Adobe
Support Information Recipient or Adobe authorize in writing and that
Recipient is not authorized to disclose the Adobe Support Information
to any person at any time except to employees of Adobe and to those
Authorized Employees and Authorized Contractors which Adobe Support
Information Recipient informs Recipient are authorized to receive such
Adobe Support Information.
All materials including, without limitation, programs, recorded
information, documents, drawings, models, apparatus, sketches,
designs, and lists furnished to Recipient by Adobe Support Information
Recipient or Adobe which are designated in writing to be the property
of Adobe remain the property of Adobe and must be returned to Adobe
promptly at its request, together with any copies or modifications
thereof."
KONICA agrees that any breach by any Authorized Employees and Authorized
Contractors of their obligations under such confidentiality agreements shall
also constitute a breach by KONICA hereunder.
3. PRIOR APPROVAL OF CONTRACTORS. Notwithstanding the provisions in
this Exhibit permitting Authorized Contractors to have access to Adobe Support
Information, KONICA may not permit a contractor to come into contact with Adobe
Support Information, or engage in the development of Licensed Products hereunder
unless KONICA has first obtained such authorization in writing from Adobe.
Adobe, in its sole discretion, may withhold such approval in the event that a
contractor (or contractor's employer) to whom KONICA intends to disclose Adobe
Support Information is engaged in Clone Product development, either for its own
benefit or for the benefit of a third party, or if Adobe believes that the
contractor may be engaged in similar product development, and KONICA cannot
assure Adobe to its satisfaction that contractor, while engaged in supporting
such development activities, will be able to refrain from commingling or sharing
any portion of the Adobe Support Information with any such Clone Product
development.
- --------------------------------------------------------------------------------
4. ADOBE SUPPORT INFORMATION.
4.1 KONICA shall ensure that all Adobe Support Information received from Adobe,
and copies made thereof, will be properly marked or otherwise appropriately
identified as Adobe Support Information before being made available to
Authorized Employees and Authorized Contractors hereunder.
4.2 KONICA shall ensure that the same degree of care is used to prevent the
unauthorized use, dissemination, or publication of the Adobe Support Information
as KONICA uses to protect its own confidential information of a like nature, but
in no event shall the safeguards for protecting such Adobe Support Information
be less than a reasonably prudent business would exercise under similar
circumstances. KONICA shall take prompt and appropriate action to prevent
unauthorized use or disclosure of Adobe Support Information.
4.3 KONICA shall instruct Authorized Employees and Authorized Contractors not to
copy Adobe Support Information on their own, and not to disclose Adobe Support
Information to anyone not authorized to receive it.
4.4 Adobe Support Information shall be used and stored on a secure computer
system (as described in Section 4.5 below) and in a secured area accessible only
to Authorized Employees and Authorized Contractors and to other essential
maintenance and housekeeping personnel at a Development Site(s). KONICA shall
identify all Development Site(s) where Adobe Support Information is then
currently used and stored upon request by Adobe or PEERLESS (if applicable).
4.5 "Secure Computer System" refers to a computer system used by KONICA to
modify, compile, and assemble source code and link object code in conjunction
with carrying out the development work contemplated herein and meeting the
minimum requirements set forth below:
(i) Adobe Support Information shall be installed and used only on a secure
computer system. Access to the secure computer system will be controlled by
password identification. KONICA will adopt a system security policy which
implements a password protection scheme and other protection as needed to ensure
that access is limited to Authorized Employees and Authorized Contractors and
KONICA-designated security administrator responsible for systems maintenance.
(ii) The secure computer system shall not be remotely accessible (e.g. by
telecommunications) and firewalls shall be constructed to prevent access or
download capability to a non-secured location.
(iii) KONICA shall ensure that any Adobe Support Information that is being made
available to other Development Site(s) is adequately protected against access or
use while in transit to a secured area or secure computer system at another
Development Site.
5. TRADE SECRETS. Adobe Support Information in object code, source code and hard
copy printout form, including the techniques, algorithms, and processes
contained in the Adobe Support 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 will be used by KONICA only in
accordance with the terms of this Agreement. In addition to the specific
measures required hereunder, KONICA will take all measures reasonably required
to protect the proprietary rights of Adobe and its suppliers in the Adobe
Support Information. If any Adobe Support Information in KONICA's possession is
lost or stolen, KONICA (and PEERLESS) shall take all reasonable measures to
recover such items, including but not limited to seeking timely injunctive
relief in an applicable court of law to protect Adobe's proprietary right in
such Adobe Support Information. KONICA agrees that it will not attempt to
reverse engineer any portion of the Adobe Support Information that is provided
to KONICA solely in object code form.
6. NO COMMINGLING OF TECHNOLOGY. The terms of this Section do not preclude
KONICA from developing a Clone Product; however, if KONICA engages in such Clone
Product development during the term of this Agreement, it shall ensure that
there is no use of the Adobe Information in the design and development of Clone
Products. In furtherance of such requirement, KONICA shall ensure there is no
sharing with such Clone Product development any of the following: (i) design
documents or schematics supplied by Adobe; (ii) Adobe Support Information or
other information based upon or derived from the Adobe Support Information;
(iii) any facilities (including, but not limited to, computer systems and
network storage devices); or (iv) personnel with access to any of (i)-(iii)
above. KONICA shall ensure that all Authorized Employees and Authorized
Contractors who have had previous access to Adobe Support Information will be
precluded for a period of twelve (12) months after their latest access to such
Adobe Support Information from being employed in any Clone Product development
(either internally or externally) by or for KONICA. "Employment in any Clone
Product development" shall be defined as having direct access to, or producing
any specifications, documentation, or source code for, components of a Clone
Product. KONICA shall further ensure
- --------------------------------------------------------------------------------
that each such employee or contractor shall, concurrent with the commencement of
work on such Clone Product development within KONICA, sign a written affirmation
to KONICA which states that each such employee or contractor (a) has neither
retained nor had access for a minimum period of twelve (12) months to any Adobe
Support Information, and (b) will not utilize, or facilitate use of, any Adobe
Support Information in such Clone Product development. This prohibition relating
to Clone Product development shall apply equally to raster-output devices, to
display or screen output devices, or to any other peripheral devices.
Notwithstanding the foregoing, any Authorized Employee or Authorized Contractor
who has only received access to (i) documentation (but not including the Adobe
Certification Test Suite(s) or any source code documentation) or (ii) object
code (but no source code) contained in the Adobe Support Information shall be
exempted from such requirement.
7. CERTIFICATION. At Adobe's request KONICA will provide Adobe with written
certification by an officer of KONICA of KONICA's compliance with its
obligations under Section 2 ("Authorized Employees and Contractors") and Section
6 ("No Commingling of Technology") above, and the MTLA herein as applicable.
8. PROPRIETARY RIGHTS AUDIT. During the term of the Agreement and for a period
of eighteen (18) months thereafter, an independent auditor selected by Adobe
shall have access to such portion of KONICA's records end premises to allow
Adobe to determine whether KONICA is substantially in compliance with this
Exhibit and Section 6 ("Proprietary Rights and Legends") of the Agreement or
Section 4 ("Protection of Proprietary Information") as applicable. In no event
shall audits be made hereunder more frequently than once per year. Such access
shall be (a) during KONICA's regular business hours, (b) arranged so that, to
the extent possible, KONICA's regular business activities are minimally
disrupted and (c) under the terms of an appropriate confidentiality agreement
executed by the individual(s) conducting such audit. If Adobe determines, after
conducting such audit, that KONICA is not substantially in compliance with its
obligations to protect Adobe's proprietary rights, KONICA shall pay the costs of
such audit. Otherwise, Adobe shall pay the costs of such audit. Such payment
will not preclude Adobe from exercising any right that it may have under the
Agreement. KONICA shall immediately correct any deficiencies discovered in the
course of the audit.
- --------------------------------------------------------------------------------
EXHIBIT B TO ATTACHMENT #1
EXTENDED ROMAN FONT PROGRAM SET
Adobe will provide the graphic characters specified in ISO 8859-1:
1987, Latin alphabet No. 1 and ISO 8859-2: 1987, Latin alphabet No. 2, and
symbol characters, as applicable, for the following Roman Font Programs:
Identifying
Trademark Typeface Trademark Owner
--------- -------- ---------------
1. Albertus Monotype Corporation
2. Albertus Italic Monotype Corporation
3. Albertus Light Monotype Corporation
4. AntiqueOlive Roman M. Olive
5. AntiqueOlive Italic M. Olive
6. AntiqueOlive Bold M. Olive
7. AntiqueOlive Compact M. Olive
8. Apple Chancery Apple Computer, Inc.
9. ITC AvantGarde Gothic Book International Typeface Corporation
10. ITC AvantGarde Gothic Book Oblique International Typeface Corporation
11. ITC AvantGarde Gothic Demi International Typeface Corporation
12. ITC AvantGarde Gothic Demi Oblique International Typeface Corporation
13. Bodoni (Public Domain)
14. Bodoni Italic (Public Domain)
15. Bodoni Bold (Public Domain)
16. Bodoni Bold Italic (Public Domain)
17. Bodoni Poster (Public Domain)
18. Bodoni Poster Compressed (Public Domain)
19. ITC Bookman Light International Typeface Corporation
20. ITC Bookman Light Italic International Typeface Corporation
21. ITC Bookman Demi International Typeface Corporation
22. ITC Bookman Demi Italic International Typeface Corporation
23. Carta Adobe Systems Incorporated
24. Chicago Apple Computer, Inc.
25. Clarendon Linotype-Hell AG and/or its subsidiaries
26. Clarendon Light Linotype-Hell AG and/or its subsidiaries
27. Clarendon Bold Linotype-Hell AG and/or its subsidiaries
28. CooperBlack (Public Domain)
29. CooperBlack Italic (Public Domain)
30. Copperplate Gothic 32BC (Public Domain)
31. Copperplate Gothic 33BC (Public Domain)
32. Coronet Ludlow Type Foundry
33. Courier (Public Domain)
34. Courier Oblique (Public Domain)
35. Courier Bold (Public Domain)
36. Courier Bold Oblique (Public Domain)
37. GillSans Monotype Corporation
38. GillSans Italic Monotype Corporation
39. GillSans Bold Monotype Corporation
40. GillSans Bold Italic Monotype Corporation
41. GillSans Condensed Monotype Corporation
42. GillSans Condensed Bold Monotype Corporation
43. GillSans Light Monotype Corporation
44. GillSans Light Italic Monotype Corporation
45. GillSans Extra Bold Monotype Corporation
46. Eurostile Nebiolo
47. Eurostile Bold Nebiolo
- --------------------------------------------------------------------------------
48. Eurostile Extended Two Nebiolo
49. Eurostile Bold Extended Two Nebiolo
50. Geneva Apple Computer, Inc.
51. Goudy Oldstyle (Public Domain)
52. Goudy Oldstyle Italic (Public Domain)
53. Goudy Bold (Public Domain)
54. Goudy Bold Italic (Public Domain)
55. Goudy Extra Bold (Public Domain)
56. Helvetica Linotype-Hell AG and/or its subsidiaries
57. Helvetica Oblique Linotype-Hell AG and/or its subsidiaries
58. Helvetica Bold Linotype-Hell AG and/or its subsidiaries
59. Helvetica Bold Oblique Linotype-Hell AG and/or its subsidiaries
60. Helvetica Condensed Linotype-Hell AG and/or its subsidiaries
61. Helvetica Condensed Oblique Linotype-Hell AG and/or its subsidiaries
62. Helvetica Condensed Bold Linotype-Hell AG and/or its subsidiaries
63. Helvetica Condensed Bold Oblique Linotype-Hell AG and/or its subsidiaries
64. Helvetica Narrow Linotype-Hell AG and/or its subsidiaries
65. Helvetica Narrow Oblique Linotype-Hell AG and/or its subsidiaries
66. Helvetica Narrow Bold Linotype-Hell AG and/or its subsidiaries
67. Helvetica Narrow Bold Oblique Linotype-Hell AG and/or its subsidiaries
68. Hoefler Text Apple Computer, Inc.
69. Hoefler Text Italic Apple Computer, Inc.
70. Hoefler Text Black Apple Computer, Inc.
71. Hoefler Text Black Italic Apple Computer, Inc.
72. Hoefler Text Ornaments Apple Computer, Inc.
73. Joanna Monotype Corporation
74. Joanna Italic Monotype Corporation
75. Joanna Bold Monotype Corporation
76. Joanna Bold Italic Monotype Corporation
77. LetterGothic (Public Domain)
78. LetterGothic Slanted (Public Domain)
79. LetterGothic Bold (Public Domain)
80. LetterGothic Bold Slanted (Public Domain)
81. ITC Lubalin Graph Book International Typeface Corporation
82. ITC Lubalin Graph Book Oblique International Typeface Corporation
83. ITC Lubalin Graph Demi International Typeface Corporation
84. ITC Lubalin Graph Demi Oblique International Typeface Corporation
85. Marigold AlphaOmega Typography
86. Monaco Apple Computer, Inc.
87. ITC Mona Lisa Recut International Typeface Corporation
88. New Century Schoolbook Roman Linotype-Hell AG and/or its subsidiaries
89. New Century Schoolbook Italic Linotype-Hell AG and/or its subsidiaries
90. New Century Schoolbook Bold Linotype-Hell AG and/or its subsidiaries
91. New Century Schoolbook Bold Italic Linotype-Hell AG and/or its subsidiaries
92. New York Apple Computer, Inc.
93. Optima Linotype-Hell AG and/or its subsidiaries
94. Optima Italic Linotype-Hell AG and/or its subsidiaries
95. Optima Bold Linotype-Hell AG and/or its subsidiaries
96. Optima Bold Italic Linotype-Hell AG and/or its subsidiaries
97. Oxford AlphaOmega Typography
98. Palatino Roman Linotype-Hell AG and/or its subsidiaries
99. Palatino Italic Linotype-Hell AG and/or its subsidiaries
100. Palatino Bold Linotype-Hell AG and/or its subsidiaries
101. Palatino Bold Italic Linotype-Hell AG and/or its subsidiaries
102. Stempel Garamond Roman Linotype-Hell AG and/or its subsidiaries
103. Stempel Garamond Italic Linotype-Hell AG and/or its subsidiaries
104. Stempel Garamond Bold Linotype-Hell AG and/or its subsidiaries
- --------------------------------------------------------------------------------
105. Stempel Garamond Bold Italic Linotype-Hell AG and/or its subsidiaries
106. Symbol (Public Domain)
107. Tekton Adobe Systems Incorporated
108. Times Roman Linotype-Hell AG and/or its subsidiaries
109. Times Italic Linotype-Hell AG and/or its subsidiaries
110. Times Bold Linotype-Hell AG and/or its subsidiaries
111. Times Bold Italic Linotype-Hell AG and/or its subsidiaries
112. Univers Linotype-Hell AG and/or its subsidiaries
113. Univers Oblique Linotype-Hell AG and/or its subsidiaries
114. Univers Bold Linotype-Hell AG and/or its subsidiaries
115. Univers Bold Oblique Linotype-Hell AG and/or its subsidiaries
116. Univers Light Linotype-Hell AG and/or its subsidiaries
117. Univers Light Oblique Linotype-Hell AG and/or its subsidiaries
118. UniversCondensed Linotype-Hell AG and/or its subsidiaries
119. UniversCondensed Oblique Linotype-Hell AG and/or its subsidiaries
120. UniversCondensed Bold Linotype-Hell AG and/or its subsidiaries
121. UniversCondensed Bold Oblique Linotype-Hell AG and/or its subsidiaries
122. UniversExtended Linotype-Hell AG and/or its subsidiaries
123. UniversExtended Oblique Linotype-Hell AG and/or its subsidiaries
124. UniversExtended Bold Linotype-Hell AG and/or its subsidiaries
125. UniversExtended Bold Oblique Linotype-Hell AG and for its subsidiaries
126. Wingdings* Microsoft Corporation
127. ITC ZapfChancery Medium Italic International Typeface Corporation
128. ITC ZapfDingbats International Typeface Corporation
129. Arial Monotype Corporation
130. Arial Italic Monotype Corporation
131. Arial Bold Monotype Corporation
132. Arial Bold Italic Monotype Corporation
133. Times New Roman Monotype Corporation
134. Times New Roman Italic Monotype Corporation
135. Times New Roman Bold Monotype Corporation
136. Times New Roman Bold Italic Monotype Corporation
*KONICA agrees that it will reproduce, have reproduced and distribute a Font
Program for the Wingdings(R)Typeface supplied by Adobe hereunder (the "Wingdings
Font Program") only in the Adobe Compact Font Format ("CFF") or TrueType Format
and either (i) embedded in ROM or on a hard disk that is bundled with a Licensed
System or (ii) as part of any other Adobe provided host-based component of a
Licensed System. In the event that the Wingdings Font Program is provided to
KONICA in CFF, KONICA shall treat the fact as Adobe Support Information pursuant
to Section 4 ("Adobe Support Information") of EXHIBIT A ("Secure Procedures for
Handling Adobe Support Information")). KONICA shall, not disclose
such fact to its distributors, resellers or End Users, provided however that
KONICA may disclose or advertise that the Wingdings Font Program is in a
compressed format, where applicable.
///End
EXHIBIT B-1 TO ATTACHMENT #1
Non-Roman Font Programs
1. FONT PROGRAMS FOR JAPANESE TYPEFACES. The following Font Programs shall be
made available on Licensed Systems when specified in a Licensed System Addendum.
(a) Morisawa Japanese Typefaces: Adobe will provide the Adobe Standard
Japanese Character Set which includes JIS, Shift-JIS, and EUC encodings of the
JIS X 0208-1983 and JIS X 0208-1990 Level l and Level 2 characters plus other
characters and encodings as defined in Adobe's Technical Note #5078 (Adobe-Japan
l-2 Character Collection for CID-Keyed Fonts), dated December 4, 1994, for the
Font Programs for Japanese Typefaces in CID-keyed font format listed below.
Generic characters listed therein are not typeface specific. Special character
set or encodings are not provided.
Identifying Trademark Character Collection Trademark Owner
- --------------------- -------------------- ---------------
1. Ryumin Light KL Adobe-Japan1-2 Morisawa & Company, Ltd.
2. Gothic Medium BBB Adobe-Japanl-2 Morisawa & Company, Ltd.
3. FutoGoB 101-Bold Adobe-Japanl-2 Morisawa & Company, Ltd.
4. FutoMinA101-Bold Adobe-Japan1-2 Morisawa & Company, Ltd.
5. Jun 101-Light Adobe-Japanl-2 Morisawa & Company, Ltd.
6. GothicMB101-Bold Adobe-Japan1-2 Morisawa & Company, Ltd.
7. GothicMC101-heavy Adobe-Japanl-2 Morisawa & Company, Ltd.
8. GothicMB101-Ultra Adobe-Japan1-2 Morisawa & Company, Ltd.
9. Jun34-Medium Adobe-Japanl-2 Morisawa & Company, Ltd.
10. Jun501-Bold Adobe-Japanl-2 Morisawa & Company, Ltd.
11. KyokalCA-Light Adobe-Japan1-2 Morisawa & Company, Ltd.
12. KyokalCA-regular Adobe-Japanl-2 Morisawa & Company, Ltd.
13. KyokalCA-Medium Adobe-Japanl-2 Morisawa & Company, Ltd.
14. MidashiGo-MB31 Adobe-Japanl-2 Morisawa & Company, Ltd.
15. MidashiMin-MA31 Adobe-Japanl-2 Morisawa & Company, Ltd.
16. Ryumin-Bold Adobe-Japanl-2 Morisawa & Company, Ltd.
17. Ryumin-Medium Adobe-Japanl-2 Morisawa & Company, Ltd.
18. Ryumin-regular Adobe-Japanl-2 Morisawa & Company, Ltd.
19. Ryumin-heavy Adobe-Japanl-2 Morisawa & Company, Ltd.
20. Ryumin-Ultra Adobe-Japanl-2 Morisawa & Company, Ltd.
21. ShinGo-Bold Adobe-Japanl-2 Morisawa & Company, Ltd.
22. ShinGo-Light Adobe-Japanl-2 Morisawa & Company, Ltd.
23. ShinGo-Medium Adobe-Japan 1-2 Morisawa & Company, Ltd.
24. ShinGo-regular Adobe-Japanl-2 Morisawa & Company, Ltd.
25. ShinGo-Ultra Adobe-Japanl-2 Morisawa & Company, Ltd.
26. ShinseiKaisho-CBSK1 Adobe-Japanl-2 Morisawa & Company, Ltd.
Base 2 Morisawa Fonts are the first two fonts on this list.
Base 5 Morisawa Fonts are the first five fonts on this list.
(b) Heisei Japanese Typefaces: Adobe will provide the Adobe Standard
Japanese Character Set which includes JIS, Shift-JIS, and EUC encodings of the
JIS X 0208-1983 and JIS X 0208-1990 Level 1 and Level 2 characters plus other
characters and encodings as defined in Adobe's Technical Note #5078
(Adobe-Japanl-2 Character Collection for CID-Keyed Fonts), dated December 4,
1994, for the Font Programs for Japanese Typefaces in CID-keyed font format
listed below. Generic characters listed therein are not typeface specific.
Special character set or encodings are not provided.
Identifying Trademark Character Collection Trademark Owner
- --------------------- -------------------- ---------------
1. HeiseiMin-W3 Adobe-Japan1-2 Japan Standards Association Font Design Center
2. HeiseiKakuGo-W5 Adobe-Japan1-2 Japan Standards Association Font Design Center
3. HeiseiMin-W5 Adobe-Japanl-1 Japan Standards Association Font Design Center
4. HeiseiMin-W7 Adobe-Japanl-1 Japan Standards Association Font Design Center
5. HeiseiMin-W9 Adobe-Japanl-1 Japan Standards Association Font Design Center
- --------------------------------------------------------------------------------
6. HeiseiMaruGo-W4 Adobe-Japanl-1 Japan Standards Association Font Design Center
7. HeiseiKakuGo-W3 Adobe-Japanl-l Japan Standards Association Font Design Center
8. HeiseiKakuGo-W7 Adobe-Japan l-1 Japan Standards Association Font Design Center
9. HeiseiKakuGo-W9 Adobe-Japanl-1 Japan Standards Association Font Design Center
10. HeiseiMin-W3H Adobe-Japan2-0 Japan Standards Association Font Design Center
Base 2 Heisei Fonts are the first two fonts on this list.
KONICA shall include the following notice in documentation and materials
accompanying any product that refers to the Font Programs for Japanese Typefaces
in Section 1(b) ("Heisei Japanese Typefaces") above:
"The Heisei Fonts (list the applicable fonts by name) have
been licensed for use from the Japan Standards Association
Font Design Center. Unauthorized reproduction as a font is
prohibited."
KONICA is not a member of the Japan Standards Association Font Design Center so
Adobe is required to notify the Font Design Center of a grant of a license to
KONICA prior to distribution of the Heisei Japanese Typefaces with a Licensed
System. KONICA consents to such notification, and shall notify Adobe in writing
of its intention to distribute Heisei Fonts as part of a Licensed System in
advance of First Commercial Shipment of such Licensed System.
2. FONT PROGRAMS FOR CHINESE TYPEFACES. The following font programs shall be
made available on licensed systems when specified in a Licensed System Addendum
(a) Simplified Chinese Typefaces: Adobe will provide the Adobe Standard
Simplified Chinese Character Set as defined in Technical Note #5079 (Adobe-GB1-0
Character Collection for CID-Keyed Fonts), dated February 6, 1996, for the
Simplified Chinese Typefaces in CID-keyed font format listed below. Generic
characters listed therein are not typeface specific. Special character set or
encodings are not provided.
Identifying Trademark Character Collection Trademark Owner
- --------------------- -------------------- ---------------
1. STSong-Light Adobe-GB1-1 SinoType Technology Co., Ltd.
2. STFangsong-Light Adobe-GB 1-1 SinoType Technology Co., Ltd.
3. STHeiti-Regular Adobe-GB1-1 SinoType Technology Co., Ltd.
4. STKaiti-Regular Adobe-GB 1-1 SinoType Technology Co., Ltd.
Distributed inclusively as a set.
(b) Traditional Chinese Typefaces: Adobe will provide the Adobe
Standard Simplified Chinese Character Set as defined in Technical Note #5080
(Adobe-CNS1-0 Character Collection for CID-Keyed Fonts), dated June 15, 1995,
for the Traditional Chinese Typefaces in CID-keyed font format listed below.
Generic characters listed therein are not typeface specific. Special character
set or encodings are not provided.
Identifying Trademark Character Collection Trademark Owner
- --------------------- -------------------- ---------------
1. MSung-Light Adobe-CNS1-0 Monotype Corporation
2. MSung-Medium Adobe-CNS1-0 Monotype Corporation
3. MHei-Medium Adobe-CNS1-0 Monotype Corporation
4. MKai-Medium Adobe-CNS1-0 Monotype Corporation
Distributed inclusively as a set.
3. FONT PROGRAMS FOR KOREAN TYPEFACES. The following Font Programs shall be made
available on Licensed Systems when specified in a Licensed System Addendum.
(a) Han Yang Korean Typefaces: Adobe will provide the Adobe Standard
Korean Character Set as defined in Technical Note #5093 (Adobe-Korea1-0
Character Collection for CID-Keyed Fonts), dated June 15, 1995, for the Korean
Typefaces in CID-keyed font format listed below. Generic characters listed
therein are not typeface specific. Special character set or encodings are not
provided.
- --------------------------------------------------------------------------------
Identifying Trademark Character Collection Trademark Owner
- --------------------- -------------------- ---------------
1. HYSMyungJo-Medium Adobe-Korea 1-1 HanYang Systems, Inc.
2. HYGoThic-Medium Adobe-Korea 1-1 HanYang Systems, Inc.
3. HYGungSeo-Bold Adobe-Korea 1-1 HanYang Systems, Inc.
4. HYRGoThic-Medium Adobe-Korea 1-1 HanYang Systems, Inc.
5. HYKakHeadLine-Medium Adobe-Korea 1-1* HanYang Systems, Inc.
6. HYKakHeadLine-Bold Adobe-Korea 1-1 * HanYang Systems, Inc.
(* indicates Hangul subset only)
Distributed inclusively as a set.
(b) SoftMagic Korean Typefaces: Adobe will provide the Adobe Standard
Korean Character Set as defined in Technical Note #5093 (Adobe-Koreal-0
Character Collection for CID-Keyed Fonts), dated June 15, 1995, for the Korean
Typefaces in CID-keyed font format listed below. Generic characters listed
therein are not typeface specific. Special character set or encodings are not
provided.
Identifying Trademark Character Collection Trademark Owner
- --------------------- -------------------- ---------------
1. SMGothic(TM)-Light Adobe-Korea 1-1 SoftMagic, Inc.
2. SMGothic(TM)-Medium Adobe-Korea 1-1 SoftMagic, Inc.
3. SMGothic(TM)-DemiBold Adobe-Korea 1-1 SoftMagic, Inc.
4. SMGothic(TM)-Bold Adobe-Korea 1-1 SoftMagic, Inc.
5. SMMyungjo(TM)- Light Adobe-Korea 1-1 SoftMagic, Inc.
6. SMMyungjo(TM)-Medium Adobe-Korea 1-1 SoftMagic, Inc.
7. SMMyungjo(TM)-DemiBold Adobe-Korea 1-1 SoftMagic, Inc.
8. SMMyungjo(TM)-Bold Adobe-Korea 1-1 SoftMagic, Inc.
Distributed inclusively as a set.
///End
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subjedt to the confidentiality
request. Omissions are designed as *. A complete version of this exhibit has
been files separately with the Securities and Exchange Commission.
- --------------------------------------------------------------------------------
EXHIBIT C TO ATTACHMENT #1
USE OF ADOBE TRADEMARKS
1. DEFINITIONS. For the purposes of this Exhibit, the following definitions
shall apply.
1.1 "Licensed Product" means (i) PEERLESS SDK or PEERLESS Revised Object
deliverable as applied to PEERLESS, and (ii) Licensed System as applied to
KONICA.
1.2 "Product Addendum" means (i) an SDK Addendum as applied to a PEERLESS SDK,
and (ii) Licensed System Addendum as applied to a Licensed System.
1.3 "Trademark Licensee" means (i) KONICA in those instances of KONICA's use and
license of the Trademarks, and (ii) KONICA's Remarketer Customer in those
instances of KONICA's Remarketer Customer's use and license of the Trademark.
2. OWNERSHIP OF TRADEMARKS. Trademark Licensee acknowledges the ownership of the
Adobe Trademarks in Adobe and the ownership of the Typeface Trademarks in the
entities identified as "Trademark Owner" in EXHIBIT B TO ATTACHMENT #1
("Extended Roman Font Program Set") or in a Product Addendum hereto. Adobe and
such Typeface Trademark owners are referred to as the "Trademark Owners".
Trademark Licensee agrees that it will do nothing inconsistent with such
ownership and that all use of the Trademarks by Trademark Licensee shall inure
to the benefit of and is on behalf of Adobe. Trademark Licensee acknowledges
that Trademarks are valid under applicable law and that Trademark Licensee's
utilization of the Trademarks will not create any right, title or interest in or
to such Trademarks. Trademark Licensee acknowledges Trademark Owners' exclusive
right to use of the Trademarks and agrees not to do anything contesting or
impairing the trademark rights of the Trademark Owners. Any use of the
Trademarks must identify the applicable "Trademark Owner" as the owner of such
Trademarks. Trademark Licensee agrees that it will notify or require
notification of sublicensees who receive Font Programs that (a) Typeface
Trademarks can only be used to identify printed output produced by the Font
Programs, and (b) the Typeface Trademarks are the property of the Trademark
Owners. Trademark Licensee will maintain a high quality standard in producing
copies of Font Programs and Typefaces. At the request of Adobe, Trademark
Licensee must supply samples of any Typeface identified by a Typeface Trademark.
3. QUALITY STANDARDS. Adobe hereby appoints Trademark Licensee as its
representative for the limited purpose of controlling the quality of the Revised
Object, Font Programs, Host Software and Licensed Products and any other
products or services it supplies or is supplied by Trademark Licensee in
connection with the use of the Trademarks. KONICA shall identify its current
Trademark Licensee upon request by Adobe. Trademark Licensee agrees that (a) the
nature and quality of Licensed Products and any other products or services it
supplies or is supplied by Trademark Licensee in connection with use of the
Trademarks shall conform to the standards set by Adobe, and (b) it will
cooperate with Adobe in facilitating Adobe's monitoring and control of the
nature and quality of such products and services. Such assistance shall include
supplying Adobe, upon its request, with specimens of its use of the Trademarks,
including supplying samples of reprinted documentation, translations, product
packaging and promotional materials that use the Trademarks in conjunction with
Trademark Licensee's marketing of Licensed Products. Adobe may conduct an
inspection of such specimens at facilities of its choosing including at
Trademark Licensee's facilities to determine conformance with the standards.
Trademark Licensee shall at Adobe's request assist Adobe in conducting such
inspection and testing including, but not limited to, providing Adobe with
applicable hardware. If, at any time, Adobe determines that Trademark Licensee
has not met the Adobe quality standards, Adobe shall so advise Trademark
Licensee and, upon Trademark Licensee's receipt of such notice by any means, the
party who has failed to meet the standards shall have sixty (60) days to improve
the quality to the standard previously approved by Adobe, or to cease the use of
all Trademarks. Trademark Licensee shall comply with all applicable laws and
regulations and obtain all appropriate government approvals pertaining to the
use of the Trademarks and to the distribution and advertising of the Revised
Object, Font Programs, Host Software and Licensed Products. In addition,
Trademark Licensee shall provide reasonable and timely assistance to Adobe to
comply with the same.
4. INFRINGEMENT PROCEEDINGS. Trademark Licensee agrees to notify Adobe of any
unauthorized or improper use of the Trademarks by other parties (including
Subsidiaries or sublicensees) promptly as it comes to Trademark Licensee's
attention. Adobe shall have the sole right and discretion to bring infringement
or unfair competition proceedings involving the Trademarks; provided, however,
that Trademark Licensee shall provide reasonable assistance solely upon Adobe's
request to investigate and/or prosecute trademark violations on behalf of Adobe.
- --------------------------------------------------------------------------------
5. TRADEMARK LICENSEE'S USE OF TRADEMARKS. Trademark Licensee agrees that it
will (a) prominently and permanently include the Adobe Trademarks, including the
Adobe PostScript logo, on all copies of the Revised Object, including the splash
screen and media which have been mutually agreed upon, and on any Trademark
Licensee product distributed to End Users which contains the Revised Object, (b)
use best efforts to use the Adobe Trademarks, including the Adobe PostScript
logo, in any advertising or printed materials concerning the Revised Object,
including point-of-sale and channel materials, (c) use best efforts to use the
Adobe PostScript logo on Trademark Licensee's corporate web site in accordance
with Section 7.1.6 ("Web Site") of the Agreement, and (d) use best efforts to
use all applicable Trademarks on all copies, advertisements, brochures, manuals,
packaging and other appropriate uses made in the promotion, sale or use of the
Revised Object, Font Programs, Host Software and PostScript Language
Specification. Said use shall be in compliance with the provisions set out in
this Exhibit C. Trademark Licensee shall make specific reference to the Adobe
Trademarks applicable to the software components included in the Revised Object
in any advertisement concerning the Licensed Products which also contains
specific names of other software products. All such uses shall be in accordance
with Adobe's then-current trademark manual. Trademark Licensee shall not
translate the Trademarks nor render or adapt a foreign language equivalent of
the Trademarks.
6. TRADEMARK REGISTRATIONS. Trademark Licensee, at Adobe's request, shall (a)
promptly provide Adobe with any specimens, (b) execute all applications for
trademark registrations, assignments, cancellations or other applicable
documents, and (c) perform any other act reasonably necessary for any Trademark
Owner to secure or maintain any and all trademark rights in any country in which
Trademark Licensee is marketing the Revised Object, Font Programs, and Host
Software in association with a trademark. Trademark Licensee's responsibilities
shall include complying with the formalities of local law, including, but not
limited to, executing any application for registration as a registered user,
executing additional license agreements suitable for recording with the
appropriate authorities or providing proof of use of the trademarks in any other
applicable documents.
7. NO UNITARY OR COMPOSITE MARKS. Trademark Licensee agrees not to use any other
trademark or service mark in close proximity to any of the Adobe Trademarks or
combine the marks so as to effectively create a unitary composite mark (e.g.,
which may potentially give the public a misimpression of the relationship
between Trademark Licensee, its licensees and Adobe) without the prior written
approval of Adobe.
///End
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